Permitting Reform For Me and Not For Thee

Over the last several years a coalition of Republicans, centrist Democrats, and clean energy and abundance advocates have pressed the case for reform of the National Environmental Policy Act. Opposition to reform has predominantly come from progressive environmentalists—mainstream environmental and climate NGOs, the environmental justice movement, and progressives generally skeptical of regulatory reform of all sorts. Their primary argument has been that making it easier to build clean energy projects would also make it easier to build fossil energy projects. While some opponents insist that no change to NEPA is necessary, many others argue that only reforms that apply solely to renewable energy projects are acceptable. Loosening the rules for wind, solar and transmission projects, they acknowledge, might help accelerate the energy transition. But those benefits aren’t worth it if permitting reform for fossil energy projects comes along for the ride.

With President Trump’s day one executive order pausing all permitting for renewable energy on public lands until a full assessment of their environmental impacts has been completed, the shoe is now on the other foot. Trump’s executive orders declaring a national energy emergency attempt to sweep away procedural obstacles to the siting, construction, and operation of all energy infrastructure with two notable exceptions: wind and solar energy. At the same time, Trump’s executive orders on wind energy and renewable energy on public land propose to apply still more environmental review to these projects.

As NEPA defenders worked assiduously to kill bipartisan permitting reform in the last Congress—which in most iterations would also have eased restrictions on interstate transmission that is critical to the growth of renewable energy—few seem to have anticipated that not only would Trump attempt to get rid of permitting obstacles for fossil fuels but that he would simultaneously seek to increase environmental permitting obstacles for renewable energy. But that is exactly what he has done. Like environmentalists and Democrats before him, Trump proposes to apply environmental proceduralism selectively, using it to obstruct deployment of energy technologies and infrastructure he dislikes while seeking to expedite or eliminate environmental review for projects he favors.

This is possible because, like it or not, all sources of energy have environmental impacts. Fossil fuels bring climate change, air pollution, and local impact associated with drilling. Wind, solar, and biomass require large land use footprints and material inputs, which impacts local environments in a variety of ways. Nuclear has long lived waste that must be disposed of.

All, to varying degrees, have substantial upstream impacts from mining and processing fuel, critical minerals, and other materials. And all of that can be weaponized through environmental review processes to block or delay energy technology and infrastructure that different actors across the political spectrum oppose. If there was ever any doubt that NEPA and other environmental policies would not be used predominantly to block only fossil energy infrastructure, those doubts should be answered. Environmental proceduralism is an equal opportunity tool for obstruction.

The idea, meanwhile, that the last Administration and Congress, much less this one, would do goldilocks reform, only fixing the problems that environmentalists, clean energy advocates, and the climate movement were concerned about, was always fanciful. Just as a simple matter of politics, reducing the permitting burdens for clean energy was going to require fixing those burdens for everything—not just fossil infrastructure but things like transportation, forest management, and mining. Moreover, the days in which NEPA and other legacy environmental laws were used exclusively by environmentalists to stop things that were bad for the environment are long gone, if they ever existed. Even in that mythical past, those tools were often used to block things like nuclear power plants, rail projects, and housing that were clearly, on balance, good for the environment.

Beyond the obvious political and policy problems, attempting to shape the energy system by executive fiat while giving private interests powerful legal tools to obstruct public policy-making is also fundamentally corrosive to democratic governance. As our colleagues Seaver Wang and Jonah Messenger have documented in recent months, Trump’s wind energy pause should be opposed for the same reasons as Biden’s LNG pause. Both capriciously seek to “reassess” environmental impacts that had already been well characterized in service of culture war pandering to influential constituencies.

More broadly, preserving environmental proceduralism through laws like NEPA fundamentally undermines democratically accountable, deliberative policy-making. Presidents, Senators, and Congressional representatives get elected by promising to deliver the goods. Democratic governance, in the simplest terms, is the process of all those policymakers promising to do things, winning elections, and then deliberating, negotiating, and ultimately attempting to enact policies that reflect those promises. In theory at least, policymakers vote on those policies and when their constituents like the outcome they get rewarded and when they don’t they get punished.

Say what you will about the trend toward governing by executive order rather than legislating, but those orders, at least, often reflect things that Presidents got elected to do. Biden campaigned to “build back better” after the Covid pandemic and fix climate change in the process. His executive actions and legislative agenda reflected those priorities. Four years later, voters decided they didn’t like the outcome and decided to give Trump another go. Trump ran on ending the LNG pause, maxing out oil and gas production, repealing the IRA, and notably, blocking wind projects. We’ll see how voters feel about that four years from now.

The constant toggling back and forth between one set of energy policies and another at the executive level is, ultimately, no way to run a country, nor to achieve either energy dominance or effective climate mitigation over the long term. But it at least has some level of democratic legitimacy. Elections have consequences and the people who win them have significant latitude to implement their campaign platforms.

The weaponization of NEPA and other procedural tools, by contrast, reflects no similar public sentiment or deliberative choice and, to the contrary, frequently undermines choices that democratically elected policymakers have made. It breeds cynicism about government and undermines state capacity to deliver public goods that have broad public approval and that Congress has determined to direct public resources towards.

That doesn’t mean that there aren’t important policy questions that require democratic deliberation—about how to weigh the climate and other environmental impacts of different energy technologies, what sort of energy system we want, and how the economic and environmental costs of those decisions ought to be accounted for. But the proper venue for that is via legislative deliberation and executive action at the behest of democratically elected and accountable policymakers, not through layer upon layer of agency proceduralism, public comment, and community engagement—with private interests then empowered to relitigate those processes through the courts.

We will see how Trump’s wave of executive actions, along with Congressional efforts to repeal the IRA play out in the coming months. But what should be clear is that defending the permitting status quo has already brought substantial negative environmental consequences and scorched earth resistance to reasonable reform in the last Congress has made it harder for Republicans to stand up for technology-neutral and evidence-based permitting reform in this Congress.