This story was originally published by Grist.

The clean energy industry has learned the hard way that having the law on its side does not always mean winning.

Since taking office for his second term, President Donald Trump has attempted to delay or cancel dozens of wind and solar projects. Every one of them underwent extensive reviews to secure federal approval, yet the Department of the Interior and other agencies have frozen their permits, citing vague “national security” grounds or offering no explanation at all. The offensive has all but wrecked the offshore wind industry and has led many developers to accept payouts from the administration rather than fight for their permits.

This pressure campaign is one major reason solar and wind companies have supported efforts in Congress to negotiate a bipartisan “permitting reform” bill. Earlier this month, a group of senators reached a compromise on legislation they call the Bipartisan American Affordability and Jobs Act. Lawmakers will not vote on the bill until after the midterm elections, but the renewable energy sector has hailed it as a victory. The measure would speed up environmental reviews for all kinds of energy projects, from transmission wires to oil pipelines, and it also contains a series of provisions designed to deter current and future presidents from blocking clean energy. Trump reportedly told aides just before the compromise became public that he would ease up on wind projects in order to reach a deal.

Cracks are already emerging in the deal. Although the renewable energy industry has remained steadfast in its support, a number of experts and key climate advocates argue that the bill's “project certainty” provisions would do little to prevent Trump or another president from blocking solar farms and offshore wind turbines. The Trump administration itself threatened the compromise this week when it announced that it would review three permits for wind farms off the Atlantic Coast, including one that is already up and running.

“The administration's action against [the wind projects] just further demonstrates the lengths they will go to to obstruct clean energy progress, especially offshore wind,” said Elizabeth Klein, who led the Bureau of Ocean Energy Management, the agency that oversees offshore wind permits, under former President Joe Biden.

The two pillars of “project certainty”

The project certainty portion of the Senate bill has two key parts. First, it declares that the federal government “shall not take any new action that would revoke, rescind, withdraw, terminate, suspend, amend, or alter” a project that has already received a permit. That is essentially a forceful restatement of the status quo, since permits that have been issued are not supposed to be canceled without reason. The bill further, however, by offering companies two main remedies if the government does take such a prohibited action.

One remedy is reinstatement of the permit — which is somewhat redundant. Judges have already shot down the Trump administration's past attempts to stop wind projects, but the administration keeps seeking to revoke those permits anyway. If the bill passes, all the courts would be able to do is order the government, in stronger terms, to restore them.

The other remedy is a cash payout. Courts would be able to order the government to refund a project developer between 25 and 50 percent of the project's costs, which for a large offshore wind farm could run well into the billions. The money would come from the Judgment Fund, the federal bank account used to pay out legal settlements. The fund typically disburses around $2 billion in settlements per year, and successful claims under the permitting bill could produce a sharp spike in payouts.

The other key element of project certainty is an anti-discrimination clause that would ban the “disparate treatment” of any particular energy source, whether solar panels or coal plants. If a wind developer found evidence that the government had denied it permits as part of an anti-wind pattern, that evidence could be presented to a judge. If persuaded, the judge would then order the government to restore the permit and pay the developer the entire construction cost of the wind farm — though only if the developer had finished building it.

A promise meant to lure investors back

Supporters of the bill argue that the promise of financial relief would help draw investors back to a renewable energy industry that has been in turmoil under Trump. The stakes are highest for offshore wind. Big companies like Ørsted and Equinor spent billions of dollars building wind farms in the Atlantic under the Biden administration, but their costs ballooned after the pandemic snarled their supply chains and Trump tried to destroy their existing projects. Those companies now view the United States as uninvestable, yet Northeastern states still need a great deal more offshore wind to meet their climate goals.

The cash payout provision is supposed to make the U.S. seem like a less risky place to invest. The American Clean Power Association, a trade group representing wind and solar developers, said in its analysis of the bill that “greater certainty lowers financing risk before construction and reduces the chance that years of development and investment will be stranded by a later policy reversal.”

Paying to stop clean energy, with public money

While the promise of reimbursement from the federal government would be good news for investors, it is not clear it would actually lead to more clean energy being built. Opponents of the permitting reform bill point out that Trump is already paying to stop renewable power plants from being built, albeit on a smaller scale. The president has worked out several deals to buy back offshore wind leases from energy developers in exchange for those developers committing to build fossil fuel projects elsewhere. Those arrangements are being challenged in court, but in the meantime they function as repayments for leases that Trump intended to block.

The project certainty provisions “are unlikely to deter the Trump Administration from continuing to mess with clean energy permits, since this administration has shown an eagerness to use the public's money to advance its own policy goals,” said Matthew Littleton, a former attorney at the U.S. Department of Justice who worked on environmental law issues.

Littleton also points out that the anti-discrimination provision may not work as intended. The baseline for calculating “disparate treatment” is the average pace of project approvals over the most recent five years. By the time Trump leaves office, he will have spent four years permitting oil and gas projects while delaying almost all major solar and wind efforts. That baseline would prevent wind developers from bringing a discrimination claim — while also preventing a future president from walking back support for new oil and gas.

A real-time stress test

As if to highlight these risks, the White House has said in court filings over the past week that it is seeking to rescind permits for three offshore wind projects on the Atlantic Coast. One of them, the 700-megawatt Revolution Wind, is already complete and delivering power to Rhode Island, while the other two are still in the early stages. The targets span the full arc of development, from projects still taking shape to a finished power plant already sending electricity to the grid. In each filing, the government has said only that it seeks to “reevaluate … compliance” with federal law.

Over the past year, Democratic negotiators in the Senate have said this sort of behavior would jeopardize any bipartisan deal. Senator Sheldon Whitehouse of Rhode Island, one of the bill's authors, said in the spring that he would not endorse a compromise bill unless the administration stopped blocking wind farms. This week he appeared to change tack, describing the move against Revolution Wind as another reason to pass the bill. “Frankly, we need to get permitting certainty in law, and this proves it,” he said in a statement.

The bill would in fact offer financial protection to a company like Ørsted, ensuring that a president could not wreck billions of dollars' worth of investment with no justification at all. The question is whether it could end the government's prejudicial assault on offshore wind itself. The answer could determine how millions of people in the Northeast keep their lights on and heat their homes — and right now, it is up in the air. Some of the first evidence will arrive before any Senate vote, as courts weigh the administration's bid to rescind the three Atlantic permits and its lease buyback deals remain under legal challenge — with the post-midterm vote that would decide whether the project certainty provisions ever become law still to come.

Grist is a nonprofit, independent media organization dedicated to reporting on climate change.