Using State Policy to Neutralize Green Infrastructure Project-Ending Litigation and Strategically Advance Community Engagement

In May 2023, Governor Gavin Newsome publicly announced a California Environmental Quality Act (“CEQA”) reform bill (SB 149), which he signed into law on July 10, 2023. From the moment this was announced, the proposal was barraged by pushback, not from climate negative industry, but from major environmental groups, including the National Resource Defense Council and the Sierra Club, among others. Why is this? One reason is that permit reform has historically been championed by the fossil fuel industry as a method for cutting red tape to make resource exploration faster, easier, and less costly. Even so, the ratio of new fossil fuel infrastructure projects and new clean energy projects has shifted, and, now, new clean energy projects make up the larger share. As a result of litigation against permitting when fossil fuel projects held the far greater share in decades passed, today, permitting has been the nail in the coffin for crucial environmental infrastructure projects. Why is there still so much push back from within the environmental community on this particular solution to the climate crisis? After a brief orientation of the issues that supply-side liberalism is poised to resolve, this article will, first, review recently published literature on this topic through an environmental justice lens and assess existing recommendations for permit reform. Then, this article will explore litigation regarding transmission line buildout in Arkansas and offshore wind buildout in New Jersey - a state with ambitious climate and, specifically, offshore wind goals but without any policies which directly deter litigants who wish to challenge these projects. Finally, this article will use Governor Newsom’s reform bill and its objections as a case study for litigation limitations as one possible solution to the phenomenon of environmental groups’ litigations that are in direct conflict with permit reform designed to accelerate the clean energy transition. Ultimately, this article argues that in order for permit reform to be at all meaningful, it must necessarily include litigation limitation provisions which are keenly designed to magnify voices within underserved community groups and minimize blockage from “Not In My Backyard” (“NIMBY”) groups. If these kinds of provisions are not included, the permitting reforms will risk the very point of their design - expedited buildout of green energy infrastructure - because of protracted and costly litigation from wealthy litigants that too often sound death knolls for key clean energy infrastructure projects.