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Q&A

Permitting on Federal Land Has Long Been a Headache

A conversation with Elizabeth McCarthy of the Breakthrough Institute.

Elizabeth McCarthy.
Heatmap Illustration/The Breakthrough Institute

This week’s conversation is with Elizabeth McCarthy of the Breakthrough Institute. Elizabeth was one of several researchers involved in a comprehensive review of a decade of energy project litigation – between 2013 and 2022 – under the National Environment Policy Act. Notably, the review – which Breakthrough released a few weeks ago – found that a lot of energy projects get tied up in NEPA litigation. While she and her colleagues ultimately found fossil fuels are more vulnerable to this problem than renewables, the entire sector has a common enemy: difficulty of developing on federal lands because of NEPA. So I called her up this week to chat about what this research found.

The following conversation was lightly edited for clarity.

So why are you so fixated on NEPA?

Personally and institutionally, [Breakthrough is] curious about all regulatory policy – land use, environmental regulatory policy – and we see NEPA as the thing that connects them all. If we understand how that’s functioning at a high level, we can start to pull at the strings of other players. So, we wanted to understand the barrier that touches the most projects.

What aspects of zero-carbon energy generation are most affected by NEPA?

Anything with a federal nexus that doesn’t include tax credits. Solar and wind that is on federal land is subject to a NEPA review, and anything that is linear infrastructure – transmission often has to go through multiple NEPA reviews. We don’t see a ton of transmission being litigated over on our end, but we think that is a sign NEPA is such a known obstacle that no one even wants to touch a transmission line that’ll go through 14 years of review, so there’s this unknown graveyard of transmission that wasn’t even planned.

In your report, you noted there was a relatively small number of zero-carbon energy projects in your database of NEPA cases. Is solar and wind just being developed more frequently on private land, so there’s less of these sorts of conflicts?

Precisely. The states that are the most powered by wind or create the most wind energy are Texas and Iowa, and those are bypassing the national federal environmental review process [with private land], in addition to not having their own state requirements, so it’s easier to build projects.

What would you tell a solar or wind developer about your research?

This is confirming a lot of things they may have already instinctually known or believed to be true, which is that NEPA and filling out an environmental impact statement takes a really long time and is likely to be litigated over. If you’re a developer who can’t avoid putting your energy project on federal land, you may just want to avoid moving forward with it – the cost may outweigh whatever revenue you could get from that project because you can’t know how much money you’ll have to pour into it.

Huh. Sounds like everything is working well. I do think your work identifies a clear risk in developing on federal lands, which is baked into the marketplace now given the pause on permits for renewables on federal lands.

Yeah. And if you think about where the best places would be to put these technologies? It is on federal lands. The West is way more federal land than anywhere else in the county. Nevada is a great place to put solar — there’s a lot of sun. But we’re not going to put anything there if we can’t put anything there.

What’s the remedy?

We propose a set of policy suggestions. We think the judicial review process could be sped along or not be as burdensome. Our research most obviously points to shortening the statute of limitations under the Administrative Procedures Act from six years to six months, because a great deal of the projects we reviewed made it in that time, so you’d see more cases in good faith as opposed to someone waiting six years waiting to challenge it.

We also think engaging stakeholders much earlier in the process would help.

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Spotlight

Data Centers Collide with Local Restrictions on Renewables

A review of Heatmap Pro data reveals a troubling new trend in data center development.

A data center and a backyard.
Heatmap Illustration/Getty Images

Data centers are being built in places that restrict renewable energy. There are significant implications for our future energy grid – but it’s unclear if this behavior will lead to tech companies eschewing renewables or finding novel ways to still meet their clean energy commitments.

In the previous edition of The Fight, I began chronicling the data center boom and a nascent backlash to it by talking about Google and what would’ve been its second data center in southern Indianapolis, if the city had not rejected it last Monday. As I learned about Google’s practices in Indiana, I focused on the company’s first project – a $2 billion facility in Fort Wayne, because it is being built in a county where officials have instituted a cumbersome restrictive ordinance on large-scale solar energy. The county commission recently voted to make the ordinance more restrictive, unanimously agreeing to institute a 1,000-foot setback to take effect in early November, pending final approval from the county’s planning commission.

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Hotspots

Feds Preparing Rule Likely Restricting Offshore Wind, Court Filing Says

And more on the week’s most important fights around renewable energy projects.

The United States.
Heatmap Illustration/Getty Images

1. Ocean County, New Jersey – A Trump administration official said in a legal filing that the government is preparing to conduct a rulemaking that could restrict future offshore wind development and codify a view that could tie the hands of future presidential administrations.

  • In a court filing last Friday, Matthew Giacona – Trump’s principal deputy director of the Bureau of Ocean Energy Management – laid out the federal government’s thoughts about re-doing the entire review process that went into approving the Atlantic Shores project. The filing was related to the agency’s effort to stay a lawsuit brought by anti-wind advocates that officials say is unnecessary because, well … Atlantic Shores is already kind of dead.
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  • Per Giacona, not only will BOEM be reviewing past approvals under this new legal opinion, but it will also try and take some sort of action changing its responsibilities under federal regulation for approving projects in the Outer Continental Shelf. Enshrining this sort of legal interpretation into BOEM’s regulations would in theory have lasting implications for the agency even after the Trump 2.0 comes to a close.
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Q&A

What Rural Republicans Say About Renewables

A conversation with Courtney Brady of Evergreen Action.

Courtney Brady.
Heatmap Illustration

This week I chatted with Courtney Brady, Midwest region deputy director for climate advocacy group Evergreen Action. Brady recently helped put together a report on rural support for renewables development, for which Evergreen Action partnered with the Private Property Rights Institute, a right-leaning advocacy group. Together, these two organizations conducted a series of interviews with self-identifying conservatives in Pennsylvania and Michigan focused on how and why GOP-leaning communities may be hesitant, reluctant, or outright hostile to solar or wind power.

What they found, Brady told me, was that politics mattered a lot less than an individual’s information diet. The conversation was incredibly informative, so I felt like it was worth sharing with all of you.

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