We must end the litigation doom loop

It's time for Congress to impose a time limit on injunctions.

Arnab Datta is the Director of Infrastructure Policy at IFP, and previously worked for Senator Michael Bennet and on the Judiciary Committee in the Senate.

James Coleman is a Professor of Law at Southern Methodist University and a non-resident senior fellow at the American Enterprise Institute.

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A federal judge recently issued an injunction to block the approval of a powerline that would have connected 161 renewable energy projects to the electric grid, providing more clean energy to consumers in Minnesota, Iowa, and Wisconsin. This is the second time this project, known as the Cardinal-Hickory transmission line, has been blocked by an injunction in the past five years. 

The project’s legal travails illustrate a growing problem for our nation’s clean energy transition: an endless cycle of agency review and litigation holds up clean energy projects. This “litigation doom loop” not only halts projects in court, but also makes it difficult to convince investors to hazard the trillions of dollars necessary to build new infrastructure for a clean energy economy. To free new infrastructure from this paralyzing cycle of endless review, Congress must take bold action.

Unfortunately, most of its current proposals are far too timid to significantly speed up clean energy deployment.

The Cardinal-Hickory transmission line exemplifies the litigation doom loop. After completing the strictest, most comprehensive form of environmental review between 2016 and 2020, the line was approved jointly by four federal agencies. But after outside groups sued under the National Environmental Policy Act, a judge enjoined the approval and sent it back to the agencies for further review. Now, after a new plan was devised that would increase land for conservation, the project has again been enjoined. After thousands of pages, years, and untold labor, it’s clear that no level of review will be sufficient for the groups suing. The delay has real costs — each year could add 150,000 to 2 million tons of carbon. Cardinal-Hickory is hardly the only project that has been stuck in the litigation doom loop: The Cape Wind project would have provided clean power to over 200,000 homes, but was stuck in litigation for more than 15 years before being shuttered. 

This is an untenable situation. The Cardinal-Hickory line has essentially no end in sight — developers might turn back for another round of review, but what confidence will they have that good faith mitigations will be sufficient? Even worse, how might other developers view this episode when making their own investment decisions?

The transition to clean energy depends on quickly building hundreds of projects like the Cardinal-Hickory transmission line. The generational investments in the Inflation Reduction Act and the bipartisan infrastructure law were intended to support that goal. But a central challenge of the energy transition is that while traditional fuels such as oil and coal are easy to transport by existing infrastructure including roads, rail, and waterways, solar and wind power can only reach consumers if we build out new interstate power lines. Newer clean energy technologies like carbon capture and hydrogen also depend on new pipelines. Fundamentally, the energy transition depends on convincing investors to risk trillions of dollars on new, long-distance clean energy infrastructure, and ensuring it receives prompt permission to build.

Clean energy projects are the very projects most likely to get stuck in the litigation doom loop. A recent Stanford study found that clean energy projects are disproportionately subject to the strictest level of review. These reviews are also litigated at higher rates — 62% of the projects currently pending the strictest review are clean energy projects. The best emissions modelers show that our emissions reductions goals are not possible without permitting reform.

The good news? Congress is interested in reforming the broken permitting process. It’s on Senator Carper’s (D-DE) bucket list before he retires next year, and Senators Manchin (D-WV) and Barrasso (R-WY) are actively working on a bill. Unfortunately, Congress has thus far shied away from addressing the crucial roadblock illustrated by the Cardinal-Hickory saga: the litigation doom loop. 

Congress has taken initial steps to speed up the federal government’s environmental reviews and is considering steps to speed up lawsuit filing, such as shorter statutes of limitation to challenge new projects. But none of those steps would prevent courts from holding up projects through years of litigation and repeated reviews. Investors will be less willing to risk millions for each clean energy project when they know that, no matter how much environmental review these clean energy projects undergo, courts can indefinitely prevent them from being built.

That is why we’re proposing a time limit on injunctions. Under our proposal, after four years of litigation and review, courts could no longer prevent a project from beginning construction. This solution would pair nicely with the two-year deadlines imposed on agencies to finish review in the Fiscal Responsibility Act. If the courts believe more environmental review is necessary, they could order the government to perform it, but they could no longer paralyze new energy infrastructure construction.