Faculty Journal Articles and Book Chapters
ORCID (Links to author’s additional scholarship at ORCID.org)
Abstract
Environmental protections and the processes of the administrative state are under attack. In recent years, the National Environmental Policy Act (NEPA) has drawn outsized criticism from across the political and legal spectrum as a major impediment to climate friendly infrastructure and the clean energy transition. NEPA enables private groups to challenge development through litigation. Critics are moving to strip public oversight over federal permitting based on claims that these private groups bring largely frivolous environmental claims to court, driving up costs for developers and delaying progress responding to climate change. But is this really true?
Drawing on an original dataset of over 2,000 cases involving challenges to federal environmental reviews from 2009–2023, this Article presents the largest study of federal permitting litigation and reveals novel descriptive and empirical dimensions to the scholarly literature on private enforcement of NEPA. This study adds new, important empirical details about clean energy litigation that is highly relevant to the NEPA reform debate. I find that critics’ claims distort the reality of NEPA litigation.
Although the threat of NEPA litigation may chill some development, the litigation itself is broadly useful in ensuring well-informed decision-making across the government. Contrary to popular narratives, litigation is dominant in projects involving extraction such as forestry and fossil fuels, but plays only a minimal, at best, role in clean energy development. This data suggests that calls for reforms that excise or minimize public participation are not likely to accelerate the clean energy transition but, paradoxically, will almost certainly accelerate greenhouse gas emissions that drive climate change, increase environmental harm, and deepen economic and health disparities. This Article concludes by proposing a new path for permitting reform that would enhance rather than hobble democratic functioning and truly serve the public interest.
Publication Title
Seton Hill Law Review
Document Type
Article
Keywords
National Environmental Policy Act (NEPA), environmental litigation, federal permitting, clean energy mitigation, public participation, environmental review, permitting reform, empirical legal research
Recommended Citation
Anna Mance, The Real Story of NEPA Litigation in Clean Energy Permitting, 56 Seton Hall L. Rev. 557 (2025), https://doi.org/10.60095/FIHU3839
Included in
Administrative Law Commons, Energy and Utilities Law Commons, Energy Policy Commons, Environmental Law Commons, Natural Resources Law Commons
