University of San Diego

San Diego Journal of Climate & Energy Law

Library of Congress Authority File


This research is heading toward two further sets of questions, which may or may not be reached in the current phase of the work.

First, if certain permits or reviews can be dispensed with for certain projects, and there are few negative collateral consequences, do we need these permits and reviews at all? Every proposed project is important to someone, and arguments can almost always be mounted that a given kind of project warrants special treatment. The present inquiry may help identify some requirements that are obsolete and should not apply to anyone, and it may also help identify others that are more important than previously thought—because adverse effects of having done without them were found—and for which few if any exemptions should ever be granted.

Second, are expedited procedures enough to build the number of renewable energy projects that we need in order to reach our greenhouse gas reduction targets, or do we need to provide substantive relief from environmental permits? Even if we speed up the processes as much as we can while still affording at least a modicum of due process to all concerned, can we review these projects and give them the approvals they need under existing law fast enough to build all the required wind, solar and other projects? Or do we need to move beyond process and start cutting out some of the substantive requirements? It is quite possible that there simply are not enough sites in the U.S. that meet all the currently applicable requirements. Can we continue to hold up a wind project for years because it would be bad for an endangered bat species, or block a beautiful view of the seashore, if the cumulative effect of all these little interferences is to prevent us from moderating climate change and protecting species, landscapes and people all over the world? Does something have to give, and if so, what is it, and who decides?

Or is what is really holding back renewable energy the absence of a price on the emissions of carbon, and the long-standing favorable treatment that fossil fuel sources enjoy under environmental law, tax law, and many other bodies of law? Fossil fuels can continue to generate externalities with impunity, disadvantaging the renewables that do not benefit from their positive environmental features. A focus on facility approval procedures addresses one important set of problems but should not obscure possibly more important ones.