In the United States, permits are necessary for all forms of construction–from a renovation of a single home to an entirely new housing development; from small upgrades to local roadways to the construction of new train tunnels connecting two states; from the installation of solar panels on the roof a home to the development of massive offshore wind farms or nuclear power plants.

Permitting is a critical process that ensures compliance with federal, state, and local safety, environmental and land use regulations, allowing for the input of stakeholders affected by the projects being considered. As the name suggests, permits are legal permission from an authority for a project to proceed, once it has demonstrated that construction and operation of the project complies with relevant codes, laws, and regulations. The permitting process has proven essential to safeguarding our environment - preserving open space, ensuring clean air and water, and protecting ecosystems and endangered species - while also ensuring community well-being,the protection of property rights, and the preservation of cultural and historic resources. But permitting - due to its time and cost - can also become a barrier to achieving public goals, such as building the energy infrastructure we need to achieve climate goals or extending a transit line to an underserved community. This RPA Lab looks at the different levels of permitting, from federal to state to local, to better understand how permitting works for energy infrastructure in an effort to identify the potential for streamlining projects that benefit our region.

Environmental permitting is a relatively new phenomenon in U.S. history, emerging only within the last five decades or so. Prior to the 1960s, vertically integrated utilities (natural monopolies) had immense power over where energy infrastructure could be sited, how it was built, and how much the public could say about it.

The federal permitting regime was established in the 1970s, following a push for greater environmental regulations and demand for greater public intervention to address corporate disregard for the environment. Between 1969 and 1980, in addition to the creation of the Environmental Protection Agency (EPA), the United States passed a number of landmark environmental laws. These include, but are not limited to, the National Environmental Policy Act (NEPA, passed in 1969), which requires agencies to determine the environmental impact of government actions; The Clean Water (1972) and Air (1963) acts, limiting pollution in our waters and air; the Endangered Species Act (1973), protecting the nation’s threatened species; and the Federal Land Policy and Management Act (1976), National Forest Management Act (1976), and Coastal Zone Management Act (1972), which protect federal lands and coastal areas. While the EPA oversees most of these laws, other agencies, such as the US Army Corp of Engineers (USACE) or the Department of the Interior (DOI) have jurisdiction.

These laws and regulations have significantly improved the quality of our environment over the last 50 years. According to data compiled by the U.S. Environmental Protection Agency (EPA), total aggregate emissions of the six major criteria air pollutants dropped by 79% between 1970 and 2024, including lead, which decreased by 87% from 2010 to 2023 primarily due to the phase-out of leaded gasoline, and sulfur dioxide, which has dropped by 92% since 1990, drastically reducing acid rain. The share of U.S. water bodies meeting safety standards for fishing and swimming rose from 30% in the early 1970s to over 60% by the 2000s. Furthermore, the EPA estimates that Clean Air Act regulations prevent over 230,000 early deaths annually.

The 1980s and 90s saw another shift, as several states started to adopt similar regulations and environmental reviews for projects not covered by NEPA or other federal permits. At the same time, states began to deregulate utilities, separating the company that buys and sells power from the company that generates power. This effort led to states and local governments having a much larger say in siting and permitting than ever before.

The National Environmental Policy Act, or NEPA is the foundational environmental permitting policy in the country. Signed into law by President Nixon in 1970, NEPA requires federal environmental review for all major agency actions, projects built on federal lands or waters, or projects that receive federal funding. There are three types of environmental reviews under NEPA: Categorical Exclusions, Environmental Assessments (EAs), and Environmental Impact Statements (EIS). Categorical Exclusions apply to projects that are exempt from environmental reviews. EAs are used when the environmental impact is expected to be low and are intended to be concise. An EIS is used when the applicant expects a significant impact or if an EA determines it is necessary. Each of these assessments is performed by the lead agency (agency that has domain over the project) in coordination with the project’s developers.

NEPA is a critical tool not only because it allows government agencies to evaluate the environmental impact of projects, but it also ensures that community members and stakeholders have a say. All environmental impact statements and assessments require a mandatory public comment period and consultations with the public. The final decision is shaped by public input from citizens, government agencies, community groups, and industry.

Since its inception, NEPA has provided significant benefits for the environment and for communities in the U.S. The review process has stopped or improved harmful projects and has advanced projects that have enhanced quality of life and expanded economic development opportunities. But it is by no means perfect. NEPA adds time and money to the development process. And both the time and cost to complete the NEPA process have greatly increased over the years. Delays can be the result of staffing shortages, issues with the application, or litigation. And over the course of 50 years, NEPA has ballooned to require a greater and greater volume of studies and consultations before a project can move forward. Between 1997 and 2022, the average time to prepare an Environmental impact statement increased from one year to over four years. Between the late 1970s to the 2010s, the total number of pages in an EIS, including appendices, rose from 414 pages to 1,703 pages. More studies and scrutiny, despite a higher upfront cost, may produce a net positive for the environment and the communities surrounding projects, particularly environmental justice and disadvantaged communities who have a greater say in the projects sited in their neighborhoods. But they may also delay – or even kill – worthwhile investments or policies that would have benefitted communities and the environment. The benefits of additional studies, consultation and review must be weighed against society’s clear, present, and ongoing need to build infrastructure projects, including new transit, housing, or power generation. That’s why it’s so important to understand the permitting process and identify opportunities for reform.

Federal permitting is a complex framework where any number of a project’s characteristics could trigger federal review by one or several agencies. Location, project type, and project size most commonly determine what federal permits are needed, if any. The following permits may be needed for each of the energy-related project types below.

Transmission

Transmission lines typically only need federal permits when crossing state lines and/or federally protected areas, or when located on federal lands. Transmission projects that cross state boundaries are regulated by the Federal Energy Regulatory Commission (FERC) and must apply for a general permit through the Commission. Prior to submitting an application, developers must consult with relevant stakeholders and follow the NEPA guidelines. The developers must also develop a public participation plan before the application is submitted. Applications cannot be submitted until FERC’s Director of the Office of Energy Projects determines that all necessary pre-filing materials have been developed. During the application process, the applicant must consult with relevant federal agencies under relevant laws such as the Endangered Species Act or Clean Water Act. Large scale interstate transmission lines take the longest, with most projects taking up to 8-10 years from development to completion, about half of that time spent in siting and permitting.

Offshore transmission projects, such as those connecting offshore wind farms to shore or those connecting states across a waterbody require additional permits. These may include permits from US Army Corps of Engineers; Consultations with NOAA and the Fish and Wildlife Service; and/or Department of Defense/US Coast Guard Consultations, along with NEPA review.

Solar

Solar projects typically do not require federal permits unless they are on federal land or interact with federally protected areas or species . Permits and consultations may be required from the US Army Corps of Engineers, Fish and Wildlife Service, or the Bureau of Land Management, along with NEPA review. It is unlikely that solar projects in our region will require federal review - in fact, according to one study, NEPA reviewed solar projects only accounted for about 10% of the increase of solar capacity nationwide 2010-2023.

Onshore Wind

Similar to solar, onshore wind projects typically do not require federal permits unless they are on federal land or interact with federally protected areas or species. Permits and consultation may be required from the Fish and Wildlife Service and the Bureau of Land Management, along with NEPA review. According to one study, NEPA reviewed wind projects only accounted for about 3.7% in the increase of wind capacity nationwide from 2010-2023.

Offshore Wind

Offshore Wind requires several federal permits, which typically take three and a half years to obtain. Some have taken as long as four yearswhich would likely kill most projects. The permitting process starts with the initiation of a NEPA EIS review through the Bureau of Ocean Energy Management (BOEM). Part of the EIS process for offshore wind is the submission of a site assessment plan, construction and operations plan, and a National Historic Preservation Act Section 106 review. Since offshore wind requires a cable to bring the power on shore, the federal permits are very similar to those described for offshore transmission (see above), and may also include an Outer Continental Shelf Air Permit from the EPA, Marine Mammal Protection Act Incidental Take Authorization, and/or Endangered Species Act Consultations with NOAA and the Fish and Wildlife Service.

Nuclear

Nuclear reactors require specific permits unique to the industry, and permitting can take up to four years. There are several different reactor designs in the United States. The design of each reactor has to be approved before any other permitting can go forward. The Nuclear Regulatory Commission (NRC) must issue a Design Certification through rulemaking before a design can be used - this certification is good for 15 years and applications must include proposed inspections, tests, analyses, and acceptance criteria for the design. Once a developer selects an approved design, they can apply for a Part 52 Combined Operating License and Construction Permit. Applicants must go through a safety review from the NRC, an environmental review, and an antitrust review. While this review is active, applicants can apply for an early site permit, which authorizes limited construction activities at the selected site. The public is involved throughout the entire process.

If a nuclear reactor site is storing waste on premises, which all or most do, they must apply for either a site specific license or a general license. A site specific license is available up to 40 years and contains technical requirements, operating conditions, and safety requirements. A general permit has similar requirements as well as performance evaluations.

Battery Energy Storage Systems (BESS)

Similar to solar, BESS rarely goes through federal permitting, unless it interacts with federal lands or protected species. Permits or reviews that may be required include review by the US Army Corps of Engineers; Endangered Species Act Consultations with the Fish and Wildlife Service; and/or review with the Bureau of Land Management, along with NEPA review.

Natural Gas

Natural gas and other fossil-fuel power plants require a number of federal permits, which can take over a year to obtain. These include Clean Water Act permits, such as wastewater discharge, thermal discharge, and Section 404 wetland and stream impacts. They also require an EPA title V air permit and a Prevention of Significant Deterioration of Air Quality Permit.

Recognizing that the process was becoming ever-more expensive and time-consuming, there have been several attempts to clarify and reform the federal permitting process in recent years. In 2015, President Obama signed into law the Fixing America’s Surface Transportation (FAST) Act. FAST aimed to streamline the federal permitting process of major infrastructure projects. Under Title 41 of this act, the FAST-41 Dashboard was established and displays the permitting progress of eligible projects in an effort to increase transparency.

There is also an active push to reform NEPA through the judicial process. This effort was catalyzed by a recent Supreme Court decision in the Seven County Infrastructure Coalition v. Eagle County case. The case involved the development of a rail line connecting an oil field to a refinery that environmental advocates sued to block on the basis that the line’s construction would facilitate the burning of fossil fuels, which is a contributor to climate change. The Supreme Court unanimously ruled in favor of the railroad project, determining that the NEPA review is only intended to evaluate the immediate environmental impacts of the project itself (the construction of rail), not what the project is carrying or the upstream or downstream effects. This decision is anticipated to significantly narrow the scope of NEPA review.

In addition to this Supreme Court decision, Congress has sought to further streamline the NEPA process by introducing the SPEED Act in late 2025, which sought to establish hard timelines for NEPA review and prohibit approved permits from being revoked or remanded for projects under construction. Progress was stalled on the SPEED Act when an amendment was added to allow permits for offshore wind projects to be revoked, and the Act remains in limbo. In early 2026, the FREEDOM Act was introduced to Congress. This act is largely the same as the SPEED Act, with a specific call out protecting offshore wind and all other infrastructure projects from having permits revoked once construction has started. Progress has also stalled on the FREEDOM Act. In April 2026, the RED Tape Act passed the House on near-party lines. This bill would remove a Clean Air Act requirement that the EPA must ​“review and comment on newly authorized federal construction projects and other major federal agency actions that already require review under the National Environmental Policy Act (NEPA) and proposed federal regulations”.

Permitting costs depend on the project size, location, number of permits required, and amount of work done prior. There are, however, general estimates for total permitting costs. A recent study from the University of Wisconsin found that the overall (federal-state-local) average permitting costs for energy infrastructure were around $5.5 million, or 14% of projected profits. This can increase or decrease significantly depending on factors including litigation, the existence of legal precedent, or review speed.

Permitting in the United States, while critical to preserving the environment and communities, can also be quite challenging. That is particularly true for renewable energy projects. One study of over 50 delayed or blocked utility scale wind, solar, and geothermal energy projects between 2008 and 2021 found that projects were most commonly outright cancelled or delayed due to permitting challenges. Of the projects reviewed, 34% faced permitting related delays and nearly 50% were cancelled. Litigation was found to be a significant cause of these delays. NEPA allows for those who disagree with the outcome of the permitting process to sue the lead agency, which can add years to the conclusion of a review process. After the NEPA Record of Decision is released on the EA or EIA, projects are open to litigation. Of the projects that are litigated (which is less than ⅓), nearly 90% of the cases cite NEPA violations. According to a 2024 Yale Law School study, while only 28% of all NEPA projects faced litigation, energy projects accounted for higher percentages, including 64% of solar projects, 38% of wind energy projects, and 31% of transmission projects.

Delays on energy projects create significant challenges, particularly in an era where electricity demand is rising, infrastructure is aging, and states are transitioning to clean energy. Most large-scale energy projects involve significant capital to develop and any delays effectively eat into their profitability. Delays are especially difficult for projects with large capital outlays.

In addition to delays from litigation trying to stop projects, more recently the federal government itself has been at the center of delayed or stopped energy projects. In the first year of the Trump administration, several actions were taken against renewable energy sources that impacted or paused permitting. In January 2025, President Trump signed an Executive Order that paused federal review of offshore and onshore wind development, putting over a dozen projects in limbo. That Order was vacated by a district court in December 2025. Several other executive orders from 2025 that paused permitting review for both wind and solar projects were recently litigated by a coalition of clean energy advocates, and were granted a preliminary injunction in April 2026. Regardless of the courts’ decisions, uncertainty around federal permitting for renewable energy projects has made many projects unprofitable and slowed or stopped projects from advancing.

The administration has also used the Defense Department to slow or stop permitting for both onshore and offshore wind projects. In late 2026, stop-work orders were issued for all five major offshore wind projects currently under construction, citing national security concerns. All five of these projects were granted preliminary injunctions to continue construction between January and February 2026. More recently, the Defense Department has blocked between 150 and 250 onshore wind projects across the country, equating to around 30 gigawatts of capacity (roughly the equivalent of New York State’s peak demand), citing national security concerns. Advocates and industry groups say the Department is not completing reviews at all - effectively issuing a moratorium on the project type. This move has led to litigation from developers and industry groups, which is pending as of this writing.

Some delays can also be attributed to staffing shortages. In the US, there is low planning capacity due to understaffing within agencies. There are not enough qualified people to review the volume of application materials in a timely manner. This requires the government to use outside consultants for permitting review, which drives up total costs. Delays can also be attributed to disagreements between federal agencies. In the NEPA process, for example, while a lead agency is in charge of developing the EIS, other agencies that have jurisdiction can confer and propose alternatives to the project. This can lead to disagreements between the lead agency, other agencies, and the developer, adding months to the review timeline.

Despite the complex web of federal permitting, most small to medium scale energy projects only have to deal with State and local permitting processes. That is especially true in the tri-state region, where there is a relatively small amount of federal lands, particularly compared to out west. Future RPA Lab posts in this series will examine state and local permitting processes for each state of the region.