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On an NRC acceptance, Deb Haaland’s rejection, and Texas’ win over Chinese solar
Plus, one big opportunity for climate change.
Endurance Energy hoped its generator would run for a full year, but the team isn’t afraid of the “error” in “trial and error.”
Rob talks with Peter Erickson, an affiliated researcher at the Stockholm Environment Institute
So long, NEPA. Hello, APA.
A bipartisan group of senators proposed major reforms to the country’s environmental laws last month in an effort to speed up the federal approval process for energy projects of all kinds. If it passes, one of the Bipartisan American Affordability and Jobs Act’s biggest changes would be transforming the U.S. court system’s role in federal environmental reviews.
The bill would constrain who can challenge federal environmental decisions in court, which courts can hear those challenges, what plaintiffs can argue in those cases, and what remedies are available when the plaintiffs win. In particular, it would become a lot more difficult — though not impossible — for outside groups to stop construction on a project or vacate a permit if they deemed it to be environmentally risky.
Part of the motivation for the bill, at least among Democrats, is the idea that the National Environmental Policy Act, or NEPA, has become a significant obstacle to building clean energy projects and the infrastructure required to connect them to the grid. The bill includes a number of changes to NEPA that would expedite environmental reviews and prevent legal challenges under NEPA from dragging out project timelines.
But the bill’s restrictions on judicial remedies may be the most significant change, several legal experts told me. “My perhaps overly simplistic view, perhaps a really cynical view, is that the remaining 100 pages of the bill devoted to NEPA are all going to be irrelevant in light of that remedy provision,” said Matthew Littleton, a lawyer who previously served as deputy assistant attorney general at the U.S. Department of Justice’s Environment and Natural Resources Division under the Biden administration.
NEPA is an information-gathering statute. It says that when the federal government makes certain decisions, such as issuing permits or regulatory rules, it must consult with all of the agencies with relevant expertise, invite public comment, and, if the decision could have significant effects on the environment, conduct a wide-ranging assessment of those effects that includes comparisons to alternative actions.
Depending on the decision at hand, the government may have to do some of this analysis under other environmental laws, such as the Clean Air Act and Clean Water Act, but those requirements are narrower. NEPA fills in the gaps. While a Clean Air Act analysis may look at whether a project complies with federal pollution limits, a NEPA analysis would assess the broader effects of the pollution on local communities and surrounding wildlife, and consider whether locating the project elsewhere could accomplish the same goals with reduced risk.
While NEPA can inform an agency’s decision, the law does not require the agency to act on that information. If a NEPA review of an oil leasing program turns up substantial risks, for example, the government can still move forward with it unchanged. If an environmental group sues the government for not considering all of the relevant impacts, or studying enough alternatives, or getting some aspect of the analysis wrong, however, the court can vacate the agency’s decision, or at least issue an injunction on the lease sale while the agency addresses the issue.
A Supreme Court decision last year already significantly narrowed NEPA, giving agencies more discretion to decide how much environmental analysis they need to do on a project’s upstream and downstream effects. Experts expected the ruling to make it much harder for outside groups to win an injunction on a project or vacate a permit.
The new bill would go much farther. If communities or other stakeholders sue the government for violating NEPA and win, the courts could no longer issue an injunction or vacate the government’s decision. The bill would leave the courts with a single remedy: forcing the agency to address whatever gap in its analysis the lawsuit revealed.
To Littleton, this change would make NEPA more or less irrelevant. Today, he explained, agencies and developers face the risk that if they do not do a thorough job complying with NEPA, the courts could suspend their decisions, vacate their permits, or pause construction on their projects. It’s hard to know how big of a role that risk plays in agency decision-making, but if it disappears, so too does the incentive for anyone to spend time on a NEPA analysis.
Agencies are under-resourced and have a lot on their plates, Littleton said. “If at the end of the day you know a court is not going to stop you, even if you completely ignore the statute, you’re going to take the action as quickly as you can, consistent with your other obligations.” In other words, the worst that could happen is that a federal court tells the relevant agency to go back and do some more paperwork while construction continues.
The bill would make the same changes to the National Historic Preservation Act, a similar procedural law that requires agencies to study a decision’s effects on properties of cultural or historic significance. “If Congress has decided that NEPA and the NHPA have outlived their usefulness or do more harm than good, people should be willing to own that and say it and explain why that’s so,” Littleton said. “And if it’s not so, then maybe they need to figure out how to have a far narrower NEPA or NHPA review, but something where it actually matters if you don't do it.”
To be clear, none of this means there will be no way to stop a project from being built or to vacate its permits. Outside groups can still challenge agency actions under the Administrative Procedure Act, Alex Mechanick, an assistant professor at Johns Hopkins and a former senior counselor in the Office of Management and Budget under the Biden administration, told me. The APA is a larger umbrella law that says agencies cannot violate the Constitution or federal regulations or act arbitrarily or capriciously.
“Arbitrary and capricious action is already unlawful under the APA and could lead to agency action being vacated or enjoined regardless of BAAJA,” Mechanick said. A court might find that an agency violated the APA if a decision had undeniably worse environmental costs than benefits, if a less damaging option offered the same benefits, or if the agency simply chose not to analyze a relevant aspect of the decision. If the Interior Department was considering a new oil and gas leasing plan and didn’t consider effects on local wildlife, a court might deem that arbitrary and capricious. If the agency studied those effects, found significant risks, and then ignored them entirely with no explanation, that could also constitute a violation of the APA.
Littleton didn’t disagree with Mechanick’s assessment. If the bill passes, he said, the NEPA process may become the mechanism agencies use to comply with the APA rather than an end in itself.
The bill makes a more far-reaching change to legal challenges under the Clean Water Act. That law requires developers to secure a Section 404 permit when their project involves placing dredged materials into a body of water or wetland. It asks the Army Corps of Engineers to collect public comments, analyze the environmental impacts, and evaluate alternatives — much like NEPA. In this case, however, the analysis is not just procedural. Depending on what it reveals, the Corps may be legally required to deny the permit.
As with NEPA and the NHPA, the Senate bill would remove a federal court’s ability to vacate a Section 404 permit if it finds a deficiency in the Army Corps’ analysis. But the bill also specifically prevents vacatur for challenges under the APA. In either case, there is an exception for if the court finds that the “activities authorized under the permit would present an imminent and substantial danger to human health or the environment.”
Mechanick called this a “timing rule,” since the court’s options will depend on how far along the project is. The agency either has enough time to act before harm is imminent, or it doesn’t. “I don’t understand why you should have to wait until the harm is imminent to enjoin the agency,” he said, “but I suppose the idea is that this is a lighter touch remedy until it’s really a do-or-die moment.”
This past weekend’s storms caused flooding and property damage up and down the coast — and it’s going to get worse.
California has around 3,400 miles of shoreline, ranging from the wild, foggy beaches of the North Coast to the sunbather-studded sands of Orange and San Diego counties. That’s a whole lot of border to share with the Pacific Ocean, especially when the water is as hot and tempestuous a neighbor as it is right now.
Just ask the city of Long Beach, which this weekend was on the receiving end of some Super El Niño mischief. Swells from the storm briefly dubbed Hurricane Rachel “annihilated” beachfront mansions and flooded city streets, causing pieces of the local boardwalk to “shred away.” “It’s never happened like this before,” one resident of 64 years told the New York Post.
But while things might look bad in California at the moment, they can still get much worse. One disaster modeler recently estimated the state could see as much as $3 billion in flooding and mudslide-related losses alone this winter — not to mention coastal erosion, king tides, and storm swell. Governor Gavin Newsom declared a state of emergency at the end of September, while many cities, including San Diego, have declared their own local emergencies.
El Niño will likely peak in December, meaning that towns and cities across the state have just a few remaining weeks to finalize projects, whether that means improving drainage in landslide-prone environments such as Rancho Palos Verdes or distributing NOAA weather radios in areas likely to lose power, as emergency managers are in Santa Cruz. The approaching winter storms, combined with El Niño, represent “a humbling reminder of the ongoing effects of climate change and the importance of emergency preparedness,” Laath Martin, the public affairs lead for the city of Long Beach, wrote to me in an email.
El Niño is a cyclical phenomenon, occurring when temperatures in a particular stretch of the Pacific Ocean rise half-a-degree Celsius above the average of the preceding 30 years. But there are signs these natural variations are happening less predictably because of climate change, and we know for sure that a warmer atmosphere makes the baseline for its impacts worse: king tides, Kelvin waves, and storm surge piggyback on top of rising sea levels to result in more severe coastal flooding and erosion. A warmer atmosphere also holds more water, which means more rain — perhaps 200% above normal — which, in turn, results in flooding and mudslides further inland, as well.
“Based on what I am seeing now, I am officially concerned,” Daniel Swain, a climate scientist at the University of California Agriculture and Natural Resources, said last week after reviewing the latest outlook. There’s a reason this year’s El Niño is being called a Godzilla.
In general, the weather pattern causes the jet stream to shift south in the winter, bringing wetter and snowier conditions to the lower U.S. while the northern part of the country stays drier and mild. (It’s also responsible for a weaker Atlantic hurricane season, as we’ve already seen this year.) In addition to El Niño-driven Kelvin waves, warm bulges of water that raise the sea level on the coast by as much as 18 inches, the state of California — and particularly southern California — sits directly in a storm track that will deliver “atmospheric rivers” of heavy rain to a region prone to landslides and flash floods.
In many parts of the state, that rain will test the best-made plans in addition to plans deferred. In Los Angeles, the Department of Sanitation and Environment, or LASAN, has told the City Council it has concerns about the ability of the aging wastewater pipes and plants to handle heavy rainfall associated with a supercharged El Niño. In San Diego, which requires some $3.3 billion to upgrade what is in some places a century-old wastewater system, emergency managers are preparing to work with what they have by clearing debris and brush that could back up in the drains, CalMatters reports. In both cases, the time required for systemwide repairs far exceeds the time remaining before the winter’s supercharged atmospheric rivers are due to arrive. (Rezende told me inland flooding affects more businesses and residents in San Diego than coastal flooding, since the population in the city is set further back from the coastline.)
The city of Roseville, northeast of Sacramento, by contrast, is leaning on decades of flood planning to get through the season. After a series of back-to-back storms in 1986 that killed 13 people and caused $400 million in damage, the city and FEMA invested $39 million to upgrade Roseville’s infrastructure, including widening streams and adding levees and stormwater bypass channels. With more accurate floodplain modeling that has “helped keep new construction at higher elevations,” Helen Dyda, the city manager’s public information officer told me that “less than 7% of the city is within a floodplain” today. Dyda added that the city prepares for winter storms every year — it has some 160 miles of creek shoreline, after all — but that the El Niño-specific preparations are, as a result, more similar to routine maintenance: “clearing more dense vegetation and fallen trees from key creek areas.”
Long Beach is caught somewhere in the middle. After swells from Hurricanes Marie and Polo hammered the city in September, Long Beach hastily developed a seven-point plan to strengthen its peninsula in the near and long term. It will also begin a $11.4 million dredging project this fall that will place 415,000 cubic yards of sand on the beach as a buffer zone. “While this effort will achieve a much-desired result, it will not stop the ocean from pulling sand from the peninsula with every wave, especially during the significant weather systems Long Beach continues to experience,” Martin, the city’s public affairs lead, wrote to me. “Back-passing will need to continue to return sand back to the peninsula each day until more permanent, long-term man-made and environmental solutions can be identified, permitted and implemented.”
In certain cities, preparations for the peak of El Niño overlap with ongoing repairs from the last bad storm season. In Santa Cruz County, the 2016 El Niño caused an estimated $9 million in damage, while many in the community of Pajaro are still recovering from the flood damage caused by a series of severe atmospheric rivers in 2023. “We have a list of hazards that the city is vulnerable to, and we plan for all of them not individually, but all together,” Meredith Albert, Santa Cruz’s emergency management manager, told me. She added that many of the city’s preparedness activities and El Niño initiatives, like urging the community to be prepared to spend 72 hours unsupported, overlap with other disasters it works year-round to prepare for, like earthquakes, landslides, and wildfires.
“El Niño turns up the volume a little bit, but it doesn’t necessarily change our hazard landscape,” is how Albert put it to me.
Santa Cruz has not declared a local state of emergency, and Albert told me they won’t until they “run out of resources.” Other cities, like San Diego, have declared one preemptively. “In the past, you’d have to go through a longer review if you wanted to make some headway on projects, and sometimes that would take many weeks or many months of permitting,” Rezende said. “With a state of emergency, we streamline that process and get projects in the queue.”
Both Rezende and Albert told me the governor's statewide emergency declaration mostly helps state agencies position themselves for a faster response or has implications for higher-level permitting processes. (In Carlsbad, for example, which has seven miles of badly eroding beach, just one mile is controlled by the city; the other six are managed by the State Parks.) The state has also teamed up with ICEYE, a satellite imaging company, to receive information about flooding even in the dark or through rain clouds.
No state of emergency, though, can make it so a city can replace a century-old sewer system by Christmas or reengineer a beach by the time January’s storms begin to make landfall. But if a Godzilla analogy fits the onslaught of a super El Niño, it also offers a classic disaster-movie lesson on how to survive it.
Albert’s advice for how to prepare? Ask a neighbor for a cup of sugar. Take their dog for a walk. Build a relationship that could prevent a tragedy. “We know that our city will be cut off for at least a couple of days,” she told me of a hypothetical major disaster, referring back to Santa Cruz’s experience after the 1989 Loma Prieta earthquake, which cut off the city’s power, communication, and supply lines. “And we also know that we can’t build those relationships during the disaster. We’re trying to build them before.”
The city is doing a lot to prepare for the storm, she said. “But the question is also, what are all of us doing?” Albert went on. “You know better than I do, at the city level, who’s not going to receive that alert,” whether that be an elderly or unhoused neighbor or a nonnative English speaker who might not receive or understand emergency communications.
“Check in on a neighbor” is easier said than done — active engagement and connection to one’s community is trending downward in most parts of the U.S. But the people and places that bounce back from disaster and tragedy are almost uniformly the ones that look after each other. Borrowing a cup of sugar, to this introvert, sounds like a nightmare. But there’s never been a better time than a Godzilla El Niño to bake a poorly resourced cake.
