Five weeks ago, I wrote in Earthward about the beneficial impacts that two new US laws – the Bipartisan Infrastructure Law (BIL) and the Inflation Reduction Act (IRA) – are expected to have on reducing greenhouse gas emissions through the remainder of the 2020s. The Princeton Net Zero lab found that the reductions are quite sizable, just as might be hoped from what is clearly the most far-reaching climate policy yet passed at the national level. There was a big caveat, however: realizing these emissions reductions depends on roughly doubling the rate of new wind and solar farm deployment and building electricity transmission capacity at least 50% faster than has previously been accomplished. A massive amount of new infrastructure has to be expeditiously sited, permitted and built out across the country. This raises the problem that environmental lawyers J.B. Ruhl and James Salzman have defined as the “Greens’ Dilemma”. The Dilemma refers to the fact that all this new siting, permitting and building has to happen within a framework of laws and regulations that was set up fifty years ago to protect environmental values by slowing industrial expansion. Professors Ruhl and Salzman are sure this framework cannot serve our needs today, and wrote their exhaustive article to lay the foundation for a national conversation about how to do things differently.
The key premise of the Greens’ Dilemma, as Ruhl and Salzman succinctly phrase it, is that current laws that control siting, permitting and building new energy infrastructure do not give out a “green pass” just because a project involves a PV solar array instead of a coal-fired power plant. And while operating the solar farm eliminates coal’s climate pollution, many of its other impacts – mining of rare metals (including for grid storage batteries), soil and hydrological effects, concerns about stormwater runoff, damaging endangered species habitat, and conflict with local and state land conservation – are precisely those that the major environmental laws were written to protect. The need for developers to negotiate these laws is already slowing renewable energy deployment, sometimes to the point of threatening the withdrawal of private financing for certain projects. It already seems clear, and will probably become more so, that meeting the urgency of the climate crisis will require adjusting how business is done. There are many stakeholders: project developers who see regulations as impediments to fast profits, old school environmentalists who want to protect air, land and water irrespective of the climate-friendliness of a project, environmental justice advocates concerned about impacts to frontline and historically underprivileged communities, and the general public, which participates at key junctures in project development.
Ruhl and Salzman offer a useful and easily understood synthesis of initiatives that have already been taken, over the years, to streamline the process of infrastructure development in the US. The initiatives fall into a small number of simple categories. For example, regulations have been amended to offer certain projects faster timelines for completing a checklist of requirements prior to issuance of a necessary permit. Alternatively, it has sometimes been possible to limit the scope of required analyses, by analyzing environmental impacts over a smaller geographic range or forgoing the option of considering their cumulative effects. Another possibility is designating a lead federal or state agency to manage a project, coordinating the efforts of other agencies into a single analysis. Finally, to manage competing agendas at the federal/state or state/local levels, laws have been written to enable preemption, so that rules issued by federal agencies supersede state regulations, or state rules supersede those passed by cities. All of these strategies are part of a well-established toolkit that states and the federal government can use to get green infrastructure built faster.
Many if these initiatives are consistent with a trajectory for change that Ruhl and Salzman designate as “tweaking” – an approach that would more or less retain the present legal status quo, but address some of the most constraining pinch points in the system. Such a strategy would be an attempt to balance the many stakeholder interests: green infrastructure buildout would be accomplished faster, but not so fast as to run roughshod over other values such as environmental conservation, social justice and robust public participation. The question, of course, is whether a relatively modest acceleration drives emissions down fast enough to meet the urgency of the moment. If climate change is really the defining crisis that many say it is, shouldn’t we be pulling out all the stops to address it?
Ruhl and Salzman designate such a pulling-out-all-the-stops trajectory as “maximum preemption”, illustrating it with an infamous example demonstrating that the federal government can bypass state and local objections to get infrastructure built when it wants to. In 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), authorizing building of a wall at the Mexican border. The law takes an exceptionally aggressive posture, stating explicitly that it enables the Attorney General to waive provisions of the Endangered Species Act and National Environmental Policy Act as needed to ensure expeditious construction. In 2005, Congress transferred agency authority to the Department of Homeland Security, authorizing its Secretary to waive all legal barriers at any level of government. IIRIRA has survived numerous legal challenges, and its preemptive approach might be a model for rapid green infrastructure buildout. Of course, maximizing speed and beneficial climate impact in this way also devalues environmental conservation, distributional equity and public participation, cutting off much of the engagement needed to flesh out those issues with citizens and stakeholders. Many progressive groups call for President Biden to declare a climate emergency, presumably with the idea of enabling preemptive federal actions. It is unclear, however, whether they have thought through the implications for other values that they hold dear.
If tweaking is not aggressive enough but maximum preemption goes too far, then what is to be done? Ruhl and Salzman propose a “grand bargain” focused on decarbonization, which prioritizes speed and climate mitigation, but only for a select subset of infrastructure projects with very high potential for emissions reduction. Decisions about which projects to include would be made by a commission appointed by the President with Congressional consent, which is insulated from the usual political process. Successful precedent exists for such a move: after the Cold War, Congress passed a law creating an independent military base closure commission that used neutral criteria to recommend a list of bases to close – a process that would otherwise have been hopelessly mired in politics. A major benefit to this approach is that it leaves the framework of major environmental laws intact, creating instead a two-track system in which streamlining (fast permitting, at least some preemption, etc.) is only applied to the high-decarbonization subset of projects. Ruhl and Salzman do not try to specify which projects might qualify, but given the central importance of the electric grid and the technological readiness of green power, it seems likely that key long-range transmission lines and wind/solar buildout (perhaps in concentrated geographic areas, and including offshore wind) would be the best fit.
The Ruhl/Salzman grand bargain is a valiant attempt to make inroads into what many see as an intractable problem. It recognizes the urgency of climate change while largely preserving the environmental and social values built into existing statutes. The possibility that Congress might enact such a proposal into law seems remote in an election year, but the analogy to the military base closure model is clever, and offers a successful and bipartisan precedent that could be appealing if sanity prevails next Fall.
In the meantime, it is worth paying attention to the significant effort that the Biden administration’s Council on Economic Quality has dedicated to rewriting the regulations that implement the National Environmental Policy Act (NEPA), the bedrock law that requires federal agencies to take a hard look at the environmental and human impacts of large energy projects. Consistent with provisions enacted in the June 2023 Fiscal Responsibility Act, the proposed new rules limit both the length of required environmental impact statements and the time periods that project developers are allowed to complete the analyses. At the same time, the new rules add environmental justice (EJ) and climate change to the list of considerations that the NEPA analysis must include. Progressive groups, in particular, are praising the new effort, which requires that federal agencies must facilitate “…meaningful engagement with communities with EJ concerns…” and consider project alternatives that will “…address adverse health and environmental effects that disproportionately affect communities with EJ concerns.” Although the new rules apply only to NEPA, they embody both the urgency and social justice values articulated by Ruhl and Salzman. Perhaps this effort will set a meaningful precedent for broader attempts to accelerate the green energy transition without sacrificing central values that the environmental movement has always stood for.
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J.B. Ruhl & James Salzman, The Greens’ Dilemma: Building tomorrow’s climate infrastructure today. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4443474
https://repeatproject.org/docs/REPEAT_Climate_Progress_and_the_117th_Congress.pdf
https://scholarship.law.columbia.edu/cgi/viewcontent.cgi?article=4885&context=faculty_scholarship
https://www.eenews.net/articles/republicans-slam-biden-nepa-revamp-threaten-permitting-talks/
https://www.vnf.com/biden-administration-announces-proposed-phase-two-nepa-regulations
https://www.eli.org/vibrant-environment-blog/proposed-nepa-rule-goes-all-environmental-justice
https://scholarship.law.columbia.edu/sabin_climate_change/200/