NEPA Nightmares

Tales from the Litigation Doom Loop

The Biden administration ushered in a new age of climate optimism. The Inflation Reduction Act and Bipartisan Infrastructure Law included billions of dollars for investment in clean energy research and deployment. But while they were lauded by environmentalists as transformational upon their passage, these bills have quickly run into the buzzsaw of punishing regulations, proceduralist permitting hoops, and litigious environmentalists.

For the Biden admin climate funding to achieve its objectives, the United States will need to rapidly expand construction of both clean energy production and energy transmission. Until the procedural barriers are lifted, more and more public resources will be spent not towards infrastructure and technology, but on regulatory approval processes and legal delay.

The National Environmental Protection Act (NEPA) is a major source of this delay. NEPA lawsuits, filed disproportionately by large environmental NGOs, pose a real, sizable, and concerning risk to clean energy development and the future of American decarbonization. The most contentious NEPA challenges filed between 2013 and 2022, on average, delayed clean energy projects by just under 4 years. The majority of those lawsuits were filed by a small set of national NGOs who lost upwards 70% of their cases. In other words, these cases function to delay and add costs to infrastructure development, not to improve environmental outcomes.

Claims made against clean energy projects and transmission lines are often outrageous. From NIMBYs to conspiracy theorists, crusaders often weaponize NEPA to undermine state and federal clean energy targets. And the impact can be catastrophic.

Perpetual litigation delays projects, driving up costs that are ultimately passed on to consumers through higher utility bills. Developers are often reluctant to disclose these costs, making it hard to precisely quantify the full impact.

In this ongoing series, we’ll expose the toll that the NEPA litigation doom loop takes on development of clean energy infrastructure in the United States.

Case Study 1: New England Clean Energy Connect

Two environmental nonprofits and three fossil fuel companies partnered to convince residents of Maine that a transmission line was bad for the environment. After 21 months of legal antics, the power line is finally being built. New Englanders will likely have to pay $500 million as a result.

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Nearly half of energy supplied to New Englanders comes from natural gas. That’s about 20% more than other regions in the United States. A recent report from the Sierra Club and Strategen found that this outsized dependence has historically driven up utility bills in the region, not to mention carbon emissions.

In an effort to correct course, every state in the region has set renewable energy and greenhouse gas reduction targets. In 2017, the state of Massachusetts awarded the New England Clean Energy Connect (NECEC) transmission line a long term contract to help realize those goals. This project, stretching from Quebec through Maine to Massachusetts, promised to deliver hydropower to 1.2 million homes in the region, reducing carbon emissions by about 3.6 million metric tons annually—the equivalent of taking 767,000 gas-powered cars off the road.

Project developers spent 3 years gathering a slew of approvals from state and federal authorities before construction could begin. While most of the project was set to run through Massachusetts, obtaining permission for a small stretch of the line through Maine proved the most challenging. In part, because the project was a point of controversy for Mainers. After an exhaustive 29-month review, which included six hearings and two nights of public testimony, the Maine Department of Environmental Protection (MDEP) granted the project’s final permit. Despite intense public scrutiny, the MDEP ultimately determined that the project would have minimal adverse impacts.

Shortly thereafter, the Sierra Club, the Natural Resources Council of Maine and the Appalachian Mountain Club filed a lawsuit to stop the project. They targeted a minor permit—a NEPA analysis from the U.S. Army Corps of Engineers covering just 1.9% of the project. The group alleged it would cause harm “...not only to aquatic resources but also the surrounding forest and wildlife." The Court determined that neither the Corp’s 164-page analysis nor the Maine Department of Environmental Protection 239 page analysis found that to be true. The plaintiffs lost the case and the ensuing appeal. Still, the group managed to delay construction for 5 months.

When activists failed in Federal Court, they pivoted to the court of public opinion. An unlikely coalition of environmental nonprofits and fossil fuel interests rallied to kill the transmission line with a creative ballot initiative. Three companies with vested interests in Maine’s fossil fuel industry raised almost $28 million in support—a move later investigated by the Maine Ethics Commission.

The campaign against the NECEC included a range of questionable talking points. The Sierra Club of Maine questioned the NECEC’s climate impact, dismissing hydropower as a “greenwashed energy source.” While hydropower isn’t without its environmental challenges, a study of neighboring facilities found that after 25 years of operation, the plant would emit half the carbon emissions of a natural gas fueled equivalent. Simultaneously, the Natural Resources Council of Maine echoed the talking points that repeatedly failed in court, claiming the transmission line “would forever harm Maine’s woods, waters, & wildlife.” Despite over 300 pages of state and federal environmental analysis proving otherwise, the majority of Mainers were convinced the transmission line would destroy the environment and voted to stop it.

On April 20, 2023, a unanimous jury ruled the ballot measure was unconstitutional. Construction resumed shortly thereafter, but 21 months of aimless legal delays increased the cost of the project by almost 50%. Now, the Massachusetts Department of Public Utilities must figure out how the residents of Massachusetts will pay the almost $500 million bill.

This saga highlights a painful truth: NEPA lawsuits effectively grant veto power to any organization with the resources to mount a legal challenge, regardless of fact, science or reality. NEPA broadly serves an important role in environmental protection, but can be weaponized to undermine the very progress it seeks to ensure.

Stay tuned for future installments of NEPA Nightmares.

Timeline of Delay:

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Nikki Chiappa

Nikki is the Associate Director of Federal Policy for Climate and Energy at Breakthrough

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Breakthrough Journal
No. 20 / Spring 2024