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From the source to the registers.

The term “heat pump” refers to any system that can extract heat from a colder space and transfer it to a warmer one. For example, refrigerators use heat pumps to remove heat from inside the fridge and expel it into your kitchen. Air conditioners use heat pumps to remove heat from inside the house and dump it outside. In this guide, the phrase “heat pump” refers specifically to HVAC equipment that is capable of both heating
and cooling the air inside a home. In other words, we’re talking about air conditioners that can also run in reverse, pulling heat from outside on a winter day and pumping it inside.
We’ve created this guide because when it comes to getting off fossil fuels, it does matter what you replace them with. Climate advocates tout electric heat pumps because they can create two to three times more heat per unit of energy than other heating equipment. Electric resistance heating, by contrast, is extremely wasteful, and if people start installing those systems en masse, that could actually increase emissions in the near term and make it more difficult to decarbonize the economy in the long term. By getting a heat pump, you won’t just be cutting emissions, you’ll be reducing the cost of cleaning up the electric grid because we’ll need less electricity overall.
That said, a poorly designed or installed system can negate many of the benefits that heat pumps have to offer. Whether you’re reading because you want to cut emissions, or save money on energy, or take advantage of the steady, quiet comfort heat pumps provide, it’s essential to do your homework and find a good contractor to work with. In this guide, we’ll cover how to know when it’s the right time to get heat pumps, the basics of understanding what your options are, common misconceptions about heat pumps, how to find and vet contractors, and more.
Larry Waters is the founder and president of Electrify My Home, a heating and air conditioning contractor in Northern California that specializes in heat pumps. Waters has worked in the HVAC industry for more than 40 years.
D.R. Richardson is the co-founder of Elephant Energy, a Boulder, Colorado-based startup that helps homeowners in Colorado and Massachusetts electrify by using building science and proprietary software to ensure good system design, and by managing all aspects of the project.
Jake Marin is the senior emerging opportunities manager for VEIC, a clean energy nonprofit that administers Vermont and D.C.’s energy efficiency programs among other decarbonization work across the country. Marin ran VEIC’s HVAC program for nearly 8 years and was recently given a “Champion of Energy Efficiency” award for his pioneering work bringing heat pumps to Vermont.
There are many, many kinds of electric heat pumps used for space heating and cooling. At a high level, there are two main categories that homeowners can typically choose from:
Within each of these are a handful of installation options:
The above designs aren’t mutually exclusive. You can install a system that’s fully ducted, fully ductless, or a combination of both. You can also combine a heat pump system with a fuel-burning furnace or boiler, known as a dual-fuel system. If aesthetics are important to you, there are also companies like Quilt that offer versions that can better integrate into the look of your home.
“Ductwork in unfinished space is easy. Ductwork in finished space is so expensive and hard that we typically don't recommend it,” said Richardson.Heat pumps also come in models with different “speeds” or “stages”:
There are also some technical specifications to be aware of, such as seasonal efficiency ratings:
The highest rated SEER2 device may have a lower HSPF2 rating, while the highest rated HSPF2 device may have a lower SEER2 rating.
Finally, heat pumps also come in many different sizes. Having a properly sized system is one of the most important factors for ensuring your heat pumps run efficiently and last a long time.
A good contractor will be able to walk you through different system designs and equipment options to find the answer that’s best suited to your house, your goals, and your budget.
“There’s a lot of companies out there that offer just what they have in the catalog and their salespeople can’t sell anything outside of that,” Waters told me. “That means the customer is going to get matched with that cookie cutter option if they go with that company. So how to choose a contractor is one of the most important things.”
Many people are used to setting their HVAC systems to different temperatures at different times of day — one temp for the morning and evening, another for when they leave for work, and another for bedtime. This makes sense with many furnaces and air conditioners because they’re usually designed to cycle on, blast hot or cold air at full capacity until they achieve the temperature you want, and then turn off, so turning down the system when you’re not home can save a lot of energy. But the most efficient “variable speed” heat pumps work differently — they use a lot of energy to reach a certain temperature, but once they hit it, they sip small amounts of energy to maintain it. Experts say a “set it and forget it” approach will give you the most efficient performance and the most consistent energy bills.
“Don’t worry about the number,” says Marin. “Just find your comfortable temperature, and then leave it alone, forget it’s even there.”
This topic can be divisive among HVAC experts, but in most of the continental U.S., you should be able to find a heat pump solution that will heat your home efficiently on the coldest winter days. The key is that the system has to be sized correctly. Richardson’s company, Elephant Energy, works in Colorado, where he says they’ve had two years in a row with days that got down to -13 degrees Fahrenheit, “and our fleet of hundreds of heat pumps have cranked out heat to keep homes nice and warm on those coldest days.”
There still may be scenarios where you
want to keep your furnace as a back-up, even if it’s not strictly necessary.
If you’re switching from fuel oil, propane, or electric resistance heating, you’re pretty much guaranteed to save money on your bills with heat pumps. But if you’re switching from natural gas, it really depends on where you live.
Richardson says that for a lot of his customers in Colorado, making the switch from gas to inverter heat pumps is cost neutral — they end up paying a bit more for heating in the winter but less for cooling in the summer, since the heat pump is often more efficient than whatever air conditioning they were replacing. At the same time, those who don't have air conditioning to start with could end up paying a bit more year-round.
Do you…
Short answer: Hold off on a heat pump, invest in weatherization.
Long answer: You may have arrived at this guide because you’re interested in decarbonizing your home, but if you have a relatively new heating and/or cooling system, it could actually be worse, emissions-wise, to replace it, due to the embedded carbon that went into manufacturing that equipment. Unless you’re really desperate to replace your existing system for comfort or financial reasons (if you have electric resistance heaters, for example, switching to heat pumps could save you a lot of money, since they use about a third of the electricity), we recommend getting a bit more life out of it first.
In the meantime, put your enthusiasm for decarbonization into making your home more efficient. Insulating and air sealing your home before you get heat pumps will help you save money in the near term and get you the best results from heat pumps later on.
Short answer: Consider a dual fuel system
Long answer: If you really need a new air conditioning system but your heater still has a lot of life left in it, consider installing a heat pump to work alongside your existing furnace or boiler. That way, you’ll get efficient cooling capacity that will save you money in the summer, and you’ll also be able to cut down on your fossil fuel consumption in the winter. You can set the heat pump to warm your home until it gets down to a certain temperature outside, at which point your furnace or boiler will kick in. (Many heat pump models can operate in very cold temperatures, so having a backup heating system like this is not necessary, but it may be a good intermediate step in certain cases.)
Short answer: It’s the perfect time to think about heat pumps!
Long answer: HVAC equipment typically lasts for 15 to 20 years, so 10 years is probably the earliest you would want to start thinking about a replacement. It’s probably safe to wait a few years longer, but you definitely don’t want to wait until your existing system breaks to start your heat pump journey. A heat pump retrofit can be a months-long process, from finding contractors, to evaluating quotes, to refining your plan, to getting permits and scheduling the work. If you’re in an emergency situation where your boiler broke and you really need heat, you could be forced to settle for a less-than-ideal solution. At the very least, start your research now and consider weatherization upgrades.
Short answer: Get a mini-split!
Long answer: Ductless mini-split heat pumps are a no-brainer to provide heating and cooling to a single room or zone. They can be very affordable — and in some cases free — with rebates and tax credits. If you want to retrofit the rest of your home to use heat pumps down the line, this will help you get familiar with the technology and will not preclude you from adding more later — though it is helpful to tell your contractor that now so they can take it into account.
Heat pumps can be a major investment. If you just want to add heating or cooling capacity to one or two rooms, it can cost $5,000 to $7,000 per room, on average, before incentives, Richardson told me. A whole-home solution averages $20,000 to $30,000 before incentives, but depending on the home and the system design can go much higher.
Do you have some rooms that are hotter in the summer or colder in the winter than others and you want to make your home more comfortable overall? Or is your goal to get better air filtration and ventilation? Or do you simply want to get off fossil fuels? It will be helpful to think through what you want to achieve and communicate that to your contractor so they can take that into account when they design your system.
The federal government offers a 30% tax credit for heat pumps, up to $2,000, not including labor, for certain energy efficient models. (Note that you can only get the full tax credit if you have $2,000 or more in tax liability the year you install the heat pumps.) The credit can’t be rolled over to the next tax year, but you can claim it in multiple years. Your state energy office, city, or utility may offer additional tax credits or rebates.
It’s important to learn about what’s available in your area before reaching out to contractors because some rebate programs require you to work only with approved partners. Also, the contractors you reach out to might not always be up to date on the latest incentive programs, so it’s a good idea to do some independent research and make sure you find someone who knows how to help you take advantage. There is, unfortunately, not yet any single directory where you can enter your zip code and find out about every possible rebate opportunity everywhere in the country, so it’s best to check multiple sources of information:
As with all home renovation projects, we strongly recommend getting at least three quotes from different contractors.
Heat pumps are common in some parts of the country, but in others it might be difficult to find a contractor who really knows their stuff. Dip your toes in a heat pump Reddit forum and you’ll find scores of homeowners asking what to do after a contractor told them that heat pumps don’t work and they should just stick with gas. Here are a few strategies for finding high quality heat pump contractors, in order of what we recommend:
Finding the right contractor is probably the most important decision you’ll make in this entire process, and it’s not uncommon to get quotes with wildly different recommendations. Here are some questions you can ask to help you get a sense of who really knows what they are talking about and is willing to go the whole nine yards to make sure you get a properly designed system:
Manual J is a formula that helps a contractor identify the right size HVAC system for your home. It requires taking detailed measurements throughout the building, inspecting your home’s insulation and other elements that will affect airflow and heat retention, and performing tests such as the “blower door” to assess how leaky your building’s envelope is. If you’re interested in using your ductwork or installing new ductwork, they should also perform a “Manual D” calculation. Waters told me that despite these calculations being industry standards, very few contractors actually go through the trouble of doing them. “What this does, it tells us exactly what size system I need for heating and cooling, and exactly how much air goes into each room,” he said.
Richards agreed, adding that you may want to ask what technology they use to size the system. “You need somebody who has a technology-driven tool that can actually measure the heating and cooling requirements of your home,” he says. “Are you doing a true Manual J, or are you sort of sticking your finger up in the air?”
If your contractor only works with one brand of equipment, you’re more likely to get a solution that’s convenient for them rather than one that’s custom designed for you.
Waters told me the registers — the vents that release air into a given room — are critical for occupant comfort. If your existing ductwork is designed to distribute air from a furnace, your registers may be designed to push air into the middle of the room. But with heat pumps, you want the air either pushed up toward the ceiling if the vents are down low or across the ceiling if they are up high, so that the house doesn’t feel drafty and you get proper circulation.
If you’re starting with heat pumps but you eventually want to electrify your stove, your clothes dryer, or your car, your home may need an electric panel upgrade or an electric service upgrade from the utility. What you don’t want is to put in heat pumps that eat up the rest of your home’s capacity and then have to deal with pricey upgrades down the line.
The Building Performance Institute and North American Technician Excellence are two organizations that train and certify contractors, auditors, and technicians in the latest building science and best practices. A certification doesn’t guarantee you’ve found the right contractor — it could mean they know a lot about installing heat pumps but still don’t know much about the models that work in the coldest climates, for instance. But it’s a helpful data point that shows they are investing in training.
After you’ve found a contractor or company to work with, settled on a system design, and secured financing, your installer is going to need to secure permits for the work. Then you’ll need to schedule the installation, which, depending on how busy your contractor is, can take several weeks to several months. The actual work should take one to three days, depending on how complicated it is.
Also — talk to your contractor about maintenance. Be sure to clean the filters regularly and do anything else they recommend to get the best performance and longest life out of your equipment.
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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?