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Robinson Meyer:
Hello, it’s Wednesday, September 2. I cannot believe it is already September. Last month, it became clear we’re witnessing a new kind of natural gas build out in the United States. Just think of the announcements we got in a few days in the middle of August. First, around August 11, the market intelligence service Cleanview identified that Amazon was behind a 7.6-gigawatt natural gas plant in Texas called Gigawatt Ranch. So just for comparison, that is huge. That would be the country’s biggest natural gas power plant. In fact, it would be the country’s biggest power plant, period. It’s about half a gigawatt bigger than the Grand Coulee Dam in Washington State, the largest power plant in America for like half a century. Then, just a week later, we learned that OpenAI and Nvidia are working together on a 9.2-gigawatt gas plant in Ohio.
Robinson Meyer:
That plant would obviously dwarf the Grand Coulee Dam. It would be the biggest power plant in America by far. But it would also even rival the Jebel Ali Power and Desalination Facility in Dubai as the world’s largest natural gas power plant of any kind. It would be a truly gargantuan facility. My colleague Emily Pontecorvo recently tried to identify the scale of the ongoing gas buildout. And she found a number of power plants, of projects that I think weren’t on my radar, weren’t generally on people’s radar. It’s been interesting because we’ve been getting a sense of the scale of this buildout at the same time that it’s become clear that the data center buildout is enormously unpopular in itself. If you’ve been reading Heatmap News, you know that according to a Heatmap Pro and Embold research poll conducted also in early August, 75% of Americans are now opposed to a data center being built near where they live, including a majority of Democrats, Republicans, independents, rural voters, urban voters, suburban voters, basically any demographic you can think of. They don’t seem to want a data center near them right now.
Robinson Meyer:
I recently sat down with Emily, a Heatmap founding staff writer, to talk about her reporting on the gas buildout, how she identified the 10 largest gas power projects now under construction or being permitted or being proposed in the United States, and how to think about this messy period. Also, how to think about the fact that it’s tech companies, who often have some of the most ambitious climate policies in America, who are now behind, a natural gas buildout on the scale that could actually increase the country’s, greenhouse gas emissions from the power sector, or at least increase them compared to the baseline. How should we think about these net zero commitments from companies like Amazon, Microsoft, Google, when often it’s those same companies that are now building some of the biggest fossil fuel projects ever proposed in the United States? And what would a good net zero commitment or climate commitment look like from those companies? We get into all of it in this conversation. It was a really generative, really interesting conversation for me. I’m Robinson Meyer, the founding executive editor of Heatmap News, and it’s all coming up on this episode of Shift Key. Emily Pontecorvo is here. Welcome to Shift Key.
Emily Pontecorvo:
Thanks, Rob. Glad to be here.
Robinson Meyer:
So you recently wrote a piece for us about the scale of the natural gas buildout in the United States that’s happening to service data centers and to service AI. And I think it’s quite interesting because we will talk about this, but I don’t know if we understood just how large this buildout was going to be as recently as the beginning of this year.
Emily Pontecorvo:
Yeah, I think that’s right.
Robinson Meyer:
What I think back to is, we did our poll, our annual poll of climate insiders, which are kind of sources and experts and former officials and chief sustainability officers. And we asked them at the end of last year, do you think the AI build out is going to significantly slow down decarbonization? And most people said no. And at the time, I don’t know how I would have answered, but ... I feel like we’re much closer to a place where the AI buildout is slowing down decarbonization now than we were even eight months ago. And so just to start off, can you put the scale of this gas buildout in context for us? So how many plants have been proposed? How many of these plants are going to happen? What do we understand about the scale of this next generation of gas that is being planned across the United States right now?
Emily Pontecorvo:
Yeah, so I will say to start that a lot of this information is very slippery because there’s been so many announcements. The announcements are constantly kind of changing. And so we have some numbers, but they’re definitely estimates. So last week, the Global Energy Monitor, which is this group that tracks oil and gas projects all over the world, they put out a report saying that they counted 189 gigawatts of natural gas plants in the U.S. that have either been announced, that are in a pre-construction phase, like they have some permits, or that are under construction. And that is nearly double the amount that they found at the end of last year, which was about 97 gigawatts.
Robinson Meyer:
And is that entirely behind the meter plants, or are those any kind of natural gas plant being planned across the United States, kind of for any purpose on the grid or off the grid?
Emily Pontecorvo:
So these numbers, 189 gigawatts up from 97 six months ago, those are projects that are specifically being motivated by data centers. So some of them are being built on the grid that utilities are building to kind of meet new demand room data centers. And a lot of them are off-grid projects that are being directly tied to data centers.
Robinson Meyer:
And I guess you’ve kind of alluded to this already, but like, So it’s almost 200 gigawatts of gas plants coming online. Do we know, like, how large is the existing U.S. gas fleet?
Emily Pontecorvo:
Yeah, so I, you know, had to look this up for this story. But as of last year, the existing natural gas generation capacity in the U.S. was 512 gigawatts.
Robinson Meyer:
Wow. It’s like 40% of the gas fleet we’re going to add to our existing fleet. Like, this is not a small change to the size of the gas fleet. This is like a major expansion of U.S. generation capacity.
Emily Pontecorvo:
Yeah. And the thing is, the numbers I gave earlier, those are just projects that have some relationship to the data center build out. The report also gave an estimate of just total natural gas generation that’s being planned across the country. And that number is 378 gigawatts. So it’s almost, you know, nearly doubling what we have today. And what was really interesting was I went back and looked at when was a lot of the existing natural gas generation built? Was there a time in the past where we ... Natural gas plants this quickly. And there’s like a pretty clear kind of analogous time period in the early 2000s where we built, what was it, like nearly, it was like more than 150 gigawatts in just four years. I saw different estimates. It was like maybe closer to 200. But that was a very different build out where this time the plants are much, much bigger. And so many of them are being built off-grid.
Robinson Meyer:
It is actually crazy to me the scale of the build-out that is not being built to service AI, first of all, because I would have assumed that basically the number, that upfront number, was basically all the gas because all of it would be going to AI. So the fact that there’s another, what, 150, 140 gigawatts going to just general generation is pretty crazy.
Emily Pontecorvo:
Yeah, I will say it is possible that some of that is duplicative. Like I was talking to Brendan Pierpont from Energy Innovation. He is on their electricity team, and he was pointing out that they’re seeing that in a lot of cases, the developers will go to the utilities first and ask for a certain amount of capacity. And then when they see how long that’s going to take, then they’ll kind of turn to an off-grid project. And so it’s possible that both of those are getting included in this data, but it’s so hard to really pinpoint what the numbers are.
Robinson Meyer:
So how should we think about these 189 gigawatts? Because as you said at the top of this episode, like there’s a haziness to all of this because sometimes the same gigawatt, so to speak, of demand gets requested in multiple different venues, either in different grids or at different locations, or they ask for it on grid and then they try to build it off grid. At the same time, One through line of this AI story since the beginning has been the difficulty of getting any kind of bead on demand and on the scale of demand. And it seems entirely possible to me that these 189 gigawatts are not going to all get built, but that we are going to add 189 gigawatts because maybe there’s another 100 gigawatts of demand that’s waiting to be requested. And, you know, if we build 70% of these requested gigawatts and 30% of those requested gigawatts, we’re still hitting 190 gigawatts, we’re still hitting 200 gigawatts. And so how do you think about the likelihood that this demand becomes like real capacity in the economy?
Emily Pontecorvo:
I think that the demand is real. I don’t know that 189 gigawatts of natural gas fired power plants, and especially the particular list that this report comes up with, I don’t know that those are real. But I think between data centers and a lot of other kinds of demand that we’re putting on the grid, air conditioning, electric vehicles, manufacturing, like absolutely 189 gigawatts is real. I think that the really big question is how real are these natural gas projects and how quickly will they get built? What kinds of equipment, what kinds of technology they’ll use? So
Emily Pontecorvo:
I basically went through this exercise of trying to identify the 10 biggest projects. And my initial list and my final list are not the same because as I was like researching each individual one, everything felt like sand slipping through my fingers. Like I would see one press release and then one, you know, news article with rumors about XYZ. And then the company’s website said one thing and the permit said another thing. And it was really hard to get a good grasp of, here’s a developer with a project that they say can meet five gigawatts of demand someday. And yet, in the near term, they’re actually just going to build 150 megawatts.
Emily Pontecorvo:
And so, like, should we think about that? Right, exactly.
Robinson Meyer:
This is the case for the OpenAI facility. I wrote about this for Heatmap Daily, our daily afternoon newsletter that everyone should hopefully be subscribed to. But there is this big OpenAI Department of Energy data center that is being planned in Ohio. It’s being built on a kind of ex-nuclear site that the DOE owns. And I think one of the interesting things, I mean, there’s a lot of interesting things about this project. But first of all, it’s massive. It’s nearly 10 gigawatts. It would rival the largest natural gas power plants in the world. I think it’s going to be right now.
Robinson Meyer:
Neck and neck. If the whole thing gets built, it would be right around the same size as the Jabal Ali power and desalination gas plant in Dubai. And it’s all going to go to an open AI data center. It’s backstopped by Nvidia. We learned that last month, it’s really going to increase the likelihood that this facility gets built out. But what’s interesting is that the natural gas plant is going to be built on federal land, on Department of Energy land. It’s going to be owned by the DOE and financed by Japan as part of this Trump-Japan trade deal. Now, I think there’s still a lot of questions about how much this gets built. But to your point, what’s difficult about thinking about this plant is that they want to eventually build more than nine gigawatts of power. They plan to initially build 800 megawatts of gas, which is a lot of gas, but not like a Grand Coulee Dam’s worth of gas. That is a very large gas plant, but it is not a unprecedentedly large gas plant. And how do you assess the scale of that demand, right? Do you think of it as an 800 megawatt gas plant that could literally grow 10x over the next few years? Or do you think of it as a nine and a half gigawatt gas plant, and therefore the largest power generation project in American history?
Emily Pontecorvo:
Right. I mean, so there’s like so many projects that are in this data, that are in that 189 gigawatts, like Fermi America, the big project in Texas.
Robinson Meyer:
The Rick Perry associated project, yes.
Emily Pontecorvo:
Yes. And so they’re also aspiring to even bigger than the OpenAI project. I believe their stated total power generation for the site is like 17 gigawatts, 11 gigawatts of natural gas, plus a bunch of nuclear and some other stuff. Just completely pie in the sky numbers. they already have a permit for the 11 gigawatts of natural gas though or actually no i’m sorry they have a permit for the first six and submitted a permit for the next five but
Robinson Meyer:
Big plant that’s still a really big.
Emily Pontecorvo:
Plant it’s a really big plant and yeah there’s all these projects in the list that have these huge numbers but then what’s actually happening is they’re being built in phases and the first phase might just be a couple hundred megawatts or one gigawatt or between one and two is what I’ve mostly seen. And so whether that first phase is successfully built will determine whether the additional phases are built will determine how much of that 189 gigawatts.
Robinson Meyer:
Right. Well, and also like if the AI boom is still going strong in 2028 and 2029 and 2030, then they can keep building gas to service it. Who knows what the economy will be like by then? You and I will work for AI map or something.
Robinson Meyer:
Can we talk a little bit about like, why are companies building gas? Clean energy advocates talk a lot about how wind and solar, especially solar and batteries are the cheapest source of electricity. I would say when you talk to electricity traders, too, like when you talk to people in the market every day, they also talk about how cheap solar is. So why are companies building gas and not solar to service these facilities?
Emily Pontecorvo:
So there’s like, a lot of different reasons that are all kind of coming together. Maybe the biggest one of all are the bottlenecks to connecting to the grid, the transmission bottlenecks. And that’s really pushing a lot of these companies to look for off-grid solutions.
Robinson Meyer:
And specifically just to like play that out, because they cannot site enough acreage of solar on the site where they would put a data center to generate the power they need, which means they need a grid hookup. But if they need to generate their own power on their own acreage, then you need an extremely energy-dense form of generation, and that means you go to gas. Right, right.
Emily Pontecorvo:
And then I think that’s coming together with a bunch of political factors, like the Trump administration has a strong interest in pushing natural gas. They have gotten rid of the tax credits for clean energy. They’ve made renewable energy, wind and solar, really hard to build with all of these permitting freezes and permitting obstacles for renewables. I think another element is just like the extreme speed and kind of urgency that AI companies are expanding at and demanding power at, which I guess kind of circles back to the interconnection issue and just not wanting to wait to be connected to the grid. And then the last one that I think is important is this issue with affordability in data centers where people are really worried about the build out, increasing their energy bills. And a lot of data center developers are pushing this idea that by bringing their own generation, by building these gas power plants on site, not connecting to the grid, they’re kind of putting their project in a box and ensuring that it doesn’t have any impact on regular rate payers.
Robinson Meyer:
It’s interesting to me, the ratepayer protection pledge from Trump pledges that, data centers won’t make electricity rates go up. And the solution to this for a lot of these companies, as you were saying, when they look at the set of constraints that they’re working within that include acreage, cost, regulation, local grid interconnection capacity, speed to power, they solve this set of constraints by going with gas. And I mean, I think there’s a few interesting aspects about it. First of all, it’s not clear to me that it makes data centers any more popular. He recently did polling that made a lot of news that found that 75% of Americans at this point would oppose the data center being built near where they live. I’m not convinced that adding a fossil fuel power plant to a proposed data center project makes it any more popular because it’s taking a quasi-industrial site and turning it into a full-on industrial site. But that being said, one of the promises made by adding gas generation at the data center is that by generating your own electricity, you’re not increasing local demand for electricity and therefore not increasing anyone’s rates. Now...
Robinson Meyer:
There’s a whole separate conversation to have here about whether adding marginal large-scale loads to electricity grids outside of markets like the Mid-Atlantic, which are structured in a particular way where that jacks up everyone’s rates. There’s a whole separate question and discussion to have here about basically, if you add large customers to an electricity grid because of how electricity rates are designed, that may actually bring down everyone’s bills. But I don’t want to have that conversation now. But like, it’s not clear to me that they are actually like, companies build gas to protect everyone’s electricity rates from going up nearby. And whether or not that is a good idea, and whether or not that is true, what gets left out of that conversation is whether they’re protecting everyone else’s gas rates. And the natural gas system is also a fixed system. And unlike the electricity system where you’re moving electrons around, so to speak, and you can re-rate lines, you can up-rate existing transmission lines, like you are moving molecules around with natural gas. And one thing I have wondered is like, if we’re adding gigawatts and gigawatts of gas generation to an existing gas grid.
Robinson Meyer:
Are we about to see natural gas prices go up around the country, especially when you take into effect that LNG demand is also about to double over the next few years? And so there’s like we were already worried about LNG export driving up natural gas rates. Now we’re adding LNG and a nine gigawatt scale natural gas power plant is basically like a medium sized LNG plant’s worth of demand. You’re just exporting carbon dioxide into the sky and producing electricity right so like hyperscalers can protect electricity rates by building local gas generation it’s not clear to me they can protect gas rates.
Emily Pontecorvo:
Yeah I, I mean we’ve talked about this. I, I think it’s a ... I did talk a little bit about this with folks when i was reporting on this gas build out, and I think the natural gas international natural gas market is complicated, and it’s not like there’s like a one-to-one, you know, increased demand here prices go up here…
Robinson Meyer:
It’s also like when you talk about natural gas pricing like what drives natural gas pricing in the united states is like number one weather and then like ... dot dot dot ... like a gap as big as the grand canyon and then number two like, local supply constraints and then number three is like local demand you know like there’s the number one thing driving natural gas rates remains weather but I don’t know whether these.
Emily Pontecorvo:
Things wonder yeah like if any of these mega projects get built to this the scale that they are trying to and like will they be fighting with lng exports for capacity it’s hard to it’s hard to imagine
Robinson Meyer:
Of these 10 projects, like what surprised you most? Or what project kind of wound up on the list that you did not expect to see on the list at the beginning?
Emily Pontecorvo:
So, you know, going back to a few things that we’ve talked about, like, why is this happening? Why are why gas plants? There were two projects on the list that I was surprised to learn about that were, I think, have been sort of overshadowed by the OpenAI project. But there are two additional natural gas mega projects that are coming out of this U.S.-Japan trade deal that are going to be financed by Japan and owned by the U.S.
Robinson Meyer:
I think they’re financed by Japan, owned by SoftBank’s new energy subsidiary.
Emily Pontecorvo:
In this case, SoftBank is not involved. So NextEra is building a big project in Pennsylvania. They haven’t said where yet. And a big project in Texas, neither is like has a data center attached to it. It’s a little bit unclear whether there will be a data center attached to it. The Pennsylvania one might connect to the grid. But nonetheless, these deals have been advertised as being sort of motivated by increased data center demand. And so just going back to what we were talking about before, like, I do think that a significant amount of this buildup is the Trump administration wanting to build gas plants. Like, that’s nearly 20 between these three projects, the OpenAI one and the two NextEra projects. That’s nearly 20 gigawatts of natural gas fired capacity that the Trump administration is behind through this trade deal.
Robinson Meyer:
That’s crazy. Do we know for the 180 gigawatts built-to-service AI, for the hundreds of gigawatts that we think might be coming online for these 20 gigawatts, do we know what ... Kind of power plant they’re going to build. Because as we’ve discussed on previous episodes of Shift Key, there’s several different kinds of gas plants that are being built. The most efficient tend to be these combined cycle plants, which use the exhaust from generating electricity to then generate more electricity. And then that can kind of scale up through a peaker plant all the way to just basically now people are running jet engines to generate electricity. That matters a lot to the emissions profile of these plants because it matters a lot to their energy efficiency in just a very kind of classical sense. Do we have any sense of how efficient this nearly 190 gigawatts could be?
Emily Pontecorvo:
No, we don’t. In the case of these three projects that came out of the U.S.-Japan trade deal, it’s a little bit fuzzy still what technologies they’ll be using. I think in the case of the OpenAI plant, they said that they have the initial generation equipment secured, which maybe that just leads me to think that it’s combined cycle turbines since those are in shorter supply.
Robinson Meyer:
The hardest to get. Or maybe it means that they absolutely don’t have combined cycle turbines. Maybe, maybe.
Emily Pontecorvo:
But in going through this list, what I learned is that like, yeah, a lot of these projects are the ones that are permitted where, you know, you get really specific information about exactly what technology they’re using. A lot of them are using these combustion engines, just putting like dozens of them on site and,
Robinson Meyer:
Let’s ask the question that I think is nearest and dearest to both of our hearts. Like, what does this mean for U.S. emissions? Do we have any ability to estimate what a gas build out of the scale, what does this mean for U.S. emissions?
Emily Pontecorvo:
I tried to answer that question for this story, and I think it’s one that I’m going to continue to look into. It’s really hard to say at this point because so much of it is speculative. We don’t know, you know, is a third of this real? Is half of it real? Will it all eventually be real? What technologies will they end up using? How much of it will be on-grid versus off-grid? Like all of those questions will impact what it means in the long run. I think the best kind of estimate that I found was to look at the Rhodium Group’s taking stock report. They just put out their latest version of this last month. And this report they put out annually, it basically looks at, you know, if we take current policy, energy, technology trends, and we project them out into the future, what happens to emissions. So they found power sector emissions could decline 24 to 48% by 2040.
Emily Pontecorvo:
Compared to today, yeah. So, you know, that maybe it’s hard to tell, like, is that good? Is that bad? That is a significantly worse outcome than what they found two years ago when they did the same exercise and the Inflation Reduction Act was kind of in full swing. At that point, their estimate was power sector emissions would decline by at least 42%, so near the high end of the current estimate, by 2035, so five years earlier. Both of those reports did take into account lots of data center demand growth, but they did not, neither of them took into account the potential for a lot of that demand growth to be met with off-grid natural gas combustion engines. And so, you know, those are much worse from a mission standpoint. And the other thing, when I spoke to Ben King, one of the authors, and he was saying, you know, not only are these less efficient systems, these combustion engines and simple cycle turbines, but putting them off-grid also, they’ll be running around the clock. Whereas like if they were on the grid, you have this amazingly efficient system that’s, they’re being called upon when they’re needed, but they’re not necessarily...
Robinson Meyer:
Right, you have price-based dispatch.
Emily Pontecorvo:
Yeah, yeah.
Robinson Meyer:
What does this mean for corporate net zero goals? And to what extent is the AI high boom kind of turning corporate net zero goals into a dead letter?
Emily Pontecorvo:
So, you know, all of these companies, the biggest AI hyperscalers, Microsoft, Google, Meta, Amazon, those four specifically, they are still the biggest clean energy buyers in the world. Like Amazon has funded, you know, has more clean energy PPAs than any other company in the world. At the same time, Amazon is behind this natural gas power plant in Texas that’s going to be 7.65 gigawatts, depending on what else gets built, could be the biggest natural gas plant in the U.S. So it’s really hard.
Robinson Meyer:
For about a week, we thought it was the biggest natural gas plant in the U.S. And then this OpenAI project got announced.
Emily Pontecorvo:
Right, right. So yeah, it’s very hard to square these two sides of the coin where like these companies, on the one hand, seem to be totally throwing out their net zero goals and just trying to build as quickly as possible with whatever they can get. And on the other hand, they are still publicly stating their commitment to the net zero goal and still publicly signing power purchase agreements with clean energy. I don’t know that we have a good accounting yet of how much gas are they helping get built versus how much renewables. And I don’t know if that exercise is possible, but if you know, reach out to me. But there is something sort of absurd or like it just feels so implausible that these companies could still say we’re committed to go net zero and meanwhile be supporting these natural gas mega projects.
Robinson Meyer:
How many of these companies are still pledging to hit net zero by 2030?
Emily Pontecorvo:
Those four, the big, like Amazon, Microsoft, Meta, Google, the thing is
Robinson Meyer:
They all still have 2030 net zero goals.
Emily Pontecorvo:
They’re either 2030 or 2035. But I mean, on one hand, Google calls it a moonshot. And they have language like that, where they’re like, this is our guiding principle. This is our aspiration. But even that if this is your guiding principle how is it guiding you to support it
Robinson Meyer:
We did get to the moon, do you know what i mean a lot companies the government does this now too like public sector organizations they use moonshot to refer to something they want to do but are not probably going to do but in fact the whole thing about the moonshot was we did in fact get to the moon.
Emily Pontecorvo:
The thing is, like, is it still possible for a company like Microsoft or Google to hit net zero emissions by whatever date they choose on paper? Probably. That will maybe depend on the corporate standards that rise up in the next couple of years that determine what they are allowed to say on paper and how we account for certain things like carbon removal and clean energy purchases, those accounting rules can really change what these companies say they’ve accomplished. Will they have achieved net zero in the true spirit of trying to get the whole world to go net zero? I think that seems a lot less likely.
Robinson Meyer:
Well, this is, I mean, you’ve written about this too, but I guess what all this suggests to me is that corporate net zero goals and arguably even national net zero goals are not even the right thing to be training on because, and I’m not trying to make excuses for the tech companies here, because I completely agree with you that this gas build-out is not at all in line with their climate commitments. However if they were to basically give up on their climate commitments, and pull out their investments in all these other technologies that are crucial for global decarbonization and those technologies never got developed that would be a tragedy, like that would be really bad and to some degree if google, or microsoft with their investments that they’re making to meet their net zero goal, were to seed, a technology that is crucial to overall global decarbonization. To some degree, that is more important than whether Google is able to make a zero appear on its books in 2035 or 2040.
Robinson Meyer:
And I don’t mean to be too glib about this, but I do think we actually accept this logic in the case of other industries. I would argue, I think climate advocates would argue pretty forcefully that like the coal that was an input into the Chinese solar industry ultimately at this point has been overwhelmed by the emissions reductions from the Chinese solar industry, number one. But it was number two, it was like important because now we have the Chinese solar industry, which is able to produce solar panels at this unprecedented scale for global decarbonization. And setting aside the particular kind of security implications of that, it just seems to me that like, It is bad that these companies are doing this, but it would in some ways be worse for them to kind of stop.
Emily Pontecorvo:
I don’t know why one precludes the other.
Robinson Meyer:
I mean, well, just because I think that the charge here is not hypocrisy. I would rather they remain hypocritical, but doing something for net zero. I would like them to stop emitting. But if they are going to emit, I don’t mind that they’re hypocrites, I guess is maybe what I’m saying.
Emily Pontecorvo:
Sure. I mean, I do think that there is a potential problem with using net zero as the kind of defining goal.
Robinson Meyer:
Yes, yes. Right. In fact, the goal is a bad one.
Emily Pontecorvo:
Yeah, I mean, I would love for these companies to come up with a new set of commitments that continue to motivate them to make the kind of transformative investments that they’re making, but that don’t lead people to believe that achieving this balance of inputs and outputs is not only feasible, but is like for one company by itself to do that is important.
Emily Pontecorvo:
And it’s much more important to look at the kind of global picture.
Robinson Meyer:
How do you think about this whole build out in context of climate? I mean, at this point, Heatmap has written extensively about the unpopularity of data centers. It’s clear that some people hate data centers because of their emissions impact, but it doesn’t seem to be driving that trend. Though in some ways that trend is so big, so generalized, and so amorphous in some ways that like everything is kind of driving it. How has your recent reporting made you think about the AI build out broadly?
Emily Pontecorvo:
I mean, I’d come back to the fact that we really don’t know the scale of it yet, because there are so many unknowns. So much of this development is speculative. How much natural gas will actually get built? We don’t know. I think there are some other kind of exciting unknowns, like will we be able to speed up the development of geothermal and some nuclear and some other cleaner sources that could maybe displace some of this gas? And then I also started to think about some other questions, which are like, in a future administration that wanted to do something about climate or a future Congress that had more capacity to do something about emissions, what kind of new constituencies does this build? Like, I wonder if, you know, in the past, companies like Microsoft and Google have been supporters of emissions regulation and clean energy policy. But if they suddenly have all this natural gas on their books, are they going to still support regulating emissions? Like, they might have a vested interest in fighting natural gas power plant controls.
Robinson Meyer:
It’s been so fascinating watching the political backlash to data centers. And I think especially because data centers threaten to be this massive emissions bomb, right? But also because that doesn’t really seem to be what the backlash is about. And I am filled with a little bit of a sense of foreboding watching this because I know the scale of infrastructure change that is going to have to happen to decarbonize. And it is smaller than the data center build out. Now, I think we have a lot more to offer people in some ways than AI does. But I don’t know that, for instance, the faces of that decarbonization infrastructure change will be any more trusted than the faces of this infrastructure build out. And so, you know, Tom Perriello, former congressman, actually was in climate philanthropy for a long time.
Robinson Meyer:
Was a fairly important figure in climate philanthropy, is now running for Congress again. His odds aren’t great, but he’s running in this Republican district near Charlottesville, Virginia. And he just came out with an ad that was against transmission lines. It was against a transmission line. And it was also kind of against data centers because there’s an unpopular transmission line in his district. And listen, he’s a politician, right? He’s going to do what he needs to do to win that election. But like, if Tom Perriello, of all people, is willing to nod along to the threats of transmission lines, which are non-existent and, in fact, essential to the energy transition. I can’t look at the data center backlash and be entirely like, yes, only good can happen, to paraphrase our president.
Emily Pontecorvo:
Yeah. I mean, the one thing that I, when I think about comparing, if we didn’t have this crazy data center build out, and instead what we had was a huge surge of electric vehicles and heat pumps that created this energy crisis that, you know, where we needed to build a lot of power plants. I think the main difference in those two scenarios is the speed of it. Like, less the scale. I think the scale is somewhat equivalent, but it would at least have happened or it can still happen in the it might have been, people wouldn’t have been bombarded with a project in their backyard in every county in the country.
Robinson Meyer:
That’s not happening. And there’s an interesting angle here. We’ve talked about it on previous shows, but we always expected load growth to come back in the 2030s. In fact, we kind of need it to come back in the 2030s if we’re anywhere close to hitting climate goals. And if the economy not only decarbonizes, but modernizes in the way that we would like it to modernize, it will require load growth to go up. But I wonder if climate advocates are a little lucky that the people eating, the initial wave of load growth, the people who are kind of the clarions of load growth, as it were, are not decarbonization industries, but the big tech companies, which already had their own PR issues.
Emily Pontecorvo:
I don’t know. Well, a second ago, you were wondering if this doesn’t bode poorly for...
Robinson Meyer:
I think it ... I don’t know. I don’t know. I managed to feel bad about it either way. We’re going to have to leave it there. Emily Panacorvo, thanks so much for joining us on Shift Key.
Emily Pontecorvo:
Thanks, Rob.
Robinson Meyer:
And that will do it for us today. I hope you enjoy the dwindling days of your summer. Remember to stick around after the show for a conversation between Heatmap Labs and the sponsor of this episode, Verse. It should be really, really interesting. Until then, Shift Key is a production of Heatmap News. Our editors are Jillian Gibbon and Nico Loricello. Multimedia editing and audio production is by Jacob Lambert and by Nick Woodbury. Our music’s by Adam Cromelow. Thanks so much for listening. See you next time.
Mike Munsell:
My name is Mike Munsell, and I’m the Vice President of Partnerships with Heatmap News. In my last conversation with Seyed Madaeni, we talked about Versus’ business model helping data centers and large energy consumers connect to power. In today’s conversation, we chat about Versus’ recent Series B, and we go deep on speed to power. Let’s talk about speed to power. Why is everyone talking about this concept today, and how is Versus helping to accelerate that deployment? Very good question. And I think this is the billion dollar question, if not a trillion dollar question. So as we know, AI is compute, and compute needs power. So the first order of business, if you’re, I’m just going to use an example, if you’re developing 100-megawatt data center, the size of these data centers are measured in units of power. Let’s say for the sake of the argument when we talk about 100 megawatt data center if you apply for interconnection meaning that you want to power your facility so your chips start running and your AI models start training that takes a long time the reason that it takes a long time is utilities need to do planning studies they’re basically answering two questions one is there enough energy at the grid level to serve your consumption and your demand? Second, if there is, is there enough transmission and distribution wires to get the power to your location?
Seyed Madaeni:
Given this enormous amount of growth, the answer usually fails on both fronts. And as days go by and our grid becomes more and more saturated, the wait times are going to be even longer and longer because the world of power and energy doesn’t move at the speed of AI. It takes years to build transmission lines. It takes years to build power facilities. So how do we solve this problem? Is there a magic wand that we can use to accelerate the time for in a connection of these large loads the answer is yes in a nutshell is to bring your own generation to the mix and that is by deploying behind the meter assets behind the meter assets that are capable of
Seyed Madaeni:
Charging up energy giving it back to the grid like energy storage or solar or nimble gas plants. So really the solution is to pair your data center with these large physical assets such that when you are being studied by the local utility, you’re not no longer seen as a 100 megawatt fixed load that consumes electricity around the clock. You have the capability to shape and form your energy profile. But those physical assets, they’re not just going to drive themselves. They need software. Ironically, they need AI to solve the AI compute problem. And that’s where we come in. We control these assets on a second by second basis to, again, make sure the needs of the utilities are met, the needs of the data center is met. And then plus, we can give back to the grid and be grid grid citizens by participating electricity markets and really trying to offer that capacity to suppress electricity prices. That’s the solution that’s really being adopted. And we play a role in kind of controlling those assets on a 10, 15 year basis.
Mike Munsell:
And I saw you recently completed a Series B of which Nvidia and Google Ventures were big backers. Can you talk more about that and why Nvidia and Google are invested in versus success? And is it related to that speed to power equation?
Seyed Madaeni:
We just closed the Series B round. It was led by Bessemer Venture Partners. They’re an amazing group of folks, have more than a century of experience in investing. You’re absolutely right. Nvidia backed us. Also, Google Ventures, which led our Series A round. They also took part in our Series B round. Essentially, the value prop that we have in the investment thesis that these investors try to pursue is, can Verse be the entity to solve the grid problem so we can be good grid citizens and also simultaneously win the AI race? That was the fundamental investment thesis. and we managed to prove that we are the team, we are the platform. And as a result, they did participate. Now we’re working alongside Nvidia to integrate with their DSX platform and kind of be that part of the standard reference design, which we are working towards. Obviously, Google has a big need of data centers. Plus, we’re also serving a lot of hyperscalers and we have a deep backlog in the queue to kind of help contribute to bring these CapEx online.
Seyed Madaeni:
But we also have a very good angle that we can look back and not only we solve the problem, but we also help towards sustainability because believe it or not, solar and storage is the quickest and cheapest solution that you can deploy. We’re at the moment of time that CFOs like clean energy because it’s economic and clean, which gives us momentum to try to solve this problem.
Mike Munsell:
Let’s get into that. What is VERS deploying today? And what does the system look like when you integrate it with a data center?
Seyed Madaeni:
We as a company, we are AI software driven. So we are not really developing the physical projects. That requires financing, that requires a balance sheet, that requires expertise in EPC and construction. That’s why we have partners like Calibrand and And they’re top notch, not from the kind of physical development, but understanding how the systems work, holding the hands of these customers to understand what the value proposition is. Our work is mostly on the software side. Just think about it when you build an amazing car. That car needs a driver. And in this case, these assets need a driver, but it can’t be a human driver because you’re making decisions every millisecond, whether to fire up the battery, curtail the solar. Draw from the grid so we’re you need a autonomous self-driving car and this is like self-driving assets so ironically we’re using ai to train our models to control these assets but that’s the role that we play and in terms of the underlying assets that we’re seeing a lot of lithium-ion batteries systems from tesla influence and etc.
Seyed Madaeni:
A lot of solar and some nimble gas generators that can and be part of the mix and the solution. But we have integrations with a lot of these OEMs, SCADA systems, meters to be able to effectively control.
Mike Munsell:
And you mentioned Calibrand. Can you talk more about your partnership with them and how they’re helping you deploy today?
Seyed Madaeni:
Yeah. So basically, as we announced in our Series B, I would look at them, the OG of energy infrastructure development, and they’ve made significant progress in this field. So they’re deploying assets, they’re financing assets, they’re their owner and operator. And our partnership, our involvement is on the software side because this is not a software and AI problem. You can’t build amazing software like the one that we have and just use it up in the air. You need to deploy it on physical assets. And it takes a whole team to do that from people that understand hardware, understand financing, understanding project development, and people who understand AI models and software platforms, we fit in more of the latter camp.
Mike Munsell:
Can you talk more about your project pipeline right now and maybe how your Series B is helping to deploy technology faster, perhaps?
Seyed Madaeni:
Yeah, so basically our backlog is pretty deep. We are in the business of managing assets at the end of the day. So we have gigawatts on the management. We’ll soon come out with some press releases in terms of showcasing what those numbers are. And then our backlog, it’s on the kind of plain vanilla contract management, utility bill management, a lot of enterprises ranging from retail to hyperscalers to manufacturing, steel companies. But on the dispatch intelligence, which is part of ARIA, we have a deep backlog and commitment from a lot of blue chip hyperscalers that need speed to power tomorrow. So really, our mix of customer base is, I would say, enterprises that spend $100 million and above on electricity, which by frame of reference, some of them spend billions of dollars. So that’s really our target ICP. And so far, the traction has been amazing.
Mike Munsell:
That wraps up today’s conversation with Sayed Medini, CEO of Verse. Stay tuned after the next episode of Shift Key to learn more about Verse’s next five years and what Sayed believes is needed for U.S. energy policy.
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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?