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He promised to protect almost a third of the U.S. So far he’s nowhere close.

Over the course of a presidential term, a mature ironwood tree will add only about four inches to its height. Unless you happen to see one during the 10 or 12 days in May that pale pink flowers cover its branches, it’s not a shrub you’re likely to call one of the Sonoran Desert’s most attractive flora — gnarled and hunched, the ironwood lacks both the alien charm of the Joshua tree and the iconic flamboyance of the Saguaro cactus. It makes up for this with its longevity: Some ironwoods growing in the hills east of the Coachella Valley have clung there 400 years longer than California has been a state. Adequately protected, those very same trees could plausibly still be standing for our successors to marvel at in the year 2724 — 175 presidential terms from now.
Who knows if they’ll still talk about President Joe Biden then — in 700 years, he’ll be as deep in the past as Edward II of England is now. But if those ironwood trees are still standing, it could be because of him. Biden has called the fight against climate change the defining cause of his presidency, and he views conservation and the preservation of biodiversity as part and parcel of that legacy. His 30x30 executive order — which aims to set aside 30% of America’s lands and waters for conservation by 2030 — was a week-one priority once he took office.
Among his best remaining opportunities to add to his tally would be the designation of Chuckwalla National Monument, a 660,000-acre stretch of desert south of Joshua Tree National Park that is home to one-fifth of the ironwood trees left in the world. The same goes for a sacred and culturally significant region in the southwest corner of California called Kw’tsán; about Sáttítla, a vulnerable volcanic landscape near Mt. Shasta; about the Owyhee, a million-acre Oregon watershed that sits in the crosshairs of mining and energy development; and about the homestead in Maine that belonged to Frances Perkins, the first woman to serve in the U.S. cabinet. The list goes on.
But with less than two months until Biden’s move-out day, environmental advocates are starting to wonder whether he’ll ever get around to fulfilling his promise.
“There are still several national monument campaigns that are ready to go and awaiting the president’s signature, and those are the sorts of things that could cement President Biden’s legacy as one of the great conservation presidents of all time — if he takes those steps here in the last few weeks,” Aaron Weiss, the deputy director of the Center for Western Priorities, a nonpartisan conservation advocacy group, told me.
When Biden took office in 2021, roughly 293 million acres of the United States fell under the protection of various federal laws, about 12% of his 30% goal. Since then, Biden has set aside another 1%, or 37 million acres, for protection, including about 1.6 million acres of new monuments under the Antiquities Act. So far, Biden has protected slightly less land than President Bill Clinton did in his first term, per the Center for Western Priorities’ accounting. And every day that passes matters; the Center for American Progress has found that the U.S. loses a football field’s worth of natural area every 30 seconds.
Still, conservationists have celebrated Biden’s moves to set aside the National Petroleum Reserve and the Tongass National Forest in Alaska, and to expand Berryessa Snow Mountain National Monument and San Gabriel Mountains National Monument in California. “When you look at it from a traditional land protection perspective, I think [the Biden administration has] a strong record,” Chris Wood, the president and chief executive officer of the conservation group Trout Unlimited, told me.
And Mustafa Santiago Ali, the executive vice president of the National Wildlife Federation, also told me not to discount Biden’s designation of the Springfield 1908 Race Riot National Monument in Illinois, the Emmett Till and Mamie Till-Mobley National Monument in Illinois and Mississippi, and Baaj Nwaavjo I’tah Kukveni — Ancestral Footprints of the Grand Canyon National Monument in Arizona, even though they don’t add substantial acreage to his totals. “Folks may not pay attention to how important those monuments are — honoring folks who have sacrificed in the past,” Ali said. Weiss, likewise, commended Biden and Secretary of the Interior Deb Haaland for “acknowledging that you need Indigenous stewardship to lead and be central to all public land management decisions.”
As the remaining weeks of Biden’s tenure quietly tick by, there is increasing anxiety about whether and when the president will reach for the Antiquities Act again. Kristen Brengel, the senior vice president of government affairs at the National Parks Conservation Association, told me she hopes Biden will announce at least two more national monuments between now and January 20.
Ultimately, though, when it comes to the question of how much land Biden will choose to set aside in the waning days of his administration, “the limiting factor is time,” Ryan Houston, the executive director of the Oregon Natural Desert Association, which has campaigned extensively for the designation of an Owyhee National Monument, told me. “If we don't take action before Inauguration Day in January, then we’re entering at least a two-, four-, or six-year period where there won’t be opportunities to follow through and protect the Owyhee,” Houston went on. “And that sets us back a long way.”
Organizers don’t get a tip-off ahead of time about where or what the Biden administration is considering. Chuckwalla, with its ironwood trees, rare reptiles, cultural sites, and Joshua Tree-adjacent wildlife corridors, seems likely — Haaland visited it this spring, a portentous sign according to advocates. Other would-be monuments like the Owyhee in Oregon are less certain and may attract executive attention only if Congress fails to roll it into a public lands omnibus bill expected by the end of the year.
The clock has already run out for other key components of Biden’s conservation legacy. “In the first month of his presidency, it seemed like it would be great,” Brendan Cummings, the conservation director of the Center for Biological Diversity, a nonprofit focused on endangered species protections, told me. With the president’s 30x30 executive order and his pause on federal fossil fuel leasing, it’d “seemed like he was going to live up to his promises.”
Then came the Willow Project approval, new LNG export terminal sign-offs, and so many new oil and gas permits that Biden surpassed even Trump. “One of the few areas where Biden has actually been excellent is national monuments,” Cummings conceded. “But everything else is sort of this mix of muddled middle or profoundly disappointing.” He added, “Trump took us two steps back, and Biden took us one step forward — so we’re still behind at the end of the day.”
Though the other advocates I spoke with for this story weren’t as sour on Biden’s record as Cummings, many had a wishlist of items they’d hoped Biden would address. Brengel of the NPCA had hoped there’d be more climate resiliency funding for the National Parks, which have “been on the frontlines of dealing with some of the most dramatic effects of climate change.” Wood, at Trout Unlimited, was holding out for the creation of a federal fund to deal with the legacy of abandoned mines via a royalty on hard rock metals, the only commodity produced from public lands that doesn’t have a surcharge or tax. Weiss of Western Priorities wanted to see action on livestock grazing reforms.
It’s hard to feel too frustrated with the Biden administration, though. Much of 2021 and 2022 were spent addressing Trump administration policies and roll-backs, including restoring protections for Bears Ears and Grand Staircase-Escalante National Monuments. Biden’s executive powers had their limits, too. While one of his administration’s conservation wins had been blocking the culturally significant lands around New Mexico’s Chaco Canyon from new oil and gas leasing, Trump will have a relatively straightforward path to reopening it to drilling if he so chooses. “I think with the cards that we had in our hands, Deb Haaland and Biden have done everything they could do to protect this area,” Paul F. Reed, a preservation archaeologist with Archaeology Southwest, which campaigned to protect Chaco Canyon, told me. But “short of congressional action, this area will continue to be a political football.” The same may again be true for Bears Ears and Grand Staircase-Escalante.
There is better Trump-proofing elsewhere. Jenny Rowland-Shea, the director of public lands at the left-leaning advocacy group the Center for American Progress, told me that for Trump to unwind Biden’s protections in the Arctic, which were established via a lengthier rule-making process, the incoming president would have to prove that the science behind the ecology subsistence isn’t valid — a bigger lift. It’s part of why she feels comfortable calling Biden’s actions in the Arctic one of the more significant pieces of his conservation legacy.
Others pointed to the Bureau of Land Management’s Public Lands Rule, which put conservation on equal footing with other land uses like drilling this past spring, as the real gift that Biden leaves behind. Wood, of Trout Unlimited, told me that what he hopes will outlast the 46th president is Biden’s approach to looking at conservation as a part of natural resiliency, the effort to “make our lands more resistant to floods, fires, and drought.” Meanwhile, Ali of NWF told me his wish is that future presidents will use Biden’s accomplishments as a “north star” to measure themselves against and surpass.
But Cummings of the Center for Biological Diversity believes there is only one way for Biden to cement his legacy in the remaining weeks he has in office. “Almost everything the president does gets forgotten,” he said. “But the land that a president protects is forever.”
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Robinson Meyer:
Hello, it’s Friday, October 2, and this is a special New York Climate Week edition of Shift Key. Last week, Heatmap welcomed climate and energy leaders, experts, and influencers to Heatmap House, our all-day summit in New York City. Among those leaders was New Jersey Governor Mikie Sherrill. Governor Sherrill is a former Navy pilot, federal prosecutor, and member of the House of Representatives. She was elected New Jersey’s governor in November 2025. That campaign, and her election year last year, was dominated by the state’s surging electricity prices, and specifically by how the interaction between the AI data center boom and features of the local multi-state electricity market, PJM, had caused power bills to surge in the state by about $260 per household.
Robinson Meyer:
Governor Sherrill ran on and implemented a one-year rate freeze. She’s since passed other legislation meant to make it easier to build solar and batteries in the state. My colleague, Heatmap correspondent Matthew Zeitlin, has been covering those policies, and last week he sat down at Heatmap House to discuss them with Governor Sherrill, as well as to discuss the future of her climate and electricity agenda. Let’s go to that conversation now.
Robinson Meyer:
Matt and Governor Sherrill were recorded in front of a live audience at Heatmap House at 22 Vanderbilt in New York City on September 23rd. I’m Robinson Meyer, the founding executive editor of Heatmap News, and you are listening to Shift Key.
Matthew Zeitlin:
Mikie Sherrill, thanks. Thanks so much for coming across the Hudson this morning to join us. Let’s just start with, I think, the kind of electricity or energy policy issue most associated with you. Is there a rate freeze in New Jersey right now? And are your constituents, the rate payers, are they still angry about their electricity bills?
Mikie Sherrill:
That’s a great question. So, yes, there is a rate freeze. In fact, that was a commitment I made. And so I didn’t, I would say less than an hour into my administration, the middle of my inaugural address, I declared a state of emergency on utility costs, froze rates, and then at the same time signed executive orders to increase power generation across our state. We’ve been at it ever since. And the movements we’ve made will save New Jersey rate payers over a billion dollars a year as we are implementing all of these changes. And, but no, rate payers are not happy in New Jersey, nor should they be, because rates did go up double digits. So they saw a large increase. And, you know, in large part, there had been a lot of people asleep at the wheel on how we were going to move forward in advanced technologies and generate more power and drive down costs.
Matthew Zeitlin:
So as I understand it, a component of those executive orders was taking some of the funding that comes from the regional greenhouse gas market and putting that into rate relief. You know, there is stuff on any New Jersey ratepayers bill that funds things that are government programs, energy programs. Have you rethought kind of both the RGGI and the societal benefits charges to think about why are we adding stuff onto the bill instead of, you know, making it cheaper?
Mikie Sherrill:
So we actually have taken stuff off the bill. There was an incentive on our bill that had been in place for years to incentivize our utility companies to join PJM. Well, they joined PJM years ago and they weren’t going to leave. So we took that off the bill and we just did that to drive down costs. We did use a little bit of our Reggie friends because there had been some rate cases that had already been made in the previous administration that we had to address so that we could keep rates flat to meet our commitment. What we’ve really done, though, that I’m very excited about with some RGGI funds is to put $100 million incentives into solar and battery storage projects so that we can see more generation in these clean power technologies. And I think that’s something that we’re going to see. EDA has just been putting that at our economic development authorities. So we’re very excited about what’s coming.
Matthew Zeitlin:
Yeah. And then just kind of building off of that. Obviously, New Jersey has aggressive climate commitments. How do you talk to your how you’re going to meet those climate commitments when they’re, I think everyone would say they’re most concerned right now about kind of that number on the bottom of their bill.
Mikie Sherrill:
Certainly. Look, we have, you know, when I say we have an affordability crisis, it’s not just one thing. It’s a crisis because it’s everything. Housing prices are up in some cases by 60% in some towns in the last five years. We have utility costs up by double digits last year. They were set to go up double digits this year until I froze them. We have, you know, the federal government’s cutting health care. So we have 70,000 people that can’t afford to be in the affordable care market anymore. We have about 300,000 people who are being kicked off the Medicaid rolls that we have to deal with. So there is a crisis going on. So you cannot simply say to people, you know, sorry, your bills are just going to keep skyrocketing. That is not the answer, which is why we’ve acted so aggressively.
Mikie Sherrill:
I approved 18 solar and battery storage projects in the first six months because we knew the federal credits were going to run out if we did not get that done. So that’s why we had to take on permitting reform right away to make sure we were growing that. I lifted a 50-year nuclear moratorium.
Mikie Sherrill:
We have continued to look at new and innovative things. A lot of people are talking about virtual power plants to get more capacity and drive-down costs. We are implementing that. I would suggest, and we were talking a little bit about this before we went on, it was so interesting. I’m one of one of the very few people that actually ran in 2025. So we knew the landscape. We knew what Trump was ending. We knew what the future looked like. We knew what we could and couldn’t do and spaces that we’d have opportunity and where opportunity was shut off from us. So we we could hit the ground running. And we also took advantage of best in class people.
Mikie Sherrill:
We have, she’s sitting right there, Maddie, who’s worked in New Jersey Power and understands it very deeply. We have Elizabeth Knoll, who came out of the federal government, who worked for Granholm and now is working for New Jersey. We have amazing people who are developing these new and innovative things. And I think the reason that New Jersey has now become a market leader in how you advance clean energy in a really innovative way is because we’ve just set up this government. So everything’s starting from, okay, where are we and how do we get to a better place and taking on all those new innovations.
Matthew Zeitlin:
Yeah, I mean, we were talking backstage, you know, when I took this job three years ago, I had no idea I’d be writing so much about energy policy in the state of New Jersey, but from the campaign and then, you know, in your first year here, there’s been so much going on. Obviously, we need to talk about data centers, you know, not too long ago. New Jersey had a program, a tax, you know, abatement, a tax incentive to attract data centers to the state. Obviously, there’s been a lot of local backlash to them. There was an enforcement action, I think, this morning in Vineland, New Jersey. That tax incentive has, I believe, been reversed. From your perspective now, if a data center developer wants to set up in New Jersey, what do they need to do?
Mikie Sherrill:
Well, we’ve laid out exactly what they need to do. They need to bring their own energy. They need to invest in our grid. They need to report their water and power usage. They need to hire good talent so that they create jobs in the community. And they need to bring community benefits. We’ve also put them in their own rate class, so they are not harming other rate payers. And we mean business. And I think you can see that with the action we brought against the Vineland data center. So this is not a free ride for anyone. If they want to engage in building this out, it has to be a benefit to our communities in New Jersey.
Mikie Sherrill:
What was so interesting to me, I was telling you about different financing agencies and different power generators and what this was going to look like going forward. And it was so fascinating to me to see the difference between the old and new. Some people at the table are saying, oh, you know, people are saying don’t invest in New Jersey because labor cost of labor is high. And I said, that is so fascinating. You’re telling me that because I have heard from so many people about how they’re dying to invest in New Jersey and they want to know how. And I said, yeah, we’re a labor state. You’re going to have to pay for talent. But at the same time, we are laying out exactly how you invest in New Jersey to take a lot of the risk out of it. But you have to come to the table early. You can’t just come in and say, work out some deal in back rooms and come say, now I’m going to plop a data center here.
Mikie Sherrill:
I mean, there are places in New Jersey where you should not be building data centers. There are places in New Jersey where it might make sense, but the towns and communities are going to decide that. So you have to start engaging early with them to explain what you want to do and why you want to do it. And finally, I’ve said, and you’ve, I told a data center, I said, and you guys have been horrible at it. I’m just telling you, nobody knows what a data center is and you need to explain why it’s even important. Are you curing cancer? You know, what are you doing? Why is this a societal benefit. And then I’ll end by saying, look, it’s up to businesses. They make money, right? Scientists innovate. Government needs to protect people. And that’s where government has been asleep at the wheel. And that’s why I think you see so many people not trusting innovation right now or where it’s going, because government needs to protect people from these downside risks. And right now, I would say the federal government’s not going to do it, which is why as a state, we are engaging so aggressively.
Matthew Zeitlin:
So obviously we were talking about this backstage, New Jersey has this great history of innovation technological development, and right now you have a lot of advanced industries in New Jersey — a pharmaceutical industry, financial services you have a lot of research around the Princeton National Lab. When you’re trying to attract these kind of next generation industries how do you then kind of, on the other way, how do you kind of assure them that they can set up large energy consuming facilities that, you know, are that anchor those industries?
Mikie Sherrill:
It’s kind of interesting twofold. I would say to a large extent, we don’t need to attract some of these innovators. We need to keep them. Innovation starts in New Jersey. We have a million different spinoffs. We were talking about they’ll do fusion and they’ve already got the magnets that are found few places in the world. I mean, they come and spun off from the National Lab at Princeton. We have companies like that all over the state. And we have states like New Mexico that are constantly saying, you know, here, come here. And people in New Jersey, and if you’re not from New Jersey, this may surprise you, but people in New Jersey love New Jersey and we want to stay there. And we want our kids to go to the great schools there and we want to continue to grow businesses. So companies don’t want to leave New Jersey. We just have to make sure they have enough, you know, that there’s not some other incentive driving them away.
Mikie Sherrill:
At the same time, when you say, how can I assure that people are going to have all the power they want, we are creating a structure so that people can make sure that they have clean power generation. That’s why something like a virtual power plant is so interesting. But it is not on the state to kind of assure you can do whatever the heck you want in power generation. It is up to the companies to work with us to say, okay, I want to invest in this. This is going to be a net good for the people of New Jersey. So for example, I’m going to build a virtual power plant. I’m going to have battery packs in everyone’s basement. I’m going to pay them to do that. And we’re going to generate new clean power for this entity. That is how they need to come to work.
Mikie Sherrill:
And I would again say that that was what was so interesting at the table, because there are people who get that. In some of the most innovative power generating companies, in some of the most innovative technological companies, they get that. They know where this is all going. Some of the old school companies are still sort of coming to the table saying, what can you do for me? That’s not where we are right now. We need to understand what benefit can you bring to the people of New Jersey.
Matthew Zeitlin:
And you mentioned earlier that, you know, your gubernatorial race was in 2025. We obviously have the midterms coming up in November, and then we have, you know, another election in 2028. What, when Democratic candidates come to you and ask about how they should talk about energy and electricity policy, or if they’re not coming to you and you would like to say something to them, what are you telling them? How they, you know, obviously every state, every district’s different, but what are some … What are some things you learned in 2025 that could be applied elsewhere in the country?
Mikie Sherrill:
Sure. I just want to go back one second. I know we’re on such limited time. That’s why I’m speaking fast. I would say the reason I was saying what can you bring to New Jersey is because the business case has been made for innovation technologies, and they are raking in billions of dollars. And we just need to make sure that as we build out these systems, that it goes to a benefit to everyone, that we are not simply funneling billions, trillions of dollars into a few people in Silicon Valley. We want to make sure this is a net good. That’s what I said government does, is we protect communities from those downside risks and we invest and create opportunity there. That’s what we’re looking to do, is making sure everybody gains here.
Mikie Sherrill:
The thing I would tell people who are running is you have to be nimble, You have to be innovative and you have to be aggressive and you can’t, you have to take risks. The status quo is not working for anyone. The can has been kicked down the road on too many different issues. And if you were going to try to duck your head and say some mealy mouth thing like, you know, we’re going to do all of the above and, you know, and it’s, you know, everyone’s welcome and we like business. That’s not going to cut it. you have to be able, I mean, we charged through the campaign by understanding deeply what was going on in our state. And so we were joking. I would say, you know, a lot of people in the whole market couldn’t tell you what PJM is, right? Still, a lot of governors probably couldn’t really delineate it. We knew everything about everybody because when your utility bill goes up by double digits, the person you’re going to hire to be the no boss of your state better understand why. And exactly what they can do to fix that.
Mikie Sherrill:
And then I have to convince people, because the final thing I’d say is, I’d say since Reagan, this idea of like government’s always the problem, get them out of the way and everything goes well, has come to its logical conclusion, right? There are areas where we need government to function, and we need government to function well, not just to sort of regulate stuff to actually drive innovation, to drive success for people, to drive opportunity, and make sure the rising tide lifts all boats. That’s what has been missing in so many cases. And so I think if you want to run for us, if you want to hold the public trust, if you want to be a public servant, then you need to engage deeply and you need to be really good at your job. And that means telling people exactly what you can do to make their lives better.
Matthew Zeitlin:
I think that’s probably as good a note as any to end on. Mikie Sherrill, thank you so much.
Mikie Sherrill:
Well, thank you. I really appreciate it.
Matthew Zeitlin talks with the New Jersey leader at Heatmap House at New York Climate Week.
Governor Mikie Sherrill is a former Navy pilot, federal prosecutor, and a member of the U.S. House of Representatives. She was elected New Jersey's governor in November 2025 in a campaign dominated by the state’s surging electricity prices.
For this episode of Shift Key, Governor Sherrill joined Heatmap correspondent Matthew Zeitlin for a live conversation at our Heatmap House event, part of New York Climate Week. She reflected on electricity inflation, power markets, and what a data center developer would need to do to build in New Jersey.
Shift Key is hosted by Robinson Meyer, the founding executive editor of Heatmap News.
Subscribe to “Shift Key” and find this episode on Apple Podcasts, Spotify, Amazon, YouTube, or wherever you get your podcasts.
You can also add the show’s RSS feed to your podcast app to follow us directly.
Here is an excerpt from their conversation:
Matthew Zeitlin: So obviously — we were talking about this backstage — New Jersey has this great history of innovation technological development. And right now you have a lot of advanced industries in New Jersey — a pharmaceutical industry, financial services you have a lot of research around the Princeton National Lab. When you’re trying to attract these kind of next generation industries, how do you kind of assure them that they can set up large energy-consuming facilities that anchor those industries?
Mikie Sherrill: It’s kind of interesting, twofold. I would say to a large extent, we don’t need to attract some of these innovators, we need to keep them. Innovation starts in New Jersey. We have a million different spinoffs. We were talking about, they’ll do fusion, and they’ve already got the magnets that are found few places in the world. I mean, they come and spun off from the National Lab at Princeton. We have companies like that all over the state. And we have states like New Mexico that are constantly saying, you know, here, come here. And people in New Jersey — and if you’re not from New Jersey, this may surprise you — but people in New Jersey love New Jersey, and we want to stay there. And we want our kids to go to the great schools there and we want to continue to grow businesses. So companies don’t want to leave New Jersey. We just have to make sure they have enough, you know, that there’s not some other incentive driving them away.
At the same time, when you say, how can I assure that people are going to have all the power they want? We are creating a structure so that people can make sure that they have clean power generation. That’s why something like a virtual power plant is so interesting. But it is not on the state to kind of assure you can do whatever the heck you want in power generation. It is up to the companies to work with us to say, okay, I want to invest in this. This is going to be a net good for the people of New Jersey. So for example, I’m going to build a virtual power plant. I’m going to have battery packs in everyone’s basement. I’m going to pay them to do that. And we’re going to generate new clean power for this entity. That is how they need to come to work.
And I would again say that that was what was so interesting at the table, because there are people who get that. In some of the most innovative power generating companies, in some of the most innovative technological companies, they get that. They know where this is all going. Some of the old school companies are still sort of coming to the table saying, what can you do for me? That’s not where we are right now. We need to understand what benefit can you bring to the people of New Jersey.
You can find a full transcript of the episode here.
Mentioned:
Matthew on Governor Sherrill’s electricity rate freeze
Previously on Shift Key: Energy Secretary Chris Wright on Trump’s Pro-Nuclear, Pro-Fossil Fuel Agenda
Previously on Shift Key: Al Gore on AI, ‘An Inconvenient Truth,’ and the Biggest Surprises of the Past 20 Yearst 20 Years
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The bill would let states and utilities discriminate against data centers and crypto miners, requiring them to pay higher rates to cover the full cost of any system upgrades.
Call it the data center double tap.
A wonky set of provisions in the Senate’s bipartisan permitting deal would rewrite federal electricity law to allow states and utilities to discriminate against artificial intelligence data centers and crypto miners for the first time.
The proposal would force AI data centers to pay for any new transmission infrastructure required to serve them — while still paying full freight to use the rest of the power grid. It could even let states require the facilities to subsidize other customers’ power rates.
Senator Martin Heinrich, the ranking Democrat on the Senate energy committee, mentioned the provisions during a press event announcing the deal on Wednesday, but they have so far attracted less attention than the bill’s other measures.
If enacted, the bill will “mean that we actually require big load centers — whether that’s a factory or a data center — to not pass those costs on to the American consumer by statute, not suggestion,” he said.
The bill arguably goes further than that summary. It creates new carve-outs in federal law that disadvantage data centers and crypto miners specifically, allowing states to discriminate against them as compared to other large-scale customers. It also protects electricity customers from the future risk of data centers failing to pay their bills.
The proposal comes at an auspicious time. Utilities are already gearing up to spend tens of billions of dollars building new transmission lines and power infrastructure to meet energy demand from AI data centers. The law would seek to ensure that tech companies and data center developers bear the cost of those upgrades.
Since the data center boom got underway, just about everyone involved — tech companies, utilities, environmentalists, and even President Trump — has agreed on one thing: Normal Americans should not pay for data centers’ burden on the power system.
These expenses can be significant, especially for the transmission system. Because a single computing facility can guzzle gigawatts of energy at once, compressing a city’s worth of power demand into just a few acres, it often requires the construction of specialized new infrastructure, or it risks causing blackouts and brownouts for nearby customers.
In 2024, utility customers in the country’s largest power market paid $4.3 billion for transmission upgrades to supply data centers, according to a Union of Concerned Scientists report.
Trump enshrined guarantees against these payments in his Ratepayer Protection Pledge in March. That document vowed that data center companies must pay for all of the electricity used to run their facilities, any new power plants required to generate that electricity, and any “new power delivery infrastructure upgrades.”
There’s just one issue: Under federal law, the last part of that pledge is nearly impossible.
Since the early 1990s, federal law has prohibited utilities from charging customers for both the cost of using specific transmission infrastructure and the cost of using the rest of the power grid.
The origins of that ban go back to a 1992 case where a power plant in one utility’s service area wanted to sell electricity to a neighboring utility. The local utility wanted to charge it the “normal” cost of using its power grid, plus a special fee to cover the cost of crowding its own customers off the necessary transmission lines.
The Federal Energy Regulatory Commission ruled that was illegal. Instead, it said, utilities could make a customer pay for the “incremental” cost of using specific transmission lines, such as those built to service their facility. Or they could charge for the “embedded” costs of the existing power grid.
Utilities could not charge customers for both “incremental and embedded” costs, it said; instead, utilities had to choose the higher of the two. FERC formalized the policy in 1994.
Electricity law has changed significantly since then, and those FERC rules don’t apply to power plants, Ari Peskoe, the director of the Electricity Law Initiative at Harvard Law School, told me.
But the ban still applies to electricity customers — even very big ones, like data centers. Peskoe wrote a Utility Dive article in April credited with first identifying the clash between the FERC rules, the data center boom, and the White House’s pledge.
The rules have serious implications for energy affordability. In practice, virtually every utility today is charging data centers for the “embedded” cost of using the existing grid, Peskoe told me. That’s because utilities want to avoid fights with each data center about which transmission upgrade costs are “incremental” and which are “embedded.”
Instead, utilities are forcing all of their customers to pay for the cost of transmission upgrades to serve those data centers. That means data centers will likely drive up normal Americans’ electricity rates for the next decade or so, even if officials, lawmakers, and tech companies say they don’t want that to happen.
The Senate proposal would change this, instructing FERC to require utilities to charge data centers for the cost of any new grid upgrades required to serve them as well as the costs of the underlying grid. In other words, it would mandate data centers pay for embedded and incremental costs.
These types of customers “should incur the full cost of the transmission service they require,” the bill says. This change would apply narrowly to data centers, crypto mining operations, and any facilities doing AI training — essentially discriminating against data centers under federal law.
The bill would also write a new section into the Federal Power Act that would require data centers, crypto miners, and other computing facilities larger than 20 megawatts to cover the entire cost of their service. The bill says utilities can’t spread the cost of providing energy or building infrastructure for data centers to any other customer.
If data centers leave a contract early, they will still have to pay for the full cost of those grid upgrades. And before a utility can upgrade any of their infrastructure to serve a data center, it must get “financial assurances or contributions” from that facility to cover the costs of doing so.
The bill also allows states to go further than these provisions — they can discriminate against data centers, set special rates by which data centers subsidize other customers’ power rates, and auction off the right to connect to the power grid.
Since I’ve learned about these provisions, I’ve struggled with what to call them. They aren’t quite a new tax on data centers, because the government does not collect the revenue. But many of them have tax-like qualities: They impose significant new costs on future data centers that would then be used to pay for upgrades to the broader power grid, and they protect the power system from the downside risks of a data center bust. They also allow for cross-subsidy of the power system, where payments from data centers can reduce everyone else’s electricity rates.
The law would bring federal rules governing electricity somewhat closer to those that already exist for natural gas, though it goes much further than those rules, too. Since 1999, FERC has generally assumed new interstate natural gas pipelines should be entirely paid for in an “incremental” way, meaning that new shippers or customers are supposed to bear the costs of service expansion alone. Having customers pay for embedded and incremental pricing remains illegal under federal natural gas law.
When combined with other provisions in the bill — such as those that make building new interstate transmission lines much easier — the new policies could help spur a large-scale buildout of electricity infrastructure paid for by the data center boom.
But even setting that more ambitious potential aside, the law would cover existing holes in the laws protecting Americans from paying for the data center boom.“I think it’s an improvement on the status quo,” Peskoe told me. “I think it’s consistent with data centers paying their ‘fair share,’ and consistent with the text of the Ratepayer Protection Pledge.”
And it is also “consistent,” he added, “with how normal people might think about these issues.”