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Plus a note on batteries.

Rooftop solar is not like other types of consumer technology. Even though the end result is having a bunch of electrical equipment installed on the roof of your home, the process of getting solar is more like doing a bathroom renovation than buying a flat screen TV. To get the results you’re looking for, the most important decisions you’ll make are not the brand or model of the panels, but rather who you hire for the job, the size of your system, and how you finance it.
There’s a bunch more choices you’ll have to navigate along the way, and it’s easy to get overwhelmed. One expert I spoke with told me that sometimes the customers who are the most excited about getting solar end up bailing, the victims of decision fatigue.
We created this guide to save you from that fate. So take a deep breath, take my hand, and let’s walk down the metaphorical hardware store aisle and get you the rooftop solar solution you’re dreaming of.
Roger Horowitz is the director of Go Solar programs at Solar United Neighbors, a national nonprofit that serves as an unbiased resource for homeowners interested in solar. Horowitz manages and provides technical support to the company’s Solar Help Desk team.
Tony Vernetti is a senior trainer at Enphase Energy, a company that produces inverters, batteries, and EV chargers, where he trains solar sales and installation teams. Before joining Enphase in 2020, Vernetti spent 12 years working for rooftop solar companies in California.
Nate Bowie is the vice president of residential sales at ReVision Energy, an employee-owned solar company operating throughout northern New England. Bowie has been selling solar for ReVision for 15 years.
While the actual installation of the system should only take one to two days, the entire process from initial outreach to grid connection takes two to four months on average, according to Solar United Neighbors.
Example: The highest rated solar panels for 2024 according to EnergySage.com are SunPower's M-Series 440 watt model. If you install 20 of these, the system will be capable of generating 8,800 watts, or 8.8 kilowatts in direct sun.
When you start searching for information about solar on the internet, you might come across advertisements or commercials promoting free solar panels. There is no such thing. These ads are typically schemes to collect your personal data and sell it to solar companies looking for leads, and the federal government is starting to
crack down on them.
It is possible to install solar with zero up-front costs if you lease the system or take out a loan to finance it, but in both cases you will still owe monthly payments. It is also rare that anyone is able to offset 100% of their utility bill. You can get close, but you will likely still owe at least a connection fee to your utility company.
Most homeowners in the U.S. can benefit from installing solar as long as local energy policies are favorable. Placing the panels on a south-facing roof is optimal, but not necessary. If your panels face due west, you’ll only lose about 10% of potential generation, according to Vernetti. “They still produce a ton of energy. They’re still very effective. It's just a little bit less than if they're facing south,” he said. An east-facing roof is also viable in most cases.
You don’t have to worry about shoveling snow off the roof or anything like that. But like any other electronic devices, solar panels, inverters, and batteries can break or malfunction, and your system may require servicing at some point. Pay close attention to your warranties (more on that later). If you lease the system, you do not have to worry about this as much because the third-party owner will be responsible for maintenance.
In order to design a system that meets your needs and budget, solar companies will ask for a copy of your most recent electricity bill or, ideally, your annual energy consumption history. Make sure you have this information handy before you reach out for quotes.
Some utilities include your annual energy consumption, broken out by month, at the bottom of your electric bill. If you don’t see it, you should be able to log into your utility account online and download either your statements from the past year or a spreadsheet of your monthly electric meter readings.
In most of the U.S., you will find you have the option either to lease your solar panels or buy them outright. You don’t have to decide which way you want to go before you get started, but it’s helpful to think through the pros and cons of each.
Heatmap Recommends leasing if: You’re fairly certain you’ll keep your house for the next 15 to 20 years; you can’t afford the system outright, but you don’t want to take out a loan; your priority is to generate clean energy and reduce emissions, but you don’t want to spend too much time figuring out what you want or worrying about the system’s maintenance.
Heatmap Recommends buying if: You have the cash in hand; you might sell your house in the next 20 years; you know you want to have control over the details of your project.
The federal government offers a 30% tax credit for solar installations (and batteries) that covers parts and labor. It can significantly reduce the cost of getting solar, even if you don’t have a lot of tax liability in the year that you install the system. The credit will roll over to subsequent tax years.
Example: If you spend $25,000 installing solar in 2024, you’ll be eligible to take $7,500 off your federal income tax bill. If you only owe $3,000 in federal taxes in 2024, you’ll get $3,000 back and will be eligible to claim the remaining $4,500 for the 2025 tax year. If in 2025 you only owe $3,000 again, you can claim the remaining $1,500 in 2026.
Additional tax credits and rebates may also be offered by your state energy office, city, or utility. Contractors should be able to help you figure out what you’re eligible for, and you can wait to talk to them to learn more. However, incentives change frequently, and contractors don’t always keep up, so you might want to review the options in your area independently.
It will also be helpful to understand your state’s net metering policy, as that will determine how quickly your investment in solar will pay off and may also dictate how big your system can be. Some states, like New Jersey, also allow homeowners to generate additional income through the sale of solar renewable energy credits, or SRECS.
Where to look for more information:
One of the worst things that could happen is you install rooftop solar panels, and then later find out you have a leak or some other problem with your roof. “Removal and replacement of an array for a reroof is expensive and could significantly impact the owner’s return on investment,” Bowie told me. While metal roofs last a very long time and are unlikely to need a replacement, asphalt shingle roofs generally have a useful life of 25 to 30 years, Bowie said. You should be fine if your roof is less than 10 years old, but if not, you may need some roofing work done before your solar panels are installed.
If you don’t know how old your roof is, Vernetti recommended having a roofing contractor inspect it. He added that there’s varying opinions on this, with some solar experts recommending replacement if the roof is only 5 years old. “In my opinion, scrapping a 5 year old roof is wasteful and goes against the goal of sustainability,” he said.
“A good solar contractor will help evaluate the roof conditions and should recommend replacement when necessary, even if it is just to replace the roof on the roof plane where the solar panels will go,” said Bowie.
Solar contractors range from local mom and pop shops, to regional providers like ReVision Energy, which operates in multiple states in the Northeast, to national companies that install across the country like Sunrun and Sunnova.
“The advantage of going with a large company is that they have the ability to offer financing the smaller companies might not be able to. With a regional company, you can actually walk to their office and knock on the door and talk to somebody if you want to,” said Vernetti.
Heatmap Recommends: Contact at least one local company and one national company to get a good sense of your options. Always get at least three quotes!
If you are calling installers directly, here are some tips for what you should ask for or look for in a quote. (If you are using an online resource like EnergySage that finds quotes for you, use the following to help you ask follow-up questions or refine the proposals.)
A few questions you should ask:
One of the first questions an installer might ask you is how big you want the system to be. You may want to see quotes for multiple options in order to compare them. Options include:
Heatmap Recommends: Oversize your system if you can afford it.
Why?
Exceptions:
Most installers will include a financing option in their quote. Horowitz noted that some installers advertise very low interest rates that are below market rate. They are typically able to do this by paying a “dealer fee” to the bank, which they incorporate into the price of your installation — in other words, if your interest rate seems too good to be true, the total cost of your installation will likely be higher than it otherwise would be. To get a better sense of the true cost, ask for quotes both with and without financing options.
Adding energy storage, a.k.a. a battery, to your solar array can add another 10 grand or more to the project cost. But there are a few reasons it might be worth it:
In conclusion, if you just want back-up power, any battery that’s large enough to power your essential systems should do. If you want to pay off the investment, look into time-of-use rates. If you want your investment to go further for decarbonization, ask your contractor if there are local grid services programs available, and if any of their products are compatible.
After you get a few quotes, you’re going to want to spend some time comparing them, asking questions, and potentially soliciting additional quotes with variations on the system. If you’re feeling overwhelmed or you don’t have the time or patience to sort through the details on your own, you can also call the Solar United Neighbors Help Desk, which offers a free quote review service.
The most important number on the quote is the price per watt, not the total system cost. That is the number you should be comparing between different installers, as the quotes may be for differently sized systems.
You should also compare the annual bill savings. If two different companies quote you significantly different savings for systems that are roughly the same size, one of them has likely done a more detailed analysis of your roof than the other.
“It doesn't matter what module you have, from which manufacturer, or what inverter you have. There really is no difference in what your system can produce if it's the same size,” said Bowie.
Lastly, if the quote is for a solar lease, or includes a financing option, look at the monthly payments.
Every installer has certain brands and types of equipment they work with. Our expert panel agreed that it’s important to look at the brand names the installer is offering for the solar panels, inverters, and batteries, and to make sure they are from reputable companies that have been around for at least five years — even if it means paying more. A quick internet search of the top 10 residential solar panel brands should give you a taste of what those companies are.
“It is definitely worth paying a little bit extra to have really good equipment,” Vernetti said.
You may also see installers advertise that they offer “Tier 1” solar panels. That means the manufacturer has been designated “bankable” by Bloomberg New Energy Finance. The designation is more related to finance than product quality, but many solar companies use it as a rough proxy for reliability.
That being said, don’t get too bogged down in comparing solar brands.
“There's not a huge difference, typically, between one solar panel and the next of the Tier 1 manufacturers,” said Bowie. “A lot of solar companies will maybe offer one or two different manufacturers, and then maybe beyond that one or two different sizes.”
When it comes to inverters, you do want to pay attention to whether your quote includes string inverters, microinverters, or power optimizers. In a system with a string inverter, your panels will all be wired to one central inverter. This is generally the cheapest option, but it is less durable and may need to be replaced, said Vernetti, whose employer, Enphase, is the leading producer of microinverters. String inverters can also limit the output of your system if part of the roof gets more shade.
The other two options are more expensive but get around the issue with shade. A system with power optimizers is similar to one with a string inverter, but each panel will also have a small device attached to it that regulates the output and maximizes your system’s performance. By contrast, microinverters are small inverters attached to each individual panel. Both of these options also allow you to monitor each panel’s performance.
Bowie said the two were comparable in terms of performance and price. A key consideration, he said, is that your choice of inverter can begin to lock you into using the same brand of equipment on other home upgrades you might do down the line. “If you're an EnPhase customer, you're likely going to be going down the track of an EnPhase battery storage system,” he said. “Whether the customers know it or not, they're kind of being pushed down a path towards this manufacturer for more things in their home, like batteries, whole home controls, electric vehicle charging."
Your quote should provide information about warranties offered by the manufacturers of the panels, inverters, and batteries, as well as by the installation company. 25-year warranties are standard, but the details vary by installation company and by manufacturer. For example, your inverters may have a 25-year warranty, meaning you can get replacement inverters for free if any of them fails within that time period — but if you don’t have a warranty on labor, it could cost you several hundred dollars to get them installed.
“It's really important for customers to read the fine print and to talk with their local solar company who is quoting the system for them to uncover what the warranties mean,” said Bowie.
This is especially important if you are installing batteries. Ask your installer about both the equipment warranty and their policy is for servicing the equipment.
Most solar installers offer financing options. Your quote should include the name of the lender the installer works with, the down payment, monthly payment, financing term, and interest rate. However, you may find a better deal elsewhere. Horowitz noted that installers like using their own financing companies because it speeds up the sales process — they can approve you for a loan just by putting in your social security number, and sell it to you at the same time as the contract. But you may find a better deal elsewhere.
“Talk to your bank, talk to your credit union, look at home equity lines of credit, see what other options you have out there, and if those have lower interest rates or better payment terms,” said Horowitz. “You are not required to use their finance.”
After you’ve found an installer, settled on a system design, and secured financing, all that’s left to do is sign your contract. Then, you wait. Your installer will have to obtain permits from your city, county, or state, as well as an interconnection agreement with your utility.
One way to try to minimize the wait time is by working with an installer with lots of local experience. They’ll be better equipped to navigate the permitting process. For example, if you want Tesla solar panels but Tesla hasn’t done many installations in your community, it may take longer for the company to get through this stage.
After these two steps are complete, the solar company will reach out to you to schedule the installation, which should only take a few days.
After the system is installed, you may have to wait for a final inspection from your utility or a verified third party for permission to operate the system.
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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?