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States are playing Whack-a-Mole against restrictive local laws.
Why don’t we build things?
Yale Law School professor David Schleicher, who studies local government and land use, has been trying to answer this question for years. While Schleicher typically writes about housing, his latest work — an essay literally called “Why Can’t We Build?” for the New York University Journal of Law and Liberty — is useful for thinking about why we don't have as much green energy infrastructure as we need. “Despite a generation of low interest rates and innovation in many non-physical realms,” he writes, “there are few physical monuments that we will pass to future generations — where are today’s Brooklyn Bridges or Hoover Dams?”
There are certainly explanations for this lack of infrastructural boldness. But more importantly, what are the reasons for it?
The explanations are often local restrictions on growth. When it comes to housing, that might mean zoning regulations that limit what kind of structures can be built where or fees that are sometimes charged to multifamily units. For renewable energy, developers of wind and solar might find themselves coming up against noise restrictions, rules that essentially require minimum amounts of land for installations, or even outright bans on certain types of generation.
But that doesn’t explain why these rules exist — the reasons why infrastructure doesn’t get built. As for these, he told me, most of them come down to the structural factors of local politics. “Statewide majorities have policy preferences” that often support development, Schleicher said. But local a body of government institutions that have been built up since the 1970s “have limited the capacity of those stated statewide preferences to be reflected in policy in many places.”
When it comes to zoning, Schleicher told me, proponents of reform “make arguments at the local level, but they’re very simply turning to the state level because the issue is larger than any individual jurisdiction.” The same goes for renewable energy.
If you ask people across an entire state if they want more housing or renewable energy, they will likely say yes. But local elections — which typically have comparatively low participation and are more likely to be decided on national party lines than on local policy issues — rarely reflect this political reality. With a lack of direct checks from the electorate, interest and advocacy groups have outsize weight on local policymaking.
Local governments have a variety of structures meant to discourage growth and systematically prioritize the views of those with the time and inclination to show up to local meetings — not just those who show up to vote every two or four years. Decisionmaking on individual projects may be dominated by homeowners or local environmental groups that don’t want to see any building or change in the built environment.
Statewide policymaking, on the other hand, “can bring different interest groups to the fore,” Schleicher told me, including labor and large employers. When Michigan, for instance, passed a suite of clean energy bills in 2023 with support from labor, it allowed the state to take over permitting for large clean energy projects if the applicable local rules are too restrictive.
California, too, has passed a series of laws centralizing renewable energy permitting and limiting the appeals that advocacy groups can make to block projects, which Governor Gavin Newsom has already put to work. Earlier this year, he essentially fast-tracked a 400 megawatt solar project in Riverside County by giving opponents just nine months to petition against its approval.
In all likelihood, however, Michigan will have to pass more new laws and regulations to speed up renewable development in any meaningful way. “Realistically, one of the other things that the zoning story has taught us that may be relevant for clean energy is that it's almost never does one law do the trick,” Schleicher told me. When states have tried to boost housing production, he pointed out, it has often required several rounds of legislation to get a meaningful boost in production as local opponents of new housing adapt to new laws.
California, again, provides a helpful example. The state is in the midst of a massive building boom in so-called accessory dwelling units, a.k.a. “granny flats” or ADUs. Housing advocates in the state credit this not just to a set of bills passed in 2016 preempting certain local regulations including setbacks, some parking requirements, and fees for utility connections that discouraged their construction, but also to 11 more bills passed by 2022, methodically clearing out local restrictions on building, renting, and selling ADUs.
And this was just the latest chapter in the effort to encourage the building of ADUs — the first bill trying to get around local bans in California passed in 1982. Forty years later, however, there were still only 1,000 permitted ADUs in the whole state. As of 2022, the state had registered 82,000 ADUs, a fifth of all housing produced in the state that year, according to CA YIMBY, a housing advocacy group.
"The first couple times statewide ADU bills were passed, local governments would come up with other ways to stop things," Schleicher said.
Something similar has and likely will continue to happen as states try to wrest siting for renewables projects from local governments. In New York, a 1972 law the governing the siting of power plants has gone through many different iterations. This law, known as Article 10, was changed in 2010 to apply to smaller generators and therefore include renewables projects. Article 10 created a “siting board” that could permit renewables projects under a fast-track process that exempted them from environmental impact statements required by the State Environmental Quality Review Act. The Board would even be allowed to waive “unreasonably burdensome” local laws restricting renewables development.
But the new process did little to speed permitting. What was intended to be a one- to two-year process instead turned “more lengthy and challenging than originally anticipated,” according to Massachusetts Institute of Technology researchers Lawrence Susskind and Anushree Chaudari. By 2018, Columbia University professor Michael Gerrard and then Arnold & Porter partner Edward McTiernan wrote, a single project had been approved under the new system.
New York passed a new law in 2020, which included fixed timelines for review. The new process, while relatively new, has managed to get some local rules on renewable siting thrown out as “unreasonably burdensome,” and opponents to wind and solar projects have lost out in front of the new siting board.
As New York state struggles to meet its ambitious goals for decarbonization, it will likely need to reform land use and permitting regulations again, and again, and again, along with every other state.
“Remember that you’re in a long fight instead of a short one,” Schleicher told me. “One of the most important things is to be able to pass successive bills because local opponents to statewide efforts are going to adapt and change and respond.”
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Congressional Democrats will have to trust the administration to allow renewables projects through. That may be too big an ask.
How do you do a bipartisan permitting deal if the Republicans running the government don’t want to permit anything Democrats like?
The typical model for a run at permitting reform is that a handful of Republicans and Democrats come together and draw up a plan that would benefit renewable developers, transmission developers, and the fossil fuel industry by placing some kind of limit on the scope and extent of federally-mandated environmental reviews. Last year’s Energy Permitting Reform Act, for instance, co-sponsored by Republican John Barrasso and Independent Joe Manchin, included time limits on environmental reviews, mandatory oil and gas lease sales, siting authority for interstate transmission, and legal clarity for mining projects. That passed through the Senate Energy and Natural Resources Committee but got no further.
During a House hearing in July, California Representative Scott Peters, a Democrat, bragged that a bill he’d introduced with Republican Dusty Johnson to help digitize permitting had won support from both the Natural Resources Defense Council and the American Petroleum Institute — two advocacy groups not typically speaking in harmony. (He’s not the only one taking a crack at permitting reform, though: Another bipartisan House effort sponsored by House Natural Resources Committee chairman Bruce Westerman and moderate Maine Democrat Jared Golden would limit when National Environmental Policy Act-mandated reviews happen, install time limits for making claims, and restrict judicial oversight of the NEPA process.)
But unless Democrats trust the Trump administration to actually allow renewables projects to go forward, his proposal could be dead on arrival. Since the signing of the One Big Beautiful Bill Act on July 4, the executive branch has been on the warpath against renewables, especially wind. With the Trump administration’s blessing, OBBBA restricted tax credits for renewable projects, both by accelerating the phaseout timeline for the credits (projects have until July of next year to start construction, or until the end of 2027 to be placed in service) and by imposing harsh new restrictions on developers’ business relationships with China or Chinese companies. Mere days after he signed the final bill into law, Trump directed the Internal Revenue Service to write tougher guidance governing what it means to start construction, potentially narrowing the window to qualify still further.
“I think all of this fuzz coming out of the Trump administration makes trust among Democrats a lot harder to achieve,” Peters told me this week.
In recent weeks, Trump’s Department of the Interior has issued memos calling for political reviews of effectively all new renewables permits and instituting strict new land use requirements that will be all but impossible for wind developments to meet. His Department of Transportation, meanwhile, insinuated that the department under the previous administration had ignored safety concerns related to radio frequencies while instituting onerous new setback requirements for renewables development near roadways.
Peters acknowledged that bipartisan permitting reform may be a heavy lift for his fellow Democrats — “a lot of Democrats didn’t come to Congress to make permitting oil and gas easier,” he told me — but that considering the high proportion of planned projects that are non-emitting, it would still be worth it to make all projects move faster.
That said, he conceded that his argument “loses a lot of force” if none of those planned non-emitting projects that happen to be solar or wind can get their federal permits approved. “How can I even make a deal on energy unless I get some assurance that will be honored by the President?” Peters told me.
Other energy and climate experts broadly supportive of investment-led approaches to combatting climate change still think that Democrats should push on with a permitting deal.
“All of this raises the importance of a bipartisan Congressional permitting reform bill that contains executive branch discretion to deny routine permits for American energy resources,” Princeton professor and Heatmap contributor Jesse Jenkins posted on X. “Seems like there's a lot of reasons for both sides to ensure America's approach to siting energy resources doesn't keep ping-ponging back and forth every four years.”
But permitting reform supporters are aware of the awkward situation the president’s unilateral actions against renewables puts the whole enterprise in.
“The administration’s recent measures are suboptimal policy and no doubt worsen the odds of enacting a technology-neutral permitting reform deal,” Pavan Venkatakrishnan, an infrastructure fellow at the Institute for Progress, told me.
At the same time, he argued that Democrats should still try to seek a deal, pointing to the high demand for electrons of any type. Not even the Trump administration can entirely choke off demand for renewables, so permitting reform could still be worth doing to ensure that as much as can evade the administration’s booby traps can eventually get built.
“Projects remain at the mercy of a burdensome regulatory regime,” Venkatakrishnan said. “Democrats should remain committed to an ambitious permitting deal — the best way to reduce deployment timelines and costs for all technologies, including solar-and-storage.”
Venkatakrishnan also suggested that Democrats could, in a bipartisan deal, seek to roll back some of the executive branch actions, including the Interior memo subjecting wind and solar to heightened review or the executive order on the definition of “begin construction.” There would be a precedent for such an action — the 2024 Manchin-Barrasso permitting reform bill attempted to scrap the pause on liquified natural gas approvals that the Biden administration had implemented. But then of course, that didn’t ever become law. (Manchin and congressional Republicans were able to clear the way to permitting a specific project, the Mountain Valley Pipeline in a larger bipartisan deal.)
What could unlock a deal, Yogin Kothari, a former congressional staffer and the chief strategy officer of the SEMA Coalition, a domestic solar manufacturing group, told me, would be the Trump administration getting actively involved. “The administration is probably going to have to lead,” Kothari said. “It’s going to be up to folks in the administration to go to the Hill and say, We do need this, and this is what it’s going to mean, and we’re going to implement this in good faith.”
This would require a delicate balancing act — the Trump administration would have to think there’s enough in a deal for their favored energy and infrastructure projects to make it worth perhaps rolling back some of their anti-renewables campaign.
“The administration is going to have to convince Democrats that it’s not permitting reform just for a subset of industries,” i.e. oil, gas, and coal, “but it is really technology neutral permanent reform,” Kothari said. “On the Senate side, it comes down to whether seven Senate Democrats feel like they can trust the admin to actually implement things in a way that is helpful across the board for energy dominance.”
One reason the administration itself may have to make commitments is because Congressional Democrats may not trust Republicans to stand behind legislation they support and vote for, Peters told me.
“Obviously we’d have to get some face-to-face understanding that if we make a deal, they’re going to live by the deal,” he said.
Peters pointed to the handful of Republicans who successfully negotiated for a longer runway for renewable tax credits, only to see Trump move almost immediately to tighten up eligibility for those tax credits as reason enough for skepticism. He also cited the cuts to previously agreed-upon spending that the Trump administration pushed through Congress on a party line vote as evidence that existing law and deals aren’t necessarily stable in Trump’s Washington.
“If we do a deal — Republicans and Democrats in Congress, the House and Senate, get together and make an agreement — we have to have assurance that the President will back us,” Peters told me.
No bipartisan deal is ever easy to come by, but then historically, “everybody lives by it,” he said. “I think that may be changing under this administration, and I think it makes everything tougher.”
And more of the week’s most important conflicts around renewable energy.
1. Sussex County, Delaware – The Trump administration has confirmed it will revisit permitting decisions for the MarWin offshore wind project off the coast of Maryland, potentially putting the proposal in jeopardy unless blue states and the courts intervene.
2. Northwest Iowa – Locals fighting a wind project spanning multiple counties in northern Iowa are opposing legislation that purports to make renewable development easier in the state.
3. Pima County, Arizona – Down goes another solar-powered data center, this time in Arizona.
4. San Diego County, California – A battery storage developer has withdrawn plans to build in the southern California city of La Mesa amidst a broadening post-Moss Landing backlash over fire concerns.
5. Logan and McIntosh Counties, North Dakota – These days, it’s worth noting when a wind project even gets approved.
6. Hamilton County, Indiana – This county is now denying an Aypa battery storage facility north of Indianapolis despite growing power concerns in the region.
They don’t have much to lose, Heiko Burow, an attorney at Baker & Mackenzie, tells me.
This week, since this edition of The Fight was so heavy, I tried something a little different: I interviewed one of my readers, Heiko Burow, an attorney with Baker & Mackenzie based in Dallas, Texas. Burow doesn’t work in energy specifically – he’s an intellectual property lawyer – but he’s read many of my scoops over the past few weeks about attacks on renewable energy and had legitimate criticism! Namely, as a lawyer who is passionate about the rule of law, he wanted to send a message to any developers and energy wonks reading me to use the legal system more often as a tool against attacks on their field.
The following conversation has been abridged for clarity. Let’s dive in.
So Heiko, you reached out to me after my latest scoop about how the Trump administration is now trying to create national land use restrictions on wind projects through the Department of Transportation. In your email, you said the Trump administration “cannot invent a setback requirement by executive fiat.” What does this mean?
Something you need to understand from my point of view is, there’s all these things coming out of the White House, the executive. Like the setback requirement: If the law says they have the right to do that, then okay. But the viewpoints of the administration do not replace the law.
There’s no requirement in the law that the Secretary of Transportation can require a setback. He can’t just come in and say here’s a required setback. The government can only do what the law allows a government to do.
For example, a CEO can’t come into a company and say all the contracts are null and void. The president, in the same way, can’t say everything that’s legally binding is no longer legally binding. There are two ways that creates a problem: one is that it is a breach of contract, and the courts will say there’s a different remedy for that. But there’s also a constitutional problem with that.
Why did you reach out to me about this story, in particular?
I’m just concerned about the environment, and our country, and our democracy.
As someone who works with corporations navigating the legal system under Trump, why do you think companies – like renewable developers – aren’t suing left and right in this moment?
I think they’re timid.
It’s not just companies – it’s stakeholders in general. In 2017, there was pushback on Trump. That is missing. Look at the tech industry – and a lot of investments in renewable energy come from the tech area – and how they lined up with Trump on Inauguration Day.
That is fear. I’d say other stakeholders too are now ruled by fear.
As someone who advises companies in other areas of law, what posture do you think renewable energy companies should take?
Band together. Renewable energy companies, you don’t have much to lose. He’s persecuting you.
I know people stay under the radar, like community solar entities that he could have forgotten about. But he didn’t forget about them. So they need to band together and fight.
Everybody’s just lying low and being afraid. But how much more can renewable energy companies lose? Right now they’re still surviving, because the business case for renewable energy works and states are supporting it. But they’re quiet about it on the national level.
If people start believing what Trump says is the force of law, then it’ll just be that way. And I don’t see a coordinated response to that.