Tag Archives: Environmental Law
Oct 24, 2025 Eric BiberEnvironmental Law
America will probably be using a lot more electricity in the very near future. Demand will increase due to data centers for artificial intelligence, as well as electrification that is a central part of decarbonizing the American economy such as continued adoption of electric vehicles and electrification of home heating and cooking. But increased demand for electricity creates a problem. It will require an expansion of our electricity transmission network, a system that was designed for much lower levels of electricity usage. Moreover, the restructuring of electricity markets in much of the US starting in the 1990s is requiring more transmission capacity because of the integration of electricity generation and demand on a much larger scale than in the day when most electricity was generated and used within the service area of a single public utility. Greater extreme weather events because of climate change will increase the demand for electricity and also increase the risk of failures in the transmission system – larger transmission systems can provide resilience for these situations.
But the process for constructing new US transmission systems is broken. The US has built a fraction of the miles of high-voltage transmission lines that are required to meet our future needs. Building on prior work that has helped identify the problem, Joshua Macey and Elias van Emmerick’s article provides two key contributions. First, they show how the current system incentivizes the construction of transmission projects that do not benefit the grid as a whole. Second, through a thorough analysis of the existing powers of the Federal Energy Regulatory Commission (FERC) and the Department of Energy, they identify a range of legal authorities that those agencies could use to address the problems already identified through administrative action – providing a potential roadmap for at least starting to work on our need for more transmission.
It’s not as if we aren’t spending money on transmission, as Macey and van Emmerick note. The problem instead is that the money we do spend is not spent on projects that would actually benefit the grid overall. Nor do we spend that money to facilitate bringing a range of new generation resources online, including renewables. The authors document how the current system by which we decide which lines get built, and then get paid for by electricity consumers, is broken. In theory that system should facilitate the independent identification of where transmission would most benefit the electric grid, and consumers, as a whole, get it built through a competitive bidding process, and then allocate the costs of construction among those who would benefit.
In practice, utilities use loopholes to avoid competitive bidding, so that they construct the lines themselves, and then recoup the costs of that construction through charges to consumers. Utilities also use loopholes – especially for local or small projects – to avoid state approval requirements or regional transmission planning processes and construct lines that provide limited or no benefits to the stability of the overall grid, or to the facilitation of new generation (including renewable energy), but instead benefit the incumbent utility’s own generation resources and exclude competition. Finally utilities use their influence over regional transmission organizations to control what kinds of projects are approved, and to develop the rules that allow utilities to avoid planning and competition.
Just describing these phenomena would be a helpful contribution. But Macey and van Emmerick comb through the provisions of the Federal Power Act, plus other authorities for the Department of Energy, to identify powers that FERC and DoE could use to close loopholes, force better governance at regional transmission organizations, and reduce state and local obstacles to siting. Most of the changes they propose do not necessarily require legislative action – though Congressional action might reduce the risk that what they propose would be overturned in court.
As with any proposal for administrative or regulatory action as a substitute for Congressional inaction, there are challenges. Some of their proposals call for relatively aggressive interpretation of statutory authorities by FERC and DoE – such an effort might run afoul of a Supreme Court that has been more aggressive in patrolling agency statutory interpretation after the Court overturned Chevron and has developed the major questions doctrine. And all of their proposals presume an administration that is interested in thoughtful and effective engagement in expanding transmission. The evidence that this administration has such a position is . . . pretty thin. Thus, their proposals may have to wait for a future administration. But even so, their analysis is important – while delays in expanding our transmission system will be costly, delayed action is better than inaction. Moreover, it is unlikely that Congress will be substantially changing these authorities in the near future.
While these reforms may seem deep in the weeds of energy law, they have real implications for environmental law. Decarbonizing the American economy will require significant increases in electrification, and that in turn requires tremendous expansion of our transmission system in a way that will produce greater reliability and greater access for a wide range of zero-carbon energy sources (solar, wind, nuclear, geothermal, and more). Transmission reform is a necessary condition for decarbonizing. Macey and van Emmerick have given us a roadmap for starting that process.
May 19, 2025 Steve GoldEnvironmental Law
In my most recent Jot, I reviewed two articles that explored “The Limits to Law(s)” – more precisely, the inability of United States environmental law to respond quickly and effectively to the global problems of PFAS contamination and plastics pollution. William Boyd’s De-Risking Environmental Law criticizes the law’s ineffectual response to toxic hazards more generally and identifies a surprising culprit. “Environmental law, it seems,” Boyd writes, “suffers from too much science and not enough law.” (P. 156.)
What we need instead, says Boyd, is “a new ethics of regulatory science . . . that recenters law in the commitment to protecting public health.” (P. 153.) This new twist to an old debate about whether ethics or science should serve as the primary justification for environmental law startles the reader. After all, science appeared to have won that debate decisively and long ago. How could any government make policy choices to protect public health or ecosystems without a thorough understanding of the medical and ecological dynamics at stake? We are so accustomed to relying on science to justify regulatory interventions it seems impossible to imagine any other way of thinking.
And that, according to Boyd, is exactly the problem.
Of course, Boyd does not oppose applying scientific knowledge to regulatory decision-making. Rather, he contends that regulators have been applying the wrong kind of science in the wrong way. His gripe is with quantitative risk assessment and the preeminent role government agencies, especially EPA, have given that methodology.
Boyd shows that across EPA, quantitative risk assessment sits like a troll athwart the bridge to regulation. The troll demands to be fed, but its appetite for “sound science” is insatiable. With the troll on guard, almost no regulatory initiative can get across the bridge to the greener pastures of risk management. So, EPA remains ever in pursuit of its statutory mandates to protect public health from toxic exposures, but rarely able to fulfill its responsibility.
How did this situation arise? Relying on an impressively broad range of sources, Boyd persuasively demonstrates that the idea of quantitative risk assessment as a necessary predicate for regulation arose in reaction to rather than in service of early agency efforts to implement the protective legislation of the 1970s. He documents a multipronged push for this idea coming from trade associations, from the “science policy establishment,” from reviewing courts, and ultimately from within EPA itself. The articulated rationale was to improve regulatory decisions by making them more “scientific,” more objectively credible, and more defensible. But the effect was to impede regulatory decisions by making them more difficult, more time-consuming, and more contestable.
A cynic could justifiably conclude that this effect was foreseen and intended by industries advocating in their own self-interest and by ideological opponents of government regulation. Indeed, part of Boyd’s purpose is to make that case. But Boyd goes further, arguing that even with the best intentions and tireless effort of agency management and staff, quantitative risk assessment is beset by “knowledge problems” (P. 204).
De-Risking Environmental Law systematically explores inherent limitations that belie the ability of quantitative risk assessment to deliver clear scientific answers on which regulators and society could rely. One problem is that in some ways the real world is too complex for a methodology that entails simplifying assumptions. Boyd highlights two of these complexities: cumulative effects of multiple and variable toxic exposures and unequal distribution of toxic burdens in conjunction with socioeconomic inequality. Another problem is that although quantitative risk assessment can speak the language of probability, it cannot cope effectively with genuine uncertainty: the lack of knowledge about what values to assign variables in risk assessment models or how to describe those variables’ relationships. Yet the study of toxic exposures and effects is rife with known unknowns, not to mention unknown unknowns. Worse, Boyd explains that trying to deal with these problems by making risk assessment models more complicated is a Sisyphean task because new uncertainties ramify with each added complication. The answer to the problems of risk assessment is not more risk assessment.
The discussion of the conceptual limits of quantitative risk assessment, alone, makes this article worth reading. But Boyd also shows that these limits have consequences. “[O]pponents of regulation can always find ways to argue for more science, more research, and more data,” (P. 229), resulting in either total inaction or nearly endless delay. He provides a breathtakingly panoptic list of examples of ensnared risk assessments or regulatory initiatives: asbestos, dioxin, trichloroethylene, formaldehyde, PFAS “forever chemicals,” organophosphate residues, the proposed Yucca Mountain nuclear waste repository, the leaded gasoline phasedown, the Hudson River Superfund remedial action, and doubtless others that I’ve overlooked. It is too simplistic, as Boyd acknowledges, to ascribe these failures entirely to quantitative risk assessment, but Boyd compellingly argues that the dominant role of quantitative risk assessment is an important part of the problem. Not in the abstract, but in the “violence embedded in” (P. 228) the power “to determine which environmental harms will be imposed on whom.” (P. 169.)
In the post hoc risk regulation of toxic tort cases, courts invoking the “sound science” mantra have for more than three decades imposed stringent proof requirements on plaintiffs, justified in part by contrast to “the preventive perspective” of regulatory agencies that imposes a “threshold of proof [that] is reasonably lower than that appropriate in tort law.” Such rulings require injured plaintiffs to bear the cost of scientific uncertainty about toxic harms. Boyd’s article calls into question the reality of that preventive perspective.
To solve this problem, Boyd sketches out a truly precautionary approach that relies much less on the illusory precision of quantitative risk assessment. He endorses “innovative uses of generic approaches built on simple hazard-based triggers” (P. 246) that would be based on broad screening for and early warning of potential toxic dangers. Such an approach, Boyd contends, would provide incentives for industry to develop less hazardous alternatives to dangerous materials and products. The approach would be justified by an ethical imperative to end or at least minimize the violence of toxic exposures.
As ever, the problem is pathway. Boyd acknowledges that the prominence of quantitative risk assessment seems over-determined. The root causes he identifies – industry influence and manipulation, political backlash, activist judicial intervention and constraint – have intensified, not diminished, since the dominant position of quantitative risk assessment became entrenched. These forces seem poised not only to block the development of a new paradigm, but to immobilize any ethics-based regulatory approach that might develop, just as they immobilized the risk-based approach.
The evident priorities of the current Administration amplify the concern. There is good reason to worry that EPA is losing both the will and the ability even to continue along the path it has been pursuing. At a time when both science and law are taking major hits, thinking about how to improve their relationship may seem beside the point.
Yet even from a defensive crouch hoping to maintain what has been, it is necessary to imagine what could be. William Boyd’s De-Risking Environmental Law is a valuable contribution to a growing literature that identifies the ways environmental regulation has failed, names the reasons for those failures, and gropes toward a proactive, protective, precautionary future.
Dec 2, 2024 Eric BiberEnvironmental Law
- Heather Payne, Reliance and Reliability, UC Irvine L. Rev. (forthcoming), available at SSRN (January 30, 2024).
- Joshua Macey, Shelley Welton, & Hannah Wiseman, Grid Reliability in the Electric Era 41 Yale J. on Reg. 163 (2024).
Electricity is at the center of decarbonization and climate change policy. With the rise of renewable energy, we have made the most progress in decarbonizing the electricity sector. The primary approach for decarbonizing transportation and buildings is to electrify vehicles, space and water heating, appliances, and cooking. But the race to move more and more of our activities to a clean electric grid also means that the electric grid is all the more important to our day-to-day lives. A power outage today can thus have much more of an impact – not just darkness, but also interruption of communications (by shutting down internet access), the ability to cook and stay warm, and the ability to move to a place with electricity service.
Yet, climate change is increasing the challenges of maintaining a reliable electric grid. Climate change raises the probability and severity of extreme weather events – such as heat waves – that can stress electric grids and heighten the risks of power outages. Moreover, more intermittent renewable energy on the grid itself can pose challenges to grid reliability. Consumers who are concerned about the reliability of the grid may be wary of increasing their reliance on electricity for home appliances and heating. Reliability is therefore a central issue for decarbonization. It is thus heartening to see two recent pieces of legal scholarship that highlight the issue, beginning the process of thinking about how to make progress on reliability as we move towards decarbonization. There are both federal and state-level angles to thinking about reliability, and both are important. Macey, Welton, and Wiseman focus on the federal aspects in their article, while Payne focuses on the state aspects in her article.
Both pieces highlight how current incentives in federal and state law do not encourage incumbent utilities to effectively address reliability issues. The dominant player at the federal level in addressing reliability is the North American Electric Reliability Corporation (NERC) – a non-profit that under federal law has broad powers to set standards for the reliability of the electric grid. However, as the authors note, NERC is primarily controlled by the incumbent electricity utilities, who have most of the voting power in NERC decision-making. The authors make a strong, circumstantial argument that utility dominance of NERC has meant that the NERC standards have not adequately addressed how to ensure the reliability of the electric grid given the increase in renewable energy or the increased likelihood of extreme weather events, and that NERC has disproportionately focused on relying on traditional baseline electricity power plants, such as coal and natural gas, to advance reliability.
At the state level, Payne describes how state public utility commissions and the incumbent utilities they regulate play a key role in determining whether utilities provide adequately reliable service to their customers. Payne makes a persuasive case that state regulators and utilities have been using outdated measures of reliability – measures that focus on average performance, and ignore the extreme outages that can result in some customers living without electricity for extended periods of time. As Payne notes, these extended losses may be particularly damaging to customers, and may disproportionately affect those with fewer resources.
Payne also explains how the traditional rate-making process by many state public utility commissions encourages utilities to invest in large-scale capital projects, like hardening transmission and distribution infrastructure, because the utilities can pass those costs (and associated profits) on to ratepayers. While Payne notes that these investments can provide reliability benefits, she argues that utilities are not incentivized to consider other, potentially cheaper, and more effective options for reliability, such as supporting microgrids and customer energy storage.
These two pieces provide valuable contributions to the scholarly literature by highlighting the importance of reliability in energy and climate change policy, and also by identifying important ways in which our current system is falling short in addressing the problem. As always, identifying solutions is in many ways more difficult than diagnosis, but both pieces at least help us start thinking about possible solutions.
Macey, Welton, and Wiseman propose exploring reforms at NERC that would reduce utility power, or the possibility of greater control over reliability by a publicly accountable government agency, the Federal Energy Regulatory Commission. Payne suggests using different metrics to measure reliability that would provide greater weight for extreme events and long-term outages and raise the possibility of utility liability to customers for damages from outages. All of these suggestions are helpful, though the authors also note significant political feasibility constraints for these options. There is more work to do in the area of reliability, including the role of increased baseload generation from sources such as nuclear and geothermal, but these pieces are an excellent start to a necessary conversation.
Eric Biber,
The Importance of Reliability in an Age of Electrification (December 5, 2024) (reviewing Heather Payne,
Reliance and Reliability,
UC Irvine L. Rev. (forthcoming), available at
SSRN (January 30, 2024); Joshua Macey, Shelley Welton, & Hannah Wiseman,
Grid Reliability in the Electric Era, 41 Yale J. on Reg. 163 (2024)), https://lex.jotwell.com/the-importance-of-reliability-in-an-age-of-electrification/.
Apr 30, 2024 Steve GoldEnvironmental Law
When young people accusingly complain that my generation unfairly saddled them with the problem of climate change, I like to remind them that my contemporaries and immediate forebears advocated for, enacted, and implemented–indeed, invented–modern environmental law in this country. However true it is that we failed to protect our heirs from climate change, we are bequeathing them a world that is demonstrably cleaner and healthier than it would have been absent the spate of environmental lawmaking that began in 1970.
In the articles reviewed here, two lions of the founding era, each writing with a younger co-author, remind us that the success of U.S. environmental law remains incomplete. Climate change, these articles point out, is not the only environmental problem of global scale and massive if unpredictable consequence–nor the only problem that environmental law has been unable to solve. Robert Adler and Carina Wells take on the law’s failure to deal with pollution from plastics. Mark Nevitt and Robert Percival tackle the law’s feeble response to PFAS (per- and poly- fluoroalkylated substances). We who once pondered the limits to growth must now confront the limits to law. Or at least the limits to existing U.S. environmental laws.
The substances these articles address are overlapping sets: many plastics contain or are made with or from PFAS, although many plastics have no PFAS and many PFAS are not plastics. Not surprisingly, they share traits that have made them intractable. First, both PFAS and plastics are incredibly useful. The articles concede this utility, though both skip over it lightly–particularly Nevitt and Percival, who mainly acknowledge the function of PFAS in aqueous film-forming foam used to fight fires. Second, both PFAS and plastics are incredibly diverse. That diversity seems always to increase as industry invents new chemical structures and new products. Third, both PFAS and plastics create a frightening array of ecological and public health dangers.
The articles unsparingly describe these dangers. Adler and Wells attempt a life cycle analysis of the externalities embedded in plastics, from extraction of raw materials through production processes through product disposal. The task is far beyond the capacity of a single law review article, but even in the broad generalities they necessarily employ, their catalog is impressive. I stopped counting when my list of distinct environmental impacts described in their article reached twenty. Nevitt and Percival focus more tightly on the public health dangers of exposure to PFAS as an environmental contaminant. But their analysis too is really about a life cycle, as PFAS dispersal into the environment can occur at any point from chemical synthesis to disposal of process wastes to use and disposal of PFAS-containing products. For some uses, like firefighting, environmental dispersal is almost the point.
After describing the environmental dangers of PFAS and plastics, the articles dolefully explain how our environmental statutes have not protected us from these dangers. For PFAS pollution, Nevitt and Percival work through the failures of a half-dozen potentially useful statutes: the Safe Drinking Water Act (SDWA), the Toxic Substances Control Act (TSCA), the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), the Resource Conservation and Recovery Act (RCRA), the Clean Water Act (CWA), and the Emergency Planning and Community Right-to-Know Act (EPCRA). For pollution from plastics, Adler and Wells explore the failures of a different half-dozen: the CWA and the Clean Air Act with respect to pollution from production processes, RCRA and CERCLA with respect to waste disposal, and TSCA and the Food, Drug and Cosmetic Act (FDCA) with respect to the manufacture and use of plastics-related chemicals and food-contact substances, respectively.
Interestingly, neither pair of authors blames politics for the failure of existing law to provide adequate protection from known dangers. Instead, both articles tell a depressing story of regulatory slowness verging on paralysis, even when the intent to act seems present. The story is familiar to students of environmental law and administrative law, but the details are still arresting.
Nevitt and Percival, for example, describe the creeping pace of PFAS regulation under the Safe Drinking Water Act (SDWA). EPA in 2009 listed certain PFAS for evaluation, in 2012 required collection of monitoring data for two years, in 2016 issued a non-binding health advisory for just PFOA and PFOS (the two most notorious PFAS), in 2019 announced an intention to issue a binding maximum contaminant level (MCL) for those chemicals, and in 2021 made a final determination to do so. In 2023, too late to be included in Nevitt’s and Percival’s article, EPA published a proposed rule that would set that MCL. EPA has yet to issue a final rule.
Adler and Wells, for another example, assess EPA’s technology-based regulation of water pollution discharges by the organic chemicals, plastics, and synthetic fibers industry. They recount that EPA first promulgated these regulations in the mid-1970s, but after a successful court challenge it took EPA until 1987 to issue new rules. Those 1987 rules remain in effect. Adler and Wells note that the industry (not to mention pollution control technology) might have changed a bit since then.
Adler and Wells offer an explanation for such regulatory stagnation. Required to show that its regulations satisfy the statutory standard, forced to comply with a host of additional justificatory requirements imposed by executive order or by other statutes, mindful always of the likelihood of petitions for judicial review, EPA simply is incapable of keeping up with complexity, change and innovation in the industries it regulates. Underlying it all, they assert, is the free market approach that dominates U.S. environmental law. They observe that in order to mitigate the effects of externalities, this approach tolerates regulation of how industry produces its output and handles its waste, but not regulation of what industry produces.
Nevitt and Percival delve less into theory, but their explanation is similar. They too note the information-dense requirements of EPA’s statutory authorities. They point out that the prevailing regulatory model requires that these authorities be applied to each distinct chemical entity, one at a time. Moreover, they note that the structure of the Toxic Substances Control Act (TSCA), even as amended in 2016, leaves it to the chemical industry to develop and disclose information about the toxicity of its products. This puts EPA in the position of responding to harm caused by PFAS and other toxic chemicals instead of achieving the statute’s putative goal of preventing the harm from occurring in the first place.
In light of their devastating critiques of the efficacy of existing environmental law, the articles’ proposals for reform seem wan. Adler and Wells put their weight behind the Break Free from Plastic Pollution Act, legislation introduced in the U.S. Senate in 2023. The bill is admirably catholic in its mix of regulatory approaches and economic incentives, but even Adler and Wells acknowledge that some of these approaches would face the same constraints that have hobbled existing environmental statutes. Nevitt and Percival praise two bills introduced in 2021. The Filthy Fifty Act would have required study and remediation of PFAS contamination at select military facilities. The PFAS Action Act of 2021 would have required EPA to complete some regulatory actions, including listing PFOA and PFOS as hazardous substances under CERCLA and setting an MCL for these compounds.
None of these bills would provide a solution commensurate with the articles’ description of the challenges environmental law faces in protecting people and the planet from plastics, PFAS, and other problems of similar scale. Of course, none of them became law, either. The reality of the political moment may suggest that it is not even worth thinking about deeper reforms. But if environmental law scholars do not think that way, who will?
These articles get at something fundamental in environmental law. The law assumes that the market knows best until a regulatory agency proves otherwise. The market has given us plastics in vital medical equipment and in disposable drinking straws, PFAS in flame retardants and in fast-food wrappers. Meanwhile, regulators are on their heels, always playing catch-up. Nevitt and Percival float the idea of reversing the burden, requiring chemical manufacturers to demonstrate the relative greater need or lower toxicity of their particular PFAS product.
In concluding their articles, both pairs of authors plead for a more precautionary approach to regulating the environmental and health effects of complex and rapidly-changing groups of industrial chemicals and products. The plea is also a challenge: can we design that approach? That challenge, perhaps, is the most important contribution of these fine pieces by Adler and Wells and by Nevitt and Percival.
Cite as: Steve Gold,
The Limits to Law(s), JOTWELL
(April 30, 2024) (reviewing
Robert W. Adler & Carina E. Wells,
Plastics and the Limits of U.S. Environmental Law, 47
Harv. Env’t L. Rev. 1 (2023).
Mark P. Nevitt & Robert V. Percival,
Can Environmental Law Solve the “Forever Chemical” Problem?, 57
Wake Forest L. Rev. 239 (2022).
),
https://lex.jotwell.com/the-limits-to-laws/.
Jan 31, 2024 Eric BiberEnvironmental Law
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.
