Building the infrastructure needed for the clean energy transition has renewed a long-running debate: How can the United States build projects faster without sidelining environmental protections and the communities most affected by development?

Stanford Law School’s Deborah Sivas, JD ’87, an environmental law expert and co-director of the Environmental Law Clinic, recently joined Stanford Legal podcast co-host Professor Pam Karlan to discuss the emerging “climate abundance” movement and what it could mean for environmental law.

Sivas explored whether changes to environmental permitting would actually make it easier to build needed infrastructure—and how communities can retain a meaningful voice in those decisions. “It’s not durable if you don’t have a population to support it,” she says. “If people can see it as a win-win coming into their communities in a way that benefits them as well as larger policy goals, to me, that’s the right way forward—not disenfranchising them.”

Sivas and Karlan also discussed broader shifts in environmental law, including the Trump administration’s push to expand fossil fuel development, changes to the National Environmental Policy Act (NEPA), and a proposal to open some of Alaska’s remaining old-growth forests to logging.

The following is an edited and shortened version of the full podcast transcript, which can be found here.

Pam Karlan: You have written an article titled “Climate Abundance or Environmental Democracy? A Concrete Proposal for Achieving Both.” Let’s start with the idea of “climate abundance.” What does it mean, and where does the concept come from?

Deborah Sivas: The idea has been bubbling up for some time in academic literature and, more recently, in the popular media. It’s probably best illustrated by Ezra Klein and Derek Thompson’s book Abundance.

The argument is that some on the liberal side have concluded that we’re not investing enough in the infrastructure needed for the 21st century—particularly to address climate change, sustainability, housing, and related issues. The climate piece has become known as “climate abundance”: If we can remove some of the obstacles to building, the thinking goes, we can accelerate electrification and the transition away from fossil fuels.

That overlaps with the conservative push for deregulation, which has been around for decades. The irony is that Abundance came out just as President Trump was taking office. Over the past 18 months, we’ve seen substantial deregulation and rollbacks of permitting requirements and environmental laws—but largely in the service of more fossil fuel development, not electrification. So it’s a strange alignment of forces.

Pam Karlan: A central claim seems to be that regulation and permitting requirements have slowed the transition to sustainable energy. Is that actually the case?

Deborah Sivas: I would say no, with some nuance. Over the past 40 or 50 years, we’ve added more process, partly in response to the largely unconstrained development of the postwar era and its environmental consequences. That changed with the environmental movement of the late 1960s and 1970s and laws such as the National Environmental Policy Act (NEPA), which was designed to make government decisions more sensitive to environmental impacts and better informed.

Over time, some of those requirements have been litigated and have occasionally slowed or blocked projects, though not very many. Still, the idea has taken hold that paperwork and public process are major obstacles to renewable energy and grid modernization.

More recently, academics have started looking closely at the empirical evidence, and I don’t think it supports that claim. Individual projects can be delayed, but collectively, these processes do not appear to be the main problem.

Pam Karlan: So, what is the bigger problem? There was an article in The New York Times earlier this week that suggested that the American electrical grid could go down in various ways. 

Deborah Sivas: Hopefully we won’t see that. But we are having real difficulty expanding and modernizing the grid. For a long time, electricity demand was relatively stagnant. That’s no longer true. Data centers are part of the increase, but so is decarbonization as we shift cars, buildings, and other uses from fossil fuels to electricity. That means we need more transmission capacity.

Part of the problem is that we’re simply not used to building at this scale. Much of the grid was built decades ago, and we don’t have the institutional capacity to expand it quickly. Environmental permitting is one piece of the puzzle, but it has become the whipping boy for a much larger set of problems.

We could get rid of our environmental laws today, and I’m pretty sure that still wouldn’t solve the problem.

Pam Karlan: It sounds as though this requires a massive investment—something on the scale of rural electrification in the 1930s. If government isn’t willing to fund that buildout, or create incentives for private investment, deregulation alone won’t solve the problem. And at the same time, the administration has halted a number of wind projects. How do those pieces fit together?

Deborah Sivas: Exactly. The administration has spent billions to halt or unwind wind projects that were poised to move forward and increase production. It has been buying out leases and other authorizations for wind development while redirecting support toward fossil fuel development.

Pam Karlan: Why is the administration so focused on expanding fossil fuel development?

Deborah Sivas: I think there’s a perception within the administration that renewable energy is somehow not “real”—that it’s a left-leaning policy preference rather than a viable energy source.

But that’s increasingly at odds with the economics. In many cases, building new solar capacity is now cost-competitive with, or cheaper than, building a new natural gas plant. That’s the reality of the energy market today.

Pam Karlan: What’s driving the push to roll back environmental rules? Is it primarily ideological, economic, or both?

Deborah Sivas: I don’t think this administration is driven by libertarianism in the traditional sense. It’s not opposed to regulation across the board; it wants to steer development in a particular direction.

The administration is willing to subsidize fossil fuel development while putting new obstacles in the way of renewable energy. So this is less about deregulation generally than about which kinds of energy development it wants to encourage.

LISTEN TO THE PODCAST INTERVIEW

Pam Karlan: Let’s turn to NEPA. As you’ve discussed before, NEPA is fundamentally procedural: It doesn’t dictate whether a project should be approved; it requires agencies to consider certain environmental impacts before making a decision. You’ve raised concerns that some recent Supreme Court environmental decisions—even ones that weren’t directly about NEPA—could affect how NEPA is applied going forward. What are you seeing there?

Deborah Sivas: Absolutely. In recent years, the Supreme Court has shown a strong interest in environmental law, and NEPA has increasingly become a target.

But I think the broader issue is the role of citizen suits. When an agency moves forward with a project despite significant environmental impacts, citizens and advocacy groups can challenge that decision in court. Those lawsuits are often portrayed by the abundance movement as obstacles to development.

What concerns me is that the courts may be moving toward narrowing not just NEPA review, but the ability of citizens to use environmental laws to hold agencies accountable.

Pam Karlan: You mean lawsuits brought by individuals or environmental groups arguing that an agency failed to follow required environmental procedures?

Deborah Sivas: Yes. Although citizen suits can also be used by competing industries—for example, a fossil fuel company challenging a renewable energy project. More broadly, the Supreme Court has said in Loper Bright and other decisions that courts have the final say on what statutes mean. But environmental laws such as NEPA are often quite open-ended. In Seven County Infrastructure and other cases, the Court has also signaled that agencies should have substantial latitude in how they interpret and apply those requirements.

The Trump administration has taken that latitude and used it to roll back NEPA regulations and sharply reduce public process for many projects. In that sense, the Court has given the administration considerable room to move in that direction.

Pam Karlan: There seems to be a tension here. The Court’s Major Questions Doctrine limits agencies’ ability to act on issues of broad significance without clear congressional authorization, while Loper Bright says courts—not agencies—have the final say on statutory meaning. Does that shift more environmental policymaking into the courts, even though judges may be poorly positioned to resolve complex questions of science and policy?

Deborah Sivas: There’s a bit of whiplash in these cases, and at times the results can feel outcome-driven. Courts generally don’t have the same scientific and technical expertise as agencies do. But agencies also need to be open to public input. And that’s another concern with the current administration: It has sharply limited opportunities for local communities—even conservative ones—to weigh in. Increasingly, these decisions are being made with very little public participation.

Pam Karlan: One recent example is the administration’s move to allow logging in some of Alaska’s remaining old-growth forests. What is the rationale for opening those areas to logging?

Deborah Sivas: I think it reflects this administration’s strong preference for development and natural resource extraction.

Logging in Alaska—and particularly in the Tongass National Forest—has been the subject of litigation for decades. Now the administration is proposing to open some of the remaining “roadless” areas, where there has been relatively little human development or encroachment. Those are also some of the most important remaining areas for intact ecosystems and wildlife habitat.

Pam Karlan: And building roads into those areas can have broader environmental effects, including reducing carbon storage and increasing wildfire risk by bringing more human activity into the forest. How significant are those impacts?

Deborah Sivas: I think those impacts are significant, especially because so few large, unroaded areas remain. That’s one reason Alaska has been such a focus: It still has substantial stretches of relatively intact habitat.

The Biden administration proposed formal protections for old-growth and mature forests, but that effort was not finalized before it left office. The current administration has moved in the opposite direction, toward opening more of those areas to development. It reflects a broader philosophy that these natural resources are there to be used, with much less emphasis on their climate and ecological value.

Pam Karlan: This summer has brought another wave of extreme heat in Europe and major wildfires in Canada. How should we think about events like these in the broader context of climate change?

Deborah Sivas: It’s striking. The science of attribution—scientists’ ability to link individual extreme weather events to broader changes in the climate—is becoming increasingly sophisticated. We’re seeing that with wildfires, heat waves, and the increasing intensity of hurricanes and other storms.

Pam Karlan: You’ve proposed a way to reconcile these competing goals. How can we make environmental policy more responsive and effective while still building the infrastructure, housing, and energy capacity the country needs?

Deborah Sivas: What got me thinking about this was the convergence between the abundance movement on the left and the longstanding deregulatory push from development interests and conservatives. Both are increasingly arguing that we need to reduce permitting requirements and, in some cases, limit the ability to challenge projects in court.

My concern is that this centralizes decision-making. That may seem attractive if you trust the people in charge to build the right things, but the same tools can be used by an administration pursuing very different goals, including expanded fossil fuel development.

So I don’t think the answer is less democracy. I think it’s more meaningful participation. Developers shouldn’t simply arrive and tell a community, “Here’s your data center,” when a project may affect electricity rates, water use, and other local resources. They should have to work with communities and show how those communities will benefit.

We began to see some of that under the Biden administration, where certain federally supported projects were required to negotiate community benefits rather than simply impose projects from the top down.

That kind of participation also makes policy more durable. Much of the Biden administration’s climate agenda is now being rolled back. If people see projects as a win-win—benefiting their communities while also advancing broader policy goals—you’re more likely to build lasting support. To me, that’s the better path forward, not disenfranchising communities.

Pam Karlan: Your proposal seems workable at the state or local level, where governments can require consultation and community participation. But climate change is ultimately a national and global collective-action problem. How do we bridge that gap?

Deborah Sivas: It is daunting. Neither the current administration nor Congress has shown much urgency about climate change; many of the proposals coming out of Washington instead focus on rolling back regulations to expand oil and gas development.

At the same time, some of the abundance agenda has taken hold even in states like California, where there have been efforts to reduce community participation.

So I do think this can work at the local level, but only if you accept the premise that the goal is not to override communities, but to work with them. That was part of the original idea behind NEPA: to inform decision-making and help shape better projects. Over time, we’ve drifted toward generating lots of paperwork without enough genuine collaboration with affected communities.

Pam Karlan: We’ve seen the administration use statutes in novel ways—for example, invoking the International Emergency Economic Powers Act, or IEEPA, to impose tariffs and the Alien Enemies Act in the immigration context. Are we seeing a similar use of old or rarely invoked legal authorities in environmental law?

Deborah Sivas: Yes. I’m working on a brief right now involving the Defense Production Act and an oil pipeline off Santa Barbara, near the site of a major spill about a decade ago. The state required the company seeking to restart the pipeline to demonstrate that it had met safety requirements. Instead, the company went to the Trump administration, which invoked the Defense Production Act to override state and local laws—as well as a federal consent decree that gave the state authority over reopening the pipeline.

So we are seeing something similar in environmental law: a search for legal tools that can be used in new ways. The concern is that, if courts approve this approach, invoking national security or energy security could give the federal government much broader power to override state and local environmental protections. 

Pam Karlan: Earlier, you talked about the importance of citizen suits. But they also have an Achilles’ heel, which we’re seeing in a Mississippi case involving Elon Musk and data centers. What’s happening there?

Deborah Sivas: Yes. One current example involves xAI, Elon Musk’s artificial intelligence company, and its subsidiary, MZX Tech, which operate a data center in Mississippi powered by dozens of gas turbines.

The NAACP sued under the Clean Air Act, alleging that xAI was operating those turbines without the required air permits. Then, in June, the Justice Department’s Environment and Natural Resources Division moved to intervene and dismiss the case.

The government’s theory is essentially that once it exercises its prosecutorial discretion not to enforce the Clean Air Act, private citizens should not be able to pursue that enforcement themselves. If the courts accept that argument, it could significantly weaken citizen suits as a backstop when government regulators choose not to act.

Pam Karlan: Younger generations often seem more focused on climate change and more open to denser, lower-carbon ways of living. Through your work directing Stanford’s Environmental Law Clinic, how do you think about preparing the next generation of environmental lawyers to approach these issues differently?

Deborah Sivas: I do think this generation of students sees the world differently, and the work of the clinic has evolved with that. We’ve moved from more traditional environmental litigation toward questions about how environmental institutions should function in the 21st century.

I tell students there is going to be a tremendous amount of work to do because many of those institutions will need to be rebuilt or rethought. The challenges are also more complicated than the old model of simply identifying a polluter and suing.

Now the harder questions are about competing policy goals: What is the right path forward? How do you give communities a meaningful voice without giving any one community a veto over needed development? Those are exactly the kinds of issues we’re talking about in the clinic.

Pam Karlan: What’s a project your clinic is working on that you think has real potential to make a difference?

Deborah Sivas: One project I’m especially excited about is our work with the Northern Chumash Tribal Council on California’s Central Coast. The tribe has a broader vision for stewardship that incorporates cultural heritage while also asking how we manage land and water sustainably for the 21st century.

For our students, it’s been an opportunity to move beyond traditional environmental litigation and think creatively about how tribes and local communities can play a meaningful role in long-term stewardship.

And stewardship doesn’t mean simply fencing off land and leaving it untouched. These are often working landscapes where people live and make their livelihoods. The challenge is finding ways to use them sustainably while preserving them for future generations.

A leading environmental litigator, Deborah A. Sivas, JD ’87, is a co-director of the highly regarded Environmental Law Clinic, in which students provide legal counsel to dozens of national, regional and grassroots nonprofit organizations on a variety of environmental issues. Professor Sivas’s litigation successes include challenging the Bush administration’s gas mileage standards for SUVs and light trucks and holding the U.S. Environmental Protection Agency accountable for regulating the discharge of invasive species in ship ballast water. Her current research is focused on the interaction of law and science in the arena of climate change and coastal/marine policy and the ability of the public to hold policymakers accountable. She is a frequent speaker on these topics.