The transportation industry and community are well aware that opponents of major projects use litigation to challenge environmental impact statements after they are issued. In recent years, Congress has enacted modest reforms regarding the time frame and page count of environmental impact statements, but it has yet to consider any reforms that would limit the delays and costs imposed by environmental litigation.
However, this critical policy picture has begun to change. Over the last few years, the Overton Window has opened for this subject, meaning that reform of environmental litigation has become legitimate to discuss. (The Overton Window explains the boundaries of what policies are open—or not—to serious discussion about change.)
Over the past several years, several prominent mainstream centrist and liberal opinion leaders such as Ezra Klein of The New York Times and Matthew Yglesias, author of a popular Substack newsletter and Bloomberg column, have published work arguing that environmental litigation has gone too far, preventing needed energy, housing and transportation projects from being built, or delaying them for years and increasing their costs.
A much-cited paper from the National Bureau of Economic Research identified “citizen voice” as being responsible for 25% of the increased cost of second-generation urban Interstates.
Staff writer Jerusalem Demsas had a piece in the April 2022 issue of The Atlantic headlined, “Community Impact Is Bad, Actually,” with the subheadline, “Angry neighborhood associations have the power to halt the construction of vital infrastructure. It doesn’t have to be this way.”
Empirical research began to quantify the impact of environmental litigation. Stanford researchers Michael Bennon and Devon Wilson, in a 2023 paper in Environmental Law Reporter, identified the frequency of litigation and length of the permit process for 171 large energy projects and 184 large transportation projects. Though only 14% of that large sample had been canceled, many were still in pre-development years after their final environmental impact statement, and those that were built years later cost significantly more.
In 2024, the Breakthrough Institute released a study of 387 National Environmental Policy Act (NEPA) cases subjected to post-EIS litigation. They found that about 80% of these projects were eventually allowed to proceed but suffered an average delay of 4.2 years, and six years were needed to clear 84% of the projects. The projects’ increased costs, which are substantial, were not documented in that report.
My 2024 Reason Foundation policy study, reviewed in the June issue of Public Works Financing, sought to make the case that there are two pressing needs to take advantage of this important growing consensus to reform environmental litigation laws. The first is to develop a menu of options for litigation reform. The second is to encourage the formation of a broad coalition to support a bipartisan reform agenda in the next Congress.
In my research, I discovered that the Bipartisan Policy Center in Washington, DC, has already done some serious work on potential environmental litigation reforms. In a set of workshops, they assessed a series of possible changes based on two criteria: how effective each would be if implemented and how politically difficult each would be. My report drew on that effort.
I also discovered half a dozen university researchers, such as Eli Dourado of Utah State University and Mario Loyola of Florida International University. Each has suggested potential litigation reforms. Other research on litigation reform has come from places like the Institute for Progress and the Federalist Society’s Regulatory Transparency Project. Among the reform ideas are (1) limiting the kinds of entities that can litigate against an EIS or Environmental Assessment, (2) putting time limits on filing such suits, and (3) sending such suits directly to an appellate court or a specialized court on environmental appeals.
Two other, more controversial, changes could be to rescind two executive orders: E.O. 11514, signed by President Richard Nixon, requiring public hearings and E.O. 11911, signed by President Jimmy Carter, which enabled the Council on Environmental Quality (CEQ) to issue regulations in addition to policy advice.
The other component needed for policy reforms to help improve our nation’s infrastructure would be assembling a large coalition supporting this endeavor. In 2023, the U.S. Chamber of Commerce submitted to Congress a joint letter calling for reform of the permitting process for energy and transportation projects. Signers included 96 national energy and transportation organizations, plus numerous state-specific business groups from 46 of the 50 states. The national organizations included the Business Roundtable, Edison Electric Institute, American Clean Power Association, Laborers’ International Union of North America, and North America Building Trade Unions.
Would the next Congress be interested in environmental litigation reform in 2025? At this juncture, we don’t know who will occupy the White House or which political party will control the Senate or the House of Representatives. To have any realistic chance of passing, environmental litigation reform must be bipartisan. To ensure broad support, the reforms should include transportation and energy infrastructure. That means getting Republicans to support energy projects and Democrats to support transportation projects.
My policy paper identified a key bipartisan group in Congress: the House Problem Solvers Caucus, consisting of 62 members evenly split between Democrats and Republicans. For Republican support to include energy/environmental infrastructure in the reform, there is the Conservative Climate Caucus, with a membership of 81 Republican House members. In 2023, The Economist quoted Climate Caucus chair Mariannette Miller-Meeks (R-IA) as saying, “One of our top priorities is permitting.”
There are no applicable Senate counterparts to these House caucuses, but in the Senate, several environmental reform measures have had bipartisan sponsors in recent years.
There is a significant need to reform the energy and transportation infrastructure permitting process, especially its heretofore neglected environmental litigation phase. All relevant policymakers and energy and transportation infrastructure interest groups should see the growing consensus on this issue as a critical policy priority for Congress in 2025.
A version of this column first appeared in Public Works Financing.