While the current process to permit new energy projects tends to be frustrating for both the fossil fuel and renewable energy industries, the devil is in the details when it comes to proposed changes. In this episode, Abigail Dillen, president of Earthjustice, describes her concern that a permitting reform deal negotiated by Senators Joe Manchin and Chuck Schumer will be weighted in favor of fossil fuel interests.
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Text transcript:
David Roberts
As part of his price for agreeing to pass the Democrats’ Inflation Reduction Act, Senator Joe Manchin extracted a promise from Senate Majority Leader Chuck Schumer to pass a "sidecar deal” addressing the issue of permitting reform.
It is legendarily difficult to build anything in the US — including renewable energy, of which there is a terawatt or more waiting in interconnection queues. The fossil fuel industry and the renewable energy industry are both frustrated at their inability to build and there is growing sentiment that environmental laws like the National Environmental Policy Act (NEPA) are part of the problem. Consequently, there is at least some bipartisan interest in reforming the process through which new projects are permitted. The question facing climate hawks is whether the specifics of the permitting-reform deal will benefit one industry more than the other.
The deal was negotiated entirely in private between the two senators, and so far the only glimpse of its contents has been a draft of the legislation released a few weeks ago, so the final contents are not yet certain. What is certain is that, because it addresses regulatory reform, it cannot pass through reconciliation. That means it needs 60 votes in the Senate, including 10 Republicans, as well as the bulk of the progressives in the House. It is unclear exactly what kind of deal could please both constituencies, or if any could.
Many environmental groups worry that the deal is currently weighted in favor of fossil fuels, including Earthjustice, which characterizes the deal as a fossil fuel giveaway that will constrain the ability of vulnerable communities to give feedback on projects that threaten them.
I called the president of Earthjustice, Abigail Dillen, to talk through her reservations about the sidecar deal, her larger take on permitting reform, and her thoughts on how to build the renewable energy needed to address climate change.
All right then. Abby Dillen of Earthjustice Welcome to Volts. Thanks for coming.
Abigail Dillen
Thanks for having me.
David Roberts
We got two separate things to discuss here. One is just the issue of permitting generally, which I want to get to and sort of how we think about permitting and what needs to happen. But more specifically, second, and why I want to start with, this permitting deal that is allegedly coming down the pike. Listeners who do not follow this stuff as obsessively as we do might not be clear exactly what's going on and how this relates to the big other bill that was debated forever and finally just passed. So maybe just set a little context for us, like what is this deal?
What's it going to consist in? How is it going to get a vote? What's going on?
Abigail Dillen
Sure. And I am acutely aware how well your listeners do follow all of this. Everyone bear with me. If I'm saying some things you already know, while the Inflation Reduction Act, the IRA, was being negotiated, Senator Manchin made it clear that what he called permitting reform was a key priority for him. And what he was talking about when he said permitting reform was basically curtailing environmental analysis and public participation to, in his view, fast track energy projects of all kinds.
David Roberts
Which could not let's just make a note here, which could not be in the Inflation Reduction Act because it was going through reconciliation. And you can't change regulations basically through reconciliation. You can only spend money. So he wanted this, but it couldn't be in the actual bill.
Abigail Dillen
Exactly. He couldn't get that kind of policy change through the reconciliation vehicle. And so he and Leader Schumer negotiated what they called a Sidedeal. And I can't emphasize enough the close hold on those negotiations. I know of literally no one in the environmental community who was involved, and we still haven't seen the text of any bill that would be proposed. Senator Manchin's office did leak some text which was watermarked with API's logo, the American Petroleum Institute, and so we have that text to go by. We have also heard, and it's been widely reported, that the deal includes mandated permit issuance for the Mountain Valley Pipeline.
David Roberts
So Manchin's office leaked a draft version of the deal, but we don't know if that's final or what will actually be voted on. And we have reason to believe there's other stuff that's going to be included that's not reflected in the draft.
Abigail Dillen
What's remarkable is how much we don't know. The one thing that I feel very confident about is that the MVP is part of this whole constellation. But if there's other things in play, we simply don't know. The other piece that we have been informed about is that Leader Schumer and Senator Manchin and Nancy Pelosi made a deal to put forward whatever this is going to be in a must-pass vehicle. So that would be the continuing resolution to extend the current budget, it would be the National Defense Authorization Act, or it would be the omnibus at the very end of the year.
David Roberts
So the upshot of that is, if any set of legislators had serious objections to the provisions in the permitting reform deal, they would have to basically threaten to shut the government down.
Abigail Dillen
That's exactly right.
David Roberts
To stop it. It just raises the stakes immensely for opposition.
Abigail Dillen
That's right. That's right. Although it's important to recognize that, for instance, in the CR that would come up before the midterm elections, Speaker Pelosi is going to need to know whether she has the votes to get this important bill through. And so if you had a significant number of folks indicating to her that they were willing to make that stand, she might very well make the calculation that it would be better to pass a clean CR and avoid that kind of showdown.
David Roberts
Which would just bump the issue back to the omnibus.
Abigail Dillen
It might. Or, you know, it might between now and then become clear that it's not possible to pass this deal.
David Roberts
Right? So, yeah, this is like one thing I really wanted to clarify upfront. It's entirely possible for this to fail. There's no must-pass thing here. This is basically something Schumer promised to Manchin. But as we've learned over the last year of negotiations over Build Back Better, it's entirely possible to promise people things and then not do them. We all fondly recall when progressives were promised that if they voted for the Infrastructure Bill that there would be an immediate vote on the major Build Back Better Bill as well. And then you know what happened to that promise? It went up in a puff of smoke.
So this is very much not a sure thing.
Abigail Dillen
Here's how I would put it. It's very much in play. My sense is that Chuck Schumer is committed to honoring his agreement, which was to put this forward and must pass legislation. Of course, he can't determine whether that passes. Nancy Pelosi can't either. I think they are very committed to that. And let's face it, Joe Manchin wields a lot of power even after the passage of the IRA. So I think it's correct for people to be paying a lot of attention to this and worrying that if it's put into a must-pass vehicle, it will pass along with that.
And I think your listeners should know that it's not inevitable by any means, by any means at all.
David Roberts
Another thing that's just worth emphasizing here is these bills that we're talking about, even though they are, quote, unquote, must-pass, are not reconciliation bills. And so do you have to get 60 votes in the Senate? So the trick here is finding some version of this deal that can get ten Republican votes in the Senate and also get the votes of progressives in the House, because the House majority, the Democratic majority in the House is relatively narrow. So a relatively small group of progressives could put this in threat too. So this is like the question I begin with.
Aside from the merits, just what in political reality, what in the political universe could get ten votes from Republicans in the Senate and the votes of all the progressives in the House? That laying odds on these things is silly, but do you imagine such a thing happening? Can you envision that happening?
Abigail Dillen
Well, there's a lot of action in the House right now, and Chairman Grijalva has introduced a "Dear Colleague" letter that already has, as of yesterday, 42 signers. And I think he is leading a growing coalition of people who are very upset about this deal and have feel no onus to vote for it.
David Roberts
Right. They didn't make any promises.
Abigail Dillen
They didn't make any promises. And this is kind of the reversal of the situation of the BIFF. The power is on their side on this one. And so I think you could see any number of scenarios where this can't pass through the House and then on the Senate side, it's always harder to predict what's going to happen over there, although I think it's easier to lock down 50 people on the Democratic side. That said, the Republicans now are not wanting to have anything to do with this. They don't want to give Senator Manchin a win, and they're saying this doesn't go far enough for their purposes.
I think we have to be a little leery whether they would stick with that because this is, after all, something that API has clearly had a hand in negotiating. It gives a lot of gifts to the fossil fuels industry and so it's hard to understand whether the statements that are being made today would materialize in no votes later.
David Roberts
When it comes to it, to me, partisanship is the greatest force in the US. Politics, more even than money, more even than anything else. Like in the end, they hate Democrats and don't want to give Democrats a win on something. And specifically, I think, view Manchin as having kind of screwed them because he said, I'm not going to do a deal. And then they're like, okay, we'll pass the CHIPS bill and then next week he's like, there is a deal after all. And I think the Senate Republicans viewed themselves as having been kind of bait and switched there and are angry.
Abigail Dillen
That's the vibe right now.
David Roberts
Yes, so at the very least it's up in the air and we're not certain. So let's take a step back then and let me just run this by you. I think the sort of growing conventional wisdom in this space is that permitting is a problem. It's difficult to build anything. This has sort of become a cliche now. It's just difficult to build stuff. And given that oil and gas has already built a bunch of stuff and that current sort of permitting laws sort of legendarily like FERC can just approve a natural gas pipeline, but they can't do that for transmission lines.
The current situation seems to favor fossil fuels. So I guess I would just toss it to you. How bad is the permitting status quo in your mind?
Abigail Dillen
It's bad. It's bad if you care about climate and our future, there's a meme now that America can't build things and that's just not true when it comes to fossil fuels. We've built over the last decade the equivalent of 28 keystones. When it comes to oil pipelines, we've built over 100,000 miles. Think about how big this country is, 100,000 miles. It's new gas pipelines. And what really wows me is if you look at our LNG export capacity, as of 2016, it's so minimal and by the end of this year, we will have the most export capacity of any country in the world.
If you look at the EIA graphs of what we're building in all of these sectors. It's pretty astonishing this country can build things. And I think what you alluded to is that we have many laws on the books that actually mandate fossil fuels development. Not only do they facilitate it, they mandate it. And we've run on fossil fuels for the last 200 years really. And so every system we have is built logistically in a regulatory sense to foster fossil fuels. And that's the culture, right, whether you're a regulator or a well heeled investor or part of the gigantic complex that runs the energy world.
And so if you are a relatively new clean energy player, you are up against a regulatory scheme that wasn't built for you, you're up against a culture that doesn't trust whether you can deliver and you're up against convincing investors that you're the future.
David Roberts
Yeah, I think people underestimate the power of habit in these things just we've done things a certain way and that just carries a certain momentum, and all the momentum is behind fossil fuels.
Abigail Dillen
We have to understand this. Earthjustice has a very big energy practice and so we work in all of these commissions all the time. And it's a really interesting moment because there is a dawning recognition that the world is changing and we're going to have to build a whole bunch of clean energy, but there are a whole bunch of people who've never had to do it within the utilities, within the public utility commissions. And so getting to the point where we can even get our minds as a society around of what it's going to take to build all of this stuff and to have the culture behind it is step one.
David Roberts
Right? So the status quo is not good. The conventional wisdom is just it's super difficult to build clean energy for a bunch of reasons. But one of them is the sort of profusion of bureaucracy, environmental review, various kinds of review. I think the conventional wisdom would say environmental review laws were written for positive purposes, but now they're being exploited basically to block a bunch of clean energy. Do you agree that environmental review plays a big role in slowing the building of clean energy?
Abigail Dillen
No, that's not my experience. We have to recognize that every clean energy project requires lots of coordination between local, state, federal agencies. There's interconnection stuff going on. There's transmission planning and rules. There's so many things that go into sighting and approving and building a new transmission project. There's a great new study out from MIT came out in June that looks at 53 big projects from utility, wind and solar to a lot of transmission projects and tries to get at what is at the bottom of what I think we can agree is too slow of build out.
I mean, I will be the first to say we need to build more transmission fast to unlock the full potential of the IRA and just get to where we need to go we have a terawatt of renewables waiting to get into the grid. So I don't dispute the premise that we need to build and that we need to build faster. But I am not seeing good evidence based arguments that it's environmental review and public participation that are the problem. And that's exactly what these MIT researchers found when they dug deep trying to understand what is accounting for stalled projects, delayed projects, and derailed projects.
And I actually think it's worth reading what their two big takeaways are. The first is early engagement with potential local opponents can avoid extended delays or project cancellations. So let's think about this upfront, understand what the problems may be and work through them. At the beginning is their takeaway, and the other is around tribes. Disputes between the US government and tribal nations need to be addressed separately from efforts of public participation. And that's because of so many of the complicated tax schemes. So many of these projects run through Indian Country, and ignoring consultation requirements is a recipe for ignoring really important problems that do need to be solved at the outset.
And this analysis really it resonates with me, given our experience over the last 20 years I've been practicing in this area. It resonates with a really big study the Forest Service recently done. I think that came out in May in in Columbia's Environmental Law Journal that looks at NEPA across the board and what accounts for permitting delays. And what they talk about is, yes, this kind of failure to really engage at the beginning. You have understaffed, sometimes inadequately trained and certainly under resourced agency folks who are checking the boxes instead of really trying to figure out at the beginning what the deal breakers could be and settle them at the start.
And their other big takeaway is this isn't usually a NEPA problem. It may be any number of other kind of permitting hurdles, often at the state or local level. And so their view was actually things got permitted more quickly when you had a NEPA analysis that kind of brought all the agencies together and created a holistic analysis from the start.
David Roberts
All of that sounds like so unsatisfying in the sense that there's not really a big bullseye here, there's not really a single target. It just sounds like challenges and difficulties just sort of scattered across the whole landscape. Local, state and federal, different laws, different kinds of reviews, it just makes reform sound even more daunting.
Abigail Dillen
Well, here's how I've been thinking about it, and in so many ways, the IRA is giving me some hope about how we can do things differently in the future. You have a big pot of DOE money to work with states on interregional planning. You have a very progressive FERC right now that is determined to do this differently. And you have lots of rulemakings going on about how to do transportation planning. We haven't even begun to tap all of the tools that FERC and Regional Transmission Operations organizations and the DOE can use to identify the critical infrastructure we need.
Send a signal to all the transmission operators, the transmission developers, what needs to be done, incentivize it with good rules and cost allocations. We as a country love to piecemeal stuff and skip over the upfront master planning. And the idea that we're going to build on the scale that's needed over the next decade without some folks sitting down together and figuring out how to do this right is, in my view, just wrong. It feels especially misguided at this moment in time to try to derail the one law we have that actually requires the kind of planning that we need at this moment.
And I know we're going to talk about this, but I want to talk about the harm that this bill would do. It's not a fix, but it's definitely a problem.
David Roberts
I just wanted to underline one thing, though. I think you sort of mentioned it, but it's worth underlining, I think, is that the Inflation Reduction Act does have a bunch of money for administrative capacity for doing these reviews because this is a sort of common complaint, is that it's not necessarily the laws themselves that are causing these delays. It's just there's a lot of work to do and these agencies are understaffed and so they are taking shortcuts. And then often in the US, if you take a shortcut, there can be litigation, lawsuits about the shortcuts later which have the perverse effect of extending the whole thing all over again.
So a lot of this is about administrative capacity. Regular Volts listeners know that I'm obsessed with administrative capacity.
Abigail Dillen
It's so un-sexy in many people's view, but it's so essential, right? And just to put a fine point on what you were saying, we've seen progressive defunding of the agencies that need to do this work. And so the injection of this kind of money that we haven't seen in years or ever has the potential to be totally transformative. We're going to have to put it to work and change in the culture in these agencies. Like if you're working at the BLM, chances are you're working in a field office that bases your performance review on how many drilling permits you process, not on how well you're thinking about how to site new renewables projects on public lands.
David Roberts
Right. Or as you say, how does this or that project fit into some sort of larger plan, right? Some sort of larger national strategy? It would be nice to have one, but it would be nice if BLM was like making decisions, not just ad hoc, project to project, but if there were some sort of rational blueprint.
Abigail Dillen
Exactly. And that's what NEPA has in mind. You can do a programmatic analysis and then the permits must adhear to it with much more expedited analysis. If you're actually keying back to a well thought out plan, and if that well thought out plan has had real public engagement and buy in, then you're in a completely different world than we are in now.
David Roberts
The status quo is bad. Lots of reforms need to happen. Let's take a look then at the sort of draft that has leaked. And we don't really know if that's final or how close to final it is or whether it's changed since then, but it's all we have to go on. So let's go on that. So what does the draft bill specifically do specifically in regard to NEPA? The National Environmental Protection Act?
Abigail Dillen
So it does two big things. The first is it cuts the people who will be most impacted by a new wave of energy development out of the process. And most of all, it cuts out folks who are at the very front lines of fossil fuel development. So when I was talking about all of those new pipelines and LNG terminals and I didn't even mention all the petrochemical build out in the cancer alley of Louisiana and Texas in the toxic corridor of the Ohio River, valley. Those folks rely on NEPA to be able to know about what's coming, to be able to have a voice in what happens and to be able to oppose it.
And they are doing so very successfully. And the reason why we don't have even more development, particularly through the Trump years, but it's continuing in the Biden administration, is because of folks who are making a stand for their communities and saying, we don't want to live this way anymore. We don't want to die too young. We don't want our kids to be sick. We don't want to have cancer and heart attacks. We want to partake in the new energy economy, the exact economy that the Bipartisan Infrastructure Bill and most of all, the IRA are saying that they want to create in this country.
But the IRA also really entrenched the role that fossil fuels will have in regions of our country that, by the way, real politically problematic regions as well, West Virginia. So obviously, what does it mean though.
David Roberts
When you say it cuts the mouth? What does that mean specifically?
Abigail Dillen
So it dramatically shortens the timeline for getting involved. The most important moment is when the agency issues a draft EIS and it tells you what the project is. It's supposed to disclose the impacts. It's supposed to tell you whether there are alternatives that might make it better and that have been well considered. And these are very complex big projects when we're talking about the energy space. This would make it 60 days maximum for you to even find out about this, find technical assistance, maybe a lawyer like us to get your comments in. And by the way, you have to get those comments in in order to be able to challenge anything about the project that's really problematic in court later.
Any other document you would have maximum 30 days and it gives the agency pretty arbitrary and fast deadlines no matter how complex, how harmful the project is. And so I think the idea is to just say we are making NEPA a paperwork exercise. There'll be some documents out there but this schedule will be completely dependent on what the project developer wants and we're going to get it done hell or high water.
David Roberts
My understanding is it does not actually amend NEPA. It does not actually change NEPA law. It says it encourages shorter review periods, try to get them done in one to two years. But my question is, is there enforcement mechanism for that? Is that in statute or is there any consequence if the review goes longer than two years?
Abigail Dillen
So it doesn't amend the statute. But like so many federal laws, how the statute works is pursuant to regulations. And this creates a new regulatory framework for a gigantic array of projects. Anything that has anything to do with producing, transporting, storing, generating energy, anything that has anything to do with critical minerals, mining and importantly, all mining. It doesn't even have to be energy related and certainly anything that has anything to do with carbon capture and sequestration and hydrogen, et cetera. So this is a big swath of projects that is being put into a different scheme for environmental review and public participation.
So it's not right to say it doesn't change how NEPA works in practice. It absolutely does.
David Roberts
Is this an encouraging thing or is this a forcing thing? In other words, is there any sense in which you have to do the review in two years?
Abigail Dillen
It ports to be a forcing thing. You can make a showing of good cause, which is hard to make, or you could get the developer's authorization to go longer. You can imagine how that might go. You can apply to the court for more time. For instance, at the back end, say Earthjustice brings a case challenging like a gigantically sale, for instance, as we have done successfully. And the court says you haven't done any climate analysis that's meaningful. This would require the agency to come back in a very short time period with new analysis. In the big cases that we win, you can't fix the problem that quickly.
So in that instance the agency might be able to convince the court to give it more time. But you're in the box of having to ask.
David Roberts
It seems like if it's just the timeline is shortened but all the other sort of requirements are the same. It seems to me like one thing rushing might do is just produce a bunch of justiciable errors, you know what I mean? Like a bunch of mess ups that you can then sue over which will again have the effect of extending the whole thing. I mean, Earthjustice can still sue if they take shortcuts or fail to do things that the law requires even if they're doing so because they're trying to go faster according to this law.
Abigail Dillen
Exactly. It's the opposite of derisking a project. And in the meantime, you may have missed an opportunity to do something better. I mean, I'll give you an example, a very iconic one. The Dakota Access Pipeline was originally meant to be cited around the city of Bismarck, which is an almost all white town. And so someone had the idea of running it through the Standing Rock Sioux Reservation, across the water source for the tribe. There was no consultation, there was some checking of boxes, and there was no real analysis of what that would mean if that pipeline had been cited somewhere else.
I don't think it would have become the seminal fight that it was.
David Roberts
But just squeezing the timeline doesn't necessarily ensure shorter processes. Right? Yeah.
Abigail Dillen
Opposite.
David Roberts
It might just be sloppier processes followed by a bunch of lawsuits.
And winning lawsuits because the process will be bad. It also engenders so much mistrust in the community around whatever project there is, because no one has the ability to deepen understand what's being proposed, the information, much less comment on it, make the project better. So in the context of a renewables project, what the MIT study found is if you're able to meet the objections that people may be having, they're not always evidence based. If you're willing to give the information, be transparent early, work through some of the sighting issues that can be worked through, you may avoid all of the political consternation and the litigation at the back end.
That piece in Vice recently, Aaron Rogers, that's not his name ...
Gordon, I think.
That's the quarterback. Thank you, Aaron Gordon ...
Abigail Dillen
It's so good. It's such a great piece.
David Roberts
Very different Aaron. makes the point that a lot of these reviews go through on perfectly normal timelines, and it's a relatively it's a particular set of cases that end up taking a long time, and those sort of distort the view of the overall operation. But it is possible to get through NEPA review in a timely fashion.
Abigail Dillen
Absolutely. To be clear, the litigation side of this Forest Service study I talked about was really remarkable. Of all the decisions they make, 50,000 NEPA decisions every year, 0.22% are challenged. Less than 1% is what I'm saying. And the conclusion that the authors made was that folks pick their battles well. They litigate over things that are very problematic and unlawful.
David Roberts
But somewhat countervailing. It does seem like this huge infusion of money from IRA into these agencies, into this administrative capacity, could enable faster movement, right. It's not like we're just squeezing the timeline and doing nothing else. We're squeezing the timeline, but also bulking up the agency capacity.
Abigail Dillen
Yeah. I think the point of NEPA is that there should never be a one size fits all approach to environmental review, and we need to take some good time at the outset so we can move faster. Once we've decided what the right course of action is. And the other piece that I don't want to lose is a lot of the way that this permitting conversation is going forward is kind of faceless is premised on this idea that real people's lives don't matter or aren't involved. And I've heard people discuss public participation in these very abstract ways.
And as someone who represents real people who are facing very real impacts and most often pollution impacts in their backyards, we need to step back and recognize that we are not through the era of building gigantic new fossil fuels projects. We are in a boom. And that boom is landing on top of people who've lived through many previous booms. They have to be part of deciding what the future is. This is not the time to be curtailing NEPA analysis. In fact, I would be the first person to say we do need one kind of permitting reform.
We need to make NEPA work better so that we don't keep citing the most polluting facilities on top of the communities that can't bear any more pollution. Why do we have the ports of LA and Long Beach as they are? Why do we have a "Cancer Alley"?NEPA is failing in those ways. And so the permitting reform we should be talking about and what Chairman Grijalva is now talking about in the House is the Environmental Justice For All Act. And what that would do is make it very clear what kind of upfront analysis you need, particularly when you're dealing with an environmental justice community.
And I think that would give a lot more certainty to people who want to develop projects. And most importantly, as a society, it would make sure we're directing what could be enormous benefits, health and wealth benefits from the IRA to the communities that need them most.
David Roberts
It's also of immense benefit to those same communities to build more renewables and transmission and reduce particulate pollution and reduce climate pollution just as they suffer disproportionately from the effects of those they benefit disproportionately when those things are reduced. So obviously, from our perspective, from the sort of perspective of the climate community, I guess what you'd want is to make it more difficult to build big polluting fossil fuel facilities and easier to build clean energy infrastructure. One way to do that would be to integrate climate considerations into NEPA. But they just voted that down in the Senate not long ago and guess who voted against it?
One Joe Manchin. So yeah, it's a very difficult line to navigate.
Abigail Dillen
Yeah, I mean, two reactions. One is if we want to dial down fossil fuels as fast as we possibly can and the physics tell us that's what we have to do and we want to ramp up clean energy infrastructure as fast as we can, this side deal is exactly the wrong bill. The other reaction is NEPA is a capacious law. It allows you don't need an express authorization to consider climate. We can do that. If we do these analyses right, FERC can infuse climate and societal benefits in its rules that then can be adopted by the regional organizations and the state.
So we do have tools to do this if we can summon the political will.
David Roberts
One thing I would push back on, though, is at least on the merits of this Sidecar Bill, is there's a whole section of it on transmission that sort of more squarely puts FERC in the driver's seat and at least the people I talk to in the transmission community say that that would be transformative, that would be huge. That would unlock a bunch of transmission projects, which, as we agreed at the outset, we desperately need if we want to continue building more wind and solar in the rest of it. So it doesn't seem like this Sidecar thing is purely for fossil fuels.
Abigail Dillen
Well, let's look at its provenance. This was a negotiation initiated by Senator Manchin and we haven't even talked about some of this deal yet, I'm realizing, Dave, so we should talk about what it requires the president to push, including fossil fuels projects. But there are some provisions for transmission and it absolutely makes sense to recognize and encourage more transmission for clean energy. But framing this bill as sort of we could live with a few pipelines in order to ramp up clean energy transmission and that's kind of the argument I'm hearing now is very misguided. First of all, it's myopic about the gigantic swath of projects that this deal applies to.
So we're not just talking about MVP, which is bad enough, we're talking about a whole swath of fossil fuels projects. So when we talk about what are you trading, this isn't a few gas pipelines for a new wave of transmission. And it's not the case that these provisions would be a fix for what are really slowing new transmission down. They would give FERC some more authority to mandate critical projects. But there are tools in the toolbox to identify those projects and incentivize them now. And there are developers who are waiting and wanting to develop those projects.
What we need to do is get at the other problems that make it including interconnections, that make it hard to get these projects built. So I don't think it's a fix for the current underbuild that we're seeing. And the costs across a whole swath of new fossil fuels projects will be so high, especially to people who have to live beside them.
David Roberts
It singles out the Mountain Valley Pipeline, does it not? I mean, is there something in there specifically about the Mountain Valley Pipeline and if so, what?
Abigail Dillen
So there's nothing in the text we've seen but what we have heard. What Senator Manchin has said is that there is a deal to legislate permitting for the Mountain Valley Pipeline. So this would specifically legislate a particular project, which is a really unusual and bad thing for Congress to do, particularly when the courts have said that these permits have issued unlawfully and then it beyond that really puts a thumb on the scale for what Joe Manchin might call an all-of-the-above approach. So it requires the president to designate 25 projects of strategic national importance and many of those would have to be fossil fuels projects.
Many more would need to be CCS projects, new mining projects, and hydrogen projects. So you have a deal which basically enshrines the role of fossil fuels in the energy mix for years to come.
David Roberts
I've asked around about this and as far as I can tell, the consequence of designating special presidential approved projects is very little. I mean it puts a little bit of the presidential bully pulpit behind it. It says the president thinks this is important, but as far as I can tell there's no statutory or regulatory consequence of that. It just says these projects are special. Like not much follows from that. Am I wrong?
Abigail Dillen
I think you're wrong. I think it does exactly what you and I have been talking about. It tells the president to identify the 25 projects that are going to get the kind of attention, funding, agency, Oomph that would make all of the projects we want go faster. And it sends a signal to investors that this is a presidential priority. It's going to happen. I think there's a little bit of keystone angst at play here. It says a president isn't going to come in and decide to disallow any of these projects that have become a priority. And by the way, it ensures that once you've designated them, the president cannot undesignate them.
If the project proponent decides they don't want to do it, fine. But what what I think it does is put the full soft power of the White House and, and all of the agencies behind 25 big, high-profile $250,000,000 more projects. And it says investors, come on in. This is a bullseye. These things are the ones that are going to get done and they're going to get done expeditiously.
David Roberts
But they still have to go through the process. All the opportunities for lawsuits and opposition and whatnot are still there.
Abigail Dillen
100%. But we're at a late stage in the climate emergency. Do we want President Biden or any president after him putting the full power of our agencies behind a swath of fossil fuels project?
David Roberts
Well, what about this larger argument which I'm sure you've heard and I've heard from a lot of sort of the clean energy supporters of this. The idea is what the larger forces that dictate what gets built and what's not tend to be economic. And right now the economic winds are shifting toward clean energy. There's a ton of stampede of interest in clean energy. So insofar as you make it easier to build everything, clean energy will disproportionately benefit simply because more people want to build more clean energy. And that's the way the finances and the economics are going and that there's just not going to be a ton of interest for long in these large fossil fuel projects.
What do you make of that argument?
Abigail Dillen
I think the financial signal is so much muddier than that. I mean, first of all, the war in Ukraine is creating enormous demand for new fossil fuels projects, and we don't know how long that may continue. But even putting that major event to the side, fossil fuel companies do not want their assets to be stranded. We're the biggest oil and gas producer in the world. We've got some of the biggest coal reserves in the world. They're trying to figure out what the future is, even as they know energy demand is going to go down. And that's why we're seeing a massive build out of petrochemical facilities.
I think the Exxons, and BPs, and Shells were willing to get behind the IRA because they're excited about the future of blue hydrogen. I think they're excited about potentially using CCS to supposedly green fossil fuels projects. Of course, the utilities want to extend the life of some coal plants, so the age of fossil isn't over yet. I firmly believe that clean energy is going to outcompete fossil fuels and that we have a pathway to make them obsolete. I think the IRA is one of the most exciting catalysts that we could have to make that happen. But given the time frame, we've got to be pushing against fossil fuels at the same time as we're pushing forward on the clean side.
And I don't think we can wait for the market to solve this.
David Roberts
I'll just ask it straight out then, because I've heard a variety of different answers to the questions. But what's your sense if this permitting reform deal goes through as written in the draft? What is your general sense of the balance of what it would enable, the balance of what would get built? Because I've had people, you know, Jesse Jenkins and the other modelers at MIT and so forth will say lots more clean energy will get built than fossil fuel energy. But you have a different view or not?
Abigail Dillen
I have a different view. And my view around this side deal I'm not talking about the IRA necessarily, but what this side deal would do, in concert with the new incentives for fossil fuels, is make the status quo worse. What we have now already favors fossil fuels. This makes it harder for the communities that are currently pushing back on new fossil projects, and winning makes it harder for them to do that. And I don't think it fixes the problems that are slowing down transmission and clean energy. We're going to have to fix those problems somehow. But this isn't the bill that does it, and it makes the current leverage that fossil fuels has greater.
And so I hate to disagree with Jesse Jenkins on anything — and I enjoyed your epic multipart pod with him — but one thing that I felt that my experience tells me is that folks do not make rational decisions about how to make and use energy. And the entrenched power of the fossil fuels industry is such that we will enable any number of boondoggles to keep those players in the game. And so we have to keep every ability to push back on continued investment in fossil fuels while we're paving the way for clean energy.
David Roberts
Okay, well, we're running short of time. I have two concluding questions and I'm going to try to uncharacteristically actually only ask two concluding questions instead of asking a series of ten final questions, as is my habit. One is if Earthjustice doesn't like this deal, at least what we think this deal is, what is your positive agenda for permitting reform? What would you like to see happen? Since we agree a. that we need an enormous historic, unprecedented build out of infrastructure, transmission lines, power plants, et cetera, et cetera, et cetera. And two, the status quo makes it very difficult, not to say impossible, to engage in that massive build out, certainly on the timescale necessary.
So something needs to change. What is your positive agenda for permitting reform?
Abigail Dillen
Step number one let's pass the Environmental Justice For All Act so that we undertake this massive new build out for the first time in history in a way that's truly equitable and we deliver the benefits of a new economy to the communities that need it most. Number two, we focus on all the rulemakings that are underway and need to be underway at the FERC to make transmission projects interconnection go more smoothly, that we use all the money that's in the IRA and the full power of the DOE to convene all the players. And these are regulators, these are government players, these are industry players, these are environmental folks like us. Let's bring it together to do some true regional and interregional planning to figure out how we make this new grid of ours actually work and get the buy in for it.
Let's confirm a great commissioner to the FERC to make sure we're not in a two-two voting problem. And we've never seen what you could do with NEPA, what you could do with the CEQ that creates interagency coordination with real budgets and real staffing. And we had that opportunity for the first time. So I would like to move away from a conversation about gutting bedrock environmental protections that are a light to the world of how you think about the environment in a responsible way. Let's stop talking about that and let's start talking about how we resource government to do the planning and the convening that we need to build out a whole new world over the next decade.
David Roberts
And you think all that is possible within the current statutory confines of NEPA?
Abigail Dillen
Well, I certainly don't think we need to change NEPA.
David Roberts
What about all the state and local? Because as many people have pointed out, the federal permitting governs what happens on federal land, but probably the bulk of this build out is going to happen on private land. So it's state and local stuff. Do you think state and local stuff needs shaking up and reforming?
Abigail Dillen
Yes, I think there's too much of a patchwork. And so you can be complying with one set of county regulations and one set of state regulations and then find yourself in trouble even within a different county in the same state. And that's one of the findings in the MIT study as well. So I think the harmonizing local and state regulation and most of all getting these regulators to work well together is really key.
David Roberts
What about just federalizing, some of it? What about putting like federal sort of at least outlines to sort of confine the amount of variation? Or are you still a fan of local and state autonomy and control?
Abigail Dillen
We're having a lot of exciting conversations with renewables developers and thinking through what could be done in the Federal Power Act or what could be done to bring every state up to the level that they need to be. And so that's the conversation I want to have. I want to stop being mired in the idea that environmental review is the problem as a society. Do we really not want to think about environmental impacts as we're trying to address climate change and extinction crisis? I hope for your listeners the answer is no. It's an unproductive, unconstructive conversation.
And maybe the silver lining, so long as this bill does not pass, is that is beginning to spur a more generative conversation that isn't about cutting communities out of the process, but is about leveling the playing field. And more than that, actually help giving the same leg up to renewables and clean energy that fossil fuels have enjoyed for time immemorial.
David Roberts
but accelerating, right? I mean, you agree it's all too slow. We agree it's all going too slow with you. Okay, final question. It's easy, at least for people like us, to sort of say fossil fuel is bad, clean energy good. Indeed, I've been saying that for decades now, and it's true. But there are more difficult questions around clean energy itself. There are instances where local environmental groups are fighting against clean energy projects because of worries over particular habitats or particular kind of trees or particular species under the Endangered Species Act, et cetera. And I just wonder, do you think that the climate community is going to have to come to terms with some trade-offs, have to make some sacrifices on other environmental priorities in order to support this build out at the speed and scale necessary?
In other words, how do you think about those trade-offs? Do you think they exist and do you think they're worthwhile? That's a very big question by the way.
Abigail Dillen
It's a really big question. Right. And I will say at Earthjustice our energy work has really been focused on preventing new investment in fossil and compelling investment in clean. So we've had the privilege to work on getting new offshore wind sited off the coast of Maryland, amazing projects that are about building stuff, and that's where I think the environmental movement needs to put their energy. And I'm also aware that climate is one dial on the dashboard that's flashing red and saying, "humans, your days are numbered." We're also dealing with a biodiversity crisis, and we have to think about how we protect land and water and ecosystems in this country.
And so I keep coming back to this idea that I would love to see the human race rise to the challenge of actually doing some planning for a change.
David Roberts
Well, let's not see the human race. Let's cop that the US is particularly resistant to that, because, as you know, that is socialism when you plan.
Abigail Dillen
Yeah, I think we could get to results that avoid sacred spaces and lands, results that protect very critical habitat, and results that build out a clean grid that we desperately need as fast as we can. And what I hope we can agree to do is undertake the thoughtful planning that requires. The failure to do so is going to land us where we are now, which is not moving fast enough and.
David Roberts
Backing our way into the future.
Abigail Dillen
Yes.
David Roberts
Bumping against the furniture.
Abigail Dillen
Exactly.
David Roberts
All right, Abby, thank you so much for coming on and discussing this. And as we said at the beginning, it is just wildly up in the air. What is going to become all this? I thought once IRA passed, I was like, finally, at least this persistent perpetual uncertainty and anxiety is done. But no, here we are right back in it, at least for a while longer.
Abigail Dillen
Well, this is really important, and it really matters to a lot of real people. So I'm so grateful to you for taking the time to talk about it.
David Roberts
Thanks, Abby, and we'll keep in touch.
Abigail Dillen
Great. Thanks, Dave.
David Roberts
Thank you for listening to the Volts podcast. It is ad-free, powered entirely by listeners like you. If you value conversations like this, please consider becoming a paid Volts subscriber at volts.wtf. Yes, that's volts.wtf so that I can continue doing this work. Thank you so much, and I'll see you next time.
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