Posted on March 26, 2025 by Jeremy Harrell
America is facing challenges of increased energy demand, strained supply chains and intense global competition. We have the resources and technology to turn these challenges into opportunities for economic growth and geopolitical advantage, but success hinges on building much-needed infrastructure predictably and efficiently. The Administration has recognized this need in their energy dominance agenda, as DOI Secretary Burgum recently said, “the United States needs to permit critical infrastructure faster.” This is why our current permitting system has to be modernized…so we can let America build.
The current permitting system has become a giant tangled mess across different federal regulatory bodies, states and local governments – and we could spend years trying to unravel each individual piece. Or, what we think is a better approach — focus on the few core issues, and commit to a step-change approach.
Before we get into solutions, we have to understand the full picture as it stands now. America needs to double its energy production in the next few decades just to meet our own growing demand – let alone competing with the likes of China and Russia for global energy leadership.
We need to build all kinds of infrastructure – roads, power plants, data centers, waste management facilities, factories, transmission lines, pipelines and more. Today, one of the biggest obstacles to building infrastructure is permitting delays. On average, you could get one or even two college degrees in the time it takes to obtain all the required federal permits to build. Let’s face the facts: that is too slow.
Projects that involve federal funding, cross state lines or use federally regulated resources (“federal actions”) are subject to review under the National Environmental Policy Act (NEPA). NEPA was signed into law by President Nixon in 1970 and was the first of many environmental laws passed in the 1970s. It requires federal agencies to assess the environmental effects of proposed major federal actions prior to making decisions. But, it’s important to note that NEPA is not a permit – however, NEPA is often the first activity a project takes because the environmental information collected is used in other federal permitting processes. NEPA is about disclosure; it does not set standards or process approvals. Even though that is the case, the average timeline for a project to obtain necessary NEPA reviews is just under four and a half years, which may include litigation on the NEPA process.
Project developers subject to NEPA must still comply with all underlying federal laws and regulations, such as the Endangered Species Act, Clean Air Act, Clean Water Act, etc. Each of those laws has its own permitting process, including detailed environmental assessments, public consultations, and coordination across multiple agencies. The complexity and duration of obtaining these permits can significantly extend project timelines, adding years and uncertainty to the approval process.
That is not acceptable if you’re planning to build and finance a project. Here are a few of the more egregious delays including litigation.
Egregious Permitting Timelines
Sources: 1. Renewable Energy World, 2. Trans West Express, 3. Scotusblog, 4. Mountain Valley Pipeline
The good news is – this can be fixed. Each of those laws mentioned, plus dozens of others, have regulations that various federal agencies like the Environmental Protection Agency, Department of Interior, Department of Transportation and others review for permit applications.
But, instead of relying on multiple federal agencies to deliberate — why not make the project developer responsible from the start to know the rules and comply with them? This would allow our agencies to focus on enforcement instead of process. The U.S. also has an incredibly robust inspection and audit capability so projects will not get away with compromising environmental safety. The key here is that companies who are going to invest billions of dollars to build critical energy infrastructure and projects will ensure they are complying…and actually build.
The Administration has recognized the need to expedite permitting and identified permit by rule as a potential solution in the Unleashing American Energy Executive Order. That is a good first step, but for a durable solution, there will need to be a change in law.
One example is the Full Responsibility and Expedited Enforcement Act or “FREE Act,” introduced by Senator Cynthia Lummis (R-WY) and Rep. Celeste Maloy (R-UT), which would enhance the efficiency in permitting across all federal agencies. Some know this as “permit-by-rule.” We call it ‘letting America build.’
The FREE Act requires federal agencies to identify and then develop permit-by-rule for some permits within their agencies’ permitting system. This means if the project permit applicant meets specific written standards developed by the agency for the permit and certifies compliance with these standards, then the agency must issue the permit. This does not mean the project permit applicant is free from these environmental laws. Quite the opposite, each project must still comply with every federal environmental and safety law … and the agencies are responsible for the enforcement of these permits and all the laws behind them.
If implemented, the FREE Act could potentially shorten time to receive identified permits from more than four years, to more like four months.
Broader permitting reform could also consider limiting litigation delays and reforming judicial review of agency actions. For example – a recent analysis found litigation delayed fossil energy and clean energy projects by an average of 4 years, AND agencies won 71 percent of those challenges. Separately, an analysis on transmission projects found 24 percent of projects that completed environmental review faced litigation, and the agency won 88 percent of those cases.
If major infrastructure projects are regularly delayed by legal challenges that are ultimately overturned, it is time to reassess whether our current system is protecting consumers or project opponents.
There is a big opportunity for Congress to look at how the U.S. currently operates its permitting system so we can continue to meet rising energy demand while still complying with all laws and environmental standards. The pace and scale necessary to build energy infrastructure projects to reliably meet America’s energy demand and reduce emissions is not something the authors of the 1970s environmental laws could have imagined. If we want our country to be energy dominant, we need a permitting system that promotes speed and safety. It’s time to Let America Build.
