Poisoning the well

Yesterday, the Trump Administration announced that it was “pausing” construction for the five major offshore wind projects on the East Coast, based on “national security” grounds – because of the possibility that wind turbines can interfere with radar operations.

This announcement is, to say the least, not helpful for current permitting reform discussions.  It emphasizes further that any permitting reform deal has to ensure that the Administration both (a) does not continue to use any tool at its disposal to stop clean energy projects, and (b) permits in good faith new projects.  But this announcement just makes that deal much, much harder, for several reasons.

First, Democrats have much less of a reason to do a permitting deal, since at the moment it appears that any such deal will just simply allow more fossil fuel infrastructure without any benefits for clean energy projects, given how this Administration continues to operate.  So it is no surprise that leading Democrats in the Senate stated that they would not support any further permitting reform legislation until this pause is undone.

But the problem is really much worse than that.  The specifics of this pause, and the projects targeted, make clear that any deal with the Administration likely isn’t worth the paper (or electrons) it is printed on.  The “national security” rationale relied upon by the Administration here is the exact same one just rejected by a court in a lawsuit over a pause for one of these wind projects.  And one of the other projects just received permits from the Army Corps.  Both of those facts give a sense of the likelihood that the concerns raised here are pretextual.

In addition, one of these projects (Empire Wind) was the subject of an implicit deal between the Trump Administration and New York state, in which the Administration had lifted a previous pause on Empire Wind in return for New York state granting Clean Water Act certification for a natural gas pipeline.  New York has granted that certification, and now the Trump Administration appears to be reneging on the deal.  (Indeed, ironically it is the Trump Administration that took credit for the deal, with the New York Governor rejecting any quid pro quo.)

Which means that the Democrats (and really any actor looking for a deal here) should not put any trust into any agreement that this Administration enters into.  The Administration’s actions make clear that they do not believe any negotiation or transaction constrains them – all that matters for them is whether they believe they have the power to – legally or not – get what they want.

The pause also highlights the inadequacies of the permit certainty provisions that were part of the SPEED Act, which just went through those House.  Those provisions are intended to prevent precisely what the Administration did here – but the Administration’s “national security” rationale falls within the exceptions for those permit certainty provisions.  In other words, the SPEED Act, even if enacted, probably wouldn’t have stopped this.

And indeed, last minute compromises by Rep. Westerman (R-Ark), who has been the principal advocate for the SPEED Act, may well have emboldened the Administration here.  It may not be a coincidence that this “pause” was announced just a few days after Westerman, in order to get some right-wing Republicans who oppose offshore wind to support the SPEED Act, supported an amendment that exempts from the Act’s permit certainty provisions all Administration permit revocations up to the day the Act is enacted (a date that is increasingly looking hypothetical).  Westerman gave the Administration an inch, and it decided to take a mile.

So the upshot is: The Administration stuck a thumb in the eye of permitting reform advocates, basically asserting that it will continue to assert its prerogatives to stop projects it does not want, and that any deal with it is unenforceable and liable to being revoked at any time.  That does not bode well for negotiations.