The Associated Press reports that Democrats will make Clean Energy a part of their push to lower costs for voters.
Broad pushes specifically branded as climate initiatives might fall to a Presidential veto, but important work can be done with Republican support, and an important component will be to pass Permitting Reform, which has been making its way through Congress in recent months. A bipartisan bill could be passed yet in the lame duck session before new lawmakers hit town in January.
The bill is huge, and basically takes on some of the red tape and bureaucratic processes that have stalled projects dear to Democratic hearts, like grid transmission and offshore wind, but would also make permitting fossil fuel infrastructure, pipelines and Data Centers easier. That’s where the friction arises.
Climate champions like Senator Sheldon Whitehouse and Senator Martin Heinrich have both come out in favor of the compromise – their view is that given something approximating a level playing field, renewables will win out.
Last week the Sierra Club came out against the bill in its current form, arguing there are some fatal overreaches in the way the bill weakens some environmental protections.
Sierra Club lists “Green Flags”, and “Red Flags” in the bill:
Three Green Flags
Provisions in this bill would make long-overdue changes to protect consumers and level the playing field for proposed transmission so it would no longer be harder to build a multi-state transmission line than a methane gas pipeline.
- Transmission planning: For the first time ever, this bill would require regional grid operators to plan together, with a focus on reliability and affordability. It would create more efficient planning processes that run in parallel, which will lead to clean energy getting on the grid faster and fewer canceled projects, especially for the big, interregional lines that we need but are often undervalued by individual states or regions.
- FERC backstop authority: We will finally give the Federal Energy Regulatory Commission authority to approve critical transmission lines if state processes fail to conclude after one year. Currently, multi-state transmission lines can often take more than 10 years to be planned, approved, and built. This would speed up that process, unlocking more clean energy, preventing states from exercising vetoes over critical infrastructure, connecting the areas where renewables produce electricity with the population centers that use it, and ensuring a more affordable and reliable grid for everyone. The Natural Gas Act streamlined interstate gas pipeline permitting at FERC many decades ago. It is long overdue to bring interstate transmission into closer alignment, especially as demand for electricity grows.
- Ratepayer protection: BAAJA would require data centers to pay the full cost of connecting to a grid, as well as the cost of using the grid, to ensure that regular customers won’t be stuck footing the bill. This is a meaningful approach to ratepayer protection that goes further than just paying for the incremental new infrastructure but also the costs of the existing grid that we all use.
Four Red Flags
It will be no surprise that we are concerned with the many ways BAAJA weakens environmental laws. It’s not simply that changes are suggested; there are actually some we think will, on balance, provide the kinds of certainty and speed that are missing from current permitting processes. But BAAJA does not just contain mere procedural adjustments. It includes the hollowing out of court authority, ever-higher burdens for states to protect their natural resources, and far-reaching consequences for the ability to govern energy infrastructure in the future.
- Eliminating the power of the Courts to act on legal violations: As written, BAAJA would make it harder for communities to provide input or challenge dangerous projects that could directly harm them. The most concerning changes to both the National Environmental Policy Act and the Clean Water Act are new restrictions on the power of the courts at a time when they have proved to be a necessary backstop to a lawless administration. BAAJA would limit the court’s powers to stop a project that was allowed to move forward on the basis of an unlawful environmental review or faulty clean water act analysis. Thus, even if the environmental review was unlawful, the project would not be stopped, essentially rendering the environmental review process unnecessary as a prerequisite for construction.
- Removing states’ ability to protect their own waters: Currently, under the Clean Water Act, states have the power to say no to projects that would cause harm to local water quality, including sources of drinking water. BAAJA would limit states’ ability to protect their water quality by forcing them to rush these reviews and by shifting the burden to the state to demonstrate likely harm and the least burdensome mitigation, rather than requiring the developer to show that they won’t do damage.
- Handing endangered species consultation to states: The Endangered Species Act is one of the most successful environmental laws on the books, preventing 99 percent of listed species from going extinct. A key to that success is Section 7 of the law, which requires that a federal agency or permittee consult with US Fish and Wildlife Service, National Marine Fisheries Service, or National Oceanic and Atmospheric Administration when it funds or carries out an action affecting threatened or endangered species. This process is essential to ensuring an action does not jeopardize listed species and informs necessary steps to avoid or minimize impacts to species. Handing this process over to the states could have disastrous consequences, as state wildlife agencies often lack the required staff, funding, and expertise to undertake a federal consultation. Congress deliberately and expressly created Section 7 consultation as a federal process, and a state assumption program would only increase inefficiency and open up consultation to politicization.
- Permitting “certainty” at odds with environmental standards: Provisions of BAAJA aim to create certainty in permitting, which is a laudable goal in the face of permits and approvals revoked and stalled for clean energy projects, including those under construction and nearly complete. While these provisions may prohibit the Trump administration’s ability to revoke future permits for clean energy projects, they do not address projects already revoked and we fear these provisions could result in project lock-in for dangerous projects that receive a rubber stamp. BAAJA creates benchmarks against which to evaluate permitting discrimination, but it starts from a status quo that is deeply hostile to clean energy and favorable to fossil fuels, and creates pathways for new legal challenges by energy developers that allow for damages that can easily total billions of dollars that would be paid by taxpayers.
Former DOE official Jigar Shah supports the bill as is, advising take the bird in the hand, and making adjustments later as needed.
Today, the Senate is set to hold its first procedural vote on the Bipartisan American Affordability and Jobs Act. It was introduced in September by Democratic Senators Martin Heinrich and Sheldon Whitehouse and Republican Senators Shelley Moore Capito and Mike Lee. It must clear the threshold of 60 votes in the Senate to move on to the House. If it doesn’t clear both chambers by January 3, the process starts over.
At its core, the bill helps get clean energy on the grid, unplug the interconnection queue, and address high electricity prices. It would speed up approvals for energy and transmission projects and make it harder for federal agencies to pull permits once they’re granted. It puts deadlines on federal environmental reviews, gives opponents 150 days to sue instead of five years, hands the federal government a backstop for interstate transmission, and bars utilities from passing data centers’ grid costs to consumers.
There’s plenty of speculation about how the Senate will handle the vote now that powers have shifted and we’re in a lame duck session. Will outgoing Republicans still feel motivated to vote in its favor? Will Democrats prefer to cut their own deal in the new Congressional session? House Minority Leader Hakeem Jeffries has said the bill falls short and that he won’t rubber stamp it without changes if it makes it to the House. At least seven Democrats or Independents must join Republicans for it to even make it to the House.
My answer: Don’t trade a durable statute for a hope that next year is easier. As written, the bill targets many of the pain points clogging the grid and raising costs. With the big gains from Democrats in the election and a possible trifecta in 2029, they can improve the bill in the future. Giving voters what they’re asking for starts with passing this bill and its common sense measures.
The example that the Bill’s supporters often point to is Texas, where permitting friction is very low – and renewables are blowing fossil fuels out of the water.