Faculty Bibliography

“We need to make it easier to build electricity transmission lines.” This plea came recently not from an electric utility executive but from Senator Sheldon Whitehouse, one of the Senate’s champions of progressive climate change policy. His concern is that the massive scale of new climate infrastructure urgently needed to meet our nation’s greenhouse gas emissions reduction policy goals will face a substantial obstacle in the form of existing federal, state, and local environmental laws. A small but growing chorus of politicians and commentators with impeccable green credentials agrees that reform of that system will be needed. But how? How can environmental law be reformed to facilitate building climate infrastructure faster without unduly sacrificing its core progressive goals of environmental conservation, distributional equity, and public participation? That hard question defines what this Article describes as the Greens’ Dilemma, and there are no easy answers. We take the position in this Article that the unprecedented scale and urgency of required climate infrastructure requires reconsidering the “Grand Bargain” of the 1970s that established stronger environmental protection in exchange for more challenging infrastructure development. Green interests, however, largely remain resistant even to opening that discussion. As a result, with few exceptions, reform proposals thus far have amounted to modest streamlining “tweaks” compared to what we argue will be needed to accelerate climate infrastructure sufficiently to achieve national climate policy goals. To move beyond tweaking to a “New Grand Bargain,” we explore how to assess the trade-off between speed to develop and build climate infrastructure, on the one hand, and ensuring adequate conservation, distributional equity, and public participation on the other. We outline how a new regime would leverage streamlining methods more comprehensively and, ultimately, more aggressively than has been proposed thus far, including through federal preemption, centralizing federal authority, establishing strict timelines, and providing more comprehensive and transparent information sources and access. The Greens’ Dilemma is real. The trade-offs inherent between building climate infrastructure quickly enough to achieve national climate policy goals versus ensuring strong conservation, equity, and participation goals are difficult. The time for serious debate is now. This is the first law review article to lay the foundation for that emerging national conversation.

Owners choose the rule that steers us to do what they want. But we can pick differently. This is true not just for airplane seats, but also for battles over digital privacy, climate change, and wealth inequality.