The next step for clean energy permitting: judicial review

There is bipartisan consensus that we need more energy production in this country, not less. Look no further than the energy needed to support massive new data centers across the country powering industries like artificial intelligence and crypto mining.

But to produce more energy to support our economy and keep the lights on, we must invest in an all-of-the-above energy strategy. This includes building upon House Republicans’ landmark permitting legislation, H.R. 1, the Lower Energy Costs Act. The provisions within this legislation are the Republican gold-standard for a modernization and streamlining of the federal permitting processes that is desperately needed by the American clean energy industry.

Although several of the provisions included in H.R. 1 were signed into law as part of the Fiscal Responsibility Act — the most meaningful permitting reforms in decades — there is one key element that is still outstanding: judicial review.

Endless cycles of frivolous litigation and uncertainty paralyze any kind of infrastructure development, resulting in endless delays and untold added costs. Clean energy projects are not immune to this. Transmission lines, hydropower, carbon capture, nuclear energy, solar fields and offshore wind are affected alongside natural gas development and pipeline installation. Serial litigation also hampers our ability to access resources necessary for clean energy technology such as critical minerals. This further increases our reliance on communist China and results in significantly higher global emissions. 

As the law is currently written, there are almost no restrictions on who, when or how so-called public interest groups can sue to stop development. For example, public comment extensions in the National Environmental Policy Act (NEPA) are a vehicle often weaponized against energy projects, causing delays, pauses and indefinite halts.

NEPA is an incredibly well-intentioned piece of legislation that serves to provide important information on the potential environmental impact of certain projects. Unfortunately, groups with nearly unlimited funding have found that it is also the most effective way to kill American energy development. For those who care about climate mitigation and adaptation, it is not just clean energy that gets delayed as result of NEPA lawsuits. Projects intended to prevent forest fires, protect coastlines and build levees also struggle with delays resulting from NEPA litigation.

While extreme interest groups take advantage of NEPA to eliminate oil and natural gas development in the United States — despite it being among the cleanest in the world — they have also used judicial review to take down projects critical to a cleaner energy future. This includes transmission projects, which are necessary to meet growing demand for electricity.

For example, the $650 million high-voltage, 102-mile Cardinal-Hickory Creek project is considered essential for renewable energy delivery to communities throughout the Midwest. There are hundreds of clean energy projects waiting to be connected to this line. The utilities constructing the project, which runs from Iowa to Wisconsin, are nearly done, but a lawsuit filed by three special interest groups is leaving it up to a federal court to decide whether the developers can build the final mile of the line.

If the U.S. is serious about deploying clean energy and its necessary infrastructure, delays such as this one are unacceptable. 

H.R. 1 contained provisions to modernize judicial review that must be revisited. First, the legislation required interested parties to have meaningfully participated in the environmental review process. These reviews don’t happen overnight, and they are required to take public opinion into account. We believe that if an outside group has not been active in the review of the project, it should not have the ability to litigate the end of it.

The legislation also required lawsuits to be filed within a reasonable timeframe. Many suits are brought to court years after a record of decision is filed or a project has broken ground or is close to completion. We believe that if there is a legitimate argument for delaying or halting a project, it can and should be brought up swiftly, so that issues can be resolved in a timely manner.

Finally, judicial review should be tech-neutral. We shouldn’t create streamlined processes for certain types of projects over others. Demand for clean energy is coming across the board, and we approach energy production with an all-of-the-above mindset; judicial review should be no different.

There is bipartisan consensus in Congress that permitting reform is needed for energy production in the United States, and we have made significant progress. It’s time to take the next step. It is our hope that both parties can also rally behind the much-needed modernization of judicial review, or else the progress we have made will be all for naught.

Bob Latta (R) has represented Ohio’s Fifth Congressional District since 2007. He is a senior member of the House Energy and Commerce Committee, a member of the House Energy Action Team, and a member of the Conservative Climate Caucus. Heather Reams is the president of Citizens for Responsible Energy Solutions, a non-profit organization based in Washington, D.C.