EVERYONE SHOULD HAVE A SAY
Bedrock Environmental Laws Are a Tool for Climate Progress
I was born in the Hudson Valley, raised just outside a small town along the river’s tidal shores. In my mind, I still see the glow of fireflies beneath the cottonwoods in summer and hear the crackling of river ice in winter. I moved west in my 20s, settling in New Mexico where I bear witness to dark skies impossibly dense with stars and the magic of aspen groves that gather then release their light with the changing seasons.
Too many of us are disconnected from each other and the world. I am no stranger to that reality. The climate crisis only accentuates the tension that disconnection foments within ourselves, incubating toxic zero-sum politics. Law and policy have thus far failed to meet the challenge the climate crisis presents.
But opportunity now abounds. The Inflation Reduction Act of 2022, passed in a whirlwind this past summer, is the largest climate investment in U.S. history. The law holds great promise to transform for the better (if imperfectly), how we generate energy, use it, and live more securely and gracefully with the world around us despite an increasingly unstable climate that fuels catastrophic wildfires, flooding, aridification, and other destructive, omnipresent events. It is a spark for much work ahead.
To do that work, we must think through our next steps mindfully, with an eye towards creating connections that energize a feedback loop of action, learning, and new policy. From my perch, that demands we align an otherwise mechanistic drive to reduce greenhouse gas emissions–what Professor Jennie C. Stephens persuasively terms “climate isolationism”–with social, political, and economic needs and opportunities. This includes the imperative to deliver on equity and justice with people and communities on the frontlines of our energy transition and climate crisis.
People need and want to belong to something bigger than themselves, and hunger for leadership that fosters community. I certainly do. When we apply an intersectional climate justice lens to shape policy, we cultivate belonging and a shared sense of community and work. That allows each of us to be heard and freely offer our consent for a particular course of action, even when we may not individually get our way. When we marginalize or silence voices, we motivate opposition. That opposition, left to fester, can extend not just to a specific project, but to the broader policy agenda that underpins a project. This risks the perception if not reality that public policy benefits the few, rather than the many, making future policy action more difficult. It is a mistake.
That leads me to address what has vaguely and innocuously been reduced to the buzz phrase “permitting reform.” Ostensibly, permitting reform seeks to accelerate the deployment of clean, renewable energy, in particular through a boost of U.S. transmission capacity. I take the point that reform, especially relative to transmission capacity, is needed. Yet I dispute the merit of the legislative actions cobbled-together by Sen. Manchin and others that target bedrock environmental laws, especially the National Environmental Policy Act. That deal would improve transmission siting but also weaken the environmental review process and approve Sen. Manchin’s pet fossil fuel project, the Mountain Valley Pipeline. Rightly opposed by environmental justice groups and allies, it is an ill-conceived bill masquerading as political pragmatism.
Distressingly, Sen. Manchin’s dirty deal–and the proliferation of center-left arguments either expressly or tacitly supporting it–advances anti-democratic, paternalistic notions of decision-making. It disparages people and communities who participate in planning and decision-making processes as little more than “grouchy people” deemed the obstacles to, rather than the drivers of, progress. It is an industry-driven Trojan horse for future policy action riddled with fossil fuel concessions. Its very consideration erodes trust in the development and implementation of climate policy with the very groups that have helped us get this far and whose voice and power is needed to make further progress.
To move beyond the dirty deal called “permitting reform,” here is what true reform, centered on NEPA, could look like. NEPA, the “Magna Carta” of federal environmental laws, distributes power among federal agencies, project developers, and the public, with the ultimate decision-making responsibility entrusted to the agencies. Environmental reviews, reduced to their essence, are the tool by which this responsibility is exercised, requiring agencies to “look before they leap” by taking a hard look at impacts, considering alternatives, and engaging with the public.
NEPA should be strengthened (not weakened) as a primary element of a positive feedback loop that accelerates and strengthens climate action, builds community, and delivers on equity and justice. How?
First, provide for the fair treatment and meaningful involvement of people and communities. Too often, federal agencies approach public involvement as little more than a box-checking exercise that frustrates developers and the public. A recent MIT study, which resonates with my 25 years of advocacy experience, suggests agencies and project developers can boost trust and confidence if they engage people and communities at the outset of a project, well before decisions are made and projects gather steam. The earlier and more authentically this happens, with true care given to community values and concerns, the more agencies and developers can build public trust and confidence in specific projects and the policies that make them possible. This includes understanding and accounting for distinctive cultural epistemologies, in particular Indigenous Traditional Ecological Knowledge.
Second, prioritize the development of multi-disciplinary, well-trained agency staff to promote trusting, durable, and respect-based relationships with communities that transcend individual projects. This reflects what a foremost NEPA expert has long understood and argued. The IRA provides roughly $1 billion in funding to agencies for this purpose. Agencies should take the long view by using that money to build the long-term agency capacity, cultural competency, and knowledge essential to future public engagement, policy design, and project implementation. Agencies should not just cut checks to third-party contractors to expedite environmental reviews in the near term.
Third, place heightened emphasis on programmatic environmental reviews. A programmatic review can set the stage for multiple or similar projects across a large area. Either way, it can provide a blueprint for what is poised to happen, reconcile competing values, and focus project-level review on the implementation issues that matter most. Used effectively, it can substantially improve and speed project-level decision-making while creating predictability for both the public and project developers.
Fourth, strengthen the purpose of environmental reviews. An environmental review can provide for “air traffic control” of otherwise disparate permitting processes required to comply with other laws, such as the Clean Water Act. Coordinating these processes within a unified environmental review process would clarify how issues are identified and resolved by government agencies and boost the predictability of decision-making. The process should also possess teeth by charging agencies and project developers with an overarching duty to, in sequence of priority, avoid, minimize, or compensate for adverse impacts. Frequently, adverse impacts slip through the existing patchwork of federal and state health and environmental laws and cause harm to people and communities. Such a duty would serve as an important safety net instilling trust and confidence in the purpose and process of completing environmental reviews.
Fifth, create a post-decisional learning loop. Environmental reviews too often become “dead tree doorstops” the moment they’re finalized. Yet they are immense repositories of information we can learn from, especially if they are purposefully designed to not simply estimate, but eventually know a project’s impacts. This approach would allow us to gauge how effective our efforts to avoid, mitigate, or compensate for adverse impacts really are. That’s valuable data. Environmental reviews would thus further an ethic of learning that could not only improve, but accelerate future decision-making and further build trust and confidence.
What’s attractive about these ideas is that they are fully consistent with the spirit and text of NEPA and would help clean energy project developers and the public alike. Legislative intervention (or meddling, depending on your perspective) just isn’t necessary to translate these ideas into reality. In fact, the White House’s Council on Environmental Quality is in the early stages of a rulemaking to modernize NEPA implementation to “meet environmental, climate change, and environmental justice objectives.” President Biden spurred this modernization with his historic executive orders to “ensure full and fair public involvement,” “provide regulatory certainty to stakeholders,” and “promote better decision-making.” In that rulemaking, everyone will have a voice through public review and comment.
Congressional action will be extremely difficult through at least 2024. Federal climate advocacy should thus target executive action to create evidence-based policy to complement the IRA. Now, this doesn’t address the full scope of need and opportunity to improve federal transmission planning (though the Federal Energy Regulatory Commission has two rulemakings underway to address transmission bottlenecks, address cost allocation dynamics, and reform how generators connect to the grid, with a third contemplated). But it does create space for decision-makers to address transmission policy on its own merits and what should be higher-level legislative priorities, such as the Environmental Justice For All Act.
Let’s bring it home by remembering the task ahead: to open new doors, together, to a thriving, climate resilient future that is grounded in clean, renewable energy and delivers on equity and justice. That’s a tall task. But it’s an essential task we can achieve, again together, by honing the tools we have–including NEPA–to help with the work ahead.
And if we do, maybe, just maybe, future generations will sit beneath a starry sky with their friends and family, recounting the good, hard work our generation did in this moment. Good, hard work to forge a shared sense of safety, belonging, and dignity–of connection–on and with this singularly beautiful planet we call home.
Erik Schlenker-Goodrich is executive director of the Western Environmental Law Center and has worked in environmental law for 25 years. He lives in Taos, New Mexico.
