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Twenty-five years ago, computers were on the verge of destroying America’s energy system.
Or, at least, that’s what lots of smart people seemed to think.
In a 1999 Forbes article, a pair of conservative lawyers, Peter Huber and Mark Mills, warned that personal computers and the internet were about to overwhelm the fragile U.S. grid.
Information technology already devoured 8% to 13% of total U.S. power demand, Huber and Mills claimed, and that share would only rise over time. “It’s now reasonable to project,” they wrote, “that half of the electric grid will be powering the digital-Internet economy within the next decade.” (Emphasis mine.)
Over the next 18 months, investment banks including JP Morgan and Credit Suisse repeated the Forbes estimate of internet-driven power demand, advising their customers to pile into utilities and other electricity-adjacent stocks. Although it was unrelated, California’s simultaneous blackout crisis deepened the sense of panic. For a moment, experts were convinced: Data centers and computers would drain the country’s energy resources.
They could not have been more wrong. In fact, Huber and Mills had drastically mismeasured the amount of electricity used by PCs and the internet. Computing ate up perhaps 3% of total U.S. electricity in 1999, not the roughly 10% they had claimed. And instead of staring down a period of explosive growth, the U.S. electric grid was in reality facing a long stagnation. Over the next two decades, America’s electricity demand did not grow rapidly — or even, really, at all. Instead, it flatlined for the first time since World War II. The 2000s and 2010s were the first decades without “load growth,” the utility industry’s jargon for rising power demand, since perhaps the discovery of electricity itself.
Now that lull is ending — and a new wave of tech-driven concerns has overtaken the electricity industry. According to its supporters and critics alike, generative artificial intelligence like ChatGPT is about to devour huge amounts of electricity, enough to threaten the grid itself. “We still don’t appreciate the energy needs of this technology,” Sam Altman, the CEO of OpenAI, has said, arguing that the world needs a clean energy breakthrough to meet AI’s voracious energy needs. (He is investing in nuclear fusion and fission companies to meet this demand.) The Washington Post captured the zeitgeist with a recent story: America, it said, “is running out of power.”
But … is it actually? There is no question that America’s electricity demand is rising once again and that load growth, long in abeyance, has finally returned to the grid: The boom in new factories and the ongoing adoption of electric vehicles will see to that. And you shouldn’t bet against the continued growth of data centers, which have increased in size and number since the 1990s. But there is surprisingly little evidence that AI, specifically, is driving surging electricity demand. And there are big risks — for utility customers and for the planet — by treating AI-driven electricity demand as an emergency.
There is, to be clear, no shortage of predictions that AI will cause electricity demand to rise. According to a recent Reuters report, nine of the country’s 10 largest utilities are now citing the “surge” in power demand from data centers when arguing to regulators that they should build more power. Morgan Stanley projects that power use from data centers “is expected to triple globally this year,” according to the same report. The International Energy Agency more modestly — but still shockingly — suggests that electricity use from data centers, AI, and cryptocurrency could double by 2026.
These concerns have also come from environmentalists. A recent report from the Climate Action Against Disinformation Commission, a left-wing alliance of groups including Friends of the Earth and Greenpeace, warned that AI will require “massive amounts of energy and water” and called for aggressive regulation.
That report focused on the risks of an AI-addled social media public sphere, which progressives fear will be filled with climate-change-denying propaganda by AI-powered bots. But in an interview, Michael Khoo, an author of the report and a researcher at Friends of the Earth, told me that studying AI made him much more frightened about its energy use.
AI is such an power-suck that it “is causing America to run out of energy,” Khoo said. “I think that’s going to be much more disruptive than the disinformation conversation in the mid-term.” He sketched a scenario where Altman and Mark Zuckerberg can outbid ordinary households for electrons as AI proliferates across the economy. “I can see people going without power,” he said, “and there being massive social unrest.”
These predictions aren’t happening in a vacuum. At the same time that investment bankers and environmentalists have fretted over a potential electricity shortage, utilities across the South have proposed a de facto solution: a massive buildout of new natural-gas power plants.
Citing the return of load growth, utilities across the South are trying to go around normal regulatory channels and build a slew of new natural-gas-burning power plants. Across at least six states, utilities have already won — or are trying to win — permission from local governments to fast-track more than 10,000 megawatts of new gas-fired power plants so that they can meet the surge in demand.
These requests have popped up across the region, pushed by vertically integrated monopoly power companies. Georgia Power won a tentative agreement to build 1,400 new megawatts of gas capacity, Canary reported. In the Carolinas, Duke Energy has asked to build 9,000 megawatts of new gas capacity, triple what it previously requested. The Tennessee Valley Authority has plans to add 6,600 megawatts of new capacity to its grid.
This buildout is big enough to endanger the country’s climate targets. Although these utilities are also building new renewable and battery farms, and shutting down coal plants, the planned surge in carbon emissions from natural gas plants would erase the reductions from those changes, according to a Southern Environmental Law Center analysis. Duke Energy has already said that it will not meet its 2030 climate goal in order to conduct the gas expansion.
In the popular press, AI’s voracious energy demand is sometimes said to be a major driver of this planned gas boom. But evidence for that proposition is slim, and the utilities have said only that data center expansion is one of several reasons for the boom. The Southeast’s population is growing, and the region is experiencing a manufacturing renaissance, due in part to the new car, battery, and solar panel factories subsidized by Biden’s climate law. Utilities in the South also face a particular challenge coping with the coldest winter mornings because so many homes and offices use inefficient and power-hungry space heaters.
Indeed, it’s hard to talk about the drivers of load growth with any specificity — and it’s hard to know whether load growth will actually happen in all corners of the South.
Utilities compete against each other to secure big-name customers — much like local governments compete with sweetheart tax deals — so when a utility asks regulators to build more capacity, it doesn’t reveal where potential power demand is coming from. (In other words, it doesn’t reveal who it believes will eventually buy that power.) A company might float plans to build the same data center or factory in multiple states to shop around for the best rates, which means the same underlying gigawatts of demand may be appearing in several different utilities’ resource plans at the same time. In other words, utilities are unlikely to actually see all of the demand they’re now projecting.
Even if we did know exactly how many gigawatts of new demand each utility would see, it’s almost impossible to say how much of it is coming from AI. Utilities don’t say how much of their future projected power demand will come from planned factories versus data centers. Nor do they say what each data center does and whether it trains AI (or mines Bitcoin, which remains a far bigger energy suck).
The risk of focusing on AI, specifically, as a driver of load growth is that because it’s a hot new technology — one with national security implications, no less — it can rhetorically justify expensive emergency action that is actually not necessary at all. Utilities may very well need to build more power capacity in the years to come. But does that need constitute an emergency? Does it justify seeking special permission from their statehouses or regulators to build more gas, instead of going through the regular planning process? Is it worth accelerating approvals for new gas plants? Probably not. The real danger, in other words, is not that we’ll run out of power. It’s that we’ll build too much of the wrong kind.
At the same time, we might have been led astray by overly dire predictions of AI’s energy use. Jonathan Koomey, a researcher who studies how the internet and data centers use energy (and the namesake of Koomey’s Law) told me that many estimates of Nvidia’s most important AI chips assume that their energy use is the same as their advertised “rated” power. In reality, Nvidia chips probably use half of that amount, he said, because chipmakers engineer their chips to withstand more electricity than is necessary for safety reasons.
And this is just the current generation of chips: Nvidia’s next generation of AI-training chips, called “Blackwell,” use 25 times less energy to do the same amount of computation as the previous generation of chips.
Koomey helped defuse the last panic over energy use by showing that the estimates Huber and Mills relied on were wildly incorrect. Estimates now suggest that the internet used less than 1% of total U.S. electricity by the late 1990s, not 13% as they claimed. Those percentages stayed roughly the same through 2008, he later found, even as data centers grew and computers proliferated across the economy. That’s the same year, remember, that Huber and Mills predicted that the internet would consume half of American energy.
These bad predictions were extremely convenient. Mills was a scientific advisor to the Greening Earth Society, a fossil-fuel-industry-funded group that alleged carbon dioxide pollution would actually improve the global environment. He aimed to show that climate and environmental policy would conflict with the continued growth of the internet.
“Many electricity policy proposals are on a collision course with demand forces,” Mills said in a Greening Earth press release at the time. “While many environmentalists want to substantially reduce coal use in making electricity, there is no chance of meeting future economically-driven and Internet-accelerated electric demand without retaining and expanding the coal component.” Hence the headline of the Forbes piece: “The PCs are coming — Dig more coal.”
What makes today’s AI-induced fear frenzy different from 1999 is that the alarmed projections are not just coming from businesses and banks like Morgan Stanley, but from environmentalists like Friends of the Earth. Yet neither their estimates of near-term, AI-driven power shortages — nor the analysis from Morgan Stanley that U.S. data-center use could soon triple within a year — make sense given what we know about data centers, Koomey said. It is not logistically possible to triple data centers’ electricity use in one year. “There just aren’t enough people to build data centers, and it takes longer than a year to build a new data center anyway,” he said. “There aren’t enough generators, there aren’t enough transformers — the backlog for some equipment is 24 months. It’s a supply chain constraint.”
Look around and you might notice that we have many more servers and computers today than we did in 1999 — not to mention smartphones and tablets, which didn’t even exist then — and yet computing doesn’t devour half of American energy. It doesn’t even get close. Today, computers use 1% to 4% of total U.S. power demand, depending on which estimate you trust. That’s about the same share of total U.S. electricity demand that they used in the late 1990s and mid-2000s.
It may well be that AI devours more energy in years to come, but utilities probably do not need to deal with it by building more gas. They could install more batteries, build new power lines, or even pay some customers to reduce their electricity usage during certain peak events, such as cold winter storms.
There are some places where AI-driven energy demand could be a problem — Koomey cited Ireland and Loudon County, Virginia, as two epicenters. But even there, building more natural gas is not the sole way to cope with load growth.
“The problem with this debate is everybody is kind of right,” Daniel Tait, who researches Southern utilities for the Energy and Policy Institute, a consumer watchdog, told me. “Yes, AI will increase load a little bit, but probably not as much as you think. Yes, load is growing, but maybe not as much as you say. Yes, we do need to build stuff, but maybe not the stuff that you want.”
There are real risks if AI’s energy demands get overstated and utilities go on a gas-driven bender. The first is for the planet: Utilities might overbuild gas plants now, run them even though they’re non-economic, and blow through their climate goals.
“Utilities — especially the vertically integrated monopoles in the South — have every incentive to overstate load growth, and they have a pattern of having done that consistently,” Gudrun Thompson, a senior attorney at the Southern Environmental Law Center, told me. In 2017, the Rocky Mountain Institute, an energy think tank, found in 2017 that utilities systematically overestimated their peak demand when compiling forecasts. This makes sense: Utilities would rather build too much capacity than wind up with too little, especially when they can pass along the associated costs to rate-payers.
But the second risk is that utilities could burn through the public’s willingness to pay for grid upgrades. Over the next few years, utilities should make dozens of updates to their systems. They have to build new renewables, new batteries, and new clean 24/7 power, such as nuclear or geothermal. They will have to link their grids to their neighbors’ by building new transmission lines. All of that will be expensive, and it could require the kind of investment that raises electricity rates. But the public and politicians can accept only so many rate hikes before they rebel, and there’s a risk that utilities spend through that fuzzy budget on unnecessary and wasteful projects now, not on the projects that they’ll need in the future.
There is no question that AI will use more electricity in the years to come. But so will EVs, new factories, and other sources of demand. America is on track to use more electricity. If that becomes a crisis, it will be one of our own making.
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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?