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Democrats and Republicans now largely agree: the United States takes too long and pays too much to build housing, power plants, transmission lines, and everything else. Many within the “abundance” movement agree on the source of the problem: the National Environmental Policy Act, which requires federal agencies to study the environmental effects of major projects before approving them.
I have spent more than four decades helping clients obtain permits to build in California. The abundance movement’s central claim—that America has regulated itself out of the capacity to build—matches my experience in this work.
But NEPA is just one statute within a much larger legal framework governing permits. Stop with NEPA, and the same obstruction will simply flow through different channels. We can meet stringent environmental standards and still build quickly and efficiently, but only by making five fundamental changes to permitting law itself.
The law governing permits traces back to the Constitution’s prohibition on taking private property without just compensation. In the permitting context, courts have interpreted agency authority generously: an agency may demand fees, mitigation, or other exactions—concessions it requires from a developer as a condition of approval—provided that there is a “nexus” between the demand and the project, and that the exaction is roughly “proportionate” to what the developer seeks.
The two leading Supreme Court cases here are approaching their 40th birthdays—Nollan v. California Coastal Commission (1987) and Dolan v. City of Tigard (1994). Yet in the decades since, courts have established few practical limits to what satisfies the nexus-and-proportionality standard. As a result, an agency can withhold approval indefinitely until it gets what it wants.
Nor is this the only vague standard blocking development. If a developer gets past an agency, third-party opponents, whether NIMBY groups or special-interest advocates, can then sue to block the approved permit anyway. They simply must shift from the nexus-and-proportionality vocabulary of takings law to the impact-and-mitigation vocabulary of NEPA, the Clean Air Act, the Clean Water Act, and other environmental statutes, which in effect impose the same broad restrictions.
The first fix is to separate two kinds of demand that permitting law currently lets agencies blur together: conditions tied to the physical project itself and exactions that ask for something unrelated to it Those unrelated demands—“public benefit” exactions for off-site land conservation, community benefits, and the like—should be converted into a single fee, capped at a set share of construction costs (say, 3 percent) covering all public benefits collectively. Disputes over money then could not be used to halt an approved project.
Second, replace subjective standards with objective ones—both for what an application must contain and for what approval requires. Taxpayers face objective standards every April: each line of a tax form demands a factually correct answer. By contrast, the NEPA framework and most environmental permit criteria are rife with subjective, unknown, and often unknowable requirements that agencies themselves interpret inconsistently.
The result is an arbitrary regime. How much environmental impact study is enough? How much mitigation is enough? Litigants and judges reinterpret these standards with each case, establishing regulatory mandates from the bench without rulemaking or legislative authorization.
The practical consequences can be significant. Lawmakers may believe they have required a decision within one year, but an agency can simply decline to deem an application “complete” until two or more years of additional study are finished. If an agency’s application genuinely requires a two-year study, applicants should be on notice to complete it while designing the project—not to design the project, apply, and only then learn what’s missing.
Objective criteria don’t need to be lenient. The Clean Air Act and Clean Water Act effectively require the best available, feasible pollution controls. Agencies can specify the most recently approved control technology for each application type and offer a fast-track, 90-day pre-application review for applicants proposing something newer. That preserves “technology-forcing” standards inside an objective approval regime.
Third, confine the permit to the project that is actually proposed. Because permit law is only lightly bounded by the Constitution and dominated by subjective criteria, applicants seeking to build something new, or to modernize what exists, routinely receive a wish list from agency staff and stakeholders with requests well outside the project’s ambit.
These demands can include dedicating underutilized land to a nonprofit, shutting down an unrelated portion of a plant, or capping new sewer hookups for reasons of anti-growth politics rather than actual capacity. Such demands are often justified by loose concepts—“cumulative” and “growth-inducing” impacts—that have become formidable obstacles to timely agency action and inviting targets for policy-minded litigants and judges.
Fixing this does not require an agency to approve actually objectionable features of a project. If adding a pollution source to a factory would push the facility past a numerical emissions or toxic-risk threshold, the agency can deny the application on that objective ground. But whether a carpool lane belongs on a freeway is a policy question, and it should be decided as one—not litigated through a fictionalized world of modeled projections about the lane’s “growth-inducing impacts,” untethered from measured conditions.
Fourth, return permit enforcement to a law-enforcement model and end the era of environmental lawfare. That lawfare is conducted by just a handful of opportunistic plaintiffs with a clear agenda. In a 2025 analysis of 387 appellate NEPA cases by the Breakthrough Institute and attorneys at Holland & Knight, environmental nonprofits appeared as plaintiffs in roughly three-quarters of court judgments, and just ten organizations accounted for 35 percent of all cases. Only about a quarter of rulings found any legal flaw in the agency’s review.
The point of these suits is not to force a few more months of study or another modest condition, but to block the project or others like it. Some environmental organizations sue to thwart wind, solar, and transmission projects. Others sue to block oil, gas, manufacturing, or roads. Still others fight vegetation management meant to prevent catastrophic wildfire. Individuals and local groups sue to stop whatever is new and preserve whatever is old.
Whether an agency has complied with NEPA or permit law is a law-enforcement question, and suits to block projects on that basis should be reserved to the U.S. or state attorneys general. Individuals who allege individual harm from a project would retain their due-process rights, but the judicial remedy would be an order requiring the agency to address the harm, through compensation, relocation, or project modification—not by voiding the approval. Rescinding an approved project would be the rare exception, available only where no lesser remedy cures an unlawful harm.
Fifth, provide mandatory tracking of outcomes. Every permitting agency should be required to publish a dashboard showing, for each project, the initial application date, the date the application was deemed complete, the date of final action, whether post-approval litigation is pending, when construction began, and when it finished. Nothing more is needed—not how many notices went out or how many community meetings were held. Where an applicant supplies estimated capital costs at each stage, the agency should publish those on the same dashboard.
Agencies that fail to act on applications in a timely way should be required, within 12 months, to amend their own regulations to speed things up. Congress has imposed a version of this discipline on the IRS, which must track the most litigated tax issues and recommend clarifications or amendments to reduce future challenges.
None of these proposals weakens a single environmental standard. Rather, each rebuilds the legal infrastructure of permitting around qualities the current system doesn’t deliver: objectivity, transparency, and accountability.
The abundance agenda now rests on a bipartisan acceptance that America needs to build—and quickly. But until Congress changes the legal framework that makes permitting so slow, each NEPA fix will only redirect the delay, not end it.
