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Daniel Palken on the Bipartisan Senate Bill to Reform Energy Permitting · Columbia Energy Exchange

• 3:42
  Some may not, and especially want to give you a chance to respond to some of the objections that are coming up as this bill seems to fracture at least some parts of the environmental left. But you and everyone at Arnold Ventures have done a huge amount of work on it and appreciate that. Thanks for making time to be with us. Daniel Palken (00:03:58): Yeah, this is a culmination of a lot of people's work. Obviously our organization has been one of the many involved in this. Most of all it owes to the members of the Senate and the House before them who have worked on iterations of permitting bills that have kind of come to fruition here. So the four sponsor offices and their staff who have kind of toiled namelessly behind the scenes on this, this is a major product. 417 pages of edits to highly technical regulatory statutes that bear on regulatory language is no small feat. So excited to talk about it today. Jason Bordoff (00:04:35): So again, some people listening have been paying close attention, will know every detail, maybe some less so. I think at this point, people through the work of "Abundance" and Ezra Klein and lots of other things have a general understanding that there is a desire to make it easier to build in this country and it is very hard for high-speed rail and bridges and clean energy and pipelines and lots of other things. So just start at a super high level to explain what problem this bill is trying to solve, why you think and your colleagues at Arnold Ventures think it's so important and what are the most important reforms in the bill? Daniel Palken (00:05:10): Yeah. So at a high level, we're trying to solve the problem of it's gotten very challenging and expensive to build needed large scale infrastructure in the United States. It wasn't always this way. And in fact, at points in our history, I think you could argue convincingly that we were overcorrected in the other direction. There was too little in the way of permitting projects of all kinds and we built a lot and we paid for it a lot through environmental adverse effects. And then in the late '60s, the early '70s, there was a spade of environmental laws passed from NEPA, the most famous one along with the Clean Water Act, the Clean Air Act, the Endangered Species Act, the National Historic Preservation Act and many others. Those laws did serve and do serve a very important purpose in our system of laws. They make sure that we are able to build as the goal while still not polluting the environment and not sacrificing things that are sacred to us along the way.
• 6:12
  As those laws have grown up, they have changed in their nature, not always because they've been amended by Congress, but often just because of their own evolution and interpretation by the courts and by agencies. I think a plain distillation of this is in the early days of NEPA, you can tell that the way that it was understood by agencies and by the legislature that passed it was that you would get these NEPA reports, these environmental impact statements that were a few dozen pages long, maybe 20 pages long. Today, these same reports when you do a big project are 10,000 pages long in some cases. Sometimes the appendices extend them well longer than that. There was one famous case for a transmission line where the whole record for the line, both all of the public comment and the report itself extended a hundred thousand pages. You could roll up a hundred thousand pages of eight and a half by 11 paper and form a 20-mile-long string of paper.
• 7:08
  You could have built the same transmission line out of paper mache practically. And so trying to strike a balance between the 20-page origin and the 10,000 page destination point where we've landed and having the environmental review process be something that informs government without tying its hands on decisions that shouldn't be all that hard to make in some cases is in the country's interest, I believe in a lot of ways. Struggling to build means we struggle with affordability. Struggling to build means we're vulnerable from an energy security perspective. Struggling to build means that it's harder to transition an energy system to cleaner resources. Struggling to build means fewer jobs. So those are the problems. They're kind of all of the problems that politicians care about that cash out in the fundamental infrastructure and energy flows of society that we're trying to solve. Second part of your question, which I'll just touch on at a really high level is what are the things that this bill does to address that?
• 8:04
  I'm sure we'll get more into these, but there are provisions that modify a lot of the procedural requirements of the environmental laws and I want to delineate that. There's procedural requirements and there's substantive requirements. The vast majority of this bill is focused on addressing procedure and making sure that the government is changing the number of hooks by which a litigant can challenge the government and what's in scope for what the government has to do procedurally. So changes to laws like NEPA, the National Environmental Policy Act and the National Historic Preservation Act. And then there are provisions that were hard negotiated that have to do with specific technologies, whether we're talking about electric transmission and the electrical grid or geothermal or hydropower or things like that. And those transmission provisions in particular have been a focus of mine over the years dating back to when I was a staffer on Capitol Hill and I think are rightly getting some of the attention here because of the potential positive impact of them. Jason Bordoff (00:09:09): So I'll come to several of those particular provisions, including questions or concerns that have come up about them. But sort of stepping back to the higher level for a moment, hard to argue with it should be easier to build. I'm sitting in New York City where we used to have someone who ran a big part of the city, Robert Moses, who was pretty good at building and people will look at putting a highway through the Bronx and destroying half the Bronx in the process. There are reasons to your point, I don't think you disagree with this, that you have community engagement, that you have environmental reviews, that they serve a purpose. And I guess the question is how you think about what it means to go from a few dozen pages to 10,000 pages of review and are we well beyond the point at which it is necessary to run a process that hopefully moves as fast as it can, but there's a lot of work to do to understand the environmental impacts of projects and make sure you minimize environmental harms all the way to maybe the view, you tell me if this is your view that okay, these are now going well beyond that purpose.
• 10:12
  They are being weaponized to stop things from happening period, not to serve the original purposes of these environmental statutes. Daniel Palken (00:10:19): Yeah. I think that there is a pretty cut and dry case that if you look at a lot of NEPA litigation as it has happened in recent years and decades, the goal often is just stopping and not approving the projects. You'll have lawsuits that, for example, you'll have a pipeline that'll be built and the pipeline will be for transporting natural gas. And you may or may not like natural gas, but everybody understands that when you transport the natural gas, it's going to go, if it's not being used as a feedstock, it's going to go to some power plant or some distribution system where it's going to get combusted into some form of useful energy. And you would have agencies that would say, "Okay, this is how much natural gas we're moving and it's going to result in this much emissions." And then they would be sued by groups that would say things like, "Ah, but you didn't do things like multiply the number of tons of emissions by the administratively calculated social cost of carbon.
• 11:12
  And so therefore the public can't know an economic estimate of how much damages were done." Well, first of all, that's a very easy calculation to do. If public interest groups wanted to show the public that they could just take the published number in the document and multiply it by the social cost. But then what would happen is because NEPA basically says you have to unearth all these effects, and if you miss one, you could be gotten on the Administrative Procedure Act for having been arbitrary and capricious in your analysis and not having addressed things that were real effects in the world. You have decisions from agencies that were overturned entirely and cases vacated, decisions vacated on those grounds. And that's a pretty harsh penalty to impose upon a developer and an agency for what is generously a procedural error, probably just a, we can't think of every possible avenue and way of presenting information that satisfies every constituency or we can, but it will take us 10,000 pages.
• 12:13
  And those 10,000 pages come at a cost to government. We want government to be effective. We want the civil servants to be using their time and their talents for the public benefit. And having to write everything in every possible way and imagine every possible effect for thousands and thousands of pages, I would argue is not a good way of ensuring better environmental outcomes than the counterfactual, unless your goal is blocking things. And there are some organizations who I think view NEPA as a law that is good for blocking things. But I think even there, you get into some amount of trouble because it turns out that a better way, if you're a person who's trying to transition the energy system from dirtier fuels to cleaner fuels, I think a better strategy than blocking things is to build things that serve the same need as cost effectively and with better environmental attributes.
• 13:05
  And it turns out that NEPA has played a big role in blocking a lot of those things as well. So I think we are at a point on the curve in the spectrum in terms of the intensity and the nature of environmental analysis where we have in past days we were overcorrected in one direction, now we're overcorrected in another direction and bills like this will put us back in a zone that I think is a better trade-off between proximate environmental analyses and broader global environmental and economic and energy sector outcomes. Jason Bordoff (00:13:37): Now I understand why you did a two and a half hour podcast because we're going to need three or four hours because there's so much I want to talk to you about. So I want to move on, but just quick, I just want to make sure I understand your view of NEPA that you just described sounds consistent with a recent Supreme Court decision, Seven Counties about trying to take NEPA and bring it back to its original procedural goals. If you're going to do something big with a federal role, you need to analyze and understand the environmental impacts, explore ways to mitigate them, look at direct, not indirect effects. That's I think what I just heard you kind of describe. Is that right? Daniel Palken (00:14:09): Yeah. I think that the one way that the seven counties opinion put it was NEPA is a procedural crosscheck. And it's hard to argue with that on some level because NEPA has no substantive requirements. NEPA doesn't say once you do the analysis, you have to mitigate 90% of the effects you found or something like that. It is a law that is for surfacing information, both for the federal government's own purposes because they don't necessarily possess the wisdom of locals who understand their county and where something is being permitted and for the benefit of the public who is going to want to have a centralized place to find information about projects that developers are proposing and the government is permitting near them. So my view is making it into something that plays more of that procedural crosscheck role is actually going to be even beneficial along a lot of the dimensions that I think some opponents have argued that it would be harmful along, which is maybe a bit unintuitive. Jason Bordoff (00:15:04): Now the Clean Water Act and the Clean Air Act, which you mentioned both, are different. They are substantive protections to water and air quality that come from these projects. So how should people understand what this bill does to weaken those, if at all? Daniel Palken (00:15:22): So Clean Air Act is not touched in any direct way in this bill. Clean Water Act does have a title that touches on it. So sections 1201 through 1205 of the bill are various changes to the Clean Water Act. A lot of the focus of the Clean Water Act changes are changes to the kind of procedural nature of the Clean Water Act. I've delineated laws into two categories of substantive laws and procedural laws where the procedural laws are ones like NEPA and the National Historic Preservation Act that impose no substantive outcome or requirement. They are surfacing information and making sure the government's doing its job. But then laws like the Clean Water Act and the Clean Air Act for that matter are substantive environmental laws. They have limits on how much you can put into the air or what the concentrations can be in the air or water of various pollutants.
• 16:13
  It is important to note that what this bill is generally targeting in the Clean Water Act, which it does amend, is procedural requirements of the Clean Water Act. So there's a major provision of the Clean Water Act, which is section 401, which is basically a cooperative federalism provision. It gives the states the role of certifying that a project is in compliance with water quality standards that the states have set and with the requirements that are delineated elsewhere in other parts of the Clean Water Act necessary for getting permits to do things like dredge and fill activities. And what this bill does on those provisions, it sets the standard under which states can impose those conditions. So it says they have to be the least burdensome conditions available. It sets an evidentiary standard. It says that the burden is on the government to show by clear and convincing evidence that it's chosen the least burdensome conditions available to impose upon a certification for a permit.
• 17:23
  And so those changes, I think they generally... Some of the changes also are targeted specifically at linear infrastructure. So there's a set of changes around pipelines and transmission lines that require there to be a direct discharge of a pollutant into federal waters in order to trigger Clean Water Act certification and to trigger the conditions being imposed. What those will do is I think they will create an environment in which there is a more kind of straightforward path to building infrastructure so long as you are looking after the kind of proximate water quality impacts. Some of the things that are at issue in the background here are some blue states have at various points talked about and toyed with the idea of rejecting certifications for, for example, natural gas pipeline infrastructure on the grounds that that infrastructure doesn't line up with their climate targets. And for the state's own purposes, that may be a perfectly valid reason, but it probably isn't what's intended under the Clean Water Act.
• 18:29
  And that's been the complaint of Republicans who pushed for a lot of those provisions in the negotiation. So even on the Clean Water Act, the changes are generally procedural in nature, although they will make it on balance, I think it's fair to say, easier to build pipelines as long as you are looking after the core water quality requirements of the Clean Water Act, if that makes sense. Jason Bordoff (00:18:51): I think so, just so people understand what you're saying, because there are cases you believe and others believe where the use of the Clean Water Act has gone beyond is this project limiting the negative impacts on water quality to being a tool to what we talked about before with NEPA, for example, like prevent the project from happening at all? Daniel Palken (00:19:14): Yeah. And there are also cases that aren't just like, is it climate or is it water quality? There are conditions that have been imposed on hydro facilities getting their relicensing that have to do with cattle grazing and things like that. So the purpose of a lot of these provisions is to really narrowly limit the Clean Water Act to water quality, which maybe sounds not very revelatory to some, but there are definitely use cases in the real world that proponents will point to as what they're trying to solve for here. Jason Bordoff (00:19:49): And along with the changes you just described, the bill would shorten the window for legal challenges, tighten environmental review deadlines, strengthen federal authority, for example, interstate transmission, just try to get everything to move faster. Is that right? Daniel Palken (00:20:05): Yeah. So there's much ado about timelines and deadlines in this bill, and some of them are the timelines and deadlines for issuing permits. So for example, there's currently a one-year deadline under the Clean Water Act Section 401 for certifications that has historically been gamed by some states by playing a kind of withdraw and resubmit game where to give the cartoon version of this, at day 364 of the applicant's ripeness after it's been submitted and the one-year deadline, the state will tell the applicant, oh, we think your application is incomplete. Can you withdraw it and resubmit it to us? And that will start the one-year clock over again. Courts already have not been very friendly to that where that has come up, so it's been kind of partially solved, but there's a lot of language throughout this bill, both in the Clean Water Act section and in other sections that either in some cases tighten some of those deadlines.
• 20:53
  So I believe they changed that one year to a nine month actually for the purpose of transmission lines and pipelines specifically, but that also make it harder for agencies or states to kind of game or even blow by deadlines. And obviously the blowing by of deadlines, now let's zoom out from the Clean Water Act and talk again about NEPA and other general purpose, other permits that occur. We have seen administrations of both stripes over the last several years employ a range of tactics to kind of stall or revoke or delay or improperly deny permits of projects that they don't favor. For the Trump administration, that might mean wind and solar projects. For the Biden administration, that might mean oil and gas and coal projects. One of the bargains that is central to this bill is we're putting a stop to that as best we can through legislation.
• 21:43
  We're having deadlines where we have it very clear when the clock starts, so there's not tolling of that. We have it very clear when the clock ends and we have rights of action for companies to basically cry foul and go to a court. There's even some pretty clever penalties. If certain deadlines are being missed by more than 60 days, the head of the agency, so picture like the Secretary of Interior, becomes unable to travel for work more than 25 miles from his or her duty station. These are things that are really designed to catch the attention of agency officials at nearly the highest levels of government and say, "Hey, if you want to play these games, it's going to come at a direct personal cost to your ability to do parts of your job that are more exotic and aren't the bread and butter of seeing projects through." I think there's a lot of clever, interesting ideas there.
• 22:35
  As you mentioned, there's also things on the back end. Those are just the timelines on the kind of, "Okay, how are you issuing the permit?" There's judicial review. So today under the Administrative Procedure Act, litigants have six years to bring a lawsuit for a procedural foul unless a statute specifies a lower number. Now, the Natural Gas Act actually specifies 60 days under existing statutes. So environmental or other opponents of pipelines and LNG terminals only have two months to bring a lawsuit today against those projects. But most projects, it's six years. And so this bill lowers it to 150 days. And if you look at when most lawsuits come in, the vast majority, like upwards of 90%, come in within 150 days.
• 23:19
  I think some people have said, oh, 150 days, it's so much shorter than six years. Aren't you taking away people's ability to sue? And the empirical data really suggests to me that you're not. In the vast majority of cases, people are perfectly able to sue, and probably some of the ones that extend beyond 150 days could get in under the deadline if there were a deadline. But what you are doing is you're changing the calculus, the financial calculus for the businesses who now don't have to worry for that last five years and seven months that there's a cloud of uncertainty hanging over them that somebody could sue at any minute. And that really matters for lining up cost-effective capital to build projects. Jason Bordoff (00:23:57): So just again, staying at a higher level for a moment, I just want to make sure people listening understand your view on why this matters. So I'd imagine someone listening to you might say, okay, that sounds like that must be annoying for project developers, something that could take two years is taking four or five instead and it's going to delay things. It's going to be more expensive, but we're building a lot of renewables in this country. Solar's growing quite quickly, especially with backlogs and getting new gas turbines. How do you characterize to people why is this a really big problem we're solving or a more modest one? And then there are lots of reasons for these that include federal and NEPA issues, but there are state and local and tribal and community. How big a difference do you think this bill makes in solving that problem? Daniel Palken (00:24:47): I think it makes a differently sized difference in different places, to be honest. There's not an easy answer to that. In a locale where your problem is the county has passed an ordinance banning your preferred resource and there's no federal land, you're out of luck. That project is not going forward until the county does something different or the state preempts them or something like that. But in an area where, look at the West, for example, where a lot of the land in states like Nevada, it's like 90% of the land is federal land, that's not up to the county, that's up to the federal government what the laws are for permitting on that land. And if you look at a map, there's a group called Horizon Climate Group that publishes this online explorer that you can overlay a lot of different visuals on it, but you can overlay where all the utility wind and solar projects are in the entire country that have been built ever, and you can overlay all of the federal land.
• 25:41
  And I found looking at their map to be very revelatory because what it shows is you can see these in the West, it's a checkerboard of federal land. The federal land is everywhere, but there are kind of random seeming gaps in it. And the wind and the solar has located highly disproportionately in those gaps. It is clearly building in the negative of the federal land. And to your comment, to somebody who says, "Well, aren't we building a lot of wind? Aren't we building a lot of solar?" Wind actually peaked in the first year or two of the Biden administration. It's fallen off quite a cliff since then. And that's notably started happening well before Trump came into office. It actually happened around the time that we passed the IRA. So all of the subsidies in the world were not sufficient to rescue thus far wind from a decline that started structurally, largely because the grid ran out of headroom.
• 26:30
  There wasn't enough transmission capacity to connect things-- Jason Bordoff (00:26:33): I think you agree it was also the cost of capital and supply chains and inflation. It was a lot of things, right? Daniel Palken (00:26:38): It was an over-determined number of things. Although when you ask developers, Lawrence Berkeley National Lab did a survey of developers and said, "What are the biggest problems?" Supply chains and cost of capital, at least as of, this was like a 2023 survey, 2024, were not the top of the list. The top of the list was grid issues and then various forms of local permitting. But it's worth noting that the local permitting, that often takes the form of an ordinance that restricts you. If federal lands and the 21% of the landmass of the US were a more hospitable environment, a lot of wind in that neck of the woods in the West would have an outlet where it could build on places that aren't going to restrict it, but that currently de facto do. 3% of wind, three or 4% of solar, three or 4% of geothermal are on federal lands in the US despite federal lands being 21% of the landmass.
• 27:30
  That to me is reflective of a policy environment that makes it asymmetrically hard to build on those federal properties because of the federal permitting laws that are triggered when you do. Jason Bordoff (00:27:41): And talk about the importance of building this infrastructure. As you obviously know, and this bill has sparked some fractious debate on the left, particularly about its climate impacts. But when I saw the announcements from Senator WhiteHouse and others, it talked about advancing clean energy. It talked about meeting rising energy needs. It talked about affordability and raining in high prices. It had multiple energy policy goals, climate being one. Talk at a high level about what we achieve across the board and then we'll come to the climate impacts. Daniel Palken (00:28:18): Yeah. So I'm going to focus particularly on the grid infrastructure for this, like the upgrades to transmission lines, to substations, to transformers, to our ability to have headroom to integrate supply and demand. The way I think of this is that the commanding heights of the 21st century are going to be determined by a number of growth industries that all have to do with putting more power on the grid. Some of these have clear climate nexuses, so some of these could be electrified transportation and industrial applications. Others include things like advanced manufacturing, semiconductors, making batteries. Somewhat frighteningly, the future of warfare seems to involve a lot of drones and the batteries that power them. And as frightening as that is, being the country that doesn't have the ability to manufacture them and power those facilities domestically while China on the other side of the world is adding loads and loads of capacity to its grid, often hundreds of gigawatts of new high voltage transmission capacity over just several year periods.
• 29:31
  There was a transmission line that China built between 2016 and 2018 that was 2,000 miles long and that was 12 gigawatts in capacity. That one transmission line had more line miles worth of capacity than the US built in large scale inter-regional transmission over a 10-year period surrounding the construction of that line. So part of what this is about is putting the US on a footing where it is able to build and accommodate the Histories of the future in a way that is commensurate and competitive with our peers and rivals around the world. Because by the time it's too late, we won't be able to rectify the situation. Jason Bordoff (00:30:12): I want to get into a little bit of some particular provisions that have generated, I think, some of the most concern from people, particularly focused on climate as the lens through which they view this bill. So one objective of the bill, as I understand it, is permit certainty. When you have a permit from the federal government, Trump shouldn't come in on day one and take it away for a wind project, and maybe Biden shouldn't come in and take it away for the Keystone pipeline. And the objection is, well, that may be good in theory, but we have Trump in power and for the next two years he can just approve whatever he wants and open ANWAR and the Arctic to drilling and permit everything else under the sun. And these fossil fuel permits will exist in perpetuity. Can you respond to that? Daniel Palken (00:31:00): I've heard versions of that on Twitter and in some spaces. And the version of that, which is that you're creating a one-way valve for perma-permits, something that can be put into place and never revoked no matter how shoddily done, is not a fair reading, is not an accurate reading of what the bill does. The bill very clearly preserves the right of any party to file suit under any substantive violation of any existing environmental law. If you are blowing past your water or air quality requirements or harming a species without appropriate mitigation under the ESA, you're going to be just as vulnerable to having your permit revoked. And in fact, the sections, section 1401, 1402, 1403 in the permit certainty title that deal with this very clearly provide a carve out for permits that were issued illegally. And so all the remedies that exist today for a permit that is granted unlawfully will exist tomorrow if this bill is put into place.
• 32:07
  But I think there is definitely, as people are reacting to this and the bill's only been out for hardly two weeks, there is a lot of people kind of rushing to, well, does it say this? Does it say that? Sometimes there are valid kernels of concern, but sometimes it's things that I think are over readings or misreadings of the text. Jason Bordoff (00:32:27): And as you said before, we're talking about the Clean Water Act, for example, or the Clean Air Act or anything, the substantive requirements of law are still there, even if maybe people are concerned there's a more conservative judiciary or something that will be evaluating these. But all of those substantive environmental statutory protections still exist and need to be complied with. Daniel Palken (00:32:49): Those still exist. Those still need to be complied with. At worst, the burden that an agency or a state has to meet to show that it's doing things that are necessary to comply with those is raised somewhat, but that's the extent of it. Jason Bordoff (00:33:03): There's a provision of the bill related to permit certainty that has raised concerns about a so-called disparate treatment provision that I want to ask you about. As I understand it, it would let developers sue over intentional federal discrimination against their category of energy projects. So the concern is a potential asymmetry in the historical baseline, the idea being that continued obstruction of renewables could become harder to distinguish from recent treatment, but new restrictions on fossil fuel projects would stand out as being very different from the Trump administration's experience. Can you speak to that concern? Daniel Palken (00:33:40): Yeah. So the disparate treatment provision essentially says a version of what you were saying. It says that if you are a project and you've been improperly denied or unreasonably delayed, and you can also make a showing that you are not unique among your project type. So it lists a bunch of different types of projects. Maybe you're an offshore wind farm, maybe you're a natural gas pipeline, maybe you're a transmission line. If you can not only show that you have suffered some violation of the law, so you've been improperly denied, you've been unreasonably delayed, but you can also make a statistical showing that this has been happening to your class of projects in a way that is a trend that breaks with the five previous years of government practice towards your projects, then you are entitled to a bunch of remedies. So your project is going to get its permits and be green lighted and you're going to be able to recover legal fees.
• 34:42
  And then there's a provision that has attracted some amount of controversy that says you're going to be able to receive damages payments equal to 50 to 100%, depending on how egregious the violation was of anticipated expenditures. So things that you may not have even spent yet, but that were anticipated to be spent on the project. And as you say, the argument that has come from some environmentally aligned voices is, well, this five-year look back, by the time that suppose that a new democratic administration takes seat in 2029, four of those five years are going to have been the Trump administration. So they will presumably have had a very favorable record towards permitting oil and gas and fossil fuels and maybe not so positive a record on wind and solar. Now on the latter one, I would actually say that this bill is going to force them to move much more expeditiously and fairly on wind and solar.
• 35:39
  So this bill may actually change the conditions on that. But nevertheless, a Democrat would therefore be hard pressed to deny fossil under this standard. But if instead you had a Republican come in in 2029, they wouldn't be as hard pressed to deny wind and solar.
• 36:00
  And one response to that is like, okay, maybe five years is not the perfect amount of time. Now, I think that there's actually a bit of a wording issue in the language here where it's not entirely clear that it's not actually at all clear that the five years starts when the lawsuit is filed. I think the better reading of the text is probably that the five years starts before the pattern started occurring. So you can kind of look back at the prior period. And so that may actually extend the deadline a bit before the kind of administration in question and resolve that issue on its own. But to the degree it doesn't, maybe this is a fair point. Maybe let's stipulate that it becomes asymmetrically hard for the first five years to apply this depending on electoral outcomes to renewables versus fossil given who is in power now.
• 36:49
  The thing I would say to that is in the grand scheme of things, this is a law that is meant to stabilize the regulatory environment and solve, if we're talking about climate and energy transition issues, issues that play out over many decades spanning multiple administrations. I do think in that context, you have to take the long view and say, okay, maybe the first turn of the screw is one where it is preventing, which is what it's supposed to do, an administration from taking adverse action against fossil projects. But the second a democratic administration in this scenario does come in and then has a favorable record towards permitting renewable projects, well then the exact same logic that the opponents are afraid of in this case will apply itself in reverse to any subsequent Republican administration because the previous five years prior to them coming into office will just be four of those five years or maybe all five of those five years if there was a two-term administration will be an administration that was presumably favorable towards permitting renewable projects.
• 37:52
  I would encourage people, I don't look at the bill as like a, how does this shake out in a zero sum way for opposing energy projects over the first four, five, 10 years of its implementation? Provisions like this are meant to the degree they're activated at all. And I kind of think that in the background here, this is a provision that may never be invoked for reasons we haven't discussed, but to the degree a provision like this is activated at all, I think net-net, it kind of helps both sides technologies in the long run and taking a short run view of it is misleading. Jason Bordoff (00:38:26): So the concern that a future administration that wants to scrutinize fossil fuel projects more strictly on day one would look back over the last five years, as you said, four of those are Trump, and maybe face disparate treatment claims and enormous damages while maybe not having remedies to stop the blocking of clean energy. You admit that in a polarized world where every four years the pendulum seems to swing, maybe five years is not exactly the right number of years, but the broader point is sort of take a long-term view of this. Daniel Palken (00:39:01): The broader point is take a long-term view. And the other thing I should have said more clearly there was that if you're denying a project because it has violated any of the other environmental laws, because it's putting too much air pollution out in a non-attainment zone because it's doing unmitigated harm to a species in violation of Section seven of the Endangered Species Act, you can deny that. You have to make a showing under Section 1402 that every single one of your permits and that you're in full legal compliance with all existing statutes. So you won't be able to even get to the point where you can try to make this showing unless you can start by showing that you're not in violation of any substantive environmental requirement. And so what I'm not saying, I want to be clear about this, is a future democratic administration couldn't deny permits that were shoddy and that didn't meet the environmental standards of our existing environmental laws that were just because the Trump administration had batted a thousand on approving all of the permits.
• 40:06
  All of the permits that are brought to any administration, Democrat or Republican, can be denied and if they aren't denied and they're improper, can be legally challenged on the grounds that they're in violation of a substantive environmental requirement or even a procedural requirement. There are plenty of procedural grounds that this law leaves open to bring challenges under, just not anymore NEPA or the National Historic Preservation Act. You can still bring challenges. They can still result in court actions. They just can't result in a vacating of the entire permit or an injunction against the project. I'm going to Jason Bordoff (00:40:37): Ask you about one other objection I've heard and we've heard many people say, look, this may make it easier to build fossil fuel projects, but overwhelmingly the benefit will be to make it easier to build clean energy projects. Some of that argument is which side of this argument do you believe if you genuinely believe the rhetoric of many on the democratic side or in the climate movement who are renewables are the cheapest form of energy, let them compete, they will win. One piece of evidence people point to is the interconnection queue, which is overwhelmingly renewable projects. But then I've heard people say, okay, that may be true in this long queue that's been built up over years, but what is actually happening on the ground today? And what's happening on the ground today is a huge amount of natural gas projects that are entering the interconnection queue, maybe half and half or something and maybe even more in 2026 than 2025.
• 41:27
  So there's a concern that that idea that we know this is going to do more to help clean energy than it will to help fossil fuel projects might not actually be the case. How do you think about that? Daniel Palken (00:41:38): So I think I've heard this argument. Jeremy Simon's put out a memo. He's actually had several memos over the past several months, including some that date back to before the permitting bill was introduced and the April one out in early September that basically argued that this interconnection queue argument that Dems will make is out of date because like in PJM, for example, we've seen a rebalancing of the queue where a lot of new projects have come in that are natural gas projects or other thermal projects. And so stop thinking that just because the LB&L numbers that are published annually are still 90% clean capacity that the market is favoring clean. And I think, look, there's some kernel of truth.
• 42:23
  There was an incredibly favorable environment for renewables cramming into queues for a period because in part the queues were set up in a way that encouraged speculation. So you had essentially an over capacity of renewables entering the queues knowing that not all of the projects would move forward. And also there was a heavy subsidy environment thanks to the IRA and there were a bunch of regulations on the books that made it very hard for fossil. But I think the argument that Simons is making, in my view, overstates itself some way. You're looking at, for example, the PJM queue. PJM is notoriously the hardest region to build renewables in. It has low to mid, really low single digit penetrations of wind and solar, whereas other regions like MISO and SPP and ERCOT and the non - RTO West are all approaching 40% renewables. So it's a total night and day difference between PJM and other regions.
• 43:19
  And what explains that in part is that PJM in particular has been a notoriously laggard region when it comes to its interconnection queues and when it comes to transmission planning, the very problems that this bill is trying to address. And so I think there's a bit of a cart before the horse here.You're kind of reversing the causality by saying, look, in PJM, we're seeing a shift to gas in this region that has stalled out its interconnection queues and put a multi-year pause on taking new entrants because their transmission system is so strained and they've struggled so much to build large regional scale projects that add headroom that you now no longer can add. You haven't been able to add new projects for years. And so they're kind of desperate to add stuff that just adds capacity as quickly as possible. And so I think I would read the data the opposite way.
• 44:09
  I would say that PJM, after having been a region in which it is A, harder to kind of lowercase P, permit things, and B, a region that is short grid capacity and has had not kind of bleeding edge policy on developing large scale transmission over the past decade is now the region that is showing that when you have those underlying problems, you get a lot more gas cramming into the queue and a lot fewer renewables. I would take that as a reason to say, well, why don't we be more like Texas? Why don't we be more like a region that has built out large scale transmission, that has pretty clever and intelligent interconnection policies that makes it easier to permit projects across large acreages of land? And then in Texas, you've seen a boom where wind and solar have essentially displaced coal, where in the rest of the country, gas has been the resource that has mostly displaced coal. Jason Bordoff (00:45:08): So to this point, I've asked you a lot about the concerns, objections, questions raised, particularly from the center left, particularly from groups looking at this bill through the lens of is it good or bad for climate? And I'm just wondering if you also share the view that that's almost not the only or correct question to ask. Whether the sign is positive or negative on emissions is an important consideration, but I don't want to put words in your mouth, so I'm going to say something and tell me if you agree or disagree that it's not a climate bill. As you said at the start, there are multiple energy policy objectives that this is trying to advance. And I think I've heard you say the goal should not be to stop every oil and gas project. A, because there still needs to be some amount of investment in the system on which much of our economy depends.
• 45:58
  We'd like that system to look different in the future for climate and other reasons. But if you don't sustain it, you have reliability, security, affordability concerns. And also maybe because you, I think have expressed the view in the past that focusing on supply restrictions tends to be pretty ineffective in a global market, so it doesn't really work anyway. Tell me if you agree with some of what I just put out there, if I've put words inaccurately in your mouth. Daniel Palken (00:46:26): No, I think that's a very fair characterization of my view. So first, I do think this bill, there is a debate, people should be having it. It should keep going as to whether this bill is helpful or harmful on the dimension of climate and other environmental outcomes. My position is really that it is likely to be helpful, but even if one doesn't believe that, even if one is convinced by the people on the other side of that debate, as we've talked about, about five or six other dimensions of things that everybody in the US, whether they think about them on a day-to-day basis or not, very likely cares about. And that's how are prices lower, our prices high. And it's not just energy prices because as you know well and as listeners know well, the cost of energy makes it in either a big or a small way to every single other good and service in the economy.
• 47:21
  Is reliability solid or are we experiencing outages or are we fragile to extreme weather events or even worse bad actor kinetic or cyber events? Permitting in various forms and fashions and being able to bring on more supply and more different kinds of electric infrastructure helps with those problems across the board, some more than others. Do we have a thriving labor workforce that is employed and that finds meaningful work and makes a living in the energy sector? Labor has come out. A lot of groups like La Una and UA have come out strongly for the permitting bill. So energy security considerations, which obviously tie into reliability resilience, but take a much bigger picture. You look at what's happening today in foreign theaters around Iran and the world is becoming unfortunately a less secure place when it comes to energy in countries that have their own tools to be able to bring on more production and more infrastructure are going to be better positioned in that world.
• 48:28
  And so all of these things, accommodating economic growth, everybody cares about being able to grow the pie and have more for everybody. The permitting bill is much more of a clear win on all of those dimensions. And I think the debate is, is it also a win on the dimension of sustainability, which is an important debate. I happen to believe it's also a win on that dimension. Then on the question of supply side restrictionism, suppose your main priority is the environmental aspects of the bill. I still think one reason I think that the bill is a net win for the environment is I think that it is a very bad strategy to try to achieve environmental and climate outcomes by blocking production of industrial projects and of the production and the transportation of fuels in the US. The nature of these products, whether we're talking oil and gas molecules or end use manufacturing facilities is they're producing things that are highly inelastic goods that are traded very fluidly around the globe.
• 49:33
  So the first order effect of blocking a marginal shale well in the New Mexican Permian is much of that shale, not all of it, it's not perfectly inelastic, but much of that oil, maybe it's 70%, maybe it's 80%, maybe it's 60%, whatever, is going to show up in the aggregate in production in other parts of the world. And chances are that production will occur with lower environmental standards, will occur with more methane leakage. However uncareful you think the New Mexican Permian drillers are, I can assure you that people in Russia are less careful when it comes to fugitive emissions getting into the atmosphere. And the same is true with mining. We mine things like copper and critical minerals that are useful, not only in electricity, electric sector and power sector technologies and defense technologies, but those commodities are incredibly valuable. The needs for them are often very inelastic.
• 50:28
  And if we don't mine them in the US where they do cause local environmental disruption, the reality is those things will be mined in locations. They might be mined in Africa, they might be mined in Indonesia or elsewhere in Southeast Asia. And the environmental outcomes are going to be someone else's problem. They're in someone else's backyard, but they will probably be worse than if they're done here under our environmental laws as they exist in a world where this bill passes. So I think the supply side restrictionism is a dead end. I think that states that have tried to do it have not seen a kind of durable lowering of emissions that coincides with the sort of low price favorable environment that you need to have social license for an energy transition. And so I am much more interested in saying people should be for what they're for and try to build projects that can meet the economic and security needs of the country and see that as the primary strategy.
• 51:30
  And I think the permitting bill operationalizes a lot of that. Jason Bordoff (00:51:34): I mean, I agree with what you said in a global market, if supplies constrain one place and the demand is there, the supply will pop out somewhere else. To the extent it doesn't, it seems like we've also seen in recent energy crises, the lessons from them, gas crisis in Europe in 2022 or this year's Hormuz crisis, we have also seen the evidence that politicians will jump through whatever hoop is necessary to find ways to subsidize prices, release strategic stocks, ease sanctions on Russia and Iran, do whatever it takes to make sure that that supply continues to flow. I think that is also part of the political economy. Daniel Palken (00:52:11): Yeah, this is a car you don't want to catch. If your strategy is to achieve climate outcomes by focusing on supply side restriction of fossil fuels, the way that that effect is mediated, as you say, is through prices and prices have to get very high before you get double digit percentages and reductions of those fuels. And very high is code for well past the point of where politicians or the general populace will tolerate. So if that is the strategy, I've never had it explained to me of how you get from A to B in a way where populations sustain you on that. It'd be like passing a $500 carbon price or something, except at least with the carbon price, you get a lot of revenues into the government, whereas here there aren't those revenues. Jason Bordoff (00:52:59): Do you think that that kind of schism that you see in different responses to this bill is indicative or tells us something about broader questions in what's next for energy policy, climate policy? I think these have been there for a long time obviously, the effort to block the Keystone Pipeline, the Willow Project, Dakota Access, there's been a lot of environmental activism focused on preventing fossil fuel infrastructure, but also a broad consensus among many to do things like the Inflation Reduction Act to put incentives in place to drive faster clean energy. And I think there are interesting questions about what's next for the clean energy agenda, particularly if you have a change in administration. Are we going back and putting the IRA back in place? Is it EPA, Clean Air Act regs, particularly given changes in the court? Is it something different? Do you think what we're seeing in the response to this bill tells us something about kind of internessing fights that might play out about what that policy pathway should be going forward? Daniel Palken (00:54:01): Yeah, I think so. I think the bill on the one hand is symptomatic of changes that have happened within the thinking of some within the Democratic coalition as best I can discern it. And I think it is also indicative of policy discussions and debates to come. So on the symptomatic point, I think that there is happily from the perspective of climate and sustainability, we live in a world where the performance of the clean technologies has exceeded the wildest dreams of proponents from a few decades ago. You go back a few decades, you would find people, grid operators of regions like SPP saying that we can't imagine operating this grid with more than 5% renewable penetration, but also that's an academic question because renewables are so expensive that we'll never be in a position where we have to confront that in the first place. Both of those premises have been proven wrong.
• 55:01
  The cost declines in renewables, setting aside, obviously there are bumps in the path, interest rates and supply chains have disrupted this trend obviously, but the overall overarching kind of long arc trend has been of steady cost declines in performance improvements in the technologies that are small, modular, factory reproducible that obey rights law. And then second of all, they've proven operationally superior to what people though this you can't get beyond two or three or 5% without the system collapsing. Well, regions like SPP will hit 90% instantaneous penetration of renewables and averaged over a year, they're more in the 30 to 40% range and climbing. So we don't know where that tops out. I do think there's good reason to believe that you end up running up a kind of ever steepening escalator once you get to maybe it's 60%, maybe it's 70, maybe it's 80% of variable renewable penetration, but we haven't hit the wall yet as far as people can tell.
• 56:04
  And I think the recognition of that kind of paradigm shift in the economics and the performance of these technologies is kind of the motive force behind a lot of the Democrats. I don't want to put words in their mouth, but I've heard them express a lot of confidence in these technologies, people like Sheldon Whitehouse and Martin Heinrich, who think that on a level playing field, and I think not without reason, that on a level playing field, the long arc of history bends toward resources that have this ability to kind of improve more and more the more you deploy them. So that's what's symptomatic about it. What does this portend?This is a different policy debate than others that have been had certainly within the Democratic Party. Under Biden, or maybe taking a step even further back, there was a period where the US basically did not enact major energy policy for about a decade.
• 56:57
  After ARRA in 2009 where there was some cash infusion into clean technologies, there was about a 10-year period where the only policies that were enacted were tax extenders and lifting of the crude oil export ban to first approximation. And then starting really with the Energy Act of 2020, which happened in the late first Trump administration, there was kind of this golden era of authorizing and appropriating legislation that focused almost entirely on setting aside funds and then spending money for largely clean technologies. And different bills did that in different ways. The CHIPS and Science Act was more focused on research. The Infrastructure Act was more focused on kind of clean, firm, dispatchable technologies. The IRA was focused on a very broad range of clean technologies. And that kind of high tide of that theory of change has kind of recessed a bit. I think what people found was that merely pouring money into the problem without fixing some of the permitting and administrative and infrastructural challenges in the way actually did not achieve the intended goals.
• 58:08
  And then on top of that, of course, the politics didn't prove as durable as people though. So the IRA was partially repealed, as you've discussed with previous podcast guests on this show before. And so the question now is what is going to be the policy going forward? And I think Democrats and Republicans are grappling with this in their own way. I'm not convinced that either party has a perfectly coherent vision of what it wants the next five or 10 years, let alone further of energy policy to be. But I do think that the permitting debate is indicative of the fact that we are now debating policy that has much more clear trade-offs and splits people into different camps based on their priors. And with spending money, it was kind of easy to get around that because if you had a constituency that didn't quite like what you were doing, you spent more money on them and then they were happy.
• 59:03
  And if you had another constituency, you spent more money on them. I think we're not likely to be in the sort of fiscal or political environment where that is an option in the same way going forward as it was in the past. And so whether it's permitting or other things, I think policymakers are going to need to relearn the kind of art of striking deals that have trade-offs and that require bipartisan compromise to be durable. And I think that's probably a good and a healthy thing, although it will come with some growing pains. Jason Bordoff (00:59:33): I think that's really well said and insightful and captures sort of the challenges moving forward. So maybe just bring us to a close by talking about what's moving forward for this piece of legislation, not for climate or energy policy generally. It's nice that four senators agreed on something. It seems impossible to get anything done on Capitol Hill. So what are we talking about? Who's for it? Who's against it broadly speaking? And what should people be looking for next? The lame duck or beyond? Daniel Palken (01:00:02): Yeah. So there's going to be an effort to try to pass this in the lame duck and a lot is going to depend on various unknowns from now until then. We don't know how the election will play out, how the election does play out. We'll definitely inform how both sides posture and think on this. There's also going to be some amendments brought to the bill. So Senator Whitehouse at the press conference said that there's going to be a manager's package of amendments. From what I have heard, I think the way that both sides are thinking about this is they're not opening the doors to big substantive changes where it's like, okay, we're taking out your favorite thing and we're adding in a big new thing on some other law we haven't here too foretouched, but they're trying to fix things that address real technical ambiguities or drafting errors in the 417 pages.
• 1:00:51
  It's worth stressing that this is a much bigger and more comprehensive permitting effort than even prior ones. When I was a congressional staffer, I was one of a number of us that worked on the Energy Permitting Reform Act. That was like a 70-page bill. This is a 417-page bill and it definitely has some blemishes. And so I think we're going to see, I think some things that hopefully both sides will agree are technical improvements. Maybe they'll touch on some of the things that we were discussing earlier where both sides have kind of tried to imagine worst case scenarios that could happen if the language were interpreted in a maximally ungenerous way that isn't in line with what the drafters of either side had in mind. So you could imagine some fixes to things. And then I think the bill will go to the floor in the Senate.
• 1:01:38
  They've planned to have a vote on it. And then once it passes, there's an open question as to how it will move through the House. They could try to pass it standalone in the House. They could try to attach it to a big end of year vehicle like a continuing resolution to fund the government or like the National Defense Authorization Act. I think any of those pathways are potentially open at this point. And the higher the level of support for the bill on both the Democratic and Republican side, and the more both sides can resist the temptation. I think this is maybe the point I'll close with. The more both sides can resist the temptation to say, "Okay, we're going to try to renegotiate it in a major way," I think that the likelihood of passage goes up. And the reason I say that is there are obviously a number of threats to this bill.
• 1:02:23
  There are a number of legitimate criticisms of the bill. It's not a perfect bill. But the two biggest things that I think are likely that could derail the bill is on the one hand, President Trump has right now said he is good moving forward with this bill. President Trump is a person who sometimes changes his mind. And we've seen on previous bills like the housing bill, which kind of occupied a similar space of politics that how he feels one day may not be perfectly indicative of his position on the next day. And so I think even barring some externally imposed event like an election and an attempt at renegotiation, there's a possibility that Trump could say, "I'm no longer into this. I don't want to do this." But I think when you combine that with if Democrats win the election, which is the outcome favored by pollsters right now, there's a pressure within the party.
• 1:03:12
  And some have said, "Well, why don't we renegotiate this policy? We'll have more leverage and be in a better negotiating position." I don't know the mind of Donald Trump, but I have seen elections, midterm elections that he has lost before. And he doesn't strike me as the type of person that after an electoral loss is likely to come back to the table and say, "Hey, I recognize I've lost this election. I now have lower leverage against you, my counterparty in a negotiation. And I would like to, in recognition of that lower leverage, strike a deal that is more favorable to you on terms that my advisors will tell me they don't like." I think that the combination of those two things, the democratic internally imposed pressure to renegotiate, even though I do think Sheldon Whitehouse and Martin Heinrich did a very good job negotiating a very balanced product prior to the election, combined with the shakiness of the counterparty and of Trump's willingness to support it, that is the most likely avenue by which if this doesn't pass, I think will have caused to regret looking back from future Congresses. Jason Bordoff (01:04:16): Daniel Palken, super interesting conversation, really insightful, very deep discussion of this and we'll have to keep talking about it because this is going to go on for a while longer, as you said. So really grateful to you for spending so much time explaining it to me and to all of our listeners. Thank you. Daniel Palken (01:04:33): Thank you so much, Jason. Real pleasure to be on the show. Jason Bordoff (01:04:35): Thank you again, Daniel Palken, and thanks to all of you for listening to this episode of Columbia Energy Exchange. The show is brought to you by the Center on Global Energy Policy at Columbia University. The show is hosted by me, Jason Bordoff, and by Bill Loveless. Mary Catherine O'Connor, Dara Diamond, and Kyu Lee produced the show. Gregory Vilfranc engineered the show. For more information about the podcast or the Center on Global Energy Policy, please visit us online at energypolicy.columbia.edu or follow us on social media @columbiauenergy. And please, if you feel inclined, give us a rating on Apple, Spotify, or wherever you get your podcasts. It really helps us out. Thanks again for listening. We'll see you next week.