This Article examines the dynamics of nongovernmental organization (NGO) opposition to proposed energy infrastructure in the twenty-first century, specifically the tactics and issue arguments used by NGOs to oppose new energy infrastructure. The analysis is built around a data set comprising information more than four hundred NGOs whose missions include active opposition to one or more of nine different types of energy projects, including various types of fossil fuel infrastructure, renewable energy facilities, and smart grid technology.
Part I of this Article explains the legal context in which NGOs may challenge the approval of new energy projects. Siting regulation typically hands federal or state energy regulators broad discretion to approve or disapprove new projects, but also requires most projects to secure any of several ancillary, issue-specific environmental approvals. Thus, NGOs opposing energy projects can contest siting decisions on a variety of grounds in a variety of regulatory settings (given sufficient expertise and resources). Part II describes the data set at the heart of this analysis, which includes information about (1) the tactics each NGO uses to oppose energy projects, such as litigation, direct lobbying, mobilizing public participation in siting proceedings, protests, or economic boycotts, and (2) the issue arguments advanced by each NGO to mobilize opposition, such as those based upon the project’s economic impacts, health and environmental risks, or environmental justice. The data are limited to siting disputes arising between 2000 and 2017. Part II also suggests some informal hypotheses about when we might expect to see particular tactics or issue arguments predominate across the different project categories and NGO types.
Some key findings from the data are reported in Part III. First, NGOs tend to focus on mobilizing the broader public to lobby decisionmakers (rather than, say, to litigate, boycott, or protest), and to do so around environmental and health risk issues. Interestingly, that conclusion holds true across all project types, fossil fuel and clean energy projects alike. Second, local NGOs were more likely to engage in risk amplification—that is, to advance claims about health risks that lacked solid scientific support—while national groups tended to be more circumspect about the way they discussed risk. Third, the tactical and substantive similarities among NGOs within project categories (particularly fossil fuel project categories) implies the possibility of coordination among NGOs. Together, these findings seem consistent with the twenty-first century hyperpolarized, hyperconnected political environment. Mass mobilization is more efficient and effective than ever: digital communication tools enable NGOs to transmit messages almost costlessly, and to target audiences that are particularly receptive to individual messages. NGOs choose risk-based appeals because they resonate: if local NGOs need to build a broader base of support for their cause in order to improve the probability of victory before government decisionmakers, this approach makes sense. Part III also reports some data on the geographic distribution of NGO opposition to energy projects, which seems to be loosely correlated with both development intensity and political ideology.
Part IV places the results described in Part III in the context of ongoing scholarly debates about the politics of regulation. As always, NGOs and firms engage in a tug of war, each seeking to push or pull regulators toward a particular conclusion. In an era of inexpensive renewable energy, many find it untroubling that NGOs can more effectively use risk-based arguments to mobilize the public against new fossil fuel infrastructure. What is worrying is the possibility that those sophisticated digital communication tools enable NGOs (and others) to exploit risk perception biases to more effectively amplify perceived risk, which in turn could push regulators to produce siting decisions that have counterproductive effects. These can include environmentally counterproductive effects, as when opposition to transmission lines can (and does) deny consumers access to cheap, clean wind and solar energy, or when opposition to natural gas pipelines increases both energy prices and reliance on dirtier diesel fuel or coal. As with other policy debates, modern digital politics can enhance misunderstanding, move partisans and activists toward the ideological poles, and make it more difficult for regulators to make sensible decisions about tradeoffs at the heart of any transition to a much greener energy mix.
David B. Spence,
Regulation and the New Politics of (Energy) Market Entry,
Notre Dame L. Rev.
Available at: https://scholarship.law.nd.edu/ndlr/vol95/iss1/7