WE MUST TEND THE GARDEN OF ENVIRONMENTAL LAW
The success of long-term climate action is contingent on our ability to build trust in government. To do that, we must reimagine our relationship with each other and craft a compelling, unifying vision and purpose that inspires us to work together as a people. Put differently, we must bring people into the conversation over our country’s climate future.
Unfortunately, trust in government has been in steady decline for more than half a century.
This trend is not an accident. An array of political and economic interests have, for decades, actively sowed distrust in government. As President Ronald Reagan destructively quipped, “the nine most terrifying words in the English language are: I’m from the Government, and I’m here to help.”
Distrust in government undergirds our country’s deeply confused “all-of-the-above” energy policy, zombified conventional wisdom regarding “free markets,” and right-wing judicial fabrications such as the “major questions doctrine” that is little more a magic wand to eviscerate any agency action that five right-wing justices don’t like. These ideas allow the few to profit from the many. They must be rejected.
It’s on this basis that I take serious issue with the center-left permitting reform proponents who call for weakening or repealing bedrock environmental laws, in particular the National Environmental Policy Act (NEPA). Writing on this topic has turned into echo chamber of ideas that, to me, doesn’t evidence the critical thinking, listening, or learning we need.
Though purporting to spring from a supply-side progressivism ethic (which has much to like), the ideas duplicate a right-wing “distrust the government” frame by demanding that we “clear the thicket” of climate, public health, and environmental laws. The argument goes: “these laws have served their purpose but need to make way for the future.”
It’s a reckless approach.
Rather than “clear the thicket,” we must tend the garden of environmental law. And that means investing in agencies to fulfill NEPA’s promise and thinking like an organizer to bring people into the energy transition conversation.
But it’s helpful to first step back and define the issue in debate: permitting. Permitting is the process by which the government enters into reciprocal agreements with the proponent of a particular action. Generally, the government approves an action if the proponent agrees to specific conditions (and retains the authority to reject an action if, e.g., impacts, even with mitigation, would prove unacceptable).
The government’s legitimacy to oversee this process is, in a democracy, rooted in the public’s consent. That’s why trust is so important: if the public doesn’t trust government action, it won’t trust that specific projects benefit the public interest.
With “permitting” so defined, let’s dig into my critique of center-left “permitting reform.”
First, center-left permitting reform proponents rightly underscore that, to decarbonize, we need a massive amount of clean energy infrastructure. This is not in dispute. We cannot, however, fixate on speed to achieve decarbonization goals. Think “Solyndra.” While the narrative that grew from Solyndra was bogus, it was still weaponized effectively for right-wing, anti-climate political purposes. We must avoid projects and decision-making that feed into right-wing narratives and undermine, rather than build, trust.
When it comes to climate action, long-term momentum prevails against short-term expediency. Momentum, not speed, accelerates the construction of renewable energy infrastructure *at scale* and builds the public’s trust in the capacity of public institutions to deliver on their public interest commitments. “Speed” won’t. Speed increases the risk that projects will either fail or backfire, intensifying opposition to our energy transition.
Second, center-left permitting reform proponents are far too dismissive of the reasons why renewable energy infrastructure projects trigger opposition. Castigating opponents of a particular project as “grouchy people” and blurring the distinction between folks who raise concerns with or even oppose projects and “NIMBYs” is a cheap argument. We need to constructively interrogate the reasons why opposition arises.
To do that, we need to think like organizers: meet people where they are and take their values and concerns seriously. And we should do that as early as possible, before there’s a perception or reality that the design and approval of a project is a done deal.
Make people outsiders to the energy transition, and we lose needed allies for long-haul climate action, from new renewable energy projects to innovative planning and decision-making policies. Make people direct participants in and beneficiaries of the energy transition, and we create a movement built for success.
Third, center-left permitting reform proponents need to cut the attacks (such as the one from Jonathan Chait below) against climate justice and environmental advocates accusing us blocking the buildout of renewable energy infrastructure. They’re bullshit.
This attempt to force advocates to “defend the indefensible,” a pattern across center-left permitting reform punditry, doesn’t foster dialogue. It fosters conflict, painting advocates as obstacles of progress. It’s also (as David Roberts points out) self-serving positioning that reveals much about the hollow and trollish nature of policy thinking in moderate pundit and policy circles.
If you have a conversation with climate justice and environmental advocates, you’d quickly find out that most of us aren’t fans of how government agencies make decisions or, more particularly, implement NEPA. That’s why we’re often in court challenging ill-advised decisions, such as oil and gas drilling permits on sacred lands. That NEPA has been used more often to hold the line against bad projects–rather than to further good projects–is precisely why folks like me who have worked with NEPA for decades advocate for progressive reforms that invest in government and create the conditions needed to nudge agencies to further good projects.
The problem isn’t NEPA. It’s political leaders who have starved government agencies of resources, intense pressure levied by political and economic interests to undercut agency expertise to secure project approvals regardless of the costs, and an agency culture that discourages the creativity and imagination needed to make good things happen.
It’s no wonder people distrust the government given decades of well-trodden, right-wing strategies to capture and weaken the power and capacity of government and foment division amongst the public. From NEPA to the far more typical points of engagement people have with the government, such as registering a car or accessing basic social services, we have been taught to reflexively distrust and disinvest in government rather than trust and invest in government to advance the public interest.
So let’s dig deeper. Where NEPA’s been identified as the problem, I suspect we’ll find a far more complex (and accurate) dynamic involving under-resourced agencies, ill-designed projects, mangled attempts at public involvement, contentious local politics, and a lack of coordination between federal, state, and local government agencies.
In these situations, we should consider, if we tend to it, how NEPA could serve as a resource to address that complexity. As MIT researchers found, “local opposition is often driven by residents whose concerns do not necessarily reflect a disapproval of renewable energy in general.” Insightfully, these researchers also found “that incorporating all stakeholder perspectives from the outset of a siting process will probably save time and money. Better to deal with perceptions of possible risks and potential benefits before opponents have made up their minds, and banded together, to block the project.” [emphasis added]
Fortunately, opportunity abounds. As the White House summarized, “The Inflation Reduction Act provides more than $1 billion to support environmental reviews at key agencies and White House components,” including $350 million for the Federal Permitting Improvement Council and $625 million “to support efficient environmental reviews that are timely, robust, and conducted through a transparent process that includes community engagement.” Further, the Council on Environmental Quality is poised to modernize–not get rid of or weaken–NEPA through imminent rulemaking.
Fourth, center-left permitting reform arguments are quick to identify problems, but they don’t offer effective solutions. I fail to see how approving pet fossil fuel projects and mandating artificial NEPA timelines and page limits (Senator Manchin’s idea, shared with Republicans, of “permitting reform” that now dominates debates in Washington D.C.) will either speed or improve decision-making.
It should be beyond dispute that government agencies should, before they take action, talk to the public to solicit their views, take a hard look at impacts, and consider alternatives that avoid or minimize impacts. At its core, all NEPA demands are reasoned and informed decisions–not multi-year processes, or voluminous environmental reviews no one really understands. In fact, NEPA’s current implementing rules direct agencies to reduce paperwork (40 C.F.R. § 1500.4) and delay (40 C.F.R. § 1500.5). The problem isn’t NEPA, it’s NEPA’s implementation, and reforms must follow from that conclusion.
Fifth, center-left permitting reform arguments miss the forest for the trees by elevating decarbonization of our energy systems over all other forms of climate action. For sure, we must eliminate climate pollution! But we must also lean into a just and equitable energy transition that works with frontline communities who have been harmed by our country’s energy policy yet are often dependent on fossil fuels for revenue and jobs. Our energy transition must not replicate the inequitable systems that underpin our ongoing dependency on fossil fuels.
Center-left permitting reform proponents nonetheless argue that virtually any opposition to renewable energy infrastructure, whatever the reason, is self-defeating for frontline communities because they are disproportionately harmed by climate change. Stopping clean energy projects, they say, thus impedes our ability to mitigate climate impacts, harming frontline communities even more than they otherwise would be. This is wildly unpersuasive.
Clean energy infrastructure is still that–infrastructure–and can be sited well or poorly. If routed through an overburdened community or beloved forest, you’re asking that community to shoulder the impact of our energy transition in the name of “trickle down” climate benefits. That argument may play well on the pages of Substack, The Atlantic, or the New York Times. But it very much doesn’t land well with folks who have been victims of the developer-centered “free market” thinking that, for decades, has subordinated the public interest to the private interest — one of the very reasons we’re in the midst of the climate crisis and why the political will to advance solutions has proven so elusive. It also wrongly presumes that opposition will occur no matter what (which suggests, to me, that clean energy developers need to up their persuasion game) and argues, as a result, that we should outright deny any avenue for it to gain traction.
Lastly, I’ll just note that the targeting of NEPA is curious given the myriad of other, higher-priority opportunities to strengthen our government’s capacity to act with vision and ambition. For example, the Congressional Review Act radically narrows the window of opportunity for progressive rulemaking, allowing congressional and electoral politics to hamstring executive action and dictate the pace and nature of rulemaking with a decidedly anti-regulatory bent. Similarly, the Office of Information and Regulatory Affairs, created by President Reagan and sanctioned by subsequent administrations, Republican and Democrat, holds immense power but is a largely unaccountable black-box of decision-making asymmetrically positioned, by design, to obstruct, rather than let flow, progressive rulemaking.
Why isn’t the center-left actively targeting these obstacles to progress in a way that builds power with climate and environmental advocates? Why, instead, are they attacking climate justice and environmental advocates? It reeks of power politics and a desire to control, rather than foster a sense of belonging in, climate action and our energy transition.
In the end, there’s an urgent need for progressive reform of our decision-making processes. But the path forward is not through action that “clears the thicket” of bedrock climate, public health, and environmental laws. It’ll be found in our good, hard work to tend the garden these laws provide–a garden that holds the opportunity to nourish trust in our government and with each other for the challenges ahead.
So grab a pair of gloves and let’s get to work–together.
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.
