You’re out of free articles.
Log in
To continue reading, log in to your account.
Create a Free Account
To unlock more free articles, please create a free account.
Sign In or Create an Account.
By continuing, you agree to the Terms of Service and acknowledge our Privacy Policy
Welcome to Heatmap
Thank you for registering with Heatmap. Climate change is one of the greatest challenges of our lives, a force reshaping our economy, our politics, and our culture. We hope to be your trusted, friendly, and insightful guide to that transformation. Please enjoy your free articles. You can check your profile here .
subscribe to get Unlimited access
Offer for a Heatmap News Unlimited Access subscription; please note that your subscription will renew automatically unless you cancel prior to renewal. Cancellation takes effect at the end of your current billing period. We will let you know in advance of any price changes. Taxes may apply. Offer terms are subject to change.
Subscribe to get unlimited Access
Hey, you are out of free articles but you are only a few clicks away from full access. Subscribe below and take advantage of our introductory offer.
subscribe to get Unlimited access
Offer for a Heatmap News Unlimited Access subscription; please note that your subscription will renew automatically unless you cancel prior to renewal. Cancellation takes effect at the end of your current billing period. We will let you know in advance of any price changes. Taxes may apply. Offer terms are subject to change.
Create Your Account
Please Enter Your Password
Forgot your password?
Please enter the email address you use for your account so we can send you a link to reset your password:
House Republicans’ new plan to transform NEPA, explained
A powerful House Republican committee has proposed shaking up one of the country’s key permitting laws as part of the ongoing process to write President Trump’s tax bill.
A new bill, drafted by the House Natural Resources Committee would transform the National Environmental Policy Act, or NEPA. Under NEPA as it stands today, the government must study the environmental impact of any “major” federal action. Any time a federal agency adopts a new policy, builds a new project, spends federal dollars, or issues a license or permit, that choice gets a full environmental review.
Crucially, this also means that the federal government must study the environmental impact even of privately developed projects that require some kind of federal sign-off. But the new bill would quicken this process and likely shield it from court review.
The law represents a “big step” for permitting reform, Nicholas Bagley, a University of Michigan law professor, told us. “It’s creative and extremely aggressive.” If it passes, Republicans’ budget measure could speed up the construction of energy projects around the country. But it could also reduce local or environmental groups’ ability to sue to slow down or block development.
The bill would allow companies to pay a fee to access a faster, more streamlined NEPA process that would not be reviewable by the courts, according to the bill. That means environmental groups would likely have a harder time suing the government for failing to account for various environmental maladies in their study.
Under the draft legislation, companies would pay 125% of the cost of preparing the report to get an expedited review. But avoiding a lengthy court fight is so valuable that many companies would likely take advantage of this new process, Bagley told us.
“You can read it as effectively creating a price for a litigation shield — the federal government is allowing developers to buy themselves out of litigation risk with a flat fee,” he said.
It would change the status quo in two important ways.
First, many federal agencies already require project sponsors to pay the full cost of preparing a NEPA report for a private project, such as a solar farm or geothermal well. The House Republican proposal would increase this cost by just 25% on the front end.
Second, under the law today, agencies take more than four years on average to prepare a NEPA report, which can regularly stretch into the hundreds of pages. Congress has periodically tried to impose tighter deadlines and shorter page limits on the NEPA process — including in a 2023 debt ceiling law — but it hasn’t been successful.
That’s because the threat of lawsuits ultimately drives the NEPA process, Bagley said. Civil servants write lengthy, meticulous NEPA reports not because statute requires them to do so, but because they’re afraid of losing their work in a lawsuit, he said.
“The thing driving lengthy timelines is litigation risk,” Bagley told us. “Unless and until you correct for the threat of judicial review, NEPA reform isn’t going to go that far.” This proposal is the first modern NEPA report to offer protection from judicial review.
The proposal could help speed up all types of energy projects.
But it could help some more than others. Certain fossil fuel projects — especially those involving fracking — have already received some form of exemption from the NEPA process. But renewables and clean energy projects broadly don’t have such a carve-out. Neither do some other types of natural gas infrastructure, such as pipelines and export terminals. These projects could benefit from a faster and less court-reviewable NEPA process.
This is the big question. To comply with the strictures of what’s known as the “Byrd Rule,” provisions in reconciliation must be primarily budgetary in nature, i.e. related to taxing and spending.
Provisions that have a budgetary effect but are “merely incidental” to their non-budgetary components can be ruled by the Senate Parliamentarian to be “extraneous” and excluded from the bill.
Parliamentarian rulings helped shape — and narrow — Democratic proposals in 2021 and 2022, including stripping out immigration provisions and minimum wage hikes from various bills that were working their way through the reconciliation process.
So where does overhauling NEPA fit in? The 125% fee makes the provisions of the House language arguably germane to the budgetary purposes of the reconciliation package. Supporters of the language will cite a precedent in the Inflation Reduction Act that waived judicial review for the program’s negotiation of drug prices in Medicare.
One way the parliamentarian will try to answer this question is by asking, “‘Is that big policy change necessary in order to achieve the budgetary impact?’ That’s the place where this could fail,” Thomas Hochman, the director of infrastructure policy at the Foundation of American Innovation, told us.
NEPA isn’t the only law that requires the government to study the environmental or cultural impact of its decisions. A handful of other laws — including the Endangered Species Act, the National Historic Preservation Act, or the Clean Water Act — mandate their own permitting process, which can also be lengthy.
Many of these laws impose substantive obligations on government decisions. The NHPA, for instance, requires the government to study whether any decisions will affect Native American cultural sites and to reach an agreement about how to mitigate that impact. These decisions can then be reviewed by the courts — NHPA was at the heart of the Dakota Access pipeline and SunZia cases.
Under the law today, the government often satisfies its duties under these laws as part of a broader “NEPA process,” with one agency essentially handling the paperwork for all the federal permitting laws that matter to a project together.
The House Republican proposal wouldn’t weaken or affect any of these laws, Hochman and Bagley told us. The government would still need to satisfy its obligations under all other federal permitting laws, and the courts could still review those decisions. It’s unclear how those laws would fit into the new streamlined NEPA process.
Senator Joe Manchin of West Virginia led two efforts during the Biden years to pass permitting reform legislation through the conventional lawmaking process. The bills tended to combine policy asks from Republicans and Democrats — that is, oil and gas interests as well as green energy and transmission developers — in an effort to build a broad consensus in favor of policy change.
What that looked like in practice was specific carveouts designed to facilitate the building of long-range transmission lines alongside, say, changes in schedules for leases for extracting fossil fuels on public lands.
This time, Republicans alone are driving the permitting reform process, because the reconciliation bill is expected to be approved (or not) on party lines.
The reconciliation language says nothing specific about transmission, for example, but it includes specific provisions favored by the oil and gas industry like mandating lease sales on a quarterly basis. The American Petroleum Institute praised the bill, and the Sierra Club said that “the only way it could be friendlier to Big Oil CEOs would be if they wrote it themselves.”
But the reform to how NEPA is — and isn’t — litigated is a genuine breakthrough in years of drawing up failed permitting reform plans.
“We haven’t yet seen one bipartisan bill on permitting that broadly amends judicial review,” Xan Fishman, senior managing director of the energy program at the Bipartisan Policy Center, told us.
“One of the difficulties in doing permitting reform is that there isn’t just one problem that needs solving. There are a bunch of things that all add up to a really difficult process that takes a long time and has massive degrees of uncertainty,” Fishman said.
To the extent clean energy projects face sometimes fatal delays due to the specific rigors of the NEPA process, the bill would remove a barrier to their development.
NEPA has proven to be a significant barrier to solar development. About two thirds of solar projects that were assessed under NEPA between 2010 and 2018 faced litigation, as well as almost one third of pipelines and 38% of wind projects, according to Stanford researchers Michael Bennon and Devon Wilson.
Even when agencies win court cases — which can be filed up to six years after a federal agency decision — “litigation overwhelmingly functions as a form of delay,” according to Breakthrough Institute research.
It’s unclear whether the House Republican proposal will ultimately speed up federal energy project approvals, or whether litigants will shift to opposing projects under other permitting laws, such as the Endangered Species Act or NHPA. But permitting reform advocates agree that the proposal nonetheless represents a big step.
“It would be a pretty good shield for persnickety criticisms of [environmental reviews] that are now de rigueur, but it might not provide complete protection from the full run of environmental objections waged against a project,” Bagley said.
“I am firmly convinced that NEPA is a big problem for helping to create and reinforce defensiveness on the part of agency officials. But it’s part of a big web of accountability run maybe too amok,” he said. “One answer is to start clipping parts of the web — it doesn’t fix the whole problem, but it might help you see what else becomes salient.”
Log in
To continue reading, log in to your account.
Create a Free Account
To unlock more free articles, please create a free account.
House Republicans have bet that nothing bad will happen to America’s economic position or energy supply. The evidence suggests that’s a big risk.
When President Barack Obama signed the Budget Control Act in August of 2011, he did not do so happily. The bill averted the debt ceiling crisis that had threatened to derail his presidency, but it did so at a high cost: It forced Congress either to agree to big near-term deficit cuts, or to accept strict spending limits over the years to come.
It was, as Bloomberg commentator Conor Sen put it this week, the wrong bill for the wrong moment. It suppressed federal spending as America climbed out of the Great Recession, making the early 2010s economic recovery longer than it would have been otherwise. When Trump came into office, he ended the automatic spending limits — and helped to usher in the best labor market that America has seen since the 1990s.
On Thursday, the Republican majority in the House of Representatives passed their megabill — which is dubbed, for now, the “One Big, Beautiful Bill Act” — through the reconciliation process. They did so happily. But much like Obama’s sequestration, this bill is the wrong one for the wrong moment. It would add $3.3 trillion to the federal deficit over the next 10 years. The bill’s next stop is the Senate, where it could change significantly. But if this bill is enacted, it will jack up America’s energy and environmental risks — for relatively little benefit.
It has become somewhat passé for advocates to talk about climate change, as The New York Times observed this week. “We’re no longer talking about the environment,” Chad Farrell, the founder of Encore Renewable Energy, told the paper. “We’re talking dollars and cents.”
Maybe that’s because saying that something “is bad for the climate” only makes it a more appealing target for national Republicans at the moment, who are still reveling in the frisson of their post-Trump victory. But one day the environment will matter again to Americans — and this bill would, in fact, hurt the environment. It will mark a new chapter in American politics: Once, this country had a comprehensive climate law on the books. Then Trump and Republicans junked it.
The Republican megabill will make climate change worse. Within a year or two, the U.S. will be pumping out half a megaton more carbon pollution per year than it would in a world where the IRA remains on the books, according to energy modelers at Princeton University. Within a decade, it will raise American carbon pollution by a megaton each year. That is a significant increase. For comparison, the United States is responsible for about 5.2 megatons of greenhouse gas pollution each year. No matter what happens, American emissions are likely to fall somewhat between now and 2035 — but, still, we are talking about adding at least an extra year’s worth of emissions over the next decade. (Full disclosure: I co-host a podcast, Shift Key, with Jesse Jenkins, the lead author of that Princeton study.)
What does America get for this increase in air pollution? After all, it’s possible to imagine situations where such a surge could bring economic benefits. In this case, though, we don’t get very much at all. Repealing the tax credits will slash $1 trillion from GDP over the next decade, according to the nonpartisan group Energy Innovation. Texas will be particularly hard hit — it could lose up to $100 billion in energy investment. Across the country, household energy costs will rise 2% to 7% by 2035, on top of any normal market-driven volatility, according to the energy research firm the Rhodium Group. The country will become more reliant on foreign oil imports, yet domestic oil production will budge up by less than 1%.
In other words, in exchange for more pollution, Americans will get less economic growth but higher energy costs. The country’s capital stock will be smaller than it would be otherwise, and Americans will work longer hours, according to the Tax Foundation.
But this numbers-driven approach actually understates the risk of repealing the IRA’s tax credits. The House megabill raises two big risks to the economy, as I see it — risks that are moresignificant than the result of any one energy or economic model.
The first is that this bill — its policy changes and its fiscal impact — will represent a double hit to the capacity of America’s energy system. The Inflation Reduction Act’s energy tax credits were designed to lower pollution and reduce energy costs by bringing more zero-carbon electricity supply onto the U.S. power grid. The law didn’t discriminate about what kind of energy it encouraged — it could be solar, geothermal, or nuclear — as long as it met certain emissions thresholds.
This turned out to be an accidentally well-timed intervention in the U.S. energy supply. The advent of artificial intelligence and a spurt of factory building has meant that, in the past few years, U.S. electricity demand has begun to rise for the first time since the 1990s. At the same time, the country’s ability to build new natural gas plants has come under increasing strain. The IRA’s energy tax credits have helped make this situation slightly less harrowing by providing more incentives to boost electricity supply.
Republicans are now trying to remove these tax bonuses in order to finance tax cuts for high-earning households. But removing the IRA alone won’t pay for the tax credits, so they will also have to borrow trillions of dollars. This is already straining bond markets, driving up interest rates for Americans. Indeed, a U.S. Treasury auction earlier this week saw weak demand for $16 billion in bonds, driving stocks and the dollar down while spiking treasury yields.
Higher interest rates will make it more expensive to build any kind of new power plant. At a moment of maximum stress on the grid, the U.S. is going to pull away tax bonuses for new electricity supply and make it more expensive to do any kind of investment in the power system. This will hit wind, solar, and batteries hard; because renewables don’t have to pay for fuel, their cost variability is largely driven by financing. But higher interest rates will also make it harder to build new natural gas plants. Trump’s trade barriers and tariff chaos will further drive up the cost of new energy investment.
Republicans aren’t totally oblivious to this hazard. The House Natural Resource Committee’s permitting reform proposal could reduce some costs of new energy development and encourage greater power capacity — assuming, that is, that the proposal survives the Senate’s byzantine reconciliation rules. But even then, significant risk exists for runaway energy cost chaos. Over the next three years, America’s liquified natural gas export capacity is set to more than double. Trump officials have assumed that America will simply be able to drill for more natural gas to offset a rise in exports, but what if higher interest rates and tariff charges forbid a rise in capacity? A power price shock is not off the table.
So that’s risk No. 1. The second risk is arguably of greater strategic import. As part of their megabill, House Republicans have stripped virtually every demand-side subsidy for electric vehicles from the bill, including a $7,500 tax credit for personal EV purchases. At the same time, Senate Republicans and the Trump administration have gutted state and federal rules meant to encourage electric vehicle sales.
Republicans have kept, for now, some of the supply-side subsidies for manufacturing EVs and batteries. But without the paired demand-side incentives, American EV sales will fall. (The Princeton energy team projects an up to 40% decline in EV sales nationwide.) This will reduce the economic rationale for much of the current buildout in electric vehicle manufacturing and capacity happening across the country — it could potentially put every new EV and battery factory meant to come online after this year out of the money.
This will weaken the country’s economic competitiveness. Batteries are a strategic energy technology, and they will undergird many of the most important general and military technologies of the next several decades. (If you can make an EV, you can make an autonomous drone.) The Trump administration has realized that the United States and its allies need a durable mineral supply chain that can at least parallel China’s. But they seem unwilling to help any of the industries that will actually usethose minerals.
Does this mean that Republicans will kill America’s electric vehicle industry? Not necessarily. But they will dent its growth, strength, and expansion. They will make it weaker and more vulnerable to external interference. And they will increase the risks that the United States simply gives up on ever understanding battery technology and doubles down on internal combustion vehicles — a technology that, like coal-powered naval ships, is destined to lose.
It is, in other words, risky. But that is par for the course for this bill. It is risky to make the power grid so exposed to natural gas price volatility. It is risky to jack up the federal deficit during peacetime for so little gain. It is risky to cede so much demand for U.S.-sourced critical minerals. It is risky to raise interest rates in an era of higher trade barriers, uncertain supply shocks, and geopolitical instability.
This is what worries me most about the Republican megabill: It takes America’s flawed but fixable energy policy and replaces it with, well, a longshot parlay bet that nothing particularly bad will happen anytime soon. Will the Senate take such a bet? Now we find out.
And more of the week’s top conflicts around renewable energy
1. Worcester County, Massachusetts – The town of Oakham is piping mad about battery energy storage.
2. Worcester County, Maryland – A different drama is going down in a different Worcester County on Maryland’s eastern shore, where fishing communities are rejecting financial compensation from U.S. Wind tied to MarWin, its offshore project.
3. Lackawanna County, Pennsylvania – A Pivot Energy solar project is moving ahead with getting its conditional use permit in the small town of Ransom, but is dealing with considerable consternation from residents next door.
4. Cumberland County, North Carolina – It’s hard out here for a 5-megawatt solar project, apparently.
5. Barren County, Kentucky – Remember the Geenex solar project getting in the fight with a National Park? The county now formally has a restrictive ordinance on solar… that will allow projects to move through permitting.
6. Stark County, Ohio – Stark Solar is no more, thanks to the Ohio Public Siting Board.
7. Cheboygan County, Michigan – A large EDP Renewables solar project called the Northern Waters Solar Park is entering the community relations phase and – stop me if you’ve heard this before – it’s getting grumbles from locals.
8. Adams County, Illinois – A Summit Ridge Energy solar project located near the proposal in the town of Ursa we’ve been covering is moving forward without needing to pay the city taxes, due to the project being just outside city limits.
9. Cottonwood County, Minnesota – National Grid Renewables has paused work on the Plum Creek wind farm despite having received key permits to build, a sign that economic headwinds may be more powerful than your average NIMBY these days.
10. Oklahoma County, Oklahoma – Turns out you can’t kill wind in Oklahoma that easily.
11. Washoe County, Nevada – Trump’s Bureau of Land Management has opened another solar project in the desert up for public comment.
12. Shasta County, California – The California Energy Commission this week held a public hearing on the ConnectGen Fountain Wind project, which we previously told you already has gotten a negative reaction from the panel’s staff.
A conversation with Heather Cooper, a tax attorney at McDermott Will & Emery, about the construction rules in the tax bill.
This week I had the privilege of speaking with Heather Cooper, a tax attorney at McDermott Will & Emery who is consulting with renewables developers on how to handle the likelihood of an Inflation Reduction Act repeal in Congress. As you are probably well aware, the legislation that passed the House earlier this week would all but demolish the IRA’s electricity investment and production tax credits that have supercharged solar and wind development in the U.S., including a sharp cut-off for qualifying that requires beginning construction by a date shortly after the bill’s enactment.
I wanted to talk to Heather about whether there was any way for developers to creatively move forward and qualify for the construction aspect of the credits’ design. Here’s an abridged version of our conversation, which happened shortly after the legislation passed the House Thursday morning.
How would this repeal affect projects that are already in the pipeline?
Projects in the pipeline are likely going to be safe harbored or grandfathered from these repeals, assuming they’ve gone far enough into their development to meet certain tax rules.
For projects that are less far along in the pipeline and haven’t had any outlays or expenditures yet, those developers right now are scrambling and I’ve gotten probably about 100 emails from my clients today asking me questions about what they can do to establish construction has begun on their project.
If they don’t satisfy those construction rules under the tax bill, they will be completely ineligible for the energy generating credits — the investment tax credit and production tax credit. A pretty significant impact.
What are the questions your clients are asking you?
I’m being asked how these credits are being repealed, if there’s any grandfathering, and how it’s impacting transferability. Also, they’re asking if these rules are tied to construction or placing in service or tax years generally. But also, it seems like people are asking what folks need to do to technically begin construction.
How much will this repeal affect fights between developers and opposition? I spoke to an attorney who told me this repeal could empower NIMBYs, for example.
I don’t know if it empowers them as much as NIMBYs will have less to worry about. If these projects are no longer economical, if these are no longer efficient to build, then the projects just won’t get built. NIMBYs and opponents will be happy.
I don’t think anything about the particular structure of the repeal, though, is empowering opponents. It is what it is.
Like, you can begin construction by entering into procurement contracts for equipment to build your facility so if you’re building a project you can enter into a contract today to get modules, warehouse those modules, and then use those modules to cause one or more projects as having begun construction based on when they were purchased.
If a developer today is able to enter into those contracts, that’ll be outside the scope of anything an opponent would have anything to do with.
Are we expecting people to make decisions before the Senate has acted on this bill or are people in a holding pattern?
When the election happened in November I had increased interest in clients who were concerned about a worst-case scenario like this, that credits would be repealed at or around the time of enactment. We had clients betting not that this would happen but [there was still] a 1% chance or a 5% chance. And folks asked then, how do we re-up thinking about how to begin construction on projects as a precautionary measure.
A lot of my clients were thinking about the worst case scenario beforehand. This is probably just escalating their thinking.
I don’t think people have a lot of time to think about what to do, though, given the 60-day cut off after enactment.
What is the silver lining here? Is there any? If I were to talk to a developer right now, is there an on the bright side here?
The short answer is no. Maybe it makes power projects a lot more expensive and American energy a lot more expensive and therefore those building power projects can make more money from their existing projects? That’s whether they’re renewable or otherwise. Other than higher power costs – for consumers, regular old taxpayers – there’s not really a bright side.
So, what you’re saying is, you don’t have any good news?
The good news is the Senate is still out there and needs to review this. There are a few senators who’ve expressed strong support of these credits – I’m not super optimistic, but four senators tend to have a bit more sway than congresspeople do.