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The effort to preserve the beloved landmark from sea-level rise epitomizes an existential struggle for historic waterfronts
When San Francisco’s Ferry Plaza Farmers Market is in full Saturday swing, one way to dodge the determined foodies and casual browsers is to retreat to the plaza just 30 steps south of the Ferry Building. It sits atop three tiers of dark-veined granite, accessible by two flights of nine stairs or a ramp that ascends along the water to a trio of ferry gates that, like the plaza, were completed in 2021.
The chosen height hints at what someday might be the norm — the elevation where San Francisco’s constructed shoreline will need to be to serve as a protective buffer between the natural bay and the developed city. Here, more than any place on today’s Embarcadero, you confront the existential predicament facing the Ferry Building, nearby piers, and resurrected waterfronts in other coastal American cities: sea level rise.
According to projections that were modeled by climate scientists in 2018, San Francisco Bay faces a 66% likelihood that average daily tides will rise 40 inches by 2100, with roughly half of the increase during the next 50 years and the pace accelerating after that. The same report includes an extreme but peer-reviewed scenario where the projected increase soars to 93 inches during that same period — making grim numbers profoundly worse.
So-called king tides already arrive monthly during the winter, a natural occurrence related to the moon’s gravitational pull that can send waves washing past Pier 14 into the Embarcadero’s protected bike lane. Behind Pier 5, water swells up and over the edge of the public walkway. For now, that occasional splash of excitement is less fearsome than fun — but if current forecasts are anywhere near accurate, future generations will face a double bind.
The threat isn’t just that tides might creep upward as temperatures increase. It’s that the extreme rainfall patterns we already experience will grow more intense, those destructive storms that in recent years have introduced terms like atmospheric rivers and bomb cyclones into conversations about the weather. For instance, if daily tides are a foot higher in 2050 than they are now — the “likely” projection — a major storm could surge 36 inches beyond where it would register today.
In the case of the Embarcadero, the hypothetical one-foot rise coupled with an “intense storm” — the sort that in the past might occur every five years — would send bay waters rushing toward the roadway in a dozen locations if the storm hit when winds were brisk and the tide was high. Kick the downpour’s fervor to the scale of the bomb cyclone that hit the Bay Area in October 2021 — a day-long deluge that was the equivalent of what scientists call a 25-year storm — and the Embarcadero could be closed for nearly a mile between Folsom Street and Pier 9. Water spilling across the roadway could flow down into the BART and Muni subway beneath Market Street, potentially paralyzing both systems.
The new plaza and the elevated ferry gates might rebuke the surging tides to come, but the landmark next door would be more vulnerable than ever. The Ferry Building has ridden out many perils since opening day in 1898, from earthquakes and the onslaught of automobiles to political tumult, misguided renovations, and the wear and tear of urban life. Now it faces the implacable though seemingly far-off threat of rising waters, as if nature was determined to restore the marshes and tidal flats that long-dead San Franciscans covered and forgot.
The addition of the granite plaza is an indicator of the danger facing the icon to its north. And it’s not as if our hefty landmark with that vaulted concrete foundation can be jacked up out of harm’s way.
Or can it?
An aerial view of San Francisco’s Ferry Building and the Embarcadero.Michael Lee/Getty Images
Steven Reel headed west from Philadelphia in 1992 to earn a structural engineering degree at Stanford University because, he says now, “structural engineering means ‘earthquakes’ at Stanford, and earthquakes make structural engineering a lot more interesting.” The Bay Area was a good place to live, and local governments were investing heavily in seismic upgrades after the 1989 Loma Prieta earthquake. In 2010, Reel successfully applied for a job at the Port of San Francisco and, to his surprise, grew intrigued by the historic aspects of making an urban shoreline function in the here and now.
“I’d start studying old engineering drawings for projects and then go down the rabbit hole,” recalls Reel, an easygoing bureaucrat with a beard that approached Rasputin-like proportions during the pandemic (he since has trimmed it back). He also began to notice regional planners stressing sea level rise in meetings.
His first project at the port was Brannan Street Wharf, where two ramshackle piers midway between the Bay Bridge and the ballpark were torn out and replaced by a four-hundred-foot-long triangular green. The response to climate concerns involved a slight upward incline from the Embarcadero promenade and a concrete lip along the edge (the same move since used for the plaza near the Ferry Building).
There was another natural threat to consider — the possibility that a tremor on the scale of the Great 1906 San Francisco Earthquake could strike again. Would the Ferry Building and the seawall hold, as before? Or would the three-mile-long agglomeration of boulders and concrete give way after all this time? Reel found himself with a new job title — manager of the seawall program — and responsibilities that included a $450,000 study with consultants being told to diagnose the barrier’s health and prescribe possible remedies.
The findings, released in April 2016, answered some questions and posed a host of others.
The good news is that even with a cataclysmic earthquake, “complete failure of the seawall is unlikely.” The rocks and boulders that form a dike beneath the concrete wouldn’t scatter like marbles. The Financial District wouldn’t be sucked into the bay toward Oakland. But the combination of sandy fill atop soft mud, behind an aged barrier with thousands of potentially moving parts of varying size, is a dangerous combination. The fill was “subject to liquefaction,” the report confirmed, making it likely that the seawall could slump and lurch outward.
“A repeat of the 1906 earthquake is predicted to cause as much as $1b in damage and $1.3b in disruption costs,” the report declared. Better to strengthen the entire three-mile seawall before a disaster struck — though the cost estimates to do this were “on the order of $2 to $3 billion.” The consultants also emphasized that even with an upgraded seawall, the slow-moving threat posed by sea level rise “will necessitate intervention ... over the next 100 years.” Figure that in, and the combined price tag approached $5 billion.
The city approached voters with a $425 million bond in 2018 to fund the first round of projects; smartly, the campaign emphasized seismic concerns, lightening the ominous message with such creative touches as a neighborhood brewpub’s limited-release sour beer dubbed “Seawall’s Sea Puppy.” The bond passed with 83% support. “The earthquake message resonates,” Reel says. “Without it, I don’t think all this would have moved forward as it did.”
It makes sense to tackle the easiest fixes early, given the seismic threats posed to the Bay Area by the San Andreas and other faults. Breaking a daunting future into manageable parts also allows the Port and City Hall to shift attention from the more eye-popping aspects of climate adaptation — such as how potions of the Embarcadero might need to be raised as much as seven feet to prepare for 2100’s more extreme projected water levels.
Which leads us back to the Ferry Building.
As so often has been the case during the landmark’s history, far more is at stake than one particular structure. If the Ferry Building in its heyday represented San Francisco’s prominence within the region and beyond, in the 21st century it embodies how urban waterfronts can be reinvented without sacrificing their past identities. At the same time, the building remains essentially the same as it was in 1898 — a heavy structure of concrete and steel that covers two acres and rises from a foundation atop bundled piles of tree trunks.
The assumption for the past 25 years has been that the landmark’s impressive performance in 1906 and 1989 should ensure similar resilience when the next big earthquake hits. But the most recent geotechnical exam revealed a weak link: the section of the seawall behind the Ferry Building rests in a trench filled with liquefiable sand rather than the rubble that underlies almost everything else. That detail places “the 125-year-old Ferry Building Seawall, building substructure, and surrounding piers at risk of damage in large earthquakes,” according to the most recent Port update.
This isn’t just a concern for architecture buffs. San Francisco’s disaster relief plans treat the outdoor spaces around the landmark as crucial spots for retreat and regrouping. In a worst-case scenario where the Bay Bridge is knocked out of commission, as was the case in 1989, reliable access to a functioning ferry system will be crucial for evacuating people from the downtown scene safely. The new plaza can also serve as a staging area for bringing medical aid and supplies into the city over the water. Regular people who need to connect with family and friends know there won’t be confusion if someone says “let’s find each other at the Ferry Building.”
One solution could be to erect an entirely new seawall around the edge of the Ferry Building’s foundation, in essence creating a basement beneath it. And if you’re doing that, it’s only one more step — albeit sure to be costly and complex — to raise the entire building by several feet and resolve the challenge of sea level rise for another lifetime or two.
“With the Ferry Building, the one thing I know about it is that it has to be saved … it has such a strong identification with the city,” Elaine Forbes, the executive director for the Port, says. “So I talked myself into okaying this big expenditure.”
The Ferry Building, pictured in 1906 after the San Francisco earthquake and fire.Library of Congress
Realistically, adaptation planning in San Francisco and other waterfront cities will involve a variety of responses at a variety of scales. But the situation facing the Ferry Building, as at so many times in its history, is unique unto itself. This time around, the task is to remake a bustling civic icon so that life seemingly goes on as before. If anyone has challenged the need to invest what likely will be hundreds of millions of dollars to save a 125-year-old structure, the argument has gained no traction.
“The price would have to be really, really high before anything would think twice” about whether the Ferry Building’s salvation is more trouble than it’s worth, Reel says. He describes how during the public discussions on what to do about the Embarcadero, attendees would be asked to list priorities. What are you concerned about? What do you love?
In the latter category, Reel recalls, “the Ferry Building kept getting named. People want to see it forever.”
This still leaves an array of unanswered questions. How to decide how big of an engineering gamble to take. Whether to raise the structure, as implausible as that sounds, or build a new seawall to the east that would destroy the immediacy of the connection to the water. And what becomes of the tenants inside the building, especially the locally based merchants, if the building once again becomes a construction zone.
In a much different context, one San Franciscan offered a fatalistic take on what the future might hold: Lawrence Ferlinghetti.
Four years before his death in 2021, still living in North Beach, Ferlinghetti sat down in a neighborhood café to talk with a Washington Post writer about the beat era, the 97-year-old poet’s life, and his enduring love for the city that he embraced long ago. At one point, the writer asked Ferlinghetti about what might happen after he was gone.
“It’s all going to be underwater in 100 years or maybe even 50,” Ferlinghetti said with a half-smiled shrug. “The Embarcadero is one of the greatest esplanades in the world. On the weekends, thousands of people strut up and down like it’s the Ramblas in Barcelona. But it’ll all be underwater.”
This article was excerpted and condensed from John King’s book Portal: San Francisco’s Ferry Building and the Reinvention of American Cities, available on Nov. 7 from W. W. Norton & Company ©2023.
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In defense of “everything bagel” policymaking.
Writers have likely spilled more ink on the word “abundance” in the past couple months than at any other point in the word’s history.
Beneath the hubbub, fed by Ezra Klein and Derek Thompson’s bestselling new book, lies a pressing question: What would it take to build things faster? Few climate advocates would deny the salience of the question, given the incontrovertible need to fix the sluggish pace of many clean energy projects.
A critical question demands an actionable answer. To date, many takes on various sides of the debate have focused more on high-level narrative than precise policy prescriptions. If we zoom in to look at the actual sources of delay in clean energy projects, what sorts of solutions would we come up with? What would a data-backed agenda for clean energy abundance look like?
The most glaring threat to clean energy deployment is, of course, the Republican Party’s plan to gut the Inflation Reduction Act. But “abundance” proponents posit that Democrats have imposed their own hurdles, in the form of well-intentioned policies that get in the way of government-backed building projects. According to some broad-brush recommendations, Democrats should adopt an abundance agenda focused on rolling back such policies.
But the reality for clean energy is more nuanced. At least as often, expediting clean energy projects will require more, not less, government intervention. So too will the task of ensuring those projects benefit workers and communities.
To craft a grounded agenda for clean energy abundance, we can start by taking stock of successes and gaps in implementing the IRA. The law’s core strategy was to unite climate, jobs, and justice goals. The IRA aims to use incentives to channel a wave of clean energy investments towards good union jobs and communities that have endured decades of divestment.
Klein and Thompson are wary that such “everything bagel” strategies try to do too much. Other “abundance” advocates explicitly support sidelining the IRA’s labor objectives to expedite clean energy buildout.
But here’s the thing about everything bagels: They taste good.
They taste good because they combine ingredients that go well together. The question — whether for bagels or policies — is, are we using congruent ingredients?
The data suggests that clean energy growth, union jobs, and equitable investments — like garlic, onion, and sesame seeds — can indeed pair well together. While we have a long way to go, early indicators show significant post-IRA progress on all three fronts: a nearly 100-gigawatt boom in clean energy installations, an historic high in clean energy union density, and outsized clean investments flowing to fossil fuel communities. If we can design policy to yield such a win-win-win, why would we choose otherwise?
Klein and Thompson are of course right that to realize the potential of the IRA, we must reduce the long lag time in building clean energy projects. That lag time does not stem from incentives for clean energy companies to provide quality jobs, negotiate Community Benefits Agreements, or invest in low-income communities. Such incentives did not deter clean energy companies from applying for IRA funding in droves. Programs that included all such incentives were typically oversubscribed, with companies applying for up to 10 times the amount of available funding.
If labor and equity incentives are not holding up clean energy deployment, what is? And what are the remedies?
Some of the biggest delays point not to an excess of policymaking — the concern of many “abundance” proponents — but an absence. Such gaps call for more market-shaping policies to expedite the clean energy transition.
Take, for example, the years-long queues for clean energy projects to connect to the electrical grid, which developers rank as one of the largest sources of delay. That wait stems from a piecemeal approach to transmission buildout — the result not of overregulation by progressive lawmakers, but rather the opposite: a hands-off mode of governance that has created vast inefficiencies. For years, grid operators have built transmission lines not according to a strategic plan, but in response to the requests of individual projects to connect to the grid. This reactive, haphazard approach requires a laborious battery of studies to determine the incremental transmission upgrades (and the associated costs) needed to connect each project. As a result, project developers face high cost uncertainty and a nearly five-year median wait time to finish the process, contributing to the withdrawal of about three of every four proposed projects.
The solution, according to clean energy developers, buyers, and analysts alike, is to fill the regulatory void that has enabled such a fragmentary system. Transmission experts have called for rules that require grid operators to proactively plan new transmission lines in anticipation of new clean energy generation and then charge a preestablished fee for projects to connect, yielding more strategic grid expansion, greater cost certainty for developers, fewer studies, and reduced wait times to connect to the grid. Last year, the Federal Energy Regulatory Commission took a step in this direction by requiring grid operators to adopt regional transmission planning. Many energy analysts applauded the move and highlighted the need for additional policies to expedite transmission buildout.
Another source of delay that underscores policy gaps is the 137-week lag time to obtain a large power transformer, due to supply chain shortages. The United States imports four of every five large power transformers used on our electric grid. Amid the post-pandemic snarling of global supply chains, such high import dependency has created another bottleneck for building out the new transmission lines that clean energy projects demand. To stimulate domestic transformer production, the National Infrastructure Advisory Council — including representatives from major utilities — has proposed that the federal government establish new transformer manufacturing investments and create a public stockpiling system that stabilizes demand. That is, a clean energy abundance agenda also requires new industrial policies.
While such clean energy delays call for additional policymaking, “abundance” advocates are correct that other delays call for ending problematic policies. Rising local restrictions on clean energy development, for example, pose a major hurdle. However, the map of those restrictions, as tracked in an authoritative Columbia University report, does not support the notion that they stem primarily from Democrats’ penchant for overregulation. Of the 11 states with more than 10 such restrictions, six are red, three are purple, and two are blue — New York and Texas, Virginia and Kansas, Maine and Indiana, etc. To take on such restrictions, we shouldn’t let concern with progressive wish lists eclipse a focused challenge to old-fashioned, transpartisan NIMBYism.
“Abundance” proponents also focus their ire on permitting processes like those required by the National Environmental Policy Act, which the Supreme Court curtailed last week. Permitting needs mending, but with a chisel, not a Musk-esque chainsaw. The Biden administration produced a chisel last year: a NEPA reform to expedite clean energy projectsand support environmental justice. In February, the Trump administration tossed out that reform and nearly five decades of NEPA rules without offering a replacement — a chainsaw maneuver that has created more, not less, uncertainty for project developers. When the wreckage of this administration ends, we’ll need to fill the void with targeted permitting policies that streamline clean energy while protecting communities.
Finally, a clean energy abundance agenda should also welcome pro-worker, pro-equity incentives like those in the IRA “everything bagel.” Despite claims to the contrary, such policies can help to overcome additional sources of delay and facilitatebuildout.
For example, Community Benefits Agreements, which IRA programs encouraged, offer a distinct, pro-building advantage: a way to avoid the community opposition that has become a top-tier reason for delays and cancellations of wind and solar projects. CBAs give community and labor groups a tool to secure locally-defined economic, health, and environmental benefits from clean energy projects. For clean energy firms, they offer an opportunity to obtain explicit project support from community organizations. Three out of four wind and solar developers agree that increased community engagement reduces project cancellations, and more than 80% see it as at least somewhat “feasible” to offer benefits via CBAs. Indeed, developers and communities are increasingly using CBAs, from a wind farm off the coast of Rhode Island to a solar park in California’s central valley, to deliver tangible benefits and completed projects — the ingredients of abundance.
A similar win-win can come from incentives for clean energy companies to pay construction workers decent wages, which the IRA included. Most peer-reviewed studies find that the impact of such standards on infrastructure construction costs is approximately zero. By contrast, wage standards can help to address a key constraint on clean energy buildout: companies’ struggle to recruit a skilled and stable workforce in a tight labor market. More than 80% of solar firms, for example, report difficulties in finding qualified workers. Wage standards offer a proven solution, helping companies attract and retain the workforce needed for on-time project completion.
In addition to labor standards and support for CBAs, a clean energy abundance agenda also should expand on the IRA’s incentives to invest in low-income communities. Such policies spur clean energy deployment in neighborhoods the market would otherwise deem unprofitable. Indeed, since enactment of the IRA, 75% of announced clean energy investments have been in low-income counties. That buildout is a deliberate outcome of the “everything bagel” approach. If we want clean energy abundance for all, not just the wealthy, we need to wield — not withdraw — such incentives.
Crafting an agenda for clean energy abundance requires precision, not abstraction. We need to add industrial policies that offer a foundation for clean energy growth. We need to end parochial policies that deter buildout on behalf of private interests. And we need to build on labor and equity policies that enable workers and communities to reap material rewards from clean energy expansion. Differentiating between those needs will be essential for Democrats to build a clean energy plan that actually delivers abundance.
On DOE grants, OPEC, and construction costs
Current conditions: Air quality alerts remain in effect for the entire state of Minnesota through Monday evening due to wildfire smoke from Manitoba • An enormous dust storm is blowing off the Sahara Desert and could reach the Gulf Coast this week • Northern lights were visible on camera as far south as Florida on Sunday. You’ll have another chance to see them tonight.
In case you missed it, the Department of Energy canceled nearly $4 billion in funds for industrial and manufacturing projects on Friday. Many of the projects had been planned in rural or conservative areas, including $500 million awarded to ExxonMobil and Calpine’s carbon capture project in Baytown, Texas. A DOE spokesperson said in the announcement that the 24 canceled grants were for projects that “were not economically viable and would not generate a positive return on investment of taxpayer dollars.”
None of the awardees responded to my colleague Emily Pontecorvo’s inquiries about whether they plan to pursue legal challenges, but she did note in her analysis one critic of the Trump administration’s move who described it as “dismantling” the clean energy economy and “giving away the future of manufacturing.” Emily also observed a notable absence from the DOE’s list of canceled grants: steelmaking company Cleveland Cliffs, which she reported last month was in the process of renegotiating its award under the Industrial Demonstration Program.
This weekend, the eight members of OPEC+ announced that they would continue to increase oil production in July, the third straight month in a row. The group’s target is an additional 411,000 barrels a day, or more than three times what it had previously planned, AFP reports, though analysts expect the actual production amount will be less.
The increases have followed a period of low production by Saudi Arabia, though The New York Times notes that the Saudis and other OPEC+ members like the United Arab Emirates “had chafed because some members, including Iraq and Kazakhstan, had exceeded their ceilings. The Saudis are now sending a message that they will not restrain output if others don’t.” Though the prices for Brent crude have fallen this year by around 16%, the Times adds that the Saudis, “who have low costs, can still make money at those levels” even as shale drillers in the U.S. have slowed. OPEC produces approximately 40% of the global crude oil supply, with oil and gas operations accounting for around 15% of total energy-related emissions worldwide.
The average energy infrastructure project costs 40% more than expected for construction and takes nearly two years longer to complete than initially planned, according to a new study of 662 such projects in 83 countries by the Boston University Institute for Global Sustainability, published in the journal Energy Research & Social Science. Nuclear power plants were the worst offenders, with construction costing 102.5% more on average, or $1.56 billion more than expected. Hydrogen, carbon capture and storage, and thermal power plants that rely on natural gas were also among higher-risk infrastructure projects, the study found. “I’m particularly struck by our findings on the diseconomies of scale, with projects exceeding 1,561 megawatts in capacity demonstrating significantly higher risk of cost escalation,” Hanee Ryu, one of the researchers, said. “This suggests that we may need to reconsider our approach to large-scale energy infrastructure planning, especially as we commit trillions to global decarbonization efforts.”
Solar energy and transmission projects, on the other hand, had the lowest investment risks for construction and time costs, and are often completed ahead of schedule and for less than expected, the research found. Wind, similarly, “performed favorably in the financial risk assessment.” You can read the full report here.
Airline industry decarbonization goals are “in peril,” according to comments made by the International Air Transport Association’s senior vice president for sustainability, Marie Owens Thomsen, at a trade conference in India on Sunday. While several major aviation groups have set 2050 as the goal for achieving net-zero carbon emissions for air travel, Owens Thomsen specifically cited the Trump administration’s policies as “obviously a setback,” Barron’s reports.
Programs to support the development of sustainable aviation fuels are also in jeopardy. The European Union requires carriers to include 2% lower-emission biofuel in their fuel mix starting this year, but Owens Thomsen said the cheap cost of oil is still diminishing the “sense of urgency that people have.” She expected a $4.7 trillion investment in SAF would be needed to meet the 2050 emission goals. “It is entirely achievable,” she went on, calling the money involved “very comparable to the money that was involved in creating the previous new energy markets, notably, obviously, wind and solar.”
Tesla is no longer the best-selling electric vehicle in Canada. Late last week, GM announced it has officially taken the crown as the “#1 EV seller” in the country, following a surge in sales of 252% in the first three months of the year, led by the Chevy Equinox EV.
Though Tesla’s dethroning is also indicative of the brand’s diminished reputation abroad — Electrek notes Tesla registered just 542 cars in Quebec, the country’s top EV market, in the first quarter of 2025 — the numbers also reflect GM’s successes, with even sales of its GMC Hummer EV Pickup up 232%. Combined Q1 EV sales in Canada were nevertheless still down significantly, to 5,750 from 15,000 EV sales in Q4, Electrek adds, a dip attributable to Quebec’s pause on federal EV incentives between February and April.
NOAA
Happy second day of meteorological summer! It could be a toasty one: The National Oceanic and Atmospheric Administration’s Climate Prediction Center expects hotter-than-average temperatures across much of the Southwest and Northeast this year.
Justice Brett Kavanaugh’s decision in the case of Seven County Infrastructure Coalition v. Eagle County, Colorado enlists the nation’s highest court in the campaign to reform federal environmental enforcement.
A new chapter opened for one of the country’s most important environmental laws this week.
On Thursday, the Supreme Court transformed the National Environmental Policy Act, or NEPA, an environmental permitting law that affects virtually every decision that the federal government makes. The quasi-unanimous ruling limits the law’s scope and cuts off future avenues for challenging energy and infrastructure projects under the law.
It could reshape the scale of legal challenges that projects could face in the future, giving the Trump administration — and any successive administration — greater leeway to approve energy projects.
Under NEPA, federal agencies must study the environmental impacts of their decisions before they make them. The strictest studies can run into the hundreds of pages, and they can take years to complete.
But in what was essentially an 8-0 decision, the Court ruled that federal agencies almost never need to analyze the second-order environmental effects of their decisions. In other words, an agency need only study the environmental impact of a project itself — be it a pipeline, a solar farm, or, in the case at issue, a railroad — and not its metaphorically downstream consequences. That remains the case even if a given project might indirectly make it much easier to do something with a big environmental footprint, such as drilling for oil or natural gas.
That is the clearest effect of the ruling. But Justice Brett Kavanaugh, writing for the court’s conservative majority, went much further than that summary alone suggests. In a broad and forceful ruling, he told lower courts that they should stop nitpicking the environmental studies that federal agencies must publish under NEPA to justify their own decision-making. Courts should, instead, defer to federal agencies as much as is reasonable when reviewing a NEPA study. “The goal of the law,” he writes, “is to inform agency decision-making, not to paralyze it.” (Justice Neil Gorsuch recused himself from the case because of his connection to an oil magnate who could have benefited from the ruling.)
That suggests a significant change is coming to how the court system interprets NEPA, a law that is little known to the general public but that plays a defining role in how federal agencies make decisions or approve infrastructure projects. NEPA creates a procedural requirement that federal agencies study the environmental impact of any “major decision,” but that category is so broad that it affects virtually everything the federal government does — spend money, write a new regulation, or approve a new project on federal land. The law and the yearslong lawsuits that it spawns have been blamed for delays in building solar farms and transmission lines, but also oil refineries and gas pipelines.
Kavanaugh’s ruling is “pretty striking for just how strident it is, and how assertively it tries to shut the door on further NEPA litigation,” Nicholas Bagley, a University of Michigan law professor who studies the permitting system, told me. Kavanaugh’s message to lower courts is, in essence, “We keep telling you to knock it off. You keep not listening. So knock it the fuck off,” Bagley said.
At the very least, the ruling suggests that a new phase in the effort to reform the country’s permitting laws has arrived. Now that movement has, in essence, been blessed by the Supreme Court.
The case in question — Seven County Infrastructure Coalition v. Eagle County, Colorado — concerns an 88-mile railroad proposed to connect the Uinta Basin in eastern Utah to the national freight rail network. In 2021, the Surface Transportation Board, a federal agency that regulates railroads, approved the project after completing a roughly 3,600-page study of the railroad’s potential environmental impact.
Almost immediately, environmental groups argued that the board’s study did not go far enough. The ground beneath the Uinta Basin is rich in a waxy and particularly carbon-intensive crude oil; right now, very little of that oil is extracted because the only way to get it out is by truck, along windy mountain roads. The railroad, if built, would allow for much larger volumes of crude to be transported out of the basin and sent to Gulf Coast refineries. Building the railroad, in other words, would indirectly increase local oil extraction, and thereby raise global greenhouse gas emissions.
The board argued that its NEPA study did not need to consider these downstream effects because the board itself does not regulate oil extraction — that is, it regulates the building of railroads, not what gets moved on them.
The eight justices agreed that the board was right: It didn’t have to consider the effects of second-order oil drilling when it approved the railroad. (The railroad remains on hold for other reasons, Sambhav Sankar, a senior vice president at Earthjustice, told me.) But by going further in his ruling, Kavanaugh entered into a running debate about the role of NEPA and other permitting laws in the American economy.
NEPA was never meant to play the commanding role that it does today, Kavanaugh writes. When it was first signed into law in 1970, NEPA was meant to act as a “purely procedural” check on federal decision-making. Agencies were supposed to conduct environmental studies, make their decisions, then move on. But in a famous 1971 ruling concerning a proposed nuclear power plant in Maryland, Judge Skelly Wright of the D.C. Circuit Court of Appeals transformed the law. He found that agencies had to carry out NEPA’s procedural requirements “to the fullest extent possible,” and crucially that courts could reject agencies’ analysis for lack of completeness.
Over the years, as hundreds of cases following Wright’s have added up, NEPA has turned into a “fearsome project killer,” Bagley said. Agencies spend decades of person-power and hundreds of thousands of dollars to prepare fastidious environmental reviews of their decisions. Any new infrastructure project or new policy change — even New York City’s congestion charge — requires some form of NEPA study.
Many conservatives have long opposed the modern NEPA process. But in recent years, some liberals have joined them, arguing that the law primarily slows down clean energy infrastructure and encourages NIMBYism. In practice, they say, NEPA acts as more of hindrance to the clean economy than the old fossil fuel economy: Because of a 2005 law, most oil and gas drilling has been exempt from the NEPA process, while wind farms, solar plants, and other forms of zero-carbon energy infrastructure still have to face it. Environmental groups rebut that the law is a useful tool to slow down fossil fuel pipelines, which do not generally get a NEPA exemption.
Data supports the idea that NEPA holds back clean energy projects, but that is partly because it holds back so many kinds of projects. The R Street Institute, a center-right think tank, has found that 42% of projects stalled by NEPA involved green infrastructure or conservation. Another analysis from the Center for Growth and Opportunity at Utah State University found that it takes more than two years on average for federal agencies to complete environmental reviews of solar and wind projects. Reviews for new hydroelectric or nuclear power plants take even longer.
Kavanaugh, in essence, rejects all of this. NEPA was never supposed to block or hinder large-scale energy or infrastructure projects, he writes; it was meant to “inform agency decision-making, not to paralyze it.”
“A 1970 legislative acorn has grown over the years into a judicial oak that has hindered infrastructure development ‘under the guise’ of just a little more process,” he says. When federal agencies write environmental studies under NEPA, courts should broadly defer to the decisions that they make. And even if an agency gets something wrong in its study or omits something important, that does not mean the entire study — and the decision that it justifies — should be thrown out. (There’s some irony to Kavanaugh’s call for deference to agencies here, given that the Supreme Court rejected the idea that agency regulations deserve deference last year.)
“What’s notable for me is that they didn’t just rule on the case,” Sankar, the Earthjustice lawyer told me. (Earthjustice participated in the case.) “They decided to take a broad swipe at NEPA itself, really unnecessarily.”
Alexander Mechanick, a senior policy analyst at the Niskanen Center and former White House regulatory official, agreed with Sankar about the scope of the ruling. The court’s decision “does communicate over and over again, with a heavy hand, a real desire to get lower courts out of the business of fly specking the environmental impact assessments,” he told me.
It’s this forthrightness that seems to announce a new era of NEPA jurisprudence — one where the courts will accept a level of environmental review that they may have once rejected. In a way, Kavanaugh’s ruling is a fitting sequel to Wright’s 1971 decision in that both set the tone and capture the overarching environmental concerns of their respective eras, Bagley said.
Half a century ago, Judge Wright wanted to make sure that the American public could slow the wave of infrastructure that threatened to overwhelm the country’s landscape. NEPA represented “the commitment of the government to control, at long last, the destructive engine of material ‘progress,’” he wrote, asserting that judges must make sure the law’s goals are not “lost or misdirected in the vast hallways of the federal bureaucracy.”
Now, Kavanaugh seems to fear that progress itself has been held up. He writes that the modern NEPA process, with its cycles of “speculation and consultation and estimation and litigation,” has slowed down infrastructure projects and driven up their cost. He can sound more like an op-ed writer than a legal scholar as he lays out the law’s consequences in the ruling:
Fewer projects make it to the finish line. Indeed, fewer projects make it to the starting line. Those that survive often end up costing much more than is anticipated or necessary, both for the agency preparing the EIS and for the builder of the project. And that in turn means fewer and more expensive railroads, airports, wind turbines, transmission lines, dams, housing developments, highways, bridges, subways, stadiums, arenas, data centers, and the like. And that also means fewer jobs, as new projects become difficult to finance and build in a timely fashion.
In this declaration, Kavanaugh seems to put himself on the side of a growing and tenuously bipartisan movement to reform NEPA. A 2023 debt ceiling bill, signed by President Biden, included modest reforms to the NEPA process, imposing page limits and deadlines on the strictest forms of environmental studies. A more sweeping bipartisan effort to change the law failed last year. Now, House Republicans are taking their own crack at revising NEPA, creating an optional and more expensive permitting “fast track” for developers in the reconciliation bill.
Sankar, whose organization has championed NEPA, argues that the ruling’s practical upshot will be to allow the Trump administration greater leeway to build fossil fuel infrastructure. Kavanaugh’s ruling exhibits “a shocking disregard for the realpolitik of what's going on with this administration in particular,” he said.
“As we’ve been saying all along, NEPA gets demonized as the problem,” Sankar said. With the law’s role reduced, “I think people will see that there are a lot of other things that are the problem here, and taking federal agency expertise out of the equation is not going to hurry things up.” He added that state and local governments often rely on federal NEPA reports for their own analyses, and now those reviews may be less trustworthy.
Bagley, who has generally supported permitting reform efforts, agreed that NEPA is just one of several laws holding back clean energy projects nationwide. But it is an important one, he said, and reducing its scope will likely allow more projects to happen. He added that by changing it, advocates will learn of additional bottlenecks that are holding back construction — including laws that nobody has noticed yet because they were previously less important than NEPA. Advocates can also now focus their attention on state and local barriers to building.
“If you want to look at the permitting burdens across the United States, probably 80% to 90% of them are state and local. This [ruling] isn’t going to inaugurate a new era of American dynamism,” Bagley said. “It’s a small step in the right direction.”