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Inside Climeworks’ big experiment to wrest carbon from the air

In the spring of 2021, the world’s leading authority on energy published a “roadmap” for preventing the most catastrophic climate change scenarios. One of its conclusions was particularly daunting. Getting energy-related emissions down to net zero by 2050, the International Energy Agency said, would require “huge leaps in innovation.”
Existing technologies would be mostly sufficient to carry us down the carbon curve over the next decade. But after that, nearly half of the remaining work would have to come from solutions that, for all intents and purposes, did not exist yet. Some would only require retooling existing industries, like developing electric long-haul trucks and carbon-free steel. But others would have to be built from almost nothing and brought to market in record time.
What will it take to rapidly develop new solutions, especially those that involve costly physical infrastructure and which have essentially no commercial value today?
That’s the challenge facing Climeworks, the Swiss company developing machines to wrest carbon dioxide molecules directly from the air. In September 2021, a few months after the IEA’s landmark report came out, Climeworks switched on its first commercial-scale “direct air capture” facility, a feat of engineering it dubbed “Orca,” in Iceland.
The technology behind Orca is one of the top candidates to clean up the carbon already blanketing the Earth. It could also be used to balance out any stubborn, residual sources of greenhouse gases in the future, such as from agriculture or air travel, providing the “net” in net-zero. If we manage to scale up technologies like Orca to the point where we remove more carbon than we release, we could even begin cooling the planet.
As the largest carbon removal plant operating in the world, Orca is either trivial or one of the most important climate projects built in the last decade, depending on how you look at it. It was designed to capture approximately 4,000 metric tons of carbon from the air per year, which, as one climate scientist, David Ho, put it, is the equivalent of rolling back the clock on just 3 seconds of global emissions. But the learnings gleaned from Orca could surpass any quantitative assessment of its impact. How well do these “direct air capture” machines work in the real world? How much does it really cost to run them? And can they get better?
The company — and its funders — are betting they can. Climeworks has made major deals with banks, insurers, and other companies trying to go green to eventually remove carbon from the atmosphere on their behalf. Last year, the company raised $650 million in equity that will “unlock the next phase of its growth,” scaling the technology “up to multi-million-ton capacity … as carbon removal becomes a trillion-dollar market.” And just last month, the U.S. Department of Energy selected Climeworks, along with another carbon removal company, Heirloom, to receive up to $600 million to build a direct air capture “hub” in Louisiana, with the goal of removing one million tons of carbon annually.
Two years after powering up Orca, Climeworks has yet to reveal how effective the technology has proven to be. But in extensive interviews, top executives painted a picture of innovation in progress.
Chief marketing officer Julie Gosalvez told me that Orca is small and climatically insignificant on purpose. The goal is not to make a dent in climate change — yet — but to maximize learning at minimal cost. “You want to learn when you're small, right?” Gosalvez said. “It’s really de-risking the technology. It’s not like Tesla doing EVs when we have been building cars for 70 years and the margin of learning and risk is much smaller. It’s completely new.”
From the ground, Orca looks sort of like a warehouse or a server farm with a massive air conditioning system out back. The plant consists of eight shipping container-sized boxes arranged in a U-shape around a central building, each one equipped with an array of fans. When the plant is running, which is more or less all the time, the fans suck air into the containers where it makes contact with a porous filter known as a “sorbent” which attracts CO2 molecules.

When the filters become totally saturated with CO2, the vents on the containers snap shut, and the containers are heated to more than 212 degrees Fahrenheit. This releases the CO2, which is then delivered through a pipe to a secondary process called “liquefaction,” where it is compressed into a liquid. Finally, the liquid CO2 is piped into basalt rock formations underground, where it slowly mineralizes into stone. The process requires a little bit of electricity and a lot of heat, all of which comes from a carbon-free source — a geothermal power plant nearby.
A day at Orca begins with the morning huddle. The total number on the team is often in flux, but it typically has a staff of about 15 people, Climeworks’ head of operations Benjamin Keusch told me. Ten work in a virtual control room 1,600 miles away in Zurich, taking turns monitoring the plant on a laptop and managing its operations remotely. The remainder work on site, taking orders from the control room, repairing equipment, and helping to run tests.
During the huddle, the team discusses any maintenance that needs to be done. If there’s an issue, the control room will shut down part of the plant while the on-site workers investigate. So far, they’ve dealt with snow piling up around the plant that had to be shoveled, broken and corroded equipment that had to be replaced, and sediment build-up that had to be removed.

The air is more humid and sulfurous at the site in Iceland than in Switzerland, where Climeworks had built an earlier, smaller-scale model, so the team is also learning how to optimize the technology for different weather. Within all this troubleshooting, there’s additional trade-offs to explore and lessons to learn. If a part keeps breaking, does it make more sense to plan to replace it periodically, or to redesign it? How do supply chain constraints play into that calculus?
The company is also performing tests regularly, said Keusch. For example, the team has tested new component designs at Orca that it now plans to incorporate into Climeworks’ next project from the start. (Last year, the company began construction on “Mammoth,” a new plant that will be nine times larger than Orca, on a neighboring site.) At a summit that Climeworks hosted in June, co-founder Jan Wurzbacher said the company believes that over the next decade, it will be able to make its direct air capture system twice as small and cut its energy consumption in half.
“In innovation lingo, the jargon is we haven’t converged on a dominant design,” Gregory Nemet, a professor at the University of Wisconsin who studies technological development, told me. For example, in the wind industry, turbines with three blades, upwind design, and a horizontal axis, are now standard. “There were lots of other experiments before that convergence happened in the late 1980s,” he said. “So that’s kind of where we are with direct air capture. There’s lots of different ways that are being tried right now, even within a company like Climeworks."
Although Climeworks was willing to tell me about the goings-on at Orca over the last two years, the company declined to share how much carbon it has captured or how much energy, on average, the process has used.
Gosalvez told me that the plant’s performance has improved month after month, and that more detailed information was shared with investors. But she was hesitant to make the data public, concerned that it could be misinterpreted, because tests and maintenance at Orca require the plant to shut down regularly.
“Expectations are not in line with the stage of the technology development we are at. People expect this to be turnkey,” she said. “What does success look like? Is it the absolute numbers, or the learnings and ability to scale?”
Danny Cullenward, a climate economist and consultant who has studied the integrity of various carbon removal methods, did not find the company’s reluctance to share data especially concerning. “For these earliest demonstration facilities, you might expect people to hit roadblocks or to have to shut the plant down for a couple of weeks, or do all sorts of things that are going to make it hard to transparently report the efficiency of your process, the number of tons you’re getting at different times,” he told me.
But he acknowledged that there was an inherent tension to the stance, because ultimately, Climeworks’ business model — and the technology’s effectiveness as a climate solution — depend entirely on the ability to make precise, transparent, carbon accounting claims.
Nemet was also of two minds about it. Carbon removal needs to go from almost nothing today to something like a billion tons of carbon removed per year in just three decades, he said. That’s a pace on the upper end of what’s been observed historically with other technologies, like solar panels. So it’s important to understand whether Climeworks’ tech has any chance of meeting the moment. Especially since the company faces competition from a number of others developing direct air capture technologies, like Heirloom and Occidental Petroleum, that may be able to do it cheaper, or faster.
However, Nemet was also sympathetic to the position the company was in. “It’s relatively incremental how these technologies develop,” he said. “I have heard this criticism that this is not a real technology because we haven’t built it at scale, so we shouldn’t depend on it. Or that one of these plants not doing the removal that it said it would do shows that it doesn’t work and that we therefore shouldn’t plan on having it available. To me, that’s a pretty high bar to cross with a climate mitigation technology that could be really useful.”
More data on Orca is coming. Climeworks recently announced that it will work with the company Puro.Earth to certify every ton of CO2 that it removes from the atmosphere and stores underground, in order to sell carbon credits based on this service. The credits will be listed on a public registry.
But even if Orca eventually runs at full capacity, Climeworks will never be able to sell 4,000 carbon credits per year from the plant. Gosalvez clarified that 4,000 tons is the amount of carbon the plant is designed to suck up annually, but the more important number is the amount of “net” carbon removal it can produce. “That might be the first bit of education you need to get out there,” she said, “because it really invites everyone to look at what are the key drivers to be paid attention to.”
She walked me through a chart that illustrated the various ways in which some of Orca’s potential to remove carbon can be lost. First, there’s the question of availability — how often does the plant have to shut down due to maintenance or power shortages? Climeworks aims to limit those losses to 10%. Next, there’s the recovery stage, where the CO2 is separated from the sorbent, purified, and liquified. Gosalvez said it’s basically impossible to do this without losing some CO2. At best, the company hopes to limit that to 5%.
Finally, the company also takes into account “gray emissions,” or the carbon footprint associated with the business, like the materials, the construction, and the eventual decommissioning of the plant and restoration of the site to its former state. If one of Climeworks’ plants ever uses energy from fossil fuels (which the company has said it does not plan to do) it would incorporate any emissions from that energy. Climeworks aims to limit gray emissions to 15%.
In the end, Orca’s net annual carbon removal capacity — the amount Climeworks can sell to customers — is really closer to 3,000 tons. Gosalvez hopes other carbon removal companies adopt the same approach. “Ultimately what counts is your net impact on the planet and the atmosphere,” she said.
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Despite being a first-of-its-kind demonstration plant — and an active research site — Orca is also a commercial project. In fact, Gosalvez told me that Orca’s entire estimated capacity for carbon removal, over the 12 years that the plant is expected to run, sold out shortly after it began operating. The company is now selling carbon removal services from its yet-to-be-built Mammoth plant.
In January, Climeworks announced that Orca had officially fulfilled orders from Microsoft, Stripe, and Shopify. Those companies have collectively asked Climeworks to remove more than 16,000 tons of carbon, according to the deal-tracking site cdr.fyi, but it’s unclear what portion of that was delivered. The achievement was verified by a third party, but the total amount removed was not made public.
Climeworks has also not disclosed how much it has charged companies per ton of carbon, a metric that will eventually be an important indicator of whether the technology can scale to a climate-relevant level. But it has provided rough estimates of how much it expects each ton of carbon removal to cost as the technology scales — expectations which seem to have shifted after two years of operating Orca.
In 2021, Climeworks co-founder Jan Wurzbacher said the company aimed to get the cost down to $200 to $300 per ton removed by the end of the decade, with steeper declines in subsequent years. But at the summit in June, he presented a new cost curve chart showing that the price was currently more than $1,000, and that by the end of the decade, it would fall to somewhere between $400 to $700. The range was so large because the cost of labor, energy, and storing the CO2 varied widely by location, he said. The company aims to get the price down to $100 to $300 per ton by 2050, when the technology has significantly matured.
Critics of carbon removal technologies often point to the vast sums flowing into direct air capture tech like Orca, which are unlikely to make a meaningful difference in climate change for decades to come. During a time when worsening disasters make action feel increasingly urgent, many are skeptical of the value of investing limited funds and political energy into these future solutions. Carbon removal won’t make much of a difference if the world doesn’t deploy the tools already available to reduce emissions as rapidly as possible — and there’s certainly not enough money or effort going into that yet.
But we’ll never have the option to fully halt climate change, let alone begin reversing it, if we don’t develop solutions like Orca. In September, the International Energy Agency released an update to its seminal net-zero report. The new analysis said that in the last two years, the world had, in fact, made significant progress on innovation. Now, some 65% of emission reductions after 2030 could be accounted for with technologies that had reached market uptake. It even included a line about the launch of Orca, noting that Climeworks’ direct air capture technology had moved from the prototype to the demonstration stage.
But it cautioned that DAC needs “to be scaled up dramatically to play the role envisaged,” in the net zero scenario. Climeworks’ experience with Orca offers a glimpse of how much work is yet to be done.
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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?