This piece originally appeared at Green Tape.
Every few months, someone in the environmental justice world comes across one of two studies: David Adelman’s “Permitting Reform’s False Choice” or John Ruple’s “Measuring the NEPA Litigation Burden.” After reading the executive summary, they immediately conclude that they have uncovered a vast conspiracy and take to Twitter to declare that NEPA Was Never A Barrier to Energy In the First Place.
Infrastructure Twitter was dragged through another round of this discourse recently, so I figured it was high time to take a closer look at both the Ruple and Adelman studies. In both cases, the data is perfectly fine, and generally provides evidence in favor of permitting reform. The authors’ interpretations of this data is where things fall off a cliff.
Measuring the NEPA Litigation Burden
Ruple’s study analyzes 1,499 federal court opinions involving NEPA challenges from 2001-2013. He comes up with two key findings:
Only about 0.22% of NEPA decisions (1 in 450) face legal challenges
Less than 1% of NEPA reviews are environmental impact statements (EISs), and about 5% of NEPA reviews are environmental assessments (EAs).
For permitting reform advocates, these statistics sure seem damning. Indeed, we often talk about the litigiousness of NEPA as the core problem with the law, pointing to the time, cost, and uncertainty that litigation creates for infrastructure developers.
But in “Measuring the NEPA Litigation Burden,” Ruple makes the same error that he’s made throughout his work on permitting: he takes the average volume of litigation across all NEPA reviews and makes a conclusion about NEPA’s impact on infrastructure in particular. In other words, his denominator is wildly inflated.
Ruple’s dataset includes NEPA reviews at every level of stringency: categorical exclusions (CatExes), EAs, and EISs. And as Ruple himself points out, around 95% of NEPA reviews are CatExes. This is because NEPA is triggered by almost every federal action, and thus CatExes are required for everything from federal hiring to, yes, picnics.
Now, this may come as a shock to some, but the government rarely gets sued for its sandwich-eating practices. More broadly, the nature of categorically excluded activities means that CatExes sees near-zero litigation rates.
By contrast, energy infrastructure very rarely falls into the CatEx bucket. In fact, clean energy projects going through NEPA typically must complete an EIS—the highest level of review—and otherwise complete an EA. These projects are much, much more likely to be sued.
The actual litigation rates for energy infrastructure, then, are markedly higher than Ruple’s 0.22% statistic would suggest. Last year, Stanford University’s Michael Bennon and Devon Wilson analyzed the hundreds of infrastructure projects that completed EISs from 2010-2018. Their findings are remarkable: solar, pipeline, wind, and transmission projects saw litigation rates of 64%, 50%, 38%, and 31% respectively. The cancellation rates for each of these project types were also extraordinarily high, ranging from 12% to 32%.
