Propping Up Proceduralism

Anti-Democratic Tendencies in Climate Policy Implementation

Propping Up Proceduralism

Last week, the National Academy of Sciences released a report titled “Accelerating Decarbonization in the United States: Technology, Policy, and Societal Dimensions.” It’s a sequel of sorts to the group’s 2021 report, updated to reflect the passage of the Infrastructure Innovation and Jobs Act (IIJA), the Inflation Reduction Act (IRA), and much else. As Stephen Pacala, chair of the National Academies of Sciences, Engineering, and Medicine Committee on Accelerating Decarbonization, writes in the preface, “this policy environment inspired the report we have today, one that focuses on filling gaps between the current policy portfolio and the goal of a fair, just, and equitable transition to net zero, and about how to overcome barriers to implementing this robust and unprecedented set of policies.”

I was surprised that the report, a kind of bellwether of wider climate policy implementation debates, had little to say about today’s topic du jour: permitting reform. Conversations about the National Environmental Policy Act (NEPA), the Federal Energy Regulatory Commission (FERC), the Council on Environmental Quality (CEQ), the Environmental Protection Agency (EPA), the Nuclear Regulatory Commission (NRC), the Jones Act, and other regulatory constraints on clean energy deployment have consumed Washington for years. Congress has taken multiple shots on goal, including the successful inclusion of moderate permitting reforms in the Fiscal Responsibility Act passed earlier this year.

Yet the NAS report mostly urges caution. “If permitting reform includes significant reductions in meaningful opportunities for and forms of public engagement,” the authors write, “then such reform would create a real risk of slowing, rather than hastening, the process of building out a net-zero infrastructure.”

In more than 600 pages, the NAS committee recommends almost nothing about judicial review, standing for litigation, grounds for injunction, requirements for environmental assessments and environmental impact statements, statutes of limitations, categorical exclusions, programmatic review, transmission siting authority, interregional transmission transfer protocols, advanced nuclear reactor licensing, EPA permits for geologic carbon dioxide sequestration, reforms to the Natural Gas Act or the Jones Act or the General Mining Law, or even funding for compliance under NEPA.

That’s not for lack of ambition. Elsewhere in the NAS report, the authors go so far as to recommend “a national GHG emissions budget and an economy-wide carbon tax.” So what accounts for the omission of these more timely, tractable permitting policy reforms within this ostensibly policy-relevant, authoritative document? I believe the report provides a clue.

Buried deep in a chapter on public engagement is a passage I think is worth quoting at length:

Non-governmental organizations (NGOs), including grassroots organizations and national-level nonprofits, play an essential role liaising between the federal government and specific communities, especially communities that do not have the existing capacity to apply for or appropriately utilize available funding. Engagement with civil society leaders can produce decarbonization strategies that represent the priorities and concerns of communities. For example, the Union of Concerned Scientists convened an advisory committee to develop a holistic framework for decarbonization that is equitable and just. The advisory committee identified three core principles for holistic approaches to a transformative energy transition: effectively address the impacts of the climate crisis; advance equity and justice; and drive systemic change…Policy recommendations from nongovernmental organizations about decarbonizing the energy transition need to be reviewed and considered by policymakers at the federal, state, and local levels. The key feature of many reports produced by nongovernmental organizations is a platform that brings together stakeholders to discuss transition pathways, what challenges may arise, and how to avoid or mitigate adverse outcomes.

This passage reflects the rest of the report, which includes little on legal and statutory reforms and much more on best practice for community engagement and “siting process innovation.” Notice the circular nature of the NAS’s justification: NGOs, like the Union of Concerned Scientists, propose platforms that bring together stakeholders, such as “essential” liaisons like…the Union of Concerned Scientists.

I would offer a different way of describing this dynamic, which is that private environmental NGOs insert themselves into public decision-making processes, on the basis of questionable claims to scientific authority and authentic community representation, weaponizing regulatory procedures and obstructing democratically accountable infrastructure decisions.

Let’s consider an example. Project Cyprus, a new direct-air carbon capture (DAC) hub currently under development in Calcasieu Parish, Louisiana, has attracted the scrutiny of grassroots organizations and national-level nonprofits. The hub is funded by the bipartisan Infrastructure Innovation and Jobs Act of 2021, its development overseen by the Department of Energy’s Offices of Clean Energy Demonstrations and Fossil Energy and Carbon Management. In announcing the project, the department describes “detailed risk assessments and risk management plans,” a required “Community Benefits Plan,” and “a robust two-way communication program with local communities and stakeholders to solicit input into the project.”

Yet the media coverage of Project Cyprus has focused on local grassroots and environmental justice opposition to the project. Why the disconnect?

One activist provided an explanation to E&ENews. The Department of Energy has “only engaged with our police, City Council, mayor, you know, the governor,” said Roishetta Ozane, executive director of the Vessel Project, a local Louisiana environmental justice nonprofit. “They have not engaged with community members as of yet.”

According to Ozane’s logic, using funds appropriated by the U.S. Congress to finance a project under the Biden administration’s “Justice40 Initiative” for “environmental justice communities,” including risk management and community benefits plans, and working with democratically elected representatives at every level of local and state government, does not count as “engaging with the community.”

According to the National Academy’s logic, she’s right. The Vessel Project, in opposing the DAC Hub, is simply performing its “essential role liaising between the federal government and specific communities.”

I point this out not to insist that Ozane or any other environmental justice activist be completely ignored, but to make a broader observation about the tension between proceduralism and democratic accountability.

Our democratically elected representatives have invested many trillions of dollars in low-carbon innovation and infrastructure over the coming decades. But in the wake of the IIJA and the IRA, the implementation discourse has over-indexed on procedure: theories of community engagement, innovation in process, and conflicting claims to community representation. The obsession with process is more than evident within the aging institutions of the state itself, what Nicholas Bagley calls “the procedure fetish” or what Jennifer Pahlka describes as “a culture that consistently prioritizes process over results.”

This obsessive proceduralism is the product of the structural nature of the modern American state, which has intentionally or tacitly outsourced much of its own capacity to the courts and, crucially, to the non-profit industrial complex. The U.S. tax code incentivizes philanthropic giving by making charitable donations tax deductible. This has led to the expansion of local and national nonprofits who claim to represent the public interest and perform functions otherwise assumed under “state capacity.” That’s how we got here: American tax policy has produced a system of authority and decision-making in which NGOs do, in fact, attempt to “liaise” between communities and the government. The NAS report reads as a full-throated endorsement of this status quo.

But the status quo strikes me as profoundly anti-democratic. Tax dollars are diverted from our publicly accountable government to an opaque constellation of institutions which—through public relations, “public interest” litigation, and “citizen voice” regulatory interventions—meaningfully determine the outcomes of governmental policies and investments. Not only is the state’s capacity underfunded in this arrangement, but its remaining function is further undermined and captured by the private beneficiaries of its largesse.

Now, statutory permitting reform isn’t everything. Unshackling state capacity may be insufficient for tasks like deep decarbonization. As Jerusalem Demsas wrote earlier this year, “State capacity is downstream of ideological commitments: When we have political consensus, we have state capacity, and when we don’t, we don’t.” Reforming permitting laws, training workforces, and shifting cultures at government institutions may produce underwhelming outcomes if the public remains misaligned on achieving net zero, accelerating a just transition, or however else we define climate action. To this I would simply say that consolidating authority in the environmental nonprofits, which are overwhelmingly populated by progressive environmentalists, is unlikely to generate anything like national political consensus. In this way, deferring decision-making and representational authority to private “liaisons” erodes, rather than sustains, the social license climate advocates claim is essential to climate action.

In the meantime, our existing arrangements do little to settle competing claims to the public interest, as in the case of the Cyprus DAC Hub. When public officials and private advocates disagree, civil society often impulsively sides with the liaisons. Even governmental representatives, whether due to statute or culture, often defer to NGOs’ claims to democratic legitimacy. After all, the government created the tax code, empowered the judiciary to supersede legislatures, passed laws like NEPA, and even created institutions like the NAS that legitimize these contradictions in democracy.

We are unlikely to fill the gaps in our climate ambitions, or any other national goals, without sorting through those contradictions.