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Local governments once fought the adoption of wireless communications technology. Then Congress did something.

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.
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Whether any of them will hold up in court is now the big question.
Environmental lawyers are in for years of déjà vu as the Trump administration relitigates questions that many believed were settled by the Supreme Court nearly 20 years ago.
On Thursday, Trump rescinded the “endangerment finding,” the Environmental Protection Agency’s 2009 determination that greenhouse gas emissions from vehicles threaten Americans’ public health and welfare and should be regulated. In the short term, the move repeals existing vehicle emissions standards and prevents future administrations from replacing them. In the longer term, what matters is whether any of the administration’s justifications hold up in court.
In its final rule, the EPA abandoned its attempt to back the move using a bespoke climate science report published by the Department of Energy last year. The report was created by a working group assembled in secret by the department and made up of five scientists who have a track record of pushing back on mainstream climate science. Not only was the report widely refuted by scientists, but the assembly of the working group itself broke federal law, a judge ruled in late January.
“The science is clear that climate change is creating a risk for the public and public health, and so I think it’s significant that they realized that it creates a legal risk if they were to try to assert otherwise,” Carrie Jenks, the executive director of Harvard’s Environmental and Energy Law Program, told me.
Instead, the EPA came up with three arguments to justify its decision, each of which will no doubt have to be defended in court. The agency claims that each of them can stand alone, but that they also reinforce each other. Whether that proves to be true, of course, has yet to be determined.
Here’s what they are:
Congress never specifically told the EPA to regulate greenhouse gas emissions. If it did, maybe we would have accomplished more on climate change by now.
What happened instead was that in 1999, a coalition of environmental and solar energy groups asked the EPA to regulate emissions from cars, arguing that greenhouse gases should be considered pollutants under the federal Clean Air Act. In 2007, in a case called Massachusetts v. EPA, the Supreme Court agreed with the second part. That led the EPA to consider whether these gases posed enough of a danger to public health to warrant regulation. In 2009, it concluded they did — that’s what’s known as the endangerment finding. After reaching that finding, the EPA went ahead and developed standards to limit emissions from vehicles. It later followed that up with rules for power plants and oil and gas operations.
Now Trump’s EPA is arguing that this three-step progression — categorizing greenhouse gases as pollutants under the Clean Air Act, making a scientific finding that they endanger public health, and setting regulations — was all wrong. Instead, the agency now believes, it’s necessary to consider all three at once.
Using the EPA’s logic, the argument comes out something like this: If we consider that U.S. cars are a small sliver of global emissions, and that limiting those emissions will not materially change the trajectory of global warming or the impacts of climate change on Americans, then we must conclude that Congress did not intend for greenhouse gases to be regulated when it enacted the Clean Air Act.
“They are trying to merge it all together and say, because we can’t do that last thing in a way that we think is reasonable, we can’t do the first thing,” Jenks said.
The agency is not explicitly asking for Massachusetts v. EPA to be overturned, Jenks said. But if its current argument wins in court, that would be the effective outcome, preventing future administrations from issuing greenhouse gas standards unless Congress passed a law explicitly telling it to do so. While it's rare for the Supreme Court to reverse course, none of the five justices who were in the majority on that case remain, and the makeup of the court is now far more conservative than in 2007.
The EPA also asserted that the “major questions doctrine,” a legal principle that says federal agencies cannot set policies of major economic and political significance without explicit direction from Congress, means the EPA cannot “decide the Nation’s policy response to global climate change concerns.”
The Supreme Court has used the major questions doctrine to overturn EPA’s regulations in the past, most notably in West Virginia v. EPA, which ruled that President Obama’s Clean Power Plan failed this constitutional test. But that case was not about EPA’s authority to regulate greenhouse gases, the court solely struck down the particular approach the EPA took to those regulations. Nevertheless, the EPA now argues that any climate regulation at all would be a violation.
The EPA’s final argument is about the “futility” of vehicle emissions standards. It echoes a portion of the first justification, arguing that the point alone is enough of a reason to revoke the endangerment finding absent any other reason.
The endangerment finding had “severed the consideration of endangerment from the consideration of contribution” of emissions, the agency wrote. The Clean Air Act “instructs the EPA to regulate in furtherance of public health and welfare, not to reduce emissions regardless [of] whether such reductions have any material health and welfare impact.”
Funnily enough, to reach this conclusion, the agency had to use climate models developed by past administrations, including the EPA’s Optimization Model for reducing Emissions of GHGs from Automobiles, as well as some developed by outside scientists, such as the Finite amplitude Impulse Response climate emulator model — though it did so begrudgingly.
The agency “recognizes that there is still significant dispute regarding climate science and modeling,” it wrote. “However, the EPA is utilizing the climate modeling provided within this section to help illustrate” that zero-ing out emissions from vehicles “would not materially address the health and welfare dangers attributed to global climate change concerns in the Endangerment Finding.”
I have yet to hear back from outside experts about the EPA’s modeling here, so I can’t say what assumptions the agency made to reach this conclusion or estimate how well it will hold up to scrutiny. We’ll be talking to more legal scholars and scientists in the coming days as they digest the rule and dig into which of these arguments — if any — has a chance to prevail.
The state is poised to join a chorus of states with BYO energy policies.
With the backlash to data center development growing around the country, some states are launching a preemptive strike to shield residents from higher energy costs and environmental impacts.
A bill wending through the Washington State legislature would require data centers to pick up the tab for all of the costs associated with connecting them to the grid. It echoes laws passed in Oregon and Minnesota last year, and others currently under consideration in Florida, Georgia, Illinois, and Delaware.
Several of these bills, including Washington’s, also seek to protect state climate goals by ensuring that new or expanded data centers are powered by newly built, zero-emissions power plants. It’s a strategy that energy wonks have started referring to as BYONCE — bring your own new clean energy. Almost all of the bills also demand more transparency from data center companies about their energy and water use.
This list of state bills is by no means exhaustive. Governors in New York and Pennsylvania have declared their intent to enact similar policies this year. At least six states, including New York and Georgia, are also considering total moratoria on new data centers while regulators study the potential impacts of a computing boom.
“Potential” is a key word here. One of the main risks lawmakers are trying to circumvent is that utilities might pour money into new infrastructure to power data centers that are never built, built somewhere else, or don’t need as much energy as they initially thought.
“There’s a risk that there’s a lot of speculation driving the AI data center boom,” Emily Moore, the senior director of the climate and energy program at the nonprofit Sightline Institute, told me. “If the load growth projections — which really are projections at this point — don’t materialize, ratepayers could be stuck holding the bag for grid investments that utilities have made to serve data centers.”
Washington State, despite being in the top 10 states for data center concentration, has not exactly been a hotbed of opposition to the industry. According to Heatmap Pro data, there are no moratoria or restrictive ordinances on data centers in the state. Rural communities in Eastern Washington have also benefited enormously from hosting data centers from the earlier tech boom, using the tax revenue to fund schools, hospitals, municipal buildings, and recreation centers.
Still, concern has started to bubble up. A ProPublica report in 2024 suggested that data centers were slowing the state’s clean energy progress. It also described a contentious 2023 utility commission meeting in Grant County, which has the highest concentration of data centers in the state, where farmers and tech workers fought over rising energy costs.
But as with elsewhere in the country, it’s the eye-popping growth forecasts that are scaring people the most. Last year, the Northwest Power and Conservation Council, a group that oversees electricity planning in the region, estimated that data centers and chip fabricators could add somewhere between 1,400 megawatts and 4,500 megawatts of demand by 2030. That’s similar to saying that between one and four cities the size of Seattle will hook up to the region’s grid in the next four years.
In the face of such intimidating demand growth, Washington Governor Bob Ferguson convened a Data Center Working Group last year — made up of state officials as well as advisors from electric utilities, environmental groups, labor, and industry — to help the state formulate a game plan. After meeting for six months, the group published a report in December finding that among other things, the data center boom will challenge the state’s efforts to decarbonize its energy systems.
A supplemental opinion provided by the Washington Department of Ecology also noted that multiple data center developers had submitted proposals to use fossil fuels as their main source of power. While the state’s clean energy law requires all electricity to be carbon neutral by 2030, “very few data center developers are proposing to use clean energy to meet their energy needs over the next five years,” the department said.
The report’s top three recommendations — to maintain the integrity of Washington’s climate laws, strengthen ratepayer protections, and incentivize load flexibility and best practices for energy efficiency — are all incorporated into the bill now under discussion in the legislature. The full list was not approved by unanimous vote, however, and many of the dissenting voices are now opposing the data center bill in the legislature or asking for significant revisions.
Dan Diorio, the vice president of state policy for the Data Center Coalition, an industry trade group, warned lawmakers during a hearing on the bill that it would “significantly impact the competitiveness and viability of the Washington market,” putting jobs and tax revenue at risk. He argued that the bill inappropriately singles out data centers, when arguably any new facility with significant energy demand poses the same risks and infrastructure challenges. The onshoring of manufacturing facilities, hydrogen production, and the electrification of vehicles, buildings, and industry will have similar impacts. “It does not create a long-term durable policy to protect ratepayers from current and future sources of load growth,” he said.
Another point of contention is whether a top-down mandate from the state is necessary when utility regulators already have the authority to address the risks of growing energy demand through the ratemaking process.
Indeed, regulators all over the country are already working on it. The Smart Electric Power Alliance, a clean energy research and education nonprofit, has been tracking the special rate structures and rules that U.S. utilities have established for data centers, cryptocurrency mining facilities, and other customers with high-density energy needs, many of which are designed to protect other ratepayers from cost shifts. Its database, which was last updated in November, says that 36 such agreements have been approved by state utility regulators, mostly in the past three years, and that another 29 are proposed or pending.
Diario of the Data Center Coalition cited this trend as evidence that the Washington bill was unnecessary. “The data center industry has been an active party in many of those proceedings,” he told me in an email, and “remains committed to paying its full cost of service for the energy it uses.” (The Data Center Coalition opposed a recent utility decision in Ohio that will require data centers to pay for a minimum of 85% of their monthly energy forecast, even if they end up using less.)
One of the data center industry’s favorite counterarguments against the fear of rising electricity is that new large loads actually exert downward pressure on rates by spreading out fixed costs. Jeff Dennis, who is the executive director of the Electricity Customer Alliance and has worked for both the Department of Energy and the Federal Energy Regulatory Commission, told me this is something he worries about — that these potential benefits could be forfeited if data centers are isolated into their own ratemaking class. But, he said, we’re only in “version 1.5 or 2.0” when it comes to special rate structures for big energy users, known as large load tariffs.
“I think they’re going to continue to evolve as everybody learns more about how to integrate large loads, and as the large load customers themselves evolve in their operations,” he said.
The Washington bill passed the Appropriations Committee on Monday and now heads to the Rules Committee for review. A companion bill is moving through the state senate.
Plus more of the week’s top fights in renewable energy.
1. Kent County, Michigan — Yet another Michigan municipality has banned data centers — for the second time in just a few months.
2. Pima County, Arizona — Opposition groups submitted twice the required number of signatures in a petition to put a rezoning proposal for a $3.6 billion data center project on the ballot in November.
3. Columbus, Ohio — A bill proposed in the Ohio Senate could severely restrict renewables throughout the state.
4. Converse and Niobrara Counties, Wyoming — The Wyoming State Board of Land Commissioners last week rescinded the leases for two wind projects in Wyoming after a district court judge ruled against their approval in December.