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“On a more level playing field, clean energy will prove its superiority.”
Many climate advocates are revolting against Senator Joe Manchin’s permitting deal over its oil and gas industry giveaways. But not all of them. Among the climate wonk set, there’s a growing chorus that supports the bill and says the fossil fuel language is a pill worth swallowing.
The almost-retired West Virginia senator’s bill — which was voted out of committee yesterday with a bipartisan 15-4 vote — would grease the skids for approving new transmission and renewables projects in plenty of ways. It would also strengthen fossil fuel leasing mandates and, in the activists’ view, hinder efforts to wind down permitting for liquified natural gas export terminals.
Little analysis of this specific bill’s climate impacts has been made public, and any modeling would be highly variable. Yet clearly lawmakers have seen at least some research: During the hearing on the permitting bill, Democratic Senator Martin Heinrich claimed the oil and gas provisions would “likely increase emissions on a scale of less than” 160 million tons of CO2, while other parts of the bill would reduce emissions by 2 to 3 billion tons of CO2, he said.
Academics and consultants I spoke with agree with Heinrich’s take: The positive climate impacts of the pieces hastening permits crucial to the energy transition may easily outweigh the carbon dioxide and methane emissions impacts of the fossil fuel language. As I began to unpack the various points of view and the disparity between climate wonks and the many activists opposed to the bill, it became clear to me that the fissures between these two camps speak to a broad challenge facing the energy transition. Bipartisan compromise on climate change through the U.S. government’s system almost by necessity requires capitulation to fossil fuels, which violates the principles of many grassroots activists.
“Truth is, the U.S. is not ready to talk about seriously scaling down oil and gas production,” Noah Gordon, acting co-director for sustainability, climate, and geopolitics at the Carnegie Endowment for World Peace, told me via email. (Gordon said he “supports the bill despite reservations.”)
“The only way to make that conversation possible is to massively boost clean energy and change the balance of political power,” Gordon said. “In 2024, this is feasible only through all-energy-is-welcome bills like Manchin-Barrasso. On a more level playing field, clean energy will prove its superiority.”
Take the language on LNG. Yes, it would alter the course of an effort led by youth climate campaigners under the Biden administration to curtail approvals for pending LNG export terminals, which could have clear downsides for the communities surrounding these projects. But on a global scale, as my colleague Matthew Zeitlin has written, the climate impacts of American LNG really depend on where it’s going and what it’s used for. To make matters slightly more opaque, some environmentalists who claim the climate impacts of LNG exports would be catastrophic are referencing science that has yet to be peer-reviewed and is still disputed, as Zeitlin noted.
Or take the bill’s language on coal. If enacted, the legislation would require the government to adhere to strict deadlines on processing applications to lease coal — but it wouldn’t force the government to decide one way or the other on those applications. According to Jenny Harbine, an attorney for Earthjustice (which is opposed to the permitting bill), this language would not impact the Biden administration’s efforts to wind down coal leasing in the Powder River Basin, the nation’s most active coal mining region.
“This bill doesn’t appear to change that decision,” Harbine told me yesterday. “It appears to leave largely discretion in the hands of the Secretary to not lease.”
All of this is not to say that the climate wonks who support the bill enjoy the fossil fuel language — they’re quite sympathetic to the opposition’s rationale. But they also don’t think it’ll be the end of the world; meanwhile, the current permitting regime is just not cutting it. Sources pointed me to a study from the consultancy Evolved Energy Research, which found that about half the potential emissions reductions from the Inflation Reduction Act are essentially dependent on faster deployment and siting of renewables and interregional transmission.
“In terms of overall leverage on climate, the growth of domestic clean sources enabled by transmission really outweighs everything else,” Rob Gramlich, president of Grid Strategies LLC, told me. “All of it is additional, whereas the fossil supply here is displacing fossil supply elsewhere, so a one-for-one deal … is a net carbon benefit because of that dynamic.”
Princeton professor and energy systems expert Jesse Jenkins (who is also a co-host of Heatmap’s Shift Key podcast) told me the same. Curbing oil and gas leasing on federal land would also not necessarily lower supply, as such drilling may just move to non-federal lands or other countries. Without addressing demand, there’s always the risk that leasing restrictions fail to substantially lower CO2 emissions. Jenkins nodded to a Resources for the Future study that quantified emissions from oil and gas leasing and found even a ban on new oil and gas leasing “would not on its own achieve net-zero emissions from oil and gas on federal lands by 2040,” stating much more action would be necessary — such as carbon sequestration, modifications to existing leases, and other measures.
“We can’t choke off the world’s supply for fossil fuels, but we can beat it with cheaper, better clean energy technologies,” he said.
Ultimately, the Manchin permitting deal — which may or may not become law any time soon — could reduce U.S. greenhouse gas emissions over time, if the studies and charts are to be believed. That would be a great thing for the planet. But that’s not really why so many climate activists are against the bill. These people see the end of the petroleum sector as the paramount goal and refuse to settle for legislation that enshrines future fossil fuel production into law, even if the benefits to renewable energy deployment may be greater.
There are key differences between the kind of deal renewable energy developers and decarbonization-focused academics would enjoy and legislation that activists will accept, Tony Dutzik, associate director and senior policy analyst with the think tank Frontier Group, explained to me. Dutzik told me he works with environmental non-profits who are against the bill. “I’ve known so many people over the years, and the thing they wanted to do is to be on the front end of the clean energy transition, and dedicate their lives to that for very good reasons … But if you are a trade group or developer that is working on clean energy, that piece of the puzzle is your focus.”
Dutzik compared the IRA and the permitting legislation to longstanding environmental statutes like the Clean Air Act, which acted as a boundary on the market to reduce pollution. “Capitalism mobilizes an incredible amount of resources and can move incredibly quickly when it is given the incentives to do so,” he said, “but the thing that it hasn’t done is to set that boundary or that standard.”
It’s clear to me from my conversations with climate activists that there’s a lingering frustration about the American pro-market approach to climate. The IRA, for example, did very little to penalize fossil fuel production or greenhouse gas emissions at all — it took an all-carrot, no-stick approach to industrial policy. Something resembling a carbon tax is nowhere close to happening, unless you count the nascent bid to enact a carbon border adjustment mechanism. And regulatory efforts to clamp down on greenhouse gasses are getting stymied by courts.
“Essentially, what you wind up with — and this will be the core of the disagreement,” Dutzik said, “is you wind up with more of everything. And if you wind up with more of everything, that may get you more clean energy, but it doesn’t necessarily solve the climate problem, and it certainly doesn’t solve the problems that are experienced by people who live near fossil fuel production, transportation and consumption. And it doesn’t necessarily get at the relationship between fossil fuels and the natural world.”
Jenkins noted similar divisions occurred with the IRA, which had its own capitulations to fossil fuel.
“There’s a chunk of the climate campaigning groups [who believes] we win by raising the cost of permitting and transactions, and legal suits, and choking off supplies of fossil fuels. There’s another group of people — the people who helped get the IRA passed — who believe we win by displacing fossil fuels.”
In Jenkins’ view, the old way of curtailing fossil energy by choking off supplies may not really apply to a post-IRA world. Before the IRA, it made more sense to invest in “dirty energy” than clean energy, when now “the opposite is true.” This “tips the calculus of how you view this process from a climate perspective.” And it may be better to compromise and quicken new renewable energy deployment in the hopes it further diminishes interest in fossil fuel leasing.
“This is at the heart of it. I don’t think there’s any way we can create a legal regime that doesn’t apply something like parity across [all] different kinds of energy infrastructure,” Jenkins said. “You’re not going to get that in a bipartisan bill.”
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How the Migratory Bird Treaty Act could become the administration’s ultimate weapon against wind farms.
The Trump administration has quietly opened the door to strictly enforcing a migratory bird protection law in a way that could cast a legal cloud over wind farms across the country.
As I’ve chronicled for Heatmap, the Interior Department over the past month expanded its ongoing investigation of the wind industry’s wildlife impacts to go after turbines for killing imperiled bald and golden eagles, sending voluminous records requests to developers. We’ve discussed here how avian conservation activists and even some former government wildlife staff are reporting spikes in golden eagle mortality in areas with operating wind projects. Whether these eagle deaths were allowable under the law – the Bald and Golden Eagle Protection Act – is going to wind up being a question for regulators and courts if Interior progresses further against specific facilities. Irrespective of what one thinks about the merits of wind energy, it’s extremely likely that a federal government already hostile to wind power will use the law to apply even more pressure on developers.
What’s received less attention than the eagles is that Trump’s team signaled it could go even further by using the Migratory Bird Treaty Act, a separate statute intended to support bird species flying south through the U.S. from Canada during typical seasonal migration periods. At the bottom of an Interior press release published in late July, the department admitted it was beginning a “careful review of avian mortality rates associated with the development of wind energy projects located in migratory flight paths,” and would determine whether migratory birds dying because of wind farms qualified as “‘incidental’ takings” – harm or death – under the Migratory Bird Treaty Act.
While not stated explicitly, what this means is that the department appears to be considering whether to redefine these deaths as intentional under the Migratory Bird Treaty Act, according to Ben Cowan, a lawyer with the law firm Troutman Pepper Locke.
I reached out to Cowan after the eagle investigation began because his law firm posted a bulletin warning that developers “holding active eagle permits” might want to prepare for “subpoenas that may be forthcoming.” During our chat earlier this month, he told me that the eagle probe is likely going to strain financing for projects even on private lands that wouldn’t require any other forms of federal sign-off: “Folks don’t want to operate if they feel there’s a significant risk they might take an eagle without authorization.”
Cowan then voiced increasing concern about the migratory bird effort, however, because the law on this matter could be a quite powerful – if legally questionable – weapon against wind development.
Unlike the Endangered Species Act or the eagle protection law, there is currently no program on the books for a wind project developer to even obtain a permit for incidental impacts to a migratory bird. Part of the reason for the absence of such a program is the usual federal bureaucratic struggle that comes with implementing a complex statute, with the added effect of the ping-pong of federal control; the Biden administration started a process for permitting “incidental” impacts, but it was scrapped in April by the Trump team. Most protection of migratory birds under the law today comes from voluntary measures conducted by private companies and nonprofits in consultation with the federal government.
Hypothetically, hurting a migratory bird should be legally permissible to the federal government. That’s because the administration loosened implementation of the law earlier this year with an Interior Department legal opinion that stated the agency would only go after harm that was “intentional” – a term of art under the statute.
This is precisely why Cowan is fretting about migratory birds, however. Asked why the wind industry hasn’t publicly voiced more anxiety about this potential move, he said industry insiders genuinely hope this is “bluster” because such a selective use of this law “would be so beyond the pale.”
“It’s basically saying the purpose of a wind farm is to kill migratory birds, which is very clearly not the case – it’s to generate renewable electricity,” Cowan told me, adding that any effort by the Interior Department would inevitably result in lawsuits. “I mean, look at what this interpretation would mean: To classify it as intentional take would say the purpose of operating a wind farm would be to kill a bird. It’s obviously not. But this seems to be a way this administration is contemplating using the MBTA to block the operation of wind farms.”
It’s worth acknowledging just how bonkers this notion is on first blush. Is the federal government actually going to decide that any operating wind farm could be illegal? That would put entire states’ power supplies – including GOP-heavy states like Iowa – in total jeopardy. Not to mention it would be harmful overall to take operating capacity offline in any fashion at a moment when energy demand is spiking because of data centers and artificial intelligence. Even I, someone who has broken quite a few eye-popping stories about Trump’s war on renewables, struggle to process the idea of the government truly going there on the MBTA.
And yet, a door to this activity is now open, like a cleaver hanging over the industry’s head.
I asked the Interior Department to clarify its timeline for the MBTA review. It declined to comment on the matter. I would note that in mid-August, the Trump administration began maintenance on a federal dashboard for tracking regulations such as these and hasn’t updated it since. So we’ll have to wait for nothing less than their word to know what direction this is going in.
And more on the week’s most important conflicts around renewable energy projects.
1. Santa Fe County, New Mexico – County commissioners approved the controversial AES Rancho Viejo solar project after months of local debate, which was rendered more intense by battery fire concerns.
2. Nantucket, Massachusetts – The latest episode of the Vineyard Wind debacle has dropped, and it appears the offshore wind project’s team is now playing ball with the vacation town.
3. Klickitat County, Washington – Washington Gov. Bob Ferguson is pausing permitting on Cypress Creek Renewables’ Carriger solar project despite a recommendation from his own permitting council, citing concerns from tribes that have dogged other renewables projects in the state.
4. Tippecanoe County, Indiana – The county rejected what is believed to have been its first utility-scale solar project, flying in the face of its zoning staff.
5. Morrow County, Oregon – This county is opting into a new state program that purports to allow counties more input in how they review utility-scale solar projects.
6. Ocean County, New Jersey – The Jersey shoreline might not get a wind farm any time soon, but now that angst is spreading to battery storage.
7. Fairfield County, Ohio – Hey, at least another solar farm is getting permitted in Ohio.
Talking NEPA implementation and permitting reform with Pamela Goodwin, an environmental lawyer at Saul Ewing LLP.
This week’s conversation is with Pamela Goodwin, an environmental lawyer with Saul Ewing LLP. I reached out to her to chat about permitting because, well, when is that not on all of our minds these days. I was curious, though, whether Trump’s reforms to National Environmental Policy Act regulations and recent court rulings on the law’s implementation would help renewables in any way, given how much attention has been paid to “permitting reform” over the years. To my surprise, there are some silver linings here – though you’ll have to squint to see them.
The following chat was lightly edited for clarity.
So walk me through how you see the Trump administration handling renewable energy projects right now under NEPA.
In general, the federal government has been much more reluctant to the timely issue of permits in contrast to what we might be seeing on the more traditional side of things.
But that’s separate from NEPA — it relates to public notice and comments and the opportunity for third parties to get involved, ensuring any decision-making on the government side is done in a way that’s evocative of a fair system. On the NEPA side, I don’t know if they’re going to treat renewables any differently than they’re going to treat other sorts of projects. That’s different, from a policy perspective, [from] how they’re handling the permits.
If, from a policy perspective, the federal government is less inclined to make a determination about a particular project — or if it decides that it doesn’t like wind, for example, and isn’t going to issue a permit — that’s different than the procedural elements associated with a NEPA review.
The Supreme Court recently ruled in the Seven County case that agencies can be granted a lot of deference in their reviews under NEPA, seeing it more as a procedural statute than a substantive roadblock. What will this lead to?
I think that what we’re seeing – and every agency’s different – but what the court said is that lower courts should defer to the agency to establish their own protocols under NEPA. They’ve begun to streamline the process by which they issue permits, issue notices of those permits, and give people the opportunity to comment on them.
What we’re anticipating will happen if the court gets its wishes – and candidly, I think this is a good thing for developers, on both the renewables and non-renewables side – is that we’ll see more expeditious permitting from the federal government.
You may not like the determinations. There’s a possibility that certain permits are denied if the nature of the permit is in conflict with the federal government’s policy and intention. But you’ll get a quicker decision than you used to get. And if there’s a will to issue a permit, you’ll get it faster.
We’ve heard the concept of permitting reform or NEPA reform as a leveling of the playing field, but in this environment, it is not entirely clear that’ll be the case. Where does the battleground turn then for those who get, as you put it, rejections faster?
That’s a great question. Regrettably, the immediate battleground is the courts. There is certainly a right and an opportunity for anybody who feels a determination was incorrect to challenge that, and to challenge the particular agency’s implementation of NEPA.
Okay, but what’s the remedy here if renewables companies are just getting rejections faster from the Trump team?
Without a real-world example, it’s hard to give you legal theories, but they will always exist. It’ll be circumstantial, and good lawyers always come up with good arguments. I don’t think this issue is fully resolved, either. The Supreme Court has done a favor to everybody by at least defining the issue, but now we’ll have to see what happens as agencies make these kinds of determinations.