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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.

Yellow

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Hotspots

Local Permitting Fights Take Over National Politics

And more on this week’s conflicts around project development.

The United States.
Heatmap Illustration/Getty Images

1. Montgomery County, Pennsylvania – We reached a new normal in the data center backlash, and it all seems to have started in King of Prussia.

  • On Tuesday, Pennsylvania Gov. Josh Shapiro announced his state – one once coveted by the AI industry for hyperscale construction – will no longer permit projects without local support. It was a step change from posture taken mere months earlier, when he announced voluntary standards for data center development that I found may have been vetted by representatives of the industry, including Amazon.
  • Tucked in Shapiro’s speech was what I can only imagine was his last straw: developer Brian O’Neill’s efforts to construct data center buildings in the King of Prussia community, close to where he grew up himself. Without calling him out by name, the governor said he was “stoking fear in the community, even though he has no realistic path to getting power at the sites any time soon.”
  • “Here’s something else he has no realistic path to getting: my support,” the governor said.
  • As the climate news outlet DeSmog wrote earlier this month, O’Neill had closely collaborated with members of Shapiro’s administration for more than a year before this speech happened, including on securing energy. But the real estate magnate’s projects kept facing local rejections; people really don’t seem to want what he’s been selling.
  • Now Shapiro is turning on O’Neill, transforming him into what he described as a type of “speculative” developer his government wishes to discourage from building projects in his state.

2. Columbia County, Wisconsin – The gubernatorial race in this state is transforming local fights over wind projects into must-watch popcorn fodder for anyone obsessed with the state of the energy transition, or national politics for that matter.

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Q&A

A CNN Reporter Joins the Fray

A conversation with Ella Nilsen — formerly of CNN, now with Echo Communications — about where we stand in the fight over the energy transition.

The Q&A subject.
Heatmap Illustration

This week’s conversation is with Ella Nilsen, who recently left CNN as a climate reporter and is now a new vice president at energy and cleantech PR firm Echo Communications. Having worked on Capitol Hill alongside Nilsen, I knew her to be an exceptional reporter who asked hard questions of those in power on all sides. So when I found out she was taking her journalism hat off and putting the comms cap on, I wanted to do something you rarely get to do with one of your reporting peers: ask for her own opinion about where we stand in the fight over the energy transition.

Our chat was lightly edited for clarity.

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Q&A

How an ‘Abundance’ Policy Shop Is Approaching Data Centers

Chatting about win-win solutions with the Abundance Institute’s Ryan Norris.

Ryan Norris.
Heatmap Illustration

This week’s conversation is with Ryan Norris, senior fellow for energy policy at the Abundance Institute. The libertarian-leaning institute — whose name cleverly shortens to AI — is a new-ish entity with increasing relevance in energy and tech spaces. As Norris and I discussed, it’s starting to help shape policy on data center development and the generation that’ll power it all, especially in Republican circles. Norris himself previously worked with Americans for Prosperity, a right-wing political organization. I reached out to him and asked if we could chat because I wanted to know more about the institute’s work within the energy space. He wound up saying a lot more than I expected. So let’s dive into it.

The following conversation was lightly edited and abridged for clarity.

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