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The U.S. and Israel’s war of choice has already destroyed many things, including the president’s domestic energy strategy.

President Trump’s war in Iran is not popular. More than half of Americans disapprove of the conflict, according to Nate Silver, while fewer than 40% approve it — a 17-point deficit that has dragged down the president’s overall approval rating with it. The major polling averages now show the president’s approval in the high 30s, compared to 42% at the beginning of the year.
America’s interpreting class has, I think, absorbed this truth about the war. What has attracted less attention, perhaps, is that the war has left Trump’s energy policy dead in the water.
The Trump administration is not over: He will remain president for the next two years and nine months, and I expect many of his officials’ ideas — including their ambitious nuclear energy buildout — to move forward. But Trump’s ambitious plans to remake the country’s energy system — and the bargain that he made with the American people and the world — have been defeated by reality.
Trump’s energy policy was premised on a simple idea: If Americans gave the fossil fuel industry whatever it wants, then they would enjoy cheap and boundless energy — and especially cheap gasoline. Beginning on day one, his administration struck down air and water pollution rules, canceled energy efficiency standards, and waged bureaucratic war on any state government or rival industry that dared to withhold market share from oil or gas. It aimed to make the market for fossil fuels as large as possible, essentially locking in compulsory demand for oil, natural gas, and coal across the economy.
In return, the unshackled energy industry was supposed to bless Americans with unlimited cheap electricity and gasoline. Trump described this bargain with characteristic blunt eloquence. He would end Biden’s “war on energy,” he promised crowds before the 2024 election: “We will frack, frack, frack, and drill, baby, drill.” In return, he said, “I will cut your energy prices in half within 12 months.”
Trump has manifestly failed to cut energy prices at all. Instead, his war of choice in Iran has sent gas prices surging, rising more than a dollar in a month. Americans are operating fewer drilling rigs today than they were a year ago.
Meanwhile, the country and the world are spiraling into the worst energy crisis in years. Yet Trump’s policy is not doomed because of these broken promises or high prices. The entire premise and justification of Trump’s strategy is now moot — and the administration is likely to spend the better part of its remaining time in office picking up the pieces.
The plan has failed. What is striking, however, is that I’m not sure Trump’s energy team has realized it yet.
To understand the Trump approach, look first to the power sector. The president began his administration by repealing a slew of energy efficiency rules for household appliances — a surefire way to drive up long-term electricity demand. He embraced the artificial intelligence boom, appointing techno-libertarians such as the venture capitalist David Sacks to senior administration positions and revelling in the surge in energy demand.
Higher electricity demand, to be clear, can be a good thing; demand from data centers could help build grid resiliency over the long term. But the Trump administration has instead fought efforts to meet the coming surge in demand with additional generation capacity from renewables. Even as the supply chain for new utility-scale natural gas plants has become clogged and backed up, the president’s agencies waged an all-out bureaucratic war on new wind, solar, and battery projects, condemning hundreds of new power plants to regulatory purgatory. They have even tried to keep companies from building wind farms on private land. In other words, the Trump administration kept America from diversifying its energy sources, doubling down on fossil fuels while preparing to upend the global fossil fuel supply chain.
Trump’s transportation policies followed the same logic. Most Americans know Trump and the Republican leadership have tried to crush the American electric vehicle sector, yanking consumer-side incentives and creating a new EV rust belt. But Republicans have also fatally weakened long-standing rules meant to improve the efficiency of gasoline-burning cars and trucks. Back during the mid-2000s oil shock, Congress revived the Corporate Average Fuel Economy rules, which in the years since have helped to improve the U.S. vehicle fleet’s fuel efficiency even as cars got larger and heavier. But last year, congressional Republicans set the penalties for violating those rules at zero dollars, essentially wiping them from the books. At the same time, the Trump administration has tried to terminate a similar EPA program for regulating car and truck gas mileage. It also shut down the emissions credit-swapping mechanisms that helped support new American EV companies such as Tesla, Rivian, and Lucid.
Combined, these policies have reduced the American economy’s ability to withstand an oil shock. And yet many of the president’s most important messengers appear not to have realized this. In late March, I attended the CERAWeek by S&P Global conference in Houston, the so-called “Super Bowl of energy” that brings together 11,000 professionals from across the oil, gas, utilities, and clean energy sectors. Interior Secretary Doug Burgum and Energy Secretary Chris Wright spoke to the group, but the administration’s most memorable spokesperson by far was Lee Zeldin, the New York Republican who leads the Environmental Protection Agency.
The conference was an odd one. The Iran War had ruined every oil executive’s talking points, which had seemingly been prepared by an unseen phalanx of communications staff early in Q1, so a curious and unspeakable unease permeated the proceedings. Despite the many emergency panels devoted to the topic, few seriously wanted to address the closure of the Strait of Hormuz; nobody knew what to say about the biggest convulsion in the oil trade since the 1970s. Was gas about to go to $7 per gallon? Was the oil and gas industry about to transform forever? The best most executives could manage was say that they were working overtime to keep Persian Gulf employees safe.
CERAWeek sprawls across Houston’s 24-story Hilton Americas hotel and a neighboring convention center. At its spiritual and literal center is a huge, dark ballroom, where hundreds of attendees watched as Daniel Yergin — the author of the comprehensive oil history The Prize and de facto dean of energy analysts — chatted amicably with energy CEOs and government officials on a lit central stage. Yergin’s interview style could not be described as grueling, but it revealed how attendees were thinking and feeling, and their comfort on stage.
It fell to Zeldin, who spoke uncomfortably with Yergin on on Wednesday, to reveal the perishing of the president’s energy policy. Unlike Burgum, a former governor, Zeldin lacks a certain political subtlety; unlike Wright, a former fracking executive, Zeldin never gained a working knowledge of the oil and gas industry. His greatest qualification for the EPA job seemed to be a visceral hatred of offshore wind projects near his Long Island home — and although as a congressman Zeldin could boast a somewhat moderate environmental record, he has since reformed himself, denouncing the “Green New Scam” and “the climate change religion” in his new role. It has worked: He is reportedly on the short list to replace Pam Bondi as attorney general.
The risks of this flexibility were on display, however, when Zeldin chose to defend Trump’s policies to Yergin on the basis of affordability. By cutting pollution rules for cars and trucks — and repealing the regulatory finding that let the EPA regulate heat-trapping tailpipe pollution at all — the EPA was making life cheaper for regular Americans, Zeldin claimed.
Americans “want government to heed and apply pragmatism and common sense to help achieve the American dream, to make life more affordable,” Zeldin said. “Anyone who cares about affordability — anyone who cares about being able to have access to heat your home and to fuel your car — people who right now, are choosing between heating their homes or filling their refrigerator or getting their prescription drugs — these Americans put President Trump back in office in November of 2024, and they deserve a vote,” he said.
Someone should tell those voters that Trump’s Iran war is likely to drive up costs of gasoline and food and prescription drugs. But it is all the more painful because Zeldin did not appear to understand his own agency’s conclusions. The problem is that Zeldin’s rollback — and the rest of the Trump administration’s war on EVs — will not actually make gasoline cheaper at all. According to the EPA’s own analysis, the rollback will instead make gasoline more expensive because it will increase the amount of gasoline that people have to use to do the same amount of driving. The rollback is, instead, supposed to make cars cheaper because it will reduce the amount of emissions-lowering technology that automakers must install in each vehicle.
Especially now, the rollback is unlikely to save Americans money. As Zeldin was forced to concede at a Politico-hosted event a day earlier, the EPA rollback only brings economic benefits to the American people if you assume oil prices will stay unreasonably low — on the order of $47 a barrel, or about $2 a gallon for gas. “I don’t think anyone is making believe that the fluctuation that’s taking place over the last few weeks is indicative of where the price of oil is going to be months from now, or years from now,” Zeldin said when asked about the discrepancy. But $47 oil is so low, so unbelievable, that it would spell economic doom for most American oil drillers.
Yergin did not make this apocalyptic scenario clear on stage, but he didn’t need to: I did not get the sense that Zeldin particularly captivated the energy executives in the audience, either. When Yergin asked him to give an example of the kind of regulations that the EPA is cutting, Zeldin cited the agency’s accelerated effort to clear hazardous material after the Los Angeles wildfires, then meandered into a multi-minute denunciation of the mainstream media that ended with his thoughts on how to properly construct a news diet in 2026.
“People would ask me, like, ‘What's the best place to go to get caught up on the news?’” Zeldin said. (Yergin, the winner of the 1992 Pulitzer Prize for general nonfiction, had not asked.) “Honestly, my best answer is, if you have the time to be able to read five different sources and to form your own independent judgment, because unfortunately, right now, there’s some of these outlets — you go to one outlet and you’re not getting the full story.”
“So we'll get back to the environment now,” Yergin replied. Laughter filled the ballroom.
It is not only the domestic aspect of Trump’s energy policy that has suffered a setback. It is the foreign policy, too. Trump, Wright, and Burgum have argued to Americans (with varying levels of sophistication) that America’s economic future lies in selling fossil fuels to the world, and that countries with more aggressive decarbonization strategies will eventually turn away from electric technologies and back toward the affordability and reliability of oil and gas. (Even before his time in government, Wright framed America’s fossil fuel exports in humanitarian terms, casting them as a form of “energy freedom” provided to developing states.) Zeldin could not help himself at CERAWeek from mentioning that the Strait of Hormuz’s closure had made Asian countries even more interested in America’s energy exports.
Yet the Iran debacle, too, has undercut this policy of fossil exporterism. It has convinced Asian and European countries that oil and liquified natural gas are too volatile to enthrone in the transport and power sector when alternatives are available. And it has forced them to abruptly rethink several kinds of fossil-exposed risks at once: the geographic risk of Persian Gulf-supplied energy and the political risk of American-supplied energy. That’s roughly a quarter of global oil capacity — and half of LNG export capacity.
The Iran War and the resulting Hormuz closure are testing the compact at the heart of America’s security relationship with East Asia — that the United States will guarantee freedom of navigation, and with it a secure supply of seaborne energy, to its allies and partners. No wonder that in the days and weeks since that pact’s termination, we have seen more East Asian countries immediately shift their energy policies to more closely resemble China’s, which designed its own energy system precisely to survive the lack of these American guarantees. In the months to come, we will see these countries do exactly what Trump officials said they would not do — build more solar and batteries, and buy more Chinese-made electric vehicles. They will probably burn more coal, too. And many of them will deepen their trade relationships with China, whose homegrown electric automakers are already seeing surging demand for new vehicles. Donald Trump may hate decarbonization, but few have done more than him to make it attractive.
Not that the war has shown that an energy transition is inevitable — or immediately possible. Like the Ukraine invasion, it has revealed the world’s reliance on other essential molecules derived from hydrocarbons, such as plastics, medications, and fertilizer. The existence and persistence of these molecules is, of course, known to would-be decarbonizers and economic planners. But most countries — other than China — have not invested in ways to pursue them at home or with lower emissions. (The United States made a number of plays to diversify its feedstocks for those industries during the Biden administration, but Trump largely gutted those efforts.) China, meanwhile, has invested in both low-emissions industrial processes and, more ominously, a new fleet of coal-to-chemical facilities seemingly designed to bolster the country’s energy security. These facilities, which have boosted China’s heat-trapping pollution in recent years, now seem less like a preparation for future military adventurism and more like a prudent investment.
So even as the crisis has undercut Trump’s hazy vision of a cheap, carboniferous, American-led world, it will not exactly redound to the benefit of clean energy. Perhaps Trump’s energy officials can savor that irony as they descend into political irrelevance.
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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?