A guest post on the Bipartisan American Affordability and Jobs Act (BAAJA) by Erik Schlenker-Goodrich, Executive Director of the Western Environmental Law Center.

There’s a fundamental question regarding the directionality of climate policy: do we cede control to capital and markets or do we nest capital and markets within a framework of strong, modernized federal governance?

BAAJA, the Lee-Capito-Heinrich-Whitehouse industrial fast-tracking deal, is firmly on the side of market dominance. The bill confers a huge set of concessions to developers of all stripes, including new litigation tools, while attempting to defang public-interest organizations, the public in general, and hobble the next President of the United States.

This is precisely what Section 1402 of the bill is all about, which locks in an “all of the above” energy mix, dominated by fossil fuels. It’s touted as a mechanism to counter Trump’s war on renewables—and it may have some marginal benefits over the remainder of his presidency—but I guarantee you that the fossil-fuel industry will weaponize it against the next president, bringing litigation in federal courts with Trump appointees. If a new president says “We’re going to transition from fossil fuels to renewables,” and then executes that statement through executive orders, regulatory actions, and the like, my bet is that fossil fuels or other interests will challenge that as evidence of “disparate treatment” and prima facie evidence, per the bill, of “an intentional course of action undertaken by the Federal Government to create such a pattern.”

It kinda freaks me out, actually. And I’m not the only one. As Harvard Law Professor Jody Freeman concluded, “a close read suggests it's structurally designed to lock in and subsidize natural gas and other fossil projects over cleaner renewables for years to come, using the courts and taxpayer dollars.” I concur.

I find it interesting that comprehensive modeling hasn’t been released and the bill proponents are wobbly about asserting that this will in fact induce a net reduction of carbon pollution or not.¹ There is a fundamental distinction between renewables displacing (some) new generation, and renewables eroding the bedrock of fossil fuel generation. Especially given that, even assuming the electricity sector decarbonizes fast and plateaus instead of growing exponentially, we need to prevent those fossil fuels from accessing new markets—think petrochemicals, plastics—to deal with the climate and other global sustainability crises.

This bill would lock in a “tech neutral” or “all of the above” approach that empowers fossil fuels to further entrench themselves and use the power of incumbency to skew downstream politics. They’ve done this repeatedly in my home state of New Mexico, as they have done for years across the U.S., with carbon-capture and fossil-gas-hydrogen boondoggles. In so doing, we might see this bill help renewables displace some fossil generation—although the AI tech “speed to power” ethos is driving hyperscalers to methane-gas-powered generation—but even in that rosy scenario, it would induce a plateau of high emissions with a far more shallow downward pitch than we need. Worse, it erects a massive wall against the prospect of a future president’s power to implement robust energy transition strategies that respect, rather than bulldoze over, people and place.

By taking power from the public and government and ceding that to tech, energy, finance interests and the market, the permitting deal also ignores complicated dynamics that arise when both fossil-fuel and renewables systems coexist. The excellent work that Emily Grubert, Sara Hastings-Simon, and Josh Lappen have done on this dynamic is eye opening, providing an independent argument that supply-side fossil fuel production decline must be managed, not left to market forces.

When I step back from the details of this bill, it’s hard to escape the conclusion that the urgency is engineered. Corporate-friendly Democrats have aligned with Republicans to steamroll progressive Democrats and, to boot, target environmental organizations. As Punchbowl’s Josh Siegel reported, Democrats and Republicans were getting close to agreement on the transmission provisions.

Which raises the question: Why the hell have Democrats surrendered to all the bad components of BAAJA and not negotiate a stand-alone transmission and grid modernization bill? Even if Republicans would not have gone for that in the 119th Congress, Democrats could prospectively push that in the 120th, after Republicans, presumably, get their asses kicked.

The counter to this sensible argument is the conceit that no better "permitting deal" is possible. But this is little but an admission that too many folks have trapped themselves in the dead-end logic set by Manchin in 2022 that pits climate action (which has withered to just "bUiLD StUff") against protection of people and place.

Whitehouse may simply be trying to get something done before he moves off Senate EPW and over to Judiciary, whereas Heinrich is bought into Abundance. He’s seeking to “unlock AI’s potential to drive innovation” as the co-chair of the Senate AI Caucus, which puts him in regular contact with the industrial leaders of the data-center buildout. “Let’s build big things again,” he announced at the BAAJA press conference. As he said last year, “This is our moment to dream big, remove outdated barriers, and build the tools that will define the next century of innovation.”

Heinrich’s AI alignment gives us a hint at the likely answer to the engineered urgency. We have to take seriously the rise, in Gil Durán's parlance, of the Nerd Reich. We're no longer in a fight with just fossil fuels and path-dependent economic sectors, but a tech oligarchy rooted in truly noxious ideologies. This bill would, in my estimation, feed their rise.