Even after the manager’s amendment, BAAJA’s permitting certainty provisions may not prevent near-term actions to stop clean energy projects
The following blog is part of a series examining specific provisions in the Bipartisan American Affordability and Jobs Act (BAAJA). Clean Air Task Force is taking a close look at the bill to identify opportunities to strengthen its provisions, address potential gaps, and improve its effectiveness in meeting the country’s energy needs reliably and affordably.
In a separate post, Clean Air Task Force outlines the status of the administration’s efforts to prevent construction and operation of wind energy projects. The Bipartisan American Affordability and Jobs Act (BAAJA) includes a project certainty title motivated by a desire to prevent similar action against previously-permitted, unfairly denied, or unreasonably delayed projects in the future. We support preventing unjustified actions against clean energy projects, which are counterproductive to efforts to reduce electricity costs and power sector emissions. However, the provisions as currently drafted would be unlikely to do much to stem the administration’s ongoing efforts to stymie wind energy.
BAAJA’s project certainty title
Title IV of BAAJA, which covers project certainty, has three provisions.
- Section 1401 is designed to prevent cancellation of or changes to federal authorizations or permits that have already been issued except under listed circumstances. If an agency takes one of these prohibited actions, the section provides for judicial review where the government bears the burden of demonstrating the listed exception applies. If the government does not carry that burden, the court may order reinstatement of the permit, injunctive relief prohibiting further actions to cancel or modify the permit or authorization, attorneys’ fees, costs associated with delay, and punitive damages.
- Section 1402 is designed to prevent federal agencies from unfairly denying or delaying authorizations or permits for specific types of covered projects, which are listed. It creates a cause of action based on patterns of disparate treatment against a 10-year baseline. This section would also allow injunctive relief, attorneys’ fees, economic damages from denial or delay, and punitive damages.
- Section 1403 is designed to prevent unreasonable delays for federal authorizations or permits by setting a deadline for decisions not subject to the National Environmental Policy Act (NEPA) of one year after an application is submitted, unless the federal government can prove a listed reason for failure to meet that deadline by clear and convincing evidence. This section allows courts to provide injunctive relief and retain jurisdiction to ensure compliance with the order, and it requires courts issue decisions as expeditiously as possible.
Part of Title IV’s logic is that there would be a deterrent effect from the threat of project developers bringing potentially costly lawsuits that would keep an administration from canceling, unfairly denying, or delaying projects. Following that logic, sections 1401 and 1402 would provide developers whose projects have been canceled, unfairly denied, or unreasonably delayed an avenue to seek judicial relief, not only in the form of permit reinstatements and injunctions but also including damages awarded from the Judgment Fund, a permanent, indefinite appropriation that is generally not affected by the annual appropriations process.
Although Title IV depends on payouts from the Judgment Fund as a deterrent, the Trump administration has already spent roughly $3.9 billion from this very account to prevent development of a dozen offshore wind leases. If the idea behind the damages awards is to create a disincentive for this or future administrations to cancel projects to avoid having to pay for those cancelations later, the efficacy of that mechanism is called into question because the current administration has already being willing to spend billions of dollars from the Judgment Fund to prevent wind projects from being built. If this administration is already willing to spend money from that fund voluntarily to prevent wind energy projects, why would it see being forced to spend from it as a reason to refrain from project cancelations or unfair denials in the future?
Other structural features of BAAJA’s permitting certainty title make wind energy projects less likely to take advantage of any benefits its legal process might provide. Most of the successful legal challenges to actions affecting wind projects have been brought by clean energy trade associations or states, with the notable exception of the five lawsuits challenging stop-work orders given to specific offshore wind projects, which were brought by the developers who would now be able to bring cases under section 1401(b)(4)(E) to challenge any further actions to prevent construction or operation with the same judge that issued injunctions. The permitting certainty title does not allow trade associations or states to bring cases under its provisions because they provide only for legal challenges brought by individual project sponsors or holders of federal authorizations (with Section 1402 even specifically prohibiting class actions).1 As a result, each project developer facing a cancellation or delay seeking to use BAAJA’s permitting certainty title to its advantage would have to file its case individually, which may be time consuming, cost intensive, and risky by creating exposure to political retaliation.
Additionally, offshore wind developers may be hesitant even to bring lawsuits for an unfair denial because of the requirement under section 1402(c)(3) that project developers either, absent a showing of impossibility caused in substantial part by the federal government, either complete the type of covered project or repay all remedies obtained under the section. This provision may create an unacceptable level of risk in an industry where factors unrelated to permitting, such as inflation, supply chain delays, and construction vessel availability, can all affect a project’s ability to complete construction. Another risk from this provision is that it does not give a time allowance for project completion or factors that the government must prove before it could seek repayment of remedies. For instance, without stating that the government cannot seek repayment while a project is making progress toward construction, there is a risk that an administration could unfairly seek recovery before a project even has enough time to come online.
The permitting certainty provisions also leave open certain tactics used by this administration. Section 1401, for instance, does not stop the government from seeking to remand already issued authorizations so long as someone has filed a legal challenge, even after manager’s amendment changes covered in a separate post. By contrast, provisions from the House-introduced the CERTAIN Act, not included in BAAJA, would prohibit the federal government from seeking to voluntarily remand or vacate an authorization without the consent of the permit holder. Incorporating this prohibition into BAAJA would prevent the type of filings we have seen in recent weeks, in which the administration has sought to reopen authorizations over developer objections in long-running challenges to offshore wind projects.
Importantly, the permitting certainty title also leaves the Trump administration’s go-to justification on the table: national security. Under section 1401(b)(1)(D), a project may be canceled without running afoul of any of those provisions if necessary to prevent immediate, specific, urgent, substantial, and proximate harm to national security. The manager’s amendment improved this section by restricting any allowable action taken due to national security information to be “narrowly tailored in scope, duration, and degree only so much as is necessary to remedy the specific issue the action is intended to address.” And regarding unreasonable delays, section 1403(d)(2) would allow otherwise prohibited delays in national emergencies where the only available response is to delay the permit.
Although the permitting title adds qualifier terms to the national security rationale, the administration could view these well-intentioned safety valves as continuing opportunities to invoke dubious national security justifications to attack wind energy. As covered in a separate CATF post, the administration has pointed to national security and emergencies as purported and pretextual justifications for its unlawful day one presidential memorandum on offshore wind, stop-work orders for offshore wind projects, the Department of Defense’s (DOD) wind freeze, offshore wind lease buybacks, and a recent Commerce Department determination on offshore wind. The administration may do little more to change its behavior if BAAJA were to pass than to add citations to these new provisions in an attempt to justify continued meddling.
How BAAJA’s NEPA changes eliminate alternate remedies for wind projects
Further complicating matters, BAAJA’s amendments to the National Environmental Policy Act (NEPA) would take away a valuable potential remedy that has been raised to stop the tide of attacks on wind energy projects. Section 1110 of BAAJA would make the only remedy available for violations of NEPA remand without vacatur, and courts would not be able to issue preliminary injunctions against the government for NEPA violations. These provisions would eliminate the ability of courts to give effective relief under NEPA, turning that law into a paper tiger.
Although the idea behind this provision is that minor violations or flyspecking errors would not stop a project from moving forward, in this context it would allow unlawful cancellations to remain in place despite NEPA violations. Several cases challenging the administration’s actions against wind energy have included NEPA claims. Among other allegations, state-led litigation challenging the series of offshore wind lease buybacks have brought claims that they violate NEPA. And although the district court that enjoined multiple Department of the Interior and U.S. Army Corps of Engineers policies that prevented wind and solar projects from being permitted ruled on other grounds, plaintiffs alleged violations of NEPA in their preliminary injunction motion in that case as well. In another example, in the successful challenges to the January 2025 presidential memorandum on offshore wind, plaintiffs alleged violations of NEPA, among other statutes. By preventing meaningful relief under NEPA, BAAJA would eliminate an option to successfully challenge cancelations and delays of clean energy projects in court.
BAAJA modeling likely overstates near-term benefits of project certainty title as drafted
Some current modeling of BAAJA’s effects on carbon emissions assumes that the permitting certainty provisions will ensure projects get built without considering the questions identified here about whether the permitting certainty title will put a halt to the administration’s actions against wind energy projects. One model of BAAJA’s effects shows 60 gigawatts more clean energy capacity by 2028—the remaining two years of this administration—after modeling an assumption that wind capacity additions would face no constraints, but compared to a baseline in the model without BAAJA that includes a 15-gigawatt limit through 2030. The modelers noted their methods reflected the stated intent of the permitting certainty provisions, rather than an analysis of whether they could have other consequences or looking at their efficacy. Other models did not incorporate permitting certainty, given questions about the title’s effects.
These modelers are transparent regarding assumptions they use to project BAAJA’s emissions effects, but the debate over the bill often decontextualizes the output numbers without relaying the modelers’ provided caveats about the limitations of modeling to capture these types of policy provisions. Given uncertainty about whether the permitting certainty title would protect near-term clean energy buildout, any emissions numbers relying on large increases in clean energy deployment over the next two years should be carefully scrutinized.
Changes may improve the efficacy of the permitting certainty title
Unfortunately, there is no easy legislative fix to stop this administration’s sustained obstruction of wind energy projects and other forms of clean energy, but an open amendment process would provides an opportunity for improvement. Consistent with the problems outlined above, if either the Senate or House proceeds with amending BAAJA, the Senate could address some of the issues raised above by:
- Preventing federal agencies from petitioning a court for vacatur or voluntary remand of an authorization unless the project sponsor consents in writing to such a petition (as in section 2(d)(3) of the CERTAIN Act).
- Eliminating section 1402’s prohibition on class actions and ensuring that trade associations have standing to bring suit collectively for affected member projects under sections 1401 and 1402.
- Eliminate section 1402(c)(3), which is the requirement for completion of a project or repayment of remedies, given the possibility of factors outside the applicant’s control that may lead to project cancellation. The requirement in section 1402(c)(2)(B) in the manager’s amendment that applicants must demonstrate technical and financial ability to construct the project and any other projects for which the applicant has applied for federal approval should be sufficient to prevent frivolous suits.
- To avoid open-ended use of national security justifications, require that the agency must promptly file its justification regarding new national security information or of a national emergency with the court within 30 days of a lawsuit being brought under section 1401 or 1403. (Any classified information would be filed under seal or in camera under section 1401(b)(4)(C)). Requiring the agency to file its national security or emergency justification promptly would allow an applicant who has faced a cancelation or unreasonable delay to timely seek a preliminary injunction, even faster than the 120 days for a decision set in section 1403(f).
- Strike the proposed section 111(c)(5) of NEPA (in section 1110 of BAAJA). A possible substitute would be to require a court, before vacating an environmental document or authorization or issuing an injunction for a violation of NEPA, to consider (1) the seriousness of the order’s deficiencies and (2) the disruptive consequences of an interim change that may itself be changed. These factors come from a leading appellate court case, Allied-Signal, Inc. v. U.S. Nuclear Regulatory Commission,2 and they are regularly applied by district and appellate courts to determine if vacatur is the appropriate remedy in administrative law cases. By codifying and requiring this analysis, the concern that litigation over minor NEPA errors would prevent construction of projects would be addressed without making NEPA a paper tiger and preventing its use to counter unlawful project cancellations and delays. There is no need to restrict a court’s analysis for preliminary injunctions, which must already consider the balance of the equities and whether an injunction is in the public interest.3
Conclusion
Preventing the abuse of the federal energy permitting regime is a broadly shared goal, but it is not easy to achieve. BAAJA’s proposed permit certainty changes occur even as courts have already found the administration is failing to follow the law on permitting wind projects, and that it still refuses to do so. Recent filings in the challenge to the DOD’s wind freeze both allege the agency is continuing its review freeze using new mechanisms and also detail project-specific harms from those delays despite the court having entered an injunction. As plaintiffs in that case asked, if DOD “can quickly approve the projects with mitigation agreements awaiting countersignature in a deal on permitting reform legislation, it’s unclear why they can’t quickly approve the projects to comply with the Court’s order staying the freeze.” An assessment of the permitting certainty title’s immediate effects must consider the track record of the administration’s noncompliance with its existing legal obligations.
Even as the Senate voted on a motion to proceed on BAAJA, the President stated he would “not approve wind turbines because wind turbines are a major loser.” As others have noted, in an administration that does not mind losing in court or paying out of the Judgment Fund to stop clean energy, the permitting certainty title may have little deterrent effect. Members of Congress should carefully weigh the risks to achievement of the purported emissions benefits of the permitting certainty title when deciding whether to support the overall legislative package. They should use the amendment process to reduce the inadvertent risks the title presents, and, as outlined above, foreclose some of the clear barriers to protecting wind energy projects.
1 The manager’s amendment added a savings clause to section 1401 indicating that nothing in it limits or supersedes any equitable authority of courts to grant temporary or injunctive relief. That provision at least provides certainty that the creation of this new cause of action would not be exclusive, and the successful legal strategies that have already pushed back against delays and cancellations could continue, with the exception of claims based on violations of the National Environmental Policy Act due to separate provisions discussed later in this post.
2 988 F. F.2d 146, 151 (D.C. Cir. 1993)
3 See Winter v. United States, 555 U.S. 7, 20 (2008).
Related posts:
- Getting interconnection reform right: How Congress can strengthen BAAJA’s Consolidated Planning Process
- Revisions to BAAJA permitting certainty provisions fall short of addressing risks
- How Congress could revise BAAJA to lock in progress from Order 1920 and strengthen interregional transmission planning
