This Tiny Toad Blocked a Green Energy Project. A New Federal Rule Will Cut 'Green' Tape.

In February, the Interior Department, which manages 20 percent of America’s land, unveiled a streamlined process for environmental review under the National Environmental Policy Act (NEPA). The new rule moves the department’s NEPA procedures from the Code of Federal Regulations to an internal handbook, giving the department broader discretion in how it implements NEPA review. It also incorporates the page limits and statutory deadlines for NEPA review enacted by Congress in 2023.

NEPA has been an impediment to most energy and infrastructure projects in the United States. While many organizations have invoked the law to delay fossil fuel production, NEPA has disproportionately blocked clean power projects.

That is what happened in 2021, when the Bureau of Land Management approved a permit for the Ormat Dixie Valley geothermal project in Nevada’s Great Basin Desert. The project, which Ormat began exploring in 2007, sought to tap into the area’s hot springs to produce enough geothermal energy to power 44,000 homes, offsetting 6.5 million tons of carbon dioxide, Mother Jones reported. But construction stopped in 2022, when local environmentalists filed a NEPA lawsuit. The complaint argued that the project would hurt the population of a rare toad that the federal government had listed as endangered earlier that year. While a federal judge did not grant an injunction, the project has faced other environmental lawsuits and remained in limbo as of March.

The Interior Department hopes to avoid situations like that with its new NEPA rule, but not everyone supports the changes. In December, the Center for Biological Diversity and the Sierra Club sued the government over the draft version of the rule. Central to the challenge is a provision that removes mandatory public hearings from the NEPA process, which the groups argue is illegal.

Such legal challenges illustrate the perils of reforming the permitting process through executive decree. Even if such efforts can survive judicial review, NEPA reforms that are not backed by binding legislation are likely to change based on whoever occupies the White House.

Congress is considering legislation that would make reforms more durable, including the SPEED Act, which the House approved in December. That bill would expand the list of categorical exclusions—projects that don’t require reviews—and tighten the statute of limitations for NEPA lawsuits. Although the SPEED Act is unlikely to pass the Senate because it includes provisions that disfavor offshore wind energy, it has laid the groundwork for bipartisan permitting reform.

Those talks may falter, as they have in recent Congresses, and the Interior Department’s rule may be reversed when the next Democrat takes over the White House. In the meantime, we can take solace in the fact that the government is trying to reduce its involvement in everyday life—at least when it comes to permitting.

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