The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Stabilizing greenhouse gas emissions will require a dramatic expansion of renewable and other clean energy technologies and associated transmission capacity. The recently passed bipartisan infrastructure bill authorizes funding for some such projects, but such funding only matters if the projects can get built. Unfortunately, government regulation—including much environmental regulation—can get in the way, delaying and discouraging the deployment and installation of cleaner technologies and associated infrastructure.
Ted Nordhaus of the Breakthrough Institute highlights multiple examples in the Wall Street Journal:
In Nevada's Black Rock Desert, local environmentalists and devotees of the Burning Man festival are using the National Environmental Policy Act (NEPA) to oppose a geothermal energy plant. Further south, the Sierra Club has joined with all-terrain vehicle enthusiasts to stop development of what would be the nation's largest solar farm, which it says threatens endangered tortoises. Along the Atlantic seaboard, plans for major offshore wind farms have been hogtied by provisions of the Jones Act, an obscure law that requires maritime cargo to be transported exclusively by U.S.-flagged ships when it is shipped between domestic ports. It is an obstacle that may ultimately prove beside the point because proposals to develop wind energy in American coastal regions have also faced a constant barrage of NEPA and Endangered Species Act (ESA) lawsuits designed to stop them.
The problem isn't limited to renewable energy. In California, environmentalists have used a state law designed to protect fish eggs as a pretext to close the Diablo Canyon Nuclear Power Plant, the state's largest source of clean energy, while the California Environmental Quality Act has hobbled efforts to build both high-speed rail and high-voltage transmission lines that the state is counting on to meet its climate commitments. In Washington, D.C., meanwhile, the Nuclear Regulatory Commission peremptorily rejected last month the application of the first advanced nuclear reactor developer to seek a license before the commission, to cheers from leading environmental groups.
Across the country, foundational laws established in the 1960s and 70s to protect the environment are today a major obstacle to efforts to build the infrastructure and energy systems that we need to safeguard public health and save the climate. Though the Biden administration and Democrats currently propose to spend close to a trillion dollars on low-carbon infrastructure and technology, there is little reason to believe the U.S. is capable of building any of it in a timely or cost-effective way.
There is nothing in the bipartisan infrastructure bill that passed Congress nor in the "Build Back Better" proposals that would meaningfully address this problem. There is a tremendous appetite to fund clean technologies and energy sources, but little willingness to tackle the regulatory barriers that stand in the way of rapid deployment and construction. Worse, there are efforts to roll back the modest Trump Administration reforms to the NEPA review process that could have helped accelerate at least some clean projects.
Turning out the lights is not an option. We will power our moden economy one way or the other, and if it is too difficult or costly to deploy clean energy sources and to construct the infrastructure upon which it relies, we will stick with dirtier and more carbon-intensive energy sources. Thus a decision not to accelerate and ease clean energy development is a choice to stick with dirtier sources. Unfortunately, it seems at least some environmental activists are willing to make that choice.