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From what it means for America’s climate goals to how it might make American cars smaller again

The Biden administration just kicked off the next phase of the electric-vehicle revolution.
The Environmental Protection Agency unveiled Wednesday some of the world’s most aggressive climate rules on the transportation sector, a sweeping effort that aims to ensure that two-thirds of new cars, SUVs, and pickups — and one-quarter of new heavy-duty trucks — sold in the United States in 2032 will be all electric.
The rules, which are the most ambitious attempt to regulate greenhouse-gas pollution in American history, would put the country at the forefront of the global transition to electric vehicles. If adopted and enforced as proposed, the new standards could eventually prevent 10 billion tons of carbon pollution, roughly double America’s total annual emissions last year, the EPA says.
The rules would roughly halve carbon pollution from America’s massive car and truck fleet, the world’s third largest, within a decade. Such a cut is in line with Biden’s Paris Agreement goal of cutting carbon pollution from across the economy in half by 2030.
Transportation generates more carbon pollution than any other part of the U.S. economy. America’s hundreds of millions of cars, SUVs, pickups, 18-wheelers, and other vehicles generated roughly 25% of total U.S. carbon emissions last year, a figure roughly equal to the entire power sector’s.
In short, the proposal is a big deal with many implications. Here are seven of them.

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Every country around the world must cut its emissions in half by 2030 in order for the world to avoid 1.5 degrees Celsius of temperature rise, according to the Intergovernmental Panel on Climate Change. That goal, enshrined in the Paris Agreement, is a widely used benchmark for the arrival of climate change’s worst impacts — deadly heat waves, stronger storms, and a near total die-off of coral reefs.
The new proposal would bring America’s cars and trucks roughly in line with that requirement. According to an EPA estimate, the vehicle fleet’s net carbon emissions would be 46% lower in 2032 than they stand today.
That means that rules of this ambition and stringency are a necessary part of meeting America’s goals under the Paris Agreement. The United States has pledged to halve its carbon emissions, as compared to its all-time high, by 2020. The country is not on track to meet that goal today, but robust federal, state, and corporate action — including strict vehicle rules — could help it get there, a recent report from the Rhodium Group, an energy-research firm, found.

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Until this week, California and the European Union had been leading the world’s transition to electric vehicles. Both jurisdictions have pledged to ban sales of new fossil-fuel-powered cars after 2035 and set aggressive targets to meet that goal — although Europe recently watered down its commitment by allowing some cars to burn synthetic fuels.
The United States hasn’t issued a similar ban. But under the new rules, its timeline for adopting EVs will come close to both jurisdictions — although it may slightly lag California’s. By 2030, EVs will make up about 58% of new vehicles sold in Europe, according to the think tank Transportation & Environment; that is roughly in line with the EPA’s goals.
California, meanwhile, expects two-thirds of new car sales to be EVs by the same year, putting it ahead of the EPA’s proposal. The difference between California’s targets and the EPA’s may come down to technical accounting differences, however. The Washington Post has reported that the new EPA rules are meant to harmonize the national standards with California’s.

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With or without the rules, the United States was already likely to see far more EVs in the future. Ford has said that it would aim for half of its global sales to be electric by 2030, and Stellantis, which owns Chrysler and Jeep, announced that half of its American sales and all its European sales must be all-electric by that same date. General Motors has pledged to sell only EVs after 2035. In fact, the EPA expects that automakers are collectively on track for 44% of vehicle sales to be electric by 2030 without any changes to emissions rules.
But every manufacturer is on a different timeline, and some weren’t planning to move quite this quickly. John Bozella, the president of Alliance for Automotive Innovation, has struck a skeptical note about the proposal. “Remember this: A lot has to go right for this massive — and unprecedented — change in our automotive market and industrial base to succeed,” he told The New York Times.
The proposed rules would unify the industry and push it a bit further than current plans suggest.

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The EPA’s proposal would see sales of all-electric heavy trucks grow beginning with model year 2027. The agency estimates that by 2032, some 50% of “vocational” vehicles sold — like delivery trucks, garbage trucks, and cement mixers — will be zero-emissions, as well as 35% of short-haul tractors and 25% of long-haul tractor trailers. This would save about 1.8 billion tons of CO2 through 2055 — roughly equivalent to one year’s worth of emissions from the transportation sector.
But the proposal falls short of where the market is already headed, some environmental groups pointed out. “It’s not driving manufacturers to do anything,” said Paul Cort, director of Earthjustice’s Right to Zero campaign. “It’s following what’s happening in the market in a very conservative way.”
Last year, California passed rules requiring 60% of vocational truck sales and 40% of tractors to be zero-emissions by 2032. Daimler, the world’s largest truck manufacturer, has said that zero emissions trucks would make up 60% of its truck sales by 2030 and 100% by 2039. Volvo Trucks, another major player, said it aims for 50% of its vehicle deliveries to be electric by 2030.

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One of the more interesting aspects of the new rules is that they pick up on a controversy that has been running on and off for the past 13 years.
In 2010, the Obama administration issued the first-ever greenhouse-gas regulations for light-duty cars, SUVs, and trucks. In order to avoid a Supreme Court challenge to the rules, the White House did something unprecedented: It got every automaker to agree to meet the standards even before they became law.
This was a milestone in the history of American environmental law. Because the automakers agreed to the rules, they were in effect conceding that the EPA had the legal authority to regulate their greenhouse-gas pollution in the first place. That shored up the EPA’s legal authority to limit greenhouse gases from any part of the economy, allowing the agency to move on to limiting carbon pollution from power plants and factories.
But that acquiescence came at a cost. The Obama administration agreed to what are called “vehicle footprint” provisions, which put its rules on a sliding scale based on vehicle size. Essentially, these footprint provisions said that a larger vehicle — such as a three-row SUV or full-sized pickup — did not have to meet the same standards as a compact sedan. What’s more, an automaker only had to meet the standards that matched the footprint of the cars it actually sold. In other words, a company that sold only SUVs and pickups would face lower overall requirements than one that also sold sedans, coupes, and station wagons.
Some of this decision was out of Obama’s hands: Congress had required that the Department of Transportation, which issues a similar set of rules, consider vehicle footprint in laws that passed in 2007 and 1975. Those same laws also created the regulatory divide between cars and trucks.
But over the past decade, SUV and truck sales have boomed in the United States, while the market for old-fashioned cars has withered. In 2019, SUVs outsold cars two to one; big SUVs and trucks of every type now make up nearly half the new car market. In the past decade, too, the crossover — a new type of car-like vehicle that resembles a light-duty truck — has come to dominate the American road. This has had repercussions not just for emissions, but pedestrian fatalities as well.
Researchers have argued that the footprint rules may be at least partially to blame for this trend. In 2018, economists at the University of Chicago and UC Berkeley argued Japan’s tailpipe rules, which also include a footprint mechanism, pushed automakers to super-size their cars. Modeling studies have reached the same conclusion about the American rules.
For the first time, the EPA’s proposal seems to recognize this criticism and tries to address it. The new rules make the greenhouse-gas requirements for cars and trucks more similar than they have been in the past, so as to not “inadvertently provide an incentive for manufacturers to change the size or regulatory class of vehicles as a compliance strategy,” the EPA says in a regulatory filing.
The new rules also tighten requirements on big cars and trucks so that automakers can’t simply meet the rules by enlarging their vehicles.
These changes may not reverse the trend toward larger cars. It might even reveal how much cars’ recent growth is driven by consumer taste: SUVs’ share of the new car market has been growing almost without exception since the Ford Explorer debuted in 1991. But it marks the first admission by the agency that in trying to secure a climate win, it may have accidentally created a monster.

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The EPA is trumpeting the energy security benefits of the proposal, in addition to its climate benefits.
While the U.S. is a net exporter of crude — and that’s not expected to change in the coming decades — U.S. refineries still rely on “significant imports of heavy crude which could be subject to supply disruptions,” the agency notes. This reliance ties the U.S. to authoritarian regimes around the world and also exposes American consumers to wilder swings in gas prices.
But the new greenhouse gas rules are expected to severely diminish the country’s dependence on foreign oil. Between cars and trucks, the rules would cut crude oil imports by 124 million barrels per year by 2030, and 1 billion barrels in 2050. For context, the United States imported about 2.2 billion barrels of crude oil in 2021.
This would also be a turning point for gas stations. Americans consumed about 135 billion gallons of gasoline in 2022. The rules would cut into gas sales by about 6.5 billion gallons by 2030, and by more than 50 billion gallons by 2050. Gas stations are going to have to adapt or fade away.

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Although it may seem like these new electric vehicles could tax our aging, stressed electricity grid, the EPA claims these rules won’t change the status quo very much. The agency estimates the rules would require a small, 0.4% increase in electricity generation to meet new EV demand by 2030 compared to business as usual, with generation needs increasing by 4% by 2050. “The expected increase in electric power demand attributable to vehicle electrification is not expected to adversely affect grid reliability,” the EPA wrote.
Still, that’s compared to the trajectory we’re already on. With or without these rules, we’ll need a lot of investment in new power generation and reliability improvements in the coming years to handle an electrifying economy. “Standards or no standards, we have to have grid operators preparing for EVs,” said Samantha Houston, a senior vehicles analyst at the Union of Concerned Scientists.
The reduction in greenhouse gas emissions from replacing gas cars will also far outweigh any emissions related to increased power demands. The EPA estimates that between now and 2055, the rules could drive up power plant pollution by 710 million metric tons, but will cut emissions from cars by 8 billion tons.
This article was last updated on April 13 at 12:37 PM ET.
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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?