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In this episode, we discuss:
Administrative vs. legislative permitting reform
Risk aversion and litigation-proofing in the agencies
How this administration’s priorities affect Congress
Learnings from the Fiscal Responsibility Act negotiations
Thomas Hochman: Welcome to Right of Way, a podcast about energy policy, energy politics, and above all the upcoming permitting reform negotiations. I’m Thomas Hochman, director of infrastructure policy at the Foundation for American Innovation, and I’m joined by Pavan Venkatakrishnan, an infrastructure fellow at the Institute for Progress.
We talk a lot about permitting reform and different policy interventions on this show. But one criticism that folks like us get is that we don’t spend much time up close to the actually-existing permitting process – the tribal consultations, the town halls where local boards and lead agencies host public comment, the scoping meetings, site visits, and months of back-and-forth on mitigation plans.
It’s a fair critique – think tankers work with data and testimonials, of course, but very few of us are really on the ground.
Fortunately, our guest today is perhaps the foremost authority on the brass tacks of the permitting process today. Joining us to discuss what wonks get right and wrong about the permitting process, what reforms will move the needle, how this administration approaches permitting, and where things stand on the Hill – is Emily Domenech.
Emily is the Executive Director of the Federal Permitting Improvement Steering Council, – also known as the Permitting Council– the federal agency responsible for coordinating and tracking federal environmental reviews, improving transparency and predictability, and helping resolve interagency bottlenecks for large infrastructure projects.
As Executive Director, Emily manages a portfolio of nearly $75 billion in large-scale infrastructure projects in 19 different sectors, from energy production to mining, ports and waterways to transmission.
Prior to leading the Permitting Council, Emily held a variety of roles in both the public and private sector, including on the Hill as Senior Policy Advisor to Speaker Kevin McCarthy and Speaker Mike Johnson, where she managed permitting and energy policy for House Republicans. Her key accomplishments include serving as lead negotiator for the House on NEPA reform, resulting in the first-of-a-kind NEPA reforms enacted by the Fiscal Responsibility Act.
Emily, welcome to Right of Way.
Emily: Thanks so much for having me. You’re here to let me talk about my favorite topic.
Thomas: There are so many places we could start. But as a fellow NEPA nerd,
I figured it might be helpful to start with a high-level policy wonk question. There are two buckets for NEPA improvement, I think, in the way that we talk about NEPA as it’s implemented. First, the improvements you can make without an act of Congress – things like better interagency coordination, higher quality applications, digitization, more staff, et cetera. And second, there are the improvements that you really can only make with an act of Congress.
Some people argue that the whole game is in that first bucket – that we just need more capacity in the agencies, basically. Others argue the opposite – that none of this really matters without judicial review reforms and better guardrails on the scope of analysis. You’ve dealt with this question from both sides, first working for the Speaker in Congress and now at the Permitting Council. So when you break things down, how do you see it? How much better – whether that’s by a percentage or a number of years or whatever, can agencies like Permitting Council make things without an act of Congress? And how much is still out there left to be fixed by legislation?
Emily: So I love that you tried to box me into a little percentage game here, but I think it’s a little bit more complicated than that. I always tell people, “In order for permitting to truly change in this country, we need changes on a number of fronts.” And I think you got two out of four.
One is having an executive who’s willing to use every tool in the toolbox, be it a national emergency, redoing regs, or empowering places like the permitting council to really organize and streamline the permitting process. So we’ve got that box checked with President Trump. There’s no question that we’re really leaning into every authority we have.
Then you need to change the legislative stuff that we can’t fix. And that’s things like judicial review, standing, and the kinds of things that tend to derail projects after we’ve already done a really fulsome environmental review process.
The last two things, though, are action by the courts, where I think we’ve made some progress – really truly defining what these bedrock environmental laws mean. The best outcome of the Fiscal Responsibility Act was getting ourselves to the cases that led to defining “reasonably foreseeable” in a way that was more narrow and sort of put us back on track with NEPA. And then that fourth bucket is how do we change the culture of the staff that are doing the permitting on a day-to-day basis, so that the default reaction isn’t a “wait forever, maybe you’ll get a permit, default to the longest review”, but instead a “how do we follow the law, do responsible environmental reviews, and ensure that we’re really meeting the requirements of Congress and allowing developers to move forward.” So I think you really do need action in all four of those areas in order to truly reform this behemoth that is federal permitting.
So it’s hard to break it down into a 50-50 split. But I would say everything we’re doing in the Trump administration – much of that will carry forward to a future administration. I think the action of starting fresh on our NEPA regulations is a big start. Doubling and even tripling the size of the portfolio at the Permitting Council is something that’s going to continue beyond this administration.
But none of that matters if every single one of those permits gets litigated by a frivolous litigant who has no business being involved in that process. So I really do think that while we can make a lot of progress and we can get a lot of things built and we can flood the zone, without that judicial review reform from Congress, it’s going to be really difficult for us to have lasting reform.
Pavan: Yes, so there are some reports out there that tell us that NEPA reviews covered by the Permitting Council end up moving about a year quicker than those that don’t. Are there any variables that come to mind that are the reason for these reviews moving quicker? Is it extra staff? Is it better agency accountability? What’s your take there?
Emily: The Permitting Council really does serve as this – I describe it as like the band-aid to a broken federal permitting system. We come in and we deal with a lot of those interagency conflicts, or lack of communication, or disconnects that make the permitting process not just long and complicated, but confusing for a project developer.
I really believe that some of the things we do that make a difference are the simplest things. What we do for our covered projects is once you come into FAST-41, we’re required by statute that within 60 days we have to identify your lead permitting agency, all of your cooperating agencies, any states and tribes that might have a permitting action for your project, and we convene that whole group with the project developer and develop that permitting timetable. You would be shocked, but that secure action of getting people in the room at the start of a project – within the first 60 days of a project application – makes a massive difference in ensuring that you smoke out every review. So there’s none of those unknown unknowns that tend to exist in the permitting process. You know what you have to deal with and when you need to do it.
And then we also are able to take that permitting timetable and, instead of everything happening in sequence – because that’s just how things typically happen in the federal government – we move as many of those reviews to happen in parallel as we possibly can. On that permitting dashboard, you’ll see our timetables are built out as a Gantt chart because many of these reviews can happen simultaneously. You just need someone to corral the players and get them in one place.
So I would say that kickoff meeting, but certainly the work that we do throughout the permitting timetable to keep people accountable and make sure they meet their milestones – and frankly, for lack of a better word, nag federal agencies to stay on time and nag project sponsors to do that. I really think that kickoff meeting is a huge part of the magic that makes our process faster and more efficient.
Thomas: Let me ask potentially a naive question here, but why is this culturally not something that immediately filters out into all the other agencies who are doing permitting reviews for all the projects that are not covered under the Permitting Council?
Emily: I mean, theoretically, each lead agency is supposed to be following the One Federal Decision guidelines to ensure they’re incorporating input from every other agency. In practice, that can happen very slowly. And it tends to happen only when another federal agency recognizes that they need to come to the table because of some triggering action along the way. What really saves time is we force it to happen at the beginning. Now, do I think that we could eventually get to a place where we could require that of every lead agency? Perhaps. If we incorporated a technology tool or AI into identifying those leading and cooperating agencies, could we potentially do that for far more projects than we can serve at the Permitting Council? Certainly. But we’re not there yet, and I don’t think we’re going to be there anytime soon.
So in the meantime, the Permitting Council can play this really important corralling role to get everybody on the same page. It also allows for an opportunity for our staff – who are all very experienced permitting professionals – to help say, “Let’s think through the process instead of just defaulting to the longest review possible.” So we can say, “Are we really following the law? Is there perhaps a more creative way that we could permit this project appropriately but faster?” Sometimes you need somebody in the room to encourage people to think differently. And that’s where I think that cultural element comes in.
Pavan: Are there any anecdotes or projects that come to mind where the Permitting Council unbottlenecked the process?
Emily: So it’s hard for me to pick an anecdote because it’s what we do literally every day. Multiple times a week I am calling an agency to say, “Hey, did you realize that XYZ field office is sitting on XYZ permit and we need it to move in the next three days or we’re going to miss a deadline?”
It’s wonderful to have partners – both political and career – at the federal agencies who frankly want to build stuff just as much as we do. So they’re good partners. When we flag an issue for them, particularly our Trump appointees are really quick on the draw to go deal with that issue. But oftentimes, they’re managing teams of hundreds of thousands of people. They do not have the time to be in the weeds following every single project and keeping track of every milestone. So without us flagging it, it wouldn’t necessarily happen.
I’m trying to think of a good example. There’s been a number of projects we’ve had recently where our team has helped to facilitate getting the appropriate level of review for a project. So instead of just defaulting to an EIS, we’ve been able to move the project to say, “Hey, let’s really look at the scope. Can we do this with an environmental assessment? Can we do this with a combination of CatExs so that we can save time and be more efficient and frankly save federal dollars? We’ve had a lot of success in that space. But truthfully, most of my time is spent saying, “Hey, we’re going to miss a deadline. You need to get this person to focus on this thing so we can get it done and get it published on time.” And, “Why do we need that 30-day cooling off period? Let’s just move forward and publish the milestones.” So a lot of it is just that day-to-day keeping people on task.
Thomas: So I’m very curious about how this interacts with the litigation side of things that we’ve talked about. It has been a little while since I looked at how the various projects on the Permitting Council dashboard were performing. But the last time I checked, it seemed like the litigation rates for projects that underwent the Permitting Council process were significantly lower – even though they were high-impact infrastructure projects in theory – than other projects undergoing the NEPA process. What do you attribute that to?
Emily: So I think it happens for two reasons. One, it’s important to note that we do have some judicial review limitations in our statute. We’ve got a two-year limit on filing a lawsuit on our actions that are published in the Federal Register. That has only been utilized for one of our projects, but it has been utilized in the past to toss out lawsuits. So we’re happy to see that action come to pass.
But I actually think the biggest deterrent for litigants for our projects is they are very public. Part of the process is that we have this transparent timeline that really does show every federal action along the way. It really does show every point where it’s appropriate for community engagement. We’re not hiding the ball, we’re not cutting any corners. The transparency works both ways – both for the federal agencies to stay on time, but also for project developers to show they really did meet the requirements of a permitting timetable.
So I think that does help, particularly when it comes to more organic potential opposition to a project in your hometown. These projects are not a secret. They’re posted on a federal dashboard. And so those project developers do really have to do their homework to make sure they’re in a good place with their community.
But the reality is that’s how community engagement is supposed to work. You’re supposed to be able to have a project developer who is able to be public and transparent and show that they’re meeting the requirements of the law, and that should be enough to get you through the process. The place where we have problems is when we have litigants airdrop in who aren’t even from that community to try to stop a project for political reasons. And frankly, those tend to take a little longer to matriculate, and in some cases that’s where our litigation protections come in.
Pavan: Makes sense. So one issue we talk a lot about is this issue of litigation-proofing, whereby agencies are including a lot of non-germane information or review because they’re afraid that the review will get contested in court. There was an outgoing NEPA general counsel claim that as much as 90% of the content in NEPA documents was there just for litigation-proofing. So to what extent do you think that issue is a major driver of NEPA document lengths and timelines, and how does that kind of play out in practice?
Emily: I think that’s absolutely true. Where I would say it plays out in practice is that knee-jerk reaction that everything needs to be an EIS. “We need to do the longest, most complete review for every single action taking place on federal land or with a federal impact.” That is not compliant with the law. That is very clearly not Congress’s intent.
And I think, frankly, it does lend itself to far more delays because you’re trying to imagine every possible scenario for how you could be challenged. I want my subject matter experts in the federal agencies to focus on their area of expertise and on doing a thorough job within the time provided for the appropriate environmental review. I don’t want them thinking endlessly about all the possibilities for the ways that some enviro group could come and sue their project.
And unfortunately, that fear of litigation plays into a ton of the work we see in the field, particularly from our career employees. That’s a bad thing, and it’s part of that cultural problem we need to solve.
I also think frankly the idea that we can make anything litigation-proof by making it a longer or more thorough review is kind of nonsense, because most of these cases that are brought against federal permits are frivolous to begin with. Most of them are tossed out. You’ve seen dozens of reports that have shown that 80, 90 percent of cases are frivolous lawsuits from the jump. So no matter how thorough you are, you’re not going to be able to push back against someone who’s just suing you because you’re trying to build something in America. So we have to change that cultural mindset that we can somehow work our way around the litigation issue. Congress really has to fix it.
Thomas: It’s interesting, I find the idea of that decision point as to whether or not to go to EA or EIS in particular as really fascinating. There’s this moment where you have to make a decision: am I going to do the three-and-a-half, four-and-a-half year process, or am I going to do the maybe one-year process? And yet that line, that go/no-go line is sometimes hard to discern.
Emily: It certainly is, but I would just add, I think oftentimes if you’re on that line, folks default to the longer review. And the reality is you’re never going down to an EA if you start with an EIS. But what we should do is say if we think we meet the requirements for an EA and we along the way discover that actually, you know what, there’s a far bigger wetland impact or there’s more endangered species than we anticipated – or whatever issue is going to trigger us to the EIS – we can always expand the review. We’re never going in the other direction. So that’s why we have to think: what does the law say? And as long as we’re following the law, we’re not going to have this problem.
Thomas: Totally. So another question here is how much NEPA timelines are driven by NEPA the statute versus the other underlying statutes that the NEPA process serves as an umbrella for. This is your Endangered Species Act, your National Historic Preservation Act, et cetera. There are some studies out there, some think tanks out there that claim that the main causes of NEPA delays are those underlying statutes rather than NEPA itself. First of all, to what extent do you think this is true? And if it is true to an extent, does that suggest that Congress has been overly focused on the wrong statute? Or that the breadth should be much broader as we think about what we should be paying attention to on the Hill?
Emily: So can I pick all of the above on this one? The reality is NEPA does certainly cause delays. Anytime you’re doing a comprehensive review, it’s most often where you see people do pre-application work that’s going to take forever. But the consultations, particularly for Endangered Species Act and Section 106, are incredibly time-consuming. And I think it’s also where we’re seeing the trend in the frivolous litigants. They’re far more likely to look at an opportunity to sue under a Section 106 review rather than looking at perhaps another statute.
So I think we need to be cognizant that fixing NEPA does not fix every problem in our permitting process. And there is no such thing as one NEPA permit that provides for everything under the sun. It’s by nature a collaborative process that brings in all of these agencies to do their individual parts, referring back to their fundamental environmental statutes.
And I think we have to recognize that, again, fixing NEPA – we’re never close to done. In fact, I hear people say, “We can get a big permitting reform deal that fixes every problem.” And I’m like, “OK, well, we can maybe fix NEPA, we could fix some of our problems with the Clean Water Act, but we haven’t even touched the Endangered Species Act or Section 106.” And the National Historic Preservation Act is a huge challenge, particularly in the West and Alaska. So I think it really is all of the above. And even if we get the most perfect NEPA reform bill out of Congress this cycle, we’re still going to have work to do.
Pavan: So I just wanted to turn for a moment to Congress. As we record this, a continuing resolution has not passed. This is not even the first podcast we’ve recorded with no continuing resolution. The House has introduced a bunch of energy and permitting reform legislation. We’ve got the PERMIT Act covering the Clean Water Act, the SPEED and Reliability Act covering transmission, and the SPEED Act for NEPA – which is undergoing edits, and there’s been lots of rumors. We had an NHPA hearing in ENR, but no legislation there as of now.
I would love to talk about the lessons that you took away working for Speaker McCarthy and Speaker Johnson – from the efforts that worked to enact permitting reform and maybe the efforts that didn’t.
Emily: Yeah, so I like to say I was part of the most boring NEPA reform bill in history. We did all of the really mundane reforms – time limits, page limits, all that good stuff. But it was really critical, frankly, for opening the door to larger reforms in the future and laying a groundwork for the courts.
But negotiating that very boring NEPA bill was one of the hardest experiences of my congressional career. So I do not underestimate how difficult it is to negotiate these bills. And Speaker Johnson certainly will have a challenge corralling his members, much less the Senate.
I think there’s a couple of things that make that challenging. One, every committee in Congress believes that their priorities are the top priorities. And a bill like this that covers three to six committees, depending on how you count it – it’s really hard to have one lead entity leading the charge and corralling the troops.
I think the second thing is that the committee jurisdiction between the House and the Senate doesn’t line up appropriately. So you have differing operations that cover different parts of the jurisdiction in the House and the Senate side. So no matter how you assemble your bill, you’re going to have to take it apart to get the players on the same page when it gets to the other chamber.
My best advice for the folks on the Hill who are working on this now – they’re certainly following some of it – which is to get out ahead of it early. A huge part of what made it possible to do the Fiscal Responsibility Act was that we had been working on the Builder Act and its predecessors for years before that. So we had a lot of time and a lot of legislative hearings under our belt.
I think Chairman Bruce Westerman is absolutely doing that. Chairman Graves is doing that at T&I. I’d love to see the folks in the Senate start to get their bill out in the open and doing some legislative hearings so that we can really, frankly, suss out where everybody is. Because I think doing that in this first year of the Congress is critical, or you’re never going to have enough time to cut a deal.
The biggest takeaway from last year’s bill that didn’t quite make it across the finish line, I think, is that you cannot wait until after the election to start negotiating with the other chamber. There was just never going to be enough time. These are 40- and 50-year-old environmental laws. You’re going to need more than two or three weeks to figure out a landing spot between Republicans and Democrats. So I think you’ve got to put the time in. You need to do that kind of public engagement, even if you feel like it’s redundant. And really, credit to – particularly Bruce Westerman – for getting that process started.
Thomas: Do you happen to remember, during the Fiscal Responsibility Act negotiations, what the most hotly contested pieces were that made it in or didn’t?
Emily: Oh gosh. Well, I would say of what didn’t make it, I spent weeks trying to get the Biden White House team to agree to anything on judicial review limitations or on major federal action. And I was told over and over and over again by my counterpart across the table that the energy they cared about didn’t have trouble with lawsuits and didn’t have trouble with major federal action, which was the funniest thing I’ve ever heard in my life.
So I would love to say if I had had a little bit more to trade from our Republican ideas on some of these critical issues, I think we might have been able to make some progress on judicial review. But we just couldn’t get there because we didn’t frankly have a fulsome enough package to cover the things that mattered to our members.
We could get there on the really basic reforms to NEPA, but in order to go further, we were going to need some big Clean Water Act reforms that the White House was not willing to give us. And frankly, we were not willing to give them anything they asked for on transmission at that juncture. So we were maybe a little ahead of our time on that negotiation.
But I also think there was a real lack of recognition that NEPA causes problems for every type of infrastructure. It does not matter what you are trying to build. NEPA makes it harder to build in America, full stop. And I think that is something that my counterparts on the other side of the aisle did not realize a few years ago that perhaps maybe today they do.
Thomas: So let’s talk a little bit about how the administration’s energy priorities might play into these negotiations. The admin has taken a different approach to, for example, renewables permitting compared to the previous administration, and is mostly focused on other energy sources and on minerals. From where you sit, how do you think that shapes the prospects for a bipartisan deal, if at all? I mean, you just talked about how the Biden White House’s position on permitting played a huge role in the FRA negotiations. So how do you think about it this time around?
Emily: So I hear this a lot – like, “We’re taking this unprecedented stance on how we treat different types of energy.” But every president has their priorities. And I think our charge at the Permitting Council has been to focus on those industries that really were forgotten in the previous administration and frankly long before that.
There’s a reason that we’ve taken our mining portfolio from one project to 47 in the last six months. And it’s because there was a huge line of projects that were waiting to get through the federal permitting process at every stage of mining development. The same is true for our pipeline portfolio. We’re growing that portfolio because it’s one that was neglected by the previous administration.
So I think really the only difference here is that we’re being upfront about our priorities. And our priorities are dispatchable energy, the infrastructure it requires, and ensuring that we can really win the critical mineral and mining race against China. And that’s where we’re going to put our resources and our energy as we go forward.
As far as that goes for impacting the negotiation on the Hill, I don’t think it’s all that much different than our position with the Biden administration. The only difference there is that, frankly, the Biden administration didn’t seem to want to build much of anything. And so they didn’t understand the fundamental challenge that it is hard to build things in America.
I think today we’re at a juncture where everybody accepts that it is harder than it should be to build pretty much everything in America. And if we can start from that point, then we’re looking at these technology-agnostic laws like NEPA or ESA or otherwise. And I don’t think there’s any reason why we can’t approach legislative reforms to those statutes, regardless of the priorities of the president.
Pavan: Yeah, so the president’s AI action plan to us is a document that recognizes the need to rapidly build out the grid to maintain overall reliability and to win the AI race. Obviously, there’s a great deal that the White House can do and agencies can do to help, but what role do you think or expect Congress will play on this issue of transmission policy?
Emily: Yeah, I mean, I think the jury’s still out there a little bit. I haven’t seen transmission legislation from either Energy and Commerce Republicans or from ENR Republicans to date. Folks are working on that language and, as an administration official, we’re happy to respond when we receive it.
From my seat, when we think about how do we build out not just the transmission that’s required, but the pipelines, the energy generation, the additional resources and infrastructure that are necessary to build out data centers across the country – the way we approach that is by thinking about streamlining permitting and doing as much of it in parallel as we possibly can.
That’s why when you look at the AI infrastructure EO that came out back in July, you’ll see a tasker to the Permitting Council to look for ways to list not just data centers, but the accompanying energy projects as much as possible as a grouping. So we’re looking for ways that we can think about the systematic permitting of all of these different pieces that go into winning the AI race. So I’m not wasting my time doing an individual environmental assessment or environmental review for the generation, the pipeline, the transmission line, and the data center. Let’s think about it as a package deal. And how much of this can we do in one fell swoop as opposed to a bunch of individual reviews? Because that also solves your chicken-and-egg problem for when that energy is going to be online for your data center.
So I think changing the way we approach the permitting side of this from the executive branch perspective is going to play a really critical role in making sure the right things come online at the right time. There’s no reason they need to be all thought of as individual projects because we all know they aren’t.
So I think the jury’s still out a little bit on where Congress is going to be on these issues, and we’re ready to respond when they move some stuff through the process. But we have a lot of work to do in the meantime. And frankly, we have a lot of muscle we can put towards this issue from the executive branch perspective. So I would expect to see more of it in the future.
Thomas: What is something that you don’t want Congress to miss during this round of negotiations? Whether that be a certain type of judicial review reform, let’s say, or a certain statute that you think doesn’t get enough attention.
Emily: That’s a great question. I think for me, it’s addressing the standing issue. When we talk about judicial review, for the longest time – and I was part of this – we were very focused on time limits. And the time limits are important too, but determining who has the ability to file a lawsuit I think is really critical. Because if you are not willing to participate actively or you’re not impacted by a project, why do you get to sue to stop it? I think that is a really simple thing that is very accessible to regular people who are not involved in permitting policy, and it’s something that we need to fix. So that would probably be my number one thing.
But I always encourage folks when we talk to our industry partners or to folks on the Hill – I say, think about the things that we can’t fix. Because we’re going to fix every problem we can fix from the executive branch side, and we’re going to do the best we can to build sustainable policies, even through executive authority, by frankly showing that things like the Permitting Council can work. So I think really focusing on that narrow set of issues that we simply cannot fix from the executive side would be my advice.
Thomas: Yeah, it’s interesting. With the standing piece, one of the ideas that’s been floated around quite a bit on the NEPA side is to tie standing to public comment. At the very least, you need to have participated in the public comment process, and hopefully raised the issue you have with specificity. And it’s funny – that often gets hotly contested. But there are a suite of other environmental laws that have this precise standard to bring a lawsuit. Like, the Clean Air Act has an almost identical version of this for litigation – so it’s always interesting to see how it presents itself differently with NEPA negotiations.
Anyhow – we like to end our show by asking our guests for an energy policy hot take. So what is your energy policy hot take?
Emily: Oh, that’s fun. I think my hot take is that we will solve more permitting problems by incorporating AI and technology into the permitting process than we will with any policy or legislative change. The more we can take out the human error and delay from this process, and the more we can allow a project developer to be empowered and really take ownership of their own project application, I think that’s the long-term solution. And we have the ability to really, really change the way the process works by taking advantage of tools that just didn’t exist a few years ago. That’s my hot take.
Thomas: Emily, thank you for joining Right of Way.
Emily: Thanks so much for having me.
