The Worst Kind of Permitting Reform

Marin Audubon Society v. FAA knocked down regulations and replaced them with nothing

Nov 18, 2024

At work, I’ve been contributing to a grid modernization project pulling on a federal grant—resiliency, digitization, gib monies Uncle Sam, as one does. The kicker is the funding source: The American Rescue Plan Act of 2021.

We’re coming on 2025…and there’s still unspent ARPA money.

In related news, the DC Court of Appeals unilaterally struck down forty years of permitting doctrine.

Let’s talk Marin Audubon Society v. FAA.

WARNING: I am not a lawyer. I’m an energy nerd with a Claude Pro subscription. Do not take this as legal advice.

Some History on the Council of Environmental Quality

The Council of Environmental Quality (CEQ) was established in 1969 by the National Environmental Policy Act (NEPA). The CEQ started with a simple mandate: hand the President at least one report per year on the status and condition of the American environment—urban to rural, desert to wetland, mountain to sea. The report would also review federal, state, and local environmental policies and provide the President with recommendations for improvement. Within this mandate, the CEQ has leeway to hire staff, run studies, and work with any public agency as needed. They now release…more than one report per year.

In 1970, President Richard Nixon figured that if he’s going to keep a cadre of environmental policy wonks on retainer, he might as well put them to use. If that annual report already contains cross-agency recommendations on regulatory policy, who not have the CEQ directly hand those recommendations to the regulatory agencies that would implement them? Presumably, those recommendations would be pretty good…

In 1977, President Jimmy Carter expanded on that thought: if the CEQ already writes recommendations to regulatory agencies, and if those recommendations are pretty good, why not simply make them write the regulations? They’re already chatting with all the agencies, so the CEQ has the birds-eye view. Presumably, their regulations would be pretty good…

Since then, Presidents from both parties figured this arrangement was reasonable enough.

The DC Circuit Court of Appeals disagrees. They ruled that the CEQ’s regulations are ultra vires—beyond its legal authority. The only reason the CEQ writes regulations is because an Executive Order says so—but that’s not a law. Congress didn’t give the CEQ this power. For this reason, the court doesn’t think anything the CEQ writes is binding—the regs have no clothes.

If you’re rereading the name of the case, this ruling has nothing to do with birds or planes. The actual issue was whether adjusting permits for an airplane tour service required public comment. None of the parties in this case questioned the CEQ’s regulatory authority.

This is, from what I understand, a left-field judicial opinion. Even one of the judges on the court dissented from this reasoning. But the fate of this ruling will affect cases like City of Port Isabel v FERC, which deals with the environmental review of two liquified natural gas (LNG) export terminals, and Seven County Infrastructure Coalition v Eagle County, Colorado, which will assess the review process for a rail line connecting oil infrastructure.

Screw the birds—this case is about globally-relevant energy infrastructure. This legal battle, regardless of outcome, will change 10-year forecasts of global energy prices.

One Hand, and the Other

I’m of two minds here. Part of the Marin Audubon ruling details the regulatory mess that preceded this case. Infighting, long permitting delays in multiple parks, the frustration of needing to rerun your environmental review because you’re running fewer planes than you said you would.

I feel the same frustration when thinking about the endless legal battles plaguing the New England Clean Energy Connect project, a 1,200 MW transmission line that would pull hydroelectric electricity into New England.

I feel it when thinking about Cape Wind, an offshore wind project that died after a decade of regulatory battles.

I feel it when I have to fill out yet another janky Excel template for yet another federal form no wonder there’s still unspent ARPA money if it requires all this paperwork.

But two judges just knocked down an established regulatory apparatus and replaced it with nothing. And with President Trump returning with a more focused executive team and more loyal legislature, I suspect we’ll see a lot more regulatory apparatus get knocked down and replaced with nothing.

But what if we need new regs? Is there a plan for reforming permitting and environmental review beyond blanket repeals, toothless “czars,” and legal battles that can only refine and reject?

We Can’t Just Knock Things Down

I was quietly rooting for Joe Manchin’s permitting reform bill, even without reading it. This particular bill is probably dead now, but I get the sense that permitting reform is building some bipartisan momentum—America First types seem on board with industrial buildout, and the YIMBY movement seems to have expanded from housing and clean energy to chip fabs.

But we haven’t yet hit the point where disparate political factions are making the strange bedfellows necessary to pass real change. And we need to get there quick—New England won’t meet its clean energy or reliability goals without new transmission lines and offshore wind projects…and don’t even get me started on nuclear.

Maybe Marin Audubon Society v. FAA is a start. Or maybe it’ll get nuked in an en banc struggle session.

But the energy sector needs new, better regulations—we need federal coordination, federal technical assistance, federal funding to keep the lights on through 2030, much less decarbonize the grid.

Anyone got a plan for that?

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