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A conversation with Jillian Blanchard of Lawyers for Good Government about the heightened cost of permitting delays
This week I chatted with Jillian Blanchard, vice president of climate change and environmental justice with Lawyers for Good Government, an organization that has been supporting beneficiaries of the Inflation Reduction Act navigate the uncertainties surrounding tax credits and grant programs under the Trump administration. The reason I wanted to chat with Jillian is simple: the IRA is under threat for the first time under a Republican Congress. I wanted to understand how solar and wind projects could be impacted by the House Republican reconciliation bill and putting IRA tax credits in doubt. I learned a lot.
The following conversation was lightly edited for clarity.
Okay, Jillian, what’s the topline here? How would the GOP reconciliation bill impact individual projects’ development?
There are big chunks of the reconciliation bill that will have dramatic impacts on project development, including language that would repeal or phase out bipartisan and popular tax credits in a way that would make it very, very difficult to invest in projects. I can get into the weeds next.
But it’s worth saying first – the group of programs aside from tax credits that [House Republicans] would repeal represents every single part of America. Hundreds of projects that will not go forward if these programs are not going well. And they have several legally obligated grants that EPA has already mucked up in a litany of ways. But what they’re proposing to do is to pull the rug out from under those programs. On top of that they want to pull any unobligated funding out.
I think it’s extremely misrepresentative to say these are not big cuts. They’re significant cuts to clean air and clean water across the board.
Help me get into the weeds about how phasing out the credits will make it harder to invest in a project.
Right now, a bank might want to invest a certain amount of money in a clean energy project because they know on the back end they can get 30% or 40% back on their investment. A return through tax credits. They can bank on that, because tax credits are a guarantee.
Was that an intentional pun? “Bank”?
Yeah, it is. I love a good pun. You opened the floodgates, that was a mistake.
But anyway, the program itself was supposed to be around until at least 2032 and the bank could bank on those tax credits. That’s a big runway, because projects could get delayed and you could lock in the credit as soon as you started construction.
Now they’re doing a phase-out approach where if your project is not placed into service before a certain date, you don’t avoid the phase out. You don’t get any protections if you’re starting your project now or next year. It has to be placed in service before 2028 or else your project may not be eligible. You are constructing it, you are financing it, but then through no fault of your own – a storm or whatever – then suddenly that project is no longer entitled to get 30% or 40% back.
That’s a big risk. And banks don’t like risk.
Opposition on the ground also delays projects the way a storm does. Would this empower those opponents?
Oh, totally. Totally. If anyone wants to fight a project, a bank might be even less likely to invest in it. The NIMBYs for that particular project become a risk.
What would you tell a developer at this moment who is wondering about the uncertainty around the IRA?
I would tell them that now is the time to speak up. If they want to stay in this business and make sure their energy stays as low-cost as it already is, they need to speak up right now, no matter what their political party affiliation is. Make it clear solar isn’t going away, wind isn’t going away, storage isn’t going away. These are markets America needs to be competitive with the rest of the world.
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And more of the week’s most important conflicts around renewable energy.
1. Sussex County, Delaware – The Trump administration has confirmed it will revisit permitting decisions for the MarWin offshore wind project off the coast of Maryland, potentially putting the proposal in jeopardy unless blue states and the courts intervene.
2. Northwest Iowa – Locals fighting a wind project spanning multiple counties in northern Iowa are opposing legislation that purports to make renewable development easier in the state.
3. Pima County, Arizona – Down goes another solar-powered data center, this time in Arizona.
4. San Diego County, California – A battery storage developer has withdrawn plans to build in the southern California city of La Mesa amidst a broadening post-Moss Landing backlash over fire concerns.
5. Logan and McIntosh Counties, North Dakota – These days, it’s worth noting when a wind project even gets approved.
6. Hamilton County, Indiana – This county is now denying an Aypa battery storage facility north of Indianapolis despite growing power concerns in the region.
They don’t have much to lose, Heiko Burow, an attorney at Baker & Mackenzie, tells me.
This week, since this edition of The Fight was so heavy, I tried something a little different: I interviewed one of my readers, Heiko Burow, an attorney with Baker & Mackenzie based in Dallas, Texas. Burow doesn’t work in energy specifically – he’s an intellectual property lawyer – but he’s read many of my scoops over the past few weeks about attacks on renewable energy and had legitimate criticism! Namely, as a lawyer who is passionate about the rule of law, he wanted to send a message to any developers and energy wonks reading me to use the legal system more often as a tool against attacks on their field.
The following conversation has been abridged for clarity. Let’s dive in.
So Heiko, you reached out to me after my latest scoop about how the Trump administration is now trying to create national land use restrictions on wind projects through the Department of Transportation. In your email, you said the Trump administration “cannot invent a setback requirement by executive fiat.” What does this mean?
Something you need to understand from my point of view is, there’s all these things coming out of the White House, the executive. Like the setback requirement: If the law says they have the right to do that, then okay. But the viewpoints of the administration do not replace the law.
There’s no requirement in the law that the Secretary of Transportation can require a setback. He can’t just come in and say here’s a required setback. The government can only do what the law allows a government to do.
For example, a CEO can’t come into a company and say all the contracts are null and void. The president, in the same way, can’t say everything that’s legally binding is no longer legally binding. There are two ways that creates a problem: one is that it is a breach of contract, and the courts will say there’s a different remedy for that. But there’s also a constitutional problem with that.
Why did you reach out to me about this story, in particular?
I’m just concerned about the environment, and our country, and our democracy.
As someone who works with corporations navigating the legal system under Trump, why do you think companies – like renewable developers – aren’t suing left and right in this moment?
I think they’re timid.
It’s not just companies – it’s stakeholders in general. In 2017, there was pushback on Trump. That is missing. Look at the tech industry – and a lot of investments in renewable energy come from the tech area – and how they lined up with Trump on Inauguration Day.
That is fear. I’d say other stakeholders too are now ruled by fear.
As someone who advises companies in other areas of law, what posture do you think renewable energy companies should take?
Band together. Renewable energy companies, you don’t have much to lose. He’s persecuting you.
I know people stay under the radar, like community solar entities that he could have forgotten about. But he didn’t forget about them. So they need to band together and fight.
Everybody’s just lying low and being afraid. But how much more can renewable energy companies lose? Right now they’re still surviving, because the business case for renewable energy works and states are supporting it. But they’re quiet about it on the national level.
If people start believing what Trump says is the force of law, then it’ll just be that way. And I don’t see a coordinated response to that.
Nevada's Greenlink North is hit with a short, but ominous delay.
I can now confirm the Trump administration’s recent attacks on renewables permitting appear to be impacting transmission projects, too.
Over the past two weeks, the Interior Department has laid forth secretarial orders implementing a new regime for renewables permitting on federal lands. This has appeared to essentially kill the odds of utility-scale solar or wind projects on federal land getting approved any time soon. Public timetables for large solar projects across the American West have suddenly slipped back by years-long intervals, and other mega-projects – like Esmeralda 7 – appear now to be trapped in limbo.
Amidst this flurry of secretarial orders, Nevada’s Republican Governor Joe Lombardo has signaled that transmission lines attached to renewable energy are also being trapped in the political thicket, even if the energy they would connect to is on private land. In a letter first reported by E&E News, Lombardo told Interior that his office has heard the recent orders have “not only stopped solar development on federal lands in Nevada, but also on private land where federal approvals such as transmission line rights of way are required.” Lombardo pleaded with Interior to “empower career staff to continue issuing approvals for projects sited on private lands where there is a federal nexus, such as transmission line rights of way.”
John Hensley, the senior vice president for markets and policy analysis for the American Clean Power Association, confirmed to me that, at a minimum, the newly anti-renewable Interior has also been hyper-focused on transmission lines connected to solar and wind. “I do believe that when considering transmission projects that are principally designed to enable wind and solar, those are certainly getting increased scrutiny and being brought into focus,” he told me this week.
As of today, I can report at least one major transmission line in Nevada that would connect to solar appears to be delayed: NV Energy’s Greenlink North, the second part of a sprawling transmission project that could, according to its permitting documents, cross areas with upwards of at least two dozen pending solar project applications, according to its environmental impact statement. The other major arm of the project, known as Greenlink West, was approved by the Biden administration but then met with litigation from environmental groups who are opposed to it over the possibility that it will harm endangered wildlife.
This spring, it looked like Greenlink North – which NV Energy has claimed is not tied to the completion of any individual solar project – would be an example of Trump embracing transmission and a neutral “all of the above” approach to power lines. The Bureau of Land Management released the environmental impact statement for the project and said it would deliver its final ruling on Sept. 12. In a press release, the agency said the line was “designed to increase transmission capacity and reliability across the state in support of American Energy Dominance.”
However, that was before far-right members of Congress asked the administration last month to attack renewable energy in exchange for passing Trump’s One Big Beautiful Bill.
Quietly, as of today, the Bureau of Land Management’s updated public project timetable for Greenlink North now says its record of decision will be released by Sept. 30. An 18-day slippage might seem benign, but agencies, including BLM, often use the end of a month marker as boilerplate when they’re unsure of when they’ll actually finish something. One can easily imagine this date slipping far beyond September, unless something changes.
It is altogether unclear what led BLM to slide the timetable back for Greenlink North to an end-of-month date like this. Yesterday, the agency uploaded appendixes to the permitting documents for the project, indicating things were moving smoothly. The agency did not release a public explanation for the deadline change.
Patrick Donnelly, an organizer with Center for Biological Diversity, told me last week that he’s split on how to feel about the Trump administration’s attacks on solar and related transmission projects in Nevada. On the one hand, in his view, stopping Greenlink North “will be beneficial for the environment.” I have no doubt he’s probably celebrating the delay that I am reporting today.
But Donnelly sees the obvious downsides. “If we’re looking at killing renewable energy, that is extremely harmful and we do not support that. We’ve always said there is a right place to put renewable energy on public lands,” he said. “I don’t want my home destroyed by solar panels. But I also don’t want no solar energy.”
I asked BLM to confirm that transmission projects linked to renewable energy are also subject to the ongoing permitting freeze, as well as for an explanation of the Greenlink North delay. BLM confirmed receipt of my request but was unable to provide comment by press time. We will update our story accordingly if and when we receive a statement from them.