The Inflation Reduction Act (IRA), enacted by Congress in 2022, is by far the most significant piece of climate legislation enacted by Congress, despite (or perhaps because of) its name. The IRA provides billions of dollars of tax credits, subsidies, grants, and other support for the development and deployment of the technology we need to decarbonize our economy: electric vehicles, electric vehicle chargers, industrial-scale renewable energy, transmission lines to connect renewable energy sources to consumers, carbon capture technologies, and much, much more. Models indicate that the IRA will result in substantial progress towards decarbonizing the American economy. And the investment in decarbonization technology will not just have direct climate benefits. By creating economic investments that depend on decarbonization progress, the IRA can help build future political support for more progress on decarbonization down the road.
But while money is necessary to build all of this infrastructure that allows for decarbonization, it is not sufficient. The first three parts of Ruhl and Salzman’s The Green’s Dilemma: Building Tomorro’s Climate Infrastructure do a nice job of providing an overview of why. In the United States, constructing large-scale infrastructure–such as transmission lines or large renewable energy facilities, or obtaining the minerals we need for electric vehicle batteries–requires permits as well. Permits from federal, state, and local governments. Permits that can take months or years to obtain, and that can be subject to litigation that adds time and uncertainty. And ironically, many of those permits come from traditional environmental law: permits under the Clean Water Act or the Endangered Species Act, for instance. And for federal permits under other, non-environmental laws, the federal government is required to undertake environmental review pursuant to the National Environmental Policy Act (NEPA) before issuing the permit. And the delays caused by permitting are not just an issue of adding cost (and therefore reducing the climate benefits the US obtains for each dollar spent), though this is important. Perhaps even more important from the perspective of climate policy is that delay in implementation of decarbonization technology and infrastructure means we spend more time emitting more carbon into the atmosphere–when climate policy as it stands is a race against time.
Ruhl and Salzman aren’t the first ones to have noted the challenge, though most of the prior discussion has been outside the pages of law reviews (for examples of prior work, see this article and this article). The fact that Ruhl and Salzman have placed the topic on the agenda of legal scholars is a useful contribution.
But the more important contribution of the piece–and why it warrants praise in Jotwell–is the effort by Ruhl and Salzman to identify possible paths forward. Drawing on controversial streamlining efforts like Senator Manchin’s permit streamlining bill, Ruhl and Salzman identify four different ways in which existing permitting regimes might be adjusted to facilitate the development of decarbonization infrastructure and technology: limiting the jurisdiction or analytic scope of permitting or environmental review; centralizing decisions at higher levels of government (often the federal government) to at least advance coordination among multiple permitting agencies, or at the extreme, preempting some or all regulation for particular projects; establishing enforceable timeframes for permitting and environmental review decisions; and increasing the amount of information available to agencies doing permitting and review to make the processes go faster and better.
As Ruhl and Salzman note, all of these various tools narrow the scope or weaken the strength of existing environmental laws. And thus, as they say, the Greens’ Dilemma. Should environmental groups support changes to bedrock environmental laws–laws they have fought to enact, defend, and implement for about fifty years–in order to advance the development of the infrastructure needed to decarbonize our economies? There are real risks here: All new infrastructure, no matter how climate-friendly, will have some local or regional environmental impacts. Streamlining efforts will not always be perfectly targeted to truly “green” projects, and in any case, there is deep debate within environmental circles about whether to pursue technologies such as carbon capture. Cutting back on public participation and the ability of local communities to fight projects through the administrative and judicial processes is in sharp tension with a push by environmental justice advocates to give those local communities more voice and power to stop projects they do not want in their neighborhoods, and add more equity to where and how we do major infrastructure projects. And finally, there is always the risk of the slippery slope–that streamlining will not stop with decarbonizing projects, but will spread to fossil fuel or other projects that environmental groups have dedicated their existence to fighting.
Thus, as Ruhl and Salzman well note, some tradeoffs will have to be made. And they identify three paradigms or scenarios that exemplify those tradeoffs. At one end, we could do nothing to adjust our current permitting and environmental review system, cross our fingers, and hope for the best that we can get enough infrastructure through the system to meet our climate needs–perhaps by staffing up agencies to process permits faster and better. At the other end, we could follow the path laid out by legislation such as the system Congress set up for the border wall, where Congress repealed all environmental laws and forbade any judicial review of the construction project. In between is what Ruhl and Salzman call “tweaking.”
As Ruhl and Salzman aptly point out, none of these choices involve a simple environment versus development tradeoff. Even doing nothing and keeping the status quo involves environmental costs, as we run an increased risk of not having an adequate and timely push for decarbonization, which in turn increases the climate impacts for ecosystems, species, and people around the world.
At the end of their piece, Ruhl and Salzman propose a “grand bargain”: create a federal commission that identifies key climate infrastructure; those projects would receive significant streamlining in the form of a one-stop single permitting process that would holistically consider all environmental issues; impose enforceable timeframes for permitting and environmental review, with accelerated judicial review; and develop a central database with information about permitting and environmental review from all projects (not just those that are streamlined) to facilitate faster and better permitting.
One can critique the authors’ proposal. There are serious questions. Why should we trust a federal commission to identify good projects? Imagine a future administration that is hostile to climate policy that uses the process to accelerate coal mining projects on a national basis. How will the revised process address the historical inequities of environmental regulation and siting of infrastructure projects? Here, Ruhl and Salzman do not provide details, other than to note that any such consideration should be built into the single-permit process. Are there kinds of projects, or kinds of issues, in which we might be more (or less) concerned about losing separate review and constraining judicial review and public participation? Would we want more nuance? And can the political coalition that shepherded through the IRA manage to unite for such a drastic change?
These are all important questions. But Ruhl and Salzman’s piece is beneficial in pushing us to consider these questions. They aren’t questions that are going to go away. And we will be answering them one way or another, even if it is only through inaction. But inaction, too, has environmental costs.
