J.B. Ruhl is the David Daniels Allen distinguished chair of law and director of the program on law and innovation, and co-director of the energy, environment and land use program, at the Vanderbilt University Law School.
James Salzman is the Donald Bren distinguished professor of environmental law at the University of California, Los Angeles, and the Bren School of Environmental Science and Management at the University of California, Santa Barbara.
The small town of Copake, New York, nestled in the Taconic Mountains 110 miles north of New York City, is an unusual place for a bitter conflict over energy policy.
In 2016, the renewables developer Hecate Energy began plans to develop Shepherd’s Run Solar, a 60-megawatt, 255-acre solar farm that promised jobs, tax revenues and co-located agricultural projects such as grazing, farming and beekeeping. Despite the area’s left-leaning politics and leadership, some members of the Copake community quickly created a nonprofit organization, Sensible Solar for Rural New York. Opposing the project, they argued it would “adversely impact Copake’s natural resources, farmland, wildlife and habitats, rural viewsheds, property values and tourism — and agriculture-dependent economy.” Local supporters of the project spun up an opposing NGO, Friends of Columbia Solar. This NGO argued that the state’s goal of decarbonizing by 2050 cannot be met without constructing hundreds of large solar farms like this one. The problem is that they both may be right.
Conflicts like this are playing out across the country. They pose a fundamental challenge to varied state and national pledges to decarbonize our economy, many of which will require massive new infrastructure initiatives to be built quickly — at three to six times the current pace to meet the goal of decarbonizing the grid by 2035.
The good news is that we have the funds to pay for much of this. The Inflation Reduction Act (IRA) provides $370 billion — the largest clean energy infrastructure investment in American history. The bad news, though, is doubt over whether we can build it. More specifically: Do our current laws allow us to site, permit and build tomorrow’s climate infrastructure fast enough?
The experiences of Copake and other conflicts to date suggest “no” is the clear answer. And environmental law is, ironically, one of the constraining factors.
Back in the 1970s, there was an explosion of new federal environmental statutes, quickly followed by state and local initiatives. Viewed from today’s vantage, there seems to have been an unspoken bargain: In exchange for a cleaner environment, these laws would modify, slow and even stop traditional “brown” infrastructure such as highways, oil pipelines and industrial facilities. It proved a good bargain. While economic growth in the United States has increased more than five-fold since the 1970s, by most measures our environment is much cleaner.
The problem today is that laws designed to slow and stop traditional infrastructure can equally slow and stop environmentally beneficial infrastructure. It’s naive to think they will be put aside simply because the new agenda is climate-friendly. Quite the opposite.
Since the 1970s, a common goal for much of the environmental movement has been stopping or slowing what was seen as bad growth. But this feature has become a bug. Environmental, NIMBY, social justice, fossil fuel interests and labor groups often gather in opposition to renewables development and infrastructure. In some cases, the pushback is for good reason — wind turbines kill birds and bats, solar arrays disrupt habitat, lithium batteries require raw materials that must be mined and electric transmission lines cut through habitat and near neighborhoods, among other examples. But this opposition has the potential to threaten the good of all.
“Laws designed to slow and stop traditional infrastructure can equally slow and stop environmentally beneficial infrastructure.”
The IRA’s failure to confront these “old green laws” raises two important questions for our nation’s climate change policy. First, what should the proper balance be between building climate infrastructure quickly versus ensuring strong environmental protection and social justice goals? And equally important: Who should do the balancing?
Saying “no” or “later” to most renewable energy projects is not and option for our urgently needed climate infrastructure. So there is no avoiding the need to ask those questions. And though the political tide is slowly starting to turn, with prominent green politicians like Senators Sheldon Whitehouse and Chris Murphy ringing the alarm bell, reform proposals in our view have been mostly inadequate and, even then, gained little traction.
To be clear, this is not an “anti-environmentalist” perspective. We both have devoted our careers to environmental protection. However, it is critical to understand the growing divisions within the environmental movement over how to confront trade-offs between rapidly planning, siting and constructing climate infrastructure versus environmental protection, distributive equity and public participation.
Getting to net-zero emissions by 2050, as the IRA handbook puts it, “will require building new transmission lines and clean energy projects at a pace and scale that is unprecedented in U.S. history.” This will require much faster infrastructure deployment for five parts of the energy system: clean energy production, electric power transmission, electrification of consumption, carbon capture and sequestration, and resource development.
Currently, 60% of electric power produced in the U.S. comes from fossil fuel combustion. Under any decarbonization scenario meeting national goals, therefore, new wind and solar power production infrastructure will need to dominate. According to the Princeton Net Zero America study, combined wind and solar power capacity must at least quadruple over current levels by 2030 to stay on a path to net zero. Yet we are far behind: The European Union currently has at least 5,400 offshore turbines in operation, whereas the U.S. has just seven.
What makes this infrastructure challenge even more daunting is the speed necessary to build it in time to meet our goals. We need system-wide coordination to simultaneously deploy vast new wind and solar generation facilities by 2030 and be fully built out and operating by 2050.
Consider, for example, carbon capture and sequestration, which virtually all reliable analyses conclude must be massively scaled up to meet our net-zero goals. Indeed, the Biden administration recently announced that it would spend up to $1.2 billion on two capture and storage projects. But capturing carbon is pointless if it can’t be transported to processing facilities or sequestration sites. And that means pipelines.
The unsurprising fact is that people don’t like pipelines cutting through their communities, no matter how green the project. Landowners in Hardin County, Iowa, for example, recently teamed up with the local Sierra Club chapter to oppose one of the nation’s biggest proposed carbon pipelines. Their efforts and those of others like them along the proposed route across the Midwest have ground the pipeline’s progress to a halt, and another major proposed carbon pipeline project was recently canceled due to what the company building it described as the “unpredictable nature of the regulatory and government processes.”
Concerns about the impacts of carbon pipelines and other climate infrastructure are widely shared and legitimate. But what is different now is that “no” is not an option. If not Hardin County, then where? If most community and interest groups can veto or stall projects, we all tumble further down the path of irreversible climate change and biodiversity loss. We must build this infrastructure, somewhere, quickly. Nonetheless, often the green trade-offs are real. Building large solar arrays may require cutting down trees or clearing a meadow. These conflicts place environmental groups in a difficult position — what we call the “Greens’ Dilemma.”
There are no precedents to look to for inspiration or answers. The successful large infrastructure projects of the past — the Intracoastal Waterway, interstate highway system, electricity transmission grid and national oil, gas and water pipeline distribution systems — were largely in place or well underway before the rise of modern environmental law statutes, and they were often built at the high cost of environmental harms and communities destroyed, particularly in poor and politically weak areas.
“In exchange for a cleaner environment, environmental laws would modify, slow and even stop traditional ‘brown’ infrastructure such as highways, oil pipelines and industrial facilities. It proved a good bargain.”
Only the construction of modern environmental law itself could be considered a model for what we have to do to accelerate the approval and regulatory processes for climate infrastructure while also achieving goals of environmental protection and public input. In just over a decade, a confluence of bipartisanship in Congress and deep concern over the state of the environment led to all our major environmental statutes, including the National Environmental Policy Act in 1969, the Clean Water Act in 1972, the Endangered Species Act in 1973 and the law that established the Superfund in 1980, among others.
From that point on, major projects have required multiple approvals at all governance scales, immersing infrastructure in a web of federal, state and local permitting regimes. Those now battle-tested regulatory processes put long lists of restrictions in the way of green energy projects. Many of those that get approved are also subject to appeal litigation, which could lead to new agency processes and new rounds of judicial review. To be clear, these permitting requirements and opportunities to challenge permits have had very real benefits. A lot of projects have been built with reduced environmental impacts. And even in an era of rapid warming, there is no “green pass” for climate infrastructure to bypass any of this.
So what can be done? Fortunately, there is a toolkit we can use.
Concerns over the delays created by compliance with and litigation over environmental laws are not recent. Both Republican and Democrat administrations have implemented so-called “streamlining” initiatives intended to speed up infrastructure development while (more or less) safeguarding the environment. Independent analyses have built on those efforts to explore options for accelerating climate infrastructure. All that work suggests that there are just four basic tools in the streamlining toolkit:
Limiting coverage uses line drawing to identify what is covered and (more importantly) what is not. By establishing regulatory exemptions and carve-outs, infrastructure approval is streamlined because there are reduced opportunities to object. The Clean Water Act, for example, has much narrower coverage of navigable waters than it used to.
Centralizing decisions from different agencies or levels of government can reduce the time needed to make decisions and issue permits as well as limit opportunities for challenges. This can take the form of soft centralization (improved coordination) or hard centralization (preemption) and, at the extreme, can vastly streamline the process. The legislation authorizing the so-called Border Wall, for example, gave the secretary of homeland security the power to exempt the project from all federal, state and local environmental laws.
Establishing timelines enforces speedier review and permit approval or denial decisions. The National Environmental Policy Act, for example, now has a general requirement for finalizing environmental impact statements within two years.
Increasing information among agencies and project proponents (and opponents), such as through the Permitting Dashboard, a web tool that facilitates more efficient coordination and ensures transparency throughout the permitting process.
“Accelerated permitting for climate infrastructure need not require fundamental changes to our environmental laws.”
Use of this toolkit can chart three possible trajectories for resolving dilemmas between greens. One is to stick with the status quo and hope for the best. At the other extreme, the federal government could maximize centralization and take over entire processes. In the middle is a tweaking strategy: addressing pernicious pinch points without altering fundamental structures and processes. This middle approach has captured congressional attention but could result in a system that looks much like the status quo in its structural and procedural features.
None of these is particularly promising. Even with the Goldilocks middle ground, every tweak has its own political battle, and the sheer number of laws involved presents a daunting number of pinch points in need of reform. If we get to 2040 and are still not on target, what then?
A fourth approach is more ambitious and borrows a bit from each of the others. It rests on two premises. The first is that the trade-off between speed-of-build on the one hand and conservation, participation and equity on the other is real and cannot be ignored. But the second is that this trade-off should be reserved only for the most important climate infrastructure projects — those that “move the needle” on decarbonization.
This proposal has four key components. First, borrowing from the U.S. military base closure process, a nonpartisan federal commission should identify a limited number of the most important climate infrastructure projects. The authorizing legislation would establish selection criteria, focusing on a significant impact on reducing emissions, and would establish procedures for public participation. The commission’s selection decision of a set of projects would be subject only to congressional override — up or down, no favoring one project while rejecting others.
Second, for projects the commission selects, a single interdisciplinary federal agency should be charged with conducting the environmental and other siting review assessments and permitting. All other federal, state and local laws would be preempted to allow this agency to be the sole point of decision-making. Projects not selected for review because they do not meet the criteria, like a small community solar array or a minor transmission facility, would be processed under the existing regulatory system.
Third, unlike the extreme border wall approach, the assessment would include the important environmental, economic and social impact requirements currently dispersed throughout the existing regulatory system. For example, the agency could require greater habitat protection measures or mitigation for impacts on cultural resources.
Fourth, the assessment process would include designated milestones to expedite decision-making but integrate processes for state, local and other interests to provide input. If the body is unable to resolve contested issues, the commission would convene a mediation process. Ultimately, though, the body would make the final decision, and that decision would be subject to a limited and expedited judicial review conducted by panels of designated federal judges.
“The trade-off between speed-of-build and conservation, participation and equity is real and cannot be ignored. But this trade-off should be reserved only for the most important climate infrastructure projects.”
This approach offers several important advantages, the most important of which is liberating the most critical projects from the existing system and delegating them to a single process. But it also facilitates the development of a national plan to coordinate projects and assess progress through the work of the agency and commission, something that is sorely lacking under the current system.
This approach also liberates us from the contentious debate over permitting reform. With the important projects shifted to a specialized commission and agency, there is no longer any need to weaken landmark federal laws or state and local ones just to get everything moving faster.
Accelerated permitting for climate infrastructure need not require fundamental changes to our environmental laws. To gain adequate political support, perhaps this process would need to be broadened to include energy projects more broadly, not just climate infrastructure.
Our approach is as much a thought experiment as a proposal. We do not expect it will be enacted into law. We do hope, though, that it spurs creative thinking over how to address this pressing problem.
The choices are difficult. But the hard reality of climate change in our time makes denial of the problem or incremental tweaks unacceptable.
