Chapter 13 Lobbying: Legislature, Executive, Agencies, Local Governments

See index to all the chapters for Putting Out the Planetary Fire

Lobbying: Legislature, Executive, Local Governments, Agencies, Permits,

– The Branches of Government
– Brief Overview of Federal Climate Agencies
– State Climate Plans
– Follow the Money -The Budget
– The Challenges of Lobbying
– The Role of Money in Lobbying
– Drafting Legislation
– Building Support for a Bill
– Lobby Days
– Getting a Bill Across the Finish Line
– Inside vs. Outside Advocacy
– Fossil Fuel Industry Invests Heavily in Lobbying
– The Role of Local Governments
– Impacting on Budgets
– Agencies’ Administrative Powers
– Impacting on administrative actions

– Permits
– FERC
– Federal Clean Air Act Permits

This chapter reviews the various roles the executive and legislative branches play in climate policies, including the role of administrative agencies and permits. It introduces the basics of lobbying.

Advocacy directed at some of the decision makers and administrative processes outlined here often involve the utilization of tactics beyond lobbying. The fight for permits against fossil fuel infrastructure for instance, will often involve various forms of protests, rallies, and even litigation.

Most groups engaged in lobbying increasingly also commit resources to strategies designed to mobilize support for their proposals. Laying out the facts for lawmakers is not what convinces them to act. In making their decisions, many lawmakers focus on how it will impact their campaign donations and re-election chances.

Lobbying is normally a long, slow process spread out over many years, especially for climate activists. As the head of the United Nations has repeatedly warned, elected officials are failing to act with the speed needed to avoid climate catastrophe.

In the real world, the Executive is usually far more powerful than the Legislature, starting with the role in the budget. Even when legislators pass a bill, it is up to the Executive to determine how well it is implemented. Most climate activists and public interest activists end up devoting far more resources to legislators rather than executives since they have easier access to rank-and-file lawmakers (although not their leadership). Professional lobbyists for special interests devote more resources to the Executive.

Local governments have a vital role to play on climate, especially with the ongoing gridlock in Congress. An increasing number of local governments and activists are developing their own Green New Deal campaigns, often with a focus on decarbonizing buildings. Local governments also need to start providing leadership in the siting on renewable energy projects, rather than passively waiting for developers to make an unacceptable proposal.

The Branches of Government

In high school civics class, we learn the basic elements of the governmental process, including how bills are passed. At both the federal and the state level, power is divided among three branches of government – legislative, executive, and judiciary – with a series of checks and balances to prevent any one branch from becoming too powerful. What we are seldom taught is the true power relationships that determine what the government does.

The legislative body (city council, town board, county legislature, state legislature, Congress – states use different terms) passes bills to address particular problems. The executive (President, Governor, Mayor, County Executive, etc.) implements them once they decide to sign them into law. The legislative body also passes a budget to fund the various operations of the government, usually drafted by the executive, who is then responsible for its implementation and for supervising government employees. The courts have the power to step in when the legislature or executive is accused of overstepping or abusing their powers, and to resolve legal disputes among various parties.

Executives are in charge of the day-to-day operations of government, which usually includes overseeing dozens of (local, state, federal) agencies. Of particular importance to the climate are the permits issued by various agencies, establishing the conditions under which fossil fuel companies and others are allowed to pollute.

Overview of Federal Climate Agencies

At the federal level, one critical agency for climate is FERC (Federal Energy Regulatory Commission), which regulates the transmission and wholesale sale of electricity and natural gas in interstate commerce and regulates the interstate transportation of oil by pipeline. FERC is somewhat different from a traditional federal agency since it is governed by a bipartisan appointed 5-member commission. (See section on FERC.)

Every state has its own environmental agency that oversees permits and is often the lead agency to implement the federal Clean Air Act and nonpoint sources under the Clean Water Act (otherwise overseen by the federal Army Corps of Engineers). Myriad other federal and state agencies play critical roles related to climate change (e.g., transportation, housing, etc.).

(Note: since this is about lobbying, this is not a detailed overview of the various agencies or their roles in climate policy. For more detailed information, see the footnote.[1])

The federal Clean Air Act requires the Environmental Protection Agency (EPA) to work with states to reduce greenhouse gas emissions, including carbon dioxide and methane. The Department of Energy works with the private sector to develop and deploy clean energy technologies, and to set energy efficiency standards for appliances and equipment. The Department of Transportation sets fuel-efficiency standards for motor vehicles. The Department of Defense is the single largest user of fossil fuels and plans for the global security consequences of climate change.[2] Federal Departments of Interior and Agriculture also play significant climate roles.

State Climate Plans

Thirty-three states have released or are developing climate plans.[3] Such plans normally include greenhouse gas (GHG) emissions reduction targets and needed steps, along with resilience strategies, clean energy targets, and economic and social goals. Advocates always need to push for stronger and faster timelines, especially with respect to reducing emissions, while ensuring adequate funding to assist residents in the transition to a clean economy.

Follow the Money – the Budget

Money – the budget – is invariably the most important policy document adopted annually by a government. The executive (including executive agencies) is far more powerful than the legislature in the actual running of government, including determining how money is spent (and who gets what contracts). Besides spending the funds approved by the legislature, the executive has wide discretion in how laws are (or are not) implemented. Most climate and other public-interest advocates tend to spend too much time trying to influence legislators and not enough on the executive, partially because legislators are expected to meet with their constituents. But focusing on legislators rather than the executive, particularly at the state and local level, is not a mistake made by fossil fuel companies and other special interests.

The Challenges of Lobbying

There are many articles and books that provide more detailed information about lobbying.[4] Remember the differences in roles between the executive and legislative branches, both in developing legislation and enacting a budget.

It’s often said that politics is the art of compromise (or the possible.)[5] That is not a great way however to take the radical action needed to avoid climate collapse. Legislatures are not very democratic institutions. Power is concentrated in the hands of a few senior leaders. Those who rise to power do so by learning to accommodate the demands of campaign donors and special interests while responding to legislators in their caucus who feel pressure from local voters. Legislators who first come into office as reformers almost always undergo a major transformation if they attain leadership positions. They have to demonstrate not only a willingness but a talent for developing compromises. Such compromises often only appear at the last moment when a bill has gotten so much support that something has to be done. But grassroots advocates are usually not in the room when the final deals are cut.

Another lesson I learned early on is that passing a bill is not the end of the process. Next, you have to convince the executive to sign the bill into law, which usually means fighting the fossil fuel industry whose campaign donations give them much more access and influence than grassroots activists can ever hope to have. Then, if the bill is signed into law, you have to work to ensure that it’s effectively implemented by the executive.

More than three years after New York passed one of the strongest climate laws in the country, the state had not even finished work on the “scoping plan” to guide implementation by state agencies (finally adopted on December 19, 2022). Legislatures usually delegate to government agencies the power to write the rules and regulations to actually implement legislation. This is even less of an open and transparent process than the legislature. It may require legal and scientific expertise in determining details. Industry has the resources to deploy teams of high-priced lobbyists and experts who make a living from engaging in such activities, while part-time citizen activists are left to scramble to figure out the rules of engagement. The agency may need to go back to the legislature to request additional funds to hire staff to oversee enforcement.

Setting goals for government action is one thing (e.g., cut emissions by 40% by 2030). Developing and implementing the steps, timelines, and funding to achieve such goals is another. Getting agencies to act invariably takes longer than expected, as they often engage in meeting after meeting, seek public comments, hold hearings, etc. Public input is good, but it can act as a cover to delay decision-making – and often the public comments are largely ignored. Special interests may also use the courts to challenge either a law or the manner in which the government implements it.

Most of my experience has been lobbying in the NYS Legislature, with somewhat less experience with Congress. I always remember the scene in Steven Spielberg’s movie, Lincoln, when the President, needing to get Congress to do something they don’t want to do – abolish slavery – tells his staff that he needs to “bring in some Albany lobbyists.”[6] Large states (NY, California, Texas, Florida) tend to be more challenging for citizen advocates due to the large size of their economies and populations. Special interests, including the fossil fuel industry, tend to put more resources into lobbying in large states than in small. In the larger states, the legislature usually has central staff under the direction of the leadership that play the key role in developing policy and bills.

Since they represent the leadership, they are critical to focus upon. Smaller states and local governments are often more open to input from citizen activists.

Remember that corruption still permeates our political systems. For instance, dozens of state officials in NY, including the top leadership, have been convicted of corruption in recent decades.[7] Corruption of course is not limited to the U.S. Scandinavian countries and New Zealand are the least corrupt; the U.S. ranks 27^th.[8]

Unfortunately, state legislatures dominated by Republicans are unlikely at this point to enact climate legislation. This has also been true of Congress, which has been gridlocked by partisanship in recent decades, with the situation worsening in recent years. Most significant national environmental legislation was adopted by Congress during the Nixon administration – now half a century ago. While many Americans believe the U.S. is a world leader on environmental legislation and regulation, that has not been true for decades.[9] And the idea that environmental regulators in the U.S. are overly zealous is far from true, especially since the election of Ronald Reagan as president in 1980.

Many grassroots climate groups engage in lobbying by following the lead of other groups that develop and track proposed legislation. They call on their allies and members to call, write, and/or meet with elected officials; write memos of support or opposition to bills; testify (or just show up) at public hearings; attend rallies or press conferences; generate media coverage; organize lobby days.

The Role of Money in Lobbying

I first began working with the New York State legislature in 1973 when, as a college student, I helped found NYPIRG (New York Public Interest Research Group). NYPIRG, part of the citizens’ movement inspired by consumer and good-government advocate Ralph Nader, worked on a variety of consumer, environmental and educational issues. By the time I graduated from law school in 1977, I understood how limited community groups were in their ability to impact the legislative process, because they do not have the money (campaign donations) to effectively compete with wealthy special interests. Those lessons inspired me to become a grassroots community organizer so that I could help mobilize the general public to demand “action for a change” (that being the name of the book by Donald Ross on how and why to organize PIRGs).

The biggest priority for most elected officials, especially in the short-term, is to get re-elected. That places enormous pressure on them to raise funds for media buys, mailings, campaign staff, etc. Many state legislators, and all members of the U.S. House of Representatives, must stand for re-election every two years, meaning they’re constantly fundraising. Congressmembers often spend more than half their time, sometimes 6-8 hours a day, dialing for dollars, not only for themselves but for their political parties.[10]

A campaign donation is the best investment that Wall Street can make. It is returned many times over in terms of favorable laws, tax breaks and subsidies, and government contracts. While state and federal governments prohibit outright bribery in obtaining government contracts, few states restrict campaign contributions from businesses seeking government contracts. Lobbying firms also often hire former elected officials, both to reward them for past services and to help the firms open doors to meet with their colleagues still at their former agency.

One study found that a $1 corporate campaign contribution is worth $6.65 in lower state corporate taxes. Another found that an increase of 1 percent in lobbying expenditures reduced a corporation’s next-year tax rate between 0.5 percentage points and 1.6 percentage points. The vast majority of money spent on campaign donations and lobbying comes from wealthy citizens and business interest groups. Businesses with the most to gain from favorable public policy engage in the most political activity. This is especially true on issues that have less public visibility.[11]

Drafting Legislation

If your group decides to take the lead on developing legislation, find someone who can explain to you how the process actually works in the legislative body you’re targeting.[12] A training for your group can be helpful. Some of the larger climate groups hire professional lobbyists to coordinate their efforts. Make sure you know the “protocols” of working with legislators – there are a lot of egos involved and you want to avoid creating problems by breaking one of the many “unwritten” rules.

If you are investing significant resources and funds in lobbying, you may need to register with the government you are seeking to influence and file financial reports. If your group is incorporated as a nonprofit, you are still allowed to lobby, though there are some restrictions for tax-exempt (501c3) groups. A general rule is that such groups cannot invest a significant portion of their budget (e.g., 20%) in legislative activities.[13] (The main prohibition on c3 groups is on endorsing candidates in elections.)

Be aware of timelines and deadlines in the legislative process (e.g., the last day to have a bill introduced). Most legislative bodies are highly partisan. If a legislator is a member of the minority party, they normally have no ability to get a bill passed (and in NY for instance, they are often not even allowed to co-sponsor bills introduced by members of the majority). In many legislatures, bills with the exact same language must pass both houses (this is not true in Congress, where there is a lot of negotiation after both houses pass their initial bill).

Most rank-and-file legislators have little actual power. Instead, ultimate decisions rest in the hands of the leadership, who weigh the concerns of individual legislators and campaign donors as well as the potential impact on elections. That is one reason why legislative leaders receive by far the largest donations.

Learn the rules about how a legislative bill is written. You may need someone with expertise in legislative bill drafting, such as figuring out what part of existing law to amend and what subjects can be covered by a particular bill (e.g., some states limit bills to one issue area).

Bills normally must go through a succession of various committees before getting to the floor of the legislature for a final vote. At the state level, this last step is often pro forma, with the decision having been made to pass it before it is allowed to come up for a vote. Committee chairs often have significant discretion as to what bills get out of their committee, so it is helpful to have the chair (or at least a member of the committee) as a lead sponsor. Bills can have multiple sponsors and the number of sponsors is a sign of the level of support.

A bill first goes to the committee that most covers the subject matter addressed by the bill. Figure out what committees the bill has to go through as soon as possible; you may want to try to steer the bill to a committee with a sympathetic chairperson. Learn who heads each of the committees, who are the members, and when do they meet. Are the committee meetings open to the public? Is a public hearing required on the bill?

If the bill has a financial impact, it will probably eventually have to go through a finance committee. Usually if a bill seeks to allocate a specific amount of funds, it will have to be part of the budget, which is normally adopted once a year. And if your bill does require funding to implement, you may then have to lobby to include that in the subsequent budget.

In many legislative bodies, the political parties meet by themselves behind closed doors to discuss what they want to do. It is important to get legislative supporters to raise your bill in these meetings, urging their colleagues to pass it. Legislators are limited in the number of times they can speak up in such meetings to support a bill.

Choosing the right lead sponsor (one in each house) is critical. Will they be willing to devote the time and energy to pass the bill, which often can require trading favors with other legislators? Is the legislator well-liked by other members and the leaders? How many other bills are they the lead sponsor on? Leaders like to have members in competitive districts pass a few bills to show local voters that they have clout.

It often takes several years before a new bill can be passed (a real problem given the speed that climate change is occurring). For climate groups, passing a bill tends to be a long and laborious process, with each step taking weeks if not months. There is invariably a mad scramble in the last few weeks of the legislative session when everyone is rushing to get their bills across the finish line. This rush is especially pronounced at the state level, since many state legislative bodies meet only for half a year or less, and four meet only every other year.[14] It is very frustrating to have spent months slowly moving your bill from one committee to another, and then to watch as some moneyed special interest swoops in at the last moment to get a bill passed (or killed) in a matter of days.

Even for major bills, legislative leaders often only pay attention at the last moment. This may also be the moment when the executive decides to intervene, telling the leaders what changes they would need before they would be willing to sign on. Major weakening compromises often are made in those closing moments, which can undercut much of the impact of the bill. This is a moment when you need to pressure your lead sponsor to stay strong (which can be a challenging task since the leaders hold most of the power).

Building Support for a Bill

In addition to getting as many legislators (from the correct party) as possible to co-sponsor the bill, you want as many organizations as possible to endorse the bill. Once again, find out the normal process in your city / state for showing support. In New York, you want to get as many groups as possible to write what are called memos of support (provide them with a sample to make it easy).

Remember that most legislation is driven by politics, not facts. Figure out who is likely to have problems with the proposal and see if there are changes that can get them to be at least neutral if not supportive. However, avoid the common mistake of “negotiating with yourself.” Do not amend a bill to seem “more reasonable” without having received an express agreement from legislators or key influencers to support the bill. If you unilaterally amend a bill to make it “more acceptable,” the opponents will continue to further weaken it before it is passed.

While it is highly unlikely that you can convince fossil fuel companies to support your bill, you do not want labor union, environmental justice, or other community groups opposing it. For instance, you may want to add labor standards (e.g., prevailing wages) or have a minimum amount of funding (e.g., 40%) that goes to environmental justice communities. Talk to such potential allies early on to get their input and feedback.

Determine which groups legislative leaders pay particular attention to and try to get those groups to weigh in (e.g., attend legislative meetings with you, write memos of support). Get the phones at legislators’ offices, especially leadership, ringing off the hook. Find constituents who live in key legislative leaders’ districts to join the effort. Pay attention to caucuses within the legislature to get their support.

Be polite, be persistent, be visible. Be bold. Remember that the world no longer has any time left for incremental changes. Avoid yelling. Threatening legislators is usually a bad strategy. Avoid giving out false information; if you cannot answer their question on the spot, tell them you will get back to them. Remember that politicians get elected because they have perfected the art of making people believe they are on their side and are their friends.

Be clear about what your ask is of the legislator. Pledges to “vote for the bill when it gets to the floor” are not meaningful since as previously noted, in most legislatures (not Congress) decisions have already been made by the time a bill makes it to the floor. Legislators can be asked to co-sponsor the bill, or to talk to leadership to move the bill. Follow-up is key. Call the office in a week or two to see what the legislator (or their staff) has done or decided (try to determine which staff person the legislator pays the most attention to).

Lobby Days

Many groups organize lobby days (see how to guides [15]) where they bring dozens if not hundreds of individuals to the Capitol or Congress to push legislation. Such days can be for one or a series of bills. In addition to scheduling appointments with legislators, central staff, and the Governor’s (executive) office, the day will normally include a media event (press conference or rally). Lobby days were changed to virtual meetings during COVID.

For lobby days, transportation (e.g., buses, vans, ride sharing) needs to be organized. You often need a meeting place beforehand to get participants divided into their lobby groups, get some food, and get a short legislative briefing. If a space is not available in the legislative building, find a nearby church, library, etc. Be mindful of transportation and parking issues.

Lobby day participants are divided into teams, with each having up to six meetings (though usually fewer). Speaking roles at the meetings are divided up beforehand among team members: who facilitates the meeting; who will explain the bill(s); who can represent various constituencies; who has a personal story; who lives in the legislator’s district. The coordinator keeps time, keeps the discussion on track, and makes sure that the key ‘demands’ are focused on. Each legislator and staff should also receive a packet of information.

Start making appointments early – a month to six weeks beforehand. Figure out who your key targets are (e.g., members of the committee that the bill has to go through). Have a shared spreadsheet to keep track of the status of the request. You often need to make several calls, and may have to fill out a form or send an email with details as to the bills to be discussed and whether any constituents of the legislator will be attending.

Smaller lobby days can also be helpful, where key organizers meet with potential lead bill sponsors, central staff, legislative and executive leadership etc. Since fewer people are involved, the logistics are simpler, and meetings can be organized more quickly. Many groups will do a series of small lobby days leading up to one large mass mobilization that also includes rallies and media.

Keeping a record of each meeting is crucial (who was met with, what if anything did they commit to, what follow-up is needed). The follow-up after a lobby days is critical. Legislators and their staff will have multiple meetings every day when the legislature is in session and often forget the details of the meeting soon after it is over. Following up with phone calls helps convince them that your group is persistent, and that they need to pay attention.

Getting a Bill Across the Finish Line

Getting an accurate count on the number of “yes votes” for your bill is critical but challenging, as lawmakers are often evasive as to their positions especially if there are competing interests. One of your first tasks is to line up support among the members of the committee where the bill will first be voted on. Committee chairs are usually reluctant to bring up bills that are not guaranteed to pass.

To track your legislation, you may want to create a shared online spreadsheet listing all the legislators you are targeting as co-sponsors and the members of your organization who are assigned to contact them, with a column for notes (e.g., what if anything the legislator – or more likely their staff – say).

While having a legislator sponsor a bill normally means they will vote for it, it is not guaranteed. Legislators may agree to co-sponsor a bill to appease a well-organized group of local constituents who are advocating for it. Special interests understand that legislators may take certain actions for show, but they are ok with that as long as they “do the right thing” when the real decision is made.

A GMO labeling bill in NY was blocked when a co-sponsor failed to vote to move it out of committee. The main legislative sponsor of the single payer healthcare bill in New York publicly complained in 2021 that co-sponsors in the closed-door conferences of the Democrat legislators were speaking against allowing the bill to come up for a vote after NYC public employee unions began opposing it. Both houses of the California legislature claimed a willingness to pass single-payer healthcare legislation when they knew that the Republican governor would veto it; once a Democrat became governor, the bill stalled.[16]

A comparable situation occurred in the closing days of the 2022 NYS legislative session when the NYS Assembly refused to bring up a bill to enable the state’s public power authority to build renewables even though the bill had passed the Senate and the bill sponsor contended that a majority of legislators had committed to vote for it. The Assembly Speaker said that his vote count was different.[17]

Climate groups often end up meeting with staff rather than the legislator. This is not necessarily a bad thing if the staff person has a real role, such as chief of staff or legislative director. Staff in legislative bodies, especially the central staff, are often more involved in determining the specifics of legislation than lawmakers. However, having to meet with an intern who is there only for the session is often a sign that the lawmaker is not taking the group seriously.

The chances of meeting with the lawmakers themselves are increased if you let them know when you call to set up the appointment that at least some constituents will be attending. You are also more likely to meet with them back in their district offices, which has the advantage of making it easier for local residents to attend (“Lobby days” at state capitols can often be mob scenes, with dozens of groups organizing visits). And always be nice to the secretaries and similar office staff as they serve as the gatekeepers and may try to get you in if you have a friendly relationship with them.

When it is essential to talk to a lawmaker directly and you cannot get an appointment, one strategy is to stand outside of the legislative chamber or committee meeting room when they are expected to show up and grab them on the run. Be prepared to quickly get to the point and the ask, as your time will be limited (practice your 40-second elevator pitch). You can often also send in your business card or other note to a legislator via the “sergeant of arms” outside the floor of state legislatures to meet with them “off the floor.”

One reason groups hire lobbying firms is to leverage their long-standing relationships with legislators and staff. Their access is also increased when the firms’ clients make campaign contributions or participate in get-out-the-vote efforts. Such firms often employ former legislators or legislative staff. But do not underestimate the power of dedicated and committed volunteers who are willing to (politely) be bulldogs in the pursuit of lawmakers.

Inside vs. Outside Advocacy

As climate groups have developed more experience with lobbying, they have become For various reasons (starting with their funding), many of the larger climate groups with funding and staff are more committed to the pragmatic approach of trying to win whatever incremental reforms are possible. They argue that is how the real world of politics works and that it is important to begin moving in the right direction; hopefully, the government will accelerate its actions in the future. They contend that if you promote too radical an agenda, lawmakers and government officials will view you as out of touch with reality and will just stop listening. These are also often the groups that legislative leaders listen to, since they have been around for a longer period of time and are well known to the media and public.

I have always tried, especially in my “outside public role,” to advocate for what is necessary to solve the problem, not what I think legislators will feel comfortable in agreeing to. One advantage of strong campaigns that push the envelope is that they expand the range of what is considered possible, making it more likely that at least the more moderate positions pushed by others will succeed.

I always tell advocates to avoid negotiating with themselves. If you are going to weaken your position in order to increase the likelihood of getting something done, make sure you get some agreement from the other side (lawmakers, executive, etc.) in exchange. Legislation always gets weaker as it goes through the legislative process. For instance, if you agree to extend the deadline for emission reduction in order to appear reasonable, usually even more time and wiggle room will be added before the final agreement. Start with a position that you feel is both correct and defensible and negotiate from there, rather than compromising with yourself before even engaging with decision makers.

In the 2021-22 effort for the Democrats’ federal climate package, the Build Back Better proposal was far too weak to begin with and then shrunk to a tenth of its initial size by the time the Inflation Reduction Act was eventually passed. Yet the big climate groups applauded wildly every time the Democrats announced their proposals. By promoting each compromise as the Democrats negotiated with themselves, climate groups guaranteed that the final agreement would be that much weaker.

The Fossil Fuel Industry Invests Heavily in Lobbying

The fossil fuel industry invests tremendous resources in lobbying both federal and state governments. Concerns have been raised internationally about the massive number of their lobbyists at the international climate COPs (Conference of Parties). In addition to influencing government officials, the industry works hard to frame the narratives around climate issues through public advertising and the funding of third-party groups – and then tries assiduously to cover its tracks.[18]

The five largest publicly traded oil and gas companies — ExxonMobil, Royal Dutch Shell, Chevron, BP and Total — together invested more than $1 billion into “misleading climate branding and lobbying” in the three years following the Paris Agreement. This included portraying themselves as part of a solution to, rather than a cause of, climate change, and highlighting their investments in clean energy while funneling far more money into dirtier fuel.[19]

The industry’s lobbying is most effective if they can hide their role in it. In 2022, a bill to ban gas in new buildings in New York after 2024 was defeated, even though it initially was included in the Governor’s budget proposals and then passed the state senate. The bill was killed in the lower house by an industry-financed lobbying campaign complete with TV ads, social media disinformation, campaign contributions, and high-priced lobbyists. The industry hid behind a fake “astroturf” group with a nice-sounding name – New Yorkers for Affordable Energy – that the industry created. They were also able to get labor unions representing workers in the gas industry to oppose the bill. The Texas Public Policy Foundation, which has received considerable funding from Big Oil and the Koch network, is a potent force obstructing the national transition to clean energy.[20]

Ahead of the 2022 midterm Congressional elections, when the Republicans were expected to regain control of at least one house (they did take the House narrowly, but Democrats kept the Senate), the fossil fuel industry was already lobbying to rescind parts of the climate agenda the Biden administration had passed. A key target if they had won control of both houses was going to be the $4.5 billion earmarked for rebates of up to $14,000 per household for low- and moderate-income families who install electric-powered heat pumps, water heaters, induction stoves and other devices that would replace appliances that use natural gas.[21]

The Role of Local Governments

Think globally, act locally. Local governments have less power over policy and commerce issues than the federal and state governments, but they still have a significant role in the transition to clean energy – especially with Congressional action unlikely for the near future.

It is usually easier to gain access to local government officials (except in the largest cities) than to Congress or state legislators. Local governments are more likely to have various advisory committees which residents can join to provide input on issues such as sustainability, environmental issues and increasingly, climate planning.

Paid lobbyists for the fossil fuel companies are also less evident at the local level, except in the communities where there are large fossil fuel operations. Local governing bodies (city councils, etc.) also tend to meet year-round, so there is less time pressure than with state legislatures that adjourn for much of the year.

To be effective, first determine what powers and authority your local government has and does not have. Remember that federal law normally preempts state law when they conflict, and state law prevails over local laws that conflict.[22]

Local governments can also play a critical role in the siting of renewable energy projects, both utility-scale and those for individual homes and buildings (for instance, rooftop solar). This unfortunately is one area where local governments are sometimes a hindrance.[23] States often develop model energy-reducing building codes that local governments are able to adopt. Local governments play a significant role in transportation issues, especially regarding mass transit including buses. They also have the power to lead by example, such as committing to purchase 100% renewable electricity for government buildings; retrofitting existing government buildings to zero greenhouse gas emissions; and, purchasing all-electric vehicles for government use, including school buses.

Local governments can also play a critical role in the siting of renewable energy projects, both utility-scale and those for individual homes and buildings (for instance, rooftop solar). This unfortunately is one area where local governments are sometimes a hindrance.[24] Most local residents prefer the status quo over any new development on nearby vacant land, whether it is a few houses or a large-scale solar or wind farm. Many communities have enacted moratoriums on solar projects to give themselves time to “study” the issue.[25] Some states have begun to take away local jurisdiction over renewable development, because of such foot-dragging.

Climate activists can help develop public support for such local renewable energy projects by working to get renewable developers to solicit community input at the beginning of the project rather than seeking approval after a site has been selected. Activists can also persuade their local governments to be proactive, working with local residents to determine the best local sites for renewable projects and then inviting developers to make it happen.

Climate groups in the Capital District of New York have compiled examples of actions that local governments have taken to promote climate action and sustainability.[26] Many communities have launched programs to assist residents to decarbonize the buildings, such as the Green New Deal program in Ithaca NY.[27]

Many communities have adopted local Climate Action Plans,[28] often with the support of their state governments.[29] New York’s Climate-Smart Communities program, for instance, assists local government in developing plans to inventory and reduce emissions; decrease energy use; shift to clean, renewable energy; implement climate-smart land use; enhance community resilience to climate change; support a green innovation economy; and inform and inspire the public.

Communities can assist residents in transitioning to a clean energy future. In addition to providing financial assistance, they can make residents aware of the various resources available to them, including reliable local contractors as well as federal and state grants. They can help obtain lower prices by taking bids from local vendors to provide discounted prices. They can develop local community solar farms.

Ten states now allow local governments to utilize Community Choice Aggregation (CCA) to purchase electricity. CCA allows local governments to procure power on behalf of their residents from an alternative supplier, while still receiving transmission and distribution service from their existing utility provider. If a municipality decides to join, all local residents are enrolled, though they can opt out. The idea is that by combining the purchasing power of tens of thousands of residents, prices will be lowered. CCAs are designed to give communities more local control over their electricity sources, more green power than is offered by the default utility, and/or lower electricity prices. CCAs can also bid to buy power from local renewable energy facilities.[30]

Many communities receive their electricity through municipal electric systems or rural cooperatives. These systems tend to charge lower rates than investor-owned utilities. To date, such systems have not been particularly aggressive in developing or utilizing renewable energy systems. Climate advocates can work to influence the local board to change that, and to promote the expansion of various conservation and efficiency measures.[31]

Impacting on Budgets

Follow the money. The budget is often the most important policy document a government adopts, reflecting what its real priorities are.

Budgets provide direct allocations for particular cost items, including grants, subsidies, procurements, and transfers to other governments. Funds are also allocated via tax credits and deductions.

It will cost a lot of money to make the transition to a clean energy future. A lot. Much of the funding will need to be included in various governments’ budgets. Cost estimates for moving the U.S. to 100% renewable energy range from a few trillion[32] to $27 trillion.[33]

Less clear is how much of that is new money. A study done by the NYS Climate Action Council estimated that it would cost $3 trillion to move to 100% renewable energy by 2050 but the authors assumed that 90% would come from redirecting existing energy expenditures (meaning at least $300 billion in additional funding would be needed).[34]

However, the amount will be offset by reduced health care costs, lower energy costs, and increased productivity and jobs. A study by Prof. Mark Jacobson at Stanford University found that “a global effort to transition to 100 percent renewable energy by 2050 would cost nations $73 trillion upfront — but the expense will pay for itself in under seven years.”[35]

One source of funding is the 2022 Inflation Reduction Act. While far too small, is still the single largest investment in fighting climate change in American history.[36]

A budget request might be to provide financial support for low-income families who install heat pumps. Or to purchase electric buses for all schools. Or to energy retrofit all public buildings. Or to convert public housing to geothermal. Or to subsidize the construction of renewable energy. But whatever your proposal is, be prepared to detail its merits.

While legislative bodies have the power to change the budgets proposed by the executive, big changes are rarely made. Thus, advocates should try to impact initial climate related budget proposals. As with the legislative process, you need to understand your local government’s rules for adopting a budget. This includes the timeline; how specific items need to be (e.g., should individual projects be directly itemized); and how much ability does the legislative body have to make changes.

Have initial discussions with budget officials in the executive branch at least three months before the proposed budget is to be released. If the executive has the ability to amend the budget (e.g., within a month after submitting), continue to meet with budget officials until the final proposal is released. After that, target the legislative committees that put together their response to the proposals.

In New York for instance, the state budget is released around the third week of January. The Governor has 30 days to amend it. The legislature begins holding hearings on the budget in early February, where members of the public can testify (each for a few minutes, after hours of waiting). Each house releases its proposed changes by mid-March. Any changes that advocates want must be included in the proposal of at least one of the houses. The Governor and representatives of the two houses then negotiate on a final budget, due by the first of April. (Local governments have their own timetables for their budgets.)

In New York for instance, the state budget is released around the third week of January. The Governor has 30 days to amend it. The legislature begins holding hearings on the budget in early February, where the public is allowed to testify (for a few minutes after hours of waiting). Each house releases their proposed changes by mid-March. It is essential that any changes advocates want be included in the proposals of at least one of the houses. The Governor and the two houses are then supposed to agree on the final budget by the first of April.

In New York, almost all of the funding for renewable energy has not been part of the In New York, almost all funding for renewable energy has come not through the state budget but instead from surcharges imposed on utility bills through the ratemaking procedures of the state’s Public Service Commission (PSC). The PSC’s administrative rules make it exceedingly difficult for the general public to have much input.

Congress has an even more complex process though they seldom meet the supposed deadline of late October. And once Congress has approved funding levels, there is a separate process to appropriate funds.[37] The 2022 IRA climate funding was approved in the Senate by using the budget reconciliation process, which is allowed no more than twice a year and can be approved by fifty-one votes without the opportunity to filibuster (which would require sixty votes to overcome.[38]

Whether federal, state, or local, a government’s overall fiscal condition has a major impact on what funding can be obtained. It is harder to get new or additional funds when the government is facing a projected deficit – especially if the budget must be balanced, as is true in most states and virtually all municipalities.

It can be helpful (though not essential) to look for ways to fund your request, either by transferring funds from an existing budget item (e.g., cutting tax breaks for fossil fuels) or suggesting a new funding stream. Groups in New York have tried unsuccessfully to raise $1o billion annually for climate programs in the state budget, either through a version of a carbon tax / polluter penalty / climate superfund or by “taxing the rich.” Now these groups are calling for the establishment of a $10 billion fund for climate implementation, but leaving it up to legislators to determine how to fund it. The state’s Climate Action Council, established via state law three years ago to develop a “climate scoping plan,” has indicated that at least ten billion dollars is needed annually (and probably quite a bit more) to meet the state’s climate goals.

Sometimes you can get lucky, and funds are made available either through a new funding stream from another level of government, or from a settlement reached in some enforcement case (e.g., Volkswagen’s settlement of its Clean Air Act case[39]). However, tying the funding request to a controversial proposal (e.g., making funding dependent on enactment of a carbon tax) may undercut support for your funding request.

Building support for a funding request is similar to building support for proposed legislation. Show support from as many organizations and constituencies as possible. Politicians like to see how voters will benefit from the proposal. One advantage to requesting funding for particular action is that specific objections are less likely. For instance, fossil fuel companies will often not directly oppose subsidies for renewable energy, as long as the subsidies do not directly undercut their own business operations. The NY Farm Bureau for instance generally opposes measures that require farms to be organic (e.g., the banning of pesticides), but will support financial incentives for farmers who want to go organic.

One grassroots campaign I was involved in successfully amended the NY state budget to require that $88 million, originally allocated to build new fracked gas turbines in a low-income African American community to power the state capitol, instead be used “to the extent practical” for renewable energy projects.[40]

Another important budget strategy is to try to access the discretionary funding received from other levels of governments, such as federal grants to states and state grants to local governments. Such funding tends to allow for more direct support of individual projects. For instance, sixteen states plus DC and Puerto Rico allocated $2.1 billion of their COVID relief funding in 2021 (American Rescue Plan) toward environmental initiatives. [41] It’s also important to remember that promoters of corporate greenwashing and false climate solutions will be trying this tactic, especially as money and tax breaks become available under the Inflation Reduction Act. You’ll need to work to stop funding for these initiatives, in addition to seeking funding for your projects.

Agencies’ Administrative Powers

Federal and state agencies have more power to act on climate related matters than most people realize. Agencies, as the administrative arm of the executive, have the responsibility of implementing laws once they’re passed. This includes writing detailed rules and regulations clarifying the law as well as overseeing the expenditure of any allocated funds. Agencies can also develop policy recommendations for adoption by the legislature and the executive.

Agencies have quasi-legislative and quasi-judicial powers, the latter because of their authority to interpret laws, similar to a court.[42] Agencies also have the power to issue permits, such as setting limits on the amount and kinds of pollution allowable under the Clean Air and Clean Water Acts, and levy fines (or potential to revoke permits) for noncompliance (see section on permits).

Legislative bodies lack the time and expertise to drill down into the “science” of particular issues (e.g., what level of exposure to a particular contaminant is safe for the public?) and have increasingly delegated that role to administrative agencies.

However, the U.S. Supreme Court in the summer of 2022 significantly limited the power of one such executive agency – the EPA – to write rules to regulate carbon emissions from power plants. This ruling (West Virginia v. Environmental Protection Agency) called into question how far agencies can go in writing regulations. One of President Obama’s most important climate initiatives (though with limited long-term impact due to political and legal challenges) was to direct the EPA to adopt carbon pollution standards for the power sector.[43] In West Virginia, the Supreme Court reviewed the EPA’s approach and held more broadly that federal administrative agencies must point to “clear congressional authorization” when asserting the power to make decisions of “vast economic and political significance.”[44]

Many federal agencies have some jurisdiction over aspects of the environment; for instance, thirteen federal agencies are included in the U.S. Global Change Research Program which Congress mandated to coordinate federal research and investments in climate change.[45] More than twenty federal agencies have published climate change adaptation plans.[46] It remains to be seen whether these agencies’ actions will be challenged under West Virginia or will face other attacks.

Executives may also use agencies to act when the legislative body is unwilling or unable to pass new laws.

Section 1 of Article II of the federal constitution (the Executive Power) is viewed as granting the President authority to issue executive orders and every president since George Washington has done so.[47] With Congress paralyzed by partisan gridlock, climate advocates over the last decade have outlined executive actions that a president could take on climate, starting with declaring a climate emergency, which would unlock additional powers. ClimatePresident.org outlines dozens of executive actions that President Biden was urged to take.[48] By declaring a climate emergency, the president would unleash additional powers under the National Emergencies Act.[49]

“The authority for Governors to issue executive orders is found in state constitutions and states as well as case law or is implied by the powers assigned to state chief executives.”[50]

The powers and roles of agencies vary considerably from government to government. Kentucky, for example, places detailed restrictions on the extent to which state agencies can create laws, while California provides agencies with substantial rulemaking authority.[51] You’ll need to research which particular agency to target, and how, to reach your goals.

The Administrative Procedure Act governs how federal agencies develop and issue regulations, including publishing notices of rulemaking in the Federal Register and providing opportunities for public comment.

While agencies are normally under the control of the executive, a few agencies may have quasi-independent appointed boards to oversee their functioning, or which vote on major administrative actions or policy decisions. Some quasi-judicial agency actions may be under the direction of an administrative law judge, which is supposed to be free from direction by the executive or legislative branches.

Federal and state agencies that oversee the energy industry often have significant oversight of the production, sale, and distribution of electricity. This can include setting and/or enforcing Renewable Portfolio Standards as to how much renewable energy utilities under their jurisdiction have to obtain[52], as well as efforts related to conservation, demand management, net metering, etc. These powers make these agencies significant players – in New York, for instance, almost all of the funding to subsidize renewable energy comes not through the state budget but through surcharges that the state Public Service Commission has imposed on utility customers.[53]

The California Air Resources Board[54] has been a national leader in taking actions to reduce greenhouse gas emissions and promoting renewable energy. Its rules on fuel emission standards from vehicles are especially critical since federal law allows states to adopt either the California or federal rules, the former invariably being more environmentally friendly.[55] The stronger California standards also have a significant forcing effect on auto manufacturers, who tend to build their cars to meet those standards so as not to lose access to such a large market; thus, a car sold in Georgia may actually be “cleaner” than the law of that state requires.

Environmental groups from the nine states in the Northeast cap-and-trade program for electricity producers (the Regional Greenhouse Gas Initiative) worked together to convince the nine participating states to upgrade the provisions, particularly on the cap on emissions, during the once in every five years renewal process. Unlike most other states, RGGI was initially created by Governor Pataki in 2005 without legislative approval.[56]

Climate groups in New York have recently begun to intervene in utility rate cases to challenge their continued investments in fossil fuels, arguing that such investments contradict the greenhouse gas emission reductions established under the new state climate law. For instance, Con Ed in 2022 sought rate hikes amounting to 10% in electric bills and 15% in gas to pay for their ongoing fossil fuel investments, both for new projects and maintaining existing systems, including $1.4 billion in spending next year.[57]

Groups have also begun to challenge – both administratively and legislatively – the tremendous subsidy that comes from allowing utilities to provide gas hookups within one hundred feet of existing systems for free, rolling the tens of thousands of dollars for the cost into the underlying rate base for all customers.[58]

One area to try to impact upon is whether any agency has to develop an energy master plan to oversee energy development, or more recently, climate action plans.

Impacting Administrative Actions

Unfortunately, the administrative process is usually more complex and even less transparent than the legislative process. Agencies are also confined by the parameters of the laws that they are charged with implementing. Proceedings related to rulemaking, rate decisions, and permits (see below) are highly structured, with requirements and procedures to participate that are difficult to understand or comply with, especially for novices. The level of technical detail on energy issues is often quite daunting and complex, focusing on the leaves rather than the forest (e.g., the broad policy concerns). The industry will often have dozens if not hundreds of high-priced lawyers, scientists and other experts who have extensive experience with the process, and usually only those climate groups with large professional staffs – or budgets to hire expert consultants – are able to effectively participate.

Climate groups often invest considerable resources in turning people out to testify or submit written comments in administrative proceedings. While such actions can have an impact, often the people hearing the testimony are low-level hearing officers who gather information but have little actual role in the final decision.

In New York State for instance, the staff of the Public Service Commission in its various proceedings often write long, detailed white papers outlining the many significant issues that must be addressed in resolving the proposed energy policy. But these white papers tend merely to outline questions rather than answering them. Then the conclusion, usually written by the executive office, states the three or four key decisions. The elected official often makes the decisions without reading the comments or hearing the testimony into which advocates poured so much time and energy.

Climate groups can often make better use of their time and resources by focusing on meeting with the top agency officials to advocate their policy recommendations, rather than getting sucked into the rabbit hole of the proceedings. Most climate groups will also utilize tactics such as rallies, protests, and media to impact the agency’s determination, though these are not formally part of the proceedings.

Even when the legislature agrees to require some level of representation by labor, environmental justice, or climate groups on an advisory body, such as a Climate Council, the majority of voting members normally are from the various government agencies, meaning the executive still has the real decision-making powers.

Permits

One of the most critical functions of agencies is the issuing of permits – giving developers permission to build a project (pipeline, power plant, factory, building) and establishing various construction and operation conditions. Multiple permits, often from various agencies, are invariably required for major projects (water, air, fuel, land use, transmission, etc.). (See an overview of the permitting process for clean energy infrastructure projects.[59])

As part of the approval process, agencies have discretion (subject to the underlying law) to impose conditions on operations, such as allowable levels of pollution / emissions. At the local level, towns often negotiate modifications to project proposals as part of their approval process.

This section provides a brief introduction to permitting. It is far from a comprehensive overview of the various permits that apply to emissions, power production, and other climate changing activities. Nor is this a comprehensive explanation of the various federal (National Environmental Policy Act or NEPA[60]) and state environmental review processes. Twenty states have adopted some form of state environmental review laws.[61] Such laws are often part of legal challenges to energy projects. Those laws can require that alternatives be considered to proposed projects as a way to reduce harmful environmental impacts, and they provide activists with legal tools to challenge both agency and private actions.

In a recent positive development, the NYS Department of Environmental Conservation (DEC) used the newly passed Climate Leadership and Community Protection Act (CLCPA) and its emissions-reduction goals as justification to deny permits for two new fossil fuel power plants.[62]

Many criticize the permitting process as simply giving permission to the company to pollute and contribute to climate change; and even those who accept the need for permitting must admit that enforcement is far from stellar. Even if the regulating agency eventually imposes fines for violations, it is often a long, drawn-out process, and critics argue that the polluters often treat the fines as simply a cost of doing business.

A climate group that plans to oppose a particular project should identify, early on, all the permits the project will need to obtain. Fortunately, the developer generally will have to disclose that information in its filings with various agencies. Often there will be multiple federal, state and even local permits for the various aspects of the project. The local level often starts with the zoning process.

The “side deal” that Senator Manchin sought in 2022, in exchange for his support for the Inflation Reduction Act, focused on the permitting process. Manchin and his industry supporters want to speed up the issuance of permits by reducing the level of environmental review, prioritizing certain big-ticket projects, and limiting state powers in permitting related to electric transmission and clean water protection. As of this writing, that “side deal” seems finally to be dead, but it (or some version of it) will probably be resurrected at some point.\

FERC

The Federal Energy Regulatory Commission (FERC) is one of the most critical permitting agencies when it comes to climate. FERC is an “independent agency” that regulates the interstate transmission of electricity, natural gas, and oil. FERC also issues permits to build liquefied natural gas (LNG) terminals and interstate natural gas pipelines as well as hydropower projects. FERC does not: approve construction of electric generation facilities; regulate public power systems; regulate nuclear power; Issue State Water Quality Certificates; or oversee the construction of oil pipelines.[63]

FERC also does not issue state water quality certificates, which is a critical fact for climate activists attempting to block a gas pipeline that crosses more than one state. Water quality certificates are invariably needed since an interstate pipeline is likely to cross dozens if not hundreds of streams and other waterways. The state denial of such a certificate blocks the project, regardless of other decisions by FERC. States also have authority over the siting and construction of electric transmission facilities, generation facilities and distribution systems, as well as gas pipelines just within their state.[64]

The siting and construction of offshore wind is largely under the jurisdiction of the federal Bureau of Ocean Energy Management.[65]

FERC is called independent because it is governed by up to five commissioners who are appointed by the President with the advice and consent of the Senate. Commissioners serve five-year terms. No more than three commissioners at any one time can be from the same party. Thus, the actions of the Commission are largely determined by which party has the majority in this constant 3 to 2 split. An incoming president from a different party may have to wait a few years before they can make an appointment and flip the majority.

Critics charge that FERC is far too cozy with the fossil fuel industry, with a history of rubber-stamping fossil fuel infrastructure projects. Groups like Beyond Extreme Energy propose that FERC be repealed and replaced with an agency focused on developing renewable energy – FREC or Federal Renewable Energy Commission.[66]

Indeed, one of the problems with regulatory agencies like FERC is that they often are “captured’ by the industry they are set up to regulate. Employees often move back and forth between the agency and the industry. The agency itself may be dependent on the fees from the industry to pay for its operation, providing a financial incentive to approve the project. Regulated industries have a major stake in influencing regulators and invest considerable resources to do so, while ordinary citizens are not as well-resourced and are less motivated.[67]

Federal Clean Air Act Permits

Under the Clean Air Act, EPA sets limits on certain air pollutants, including setting limits on how much can be in the air anywhere in the United States. The Act also gives EPA the authority to limit emissions of air pollutants coming from sources like chemical plants, utilities, and steel mills. The permitting process is a major way this is enforced. Individual states or tribes may have stronger air pollution laws.[68] The Title V Program requires local and state air quality agencies to issue operating permits to facilities that emit significant amounts of air pollutants. The regulated contaminants are carbon monoxide, ground-level ozone, lead, nitrogen oxides (a major greenhouse gas), particulate matter, and sulfur dioxide.

In the absence of new federal legislation on climate change, the Clean Air Act has provided the primary basis for federal regulation of greenhouse gas emissions. Unfortunately, EPA has been slow to develop such regulations and the efforts by the Obama administration to address greenhouse gas emissions from power plants were curtailed by the U.S. Supreme Court, though EPA continues to try to address the court’s concerns.[69] In June 2022, the court ruled that EPA cannot require existing fossil fuel power facilities to shift to lower CO₂ emitting sources of electricity without express Congressional authority.[70]

[1] An overview of various federal agencies on climate. https://www.honoringthefuture.org/climate-smarts/government/

[2] https://www.c2es.org/content/federal-action-on-climate/

[3] https://www.c2es.org/document/climate-action-plans/; https://www.instituteforenergyresearch.org/renewable/cost-of-transitioning-to-100-percent-renewable-energy/; see materials at Oct. 14, 2021 CAC meeting, cost benefit analysis, https://climate.ny.gov/CAC-Meetings-and-Materials

[4] https://www.nrdc.org/stories/how-lobby-your-legislator; https://cawp.rutgers.edu/sites/default/files/library/how_to_lobby_your_legislator.pdf; https://nationalhomeless.org/four-ways-to-lobby-your-elected-official/

[5] https://iop.harvard.edu/get-involved/study-groups/finding-middle-ground-art-governing-or-%E2%80%9Ccompromise%E2%80%9D-not-four-letter-word

[6] https://archive.nytimes.com/cityroom.blogs.nytimes.com/2012/12/10/7-score-and-7-years-ago-a-similar-albany/

[7] https://beta.gothamist.com/news/brian-benjamin-joins-long-line-of-nys-political-rogues-ousted-over-corruption; https://www.politico.com/magazine/story/2015/05/how-new-york-became-most-corrupt-state-in-america-117652/; https://hls.harvard.edu/today/a-history-of-corruption-in-the-united-states/

[8] https://www.transparency.org/en/cpi/2021

[9] https://www.academia.edu/1613897/Ecological_modernisation_American_style

[10] https://www.termlimits.com/congress-fundraising-priority/; https://issueone.org/articles/the-congressional-fundraising-treadmill-5-key-numbers-to-know-from-the-newest-house-and-senate-campaign-finance-filings/

[11] https://www.americanprogress.org/article/how-campaign-contributions-and-lobbying-can-lead-to-inefficient-economic-policy/

[12] Here is an overview of the Massachusetts state legislature and Congress. https://www.naswma.org/page/legislative_process