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Life cycle analysis has some problems.

About six months ago, a climate scientist from Arizona State University, Stephanie Arcusa, emailed me a provocative new paper she had published that warned against our growing reliance on life cycle analysis. This practice of measuring all of the emissions related to a given product or service throughout every phase of its life — from the time raw materials are extracted to eventual disposal — was going to hinder our ability to achieve net-zero emissions, she wrote. It was a busy time, and I let the message drift to the bottom of my inbox. But I couldn’t stop thinking about it.
Life cycle analysis permeates the climate economy. Businesses rely on it to understand their emissions so they can work toward reducing them. The Securities and Exchange Commission’s climate risk disclosure rule, which requires companies to report their emissions to investors, hinges on it. The clean hydrogen tax credit requires hydrogen producers to do a version of life cycle analysis to prove their eligibility. It is central to carbon markets, and carbon removal companies are now developing standards based on life cycle analysis to “certify” their services as carbon offset developers did before them.
At the same time, many of the fiercest debates in climate change are really debates about life cycle analysis. Should companies be held responsible for the emissions that are indirectly related to their businesses, and if so then which ones? Are carbon offsets a sham? Does using corn ethanol as a gasoline substitute reduce emissions or increase them? Scientists have repeatedly reached opposite conclusions on that one depending on how they accounted for the land required to grow corn and what it might have been used for had ethanol not been an option. Though the debate plays out in calculations, it’s really a philosophical brawl.
Everybody, for the most part, knows that life cycle analysis is difficult and thorny and imprecise. But over and over, experts and critics alike assert that it can be improved. Arcusa disagrees. Life cycle analysis, she says, is fundamentally broken. “It’s a problematic and uncomfortable conclusion to arrive at,” Arcusa wrote in her email. “On the one hand, it has been the only tool we have had to make any progress on climate. On the other, carbon accounting is captured by academia and vested interests and will jeopardize global climate goals.”
When I recently revisited the paper, I learned that Arcusa and her co-authors didn’t just critique life cycle analysis, they proposed a bold alternative. Their idea is not economically or politically easy, but it also doesn’t suffer from the problems of trying to track carbon throughout the supply chain. I recently called her up to talk through it. Our conversation has been edited for clarity.
Can you walk me through what the biggest issues with life cycle analysis are?
So, life cycle analysis is a qualitative tool —
It seems kind of counterintuitive or even controversial to call it a qualitative tool because it’s specifically trying to quantify something.
I think the best analogy for LCA is that it’s a back-of-the-envelope tool. If you really could measure everything, then sure, LCA is this wonderful idea. The problem is in the practicality of being able to collect all of that data. We can’t, and that leads us to use emissions factors and average numbers, and we model this and we model that, and we get so far away from reality that we actually can’t tell if something is positive or negative in the end.
The other problem is that it’s almost entirely subjective, which makes one LCA incomparable to another LCA depending on the context, depending on the technology. And yes, there are some standardization efforts that have been going on for decades. But if you have a ruler, no matter how much you try, it’s not going to become a screwdriver. We’re trying to use this tool to quantify things and make them the same for comparison, and we can’t because of that subjectivity.
In this space where there is a lot of money to be made, it’s very easy to manipulate things one way or another to make it look a little bit better because the method is not robust. That’s really the gist of the problems here.
One of the things you talk about in the paper is the way life cycle analysis is subject to different worldviews. Can you explain that?
It’s mostly seen in what to include or exclude in the LCA — it can have enormous impacts on the results. I think corn ethanol is the perfect example of how tedious this can be because we still don’t have an answer, precisely for that reason. The uncertainty range of the results has shrunk and gotten bigger and shrunk and gotten bigger, and it’s like, well, we still don’t know. And now, this exact same worldview debate is playing into what should be included and not included in certification for things [like carbon removal] that are going to be sold under the guise of climate action, and that just can’t be. We’ll be forever debating whether something is true.
Is this one of those things that scientists have been debating for ever, or is this argument that we should stop using life cycle analysis more of a fringe idea?
I guess I would call it a fringe idea today. There’s been plenty of criticism throughout the years, even from the very beginning when it was first created. What I have seen is that there is criticism, and then there is, “But here’s how we can solve it and continue using LCA!” I’ve only come across one other publication that specifically said, “This is not working. This is not the right tool,” and that’s from Michael Gillenwater. He’s at the Greenhouse Gas Management Institute. He was like, “What are we doing?” There might be other folks, I just haven’t come across them.
Okay, so what is the alternative to LCA that you’ve proposed in this paper?
LCA targets the middle of the supply chain, and tries to attribute responsibility there. But if you think about where on the supply chain the carbon is the most well-known, it is actually at the source, at the point of origin, before it becomes an emission. At the point where it is created out of the ground is where we know how much carbon there is. If we focus on that source through a policy that requires mandatory sequestration — for every ton of carbon that is now produced, there is a ton of carbon that’s been put away through carbon removal, and the accounting happens there, before it is sold to anybody — anybody who’s now downstream of that supply chain is already carbon neutral. There is no need to track carbon all the way down to the consumer.
We know this is accurate because that is where governments already collect royalties and taxes — they want to know exactly how much is being sold. So we already do this. The big difference is that the policy would be required there instead of taxing everybody downstream.
You’re saying that fossil fuel producers should be required to remove a ton of carbon from the atmosphere for every ton of carbon in the fuels they sell?
Yeah, and maybe I should be more specific. They should pay for an equal amount of carbon to be removed from the atmosphere. In no way are we implying that a fossil carbon producer needs to also be doing the sequestration themselves.
What would be the biggest challenges of implementing something like this?
The ultimate challenge is convincing people that we need to be managing carbon and that this is a waste management type of system. Nobody really wants to pay for waste management, and so it needs to be regulated and demanded by some authority.
What about the fact that we don’t really have the ability to remove carbon or store carbon at scale today, and may not for some time?
Yes, we need to build capacity so that eventually we can match the carbon production to the carbon removal, which is why we also proposed that the liability needs to start today, not in the future. That liability is as good as a credit card debt — you actually have to pay it. It can be paid little by little every year, but the liability is here now, and not in the future.
The risk in the system that I’m describing, or even the system that is currently being deployed, is that you have counterproductive technologies that are being developed. And by counterproductive, I mean [carbon removal] technologies that are producing more emissions than they are storing, and so they’re net-positive. You can create a technology that has no intention of removing more carbon than its sequesters. The intention is just to earn money.
Do you mean, like, the things that are supposed to be removing carbon from the atmosphere and sequestering it, they are using fossil fuels to do that, and end up releasing more carbon in the process?
Yeah, so basically, what we show in the paper is that when we get to full carbon neutrality, the market forces alone will eliminate those kinds of technologies that are counterproductive. The problem is during the transition, these technologies can be economically viable because they are cheaper than they would be if 100% of the fossil fuel they used was carbon neutral through carbon removal. And so in order to prevent those technologies from gaming the system, we need a way to artificially make the price of fossil carbon as expensive as it would be if 100% of that fossil carbon was covered by carbon removal.
That’s where the idea of permits comes in. For every amount that I produce, I now have an instant liability, which is a permit. Each of those permits has to be matched by carbon removal. And since we don’t have enough carbon removal, we have futures and these futures represent the promise of actually doing carbon removal.
What if we burn through the remaining carbon budget and we still don’t have the capacity to sequester enough carbon?
Well, then we’re going into very unchartered territory. Right now we’re just mindlessly going through this thinking that if we just reduce emissions it will be good. It won’t be good.
In the paper, you also argue against mitigating greenhouse gases other than carbon, and that seems pretty controversial to me. Why is that?
We’re not arguing against mitigating, per se. We’re arguing against lumping everything under the same carbon accounting framework because lumping hides the difficulty in actually doing something about it. It’s not that we shouldn’t mitigate other greenhouse gases — we must. It’s just that if we separate the problem of carbon away from the problem of methane, away from the problem of nitrous oxide, or CFCs, we can tackle them more effectively. Because right now, we’re trying to do everything under the same umbrella, and that doesn’t work. We don’t tackle drinking and driving by sponsoring better tires. That’s just silly, right? We wouldn’t do that. We would tackle drinking and driving on its own, and then we would tackle better tires in a different policy.
So the argument is: Most of climate change is caused by carbon; let’s tackle that separately from the others and leave tackling methane and nitrous oxide to purposefully created programs to tackle those things. Let’s not lump the calculations altogether, hiding all the differences and hiding meaningful action.
Is there still a role for life cycle analysis?
You don’t want to be regulating carbon using life cycle analysis. So you can use the life cycle analysis for qualitative purposes, but we’re pretending that it is a tool that can deliver accurate results, and it just doesn’t.
What has the response been like to this paper? What kind of feedback have you gotten?
Stunned silence!
Nobody has said anything?
In private, they have. Not in public. In private, it’s been a little bit like, “I’ve always thought this, but it seemed like there was no other way.” But then in public, think about it. Everything is built on LCA. It’s now in every single climate bill out there. Every single standard. Every single consulting company is doing LCA and doing carbon footprinting for companies. It’s a huge industry, so I guess I shouldn’t have been surprised to hear nothing publicly.
Yeah, I was gonna ask — I’ve been writing about the SEC rules and this idea that companies should start reporting their emissions to their investors, and that would all be based on LCA. There’s a lot of buy-in for that idea across the climate movement.
Yeah, but there’s definitely a fine line with make-believe. I think in many instances, we kid ourselves thinking that we’re going to have numbers that we can hang our hats on. In many instances we will not, and they will be challenged. And so at that point, what’s the point?
One thing I hear when I talk to people about this is, well, having an estimate is better than not having anything, or, don’t let the perfect be the enemy of the good, or, we can just keep working to make them better and better. Why not?
I mean, I wouldn’t say don’t try. But when it comes to actually enforcing anything, it’s going to be extremely hard to prove a number. You could just be stuck in litigation for a long time and still not have an answer.
I don’t know, to me it just seems like an endless debate while time is ticking and we will just feel good because we’ll have thought we measured everything. But we’re still not doing anything.
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And more of the week’s top fights around development.
1. Richland Parish, Louisiana – Gird your loins for the coming fight over the Meta Hyperion data center’s gas pipeline.
2. Spartanburg County, South Carolina – I have one last data center race to tell you to watch on Tuesday: South Carolina’s 4th, on the northern rim of the state.
3. Goodhue County, Minnesota – Google reached a settlement with an environmental group suing to stop its data center in the small southern Minnesota town of Pine Island, resulting in what local press are saying will be the Land of 10,000 Lakes first state-level environmental review of a data center project.
4. Trumbull County, Ohio – Ohio looks like it just got a tad friendlier for data center opponents.
Talking with Kevin Gundersen, the head of public affairs for Digital Realty.
This week’s conversation is with Kevin Gundersen, head of public affairs for data center developer Digital Realty. On Wednesday, Digital Realty released a fascinating poll as part of Infrastructure for America, a pro-data center organization that also includes Compass, Vantage Data Centers, and QTS. The poll pushed back on the idea that we’re currently in the middle of a “data center election”; instead, it found most voters are not expected to choose their national elected officials based on a politician’s stance on data centers.
I reached out to folks involved in the poll's release, and they put me in touch with Gundersen, whom I’ve met before and consider to be a straight shooter. He accepted my invitation to do a candid hot-seat chat about the findings, his thoughts on all the data center attack ads, and whether his industry’s actually recovering any ground with the American people.
The following conversation was lightly edited for clarity.
So first off: Is this the “data center election”?
No. I think there are communities across this country that are learning about data centers and whose opinions are being formed by all sorts of things. I’ve also sat in communities that want data centers, that understand the benefits they provide, and I think there are loud voices on all ends of the spectrum saying things about data centers that frankly aren’t true. That’s unfortunate.
Now, that doesn’t dismiss people’s real concerns about data centers in communities that have never had them before or states that haven’t had them before. So it’s the industry’s job to have those conversations honestly and openly.
This is a new thing for the industry. If you look at the history of the data center industry, it was really confined to Northern Virginia, Santa Clara [California], and urban areas like New York City or Chicago where there are large customer bases and data needs. For the most part, people didn’t really pay attention to data centers.
This is now a historic build-out, so there’s an education going on. Data centers have become a physical manifestation of people’s fears about AI, and that’s something we need to manage as an industry. How we do that is to create organizations like IFA. Our company has been doing this for 25 years. We have 300 data centers around the world. For us, this is how we’ve always been doing this, but there’s no question our industry needs to be doing a better job as to why data centers benefit communities.
I think there’s a disconnect between what I see on the ground locally and the national narrative around the election. Every issue in America is nationalized. But if you look at some polls, this isn’t in the top five issues people are thinking about day to day.
It makes sense a data center developer would make this case. It’s your right to do so. But can you help me better understand the evidence, when we’re seeing so much television advertising attacking candidates for previous data center support?
The basis for me saying it is, I’ve sat in communities where people want data centers and been in parts of America that haven’t had revenue sources for decades. Now they have an opportunity for a data center in their city, county, state, and I think sometimes where there’s a disconnect is the national narrative around AI.
It’s hard to stop ChatGPT. But someone can use the data center as their target, so to speak. It’s the physical manifestation of their opposition to AI.
The biggest evidence is, there are a lot of communities that [have] welcomed data centers in the last 30 years. Not just the last couple of years. Santa Clara, California, is one of the nicest places in the country, and they have so many data centers. The history of people supporting data centers has been the norm, and the opposition is a relatively new thing in and of itself.
What about the electoral impacts? Have you personally not seen any? Either against your industry or for them?
We haven’t seen any of our developments’ electoral impacts on the local level yet. We could have this conversation next week after the election, but not yet. I honestly think I could answer that question better then.
But do I think data centers in most of America are the number one thing on people’s minds? No. Not when you talk to them outside the chatroom on Facebook when you can present dialogue and facts. There are communities that will decide they don’t want data centers. That’s fine. Some communities have made that decision. There are others who want them.
I’m not looking at next week. These developments are going to go on regardless of the election because there’s a huge demand for digital infrastructure, and a lot of communities do want these developments.
What do you see as the role of your polling when it comes to convincing the American public or the news media that this isn’t an election being decided by data centers?
IFA was created to tell stories about data centers and the benefits we provide to communities. These are real stories from real people and real companies. They’re mom-and-pop food trucks, electricians, real people all around the country. IFA is geared toward telling the story, a very positive story that is getting lost in the national debate.
When I think about the ads I see every day, the negative ads about data centers, these are real jobs. People making money wearing hard hats. I actually think it's unfortunate because I see people’s lives being lifted by data center development, and then they turn on their TV to see attacks on their industry.
The biggest companies in the world right now are taking their money and investing in the United States, creating a blue-collar jobs boom, and for some reason our politics make it something people want to oppose.
I think after the election there’ll be some kind of level set on both sides of the aisle because I think people were caught by surprise about some of the early polls on the AI issue that came out earlier this year. The industry wasn’t quick enough to talk about the benefits. But I think there are a lot of governors who’ve been balanced since they came into office about data center development, where they haven’t pushed moratoriums because they realize there are benefits from data centers.
The AI issue is great on the campaign trail, but separating AI from data centers and the investments they bring to a community is important. Data centers provide digital infrastructure. The demand for that is only going up.
Why should a skeptic of this industry believe this information from a developer?
I mean, have they talked to the IBEW? Have they talked to the unions? There are a lot of constituencies out there that see the benefits of data centers. Don’t take my word for it. Go to a community and talk to people.
There’s going to be people who don’t want a data center in their community, but if we do it openly, transparently, and tell the story of who we are — we’ve been around for 25 years! There’s all sorts of information out there about our company. And we’re going to keep talking to communities.
Why should they believe us? We don’t have anything to hide, and we’ll bring benefits to their community. That might sound like a cliché answer, but it’s the case.
What do you think the outcome will be from so many attack ads about data centers?
I think it's unfortunate, and I think it's bad for the country because elected officials right now are spending tens of millions of dollars in political ads telling people data centers are bad when in fact they bring huge benefits to communities.
We’re going to have to spend lots of time and energy and resources to make up for that. Perhaps we should’ve been doing this sooner. I’m sure we’d all in this industry loved to have gotten our story out before the campaign cycle took hold. We can’t go back and change the past.
I always say, we have the truth and physics on our side. What I mean by that is, we’ve got a great story, these developments have tons of benefits, and the demand is only going up. People have two phones. They have connected devices in their homes. Flat-screen TVs and Oura rings and Ring cameras. When you think about the digital products and services you use every day, it’s massive.
We’re going to have to tell our story. I do think a lot of elected officials at all levels of government want us to go do that. When I sit behind closed doors with folks, they know the benefits. People of both parties.
Can a key section of BAAJA be saved from unintended consequences?
Any bipartisan bill to update the nation’s permitting laws was always going to be a compromise, with advantages for the oil and gas industry as well as clean energy. Proponents of the Senate’s latest attempt at permitting reform have painted it as a delicate balance, a hard-won opportunity, and an all-or-nothing deal.
What, then, to make of drafting errors, or unintended consequences?
In the weeks since senators released the text of the Bipartisan American Affordability and Jobs Act, lawyers have been doing what lawyers often do, which is scour the bill for loopholes and ambiguous language. Many have raised concerns about the risks of one section in particular titled “Project Certainty” that’s designed to prevent presidents from discriminating against projects they dislike, such as by throttling projects that are already under construction, or outright refusing to permit certain types of energy — both of which Trump has tried to do to wind farms.
The red flags range from what were clearly accidental oversights, like that the bill would exempt projects that have obtained all their permits from complying with future regulations, to much more nitpicky, hypothetical issues, like that it might enable a company to orchestrate a permitting delay in order to win a big payout in court.
The question now in front of Senate negotiators before they put the whole package to a vote on November 9 is which of these issues are possible, or even desirable, to address in an amendment without destabilizing the whole package.
“I think there are legitimate legal readings of the bill that are not what was intended, and I think those are where you can make technical fixes,” Nat Keohane, the president of the Center for Climate and Energy Solutions, which supports the bill, told me. “I think there’s some of it that was worked out as part of the broader package that was negotiated over months. And so, which things fall into which bin? That’s up to the authors.”
It’s no secret that getting politics out of permitting was table stakes for the bill’s Democratic authors, Senator Sheldon Whitehouse of Rhode Island and Senator Martin Heinrich of New Mexico. Neither responded to questions about whether they were aware of critics’ concerns about these provisions or open to revising the language, although many sources I spoke to for this story told me they were aware of efforts underway on the Hill to make corrections to this section.
Heinrich’s office instead forwarded my inquiry to the American Council on Renewable Energy. In an interview, ACORE’s CEO Ray Long argued that some of the concerns lawyers have raised are valid, and tweaks and technical corrections are “fine” — but only if they don’t hold back the bill from a vote this year. He stressed that between the bipartisan permitting bill debated by the previous Congress and BAAJA, the Hill has been working on this issue for four years. “I think we should stop trying to make this bill perfect,” he said. “Consider it for what it is, which is a well-intentioned bill on both sides to get to a compromise that addresses a whole range of things and move forward with that.”
The “Project Certainty” section of the bill has two key components that critics are concerned about. The first is a set of provisions meant to prevent an administration from yanking permits or otherwise messing with projects that have all of their approvals, such as when the Trump administration revoked the Lava Ridge wind farm’s right-of-way, or when it issued stop-work orders on five offshore wind farms that were under construction.
The main issue here is that the text is written very broadly. It doesn’t just say that agencies can’t revoke permits; it says they can’t take any action “to interfere with or prevent the construction or operation at full capacity of a project” that has secured all of its federal approvals.
“That ‘operation at full capacity’ language seems to prevent any future action that could require existing facilities to modernize their technology or take steps to reduce their pollution,” Liz Zeleda, the federal regulatory director at the Southern Environmental Law Center, told me.
Of all the issues critics of the bill have raised, this one seems to have pretty unanimous support for a correction. “Nobody, I think, wanted to negotiate some kind of regulatory freeze here, and it’s a pretty clear technical fix,” Jane Flegal, a senior fellow at the Searchlight Institute, told me. “I have confidence that the negotiators will fix it.”
Then there are concerns that the bill would render any permits or authorizations issued by the Trump administration irrevocable, even if they were issued illegally. John Podesta, Biden’s former senior climate advisor, recently raised that possibility during a fireside chat at the University of Colorado Boulder. “They’re going to have a permit gorge like you’ve never seen, not really caring about whether they’re going through the legal steps to do it, and under this bill that’s not going to be reversed,” he said. His comments quickly ignited a fierce debate on social media over whether this was an accurate reading of the text.
The bill does list several exceptions that would allow agencies to revoke permits or authorizations, such as under a court order, or when the developer has violated the terms of the permit or another applicable law, or if the developer obtained the permit under false pretenses, or if revoking the permit is necessary to prevent imminent harms that were not identified in the original review process. Notably, “when the government’s authorization violates the law” is not on the list.
Nonetheless, a harmed party would still be able to make the case that Trump violated the Administrative Procedure Act in issuing a permit and get a court to vacate it, Ben Schifman, a senior technology fellow at the Institute for Progress and former Department of Justice lawyer, told me. The only edge case where that would not be true, as far as he can tell, is if the sole legal infraction in the permitting process was a violation of the National Environmental Policy Act or the National Historic Preservation Act, and no other applicable law. In that situation, the bill would, in fact, restrict the court from vacating the permit. However, a case like that is unusual, he said. “I will tell you, in all of my 10 years of practicing this kind of law at DOJ, it was very rare, and I’m struggling to think if there was even a single case that literally only brought one claim that was a NEPA claim.”
On the other hand, Sambhav Sankar, the senior vice president of programs at Earthjustice, argues that this interpretation assumes groups like his have the means to challenge all of the potentially illegal permitting decisions Trump makes. “We don’t have anywhere near the resources required,” he wrote in a blog post about Podesta’s comments, “and this legislation is explicitly aimed at making our challenges much harder to bring.” It’s not like the next administration will be able to sue itself to get a court order to vacate permits, he noted.
When I asked Schifman about this, he suggested the agency might be able to sue the permit holder, but admitted this was an ambiguity in the bill and “a good candidate for a few-word technical amendment.”
The second component of the “Project Certainty” title that’s raising alarm is a series of provisions meant to prevent unfair delays or denials for projects trying to obtain permits. The Trump administration, for example, has subjected wind and solar projects applying for permits to heightened reviews at the Interior Department, and simply stopped providing Department of Defense clearances to wind farms altogether.
The bill sets up a new legal pathway for project developers to sue the government for delaying or denying permits if they can demonstrate they are being targeted as part of a larger “pattern of disparate treatment.” To bring such a case, the developer would have to show its specific project type — a wind farm, for example — has seen a “substantial increase” in delays or denials compared to the previous five years. It may, but doesn’t have to, also produce supporting evidence, such as statements made by federal officials demonstrating a bias.
The choice of five years is the first thing that caught lawyers’ attention. Shortly after the bill came out, Matthew Littleton, a former deputy assistant attorney general at the U.S. Department of Justice’s Environment and Natural Resources Division, argued on LinkedIn that this baseline would be unlikely to help clean energy projects in the near term, since once the law goes into effect, the preceding five years will be dominated by Trump administration obstruction.
If you’re optimistic that the next administration will be less hostile to renewable energy, that’s only a short-term problem. But by that same token, imagine a Democrat takes the White House in 2029, and for entirely legal reasons, their administration rejects more natural gas plant permits than Trump did. Perhaps the previous Environmental Protection Agency didn’t account for some newly significant risk. Under BAAJA, developers would have grounds to sue the government for exhibiting a “pattern of disparate treatment.”
While the choice of five years has been debated, a lot of the risks with this provision actually stem from the bill’s limits on what the government can do to defend its actions. While the text gestures at “improper” denials, “unreasonable” delays, and a show of government intent, it doesn’t actually require the plaintiff to prove any of those things to win a case. It specifically limits the court’s review to three things: the evidence produced by the project sponsor; the administrative record for the particular project in question (i.e. the permit application and agency response); and raw, statistical data from the government showing the number of projects of the same type that received approvals over the past year compared to the previous five, as well as the number that received denials or got delayed.
Per Littleton’s interpretation, the developer need not prove the agency acted in bad faith, and the court can’t even take into account a potentially well-reasoned explanation by the government for why the data display a certain pattern. Schifman mostly agreed with this, but noted that it’s possible the administrative record would contain evidence about why the disparity occurred.
It’s possible that technical fixes to this section requiring “credible evidence of intentional targeting” for claims and that courts review the entire evidentiary record, as the Natural Resources Defense Council has suggested, could go a long way toward addressing this issue. Scholars at Columbia University’s Center on Global Energy Policy have recommended limiting these claims to delays, which are tied to clear timing benchmarks, and removing the provision for denials. “Courts can already overturn unlawful denials, so the denial provision adds little protection while creating most of the risk,” they wrote.
But there are other complications.
The bill specifies that if a developer wins a “disparate treatment” case, the government has to fork over 50% to 100% of the project’s total costs, in addition to any attorney fees and monetary damages resulting from the permitting delay or denial.
Justin Pidot, a law professor at the University of Arizona who served as General Counsel to Biden’s Council on Environmental Quality, told me that this could have the effect of “putting handcuffs on the government,” in that agencies will be under pressure to make decisions that avoid a legal challenge. That is, of course, the point of the provision, but to Pidot, it impinges too much on agency discretion. The Columbia scholars raised this concern as well, writing, “Facing that risk, agencies may approve projects they would otherwise reject, potentially including projects they consider unsafe.”
At the same time, the prospect of such a big payout may tempt developers to test agencies’ limits. “It just creates all sorts of perverse incentives,” Pidot said. “In that world, a project sponsor would be wise to try to figure out how to get the government to delay approving their projects so that they could bring this lawsuit.”
What’s more, the project sponsor is only allowed to keep its winnings if it actually completes the project, but nothing in BAAJA requires the government to approve a permit in these cases. A court might order an agency to make a decision on a delayed permit or reconsider an application it rejected, but the administration could just go on delaying or denying the project until the developer runs out of financing and can’t hold on any longer.
“As far as I can tell, if you have to abandon the project before you can build it, you don't get anything,” Littleton said. “I'm just sort of flummoxed by the way this is set up.”
While everyone I spoke to seemed to agree that the project certainty title in the bill could use some redlining, there was a split between those who believed small “technical fixes” would do the trick and those who were skeptical the provisions would be successful without an overhaul.
The Environmental Protection Network, a group of former EPA staffers, recently published a number of suggested technical changes to improve the section on revoking existing permits. They called for adding several more exceptions for when an agency can revoke or amend a permit, such as when the action is “authorized by Federal law and brought by the Federal department or agency alleging a violation of Federal law.” The challenge with adding more exceptions is that it will give the government more wiggle room to justify revoking permits — a slippery slope.
EPN also suggested adding a clause specifying that “nothing in this title affects the applicability of any requirement under” the Clean Water Act, the Clean Air Act, and the like, and protecting taxpayers “from potentially hundreds of billions of dollars” in fines paid out to litigants by limiting the financial remedies to “actual damages and court costs.”
The NRDC suggested changing the five-year baseline in the disparate treatment section, and eliminating the “disproportionate” stipulated financial awards, although it did not specify how. The Columbia scholars urged Congress to consider tying the financial awards “more closely to a developer’s actual losses while keeping enough of a penalty to deter deliberate abuse.”
While these kinds of changes may “curb some of the worst excesses” of the project certainty provisions, Littleton told me, that’s not his preferred outcome. “Ultimately, I think they need to be rethought in order to accomplish their purpose.”
Long, of ACORE, held that concerns about project certainty “aren’t a reason to hold up all the work that’s been done so far,” and suggested that Congress could pass a corrections bill down the line should they turn out to be real problems.
One funny thing about this “project certainty” part of the permitting bill is that critics and proponents both seem to accept that there is no foolproof way to stop a president who is truly hell-bent on messing with an industry from doing so. The question is, is it worth trying?