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A conversation with anti-tech extremism researcher Mauro Lubrano on Sam Altman, Tesla protests, and 5G.

A spate of headline-grabbing attacks motivated by anxiety over artificial intelligence have rattled nerves across the U.S.
On Friday, I wrote a story about whether developers should be worried about violence after a shooting in Indiana targeted a city councilman who had voted in favor of a local data center. Almost at the same time the story published, news broke that an attacker had attempted to firebomb OpenAI CEO Sam Altman’s house. On Monday, the Justice Department filed charges against a 20-year-old from Texas for allegedly throwing a Molotov cocktail at the AI executive’s house. The Houston Chronicle reported that the individual charged had a Substack where they posted several anti-AI screeds; while I have reviewed the blog and can verify it exists, I cannot confirm the author’s connection to the individual charged.
As if that wasn’t enough, just days after the alleged firebombing, two people shot at Altman’s house.
To attempt to make sense of such chaotic brutality, I spoke with Mauro Lubrano, a lecturer at the University of Bath in the United Kingdom and author of the new book Stop the Machines: The Rise of Anti-Tech Extremism. Lubrano has for much of his career studied the rise of a global decentralized movement against tech infrastructure, including energy and transportation systems. Last year, for example, he published a detailed examination of the spate of attacks against Tesla vehicles, dealerships, and factories, calling them “insurrectionary anarchism” rooted in “anti-tech extremism” that “spans multiple ideologies — from eco-extremism to eco-fascism.”
Lubrano and I discussed how a prevailing pessimism about the future, AI acceleration, and climate anxiety is making people more likely to launch physical attacks on devices representing a perceived techno-apocalypse. Lubrano said we should expect more people to attack things linked to electricity itself, and that the solution to the violence is not eco-modernism or optimistic thinking, but rather society finally working through the hard questions raised by AI, climate change, economic inequality, and the other ills vexing so many today.
The following conversation was lightly edited and condensed for clarity.
We’ve seen these movements against tech infrastructure — attacks, threats — for a while. The concept goes back a long time. For a lot of folks in the U.S., there’s analogues here ranging from the assassination of the UnitedHealthcare CEO to ecoterrorism attacks on pipelines and other forms of energy infrastructure. How would you characterize the forces driving these recent attacks on executives and politicians supporting AI data centers?
When we look at anti-technology violence, we tend to see two main patterns of violence: attacks on tech executives, personalities, and so on; and attacks on critical infrastructure. This is related to a worldview that technology is not a collection of individual devices, but part of an interconnected system. Some anti-tech extremists will refer to the “mega-machine,” one that has three main manifestations. There’s an ideological one — the general idea that progress is inherently good. There’s the material manifestation, which is the technologies we interact with every day. And there’s the human component. People become cogs. So by targeting cogs in the machine, you contribute to the collapse of the machine itself.
There’s a propaganda element to all of this, too, targeting individuals who for one reason or another are prominent so it sends shockwaves to the tech community, to make some people change minds or join them in their anti-tech fight, or to just deter people from pursuing research on technology.
Then there’s also critical infrastructure. It comes back to this vision of the mega-machine, where instead of targeting individual technologies you target those critical for the machine to function. They want to strike those first because they will create a domino effect, where they affect all the technologies and the collapse of the system. You will find the attacks tend to cluster around specific targets.
How do you define technology here? Do you mean any kind of tech application? I’m hearing what you’re saying and thinking this may apply to more than AI.
Oh, of course. It’s not just AI. When these people think of technology they are not just thinking of devices but know-how, the ideology of progress, of social forces shaping society and how it works and how labor is organized. Technology is a complex entity, in a way.
In the early 2010s, for example, you saw attacks on facilities after the Fukushima Daiichi disaster. More recently, you had attacks on companies making semiconductors and microchips, so if you take out microchips you cripple the system. And data centers have been discussed for quite some time — I wouldn’t be surprised if we see something happen there, as well. It’s about identifying technologies that all other tech depends on.
There’s an argument some of them make that there’s only one technology all the other depend on, which is electricity. That’s why we’ve seen attacks on power plants, on different targets related to power.
Are you speaking about organized groups? Discussions and forums? I’m sure you’re referencing people you know of, but help us get a better understanding.
When we look at the violent side of the coin we need to acknowledge first that these networks, these movements, reflect trends we’ve seen in political violence over the last few decades, trends that show us we’re in a post-organizational era of political violence. We have names, we have acronyms, but these names are not as important as they used to be. These are decentralized networks, often leaderless, that operate without solid hierarchies or chains of control. We’re not talking about organizations like Al-Qaeda or the Irish Republican Army. We’re talking about networks in which militants often do not know each other because they interact online.
Some of the networks that have been involved in these kinds of attacks are the Informal Anarchist Federation. It formed in 2003 in Italy and became a global entity around 2011. There’s the Conspiracy of Fire Nuclei, which emerged in Greece and then became international. And then there’s a series of ad hoc groups that have emerged over the decades, sometimes who are only known because they’ll release a communique after an attack. Like there’s Vulkan Group, which has carried out a series of attacks on Tesla factories in Germany. Or Individualists Tending to the Wild.
An affiliation to a network is not motivated by gaining material or support or leadership. It’s almost an identity factor because again, when these individuals carry out attacks on their own, they don’t rely on existing networks for support. They might also only be around for one or two attacks because it’s not the group that matters — it’s the network.
Is it just the rise of modern technology driving this violence? Are there other factors at play inciting events, creating this current wave of attacks?
One of the remarkable qualities of anti-tech extremism is that it’s quite flexible. The way this decentralized system works, especially on the anarchist or eco-extremist side, is one side will carry out an attack in a communique they publish online and then make a call for similar attacks on similar targets. Whether or not attacks occur is up to others in the network. If a campaign is considered not really appealing, this might not take place. If instead it’s deemed appealing, you’ll see more attacks.
Last year there was a campaign a French group started called Welcome Spring, Burn a Tesla, which resulted across Europe in a lot of Tesla dealerships being torched. There was some confusion because there was also a campaign against Elon Musk and Tesla, but that wasn’t carried out by people motivated by anti-tech violence, but instead Musk’s role in the U.S. government.
There can also be things people say that incite. In this case, there was an interview recently where Sam Altman basically said if AI is going to steal all the jobs, then maybe those jobs weren’t “real” in the first place. That type of statement is likely to make a few people annoyed. It’s hard to consider what type of development might constitute a catalyst for violence.
I’m struck by the way you’re describing this movement and the rhetoric and signals. I think about Alex Jones and, for example, the idea that 5G is going to brainwash people on behalf of globalists. Do you see anything in global politics providing kindling to this fire?
This is an interesting question because conspiracy thinking is widespread amongst these groups, that there’s this obscure force at work determining outcomes. But on the other hand it depends. In certain groups of people, there’s such a rejection to anything conventional that you’d find disagreement between those people and the political figures. In others, you might argue influencers or politicians who spread rumors about COVID vaccines or 5G that this idea resonates. For example, I don’t see anarchists paying attention to what a politician says because they’re a part of the problem to begin with.
What can be done to counterbalance this? Is there an oppositional force against this rising tide of anti-tech violence? I’ve been stunned to see the absence of any widespread outrage online at what’s transpired so far. Almost all the commentary has been “good, I’m glad this is happening.”
I’m not surprised you’re saying this about the commentary. I’ve been researching violence for years now, but this is the first time I’ve seen the narratives of extremists reflecting some objective concerns amongst people. It doesn’t mean all those other people are participating in the violence themselves, but concerns about AI are real. People are afraid and scared of these developments they don’t understand. But what they do understand is that it’ll have impacts on their lives, to the extent they’re able to comprehend it.
I think demonizing these concerns driving the violence would be a very foolish thing to do. It’ll confirm narratives of surveillance and control.
Right. I mean, some of these are valid concerns. Water, electricity, job loss, surveillance. All of that. But if demonizing this isn’t the right call, what can be done?
Short term, don’t securitize these concerns but do something to limit the violent manifestations. Most of the solutions will be long term. That’s not what people want. People want solutions with immediate effect.
You can divide the solutions into two groups. The first one is, stakeholders and those who develop technologies have to be responsibilized. Going back to that Altman interview, these kinds of comments are not doing us a favor in trying to solve the violence — not to mention other stakeholders can be even more incendiary. You can also limit the problem in how the technologies are used. If we see AI is used to monitor people at protests and demonstrations, acquire and execute attacks in warfare, it can only get worse from here. These applications of AI don’t do us a favor.
Then on a philosophical level, we all need to change the way we relate to technology. We need to go from a position where we think, “What does this allow me to do?” We need to instead think, “Within those activities, let’s select those that will further our connections with one another and with nature.”
What about eco-modernism? Techno-optimism? Are those ideologies solutions or antidotes? Or are they inadequate to address the sheer degree of pessimism and anxiety driving this violence?
From what I can see, doomerism and pessimism is now so widespread that I don’t think those ideologies can work. A lot of people in younger generations believe we are doomed. They believe climate change is going to ruin our lives. There’s wars, geopolitical conflicts. We’re stuck with dystopian visions of the future. This isn’t confined to anti-tech stuff, so therefore optimism has very limited effects.
What gives you hope?
That’s funny because I’m working on a project that concludes there’s no hope.
I didn’t think that was going to be a hard question.
There’s a growing acknowledgement that people may be too dependent on technology. Hopefully we’ll manage to be less dependent on technology and more conscious of what it’s doing to us. An awareness that AI has tremendous environmental impacts.
With acknowledgement is where you need to start. That’s the little hope I have.
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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?