The Biden administration has had a number of impressive legislative achievements this year, like the amusingly named Inflation Reduction Act (IRA) that Congress passed over the summer, which was the first major bill to seriously confront climate change. In return for West Virginia Senator Joe Manchin’s vote, the administration promised to pass a follow-on bill that would provide comprehensive reform of the permitting process. This took the form of a proposed Energy Independence and Security Act of 2022.
This streamlining is extremely important. Currently, states like Texas and Oklahoma are major producers of alternative energy (just try driving along I-40 through the Texas panhandle and you’ll see mile after mile of wind farms). However, demand for clean electricity is highest in coastal states like California, and there is not enough transmission capacity to move the electricity from one place to the other. If the United States is to meet its ambitious climate goals, it will need to get these and other projects going quickly. The new bill would have accelerated the construction of nearly $700 of new wind and solar projects.
Nonetheless, the Energy Independence and Security Act failed. It was killed by a coalition of progressive Democrats, who didn’t like the fact that it was promoted by Sen. Manchin and included completion of the Mountain Valley Pipeline in West Virginia. But a number of Republicans voted against it as well: they didn’t like the bill’s alleged expansion of the federal government’s power to promote energy projects, and simply wanted to deny the Biden administration another win.
There has been a lot of recent attention paid to the National Environmental Protection Act, or NEPA, that was passed back in 1970. This bill set the broad framework for assessing environmental impacts of new projects. This framework provides absolutely necessary scrutiny to infrastructure projects that could have major unintended effects on the environment, communities, and the like. It requires reviews of projects depending on their size; the largest have to go through permitting processes that result in Environment Impact Assessments (EIAs). The projects have to go to a large number of federal agencies for comment on how they would affect matters in their domain. These reviews are done serially, and can take years to complete; the final EIAs often run to thousands of pages.
The Energy Independence and Security Act would have shortened these procedures by setting a two-year time limit for reviews, designated a lead agency to manage the review, and shortened the statute of limitations under which the project could be sued from two years to 150 days.
The Democrats voting against the bill had two primary objections. The first was the explicit inclusion of the Mountain Valley Pipeline in the act, and the provisions to facilitate its completion. Despite the positive impacts of faster completion of transmission line projects, they were dead-set against any fast-tracking of fossil fuel projects including natural gas facilities that would replace coal-fired plants.
But there was objection as well to the effort to fast-track permitting in the name of community participation. As quoted by Jerusalem Demsas in The Atlantic, one environmental activist argued that “Permitting reform ‘is not speeding up projects as much as taking away the ability for all communities, but especially environmental-justice communities, from self-determination and using the courts as a way to get relief if a project is found to be harmful’.”
There is a fundamental issue of democratic theory at play here. The cutting edge of that theory for many years has been the idea that participation through formal institutions like elections or the legal system is not enough. There have to be other mechanisms by which citizens can participate in democratic deliberation, through mandated consultations or the ability to comment on proposed legislation. Requirements for consultation go all the way back to the 1946 Administrative Procedure Act, which mandated a notice-and-comment period following any administrative rule change, that would allow any citizen to respond to the proposal, requiring the agency to take comments into account. Public participation is integral to subsequent statutes like NEPA or the California Environmental Quality Act (CEQA), about which I’ve written before. The need for active citizen participation underlies other institutions on a state level, like California’s provisions for recalls, referenda, and initiatives that provide alternative avenues for citizen input beyond normal electoral and legal channels.
One can argue that active citizen participation is critical to both improving legislation and to getting buy-in for difficult decisions. Dictatorships like China and Russia do not solicit citizen participation. But as my Stanford colleague Bruce Cain has argued in this 2014 book Democracy More or Less, there is a hidden flaw in the assumptions underlying the indefinite expansion of participatory democracy, which is that ordinary people will have the time, willingness, and knowledge to participate meaningfully in a complex decision-making process. The vast majority of people do not, with the result that participatory processes empower activist groups or lobbyists with a direct stake in the decision at hand. These groups do not necessarily represent “the people,” and tend to produce polarized standoffs where, for example, energy industry lobbyists face off against environmental advocates. Thus efforts to increase democratic participation may have the effect of leading to less democratic outcomes.
In the case of opposition to the Energy Independence and Security Act, environmental activist groups were not necessarily supporting environmental ends. Building the Mountain Valley Pipeline might add to carbon emissions, but so would not building transmission lines for alternative energy. “Participation” at this level potentially comes at a very high economic and social cost.
The failure of this bill tells you a lot about the current state of American democracy. Partisan polarization led a number of conservative Republicans to vote against it, with some members mirror-imaging the Democrats’ fears that local communities in their red districts might be adversely affected. But they also simply didn’t want Joe Biden to notch up another legislative success, or reward Joe Manchin for his support of the IRA.
But even without polarization, the bill’s failure indicates how unreformable the American system has become. We have a big collective action problem: society has a large interest in mitigating and adapting to climate change, but cannot find a path to acting on it due to the way that institutions are structured. When a political system with many checks and balances combines with partisan polarization, the results are what I labeled “vetocracy,” and the bottom-line result is inaction on the most pressing issues of the day.
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