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New rules governing how companies report their scope 2 emissions have pit tech giant against tech giant and scholars against each other.

All summer, as the repeal of wind and solar tax credits and the surging power demands of data centers captured the spotlight, a more obscure but equally significant clean energy fight was unfolding in the background. Sustainability executives, academics, and carbon accounting experts have been sparring for months over how businesses should measure their electricity emissions.
The outcome could be just as consequential for shaping renewable energy markets and cleaning up the power grid as the aforementioned subsidies — perhaps even more so because those subsidies are going away. It will influence where and how — and potentially even whether — companies continue to voluntarily invest in clean energy. It has pitted tech heavyweights like Google and Microsoft against peers Meta and Amazon, all of which are racing each other to power their artificial intelligence operations without abandoning their sustainability commitments. And it could affect the pace of emissions reductions for decades to come.
In essence, the fight is over how to appraise the climate benefits of companies’ clean power purchases. The arena is the Greenhouse Gas Protocol, a nonprofit that creates voluntary emissions reporting standards. Companies use these standards to calculate emissions from their direct operations, from the electricity and gas that powers and heats their buildings, and from their supply chains. If you’ve ever seen a brand claim it “runs on 100% renewable energy,” that statement is likely backed by a Greenhouse Gas Protocol-sanctioned methodology.
For years, however, critics have poked holes in the group’s accounting rules and assumptions, charging it with enabling greenwashing. In response, the organization has decided to overhaul its standards, including for how companies should measure their electricity footprint, known as “scope 2” emissions.
The Greenhouse Gas Protocol first convened a technical working group to revise its Scope 2 Standard last September. By late June, the group had finalized a draft proposal with more rigorous criteria for clean energy claims, despite intense pushback on the underlying direction from companies and clean energy groups.
A flurry of op-eds, essays, and LinkedIn posts accused the working group of being on the “wrong track,” and called the proposal a “disaster” with “unintended consequences.” The Clean Energy Buyers Association, a trade group, penned a letter saying it was “inefficient and infeasible for most buyers and may curtail ambitious global climate action.” Similarly, the American Council on Renewable Energy warned that the plan “could unintentionally chill investment and growth in the clean energy sector.”
Next the draft will face a 60-day public consultation period that begins in early October. “There’ll be pushback from every direction,” Matthew Brander, a professor of carbon accounting at the University of Edinburgh and a member of the Scope 2 Working Group, told me. Ultimately, it will be up to the Working Group, the Protocol’s Independent Standards Board, and its Steering Committee, to decide whether the proposal will be adopted or significantly revised.
The challenge of creating a defensible standard begins with the fundamental physics of electricity. On the power grid, electrons from coal- and natural gas-fired power plants intermingle with those from wind and solar farms. There’s no way for companies hooking up to the grid to choose which electrons get delivered to their doors or opt out of certain resources. So if they want to reduce their carbon footprints, they can either decrease their energy consumption — by making their operations more efficient, say, or installing on-site solar panels — or they can turn to financial instruments such as renewable energy certificates, or RECs.
In general, a REC certifies that one megawatt-hour of clean power was generated, at some point, somewhere. The current Scope 2 Standard treats all RECs as interchangeable, but in reality, some RECs are far more effective than others at reducing emissions. The question now is how to improve the standard to account for these differences.
“There is no absolute truth,” Wilson Ricks, an engineering postdoctoral researcher at Princeton University and working group member, told me back in June. “I mean, there are more or less absolute truths about things like how much emissions are going into the atmosphere. But the system for how companies report a certain number, and what they’re able to claim about that number, is ultimately up to us.”
The current standard, finalized in 2015, instructs companies to report two numbers for their scope 2 emissions, based on two different methodologies. The formula for the first is straightforward: multiply the amount of electricity your facilities consume in a given year by the average emissions produced by the local power grids where you operate. This “location-based” number is a decent approximation of the carbon emitted as a result of the company’s actual energy use.
If the company buys RECs or similar market-based instruments, it can also calculate its “market-based” emissions. Under the 2015 standard, if a company consumed 100 megawatt-hours in a year and bought 100 megawatt-hours’ worth of certificates from a solar farm, it could report that its scope 2 emissions, under the market-based method, were zero. This is what enables companies to claim they “run on 100% renewable energy.”
RECs are fundamentally different from carbon offsets, in that they do not certify that any specific amount of emissions has been prevented. They can cut carbon indirectly by creating an additional revenue stream for renewable energy projects. But when a company buys RECs from a solar project in California, where the grid is saturated with solar, it will do less to reduce emissions than if it bought RECs from a solar project in Wyoming, where the grid is still largely powered by coal, or from a battery storage project in California, which can produce clean power at night.
There are other ways RECs can vary — for instance, companies can buy them directly from power producers by means of a long-term contract, or as one-off purchases on the spot market. Spot market REC purchases are generally less effective at displacing fossil fuels because they’re more likely to come from pre-existing wind and solar farms — sometimes ones that have been operating for years and would continue with or without REC sales. Long-term contracts, by contrast, can help get new clean energy projects financed because the guaranteed revenue helps developers secure financing. (There are exceptions to these rules, but these are broadly the dynamics.)
All this is to say that the current standard allows for two companies that consumed the same amount of power and bought the same number of RECs to report that they have “zero emissions,” even if one helped reduce emissions by a lot and the other did little to nothing. Almost everyone agrees the situation can be improved. The question is how.
The proposal set for public comment next month introduces more granularity to the rules around RECs. Instead of tallying up annual aggregate energy use, companies would have to tally it up by hour and location. To lower companies' scope 2 footprints further, purchased RECs will have to be generated within the same grid region as the company’s operations, and match a distinct hour of consumption. (This “hourly matching” approach may sound familiar to anyone who followed the fight over the green hydrogen tax credit rules.)
Proponents see this as a way to make companies’ claims more credible — businesses would no longer be able to say they were using solar power at night, or wind power generated in Texas to supply a factory in Maine. While companies would still not be literally consuming the power from the RECs they buy, it would at least be theoretically possible that they could be. “It’s really, in my view, taking how we do electricity accounting back to some fundamentals of how the power system itself works,” Killian Daly, executive director of the nonprofit EnergyTag, which advocates for hourly matching, told me.
The granularity camp also argues that these rules create better incentives. Today, companies mostly buy solar RECs because they’re cheap and abundant. But solar alone can’t get us to zero emissions electricity, Ricks told me. Hourly matching will force companies to consider signing contracts with energy storage and geothermal projects, for example, or reducing their energy use during times when there’s less clean energy available. “It incentivizes the actions and investments in the technologies and business practices that will be needed to actually finish the job of decarbonizing grids,” he said.
While the standard is technically voluntary, companies that object to the revision will likely be stuck with it, as governments in California and Europe have started to integrate the Greenhouse Gas Protocol’s methodologies into their mandatory corporate disclosure rules.
The proposal’s critics, however, contend that time and location matching will be so costly and difficult to implement that it may lead companies to simply stop buying clean energy. One analysis by the electricity data science nonprofit WattTime found that the draft revision could increase emissions compared to the status quo if it causes a decline in corporate clean power procurement. “We’re looking at a potentially really catastrophic failure of the renewable energy market,” Gavin McCormick, the co-founder and executive director of WattTime, told me.
Another concern is that companies with operations in multiple regions could shift from signing long-term contracts for RECs, often called power purchase agreements, to relying on the spot market. These contracts must be large to be beneficial for developers because negotiating multiple offtake agreements for a single renewable energy project increases costs and risk. Such deals may still make sense for big energy users like data centers, but a company like Starbucks, with cafes throughout the country, will have to start sourcing fewer RECs in more places to cover all the parts of the world where they operate.
The granularity fans assert that their proposal will not be as challenging or expensive as critics claim — and regardless, they argue, real decarbonization is difficult. It should be hard for companies to make bold claims like saying they are 100% clean, Daly told me. “We need to get to a place where companies can be celebrated for being like, I’m not 100% matched, but I will be in five years,” he said.
The proposal does include carve-outs allowing smaller companies to continue to use annual matching and for legacy clean energy contracts, even if they don’t meet hourly or location requirements. But critics like McCormick argue that the whole point of revising the standard is to help catalyze greater emission reductions. Less participation in the market would hurt that goal — but more than that, these accounting rules aren’t designed to measure emissions, let alone maximize real-world emission reductions. You could still have one company that spends the time and money to invest in scarce resources at odd hours and achieves 60% clean power, while another achieves the same proportion by continuing to buy abundant solar RECs. Both would still get to claim the same sustainability laurels.
The biggest corporate defender of time and location matching is Google. On the other side are tech giants Meta and Amazon, among others, arguing for an approach more explicitly focused on emissions. They want the Greenhouse Gas Protocol to endorse a different accounting scheme that measures the fossil fuel emissions displaced by a given clean energy purchase and allows companies to subtract that amount from their total scope 2 footprint — much more akin to the way carbon offsets work.
If done right, this method would recognize the difference between a solar REC in California and one in Wyoming. It would give companies more flexibility, potentially deploying capital to less developed parts of the world that need help to decarbonize. It could also, eventually, encourage investment in less mature and therefore more expensive resources, like energy storage and geothermal — although perhaps not until there’s solar panels on every corner of the globe.
This idea, too, is risky. Calculating the real-world emissions impact of a REC, which the scope 2 working group calls “consequential accounting” is an exercise in counterfactuals. It requires making assumptions about what the world would have looked like if the REC hadn’t been purchased, both in the near term and long term. Would the clean energy have been generated anyway?
McCormick, who is a proponent of this emissions-focused approach, argues that it’s possible to measure the counterfactual in the electricity market with greater certainty than with something like forestry carbon offsets. With electricity, he told me, “there's five minute-level data for almost every power plant in the world, as opposed to forests. If you're lucky, you measure some forests, once a year. It's like a factor of 10,000 times more data, so all the models are more accurate.”
Some granularity proponents, including Ricks, agree that consequential accounting is valuable and could have a place in corporate reporting, but worry that it’s ripe for abuse. “At the end of the day, you can't ever verify whether the system you're using to assign a given company a given number is right, because you can't observe that counterfactual world,” he said. “We need to be very cautious about how it’s designed, and also how companies actually report what they’re doing and what level of confidence is communicated.”
Both proposals are flawed, and both have potential to allow at least some companies to claim progress on paper while having little real-world impact. In some ways, the disagreement is more philosophical than scientific. What should this standard be trying to achieve? Should it be steering corporate dollars into clean energy, accuracy of claims be damned? Or should it be protecting companies from accusations of greenwashing? What impacts do we care about more, faster emissions reductions or strategic decarbonization?
“They’re actually not opposing views,” McCormick told me. “There’s these people making this point and there’s these people making this point. They’re running into each other, but they’re actually not saying opposite things.”
To Michael Gillenwater, executive director of the Greenhouse Gas Management Institute, a carbon accounting research and training nonprofit, people are attempting to hide policy questions within the logic and principles of accounting. “We’re asking the emissions inventories to do too much — to do more than they can — and therefore we end up with a mess,” he told me. Corporate disclosures serve many different purposes — helping investors assess risk, informing a company’s internal target setting and performance tracking, creating transparency for consumers. “A corporate inventory might be one little piece of that puzzle,” he said.
Gillenwater is among those that think the working group’s time- and location-matching proposal would stifle corporate investment in clean energy when the goal should be to foster it. But his preferred solution is to forget trying to come up with a single metric and to encourage companies to make multiple disclosures. Companies could publish their location-based greenhouse gas inventory and then use market-based accounting to make a separate “mitigation intervention statement.” To sum it up, Gillenwater said, “keep the emissions inventory clean.”
The risk there is that the public — or indeed anyone not deeply versed in these nuances — will not understand the difference. That’s why Brander, the Edinburgh professor, argues that regardless of how it all shakes out, the Greenhouse Gas Protocol itself needs to provide more explicit guidance on what these numbers mean and how companies are allowed to talk about them.
“At the moment, the current proposals don’t include any text on how to interpret the numbers,” he said. “It’s almost incredible, really, for an accounting standard to say, here’s a number, but we’re not going to tell you how to interpret it. It’s really problematic.”
All this pushback may prompt changes. After the upcoming comment period closes in late November or early December, the working group could decide to revise the proposal and send it out for public consultation again. The entire revision process isn’t estimated to be completed until the end of 2027 at the earliest.
With wind and solar tax credits scheduled to sunset around then, voluntary action by companies will take on even greater importance in shaping the clean energy transition. While in theory, the Greenhouse Gas Protocol solely develops accounting rules and does not force companies to take any particular action, it’s undeniable that its decisions will set the stage for the next chapter of decarbonization. That chapter could either be about solving for round-the-clock clean power, or just trying to keep corporate clean energy investment flowing and growing, hopefully with higher integrity.
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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?