A brief update on the state of synthetic fuel in late 2026, T+11 months since the Singularity. First, commentary on the global State of Energy. Second, what we’ve delivered so far in 2026. Third, commentary on regulatory and permitting reform.
The power to destroy a thing is the absolute control over it
My mapping tool shows energy infrastructure damaged in the last five years. Conflict in Iran, Yemen, Saudi Arabia, Russia, Ukraine, Iraq and Syria has resulted in the effective deletion of much of about 10% of the world’s oil production and delivery capacity.
It has been obvious enough to military planners since the 1970s that the global oil supply chain was vulnerable to interruption by unconventional forces.
I founded Terraform Industries in late 2021, and by early 2022, Russia seemed determined to put this notion to the test by invading Ukraine. In the years since, Ukraine and Russia have systematically destroyed each other’s energy and oil refining infrastructure, placing enormous stresses on Eurasian oil supply chains, especially since the “developed West” spent the last 30-40 years voluntarily (!) demolishing its own oil refining capacity.
In 2026, this kicked into high gear with Iran’s denial of the Straits of Hormuz in addition to a simmering conflict in Yemen around the Red Sea.
We hope for a speedy resumption of peaceful trade and conventional international relations, but we’re not putting that genie back in the bottle. In 1944 it took the might of the Nazi war machine to launch a few hundred inaccurate autonomous drones a few hundred miles at London and Antwerp, and the might of US airplane production to deliver tens of thousands heavy bombers to respond by destroying Nazi coal liquefaction plants and fuel delivery logistical capacity.
Today, any non-state actor, proxy, covert/clandestine operative, cartel, or sufficiently motivated middle schooler can extract losses measured in billions of dollars with commercially available hardware that costs thousands of dollars. Kinetic deterrence still exists but is ineffective if you can’t deliver it, your adversary is protected, believes they can hide, or is willing to die.
If you don’t control your own energy supply chain, you are one third party misunderstanding away from rapid regression to the pre-industrial age.
Terraform Progress
Against this cheery backdrop, Terraform has continued to accelerate its efforts to provide cheap synthetic fuel from sunlight and air.
Muroc Desert Test Site
The headline of our 2026 efforts is the development of our Muroc desert test site.
I write this on the 79th anniversary of the first supersonic flight by Chuck Yeager in the Bell X-1. Back then, the nascent X planes experimental program needed a lonely, unpopulated place with good weather, and they settled on an airstrip then known as Muroc, now known as Edwards Air Force Base.
With similar needs, we found a test site in the same town of Rosamond, California, and named it Muroc in honor of those who went before, and those who favor us with a sonic boom at 9:36 every morning!
We built the cheapest solar ever deployed in North America
We closed on the land in January. By the end of March, all the solar panels (nearly 3000!) were in. A lot of cable work and inspections followed. By early July, the word came through from the solar team: we’re ready to go live. The site team, led by Matt Weickert and Tiana Wong, had successfully built a large solar array in California for $0.70/W in less than six months, and this includes its share of first time and small site expenses. With amortization over the coming years, we’re producing power today for 1.6c/kWh, which I’m quite confident is the cheapest power ever produced in North America. Terraform was founded on the supposition that falling prices of solar modules would ultimately trickle down to applications, enabling gigascale energy arbitrage turning cheap solar electrons into valuable energy molecules, and as of 2026, we’ve done it in the real world.
We produced pure CO2 from sunlight and air
Within a week, the CO2 team successfully produced a high purity (>99%) stream of CO2 from our demo calciner, at our Muroc desert test site, in 110 F heat, using our own captive solar PV array, on the first try.
This represents several world firsts, and is an incredible testament to the team’s brilliance and grit, led by Stephanie Coronel. Congratulations Dawson, Aggy, Jake, Adam, AK, and Charles!
I directed each of the three power consuming teams (DAC CO2, electrolyzer H2, and reactor) to fab and deploy a meaningful end-to-end “smoke test”. I knew the desert would test our faith and that our team needed to experience the dust, the heat, and the wind in order to streamline logistics for the full deployment later this year.
DAC was first off the mark. I was fortunate to find a corner of the tent where I was out of the way as we turned on the calciner for the first time, on site. Without drama the array pumped about 30 kW into the test fixture and the temperature rose smoothly to over 1000 C. Soon after that, the team proceeded to <redacted> and CO2 came out. At the end of the test, we had calcined >85% of the carbonate we started with, exceeding our requirements and validating our design, architecture, and processes.
The Terraform CO2 production system captures CO2 from the air (400 ppm) and concentrates it to >99% purity in a single step, feeding directly into a hydrocarbon synthesis reactor which produces methane or methanol.
The overarching challenge of Terraform’s approach is to produce CO2 cheaply enough that it becomes a profit center rather than a cost center. Our strategy of direct consumption of solar power from the array cuts capex and opex to the barest minimum, and our internal production cost, even at this relatively early stage, is already well below $200/T-CO2.
Other than plants and some cyanobacteria, I believe this is the first ever commercially useful direct air capture and production of CO2 at scale.
We produced hydrogen with our own electrolyzers
A few weeks later the hydrogen electrolyzer team at Terraform pulled off yet another first, the sustained production of >99.9% pure H2 from our proprietary, vertically integrated, California-manufactured electrolyzer stack while it was coupled directly to a solar array at our Muroc desert test site.
Let’s break this down.
Most commercial electrolyzers need carefully conditioned power from expensive battery-meditated backup systems. Ours runs directly off the sun. Clouds pass, the day turns to night, and we maintain purity from a stack whose Bill of Materials cost is well below $100/kW.
Terraform’s single-minded focus on capex reduction has allowed us to convert sunlight to hydrogen in an unprecedented demo at a cost below $2/kg. If that wasn’t enough, we have a crystal clear plan of steady execution to push that cost below $1/kg in the coming years.
Rather than linger on this point in response to experts-with-spreadsheets who said this was not only beyond my team, it was forbidden by known laws of physics, let me tell you a bit about how we actually pulled this off.
We started building this test site in March. Once the panels and electrics were in place the CO2 team were the first to demonstrate production on site. Close behind them the electrolyzer team planned the logistics necessary to project substantial operational ability into a hostile test site in the middle of nowhere. It’s no good to find you’re missing a wrench half way through the day!
Much of the test prep was completed before dawn, when the panels go live. The sun came up and the stack immediately started splitting water into hydrogen and oxygen. The team carefully monitored purity and flammability as the sun climbed through the sky. As designed, the stack warmed up and conducted even more power, maintaining solid production until late afternoon when the setting sun shaded the panels.
Terraform’s synthetic fuel system is uniquely designed to follow the sun and extract the maximum possible value from cheap solar panels.
Hydrogen is a pernicious molecule. It leaks through and embrittles metals, burns almost invisibly at a wide range of mixtures in air, burns hot and fast and can easily undergo a detonation transition, and has about half a dozen other spookily dangerous properties. My advice is to never work with it unless you absolutely have to. The Terraformer produces and consumes H2 in one compact discrete area with a minimum of complexity and fuss, and as expected this demo was completed in accordance with our rigorous safety standards and no unscheduled excitement!
This successful demonstration was also a profound milestone for the team after a testing anomaly last December compelled us to finally rip off the bandaid and move decisively towards the “future design,” which has half the parts but considerable complexity in assembly. No-one else makes electrolyzers this way and we, more than anyone, know exactly why. And also how to do it anyway, translating directly into a unique cost advantage.
A huge congratulation to Ken, Sherman, Chris, Nikhil, Abdullah, and Aaron for their successful test campaign.
Terraform’s hydrogen and CO2 are the chemical precursors for synthetic methane and methanol, which we make in our own synthetic fuel reactor.
Combined, we make oil and gas out of sunlight and air. We are breaking the geological and geographical monopolies on oil production.
Terraform will deploy these electrolyzers by the millions and they will all be plug-and-play with solar PV arrays.
The Muroc smoke test campaign was far from over.
We will win!
The reactor team produces methanol at Muroc
In September, the reactor team at Terraform demonstrated successful production of high purity (food grade) methanol at scale at our Muroc desert test site.
Let’s recap our progress in 2026. In January, we closed on our Muroc test site. By March, construction was underway. By May, we had 1.8 MW of solar installed. In July, we produced CO2 on site, and in August, hydrogen.
Terraform Industries has built an incredible team to revolutionize not just one or two key technical pieces, but the entire stack required to convert sunlight and air into fuel. Like plants, only 100 times higher productivity per acre and requiring no irrigation, fertilizer, or pesticide.
Two years ago, Terraform produced pipeline-grade natural gas for the first time. Since then, we’ve scaled up our methane reactor, increasing production by 250x and reducing contaminants by 10x. A chemically pure grade commands a 100x higher price, increasing revenue and margin.
But it was always clear to me that natural gas was only one piece of the puzzle. It is possible to convert natural gas into other hydrocarbon products like gasoline or jet fuel, but given our precursors are CO2 and hydrogen, we can do one better by directly synthesizing methanol as well.
Methanol is far easier to convert into longer chain hydrocarbon products, either via the MeOH->DME->ethylene pathway, MTG, or variations on Fischer-Tropsch.
Methanol also has significantly higher revenue per molecule than pipeline natural gas, which forms an essential part of our cost-reduction-through-profitable-scale-up strategy, explained in more detail here.
TL;DR: If our learning rate is above (a very conservative) 11%, our margins will strictly increase as we scale up into a market worth about $10t/year.
Amir Ahdnoparvin joined the team earlier this year and speed ran the methanol reactor development program, successfully demonstrating recirculation and heat recycling before integrating these new technologies in a production scale reactor, built from the ground up at Terraform’s facility in Burbank.
As soon as the hydrogen team was done, we shipped our latest reactor up to the desert, plugged it in, and began activating the catalyst. An extended test campaign through the heat of summer followed, punctuated by bunnies nibbling on hoses!
The hard work paid off, with Terraform’s production of significant batches of high purity methanol, independently certified as meeting food grade and shipped to a happy customer. A huge congratulation to the entire team, including Amir, Enric, Dominic, Hugo, and Lucie.
With the completion of this test, Terraform has now demonstrated TRL 9 operation of all of its subcomponents, each developed from scratch, in-house, to deliver the highest possible value to the end customer.
It is hard to describe the visceral feeling of staggering beneath the weight of pure wealth flossed from the air by human ingenuity, grit, and toil. Terraform will never rest until we have broken the geological and geographical monopoly on oil, unlocking unconditional energy abundance for all of humanity.
But wait, there’s more! Chemically pure methane distribution
Not to be outdone, the methane reactor team produced thousands of dollars of product at chemically pure grade, sold a batch to Astro Mechanica, and hammered out a distribution deal with WestAir.
Ian Brooke, the founder of Astro Mechanica, is designing his supersonic electrically optimized jet engines to use methane as a fuel, since it has a higher specific energy than any other hydrocarbon and its cryogenic nature as a liquid will be helpful for supersonic applications.
A token contribution
Earlier this year, we published DCDCs, a roadmap for powering large scale AI data centers with off grid solar+battery power. A few months later we had a large solar array up and running in the desert and I thought … why not?
So we built and demonstrated an H100-scale system running autonomously off our own solar array. This is not just a cute demo.
Dashboard showing 3 days of operations testing configs and various open weight models.
As we demonstrated in our post, an economically optimal solar inference rig achieves roughly 99.9% utilization on the GPU (the expensive silicon) with about 20% utilization of the solar array (the cheap silicon) and battery pack.
Implication: Every solar+battery offgrid datacenter will have copious amounts of free power available to any offtaker who can accept less than 99.9% utilization. This could be a local utility district looking for additional power during peak AC-load summer months. In our case, it’s our colocated modular intermittency-friendly synthetic fuel plant, which we just spent five years lovingly engineering to match an unfirmed solar array.
Further implication: We intend to host modular inference clusters at our Terraformers, wherever zoning allows. These clusters consist of their own compute plus battery, and they share the solar array along with the fuel plant, doubling its economic utility and further reducing power costs for fuel synthesis.
We no longer have to wait until 2031 for the solar array installation market to shake out in order to push our power costs down below one cent per kWh. We don’t have to dump millions of our equity-funded engineering effort into accelerating a soon-to-be-commoditized layer in solar installation. We will maintain our core focus on scaling production of the highest quality synthetic fuels at the best possible price!
What comes next?
Here’s an interactive website showing our deployment plan, indicating new products and steadily increasing margins.
In summary, we’re production limited and have positive unit economics. First, max out the Muroc test site production, revenue, and margin. I’m optimistic the site will pay for itself next year – an audacious goal for any first-of-a-kind full scale pilot operation, but we’re more than equal to the challenge. Then scale up production and deployment of Terraformers, build out the fleet, achieve profitability, continue to push production cost down and production volume up. Wash, rinse, repeat.
Career Opportunities
Terraform takes talent development very seriously. Do you want to fast track your up-leveling? Work on real world problems with real stakes? Spend time around conspicuously ambitious people? Job opportunities are listed at terraformindustries.com.
Addendum: Reform Opportunities
The US risks losing the energy race if we don’t get out of our own way, especially on land-use permitting. Yes, the irony that environmental laws slow solar development is not lost on me.
We’ve seen enormously positive developments on this front, particularly in reigniting innovation in the US atomic power industry. The following suggestions are easy wins that unlock enormous wealth potential for Americans and future generations. We have focused this analysis on three opportunities in Southern California but similar issues and opportunities exist all over the US. At the end, we follow up with some pointed commentary on the proposed BAAJA Act.
Broadly, the American West is full of undeveloped land. Why? Not enough water, the federal government was unable to give it away at scale during the land grant era, even with extraordinary generosity to the railroads! The result: In 2026, the US is losing the solar deployment race 10:1 to China because of zoning issues. This is existential.
Opportunity 1: Kern County farmland zoning
Proposal: A written determination from the Kern County Planning Director that solar-powered synthetic methane production falls in the same agricultural-industry category as an ethanol plant, and so is a conditional use on farmland, with conditions set by its own effects: no combustion, no feedstock trucks, and equipment that can be removed.
Context: In Kern’s zoning ordinance, Exclusive Agriculture (A) is a working farmland district. Solar is permitted by right when its accessory to a permitted or conditionally permitted use and generates no more than the site consumes (§19.12.020). The same district allows ethanol plants and biomass energy conversion by conditional use (§19.12.030.A.2). Also, the ordinance includes a ministerial process, the similar-use determination, where a “potential applicant” can ask and the Planning Director rules within 45 days, appealable to the Board of Supervisors (§19.08.030 to 19.08.080).
Problem: Because solar-to-methane isn’t a listed use, every site becomes its own negotiation. Landowners have no clear answer when developers ask to lease farmland for solar-powered fuel production.
This is like the old joke about the Air Force (where everything not explicitly permitted is forbidden) and the Navy (where everything not explicitly forbidden is permitted). Solar-to-methane/methanol is an emerging technology and is explicitly permitted when intermediated by relatively inefficient, high-intensity corn-to-ethanol, and de facto forbidden when performed using advanced, low-intensity, highly efficient Terraform technology.
Solution: We ask the County to determine that solar-powered synthetic methane/methanol production belongs in the same Agricultural Industries category as “Ethanol plant” and “Biomass energy conversion” under §19.12.030, with conditions based on its own effects rather than theirs, and that co-located photovoltaic (PV) serving only on-site demand is accessory under §19.12.020. If granted, any A-zoned parcel in the county could host a plant with one Conditional Use Permit (CUP), with no zone change. Growers get a lease option for hard-to-farm land; roughly half of California’s Central Valley is arid because of a structural lack of irrigation water. The County allows a use with no combustion, no feedstock trucks, and removable infrastructure. In addition, the County answers the question once instead of a dozen times, reducing its administrative load and associated costs.
If Kern County prefers an amendment to the Zoning Ordinance, the Board of Supervisors can start a text amendment (§19.112.020). In that case, we ask the Board to initiate an amendment to the A-district conditional use list at §19.12.030.A.2, adding “Renewable synthetic fuel production” between “Oil extraction, non-mineral” and “Saw or planning mill,” and to amend the definition of accessory use at §19.04.018 so that a multi-parcel array on contiguous lots under common ownership or control counts as accessory to the principal use. Because every project would still need a conditional use permit, the County retains site-by-site review.
§19.12.030.A.2 (Agricultural Industries), verbatim from the February 16, 2026 Kern County Zoning Ordinance:
── Flour mill
── Glucose processing
── Oil extraction, non-mineral
── Solar fuel production (making fuels and chemicals from air and water using on-site solar energy)
── Saw or planning mill
── Soil amendment, not involving liquid chemicals or organic materials, including blending and distribution
§19.04.018 (Accessory use), with the insertion after “same lot”:
“Accessory use” means a use of land or of a building that is customarily incidental and subordinate to the principal use of the land or building located on the same lot, or on contiguous lots under common ownership or control. An accessory use may be established only after the principal use is established.
Opportunity 2: California farmland permitting
Proposal: Solar and solar-powered fuel production becomes a permitted use on agriculture-zoned land in California.
Context: For small rooftop systems, the state already sets one rule for every city and county (Government Code §65850.5). Farmland is different. Zoning is local, so each county and city decides for itself, on its own schedule, whether farmland can host solar and the equipment that turns it into fuel (§65850). According to the California Energy Commission (CEC), California also imports nearly 90 percent of its natural gas. Land that can host an in-state producer gives owners new lease income and supplies the state with gas it would otherwise import.
Currently, the CA Department of Conservation Farmland Mapping and Monitoring Program has mapped about 31 million acres of agricultural land. Of the 31 million private acres, only about 8 million acres are irrigated and 17 million suitable for grazing, leaving a fifth of the state’s ag-zoned land as not necessarily ag-appropriate. This land is essentially locked out of participation in the economy, even while Texas out-builds California in solar by 10 to 1.
Problem: Two factors set the timeline for a solar-fuel plant on farmland, and neither is predictable. First, because zoning in California is local, each county and city runs its own discretionary process, and timelines can vary drastically from one to the next. Second, though the Permit Streamlining Act sets maximum time limits for public agencies to approve or disapprove development projects, it doesn’t close the gap: its decision clock doesn’t start until environmental review is finished. In 2025, the Legislature exempted advanced manufacturing facilities from CEQA, but only on sites zoned exclusively for industrial use, so farmland is left out. A permit with no firm deadline burdens both landowners and developers because landowners can’t tell producers when, or whether, the land can be used, and developers can’t plan or finance a plant around an answer with no date.
Solution: We ask an Assembly member to carry a bill adding the section below, which would sit in the zoning chapter of the Government Code (Title 7, Division 1, Chapter 4), next to Section 65850.5, the state’s solar permitting rule for rooftop systems. Landowners and developers get a date to plan around, the state gets in-state gas production, and counties keep their existing objective standards for agricultural structures. The bill follows the approach the Legislature took in 2025 (SB 131) for advanced manufacturing on industrial land, which defines a project type and removes open-ended review.
SECTION 1. Section [____] is added to the Government Code, to read:
[____]. (a) Solar energy and solar fuel production, including solar arrays, capture of carbon dioxide from air, electrolysis, synthesis, storage and loading of products, and pipeline interconnection, are permitted uses on any parcel zoned for agricultural use. “Solar fuel” includes chemicals made in the same process.
(b) A city or county shall approve an application for a use described in subdivision (a) ministerially, applying only the objective standards that apply to barns and other agricultural structures in the same zone**, and no standard that applies only to solar energy or solar fuel production**.
(c) A city or county shall approve or deny a complete application within 60 days. An application not acted on within 60 days is approved. A denial shall identify the objective standard the application fails to meet, and a corrected resubmission shall be decided within 30 days.
(d) An application is deemed complete 30 days after submission unless the city or county identifies in writing the specific items missing. Items not identified then may not be requested later.
(e) A use described in subdivision (a) is a compatible use under Section 51238.1.
(f) This section applies to applications pending on its effective date, at the applicant’s election. An interim ordinance under Section 65858 may not prohibit or condition a use described in subdivision (a).
SEC. 2. An approval under Section 1 is a ministerial approval for the purposes of the California Environmental Quality Act.
Opportunity 3: Fuel production on Air Force land at Edwards
Proposal: The Air Force offers land at Edwards Air Force Base for domestic fuel production under the same lease authority it is using for AI data centers, starting with any of the data-center sites that go unleased.
Context: The Air Force is offering seven sites totaling 2,115 acres at Edwards for AI data centers through an enhanced use lease, the military’s general authority to lease base land to private parties (10 U.S.C. §2667). Solicitation AFCEC-26-R-0002 asks bidders with on-site generation to plan for up to 35 MW of backup power for the base during a grid outage, and in its notice of intent the Air Force said it may favorably consider energy resilience. Our Muroc test site is next door in Rosamond.
Problem: The lease is written for data centers. Bidders had to show at least three completed AI data center projects over 100 MW, so a fuel producer can’t compete for the land. Meanwhile the base’s fuel, like everyone else’s, comes from refineries and supply lines it doesn’t control, the same ones the first half of this post showed can be cut with commercially available hardware. And off base, every new fuel plant in California waits on county zoning and state environmental review (Opportunities 1 and 2).
Solution: We ask the Air Force Civil Engineer Center (AFCEC), which runs the lease, to reoffer any Edwards data-center site that isn’t leased as an enhanced use lease for energy and fuel production, and to accept proposals for fuel production on other suitable land at the base. A site of about 500 acres would host Muroc 2.0: a Terraform plant scaling to 100 MW of solar and beyond, making methane and methanol inside the fence. That is fuel the base can’t be cut off from, made from sunlight and air, and methanol is the starting point for synthetic jet fuel. The Air Force gets lease income or in-kind consideration, as the lease authority allows, and a working model of domestic fuel production for other installations. As with the data-center leases, the lessee pays for the environmental review.
BAAJA: Where permitting reform could shoot itself in the foot
S. 5653 (BAAJA) is the most serious federal permitting reform in decades, and we support its core: hard deadlines, page limits, state-review substitution, short limitation periods and categorical exclusions for disturbed land. Skimming all 417 pages, though, we found places where the text could hurt the projects it is meant to speed up, or hand opponents the case for repealing it. Most fixes below are a sentence, and we think they improve the ability of the bill to deliver its intended outcome and accelerate prosperity for all Americans.
Clocks that bite the applicant
- The 150-day window to sue can close before you know you were denied (§2201(b)–(c)). It runs from the date a decision is required to be posted, not the date it is posted or the applicant is told. Fix: run it from the later of public posting or written notice to the applicant.
- Deadlines plus personal penalties reward a fast “no” (§1106(g)(3); §2213). Missing a deadline costs senior staff half their week and limits agency heads’ travel, and BLM may “grant or deny” within 30 days. Denial is the safest way to hit a date. Fix: require a reasoned denial that can be cured without restarting the clock.
- “Incomplete” can be repeated forever (§1109; §2213(b)(1)). The clocks start at completeness, and nothing limits how many times an agency can ask for more. Fix: one completeness review, and the application is deemed complete 30 days after resubmission.
- A casual yes to “a revised schedule” waives the remedy (§1106(g)(2); §1302). Fix: consent must be written, name a new date and be single-use, and the new date is enforceable.
- A two-week shutdown erases deadlines rather than pausing them (§1106(g)(4)(C)(vi); §1403(c)(5)). Fix: extend each deadline by the length of the lapse.
- No transition rule. It isn’t clear whether applications pending at enactment get the new clocks. Fix: apply the Act to pending applications at the applicant’s election.
Fast lanes that turn out slower
- The fastest projects have the longest litigation tail (§2201(a)(3)(B); new NEPA §111). Our reading: the 150-day bars cover environmental documents, so projects approved under a categorical exclusion, or excluded from NEPA entirely, may default to the general 6-year limit. Fix: extend the bars to categorical-exclusion and no-document determinations.
- One extra permit kills the loan-only exclusion (§1102; §2301). It applies only where a federal loan is the “only” federal involvement. A single wash-crossing verification or right-of-way pulls the whole project back into NEPA and Section 106. Fix: a loan doesn’t by itself make an action federal, and review is limited to the other permit.
- Definitions narrower than real projects. “Commercially available solar photovoltaic systems” (§2213(c)(2)(D)) can exclude a novel system built from standard modules. “Previously disturbed” is frozen to a 2025 regulation in §2213 but floats in §2214. The categorical-exclusion anti-stacking rule (§1105) blocks phased growth of a small pilot. Fix: “systems using commercially available modules”; one statutory definition of disturbed land that includes former farm, mining, storage, industrial and military land, as well as land subjected to offroading and other recreational disturbances; and one follow-on exclusion of equal size unless the first phase has been found to cause a significant effect.
- Challenges to the definition of waters of the United States (WOTUS) get a 120-day window and then disappear (§1201(b)). Our reading: review under CWA §509(b) bars raising the issue later in an enforcement case. Fix: keep the appellate venue, but preserve as-applied defenses.
Remedies and powers that backfire
- Uncapped damages from the Judgment Fund (§1402(d)(2); §1401(b)(4)(D)). Awards of 50–100% of construction cost, for any energy type, with no appropriation vote, invite permit-farming. This is the provision most likely to sink the bill or draw a constitutional challenge. The winner must also repay everything if the project changes (§1402(d)(3)), which no startup can promise. Fix: cap damages at documented costs, limit them to bona fide projects (site control and documented spending on the project), and make the injunction and a court-ordered schedule the main remedy.
- Protection lost over any violation of law (§1401(b)(1)(B)). “Materially” qualifies the breach of the permit but not “otherwise violated applicable law”, so a late report becomes grounds for revocation. Fix: “a material violation of applicable law directly related to the authorized activity”.
- Litigation moves to the laws that still allow injunctions (new NEPA §111(c)(5)–(6)). The bill makes remand without vacatur the default under NEPA: a flawed review gets fixed while the project keeps building. Opponents will move to the ESA, the Clean Water Act and Section 106, so litigation moves rather than shrinks. Fix: carry the same discipline to those laws. To halt construction, a challenger must prove with site-specific evidence that the project is likely, before the court can rule on the merits, to cause harm that can’t be undone afterwards and that meets an existing statutory bar: jeopardy to the continued existence of a listed species, or destruction or adverse modification of designated critical habitat (the ESA §7(a)(2) tests, which look at the species as a whole, not individual animals); destruction of the features that qualify a property for the National Register; or fill of more than half an acre of waters covered by an approved jurisdictional determination (the limit in the main nationwide permits). Each resource must have been designated before the application was filed. The applicant never has to prove a species, site or wetland is absent, and nothing designated after filing can stop the project.
- An unreviewable CEQ override of ESA and Section 106 consultation (NEPA §107(g)(1)(C)(iv)). Today it speeds projects up, but the power is symmetric: a future administration can use the same unreviewable override to stall any industry. Fix: limit the override to enforcing the bill’s deadlines. CEQ can force a consultation to finish on time, but can’t decide its substance either way.
Doors left open to the veto
- Old documents lock out new technology (§1106; §1107). Agencies may ignore research published after the notice of intent, and may rely on a programmatic document for 10 years. Our reading: a programmatic review written around 2026 technology could be used in 2036 to screen out designs that didn’t exist when it was written, or to push them into a full review. The research cutoff also cuts the other way: an agency can ignore newer data showing a design is cleaner or cheaper. Fix: define what a programmatic document covers by footprint and effects (land area, water use, emissions), not by technology, so any design inside the analyzed envelope qualifies. Newer information may be used to show a design falls within the envelope. Require agencies to refresh programmatic documents, and the technology assumptions behind loan and grant criteria, at least every 5 years, at their own expense and without new surveys from applicants.
- Commenting is still the ticket to sue (new NEPA §111(b); §1106). The bill lets only parties who filed a substantive comment and can show direct harm bring a claim, and caps scoping comment at 45–60 days. That is the right direction, but tying standing to a comment keeps the comment period as the gate to litigation. Every opponent learns to file a “substantive comment” on every project to keep the lawsuit option open, and agencies spend months answering them to protect the record. It also catches applicants, who rarely comment on their own draft environmental impact statement and so can lose the right to challenge their own permit. Our reading: NEPA’s own text requires that environmental documents be made public, not that the public be invited to comment or that objections be answered. Fix: replace comment periods with public notice. Agencies owe no response to unsolicited comments. Standing goes only to the applicant and to parties with a concrete, direct injury to their own property or contract rights from the specific action, and filing a comment neither creates nor preserves it.
- Tribes’ new permitting power can be taken back on an outsider’s petition (§2212). A right-of-way is the right to build across land: a road, pipeline, transmission line or solar array. Today every right-of-way on tribal trust land needs approval from the Bureau of Indian Affairs, which is slow. §2212 lets a tribe with an approved regulation grant rights-of-way on its own land “for any purpose” with no BIA approval, which makes willing tribes a real siting option. But on a petition from any “interested party” the Secretary may rescind the tribe’s regulation and take the job back, the bill doesn’t say whether grants already made survive, and the United States isn’t liable for the losses. Lenders will price that in. Fix: only the tribe, or a party with a direct injury to its own property, may petition, and only on the ground that the tribe isn’t following its own approved regulation. Rights-of-way granted before a rescission remain valid for their term.
Rules that are clear, bounded and hard to game survive changes in who holds power. Keep the procedural core, close the gaps that let a deadline, a definition or a petition reopen the veto, and trim the extreme remedies and unreviewable powers that make the bill a target.