There is broad agreement that it takes too long to build “big things” in the U.S.—particularly large infrastructure projects that deliver essential services like power plants, transmission lines, and other energy, water, or transportation system upgrades. The federal permitting system is most often blamed, with critics on both the left and the right singling out NEPA-required environmental reviews and related litigation for unconscionably delaying—or killing—much-needed projects. Finding a fix is high on Congress’ wish list.  

This is not a new problem. Indeed, chronic complaints about NEPA-related permitting delays prompted Presidents Obama, Trump, and Biden to adopt administrative reforms to the federal permitting processes, focused on infrastructure projects. Successive Congresses have picked up on the three Administrations’ best ideas and, starting in 2015, and continuing in 2021 and 2023, Congress codified many of these administrative reforms into law. Plus, in 2025, the Supreme Court took its own swing at NEPA reform by significantly narrowing the scope of judicial review and expanding judicial deference to agency choices in NEPA cases.

These underappreciated NEPA- and permitting-related reforms have proven to be game-changers for large, complex infrastructure projects. They establish new statutorily-backed processes that require federal agencies to work together to integrate environmental reviews in a single environmental impact statement (EIS) (or shorter-form environmental assessments (EA)) and to jointly coordinate, complete, and issue multiple agency-specific permitting and approvals in a single decision document on a timely basis. 

When working at their best, the reforms do far more than check a NEPA box. They draw key stakeholders into early project planning and scoping activities; trigger the preparation of more timely and focused EIS’s and EA’s; regularize the use of permitting timelines published on public-facing dashboards; and pull in agency decision-makers to troubleshoot and resolve issues that are holding up agency-specific permits and approvals. In combination, they comprise what I refer to as the “Modern Infrastructure Permitting” framework. 

Unfortunately, uneven implementation and the apparently irresistible impulse to blame NEPA for infrastructure permitting delays has obscured how the Modern Infrastructure Permitting framework is enabling multiple agencies to jointly produce quicker, more transparent, durable, environmental reviews, permits, and other approvals for large infrastructure projects. Today, it is the federal government’s failure to consistently resource and deploy the Modern Infrastructure Permitting framework (of which NEPA environmental reviews are only one part)—and not fatal flaws in NEPA itself—that is slowing construction starts for critically-important infrastructure projects.   

As Congress debates permitting reform, it is critical that it put stale NEPA criticisms aside and instead focus on further strengthening the solid foundation that underpins the Modern Infrastructure Permitting framework. It also needs to address several key “beyond-NEPA” factors that are principal causes for today’s infrastructure delays.

Further strengthening the Modern Infrastructure Permitting framework means, in particular, applying proven permitting practices to a larger pool of infrastructure projects; creating higher-level federal resources and accountability for infrastructure permitting coordination and troubleshooting; and working to integrate state- and local-based infrastructure permitting into federal processes. It also means not short-cutting environmental reviews for major projects, while putting sensible constraints on post-permitting litigation.  

Confronting beyond-NEPA factors that are principal causes for many of today’s infrastructure delays means forthrightly addressing the transmission financing and grid hook-up challenges that are slowing down critically-needed energy construction; helping companies make better infrastructure siting decisions; and creating permitting certainty in the face of efforts to arbitrarily disrupt permitting and derail the construction of entire categories of infrastructure projects.   

NEPA’s Key Role in the Modern Infrastructure Permitting Framework

The NEPA federal permitting world has changed dramatically in the decade. 

The 2008-2009 Great Recession triggered the first major infrastructure permitting reforms. To quicken the economy’s recovery from that economic crisis, Congress appropriated nearly $1 trillion in federal funds to build “shovel-ready” infrastructure projects. To get that money on the ground, agencies had to find new ways to more efficiently complete NEPA-required environmental reviews and, more generally, to corral the many agencies whose approvals were needed before infrastructure construction could begin.

Agencies quickly learned to innovate. Early on, for example, the Transportation Department targeted the multi-billion dollar Tappan Zee Bridge Replacement Project over the Hudson River for accelerated permitting. It launched first-of-its-kind “Agency Summits” to coordinate the preparation of unified state and federal environmental reviews and public outreach activities. Working together, federal and state authorities completed a joint environmental impact statement (EIS) for the new bridge in less than 12 months.  

Similarly, the Interior Department test-drove “Smart from the Start” permitting techniques in the early days of stimulus spending to advance utility-scale solar energy infrastructure projects on public lands in the desert Southwest and, later, wind energy projects in offshore federal waters. Like the Transportation Department’s permitting reforms, Interior’s approach produced remarkable results. Permitting times for major solar projects sited on federal lands dropped from an average of 4 years for applications filed in 2006 to 1.5 years for applications filed in 2009. Overall, the Interior Department’s use of NEPA as a framing tool enabled the greenlighting of 33 major energy projects with associated transmission corridors and power grid infrastructure in the Obama Administration’s first term.

Informed by these successes, the Obama Administration developed a comprehensive permitting Implementation Plan in 2014 that included mandates to “synchronize separate Federal permit and review processes at the outset, rather than conducting them sequentially” and to maintain a Federal Infrastructure Projects Permitting Dashboard that would “facilitate interagency collaboration and synchronization and…help create a more transparent, predictable process for project applicants.”

One year later, in 2015, Ohio Senator Rob Portman and Missouri Senator Claire McCaskill jointly spearheaded bipartisan enactment of the Fixing America’s Surface Transportation Act—short-handedly known as FAST-41. This new law adopted key elements of Obama  permitting reforms into a voluntary permitting program for large (i.e., $200 million or more) infrastructure projects. The law required that projects included in the program conduct concurrent environmental reviews; establish permitting timetables and public-facing permitting dashboards; and be overseen by a high level Permitting Council made up of Deputy Secretary-level federal officials that would help grease the overall process. In a nod to concerns about post-permitting litigation, FAST-41 also required that opponents of FAST-41 projects file lawsuits within two years of a final permitting decision, instead of the Administrative Procedure Act’s default six year statute of limitations.  

Additional administrative and statutory reforms followed. Particularly important was President Trump’s imposition of a “One Federal Decision” requirement under Executive Order 13807, which required agencies to conduct concurrent environmental reviews, sign on to a single Record of Decision, and issue all agency-specific permits and approvals within 90 days thereafter.

Congress took the next big step when, as part of the 2021 Bipartisan Infrastructure Law, it made FAST-41’s Permitting Council a permanent entity within the Executive Office of the President and codified lead federal agency responsibilities to develop a schedule for environmental reviews and the consolidation of all federal permits and reviews and approvals in a One Federal Decision document. 

Together, these successive waves of administrative and legislative reforms have succeeded in nesting a significantly overhauled NEPA process into a broader Modern Infrastructure Permitting framework that—for projects enrolled in the FAST-41 program, at the least—is delivering more timely consolidated environmental reviews and, perhaps even more importantly, delivering timely final sign-offs from all federal agencies that have a role in greenlighting major infrastructure projects. 

Congress Should Build on Proven NEPA Permitting Reforms 

Congressional permitting reform should build on and improve the solid Modern Infrastructure Permitting framework that it has established under the FAST-41 law and later amendments. While bills like the CERTAIN Act include some FAST-41 features, they largely miss the opportunity to improve upon today’s reformed permitting practices, as outlined here. 

Apply the FAST-41 Process to a Larger Pool of Infrastructure Projects 

Congress set up the FAST-41 federal permitting process as a voluntary permitting alternative to the traditional agency-by-agency NEPA permitting process for large infrastructure projects that fit FAST-41 criteria. The experiment has worked. More projects are signing up for FAST-41 treatment, leading to improved timing, transparency, and results. 

Given the FAST-41 program’s successful track record,Congress should shift FAST-41 from a voluntary, opt-in program to a mandatory permitting program for all complex, high-priority infrastructure projects that require EIS’s or EA’s. This will enable the Permitting Council’s Executive Director and Deputy Secretary-level members to track and, where necessary, elevate and accelerate permitting trouble-shooting and decision-making for all top priority infrastructure projects in the U.S. 

Encourage Coordination of Federal Infrastructure Permitting with State Permitting Processes

State permitting processes are causing significant construction delays for many large infrastructure projects. This is particularly the case for large electric generation, storage, and transmission projects that need state public utility commission and other state-level approvals. 

Today, coordinated federal/state permitting for large infrastructure projects is the exception, and not the rule. This needs to change, particularly for projects that require federal EIS’s or EA’s. Congress should encourage federal officials to work with their state counterparts to jointly prepare environmental reviews, mesh permitting timetables and dashboards and, to the extent possible, coordinate the issuance of Records of Decisions and agency-specific permits and approvals. 

Recent developments along these lines are encouraging. Governors are prioritizing permitting reforms and the federal government’s FAST-41 Permitting Council recently announced a memorandum of understanding with the State of Utah that will “ensure that state and federal review timelines are aligned to prevent unnecessary delays for critical infrastructure projects.”  

Elevating Senior Leadership Involvement in Federal Permitting Coordination and Troubleshooting

One of the most important features of the FAST-41 program is the involvement of senior leadership on the Permitting Council to oversee and, where necessary, actively participate in troubleshooting and clearing federal permitting bottlenecks. The Deputy Secretary-level members of the Permitting Council are particularly well-suited to address sticky intra- and inter-departmental permitting issues.

Congress also should encourage future Presidents to engage the Director of the Office of Management and Budget and Deputy Chief of Staff (or another top-level White House official) to ensure that the Permitting Council has the human and financial resources necessary to optimize the federal infrastructure permitting process. Unless addressed, budget and personnel reductions at key permitting agencies will threaten the viability of the entire infrastructure permitting program. 

Require Federal Agencies to Synchronize Underlying Environmental Legal Requirements with NEPA-Based Permitting Timelines

Many federal permitting complaints stem from elongated permit and approval processes that have nothing to do with NEPA, but instead are required by underlying environmental laws like the Clean Water Act, the National Historic Preservation Act (NHPA), the Endangered Species Act (ESA), and other agency-specific legal requirements. 

More attention needs to be directed to ensuring that approval processes under these laws are synchronized with permitting timelines. One key but often-overlooked fix is ensuring that legally-required processes involving outreach and consultation with interested parties and institutions begin early—timed, for example, with the start of environmental reviews—and scheduled for completion in tandem with environmental reviews and other permitting-related activities. 

Reviews related to potential project impacts on historic and cultural resources under the NHPA and government-to-government Tribal consultations required by federal law, for example, typically can be synchronized with NEPA reviews, but only if they begin early and proceed in a disciplined way. This is another reason why having centralized, project-specific dashboards with timelines set for all permitting and approval-related activities is essential. In addition, Congress should insist on clearer standards and timelines for state water quality standard reviews under Section 401 of the Clean Water Act, completing NHPA Section 6 consultations, and completing ESA Section 10 agreements with project proponents. 

Clarify Standards for Categorical Exclusions

In recent years, agencies have been increasingly applying “categorical exclusions” (CE’s) to exempt project types that have a light environmental touch from individualized environmental reviews, absent “extraordinary circumstances.” Congress has encouraged the practice and, in the Fiscal Responsibility Act of 2023, it explicitly authorized agencies to apply CE’s that were developed by other federal agencies to reduce their own NEPA review requirements. 

This is a helpful development that has appropriately accelerated federal permitting for many types of environmentally benign infrastructure projects. Recently, however, project types that have the potential to have significant environmental impacts—like advanced nuclear reactors and winter oil and gas exploration in the Arctic—are being proffered for CE’s. This trend threatens to undermine NEPA’s core values. To maintain the integrity of NEPA’s core environmental review mandate, Congress (and, if necessary, the courts) should develop clear “substantiation record” guidelines for new CE’s.  

  Put Sensible Constraints on Post-Permitting Litigation 

Providing aggrieved parties with access to the courts to remedy violations of the law is a fundamental part of the U.S. legal system. As a general matter, parties must file suits alleging violations of the Administrative Procedure Act (APA) within six years of a final agency action. 

Many permittees will look to begin construction of their infrastructure projects as soon as practical after receiving a permit. To avoid the unfair disruption of long-delayed court challenges, Congress wisely required that parties challenging permits issued under the FAST-41 program file their lawsuits within two years, rather than the six years allowed under the APA. Some Congressional bills, including the CLEAR Act, recommend an even shorter lawsuit filing deadline of six months. For a broadened FAST-41-type mandatory permitting program, a twelve or eighteen month deadline would seem more appropriate.

Another important legal question that arises for infrastructure projects is whether the ordinary remedy for an APA violation—vacating the decision and requiring that the agency conduct a do-over (“vacatur”) —is appropriate for a NEPA violation. 

Not surprisingly, some courts have not been comfortable vacating the entire permitting process for large infrastructure projects for relatively minor NEPA (or other)violations. Nor should they be. Congress should take the advice of thoughtful commentators and craft a remedial standard that limits vacatur to egregious NEPA violations. 

How Congress Can Advance “Beyond-NEPA” Infrastructure Permitting Reforms

Confronting the “beyond-NEPA” factors that are principal causes for many of today’s infrastructure delays means forthrightly addressing the transmission financing and grid hook-up challenges that are slowing down critically-needed energy construction; helping companies make better infrastructure siting decisions; and creating permitting certainty in the face of arbitrary efforts to disrupt permitting and derail the construction of entire categories of infrastructure projects.  

Addressing Transmission Needs and Grid Hook-up Challenges

There is a widespread misconception that NEPA permitting has been the primary cause of delays in constructing new transmission lines. The notorious 17-year permitting history of the SunZia Transmission Line—a high voltage electric transmission line that stretches over 550 miles in the American Southwest—is often cited as an example. In fact, however, SunZia’s recent history validates the success of the FAST-41 permitting model, while pointing to non-NEPA issues that previously held up the project and still, today, continue to delay the construction of other, much-needed transmission and power sector infrastructure projects.

Contrary to urban legend, the NEPA permitting process was not the primary reason for SunZia’s construction delay. The developer received final approval to begin constructing the line in 2015, but it deferred, reportedly due to poor market conditions, a failure to get financing, and lingering concerns about the developer’s original decision to site the transmission line adjacent to the U.S. Army’s White Sands Missile Range.

A new version of the project, with a major route change that avoided the Missile Range, triggered the start of a new federal permitting process in June 2021—this time under the FAST-41 program. That launched a project dashboard, a permitting timeline, and preparation of a substantially revised draft and final supplement EIS, in close cooperation with the Interior Department and under the aegis of the Permitting Council, culminating in a second final decision and go-ahead less than two years later, in May 2023. For its second federal permitting go-around, SunZia had a new owner and its financing and siting problem (that had delayed the original final permit by nearly two years and arguably had effectively killed the original project) had been resolved. Construction started within six months and the line became operational earlier this year.

In addition to demonstrating a FAST-41 permitting success, SunZia’s earlier travails illustrate two non-NEPA issues that are responsible for many delays in building transmission lines—poor siting decisions, often due to the lack of transmission planning, and difficulty in securing financing, a frequent problem for merchant interregional transmission lines. Relatedly, new generation projects are encountering long waits in “interconnection queues” because of transmission congestion.

These electricity sector challenges, now exacerbated by the push to site and supply electricity to massive new data centers, are posing far more delays than NEPA permitting in constructing needed energy infrastructure. Only Congressional action on bills like Senator Martin’s Grid Connection and Management Act —and not NEPA reform—can overcome these barriers.

Creating Permitting Certainty

The Trump Administration has added a new imperative into the infrastructure permitting debate: the need for permitting certainty. The Administration’s cancellation of already-permitted offshore wind projects, and its erection of bureaucratic barriers to slow or stop the permitting of wind and solar projects on public and private lands has forced delays and cancellation of scores of economically-viable infrastructure projects.

Bipartisan legislative vehicles like Section 2 of the CERTAIN Act offer protection against the purposeful distortion of permitting processes to delay or kill infrastructure projects.

Conclusion

Over the past ten years, Congress has codified a Modern Infrastructure Permitting framework that, when resourced and implemented with top-level Administration attention, is enabling multiple federal agencies to jointly produce quicker, more transparent, durable, environmental reviews, permits, and other approvals for large infrastructure projects. This framework can and should be strengthened. Congress also needs to direct agencies to develop clearer standards and disciplined timelines for non-NEPA-related permits and approvals required under other laws. And Congress and the states must together tackle the many “beyond NEPA” barriers that are impeding construction of economically vital infrastructure in the U.S., particularly in the energy sector. 

David J. Hayes has focused his career on energy, environmental and natural resources matters. He most recently served in the White House as Special Assistant to the President for Climate Policy. Prior to working for President Biden, Hayes was Executive Director of the State Energy & Environmental Impact Center at the NYU School of Law, where he worked with state attorneys general on climate, environment and clean energy initiatives. Hayes is a former Distinguished Visiting Lecturer at the Stanford Law School; a former Fellow at Stanford University’s Precourt Institute for Energy and Woods Institute for the Environment; the Senate-confirmed Deputy Secretary and Chief Operating Officer at the U.S. Department of the Interior for Presidents Barack Obama and Bill Clinton; and Chairman of the Board of the Environmental Law Institute. Between his stints in government, he was a partner and Global Chair of the Environment, Land and Resources Department at Latham & Watkins. Hayes is a graduate of the University of Notre Dame and Stanford Law School.