Permitting Reform’s Battle Lines Are Taking Shape

This is Heatmap Daily, an evening digest written by our executive editor.

It’s now been just over a week since a gang of four bipartisan senators released the Bipartisan American Affordability and Jobs Act, or BAAJA. The permitting reform proposal would make too many changes to federal law to summarize cleanly here — read our explainer for that — but suffice it to say it creates a messy group of winners and losers. Utilities, data centers, and the Trump administration would lose; electricity ratepayers, clean energy companies, long-distance transmission lines, and natural gas pipeline builders win. (As would geothermal startups, virtual power plant providers, and a few other climate tech subsectors that my colleague Katie Brigham recently detailed.)

In the ensuing week since its release, we’ve gotten a better sense of the battle lines over the bill. The hardhat unions largely support the proposal (although the International Brotherhood of Electrical Workers, which is often aligned with utility executives, has stayed notably silent on it.) Clean energy trade groups, such as the American Clean Power Association, back it, too, as do fossil fuel lobbying groups, such as the American Petroleum Institute.

Groups representing the environmental and climate movement are more split, and some of the most influential nonprofits have yet to render a verdict. Earlier today, the Sierra Club published its first take on the proposal, which it described as a “hard look” at the bill. The Natural Resources Defense Council asked its own “hard questions” last Friday. Neither document rejects the proposal outright, although both are critical, and both suggest that future statements are coming.

To some degree, the statements say what you might expect: The groups like all the parts of the compromise that Democrats fought for (such as those that will encourage transmission) and dislike what Republicans wanted (such as those that will ease some pipeline permitting). That is what a compromise means — and for congressional procedure reasons too tedious to explain here, permitting reform will likely always need to be passed as a bipartisan compromise, because it will always need to overcome a 60-vote Senate filibuster.

The Sierra Club’s assessment divides the bill into “green flags,” which will make “long-overdue changes to protect consumers and level the playing field for proposed transmission,” such as by making it easier to plan long-distance power lines, protect ratepayers from utility and data center freeloading, and clarify who in the government can approve power lines. It also names four “red flags,” including the “hollowing out” of court authority over some permits, the removal of a Clean Water Act provision that lets governors block pipelines and power lines, and the option to delegate partial Endangered Species Act enforcement to state governments.

This is a helpful scheme, and I hope the Sierra Club continues using it. But I think it would be a mistake to analyze the bill solely through this metric, because it implicitly assumes we are starting from a neutral baseline — or that every additional “unit” of policy support, so to speak, helps an insurgent industry as much as it might aid an incumbent industry. To be clear: Although I’ve endorsed the idea of permitting reform in the past, I’ve been careful not to endorse or reject this particular permitting bill yet; I hope to write a more comprehensive take on this legislation — and whether I think it’s a good idea — before senators ultimately vote on it.

So for now, let me say that I think everyone should keep in mind that the baseline around U.S. energy permitting is, in fact, not neutral today. By this, I do not merely mean that natural gas pipelines already have a one-stop shop for federal permits, but transmission developers have to go hat in hand to every state government; nor that fracking is already carved out from some federal environmental review laws, but enhanced geothermal technology isn’t.

The mismatch goes deeper than that. Many of the discussions of the bill that I’ve seen seem to fear that the United States might witness some enormous and unprecedented fossil fuel buildout were the bill to pass. But make no mistake: We are already witnessing such a buildout. The United States is slated to add more than 60 gigawatts of new natural gas generation capacity by 2030 under its existing laws.

The existing system of laws, regulations, and procedures is failing to avert an enormous fossil fuel buildout. The existing system has proven itself completely inadequate to manage an era of electricity demand growth and the data center boom without surging fossil demand and sky-rocketing electricity prices. The existing system of laws is pushing hyperscalers and developers to burn natural gas on site, often through rudimentary jet engines.

And the existing system of laws has shown that fossil fuel consumers will go to great lengths to move and obtain fossil fuels, even when dedicated transport options like pipelines are not available. I’ve heard fears that the permitting bill will make it easier to build natural gas pipelines. But pipelines, to a dedicated artificial intelligence customer, are no constraint: Oracle is now delivering natural gas to some of its data centers by truck when pipeline capacity isn’t available.

There may be reasons for green groups to reject this deal. (And there may be reasons for Democratic lawmakers to support it anyway, even if environmental groups oppose it.) But the perfection of our current environmental and energy legal regime is not one of them. Even if your sole goal were to reduce the carbon emissions produced by the American energy system — even if you set aside the problems with cost, conventional pollution, or monopoly control — the current system sucks.