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The California Democrat and current ranking member of the House Natural Resources Committee is suspicious of all the “now or never.”

The most important voice in Congress criticizing the Senate’s bipartisan energy permitting deal is Representative Jared Huffman.
A California Democrat who previously worked in environmental legal advocacy, Huffman has long been among the most impassioned lawmakers on climate issues. Under the first Trump administration, his voice was often the loudest calling for oversight and accountability on energy and climate policy. Under the second Trump administration, he has been a spirited defender of offshore wind.
Should Democrats take control of the U.S. House of Representatives in the coming midterm elections, as expected, then Huffman is first in line to become chair of the lower chamber’s Natural Resources Committee. This makes him one of the few people able to armchair quarterback permitting talks in Congress right now.
The proposed legislation currently on the table, known as the Bipartisan American Affordability and Jobs Act, or BAAJA, would fundamentally reshape how federal project permitting happens. It would constrain National Environmental Policy Act reviews. It would radically alter transmission approvals. It would let companies sue the government for damages if they can show that an agency was unduly discriminating against them based on fuel type. It would limit state and tribal authority to object against projects under the Clean Water Act. And it would make this whole process more transparent by instituting digital reporting requirements.
Huffman thinks it also gives too much benefit to oil and gas interests, and is an unnecessary capitulation to fossil-friendly Republicans who will likely lose power in this November’s midterm elections, anyway. He wants Democratic lawmakers to wait until after election day to consider what they do with the bill.
I reported on Congress for years and often spoke with Huffman in the Capitol hallways; he knew me on a first-name basis. So last week, when a friend pointed me to a tweet of his criticizing the Senate bill by quoting my writing, I took note. His issue concerned the discrimination provision in the bill, which sets a rolling five-year average for approvals as a baseline for what constitutes normal regulatory behavior. Successful lawsuits under this provision would be paid out of the Judgment Fund, a Justice Department account Trump has used for his offshore wind developer buyouts.
This part of the bill, Huffman wrote, “might pay some clean energy developers money from the judgment fund when they are screwed, but nothing to actually approve their projects. This is potentially a replay of the fake settlements that have bought out offshore wind projects,” he added.
I reached out to Huffman’s team and asked to talk about what he meant by that. What followed was a 20-plus-minute back-and-forth about the future of permitting reform in the U.S. and what may happen after a midterm election defined by public anger over a rush to build another type of large-scale infrastructure: data centers.
The following transcript has been lightly edited for clarity.
So let’s start with your tweet. You quoted a portion of our story about BAAJA that I had written about the “permitting certainty” provisions in the bill, and specifically the fact that developers could be awarded damages under the bill for discriminatory treatment. Could you elaborate on your point?
I don’t want to get too deep into the weeds, but this is the big thing being offered as an end to the war on clean energy, which was always the threshold matter before you get to a bipartisan permitting deal.
It is built on this framework, basically, of cutting checks from the judgment fund. And I believe that requires some close scrutiny and consideration because we have seen this gamed already to the tune of $4 billion to buy out offshore wind developers.
Well I know this can get quite technical, but the underlying point you were making was, this may not be as helpful as people think. I guess I was just wondering if you can you walk me through —
It depends what you want.
If you’re a clean energy developer and you’re worried about your shareholders and your balance sheet, this gives you at least some money when you get screwed. And it may come with some strings attached, like you have to turn around and invest it in [liquified natural gas]. That’s been the playbook from the Trump administration.
If you’re a clean energy CEO — some of them, at least — that helps you mitigate risk. That’s probably better than nothing and will be attractive to some people. But if you care about climate policy [and] whether this is a meaningful assurance of permitting certainty to renewables, I think there’s a lot more to question here.
You also said in your tweet that there’s nothing in the bill to get projects approved. Can you speak to that? Because those who negotiated it clearly say otherwise.
Well, there are shot clocks and all sorts of other things that are designed to speed things up. There’s also broad categories of exemptions — categorical exemptions and other things like that, most of which will benefit fossil fuel projects.
I have no doubt there’s going to be permitting acceleration and certainty for fossil fuel projects. You also have this five-year baseline mechanism being codified here that will further cement a high level of fossil fuel projects for many years to come, and will really operate as a ceiling.
Help me understand what you mean by that, because I’m interested in understanding your concern there.
People are going to want to look at this much more closely and think about how it’ll operate in practice, not just some model. Because in practice, Trump is going to keep doing exactly what he’s done for the last two years. He’s going to find ways not to permit renewables, even if some of them go through this new gauntlet of legal theories and challenges and at the end of the day get a check written to them from the judgment fund.
You make this point about models versus reality. I spent last week trying to understand the implications of the bill for the nation’s buildout of AI data centers and associated energy infrastructure. How do you see that data center conversation weighing on your evaluation of the bill?
It’s part of the context, for sure. It’s driving a lot of this — we have to be honest about that. This is about data centers and pipelines and grid improvements necessary to meet all this surging demand that’s mostly coming from data centers.
That’s not to say we don’t need a more functional and robust grid. We do. Whatever you think about AI and data centers, we do need that. I’m not going to hold up a chance to improve our grid just because I have big concerns about data centers. I am concerned about how all this huge demand for energy in the next few years is going to be met. If we are stacking the deck for fossil fuel to meet a lot of this demand, that is deeply non-responsive to the climate crisis.
In terms of “stacking the deck,” passing the bill or not passing the bill — which reality is a cleaner grid and cleaner buildout of these data centers?
I mean, I would love to give you an absolute answer to that, but it depends. It depends how you assume this is going to play out in practice.
Looking at the conversations around the bill and considerations about federal permitting, as well as the politics, I’m struck by this timeline we’ve found ourselves in. Over the next month, voters will be hearing about data centers, which is something they don’t want in their communities, per polling. They also will be hearing about energy prices, which people want to bring down. Faced with those two different signals, I’m wondering how any kind of lame duck conversation about permitting happens after those two signals land in the ballot box.
It’s going to be very interesting for everyone to take stock after this election and think about what it means.
I was immediately attacked by right-wing Twitter and some of the boosters of this deal for simply saying, let’s see how this election goes. To me, that’s common sense! And no one is going to vote on this until after the election, anyway! The hypersensitivity tells you something.
What does it tell you?
There’s this choreographed attempt to preemptively flood the zone and prevent any kind of serious scrutiny about this.
I think it should be a red flag for my colleagues and serious policymakers to have an attempt to shut down serious scrutiny and debate, or pretend there’ll never be another deal and this one can never be improved, and that it’s now or never or nothing. That’s just fishy and not intellectually honest.
I’m not on the Hill as much anymore, which means I don’t see you as often. But in my many years covering Congress, I can’t tell you how many times I’d ask your late colleague from Arizona, former House Natural Resources Chairman Raul Grijalva, about his conversations with former Senate Energy and Natural Resources Chairman Joe Manchin.
I’m not going to sit here and expect you to read the minds of senators any more than I would expect senators to read the minds of House members. But can you, someone known as a climate champion, speak to how things are going with Senators Sheldon Whitehouse and Martin Heinrich, two people also respected in the climate community, when it comes to your reservations about this legislation?
I mean, it pains me to have a different view of some of this than these two friends of mine I respect enormously. But this may be one of those deals where reasonable minds can differ about tactics, details. That’s what this is coming down to.
I am sure negotiating with the hand they had over the past few months that they did pretty good work. Period. But I am sure with a better hand they and the rest of us could probably get a better deal.
A better deal the president will sign?
Yeah, that’s how it works. Let’s just take the logic of that argument you’re posing, which I hope is a devil’s advocate. Let’s say the president said he’ll agree to this and therefore we have to take the deal. By that reasoning, you should just always do what Trump demands. Always. And I find that absurd.
Any time I hear that kind of reductive reasoning … Has no one been watching Trump his entire life? He’s a bluffer. He’s a threatener. And he changes his mind all of the time.
Yeah I mean, to that effect, we asked Energy Secretary Chris Wright on stage at Climate Week if Trump would publicly post that he will sign off on approving more wind projects, and Wright said we shouldn’t count on that.
I’m very suspicious of the whole thing. There’s so much posturing and choreography going down right now.
They’re going to make it look like they won’t release any hostages, and then they will. It’ll be a very partial release of hostages. It’ll be maybe a dozen or so onshore wind projects that already have all their other approvals and [are] just waiting for the Department of Defense national security hold that is specious to be lifted, even though it’s never going to be held up in court. That’ll be shown as this big breakthrough that lets all this move through at lightspeed.
That’s the charade we’re being walked through right now.
To your point, I checked the court filings this morning, and the Justice Department did just tell the federal court hearing the challenge to the Defense Department that they’re now processing about that number of projects.
But if I can ask you, to that point, I’ve known you almost as long as I’ve been a reporter — almost a decade. I also knew your colleague, the late Raul Grijalva, quite well. I don’t remember a single time when Grijalva was chair of the Natural Resources Committee that he ever supported a bipartisan permitting deal. I remember his opposition to the Barrasso-Manchin bill quite vividly, and a lot of other times that was the case —
Well that might be a difference. I was ready to negotiate improvements in Barrasso-Manchin and try to get to something I could support, in part because I was worried what a Republican Congress and a Trump administration would do if we didn’t try in good faith to get to a deal at that time.
I think we missed an opportunity there. But that was largely because the opportunity was shut down by Republicans. I can’t say what Grijalva would’ve done, but I can say what I would’ve done. I would’ve rolled up my sleeves and tried to get a deal.
Well, I just pulled up a quote from you about that bill, in which you said, “We need to find a way to kill the zombie one more time.”
There was also an opportunity to fix the problematic parts of it.
I guess what I’m asking is, what would you say to people who claim there’s no bipartisan deal in the offing like this bill that you would support? Because any deal like that would obviously have to provide some things to industries like fossil fuels that you don’t want to sign off on.
That’s the problem. If the “deal” has to always get worse, then yeah, that’s a zombie deal we’ve seen time and again, where it’s just the wishlist of the fossil fuel industry or nothing. That is the downward race to the bottom we’ve been on when we talk about permitting reform. But if you want grid improvements, if you want some of the other good provisions in this package — look at the fact I cosponsor Sean Casten and Mike Levin’s bill, [the Energy Bills Relief Act,] to do a lot of these things.
Would you rather that bill is the starting point in the new Congress?
Of course I would. That’s a good transmission bill that doesn’t come with all the other baggage. I’m pointing that out to say I’m not just against things but I’m for things, and you can see that from a longstanding record.
My last question — and I want to ask it because people are raising it — if this bill doesn’t get passed, there are going to be at least some people who point fingers after it fails at the people who stopped it. Those people will say those who stopped it don’t want anything. I know you’re pointing at Levin-Casten and —
No, I know your question, Jael, and I have to run here in just a minute.
If we get to that point and you hear all this whining and recrimination, you know what I will say to those people? Shut up and get in the room and let’s work on a deal. [laughs] I mean honestly it’s just so absurd. If you want permitting reform, you’ve got to be willing to work in a more thoughtful way instead of all these absolutes. This or nothing. Now or never.
I mean, you’ll see. What I can tell you is that you’ll see if we get to that scenario.
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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?