A Permitting Reform Wishlist for Congress

A boy can dream

The reconciliation fight has been going gangbusters this week, and will likely be the biggest show in town for at least the next few months. Depending on whether permitting reform sneaks its way into the final package, I will either end up running an obnoxious victory lap or (much more likely) writing a truly despondent postmortem. Either way, there’s no question that the permitting reforms that can survive the upside-down bizarro land that is reconciliation are very different from those that we’d want to enact in regular order.

With this in mind, permitting reform advocates should keep an eye towards 2026, when the Infrastructure Investment and Jobs Act (or more accurately, the surface transportation programs contained therein) will come up for reauthorization. These surface transportation reauthorizations are must-pass bills, and will thus provide the best opportunity for permitting reform this Congress.

To this end, I thought it might be useful to lay out all of the most significant permitting reforms that I’d like to see Congress enact.

A few notes here:

• Some of these ideas (eg, full NEPA repeal) stand a close-to-zero chance of getting 60 votes in the Senate next year. That’s fine — this isn’t a strategy document.

• I’ve included past bills, mock legislation, or regulatory language alongside each recommendation so that readers can dig a little deeper into the details of each reform. Some of the bills are 1:1 matches with the recommended reforms; others are more narrowly tailored (eg, The Resilient Federal Forests Act) but could easily be broadened.

• I don’t know all that much about Clean Water Act Sec. 402 (NPDES), the RCRA, the CZMA, etc, so I’m not including them on this list. I’d love to see someone with expertise lob out a few ideas, though.

Now without further ado, here’s what my ideal Congress would do on permitting:

National Environmental Policy Act

• Repeal NEPA in its entirety

  • Bill text: None, but straightforward

• Implement time limits on injunctive relief to prevent endless litigation delays

  • (Mock) bill text: IFP’s “Time Limit on Injunctions”

• Expand categorical exclusions to a wider range of energy and infrastructure projects

  • Bill text:

    • Energy Policy Act of 2005 created categorical exclusions for oil and gas

    • Building CHIPS in America Act created categorical exclusions for semiconductor fabs

Endangered Species Act

• Focus Section 7 exclusively on preventing actual harm to species, eliminating consultation when harm unlikely

  • Bill text: The Resilient Federal Forests Act of 2017 attempted to do this for forest-related activities (see: Sec. 123)

• Implement time limits on injunctive relief to prevent endless litigation

  • Bill text: Same idea as the NEPA time limit

Clean Water Act Section 401

• Implement strict one-year timeline for state decisions with automatic approval if deadline missed

  • Reg text: Trump 2020 rule

• Create federal override mechanism for denials that conflict with national interests

  • Bill text: not a perfect analogue, but the Energy Policy Act of 2005’s “National Interest Electric Transmission Corridor” concept has some useful ideas. See also: the SITE Act.

• Narrow 401’s scope such that denials are based on direct water quality concerns

  • Bill text: Water Quality Certification Improvement Act of 2019

Clean Water Act Section 404

• Eliminate automatic NEPA and ESA consultation triggers for routine permits

  • Bill text: HR 7023 exempts certain 404 processes from ESA consultation and states that such processes require an EA instead of an EIS under NEPA

• Limit judicial review of Nationwide Permits that cover routine activities

  • Bill text: HR 7023 likewise sets a statute of limitations, narrows standing, and limits court remedies.

Clean Air Act

• Replace NSR’s command-and-control system with an emissions trading program

  • Bill text: Clear Skies Act of 2003 (see: Sec. 451)

• Update NAAQS setting process to consider implementation feasibility and economic impacts alongside health impacts

  • Bill text: Transparency in Regulatory Analysis of Impacts on the Nation Act (see: Sec. 6)