Building clean: Permitting reform we can all agree on

Now that the debt ceiling deal is done, advocates, activists and lobbyists are wondering if lawmakers will make further moves on permitting reform. Judging by recent developments, the answer to that question may be “possibly.”

A rare point of bipartisan consensus that emerged during a recent Senate hearing — the need to strengthen early consultation with affected communities about major development and infrastructure projects — suggests one promising path forward. Environmental justice (EJ) advocates and regulators must ensure that this consultation process is carefully designed to allow for meaningful community input, or risk repeating historical mistakes of forcing marginalized populations to bear the unjust costs of our infrastructure projects.

Over the years, federal and state lawmakers have created different permitting programs aimed at ensuring big commercial activities, like building infrastructure projects, do not unduly harm the environment. Opponents of these programs complain that they take too long to implement and are even blocking needed clean energy infrastructure. The trade-off, though, is that the “reforms” opponents support risk improperly truncating the public’s ability to shape the decision-making around infrastructure projects that will impact them and their neighbors.

The National Environmental Policy Act (NEPA), a key part of the permitting process, includes public involvement as one of its core components, and meaningful early consultation might provide an elegant solution for navigating this difficult trade-off. (To be clear, academic research and independent reports have found that myriad problems beyond NEPA’s procedural requirements cause delays.)

NEPA requires federal agencies to analyze the potential environmental consequences of their actions and to consider alternative approaches that would reduce those consequences. Crucially, the law empowers members of the public to sue agencies to ensure they properly perform these analyses.

Done well, early consultation in the NEPA process would allow decision-makers to consider the whole set of community concerns and engage with contextualized local knowledge. Critically, by identifying and addressing potential community concerns early in the process, this can ultimately reduce the risk for subsequent delays or legal challenges.

Early consultation would also better position agencies to understand the true scope of their projects’ impacts by laying the foundation for an ongoing, collaborative process that will yield a more comprehensive assessment. Such an iterative consultation process would have the added benefit of contributing to increased social capital and deeper community understanding and relationships, which would reinforce NEPA’s broader goal of promoting stronger and more resilient communities.

So, what would meaningful early consultation look like in practice? The policy literature suggests that it would have to meet at least three criteria.

First, the public must have adequate information and opportunities to participate. One of the biggest challenges with early consultation on major infrastructure projects is “information asymmetries”: The corporation that wants to build the project knows more about its impacts than affected communities and faces strong incentives not to share that information.

Agencies must find some way to address this challenge. For instance, they can stipulate basic information disclosure requirements. And they must ensure corporations face serious consequences for failing to satisfy those requirements. Agencies could waive measures aimed at expediting permitting implementation, reset any applicable time limits or page limits for underlying analyses, or take more drastic measures like rescinding a permit application altogether.

Second, the quality of participation matters since the goal of the process is to meaningfully engage with those interested and potentially affected. Timing is critical to meeting this goal: Engagement must begin even before crucial threshold determinations are made.

For instance, in the context of NEPA, community consultation must begin before agencies determine whether to pursue an environmental assessment or an environmental impact statement. Put differently, early consultation won’t be meaningful if it functions merely to ratify a decision that has already been made.

Third, the early consultation process, alongside the project itself, must be perceived by community members as legitimate. To achieve this, agencies must pay attention to stakeholder satisfaction with both access to information and opportunities to engage. Agencies must also be aware of stakeholders’ perception of the degree to which they consider and respond to public input. Agencies must also be prepared to address stakeholders’ perceptions of the transparency and fairness of the consultation process and its compliance with existing laws.

With the recently passed infrastructure bills, the United States has a realistic chance to achieve the kind of rapid decarbonization of our economy that we need to avoid the worst consequences of climate change. For the clean energy transition to be a just one, though, we must develop an efficient and inclusive permitting process for the new infrastructure we’ll need.

Provided it is done well, meaningful early community consultation will likely prove key to achieving these two important objectives.

Federico Holm is a clean energy policy analyst at the Center for Progressive Reform in Washington.