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Thea Riofrancos, a professor of political science at Providence College, discusses her new book, Extraction, and the global consequences of our growing need for lithium.

We cannot hope to halt or even slow dangerous climate change without remaking our energy systems, and we cannot remake our energy systems without environmentally damaging projects like lithium mines.
This is the perplexing paradox at the heart of Extraction: The Frontiers of Green Capitalism, a new book by political scientist and climate activist Thea Riofrancos, coming out September 23, from Norton.
Riofrancos, a professor at Providence College, has spent much of her academic career studying mining and oil production in Latin America. In Extraction, she traces the lithium boom of the past five or so years, as the aims of the Global North and Global South began to resemble an inverted mirror. Countries in the latter group that have long been sites of mineral extraction — with little economic benefit — are now seeking to manufacture the more lucrative high tech products further down the supply chain. Meanwhile, after decades of offshoring, Europe and the U.S. suddenly want to bring mining back home in pursuit of “green dominance,” she writes. All of this is happening against the backdrop of China’s geopolitical rise, the war in Ukraine, the COVID-19 pandemic, and worsening effects of climate change.
The book also spends time with the indigenous communities and environmental defenders fighting the lithium industry in Chile, Portugal, and the American West. Riofrancos doesn’t shy away from difficult questions, such as whether there is such a thing as a “right place” for a lithium mine. But she’s optimistic that there’s a better path than the one we’re on now. “The energy transition has presented a fork in the road for the entire economic and social order,” she writes. Down one road, we entrench existing power structures. Down the other, we capitalize on the energy transition to create a more just society.
Green capitalism, Riofrancos argues, is an oxymoron. While we can’t avoid extraction, we can reduce the need for it, for example through better public transit, smaller EV batteries, and minerals recycling, she concludes.
This interview has been edited and condensed for length and clarity.
Are there notable differences between lithium and the extraction of other natural resources?
Yes and no. Whether it’s copper or lithium or gold or cobalt — and even I would include hydrocarbons in this, to a degree — whether we look at the economics, the way that they have boom and bust cycles, the fact that governments, even neoliberal governments, tend to take a pretty concerted interest in extractive sectors within their jurisdiction, environmental concerns and direct forms of violence that are meted out at environmental defenders — no, it’s not different. Which should raise alarm bells because a lot of those dynamics are not positive.
What’s different, though, is that precisely because mining companies and host governments claim that the extraction of lithium is urgent and essential for the energy transition, what ends up happening is that these big claims are made — like, “We are now a sustainable mining company because we’re extracting lithium,” or, “This is part of our green industrial policy.” This toxic and dirty extractive sector is now greenified because of its role in the energy transition. On the one hand, that’s greenwashing. On the other, it’s an opening. When companies make those claims, it’s something to hold them accountable to.
I was somewhat surprised by the issues you describe with the way lithium mining is regulated in Chile — the companies do their own environmental monitoring, there’s a lack of transparent data, the brine they mine in the Atacama is not considered water under Chilean law, etc. It seems like the state could change a lot of this. Why hasn’t it?
States in the Global South, although not exclusively there, lack geological and hydrological data about their own territory. In ways that we can trace to colonialism and neocolonialism in terms of who controls the territory and who has knowledge about it, the actors that have the basic data about deposits, how they interact with water sources, all of that, are the companies. And so to even regulate these companies better, you first need to set up independent and objective sources of data collection — and that’s something that any state might struggle with, but especially in the Global South, given the kind of legacy under which these companies operated, with little oversight of the state.
The [U.S. Geological Survey] doesn’t exist everywhere in the world. Not every state has a surveying agency with that level of expertise. And even in the U.S., the USGS actually has quite partial knowledge of what’s here. And there are many examples of companies in the U.S. hiding proprietary knowledge from the government.
What about after Gabriel Boric became president in Chile, in 2022, and created this new public-private partnership between the mining giant SQM and the government. Wouldn’t that have given the Chilean government more visibility and more control?
I think in some ways he’s made strides. He has set aside many salt flats for conservation. A right wing government wouldn’t have done that. He also is inserting the state, via the state-owned copper company Codelco, entering into public-private partnerships with companies, including SQM. If all goes according to plan, that will help the state learn more about lithium extraction, or maybe even set up their own lithium company, which was the initial goal of this government.
I’ll just point out two things to show how this is difficult. According to indigenous communities and environmental activists that have been organizing around this, they were excluded from the initial moment where that memorandum of understanding between SQM and Codelco was signed, and so they felt like it was a reenactment of historic injuries by a government that they had cautiously supported or thought would be different. Now they’re back at the negotiating table and indigenous communities are being consulted again. But there was a critical moment where the MOU was signed and indigenous communities were not present, and actually learned about it from the media. These historic patterns are really hard to change because companies hold a lot of power.
Even a progressive government is balancing indigenous rights and ecological protection with a desire to not lose market share. Argentina is starting to catch up with Chile — is Chile still going to remain the number two producer globally? Does it need to change its regulations to attract more companies? This is the kind of double bind that Global South societies find themselves in.
You write about this tension between expanding extraction and minimizing environmental and community impacts. Do you believe there are actually ways to minimize these impacts?
Absolutely. You can do anything better. I believe in human ingenuity and science and figuring out how to improve processes. There are ways to extract using less water, using a smaller land footprint, using fewer polluting energy sources. One of the reasons emissions from mining are not insignificant is a lot of it happens off-grid, and for now, that means diesel generators or gasoline-powered mining vehicles, let alone the cargo ships that are shipping the stuff around the world. So we could think about localizing or regionalizing supply chains.
The question is, how do we get companies to change their practices? They might do it if a regulator tells them they have to, if civil society puts so much pressure on them that it just becomes reputational harm if they don’t do it, if perhaps activist shareholders ask or tell the company to change its practices.
But the company, if it’s a shareholder-owned company, has one main obligation, which is to maximize the value of their shares. Changing your technological setup and your physical plant arrangement is costly, and it may not immediately produce more profits. And so you have to think about, what are the crude economic dynamics that keep companies on a particular technological path in terms of how they do their physical operations? And then think, using the power of policy, of economics, of consumer pressure, whatever it is, how to get them to make a decision that may not be in their immediate shareholder interest.
One theme in the book is that countries in the West are making a case for domestic mining by arguing that it will be greener than mining in the Global South. Is there any evidence for that? What’s the logic?
This was honestly one of the most surprising things in my research as someone that primarily has worked in Latin America. I heard some rumblings — and this was in 2019, before the pandemic — of EU officials wanting to onshore. It confused me because mining is toxic, it’s low value-added. And what I learned is that it had come to a point where Western policymakers saw the whole supply chain as a domain of geostrategic power.
And then, probably some people really feel this way, and other people are using it as nice rhetoric, but Western policymakers also started to come to the idea that it would be more “responsible” to mine in the West. This is in no small part due to the fact that the mining industry has deservedly gotten a lot of negative coverage for, in some cases, outright killing people. In other cases, you have an avalanche that destroys a village. You have water contamination. There are issues around forced labor, how the Uyghurs are treated in China. So there was a lot of bad press on the industry. I think they thought, We can solve a few problems at once. We can increase our geopolitical power by having domestic supply chains for the most important 21st century technologies, and we can also make the claim to consumers, regulators, and the media that this is better if you care about responsible, ethical, green mining.
The reality is, of course, more complex than that. Our mining law in the U.S. that governs hard rock mining on public lands is from 1872, which tells you everything you need to know. It’s extremely out of date with the modern mining industry and the scale of harm that mining poses, and it also literally was implemented during the westward expansion and dispossession of indigenous peoples to serve that end.
In fact, countries in Latin America tend to have better — on paper — governance of mining than the U.S., though they may not have the state capacity to always implement it. In Europe, there’s even more dependence on imports. A lot of the European countries have almost no regulations on the books for basic things like, how do you deal with mining waste? And so in the Global North, what we have to fight for is a mining governance regime and a set of legal codes and regulations that is up to date.
This book is pretty critical of the way communities have been treated in the lithium boom so far. What are some of the ways community engagement can be done better?
We see better outcomes when communities are organized, when they actually identify as a community, have some meetings, maybe set up a group to coordinate themselves. Like, who’s going to go to the public hearing? Who’s going to contact a lawyer? Who’s going to contact the water expert? Because communities need a lot of outside help. The companies have lawyers, they have experts, they probably have friends in government. A lot of lawyers and experts that companies hire used to work for the government, and they know these processes inside out, and so the community needs to be as or more organized. They’re already on the losing end of a power imbalance.
In a way, none of this is about what companies can do, because I presume that companies are responsive to pressure. Multinationals, insofar as they’re shareholder-owned, their main goal is to maximize value, and that’s it. It’s that simple. And so in order to get them to behave differently towards communities, outside forces need to take a role. The first outside force is the community itself. A second is, how involved is the government? And how objective and public-serving is the government? Where governments take a more objective role and help protect the baseline rights of communities, make sure that those rights are not being violated by companies, help distribute more culturally sensitive and appropriate information about the mine, we could get better outcomes that way.
You had activists tell you, “I support lithium mining, but this is the wrong place for it.” Do you think there is such a thing as a right or wrong place, or even a better or worse place for a lithium mine?
This was honestly the most vexing question that I had to contemplate in my own research. I often think about how these communities are called NIMBYs, and there’s two reasons that’s a really inappropriate term. First of all, the “my backyard” — not every person has private property, or that’s not their stake in the matter. It’s not about, this is going to decrease the value of my property, or this is going to disrupt my ocean view. It’s about the land that they have a deep relationship with.
The second thing is, I don’t think most of the people that call these communities NIMBYs would really want to live next to a large-scale mine, either. They are just enormous scars on the landscape. I understand that they are necessary, to some degree, to provide for the technologies that we enjoy, including life-saving and planet-saving technology. Even in my perfect world, where everyone is riding an electric bus or bike or walking around, some lithium is still needed in the near term. In the future, we could conceivably enter into a circular economy, but we don’t have the level of feedstock for that yet.
So the question remains, where are we going to mine? I don’t have an easy answer to that, but I will say that in the entire process of land use planning, the corporation is the protagonist. In the U.S., a place that I think most political scientists would say has more state capacity than a country in Africa or Latin America, we do not use that capacity to proactively plan land use. I think it would make sense to really rearrange the process such that governments plan with substantial community input, and then corporations, if we want to have private corporations doing this, get the ability to compete for contracts. I know that would be a big lift to change that policy dynamic, but I think we need to have the conversation.
You write a lot about this difficult dance between supply and demand in mining. What are you seeing right now in how the lithium industry is reacting to Trump’s dismantling of EV policy?
With Trump, it’s particularly interesting and bizarre because on the list of fast-tracked mines, you have several lithium mines and some lithium processing along with other “critical minerals.” He really wants to expand mining, to the point that the Pentagon is now the No. 1 investor in our only rare earth mine in the U.S. They bought 15% of MP Materials’ shares, the company that manages the Mountain Pass mine. And so Trump is fast-tracking mines, he’s sending huge amounts of public money to financially underwrite these mining companies. But yet, he’s destroying demand for rare earths. He loves to talk about AI and military tech — that’s a small slice of demand. It’s really about wind turbines and electric vehicle motors. That’s really where the demand is. With lithium, it’s even clearer.
That all seems like a recipe for prices to crash.
The thing is, they already had crashed because of a supply glut. But at the same time, the market will likely pick back up because we’re seeing so much action elsewhere in the world. It’s very easy to focus on the U.S., especially because the U.S. government is such a basket case right now. But if we zoom out, there’s been a bunch of recent reporting, including in Heatmap, on how rapidly the energy transition is going in other parts of the world, with China playing an enormous role not only on the trade side, but also in foreign direct investment, in setting up solar and EV manufacturing hubs in the Global South.
And so I think that Trump can dismantle EVs as much as he wants in the U.S., and that’s a shame given that transportation is our most polluting sector. I mean, that pains me as a climate activist. But the world is bigger than the U.S.
The last thing I’ll say — and this is another interesting contradiction — in the Big, Beautiful Bill, it’s not across the board against all green technologies. There’s this distinction that conservatives increasingly like to make called “clean, firm power.” So they put nuclear, geothermal, and battery storage in that. Now, battery storage, what is that made of? Lithium. So in a weird way, they like lithium mining, they like batteries for storage, they just don’t like electric vehicles. We’re still going to have lithium demand in the U.S., and lots of individual people will still buy electric cars, and blue states will still procure them for their public fleets. He’s not going to kill the market. He’s just going to slow its growth, primarily by making it less affordable for working and middle class people.
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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?