California Policymakers Can Incorporate Mediation Into Legislative Proposals To Streamline Renewable Energy Permitting
By Gideon Kracov, Esq. and Dr. Lawrence Susskind
Background on the Permitting Dilemma For California Renewable Energy Projects
California must build an enormous amount of clean energy infrastructure to meet its ambitious climate goals. The California Air Resource Board’s 2022 Climate Scoping Plan estimates need for an additional 72 gigawatts (GW) of utility solar and 37 GW of battery storage by 2045. To reach its 2045 greenhouse gas reduction targets, the state will need to quadruple its current level of wind and solar capacity. The California Energy Commission estimates the state must install over 2 million battery chargers to support 15 million zero emission passenger cars in 2035 and an additional 114,000 high-capacity chargers are needed in 2030 for 157,000 medium- and heavy-duty battery electric trucks.
Renewable Energy Permitting Resistance
Renewable energy projects are often fraught with permitting delays and obstacles. Local resistance or environmental concerns can lead to litigation and project setbacks. For example, the first Salton Sea lithium brine mining project permitted with much fanfare by Imperial County, California in 2024 now faces a lawsuit. In the first six months of 2023 alone, permits for 70 large-scale projects across the nation had been rejected. The MIT Renewable Energy Clinic depicts this dilemma:
New Renewable Energy Streamlining Concepts Circulating in Sacramento
In response, California legislators are circulating concepts for a forthcoming legislative package broadly themed as “Hitting California Climate Goals: Modernizing Large Scale Green Energy Review And Permitting.” The concepts include a master California Environmental Quality Act (CEQA) environmental review document for “renewable energy resources, energy storage and transmission, including offshore/onshore wind, port improvements for offshore wind, utility scale solar, geothermal. and battery energy storage projects.” Also proposed is a “one stop shop” for streamlined, consolidated permitting of these projects, as well as for the $1.2 billion Alliance for Renewable Clean Hydrogen Energy Systems (ARCHES) renewable hydrogen hub.
Background on Mediation and Environmental Dispute Resolution
Mediation offers a transformative solution that California policymakers can incorporate into the forthcoming renewable energy bill language. It means “third-party assisted collaborative problem solving and conflict resolution in the context of environmental, public lands, or natural resources issues or conflicts, including matters related to energy, transportation, and water and land management.” By utilizing professional mediators working in an Environmental Dispute Resolution (EDR) framework, permitting agencies, project proponents, communities, non-governmental organizations or tribal representatives engage in facilitated multi-party dialogue, helping parties better understand their options and craft voluntary agreements that can be incorporated into state and local permit decisions, project mitigation and community benefits. EDR can include joint fact finding and opportunities for confidential give-and-take among the participants even though open meeting and other transparency requirements must be met. EDR agreements usually do not set formal legal precedent and can be fitted to the unique contextual details of each dispute. This approach accelerates project timelines by helping to resolve impasse.
Decades of experience and scholarship show that EDR can be used “upstream” during policy-making and planning as well as “downstream,” once disputes have crystallized over administrative decisions (e.g. permitting), or even after disputes have entered litigation. US Environmental Protection Agency’s data shows mediated cases are resolved in one-third less time than litigated cases and require 79% fewer staff hours. The Federal Energy Regulatory Commission (FERC) has a robust Dispute Resolution Service and affirms that “a dispute often can be settled or decided much sooner with ADR (alternative dispute resolution) . . . the parties may save money they would have spent on attorney fees, court costs, experts’ fees, and other litigation expenses.” The California Judicial Council’s analysis concludes mediation leads to “reductions in trial rates, case disposition time, and the courts’ workload, increases in litigant satisfaction with the court’s services, and decreases in litigant costs.”
There are substantial advantages to creating EDR systems rather than treating each situation anew. This often requires enabling statutes such as the Federal Negotiated Rulemaking Act. Today, there are rosters of experienced mediators ready to assist. In fact, the MIT Renewable Energy Clinic now trains mediators in its course “Resolving Renewable Energy Siting Disputes” designed to understand and build consensus to resolve opposition to renewable energy facilities across the United States.
Existing California Law Does Not Require Mediation For Renewable Energy Projects
Existing California statutes do not require mediation for renewable energy projects.
Neither the SB7 Environmental Leadership Project law for gubernatorial streamlining of priority California infrastructure projects nor the State’s 2023 SB149 energy, water and transportation infrastructure streamlining package incorporate mediation into the state or local agency permitting process. Thus far, the Office of Planning and Research website identifies one certified SB 149 project.
The Planning and Zoning Law in Government Code section 66030 et seq authorizes permissive mediation in ten specified types of land use litigation matters including “the approval or denial by a public agency of any development project.” The Law states that “lawsuits can delay development, add uncertainty and cost to the development process, make housing more expensive, and damage California’s competitiveness . . . it is, therefore, the intent of the Legislature to help litigants resolve their differences by establishing formal mediation processes for land use disputes.” Yet, these optional provisions are so rarely invoked that many land use lawyers do not know they exist.
California’s signature CEQA environmental review statute for agency permitting has an early settlement meeting requirement in Public Resources Code section 21167.8 that the parties meet and attempt to settle the litigation within 45 days of service of the lawsuit. This early settlement meeting is often pro forma, abbreviated, and does not meaningfully assist in resolving the dispute. It usually is over the phone, the litigants do not personally attend and no neutral mediator participates. And while CEQA states that “if the litigation is not settled [at the early meeting], the court, in its discretion, may, or at the request of any party, shall, schedule a further settlement conference before a judge of the superior court,” this almost never occurs.
Conclusion and Direction For California Renewable Energy Permitting Legislation
California can reach its bold climate goals more expeditiously if policymakers incorporate mediation into renewable energy permitting. Disputes over these projects can be complicated and often encumbered with emotion. Years of environmental conflict efforts show that mediation speeds resolution by helping build understanding and trust for the benefit of all Californians.
Gideon Kracov, Esq. is an environmental, real estate and civil law mediator at ADR Services, Inc. in Los Angeles. He serves on the adjunct faculty at Loyola Law School where he teaches land use law and regulation. Lawrence Susskind is Ford Professor of Urban and Environmental Planning at MIT and Vice-Chair of the inter-university Program on Negotiation at Harvard Law School. He is founder of the Consensus Building Institute and author of more than 20 books, most recently Judicial Dispute Resolution: New Roles for Judges in Ensuring Justice (Anthem, 2023).