Introduction and overview

Electricity transmission, including high-capacity interstate transmission lines, is essential for distributing cost-effective power via a more resilient grid and decarbonizing the economy. However, building such lines with sufficient speed and scale often meets significant complications.

Legal challenges over proposed transmission line projects are often singled out for contributing to a project’s delay or cancellation. However, research on the true impact of litigation on proposed lines is limited. Although litigation can certainly impact a project’s timeline or completion, many other factors cause significant delays. These factors include opposition (outside of litigation) by landowners, advocacy groups, and state, local, and federal governments; inefficiencies and obstacles in the permitting and regulatory review processes; and adverse commercial conditions.

An upcoming research project by the Niskanen Center, along with partners Clean Air Task Force (CATF) and Perkins Coie LLP, builds an evidentiary record of challenges and solutions for successful federal permitting of electric transmission lines.1 As part of this project, Niskanen analyzed how substantial opposition — through litigation or other means — impacted recent transmission projects that underwent federal environmental review.2 

Here, we  present the findings of that targeted analysis. Given the vast complexity of planning, permitting, financing, and constructing large transmission projects, it is difficult to draw conclusive causal links between opposition and negative project outcomes. However, our research suggests opposition does, in fact, contribute to adverse project outcomes in the instances we evaluated, though with a modest degree of certainty.

We reviewed a dataset comprising projects that recently underwent federal permitting review, and found that most (54%) of the 37 transmission lines in our study did not face litigation nor substantial non-litigation opposition. Litigation or non-litigation opposition appears to have contributed to delays or cancellations in around 27% of the projects analyzed.

Data and methodology

For the comprehensive research project, we meticulously compiled data on recent transmission projects — successful or otherwise — that underwent federal environmental review. NEPA assessments can comprise a significant portion of the permitting process, particularly for high-capacity, long-distance, and interstate transmission lines, which studies have signaled will be increasingly necessary for grid resilience, cost-effectiveness, and decarbonization in coming decades.

We developed the following criteria for project inclusion in our dataset of major new high-capacity transmission lines: 1) voltage of 115kV or greater; 2) length of 5 miles or more; 3) a federal Environmental Impact Statement (EIS) in progress or completed between 2010 and 2020; and 4) construction of a single electric transmission line (thus excluding projects that primarily consisted of maintenance, transmission line rebuilds, interconnection projects, or those that were ancillary to other federal projects). These criteria yielded a total of 37 projects.

Our analysis sought to better understand the impacts of litigation and non-litigation opposition on the development of transmission projects among the projects included within this dataset.

Categorization of litigation and opposition

To methodically assess and quantify—to the extent possible—the nature and impact of litigation and opposition to projects in the set of 37 transmission lines, we categorized the projects as follows:3

  1. Projects facing litigation:
    • These projects faced one or more legal actions brought in court that involved opposition to the project’s development.
    • Our analysis extended beyond NEPA challenges and sought to include any federal and state litigation challenge to the permitting and building of the project.4
  2. Projects facing substantial non-litigation opposition:
    • These projects faced substantial formal opposition (e.g., opposition in administrative hearings, adjudication processes, or proposed legislation) or sustained opposition (e.g., opposition that was vehement, organized or continued over many years). In some cases, they faced both. 
      **It’s important to note that this category excludes projects facing litigation opposing the project.5
  3. Projects with little to no opposition:
    • These projects faced negligible resistance or some general opposition, but it was insubstantial and unsustained.
    • For instance, the opposition might have been noted in media reports highlighting “opposition” or “controversy” over a project, but without any consequent active, organized opposition in administrative, judicial, or legislative forums.

Assessment of delays & evaluation of project status

Recognizing the difficulty of determining whether specific lawsuits or instances of opposition directly caused project delays, our analytical framework adopts a broader perspective. We consider both litigation and non-litigation opposition collectively as potential contributors to project delays, rather than attempting to isolate the impact of individual instances of resistance. Thus, our conclusions are necessarily limited, as we cannot assert with certainty that a particular lawsuit or instance was the sole or primary cause of delay.6

Nonetheless, in the aggregate, these data provide a useful metric in considering the impact of litigation and non-litigation opposition on transmission infrastructure development.

We further categorized a project’s current “status,” based on sources such as the federal permitting dashboard and a project’s website:

  1. Canceled: the project was canceled;
  2. Stalled: the project is paused but is not canceled;
  3. Approved: the project received permitting approval(s) but is not yet under construction;
  4. Under construction: the project broke ground and is under construction;
  5. Completed: the project completed construction and was energized, i.e., “brought online.”


Litigation and non-litigation opposition

Twenty of 37 projects (54%) faced little to no opposition. Eight of 37 projects (22%) faced substantial opposition but not litigation opposing the project. Nine of 37 projects (24%) faced litigation opposing the project.7 The chart below shows the percentage of projects by litigation and opposition status.

Transmission Projects by Status (N=37)

For example, our research found little opposition to the Barren Ridge Renewable Transmission Project. One news report noted that “the project has engendered significant opposition,” and a handful of landowners filed public comments on the project EIS. Still, we did not find evidence of litigation or any formal, vehement, or sustained non-litigation opposition to this project. As a result, we categorized Barren Ridge as receiving “little to no opposition.” 

Conversely, we found that the Tehachapi Renewable Transmission Project faced both formal and sustained non-litigation opposition and litigation opposing the project, and was therefore categorized as having faced litigation. The non-litigation opposition to the project included requests for rehearings of the state’s administrative decisions and a locally organized campaign against the project. A regional newspaper said the project was “nearly derailed by protesting and door-knocking community activists.” The project also faced state and federal lawsuits from a local government and an environmental group. The construction was delayed from 2010 to 2013, resulting in the California Public Utilities Commission requiring the developer to underground a small segment of the line. The project was ultimately completed in 2016.

Delays and project status

All nine of the projects that faced litigation also faced substantial non-litigation opposition. Of those nine projects, four were delayed, and one was canceled.8 Four of the eight projects that faced substantial opposition but not litigation were delayed and one was canceled.9 In total, 10 out of the 37 (27%) projects from the dataset faced litigation or non-litigation opposition and were either delayed or canceled.

Despite the contribution of litigation or non-litigation opposition to project delays, most projects from the dataset were completed or are in progress. Fourteen of the 17 projects that faced litigation or non-litigation opposition were completed, are under construction, or have received all required regulatory approvals when this report was issued.10 Overall, 20 of 37 projects faced no litigation or opposition-induced delays and have been completed or are under construction.

Litigation outcomes

Most lawsuits were ultimately decided in favor of the project. The nine projects that faced litigation in opposition to a project faced a total of 18 lawsuits in state and federal courts. Of those 18 lawsuits, only two were resolved in favor of opponents to a project, and both involved the same transmission line, which has now been constructed and placed into service.11 One such lawsuit remained pending at the time of this writing.

Our analysis primarily focused on assessing the impact of lawsuits brought by project opponents. The courts also serve as a forum for project developers to seek relief in furtherance of a project, whether to challenge agency permit denials or to expedite a project by removing obstacles to project permitting and construction. In our research, we identified three projects that involved lawsuits initiated by the project developers.12 These developer-initiated lawsuits included an unsuccessful challenge to a state agency’s denial of a project permit, ultimately resulting in the project’s cancellation. The second lawsuit was a dispute regarding a federal agency’s conservation easement, which resulted in a settlement that allowed the project to be built. The third lawsuit was an action challenging a tribal entity’s assertion of jurisdiction over a project, which was resolved in favor of the project proponent.

Preliminary injunctions

Our analysis also considered the impact of preliminary injunctions.13 We found that courts almost always denied motions for preliminary injunctions filed by project opponents.14 Project opponents filed motions for preliminary injunctions in seven of the 18 lawsuits identified. Five such motions were denied, and the one preliminary injunction the trial court granted never went into effect.15 At the time of this writing, one such motion is still pending.


The forthcoming research project and report by the Niskanen Center, CATF, and Perkins Coie will contain additional findings on the federal permitting of electric transmission lines and propose comprehensive recommendations and policy solutions to increase the efficiency of federal review.

Our research on the impact of litigation and non-litigation opposition challenging transmission lines suggests that a slim majority of transmission line projects do not face litigation or substantial non-litigation opposition. Of the transmission projects we analyzed, 27% faced litigation or substantial non-litigation opposition and were either delayed or canceled. These findings are consistent with the conclusion that, although litigation and opposition can influence delays and cancellations, factors that cause delays likely compound, and it is difficult to draw a throughline from litigation to the extended timelines typical of transmission line projects. Indeed, there is no single solution to solve permitting challenges. Addressing various factors  ensures greater efficiency and effectiveness in permitting transmission lines.

Olga Baranoff was a consultant to the Niskanen legal team and a primary researcher and author of this commentary. Zachary Norris is a Senior Attorney at the Niskanen Center.

Grace Olson, Megan C. Gibson, and Johan Cavert contributed research and editing.


  1. The forthcoming research project’s evidentiary record and findings are based on original policy and legal research, data analysis, ‘deep-dive’ case study investigations of transmission projects (from the dataset discussed infra endnote 2), and extensive interviews with federal officials and developers with expertise and on-the-ground experience in transmission permitting. ↩︎
  2. Our analysis is limited to projects that were in an active federal environmental review process at some point from 2010-2020. Many more projects never make it to that point in the development process due to the litany of challenges facing transmission infrastructure deployment in the U.S. ↩︎
  3. To determine whether a project faced litigation or opposition, we conducted an online search of the transmission line, along with keywords such as “litigation,” “lawsuit,” and “opposition.” From the initial search, it was typically apparent whether there was litigation or opposition over that line, e.g., as evidenced by local or national news coverage, blog posts, and press releases or communications from local organizations. We also searched for the project and related keywords on WestLaw, GoogleScholar, and PACER to identify specific lawsuits. ↩︎
  4.  Although we endeavored to be as thorough as possible in our review, we recognize it is possible that we failed to identify one or more lawsuits, especially because some state court dockets are not available electronically. ↩︎
  5. Every project that faced litigation also faced substantial non-litigation opposition. ↩︎
  6. Unless, for example, there was a court-ordered preliminary injunction or ‘pause’ of project development. Our analysis, however, did not find any examples where a court-ordered preliminary injunction could be directly tied to project delays. See infra at endnote 16 (explaining why the single preliminary injunction from our analysis that was granted by a trial court never went into effect). ↩︎
  7. These projects also faced substantial non-litigation opposition. ↩︎
  8. 56% of projects that faced litigation were delayed or canceled. ↩︎
  9. 63% of projects that faced non-litigation opposition (but not litigation) were delayed or canceled. ↩︎
  10. Two such projects were canceled and one was listed as “stalled” at the time this commentary was completed. ↩︎
  11. The project developer began construction on the Surry-Skiffes Creek-Whealton transmission project while a challenge to the Army Corps of Engineers’ environmental assessment was pending. The project was completed and electrified before the United States Court of Appeals for the District of Columbia directed the Corps to prepare an Environmental Impact Statement. ↩︎
  12. For the purpose of this analysis, we did not consider condemnation actions filed by a project developer. ↩︎
  13. A preliminary injunction is a court order that may be granted before or during trial, to preserve the “status quo” until the court decides the merits of a case.  Although an injunction may be appealed and reversed, if initially granted and effective, it potentially halts or “pauses” the project. A preliminary injunction can delay or stop a project’s construction or regulatory progress. ↩︎
  14. In a case involving the Bemidji – Grand Rapids Transmission Line Project, the developer of the project sought an injunction against a tribe to prevent it from asserting regulatory authority over the line. The court granted the developer’s request. We did not find evidence of this injunction delaying the project. ↩︎
  15. There, the petitioner failed to post the required bond and the appellate court later overturned the trial court’s issuance of the injunction in the Cardinal-Hickory Creek Project. Nat’l Wildlife Refuge Assoc., et al. v. Rural Utilities Service, et al., W.D. Wis., Case No. 3:21-cv-00096-wmc (Opinion and Order, Nov. 1, 2021). In another case initiated by a project developer to expedite the Bemidji-Grand Rapids  project, the court almost immediately granted the developer’s motion for preliminary injunction. Otter Tail Power Co. v. Leech Lake Band of Ojibwe, Dist. Minn., Case No. 0:11-cv-01070-DWF-LIB (Mem. Opinion and Order, June 22, 2011). ↩︎