The 10,000-Page Environmental Review: Daniel Palken on the Senate's 417-Page Permitting Bill

Contents

1. Why did building large infrastructure in America get so slow?
2. Does the bill gut environmental protection?
3. Cutting the statute of limitations from six years to 150 days — does that take away the right to sue?
4. Is the “disparate treatment” worry legitimate?
5. If renewables are the cheapest, why is gas filling the queue?
6. What can I actually use from this?
7. Further reading
8. One thing to take with you

Governing a great state is like cooking a small fish.

—— Laozi, Tao Te Ching, ch. 60 (Spring and Autumn period; my own translation)

On the October 13, 2026 episode of Columbia Energy Exchange, host Jason Bordoff interviewed Daniel Palken of Arnold Ventures about the 417-page bipartisan permitting bill just introduced in the Senate. Palken said that in NEPA’s early years an environmental impact statement ran a couple dozen pages; today a large project can generate 10,000, and he mentioned one transmission line whose full record reached 100,000 pages. His core claim is that the bill works on procedure: the Clean Air Act goes untouched, and the Clean Water Act’s pollution limits stay. That claim holds only if courts read the text the way the drafters meant it, and he admits there are several ambiguous passages in the 417 pages still waiting on amendments.

Why did building large infrastructure in America get so slow?

Palken’s answer: the statutes barely changed, but they grew into something else in the hands of courts and agencies.

The wave of environmental laws from the late 1960s and early 1970s — NEPA, the Clean Water Act, the Clean Air Act, the Endangered Species Act, the National Historic Preservation Act — came after a period when America built a great deal and paid for it in environmental damage. He says plainly that those laws deserve to exist. What changed was the evolution, through case law and agency self-protection.

The mechanism he describes is the part I found most useful. NEPA asks an agency to surface every effect, and missing one exposes the decision to being struck down as arbitrary and capricious under the Administrative Procedure Act. His example: an agency calculates how much gas a pipeline will move and the resulting emissions, and gets sued for not multiplying the tonnage by the official social cost of carbon. Anyone can do that multiplication, yet the penalty facing the agency is vacatur of the whole decision. So a rational agency writes every possible framing. That is how you get to 10,000 pages.

He offered an image I will remember: roll up 100,000 sheets of letter paper and you have a 20-mile ribbon — you could practically have built the transmission line out of papier-mâché.

Does the bill gut environmental protection?

Palken splits the laws into two kinds, and that split carries every answer he gives afterward.

Procedural laws — NEPA, the National Historic Preservation Act — mandate no outcome. NEPA never says you must mitigate 90% of what you found. This year’s Supreme Court decision in Seven Counties called it a procedural crosscheck. Substantive laws — the Clean Water Act, the Clean Air Act — set limits on concentrations in air and water. Those are floors on outcomes.

By his account the Clean Air Act is not directly amended here. The Clean Water Act has one title, sections 1201 through 1205, and the target is the procedure around section 401 state water-quality certification: conditions a state imposes must be the least burdensome available, and the burden sits with the government to show by clear and convincing evidence that it picked them. For transmission lines and pipelines the one-year clock becomes nine months.

He was candid about who pushed for this and why. Some states have floated rejecting certification for gas pipelines because the infrastructure clashes with their climate targets; hydro facilities have faced relicensing conditions about cattle grazing. From a state’s own standpoint, he says, the climate reason may be perfectly valid — but it probably is not what the Clean Water Act was written to do. He does not deny the net effect: pipelines get easier to build, so long as you take care of the water-quality requirements themselves.

Cutting the statute of limitations from six years to 150 days — does that take away the right to sue?

His answer rests on one number: more than 90% of these suits are filed within 150 days.

The APA gives six years unless a statute says otherwise; the Natural Gas Act already gives opponents of pipelines and LNG terminals only 60 days. The bill sets the general window at 150 days. He thinks few real cases get shut out, and what changes instead is the financial calculus: a developer no longer carries five years and seven months of litigation risk. For a project with a ten-year payback, cost of capital is the cost.

Paired with that is a clock on the government. If certain deadlines slip by more than 60 days, the head of the agency — picture the Secretary of the Interior — may not travel more than 25 miles from the duty station for work. The provision is aimed at behavior both parties have engaged in: the Trump administration stalling wind and solar, the Biden administration stalling oil, gas and coal. The bargain the bill proposes is that neither side gets to play that game.

Is the “disparate treatment” worry legitimate?

Here he concedes the objection has force, and the way he handles it is what persuaded me to take it seriously.

The provision: if your project was improperly denied or unreasonably delayed, and you can make a statistical showing that your class of project — offshore wind, gas pipeline, transmission line are all on the list — is being treated in a way that breaks with the government’s practice over the five prior years, you get a package of remedies including legal fees and damages of 50% to 100% of anticipated expenditures, money you may not have spent yet.

The objection: if a Democratic administration takes office in 2029, four of the five lookback years are Trump’s, presumably favorable to oil and gas and unfavorable to wind and solar. So denying fossil projects becomes nearly impossible, while the mirror image does not hold.

Palken answers in three layers. First, a textual reading: he does not think the five years necessarily runs from the filing date, and the better reading starts it before the pattern began, which pushes the comparison period back. Second, he grants the point may stand — five years may not be the right number. Third, his actual position: a law meant to stabilize decades of decisions across many administrations should not be judged on who gains in round one, because the same logic runs in reverse against the next Republican administration.

One limit he adds matters. Section 1402 requires you to show full legal compliance with every existing statute before you can even reach the disparate-treatment argument. Exceed an air limit, harm a species without mitigation, and the denial stands. His description of the procedural remedies has an edge too: NEPA and the National Historic Preservation Act can no longer be used to vacate an entire permit or enjoin a project, while other procedural grounds remain live.

If renewables are the cheapest, why is gas filling the queue?

I had the same question, and his answer inverted the causality on me.

Some point to PJM’s interconnection queue, where gas has gained share among new entrants, as evidence the market no longer favors clean energy. Palken notes PJM is the hardest region in the country to build renewables in, with wind and solar penetration still in the low single digits, while MISO, SPP, ERCOT and the non-RTO West approach 40%. A gap that wide is unlikely to be about technology.

His reading: PJM has lagged for years on interconnection and transmission planning, its system has no headroom, it paused new entrants for years, and now it is desperate for anything that adds capacity fast. The queue shift is a symptom of that disease. His counterexample is Texas — large-scale transmission built, smart interconnection policy, permitting across big acreage — where wind and solar displaced coal, while in the rest of the country gas did the displacing.

Federal land makes the pattern starker. Federal land is 21% of the US land mass, yet about 3% of wind and 3–4% of solar and geothermal sit on it. He points to Horizon Climate Group’s online map, where you can overlay federal land against every utility-scale wind and solar project ever built: in the West, federal land looks like a checkerboard and the projects cluster in the gaps. Development is happening in the negative space of federal land. As for wind’s decline, he points to the Lawrence Berkeley National Lab developer survey — grid issues first, local permitting next, with supply chains and cost of capital further down.

What can I actually use from this?

The thing I want to keep is his procedural-versus-substantive cut, because it travels beyond energy.

One version of a rule says your emissions may not exceed this number. Another says you must write down every possible effect, and missing one voids the whole approval. The first is an engineering problem with a price tag. The second has no end, because “every possible effect” is an open set. When I read industry-policy news I tend to file things as “regulation tightened” or “regulation loosened” without making this distinction. Once you make it, some fierce-sounding limits turn out to be bounded in cost, and some requirements that sound like paperwork turn out to kill projects.

His supply-restriction argument is worth sitting with too. Block a marginal shale well in the Permian, he says, and 60% to 80% of that production shows up elsewhere — with looser methane control in Russia, and copper and critical minerals mined in Africa or Southeast Asia instead. He states the condition himself: these goods are price-inelastic and trade fluidly. Bordoff adds the political-economy half — Europe’s 2022 gas crisis and this year’s Hormuz crisis both showed politicians subsidizing prices, releasing strategic stocks and easing sanctions to keep supply flowing.

What I am left uncertain about is the politics. Palken expects a lame-duck push, a manager’s amendment package fixing technical ambiguities and drafting errors, a Senate floor vote, then either a standalone House vote or attachment to a continuing resolution or the NDAA. He names two risks: Trump changing his mind, and Democrats wanting to renegotiate for leverage if they win the election — which he doubts works, since the side that lost an election rarely returns to the table offering more. Neither risk lives in the text, so nothing in those 417 pages can manage it.

Further reading

• Columbia Energy Exchange, October 13, 2026, hosted by Jason Bordoff with Daniel Palken of Arnold Ventures
• The Supreme Court’s Seven Counties decision on NEPA as a procedural crosscheck
• Lawrence Berkeley National Lab’s developer surveys and annual interconnection queue reports
• Horizon Climate Group’s online explorer for overlaying federal land with built wind and solar
• Bill materials from Senators Sheldon Whitehouse and Martin Heinrich

One thing to take with you

One idea: when something blocks you, first sort out whether it governs the floor on the outcome or the format of the paperwork. A floor has a number, a cost, a design fix. A format has no ceiling, because “write down everything possible” is an open set and the penalty for one omission is losing the whole thing. The road from twenty pages to ten thousand was built out of formats.

Here is something I tried. Take one thing you have put off for more than six months — a job change, a dentist visit, a conversation you keep not having. Write out every reason it is stuck, line by line, and label each one: floor, or format. For the floor items, go find the real number — the actual money, the actual days. For the format items, ask who is waiting on the complete submission. When I did this, most of my format column turned out to be written for a reviewer I had invented, and that person did not exist.

Raw Markdown

This article is an educational discussion of investment method. It is not advice to buy or sell any individual security, offers no target prices, and does not analyze any current holding. Investing carries risk; make your own decisions or consult a qualified professional.