The Abundance Agenda: Seizing The Opportunity For Bipartisan Progress

"The question for the environmental law profession over the coming decades, in my view, is not what will you stop but what will you build?" This was the charge recently proffered by Ted Nordhaus, President of the Breakthrough Institute, to the future generation of environmental lawyers at Lewis and Clark Law School. "A second key question," he continued, is "what parts of the enormous environmental regulatory edifice that we have built up in this country are you ready to get rid of so that we can build that world?"

According to the proponents of the "Abundance" movement—the rapidly growing, bipartisan collection of thinkers and policymakers who believe it is time to think big and not be afraid of change—environmental law is at an inflection point. A perfect topic for the inaugural column of the newly digitized Environmental Forum, which is itself at an inflection point, too. As a Forum columnist who has been exploring similar themes over the last decade, I can't think of a better venue for seizing this rare opportunity to develop common ground solutions.

A rising chorus of experts on both sides of the aisle see our system of environmental review and permitting as dysfunctional and inadequate for today's challenges. In the oft-quoted words of John Podesta, senior advisor to three Democratic U.S. Presidents, "We got so good at stopping projects that we forgot how to build things in America." And our antiquated legal frameworks are a root cause.

Indeed, our expertise at stopping things infested the interpretation of our principal federal environmental statute devised to govern how things would be built. "Congress did not design NEPA for judges to hamstring new infrastructure and construction projects," the U.S. Supreme Court recently reminded us. Yet, after decades of regulatory buildup and inadequate reforms, many believe that is exactly what it does.

Beyond any delays from the permitting process itself, many larger projects (including clean energy projects) are impacted by ultimately unsuccessful, but still complex and protracted litigation after agencies have approved permits. A study of "the most contentious NEPA challenges" to clean energy projects between 2013 and 2022, for example, found that lawsuits delayed projects by nearly four years on average, with upwards of 70% of such suits ultimately losing in court but still imposing major timing and cost impacts. And a multi-year research study on utility-scale renewables projects by the think tank Resources for the Future reports that nearly one third of solar projects and about one half of wind projects completing NEPA environmental impact statements (EIS) on federal land faced court challenges and resulting delays. The study further found that "court challenges in both federal and state courts caused or contributed to the termination of three projects, and six additional projects experienced significant delays as developers awaited court appeal decisions." Similarly, an empirical analysis by the R Street Institute concluded, "large energy projects requiring an EIS are the most significantly impacted by permitting delays and that more of these projects were related to clean energy, transmission or conservation than to fossil fuel."

What's the upshot? As the Breakthrough Institute observes, "A true reboot is needed—one that ensures certainty for agencies and courts, amplifies public voice without creating a veto, and uses AI and modern IT tools to streamline reviews and improve accountability."

Buoyed by the best-selling book Abundance, co-authored by progressive columnist Ezra Klein, the so-called Abundance Agenda continues to gain momentum. As a life-long Democrat, Klein adds credibility with piercing self-reflection: "Liberals spent decades working, at every level of government and society, to make it harder to build recklessly. . . , even if it meant the final product was astonishingly expensive, or slow to construct, or perhaps never found its way to completion at all." To "unmake this machine will be painful," he acknowledges. "It will require questioning treasured nostrums and splitting old alliances."

The Abundance Agenda has no single definition. Steven Teles of the Niskanen Center identifies at least six competing and sometimes conflicting strains, from "Red Plenty" and "Dark Abundance" at the extremes, to "Liberal Abundance" and "Abundance Dynamism" in the center left and right.

What do these disparate thinkers have in common? "At its base, Abundance is best understood as having one central aspiration that requires tackling two interlocking challenges," explains Teles. "The aspiration is to escape from a political economy defined by artificial scarcity, to create a world in which we solve problems primarily by unlocking supply. . . . an obsession with reducing zero-sum conflicts by creating more"—from energy and housing to infrastructure and schools. The second challenge, he says, "is helping the government regain its ability to manage complex tasks competently and decisively."

One of the leading thinkers in this area is Nick Bagley, a University of Michigan Law Professor and former advisor to Michigan Governor Gretchen Whitmer. He emphasizes that while the abundance movement aims to be "a big political tent," what its adherents share is "a commitment to the view that American society today is marred by artificial scarcity." And to breakout of this rut, we need to escape what he calls our "procedure fetish." "The ubiquity of court challenges, the artificial rigors of notice-and-comment rulemaking, zealous environmental review, pre-enforcement review of agency rules ... the list goes on and on. Collectively, these procedures frustrate the very government action that progressives demand to address the urgent problems that now confront us."

In "Beyond Binary Debates: How an 'Abundance' Framing Can Restore Public Trust and Guide Climate Solutions," the Federation of American Scientists suggests that we "regard 'abundance' less as a prescriptive policy agenda than as a frame from which to ask and answer questions at the heart of rebuilding public trust in government. Bagley agrees: "I think we need to stop thinking about how best we can cripple government because we're so afraid of it and start thinking about how we can make government effective, and once it is effective, keep it in proper bounds."

These ideas are no longer confined to think tanks and op-eds. They are increasingly shaping concrete legislative proposals. Momentum is building on Capitol Hill to address these problems by modernizing our environmental review and permitting system, and in recent months we have seen a surge in new bills promising to do just that. The proposed ePermit Act, for example, would harness the power of artificial intelligence to modernize data sharing and digitize environmental reviews.

More ambitious is the SPEED Act, co-sponsored by Reps. Bruce Westerman (R-Ark.) and Jared Golden (D-Me.), which recently passed the U.S. House of Representatives with the support of 11 Democrats. Also known as The Standardizing Permitting and Expediting Economic Development Act, it amends NEPA to address lengthy timelines and intractable litigation. It limits the scope of environmental reviews and clarifies when NEPA is triggered. It rationalizes and streamlines judicial review. And it attempts to add certainty to permitting projects by limiting the scope of a presidential administration's ability to revoke a permit.

But the SPEED Act hit significant speed bumps when it was amended to carve out offshore wind energy projects from these protections. Previously a proponent to the bill, Rep. Scott Peters (D-Cal.) opposed the bill with this last-minute change, pledging to "go to the Senate and try to get them to fix it." Rep. Josh Harder (D-Cal.), who co-chairs the bipartisan Build America caucus, also voiced his opposition because the "partisan changes undermined permit certainty and the opportunity to build all types of energy." The American Clean Power Association also pulled its support.

Meanwhile, not everyone is on board with the need for reform. For example, a recent Environmental Law Reporter article, "Dispelling The Myths of Permitting Reform and Identifying Effective Pathways Forward," co-authored by long time DOJ environmental lawyer Andrew Mergen, now of Harvard Law School, disputes that environmental permitting is the primary sources of project delays and failures. He and his co-authors assert that most renewable projects and transmission lines do not require federal environmental review or permits and benefit from existing streamlining mechanisms such as FAST-41. Mergen and his colleagues seek "to shift the debate over permitting reform from the presumption that deregulation is desirable" toward policies that address limited agency budgets, insufficient staff, inconsistent regional policies, antiquated technology, and "the growing patchwork of state and local regulations" that empowers local opposition and fuels "gridlock."

Other skeptics agree with the need for change but disagree with reform that promotes an "all of the above" energy strategy. Megan Gibson of the Southern Environmental Law Center, for example, in her paper "Reclaiming Energy Abundance," contends that "[t]he emerging concept of 'energy abundance' must be ... premised on sound governance, robust community protections, and unwavering acceptance of the reality of climate change."

Many proponents of permitting reform, on the other hand, would argue that picking energy winners and losers is not the role of environmental review and permitting regimes. Federal energy policy, they say, should be decided by Congress and the Executive Branch. Once direction is set, an obsession with process and litigation should not stand in the way of building things efficiently and effectively.

Where do we go from here? "Forward thinking environmental lawyers," Nordhaus exhorted his Lewis & Clark audience, "should be thinking now about how they will build a new federal environmental regulatory regime largely from scratch, one that . . . supports innovation and follows technological change rather than attempting to force it, and that builds instead of restricts."

What would this look like in practice? Can success be measured in terms of projects built, infrastructure created, and progress made—without sacrificing the values of people and communities?

In the search for answers, environmental practitioners bring a lot to the table. Perhaps more than any other group, they know how to navigate the phalanx of environmental laws and procedures their clients must comply with, and to forge effective strategies for stakeholder and community engagement. They have experienced the obstacles and developed solutions and workarounds. Institutions like the Environmental Law Institute, with its vast storehouse of practical environmental law experience, are ideal places to test ideas and seize the moment to devise pragmatic solutions that can attract support across the political spectrum—solutions that neither side may find perfect but are "close enough for jazz." In the words of Charlie "Bird" Parker, "Now's the time."

Preiously published in Environmental Law Institute.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.