NEPA Nightmares
Tales from the Litigation Doom Loop
By Nikki Chiappa
The Biden administration ushered in a new age of climate optimism. The Inflation Reduction Act and Bipartisan Infrastructure Law included billions of dollars for investment in clean energy research and deployment. But while they were lauded by environmentalists as transformational upon their passage, these bills have quickly run into the buzzsaw of punishing regulations, proceduralist permitting hoops, and litigious environmentalists.
For the Biden admin climate funding to achieve its objectives, the United States will need to rapidly expand construction of both clean energy production and energy transmission. Until the procedural barriers are lifted, more and more public resources will be spent not towards infrastructure and technology, but on regulatory approval processes and legal delay.
The National Environmental Policy Act (NEPA) is a major source of this delay. NEPA lawsuits, filed disproportionately by large environmental NGOs, pose a real, sizable, and concerning risk to clean energy development and the future of American decarbonization. The most contentious NEPA challenges filed between 2013 and 2022, on average, delayed clean energy projects by just under 4 years. The majority of those lawsuits were filed by a small set of national NGOs who lost upwards 70% of their cases. In other words, these cases function to delay and add costs to infrastructure development, not to improve environmental outcomes.
Claims made against clean energy projects and transmission lines are often outrageous. From NIMBYs to conspiracy theorists, crusaders often weaponize NEPA to undermine state and federal clean energy targets. And the impact can be catastrophic.
Perpetual litigation delays projects, driving up costs that are ultimately passed on to consumers through higher utility bills. Developers are often reluctant to disclose these costs, making it hard to precisely quantify the full impact.
In this ongoing series, we’ll expose the toll that the NEPA litigation doom loop takes on development of clean energy infrastructure in the United States.
Case Study 1: New England Clean Energy Connect
Two environmental nonprofits and three fossil fuel companies partnered to convince residents of Maine that a transmission line was bad for the environment. After 21 months of legal antics, the power line is finally being built. New Englanders will likely have to pay $500 million as a result.
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Nearly half of energy supplied to New Englanders comes from natural gas. That’s about 20% more than other regions in the United States. A recent report from the Sierra Club and Strategen found that this outsized dependence has historically driven up utility bills in the region, not to mention carbon emissions.
In an effort to correct course, every state in the region has set renewable energy and greenhouse gas reduction targets. In 2017, the state of Massachusetts awarded the New England Clean Energy Connect (NECEC) transmission line a long term contract to help realize those goals. This project, stretching from Quebec through Maine to Massachusetts, promised to deliver hydropower to 1.2 million homes in the region, reducing carbon emissions by about 3.6 million metric tons annually—the equivalent of taking 767,000 gas-powered cars off the road.
Project developers spent 3 years gathering a slew of approvals from state and federal authorities before construction could begin. While most of the project was set to run through Massachusetts, obtaining permission for a small stretch of the line through Maine proved the most challenging. In part, because the project was a point of controversy for Mainers. After an exhaustive 29-month review, which included six hearings and two nights of public testimony, the Maine Department of Environmental Protection (MDEP) granted the project’s final permit. Despite intense public scrutiny, the MDEP ultimately determined that the project would have minimal adverse impacts.
Shortly thereafter, the Sierra Club, the Natural Resources Council of Maine and the Appalachian Mountain Club filed a lawsuit to stop the project. They targeted a minor permit—a NEPA analysis from the U.S. Army Corps of Engineers covering just 1.9% of the project. The group alleged it would cause harm “...not only to aquatic resources but also the surrounding forest and wildlife." The Court determined that neither the Corp’s 164-page analysis nor the Maine Department of Environmental Protection 239 page analysis found that to be true. The plaintiffs lost the case and the ensuing appeal. Still, the group managed to delay construction for 5 months.
When activists failed in Federal Court, they pivoted to the court of public opinion. An unlikely coalition of environmental nonprofits and fossil fuel interests rallied to kill the transmission line with a creative ballot initiative. Three companies with vested interests in Maine’s fossil fuel industry raised almost $28 million in support—a move later investigated by the Maine Ethics Commission.
The campaign against the NECEC included a range of questionable talking points. The Sierra Club of Maine questioned the NECEC’s climate impact, dismissing hydropower as a “greenwashed energy source.” While hydropower isn’t without its environmental challenges, a study of neighboring facilities found that after 25 years of operation, the plant would emit half the carbon emissions of a natural gas fueled equivalent. Simultaneously, the Natural Resources Council of Maine echoed the talking points that repeatedly failed in court, claiming the transmission line “would forever harm Maine’s woods, waters, & wildlife.” Despite over 300 pages of state and federal environmental analysis proving otherwise, the majority of Mainers were convinced the transmission line would destroy the environment and voted to stop it.
On April 20, 2023, a unanimous jury ruled the ballot measure was unconstitutional. Construction resumed shortly thereafter, but 21 months of aimless legal delays increased the cost of the project by almost 50%. Now, the Massachusetts Department of Public Utilities must figure out how the residents of Massachusetts will pay the almost $500 million bill.
This saga highlights a painful truth: NEPA lawsuits effectively grant veto power to any organization with the resources to mount a legal challenge, regardless of fact, science or reality. NEPA broadly serves an important role in environmental protection, but can be weaponized to undermine the very progress it seeks to ensure.
Stay tuned for future installments of NEPA Nightmares.
Timeline of Delay:
8/28/2017: Permitting process initiated by Central Maine Power Company filing a Notice of Intent with the Maine Department of Environmental Protection
10/13/2017: Maine Land Use Planning Commission initiates review of development application
3/28/2017: NECEC wins long term contract via Massachusetts Green Communities Act Section 83D RFP
6/13//2018: Central Maine Power Company files Transmission Service Agreement at FERC
5/3/2019: Maine Public Utilities Commission (MPUC) grants Central Maine Power Company’s (CMP) request for a certificate of public convenience and necessity (CPCN)
5/11/2020: Maine Department of Environmental Protection approves state land use permits
7/2020: U.S. Army Corps of Engineers issues Environmental Assessment and Finding of No Significant Impact
10/27/2020: Sierra Club, Natural resources Council of Maine and Appalachian Mountain Club file lawsuit challenging the U.S. Army Corps of Engineers Environmental Assessment and requesting a preliminary injunction
11/6/2020: The U.S. Department of the Army issues Permit
12/16/2020: U.S. District Court denies Sierra Club, Natural resources Council of Maine and Appalachian Mountain Clubs’ request for preliminary injunction
1/1/2021: Department of Energy issues a Presidential Permit allowing for the construction, operation, maintenance, and connection of the cross-border transmission line
1/14/2021: Department of Energy issues an Environmental Assessment and Finding of No Significant Impact
1/15/2021: The U.S. Court of Appeals grants a preliminary injunction while Sierra Club, Natural resources Council of Maine and Appalachian Mountain Clubs’ appealed case against the U.S. Army Corps of Engineers is heard
2/9/2021: Construction starts on segments 2 and 3
3/26/2021: Sierra Club, Natural resources Council of Maine and Appalachian Mountain Club file a second complaint, adding a challenge to the Department of Energy’s Environmental Assessment to their case against the U.S. Army Corps of Engineers
5/13/2021: U.S. Court of Appeals reverses the previously granted preliminary injunction
11/2/2021: Mainers vote to halt construction of the transmission line
11/19/2021: Gov. Janet Mills releases a formal letter confirming election results and bringing a complete halt to construction of NECEC
4/20/2023: Maine jury unanimously decides the 2021 ballot initiative was unconstitutional
8/21/2023: Construction restarts
Now you know how the nuclear power industry feels, with hysterical anti-nuke fanatics spreading lies and rumors about how awful even a little extra radiation is. In war, truth is the first casualty.
NEPA has been used as a weapon to torpedo development of all kinds for many, many years. What is described here isn't new. As a NEPA practitioner for nearly 50 years, I've seen it work for good as well as bad. I’ve also seen how the protections NEPA was intended to provided are sacrificed at the alter of the Church of Carbon. Ignoring T&E considerations are the most heinous example of this practice and is frequently used by Cabinet-level agencies to insure more rapid deployment of renewables. So-called “take permits” are nothing more than saying “a little murder is OK.
Regulatory reform of NEPA is not needed in its enabling regulations, but rather in its assurance of good faith agency reviews, particularly for energy and energy-related civil works. I’ve sat in agency meetings and heard representatives of the EPA say unequivocally that they will disapprove any project that makes it easier to mine coal, regardless of the health and safety benefits that project might have. I’ve sat in agency meetings and heard Heads of Regulatory Agencies proclaim, “this is not about health and safety, it’s about regulatory interpretation!” (that was eventually rebuked, at severe cost to the agency, in Federal Circuit Court). Developers have a right to expect agencies to review their proposals in good faith, and in the equitable enforcement of regulations.
Lawfare is an inevitable product of our system of justice. Regulations, and in many cases the enabling legislation, contain deliberate ambiguities that create uncertainty for developers to manage, and create loopholes for litigants to exploit. Lawfare could be better controlled by closing some of these loopholes and by assigning liability to litigants. That liability should be, as a minimum, the additional project costs suffered by the developer. In the case I referenced above, the state was required not only to pay the developers costs, but was also penalized an additional 50 percent of costs because the courts deemed the state regulator acted in bad faith. NGOs such as Greenpeace, Sierra Club, NRDC, and others have substantial war chests to accept such responsibilities. (See Bryce, 18 Feb 2023, among others, https://robertbryce.substack.com/p/the-anti-industry-industry?utm_source=substack&utm_medium=email .
Energy projects are a particular hot-button. Lawfare with such developments could be constrained if regulators applied their rules equitably. For example, “community consent” is a major criterion in selecting a site for disposing of radioactive waste. Yet, many communities who object to the siting of windfarms near their domiciles are ignored, and their pleas are overwhelmed by the virtue signaling of politicians whose agenda is clearly not well-informed. (Again, see Bryce, Lovering, and others who have written about communities rejecting wind farms).
Regulatory reform and lawfare can be best implemented through an energy policy based on physics, not politics or the “crisis-du-jour”). A physics-based policy should recognize energy and power densities as the most important factors in energy and resource management. Power dense fuels require far less resources (such as land) than sources that merely harvest energy. Such a policy would establish a clear line for agencies in development and consideration of alternatives (the heart of the NEPA process) that would accomplish the purpose and need of the proposed works. Nuclear and gas works require far less land than renewables, and much of the lawfare rises from questions of land use. Nuclear and gas works also require fewer mineral resources, enhance energy security, provide more skilled employment jobs, and provide reliable, affordable, and safe electricity to our economy.
It is an essential truth that no energy source is without risk. Utilities are faced with many complex technical and economic decisions during the planning for new energy facilities. Regulatory uncertainty and inequity should not be one of those risks. The licensing process should be clear, well-defined and free from ambiguity so that all parties may understand the rules an trust that corruption is not occurring.