Mostly litigants get to read our emails when we work for the Feds; it’s kind of fun that reporter Joshua Siegel got a copy of a transcript of litigatorily inclined ENGOs discussing the permitting bill..and intending to keep the strategy from Senators Whitehouse and Heinrich. It was considered by Hartl of CBD to be a “betrayal”- I’m sympathetic, as FS thinking and documents were regularly leaked to ENGOs in my time. Sauce for the goose and all that.
Joshua says on X:
At the outset of the call, Brett Hartl, government affairs director at the Center for Biological Diversity, stressed he wanted to keep their tactics a secret from Democratic negotiators Sens. Whitehouse and Heinrich, who are both allies of the environmental movement.
I guess it’s a bit of a battle for the title of “Who Counts as The Environmental Movement”. What I think it most interesting about it, and some of the takes I’ve read from law profs, is the idea that some environmental federal impacts to the environment and species are worth it (renewables) and others aren’t. Interesting how people who work with words and not things can arrive at conclusions about trade-offs.
I think there may be three separate ways of looking at it.
1. Don’t build anything (on federal land, for sure and maybe elsewhere- also forest management and grazing are suspect). What CBD lacks in practicality, they make up for in consistency.
II.There’s stuff “we” like and stuff we don’t like. Presidents pulling permits is OK for stuff we don’t like, but really, really bad for stuff we do like. The funny thing to me is that I’m not sure that anyone ever made a list of stuff they like, and stuff they don’t like and why, exactly. It’s interesting when you frame it that way.. there are trade-offs of course, but the pros and cons of various trade-offs and their associated uncertainties seldom enter the discussion of whether correct NEPA procedures have been followed in the courtroom. I’m not sure about the list (who decided) and how many of these groups agree on the details.
III. We know there are trade-offs, but we do need to build for various reasons, and the rules should be clearer and more straightforward, verging on technology-neutral. Communities need to be involved and not overridden. Technologies used to reduce impacts. Alternatives looked at. People knowledgeable about that work involved in hashing it out.. not optimally in a courtroom.
The political argument seems to be that if they wait, they can get a solution that encourages their favored projects, and discourages their disfavored projects. Meanwhile, local environmental groups tend to be against both kinds of new projects. And many ENGOs (not as litigatorily inclined) seem to be sitting this one out, or at least aren’t as vociferously against it.
Eric of Western Environmental Law Center said this at 12:21:19
One thing I’d note and relative to the prior comment about certainty, but then I think we should think about the judicial review provisions in conjunction with those certainty provisions, because essentially what this bill does is it hamstrings our ability to go after projects, and then it hamstrings the ability of any future president. to go after projects. And the problem with this is that this is a narrative framing component that I think we need to be really careful about because proponents of the bill are arguing that this empowers a future progressive administration to unleash clean energy and innovation. Really what it does is it just abdicates the responsibility of the federal government to set a direction for energy policy and then cedes that authority to the market because we won’t be able to challenge projects and a future administration will not be able to challenge anything that is in fact. Permitted during the pendency of the Trump administration, which is going to create an incentive for all these data centers and fossil fuel companies to rush through a process, hoard leases, permits and authorizations, and then basically tell a future administration to go fly a kite. And then, meanwhile, many of the regulatory tools that a new president would have, not just via NEPA, but ESA, Clean Water Act, National Historic Preservation Act. Those authorities for a new administration to tilt the scales in favor of renewables have gone away. And so I think a framing component for this has to be this isn’t about empowering a future administration.
This is about empowering tech, energy and finance. to do what they want, damn whatever a future president in 2029 wants to do to actually transition from fossil fuels to renewables. So there’s a legal component there on the judicial review and certainty provisions, but a really critical narrative component that we need to push back on.
It seems to me that it doesn’t “abdicate the responsibility of the federal government”, it actually permanentizes preferences of different elected officials because things can’t be unpermitted later. I know, some things should be permanentized (e.g. Monuments that they like) and others not. ”
It seems like these groups are negotiating the tension between renewable build out- which they consider to be good, and the fact that their power to get their preferred outcomes tends to reside in “no”. If they loosen the “no’s” other people can use the “no’s” against their preferred projects- apparently renewables and transmission?
Anyway, we can expect to see theses groups’ arguments and quotes in the media; it will be interesting to see how different outlets report the pros and cons of the legislation. I can’t help but think that some of this debate may help pass FOFA, since some of the FOFA’s NEPA/litigation provisions were a hang=up to some groups and their Congressional allies.