On February 15, 2025, scholars, practitioners, students and policymakers convened at the New Directions in Environmental Law 2025 conference at Yale Law School to analyze changes and emerging issues in environmental law. Student reporter Sharaza Shalita prepared this edited summary of the panel entitled Is Traditional Environmental Law Really a Barrier to Achieving U.S. Climate Goals? New Directions in the Permitting Debate featuring panelists Howard Crystal, Alexandra B. Klass, Zachary Liscow, and Joshua Macey, and moderated by student and NDEL committee member Thomas Peterson.
The Central Debate: Are Environmental Laws an Obstacle to Renewable Energy?
The energy transition and environmental protection are often seen as two sides of the same coin, yet tensions arise when regulations designed to protect the environment are perceived as obstacles to the rapid deployment of renewable energy infrastructure. This panel, featuring experts in law, economics, and environmental policy, delved into these issues, and examined the role of key environmental laws like the National Environmental Policy Act (NEPA) and the Endangered Species Act (ESA) take in shaping the energy landscape.
NEPA, enacted in 1969, was one of the first major federal environmental laws in the United States. It requires federal agencies to evaluate the potential environmental impacts of major federal actions before making decisions. This can include projects involving energy infrastructure, land use, and transportation that are proposed by the federal government, as well as private projects that receive federal funding or require a federal permit. The goal of NEPA is to collect information, promote transparency, improve federal decision-making, and encourage public participation in the decision-making process.
NEPA itself does not mandate any particular outcome; it is purely procedural. The law does not dictate whether a project should be approved or denied, it merely requires agencies to assess environmental impacts and consider alternatives. However, this process can be burdensome, especially for projects requiring extensive federal permits, such as offshore wind farms or interstate electric transmission lines that cross federal lands.
Critics argue that NEPA has become a tool for delaying projects rather than ensuring environmental protection. The process of completing an Environmental Impact Statement (EIS), which NEPA requires for projects with the potential for significant environmental effects, has grown increasingly lengthy, rising from an average of three years in the 1990s to over four-and-a-half years today. This delay, coupled with the risk of litigation, can deter investors and make large-scale clean energy projects financially unviable.
The panel discussion revolved around a pressing question: to what extent do NEPA and other environmental regulations hinder the development of the transmission and renewable energy infrastructure needed for decarbonization?
The panelists had a spirited debate in which some argued that NEPA is a crucial safeguard ensuring that environmental considerations are part of decision-making. Particularly at a time with national politics has shifted toward supporting fossil fuels, NEPA and other environmental laws can provide a stronghold against building new fossil fuel infrastructure that can crowd out renewable energy projects.
From this perspective, NEPA by its very nature is not an obstacle to renewable energy. However, one panelist pointed out that even for renewable energy projects, EIS requirements often cause significant delays, thereby dramatically increasing costs. This aspect of NEPA may be used in litigation and ultimately discourage investment in clean energy, without which the energy transition cannot be fulfilled.
The Case for Reforming NEPA
Some panelists advocated for moderate NEPA reforms to streamline the permitting process without compromising environmental protections. The 2023 Congressional updates to NEPA imposed a two-year limit on environmental reviews and a page limit on EIS documents. While these measures could minimize excessive costs and unnecessary delays, other panelists argued they are insufficient without enforcement mechanisms to ensure timely completion of EISs.
One reform option is to create a standard where lawsuits challenging NEPA reviews would only succeed if the alleged procedural violation would have likely changed the project’s outcome. In addition to the four-and-a-half-year delay caused by EISs, NEPA litigation typically tacks on another two-and-a-half years to energy projects. Entities that are subjected to NEPA are not required to make particular permitting decisions; the litigation process only asks that such bodies consider additional project alternatives or additional environmental impacts. Unfortunately, these considerations can also result in significant delays and project cancellations.
One of the boldest proposals from the panelists involved categorically excluding certain clean energy projects from NEPA review, similar to how Congress exempted border wall construction from NEPA review and how agencies regularly exempt categories of projects with the potential for minimal environmental impact by regulation. The likelihood of this reform option being adopted in the current Congress or administration is very low, given the current administration’s support for fossil fuel production.
Despite these proposed reforms, some panelists warned against taking action that would weaken NEPA, emphasizing its role in preventing environmental harm and ensuring community engagement in major infrastructure decisions. In today’s climate, we are forced to balance economic interests and self-preservation in the form of environmental protection. As the effects of climate change continue to be manifested in new, more devastating ways, the weakening of NEPA is a call for the downfall of humanity – despite the inconveniences that the Act causes.
Transmission Bottlenecks: The Real Barrier to Renewable Energy?
While NEPA reform is a hot topic, many panelists agreed that the biggest obstacle to clean energy deployment is building long-distance electric transmission infrastructure. Unlike fossil fuel power plants which can be located near demand centers, renewable energy sources are often situated in remote areas, requiring extensive electric transmission networks to connect them to the electrical grid.
Interstate electric transmission projects face a complex web of state and local permitting requirements. Each state has its own process for approving transmission lines and local opposition can derail projects even if they are deemed essential for the national electrical grid. For example, in a major transmission project proposed to bring Canadian hydropower from Quebec to Massachusetts through Maine was blocked due to local opposition in Maine, despite its potential to bring significant amounts of clean energy to the region. Unlike interstate natural gas pipelines which can be approved at the federal level, transmission lines must navigate multiple state-level approval processes, leading to delays and cancellations.
One solution to these transmission expansion barriers is to grant the federal government more authority over interstate transmission projects, akin to its authority over interstate natural gas pipelines. Alternatively, regulatory reforms can be set to align utility incentives with greater decarbonization goals. Without such reforms, utility companies will continue to prioritize projects that maximize their market power rather than those that optimize the grid for clean energy. Finally, investment could be targeted towards grid-enhancing technologies such as dynamic line rating and reconductoring, which could improve the capacity of existing transmission lines without requiring new infrastructure.
Most of our panelists agreed that while NEPA plays a role in transmission delays, the broader issue lies in regulatory fragmentation and utility incentives.
The Role of the Endangered Species Act and Other Environmental Laws
Beyond NEPA, other environmental laws like the ESA and the Clean Water Act (CWA) also influence energy development. ESA requires federal agencies to ensure projects do not jeopardize endangered species or their habitats. The panel considered whether ESA has become another avenue for litigation-driven delays or if it is still important for the protection of biodiversity. One panelist pointed out that, unlike NEPA, ESA has a substantive component—meaning it can actually block projects if they are found to harm endangered species.
ESA also has a mechanism for exemptions. The ESA’s Endangered Species Committee, known as the “God Squad,” is a seven-person committee that can vote to override protections in special cases. A recent example of the effects of the revived ESA is increased delays that wind energy projects are facing due to their impact on critical wildlife habitats.
To capitalize on the protections of ESA and that of renewable project developments, some panelists suggested that improved planning and early stakeholder engagement could help mitigate the conflicts.
The Political Landscape and Future of Energy Policy
The panelists also discussed shifting political dynamics surrounding energy policy. The Biden administration placed a greater emphasis on renewables and other forms of carbon-free energy, while the current administration prioritizes fossil fuel development. Regulatory uncertainty and political gridlock continue to pose challenges for long-term energy planning.
While the clean energy transition is often framed as a partisan issue, there is growing bipartisan support for permitting reform. Both fossil fuel and renewable energy industries have an interest in streamlining the approval process for infrastructure projects. The challenge lies in crafting reforms that accelerate clean energy deployment without opening the door to increased fossil fuel development.
Striking a Balance: Environmental Protection vs. Energy Development
The overarching theme of this panel discussion was the need to strike a balance between environmental protection and the urgency of decarbonization. The panelists left us with four key takeaways; first, environmental laws, like the CAA and CWA, have played crucial role in improving air and water quality but more importantly, NEPA and the ESA cannot be counted out as significant environmental protection laws on account of the challenges posed to renewable energy.
Second, the energy landscape has changed. The CAA, CWA, NEPA and ESA were all passed in the 1970s, a time where renewable energy was just beginning to be explored and researched. The legal framework that was born of these Acts did not appreciate the need for large-scale renewable energy deployment as a means of survival but as a bridge to gap low oil production. Third, this need can be addressed by smart, immediate reforms. Rather than repealing NEPA or other environmental laws, targeted reforms designed to encourage clean energy development could help accelerate clean energy while maintaining environmental protections. Fourth and finally, early and meaningful stakeholder involvement and community engagement can reduce opposition and litigation risks.
This panel discussion highlights that while environmental laws like NEPA serve an essential function, they must evolve to accommodate the realities of the clean energy transition. Addressing transmission line bottlenecks, aligning utility incentives, and improving regulatory efficiency will be critical in meeting decarbonization goals. At the same time, maintaining strong environmental protections and community engagement will ensure that the transition is both sustainable and equitable.
Ultimately, the challenge is not just about removing obstacles, rather it is about designing a regulatory framework that supports both environmental stewardship and a thriving clean energy economy. As policymakers, industry leaders, and environmental advocates navigate this evolving landscape, finding common ground will be essential to building a cleaner, more resilient energy future.
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