The landmark Inflation Reduction Act invested some $370 billion toward transitioning the United States to a clean energy economy. Yet turning that spending into actual new energy facilities – getting turbines in the air, and solar arrays on the ground – is another matter.
How many facilities materialize, and how quickly, will hinge on countless permitting processes carried out in cities and towns around the country. And at the hyper-local level, renewable energy developers often meet resistance and drawn-out processes.
If left unchecked, NIMBYism could effectively veto much of the IRA, one project at a time. But fortunately, Congress has a ready-made model to defend their investment: a Clinton-era law that helped bring cellphones to more Americans by partially insulating wireless infrastructure from local resistance. We can do the same thing to ensure that the renewable energy transition is not stonewalled on the ground.
Back in the 1990s, NIMBY opposition was hampering the adoption of then-novel wireless communications technology. Local zoning boards frequently enacted moratoria on new wireless towers, and opponents spread unsubstantiated myths about health risks and complained that the towers were eyesores. This often prevented (or at least delayed) the construction of new towers, which slowed the deployment of cellphone technology. For example, in Georgia, a county commissioner said, “By and large, the towers are ugly, and people don’t want them in their backyards. If folks would stay off their cell phones there would be no need for the towers.” Medina, Washington was one of many cities that enacted multiple moratoria on new cell tower citing; a leading opponent of the cell towers there said, “People are willing to not use their cell phones for three blocks on their way to the grocery store, if that means not having the towers here.”
Rather than let NIMBYism hold back progress, Congress took action. The Telecommunications Act of 1996 passed with overwhelming bipartisan support to “encourage the rapid deployment of new telecommunications technology.” The TCA struck a balance on local permitting and siting: it preserved “the traditional authority of state and local governments to regulate the location, construction, and modification” of wireless towers, but crafted limits on that authority. Under the TCA, local governments can no longer impose regulations tantamount to bans on cell towers. They must issue decisions on proposed towers within a reasonable time, and must support those decisions with “substantial evidence” – in writing. And they cannot turn away projects on the basis of debunked health fears. If a town violates these rules, telecom companies can get an expedited hearing in court.
Congress aimed to let local communities continue to have some say over cell tower siting, but added guardrails to ensure that they couldn’t undermine national imperatives. As Republican Congressman Thomas Bliley, chair of the House Committee on Energy and Commerce, put it at the time: “Nothing is in this bill that prevents a locality … from determining where a cellular pole should be located, but we do want to make sure that this technology is available across the country, that we do not allow a community to say we are not going to have any cellular pole in our locality.”
The TCA paved the way for greater adoption of modern telecommunications technology. Before the law, there were roughly 20,000 wireless towers in the United States and 30 million cellphone users. Six years later, there were nearly 130,000 towers and 130 million users. The TCA continues to reap dividends, such as by neutralizing some of the resistance to the 5G rollout. In 2018, the Federal Communications Commission adopted rules under the TCA to limit the power of localities to obstruct new 5G facilities, constraining the power of cities and towns to block the new sites.
Just as the TCA’s siting rules have helped support the expansion of cellphone networks in the United States, a similar policy could support the expansion of renewable energy. Local permitting has increasingly become a bottleneck for our clean-energy transition. As the Idaho Capital Sun recently observed: “Across the country — from suburban Virginia, rural Michigan, southern Tennessee and the sugar cane fields of Louisiana to the coasts of Maine and New Jersey and the deserts of Nevada — new renewable energy development has drawn heated opposition that has birthed, in many cases, bans, moratoriums and other restrictions[,]” with new wind and solar developments “igniting fierce battles over property rights, loss of farmland, climate change, aesthetics, the merits of renewable power and a host of other concerns.”
A report last year from Columbia University's Sabin Center on Climate Change Law identified 121 local policies restricting renewables development across 31 states, and more than 200 renewables projects challenged across the country – and those numbers are undercounts, according to the Center’s Matthew Eisenson. Common local tactics, the report found, “include moratoria on wind or solar energy development; outright bans on wind or solar energy development; regulations that are so restrictive that they can act as de facto bans on wind or solar energy development; and zoning amendments that are designed to block a specific proposed project.” These local restrictions have been fueled in part by misinformation spread on social media promoting unsupported health and safety concerns around wind and solar farms. Sometimes these groups are literally bankrolled by the oil industry trying to curb the transition from fossil fuels.
Congress could step in to limit localities’ power to obstruct clean energy. Patricia Salkin and Ashira Pelman Ostrow, legal scholars at Albany Law School and Hofstra University, proposed a new legal framework modeled off of the TCA that would outlaw bans and indefinite moratoria on new wind farms, require reasonably fast decisions that are issued in writing and backed by substantial evidence, and create a judicial right of action for wind developers to challenge permitting denials. This would speed up the siting process, and force localities to keep their doors open to renewable energy. And it would incentivize more localities to grant wind citing requests by imposing litigation risk on decisions denying projects.
This framework could provide the foundation for a new Renewable Energy Siting Act – one that, unlike some other permitting reform proposals, would streamline the process for approving renewables only, without sacrificing community protections against fossil fuels. It could also be strengthened. For one, it should apply to other forms of clean energy beyond wind, including solar. The timeline for issuing a decision on a project could be specified at a fixed deadline, like 90 days.
The “substantial evidence” standard could also be bolstered to exclude common NIMBY complaints. In a 2015 Supreme Court case involving the TCA, at least one Supreme Court justice – Justice Alito – said that a permitting decision rejecting a cell tower based solely on aesthetics or community compatibility would count as “substantial evidence.” In adapting the TCA model for renewable energy, Congress should require permitting decisions to be supported by evidence that is both substantial and credible. As it did for fears over radiofrequency emissions from cell towers, Congress could explicitly rule out certain disproven or baseless objections around health, safety, and aesthetics.
Congress could also crack down on extreme and prohibitive “setbacks” – the distance that a structure must be from any neighboring properties – that some states and municipalities impose on renewable facilities. In Ohio, wind turbines must be built at least 1,125 feet from the nearest property line. (Meanwhile, the state allows new oil and gas wells just 100 feet from homes.) That has made new wind development in the state a practical impossibility. Congress could let states and localities take reasonable precautions to protect nearby properties (in the unlikely event that a turbine falls over), while setting a maximum setback rule at perhaps 1.5 times the turbine’s height – a setback of around 450 feet for a typical utility-scale tower.
By design, this approach protects national goals while preserving a role for state and local governments. Though given the climate stakes and the federal dollars at risk, some might understandably want to hand more permitting authority to national agencies. But that risks provoking a backlash, and may also lead federal authorities to miss legitimate local concerns. Putting the federal government in charge of permitting and siting decisions could also trigger federal environmental review under the National Environmental Policy Act and other laws, further slowing deployment.
Though without a new law from Congress reining in local permitting, the Biden administration may have little choice but to resort to targeting specific projects to speed them up. Existing authority under the Defense Production Act allows the federal government to override other laws – including permitting laws – to expedite renewable energy development. The administration has also reportedly started leveraging certain grants to reward states and localities that agree to streamline permitting for projects receiving federal funding. Similar conditions could be attached to some Inflation Reduction Act funding too.
With the House under Republican control, the odds of congressional action seem admittedly slim. But red states and conservative districts stand to benefit mightily from IRA spending given the geographic skew of wind and solar energy toward rural areas in the middle of the country. And providing more national uniformity in permitting processes is fundamentally a pro-business, deregulatory act that will provide more certainty to energy developers. Perhaps those dynamics can produce a bipartisan coalition for congressional action like the one that enacted the TCA.
As we build our way out of the climate crisis, local communities deserve a say in how and where we build, but not a veto. With the climate clock ticking, we can ill afford to run out that clock with undue delays and frivolous objections. Congress can strike the right balance here, and help clean energy proliferate just as quickly as cellphones did.
MTA