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“I am increasingly becoming irrelevant in the public conversation,” says Kate Marvel, a climate scientist who until recently worked at NASA’s Goddard Institute for Space Studies. “And I love it.”
For years, such an exalted state was denied to Marvel. Every week, it seemed, someone — a high-profile politician, maybe, or a CEO — would say something idiotic about climate science. Journalists would dutifully call her to get a rebuttal: Yes, climate change is real, she would say, yes, we’re really certain. The media would print the story. Rinse, repeat.
A few years ago, she told a panel, half as a joke, that her highest professional ambition was not fame or a Nobel Prize but total irrelevance — a moment when climate scientists would no longer have anything useful to tell the public.
That 2020 dream is now her 2023 reality. “It’s incredible,” she told me last week. “Science is no longer even a dominant part of the climate story anymore, and I think that’s great. I think that represents just shattering progress.”
We were talking about a question, a private heresy, I’ve been musing about for some time. Because it’s not just the scientists who have faded into the background — over the past few years, the role of climate science itself has shifted. Gradually, then suddenly, a field once defined by urgent questions and dire warnings has become practical and specialized. So for the past few weeks, I’ve started to ask researchers my big question: Have we reached the end of climate science?
“Science is never done,” Michael Oppenheimer, a professor of geosciences and international affairs at Princeton, told me. “There’s always things that we thought we knew that we didn’t.”
“Your title is provocative, but not without basis,” Katharine Hayhoe, a climate scientist at Texas Tech University and one of the lead authors of the National Climate Assessment, said.
Not necessarily no, then. My question, I always clarified, had a few layers.
Since it first took shape, climate science has sought to answer a handful of big questions: Why does Earth’s temperature change so much across millennia? What role do specific gases play in regulating that temperature? If we keep burning fossil fuels, how bad could it be — and how hot could it get?
The field has now answered those questions to any useful degree. But what’s more, scientists have advocated and won widespread acceptance of the idea that inevitably follows from those answers, which is that humanity must decarbonize its economy as fast as it reasonably can. Climate science, in other words, didn’t just end. It reached its end — its ultimate state, its Really Big Important Point.
In the past few years, the world has begun to accept that Really Big Important Point. Since 2020, the world’s three largest climate polluters — China, the United States, and the European Union — have adopted more aggressive climate policies. Last year, the global clean-energy market cracked $1 trillion in annual investment for the first time; one of every seven new cars sold worldwide is now an electric vehicle. In other words, serious decarbonization — the end of climate science — has begun.
At the same time, climate science has resolved some of its niggling mysteries. When I became a climate reporter in 2015, questions still lingered about just how bad climate change would be. Researchers struggled to understand how clouds or melting permafrost fed back into the climate system; in 2016, a major paper argued that some Antarctic glaciers could collapse by the end of the century, leading to hyper-accelerated sea-level rise within my lifetime.
Today, not all of those questions have been completely put aside. But scientists now have a better grasp of how clouds work, and some of the most catastrophic Antarctic scenarios have been pushed into the next century. In 2020, researchers even made progress on one of the oldest mysteries in climate science — a variable called “climate sensitivity” — for the first time in 41 years.
Does the field have any mysteries left? “I wouldn’t go quite so far as angels dancing on the head of a pin” to describe them, Hayhoe told me. “But in order to act, we already know what we need.”
“I think at the macro level, what we discover [next] is not necessarily going to change policymakers’ decisions, but you could argue that’s been true since the late 90s,” Zeke Hausfather, a climate scientist at Berkeley Earth, agreed.
“Physics didn’t end when we figured out how to do engineering, and now they are both incredibly important,” Marvel said.
Yet across the discipline, you can see research switching their focus from learning to building — from physics, as it were, to engineering. Marvel herself left NASA last year to join Project Drawdown, a nonprofit that focuses on emissions reduction. Hausfather now works at Frontier, a tech-industry consortium that studies carbon-removal technology. Even Hayhoe — who trained as a climate scientist — joined a political-science department a decade ago. “I concluded that the biggest barriers to action were not more science,” she said this week.
To fully understand whether climate science has ended, it might help to go back to the very beginning of the field.
By the late 19th century, scientists knew that Earth was incredibly ancient. They also knew that over long enough timescales, the weather in one place changed dramatically. (Even the ancient Greeks and Chinese had noticed misplaced seashores or fossilized bamboo and figured out what they meant.) But only slowly did questions from chemistry, physics, and meteorology congeal into a new field of study.
The first climate scientist, we now know, was Eunice Newton Foote, an amateur inventor and feminist. In 1856, she observed that glass jars filled with carbon dioxide or water vapor trapped more of the sun’s heat than a jar containing dry air. “An atmosphere of that gas,” she wrote of CO₂, “would give to our earth a high temperature.”
But due to her gender and nationality, her work was lost. So the field began instead with the contributions of two Europeans: John Tyndall, an Irish physicist who in 1859 first identified which gases cause the greenhouse effect; and Svante Arrhenius, a Swedish chemist who in 1896 first described Earth’s climate sensitivity, perhaps the discipline’s most important number.
Arrhenius asked: If the amount of CO₂ in the atmosphere were to double, how much would the planet warm? Somewhere from five to six degrees Celsius, he concluded. Although he knew that humanity’s coal consumption was causing carbon pollution, his calculation was a purely academic exercise: We would not double atmospheric CO₂ for another 3,000 years.
In fact, it might take only two centuries. Atmospheric carbon-dioxide levels are now 50 percent higher than they were when the Industrial Revolution began — we are halfway to doubling.
Not until after World War II did climate science become an urgent field, as nuclear war, the space race, and the birth of environmentalism forced scientists to think about the whole Earth system for the first time — and computers made such a daring thing possible. In the late 1950s and 1960s, the physicists Syukuro Manabe and Richard Wetherald produced the first computer models of the atmosphere, confirming that climate sensitivity was real. (Last year, Manabe won the Nobel Prize in Physics for that work.) Half a hemisphere away, the oceanographer Charles Keeling used data collected from Hawaii’s Mauna Loa Observatory to show that fossil-fuel use was rapidly increasing the atmosphere’s carbon concentration.
Suddenly, the greenhouse effect — and climate sensitivity — were no longer theoretical. “If the human race survives into the 21st century,” Keeling warned, “the people living then … may also face the threat of climatic change brought about by an uncontrolled increase in atmospheric CO₂ from fossil fuels.”
Faced with a near-term threat, climate science took shape. An ever-growing group of scientists sketched what human-caused climate change might mean for droughts, storms, floods, glaciers, and sea levels. Even oil companies opened climate-research divisions — although they would later hide this fact and fund efforts to discredit the science. In 1979, the MIT meteorologist Jules Charney led a national report concluding that global warming was essentially inevitable. He also estimated climate sensitivity at 1.5 to 4 degrees Celsius, a range that would stand for the next four decades.
“In one sense, we’ve already known enough for over 50 years to do what we have to do,” Hayhoe, the Texas Tech professor, told me. “Some parts of climate science have been simply crossing the T’s and dotting the I’s since then.”
Crossing the T’s and dotting the I’s—such an idea would have made sense to the historian Thomas Kuhn. In his book, The Structure of Scientific Revolutions, he argued that science doesn’t progress in a dependable and linear way, but through spasmodic “paradigm shifts,” when a new theory supplants an older one and casts everything that scientists once knew in doubt. These revolutions are followed by happy doldrums that he called “normal science,” where researchers work to fit their observations of the world into the moment’s dominant paradigm.
By 1988, climate science had advanced to the degree that James Hansen, the head of NASA’s Goddard Institute, could confidently warn the Senate that global warming had begun. A few months later, the United Nations convened the first Intergovernmental Panel on Climate Change, an expert body of scientists asked to report on current scientific consensus.
Yet core scientific questions remained. In the 1990s, the federal scientist Ben Santer and his colleagues provided the first evidence of climate change’s “fingerprint” in the atmosphere — key observations that showed the lower atmosphere was warming in such a way as to implicate carbon dioxide.
By this point, any major scientific questions about climate change were effectively resolved. Paul N. Edwards, a Stanford historian and IPCC author, remembers musing in the early 2000s about whether the IPCC’s physical-science team should pack it up: They had done the job and shown that climate change was real.
Yet climate science had not yet won politically. Santer was harassed over his research; fossil-fuel companies continued to seed lies and doubt about the science for years. Across the West, only some politicians acted as if climate change was real; even the new U.S. president, Barack Obama, could not get a climate law through a liberal Congress in 2010.
It took one final slog for climate science to win. Through the 2010s, scientists ironed out remaining questions around clouds, glaciers, and other runaway feedbacks. “It’s become harder in the last decade to make a publicly skeptical case against mainstream climate science,” Hausfather said. “Part of that is climate science advancing one funeral at a time. But it’s also become so clear and self-evident — and so much of the scientific community supports it — that it’s harder to argue against with any credibility.”
Three years ago, a team of more than two dozen researchers — including Hausfather and Marvel — finally made progress on solving climate science’s biggest outstanding mystery, cutting our uncertainty around climate sensitivity in half. Since 1979, Charney’s estimate had remained essentially unchanged; it was quoted nearly verbatim in the 2013 IPCC report. Now, scientists know that if atmospheric CO₂ were to double, Earth’s temperature would rise 2.6 to 3.9 degrees Celsius.
That’s about as much specificity as we’ll ever need, Hayhoe told me. Now, “we know that climate sensitivity is either bad, really bad, or catastrophic.”
So isn’t climate science over, then? It’s resolved the big uncertainties; it’s even cleared up climate sensitivity. Not quite, Marvel said. She and other researchers described a few areas where science is still vital.
The first — and perhaps most important — is the object that covers two-thirds of Earth’s surface area: the ocean, Edwards told me. Since the 1990s, it has absorbed more than 90% of the excess heat caused by greenhouse gases, but we still don’t understand how it formed, much less how it will change over the next century.
Researchers also know some theories need to be revisited. “Antarctica is melting way faster than in the models,” Marvel said, which could change the climate much more quickly than previously imagined. And though the runaway collapse of Antarctica now seems less likely, we could be wrong, Oppenheimer reminded me. “The money that we put into understanding Antarctica is a pittance compared to what you would need to truly understand such a big object,” he said.
And these, mind you, are the known unknowns. There’s still the chance that we discover some huge new climatic process out there — at the bottom of the Mariana Trench, perhaps, or at the base of an Antarctic glacier — that has so far eluded us.
Yet in the wildfires of the old climate science, a new field is being born. The scientists who I spoke with see three big projects.
First, in the past decade, researchers have gotten much better at attributing individual weather events to climate change. They now know that the Lower 48 states are three times more likely to see a warm February than they would without human-caused climate change, for instance, or that Oregon and Washington’s record-breaking 2021 heat wave was “virtually impossible” without warming. This work will keep improving, Marvel said, and it will help us understand where climate models fail to predict the actual experience of climate change.
Second, scientists want to make the tools of climate science more useful to people at the scales where they live, work, and play. “We just don’t yet have the ability to understand in a detailed way and at a small-enough scale” what climate impacts will look like, Oppenheimer told me. Cities should be able to predict how drought or sea-level rise will affect their bridges or infrastructure. Members of Congress should know what a once-in-a-decade heat wave will look like in their district five, 10, or 20 years hence.
“It’s not so much that we don’t need science anymore; it’s that we need science focused on the questions that are going to save lives,” Oppenheimer said. The task before climate science is to steward humanity through the “treacherous next decades where we are likely to warm through the danger zone of 1.5 degrees.”
That brings us to the third project: That climatologists must create a “smoother interface between physical science and social science,” he said. The Yale economist Richard Nordhaus recently won a Nobel Prize for linking climate science with economics, “but other aspects of the human system are still totally undone.” Edwards wanted to get beyond economics altogether: “We need an anthropology and sociology of climate adaptation,” he said. Marvel, meanwhile, wanted to zoom the lens beyond just people. “We don’t really understand ... what the hell plants do,” she told me. Plants and plankton have absorbed half of all carbon pollution, but it’s unclear if they’ll keep doing so or how all that extra carbon has changed how they might respond to warming.
Economics, sociology, botany, politics — you can begin to see a new field taking shape here, a kind of climate post-science. Rooted in climatology’s theories and ideas, it stretches to embrace the breadth of the Earth system. The climate is everything, after all, and in order to survive an era when human desire has altered the planet’s geology, this new field of study must encompass humanity itself — and all the rest of the Earthly mess.
Nearly a century ago, the philosopher Alexander Kojéve concluded it was possible for political philosophy to gain a level of absolute knowledge about the world and, second, that it had done so. In the wake of the French Revolution, some fusion of socialism or capitalism would win the day, he concluded, meaning that much of the remaining “work to do” in society lay not in large-scale philosophizing about human nature, but in essentially bureaucratic questions of economic and social governance. So he became a technocrat, and helped design the market entity that later became the European Union.
Is this climate science’s Kojéve era? It just may be — but it won’t last forever, Oppenheimer reminded me.
“Generations in the future will still be dealing with this problem,” he said. “Even if we get off fossil fuels, some future idiot genius will invent some other climate altering substance. We can never put climate aside — it’s part of the responsibility we inherited when we started being clever enough to invent problems like this in future.”
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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?