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A conversation with Harvard Law School’s Jody Freeman about life after the endangerment finding.
The Environmental Protection Agency unveiled a proposal on Tuesday to reverse its own conclusion that greenhouse gases are a threat to public health and welfare. Known as the “endangerment finding,” this 2009 determination initially compelled the agency to regulate carbon emissions from vehicles under the Clean Air Act. But the agency has since used it as the basis for many of its efforts to tackle climate change, including emissions limits on power plants, oil and gas operations, and aviation.
If the reversal is finalized as written — and survives court challenges — the EPA will no longer have the legal authority to regulate carbon dioxide from the tailpipes of cars or trucks, invalidating the vehicle standards issued by the Biden administration last year.
While other greenhouse gas regulations wouldn’t automatically disappear, the agency could easily use the same arguments to repeal them. Indeed, the agency said that it has already initiated or intends to initiate “separate rulemakings that will address any overlapping issues” related to other sources of greenhouse gas emissions, such as power plants.
EPA’s primary justification for reversing course, detailed in a 302-page document, is that the Clean Air Act is designed to target air pollution that endangers public health “through local or regional exposure,” and therefore that it cannot be used to rein in greenhouse gases “based on global climate change concerns.” Richard Revesz, a professor of law at New York University and former Biden official, told me this was “breathtakingly broad,” and said that it was “inconsistent with 55 years of regulation under the Clean Air Act. That limitation was never understood to be there.”
The EPA also put forth a host of other legal and scientific arguments, “basically throwing the kitchen sink at this issue,” Revesz said. The proposal asserts that the EPA should have considered the downstream costs of making the finding, as well as weighed the potential benefits of a warmer climate. In a section entitled “Alternative Rationale for Proposed Rescission,” the agency attempts to poke holes in the scientific evidence that climate change is a threat to public health, concluding that the research is uncertain. It cites a report from the Department of Energy, also released Tuesday, that says the warming caused by greenhouse gases is not as bad for the economy as people once thought, and that regulating such emissions will have “undetectably small direct impacts on the global climate.”
The proposal cherry-picks data and misinterprets scientific findings. For example, it says that recent evidence suggests that the temperature projections EPA used to make the endangerment finding were “unduly pessimistic,” citing a 2020 paper by climate scientist Zeke Hausfather. But Hausfather has already posted on social media that this is wrong — his paper supported the EPA’s 2009 temperature projections.
My inbox is currently full of statements from legal experts, scientists, and activists adamant that the administration’s arguments are baseless. The agency will be taking public comments on the proposal through September 21, and hold at least two public hearings on August 19 and 20. To get a sense of what to expect over the coming months and years as a result of this move, I called up Jody Freeman, the director of the Environmental and Energy Law Program at Harvard and a former White House counsel for the Obama administration. Our conversation has been lightly edited for clarity.
What will EPA have to do in order to finalize this proposal?
What they do is put it out for public comment. There’ll be a huge reaction to this, and so they’ll have a very big set of comments that they’re going to have to go through, which then will take them several months at a minimum. And they’re not necessarily going to be in a rush, right? At a minimum, we’re going to be getting into 2026 before we’d see a final rule. And then the lawsuits would start.
Other than just responding to the public comments, are there certain things that they would have to demonstrate to finalize this determination?
The normal process is you have to respond to the most serious and relevant comments. So if the comment says, The claims you’re making about the science are wrong, they’d have to respond to that. The normal course is they come back with a final rule that explains why they’re doing what they’re doing, and why they either didn’t agree with the comments, or they do agree with some of them, and they’ve adapted the proposal.
And as you said, then the lawsuits would start.
It doesn’t take effect for 30 days after it’s final. But yes, at that point, they get sued. These rules go to the D.C. Circuit Court of Appeals because that’s what the Clean Air Act says, and usually it would take about a year or so for a D.C. Circuit decision to happen. So now you’re in 2027. You can see the timeline on this stretching out. And if you ultimately think this could go to the Supreme Court, you can imagine that’s another year away. So basically, for the rest of President Trump’s term, you really shouldn’t expect to see enforcement or action on federal climate rules.
Even if the EPA hadn’t taken this step, wouldn’t that still have been the case, since the Trump administration is fighting the power plant rules and the vehicle emissions rules?
Well, you could see them dragging their feet enforcing these standards. Of course, they would get sued if they weren’t enforcing vehicle emission standards against the auto industry. There would be efforts to force them to enforce. But it’s more serious and more long term damage for them to try to rescind the underlying endangerment finding because depending on what the Supreme Court does with that, it could knock out a future administration from trying to bring it back. Now that would be the nuclear option. That would be their best case scenario. I don’t think that’s likely, but it’s possible.
At a minimum, let’s say they don’t win everything, but the court says they can do this for now — they have the discretion, the flexibility not to make this finding. Another administration can come back and make it and restore the rules. But that would take, again, several years. So even if they lose, they win.
If they do finalize this, would the other lawsuits that are going on around the power plant rules and the vehicle emissions rules automatically be dropped?
There are a few lawsuits that were challenging the Biden-era rules, but the Trump administration asked the courts to hold them in abeyance because they said, We’re going to go revisit all those rules and replace them. So those lawsuits aren’t moving forward anyway at the moment. It would probably be true that the administration, in taking this action, wants to set up a situation where it can go back into court and say, Well, now all these challenges are moot. We don’t have any authority to regulate anyway. But for now, they’re all on hold.
Are there other regulations this will affect besides those for vehicles and power plants?
The methane rule for oil and gas facilities is more of a question mark because they don’t seem to be announcing they’ll eliminate it. It’s possible they push off compliance. It’s possible they make the rule weaker. But there are a couple reasons why they might not rescind that.
One is that there’s a very complicated history of this rule. Congress disapproved of a weaker methane rule the first time around in the Trump administration, and because of that congressional action, there’s a barrier there. They can’t easily just rescind that methane rule. They’ve got more legal hurdles to jump through.
The other reason is there are some good reasons to regulate methane that have to do with ozone pollution and pollution that isn’t just about climate change. And the third reason is the oil and gas industry might actually want a methane rule. They might want a weak one, but they might want one federally. So that’s a bit separate, and you have to be on the lookout for them handling methane differently.
Could a future EPA just develop stronger pollution standards for other pollutants that would indirectly reduce greenhouse gas emissions?
It’s true that when you set toxics standards, for example, for power plants to control their toxic pollution, a side benefit is those power plants become more efficient, and that means they control their carbon pollution, too. But this is more around the margins. This is not taking big bites out of power plant greenhouse gas emissions or big bites out of car and truck emissions. It would be a much, much, much weaker version of what you can do with the endangerment finding.
So if the endangerment finding is reversed, is the only path for future regulation for Congress to explicitly tell EPA that it must regulate greenhouse gases?
That’s one option, but it may not necessarily be the only one. It depends on where this lands after it moves through the courts. If the Supreme Court said, You, Trump EPA, you can rescind this finding, but another administration could bring it back, then another administration can say, Well, we think the science is clear, and we’re going to make the finding again and issue these rules. So it all depends on how far the court goes. If it’s going to agree with EPA, how much will it agree? But if the court were to essentially say, this agency has no authority now and forever to make this finding, well then yes, you need new law.
Will the overturning of the Chevron doctrine also play into this?
That’s another interesting one. So what they have to do now is argue that greenhouse gases might be pollutants, but we don’t have to regulate them. And when they argue that we don’t have to regulate them, they’re going to be asking for a lot of deference. And so in that sense, they’re kind of asking for what Chevron used to give you — deference. But they don’t have Chevron anymore, so they’re going to have to say to the court, You should agree with our reading of this law. This is the best reading of this law, that we don’t have to regulate. They no longer can just say, you ought to defer to us under Chevron.
In that scenario, is it left to the court to decide?
It’s left to the court to say, your reading of the law is right. You have flexibility here, and you can decide you don’t need to regulate. The court would have to agree with their reading of the Clean Air Act.
Isn’t the endangerment finding more of a scientific question than a legal one?
Well, in making that scientific decision about what constitutes a danger to human health, there’s a lot of judgment in there. How do we interpret the science? Is it okay for us to say, well, there are a lot of good things that happen because of climate change? This is what they might do, right? They might say, The EPA, long ago, they ignored all the good stuff about climate change, and we think that’s really important. They might say some ludicrous stuff that leading scientists would think is completely wrong. But there’s some discretion in there about how you count the science and what you weigh, and they’re going to try to get the court to agree that they have a lot of flexibility in what method they use. That means the court will have to agree with them on how they read the law.
So they might say, We have flexibility to interpret the science, and the court might say, No, you don’t, the science is really clear. Then they might say, Okay, well even so, the U.S. contribution is so infinitesimally small that we don’t consider it a contribution to the problem. Now there, the court might say, Okay, you have discretion there. So it’s a little bit of a moving target, where at every opportunity they’re going to say, We have flexibility, don’t you agree?, and hope the court bites on one of those.
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On Trump’s coal push, PJM’s progress, and PG&E’s spending plan
Current conditions: Tropical Storm Imelda is gaining wind intensity this week, bringing flooding rain and storm surge to the southeastern U.S. • Hurricane Humberto, now a Category 4 storm, is passing west of Bermuda, bringing marine hazards to the U.S. East Coast • Typhoon Bualoi is pummeling the Philippines and Vietnam, where it’s already killed a dozen people.
If you were planning to cash in on the $7,500 federal tax credit for buying an electric vehicle, you’d better make moves. Today’s the last day to claim the so-called 30D tax credit. Congress moved the expiration date for the writeoff to September 30 as part of the One Big Beautiful Bill Act.
That doesn’t mean all government incentives for EVs are going away. New York still offers a $2,000 “Drive Clean Rebate” for some vehicles, and California offers up to $7,000 in rebates. Prices for new electric cars are still higher than those for comparable internal combustion vehicles, a frustratingly persistent condition the federal tax credit was meant to help address. Owning an EV has its own rewards, however, including lower fuel and maintenance costs over time. For more on how to go about choosing an EV, here’s Andrew Moseman’s guide from our Decarbonize Your Life series.
Stacks at the Hugh L. Spurlock Generating Station in Maysville, Kentucky. Jeff Swensen/Getty Images
The Trump administration is opening more than 13 million acres of federal land to leasing for new coal mines. And it’s providing funding to keep demand for coal roaring. The Department of Energy announced Monday it will offer $625 million to upgrade, reopen, and “modernize” coal-fired power plants across the country.
It’s a sign of the trend Heatmap’s Matthew Zeitlin clocked in July: “Global coal demand is rising,” he wrote, “and America wants in.” Indeed, in a press release, Secretary of Energy Chris Wright boasted that the new funding would “keep our nation’s coal plants operating” and would ultimately help lower rising electricity prices. “Beautiful, clean coal will be essential to powering America’s reindustrialization and winning the AI race,” Wright said. “Coal built the greatest industrial engine the world has ever known, and with President Trump’s leadership, it will help do so again.”
The Trump administration is shutting down or shrinking roughly one third of the federal offices that track bird populations after hurricanes, map megafire risks in the Midwest, figure out new ways to fight invasive plants, and prepare communities’ stormwater drains against intense flooding. The U.S. Geological Survey’s Climate Adaptation Science Centers “are expected to drastically wind down and possibly close after Tuesday because of a lack of funds,” The Washington Post reported Monday. The centers in the South Central, Northeast, and Pacific Islands regions, which “collectively cover about one-third of the U.S. population and are funded under the Interior Department,” are potentially facing permanent closure.
The shuttering isn’t linked to a potential government shutdown, and appears planned as part of the Trump administration’s broader cuts to federal research. “We’re not willing to just drop everything and walk away,” Bethany Bradley, the co-director of the Northeast Climate Adaptation Science Center and a University of Massachusetts professor, told the newspaper. “But the reality is we can’t do this for free.”
Amazon, Google, Microsoft, utility giant Constellation, and power company Talen came together to propose a way to meet electricity needs in the nation’s largest power grid. Under their plan, the PJM Interconnection would allow large power users to volunteer for time-limited periods of reducing electricity demand when the grid is stressed. The proposal also outlines plans for time-limited use of backup generation. If making the load more flexible doesn’t work, PJM would increase the supply of firm power through procurement.
The pitch comes in response to an earlier mandatory curtailment proposal from PJM, which drew fierce blowback from many of the companies that wrote up this alternative. (“Everyone hates it,” Matthew wrote.) As analyst Aniruddh Mohan noted, PJM ultimately withdrew its initial load flexibility proposal.
Pacific Gas & Electric announced plans to spend $73 billion on upgrades to the electrical grid in California to meet the surge in demand from data centers. PG&E, as it’s known, has been deemed responsible for multiple large-scale wildfires in recent years, incurring billions in damages. As the utility told investors on a call Monday, the new investment plan “comes on the heels” of new liability reforms in the state. Under Senate Bill 254, the state expanded its wildfire fund by $18 billion and “acknowledged that the utilities and their customers cannot continue to carry the full burden of climate-driven catastrophic wildfires, especially when the utility has acted prudently,” PG&E CEO Patricia Poppe said, according to Power magazine. The utility had filed a proposal in March to build 700 miles of underground power lines between 2026 and 2028 and complete 500 miles of additional wildfire safety system upgrades by next year.
Fervo Energy, the company using fracking technology to harness the planet’s molten energy, is undeniably leading the race to commercialize next-generation geothermal. But a clear second-place contender emerged Tuesday when XGS Energy released the results from its first commercial test, the company told Heatmap exclusively. The startup’s system outperformed the executives’ expectations, setting the stage for full-scale development. While Fervo’s technology represents what’s known as “enhanced” geothermal system, XGS’ approach is what’s known as “advanced” geothermal systems that rely on closed-loop infrastructure, as Matthew previously explained.
The company is vying to challenge Fervo for leadership in the next-generation geothermal market.
The geothermal startup XGS Energy has now completed four months of tests to see whether its technology can maintain steady production of heat at temperatures above what’s needed to generate energy. Over 3,000 hours, the company monitored the drilling process and checked how heat flowed from its wells, the status of their temperature, and how precisely XGS’ mathematical predictions matched the outcome of the testing.
The results, which the company shared exclusively with Heatmap, were “almost too good,” XGS CEO Josh Prueher told me.
“Had we been within 10% of predictive performance, we would have been pretty happy with the outcome,” Prueher said. “Turns out we were within 2% under a variety of different parameters.”
“It worked like a charm,” he said.
To understand what makes XGS Energy stand out among the geothermal startups racing to commercialize next-generation technology, it helps to compare the company to its fellow Houston-based rival that’s currently leading the sector, Fervo Energy. Unlike Fervo, XGS doesn’t use fracking technology to drill horizontal wells in pursuit of hot, dry rocks from which to harvest energy.
Instead, XGS drills vertical wells and inserts a closed steel pipe with water and fills the gap between the metal and the rock with a patented slurry that conducts heat. Technology like Fervo’s requires pumping cold water over the fractured hot rocks to harvest heat. But with its method, XGS claims, it avoids losing any water.
The testing took place off the US-395 highway in a volcanic field in California’s Mojave desert, sandwiched between the eastern edge of the Sequoia National Park and western border of Death Valley National Park. The geothermal field XGS tapped is already actively producing energy for the Coso Operating Company, which runs a 270-megawatt geothermal power plant on the land. The results, the company said, showed the “unprecedented predictability and active control of field performance” of XGS’ technology “versus other geothermal systems, which are subject to complex and continuously changing subsurface reservoir conditions.”
At least one outside observer agreed. “This is impressive, and something to be proud of,” Advait Arun, an energy analyst and senior associate at the think tank Center for Energy Enterprise who co-authored a recent report on next-generation geothermal, told me.
While the 3,000 hours of testing still falls short of the year’s worth of data Fervo has produced at one of its sites, it’s the longest any other competitor in the space has successfully demonstrated its approach so far, Arun said.
“These guys would be second to Fervo in terms of their ability to prove a commercial-scale performance test,” he added.
XGS is now poised to build a 150-megawatt power plant for Meta’s New Mexico data centers. Even after that’s complete, however, Prueher said the surrounding area has nearly 3 gigawatts of untapped heat. In California, where the company is headquartered and carried out its demonstration project, there’s a growing need for clean power sources that don’t further tax the depleted water table.
“A lot of the historical sensitivities around developing in California — a state where, like many others, water usage for industrial development is kind of a no-no — because we don’t need water, we have some real advantages,” Prueher said.
At a moment when surging demand from data centers is supercharging dealmaking in the electricity sector, Prueher said XGS is looking beyond the boom from the artificial intelligence buildout.
“It’s not about data centers,” he said. “It really is just the fundamental power needs of California. With the restrictions around water usage, we line up really, really well for California.”
For now, the company remains focused on the U.S. But Prueher said XGS is well suited to export its technology to East Asia, as well, where countries along the Pacific Rim have vast geothermal potential and growing electricity demand but limited development. XGS already has ties to the Philippines and “may actually be subsurface” — i.e. digging wells — there by the end of 2026, Prueher told me.
The “big enchilada,” he said, would be establishing a foothold in Japan, where the onsen hotspring industry has long protested geothermal development they say could diminish the resource that makes the ancient bathhouse tradition possible. Prueher told me his technology mitigates concerns over fracking-induced earthquakes, as well.
For now, he said, his main market is in the fast-growing Southwest. The executive compared this moment to 2021, when he worked at a battery company. That February, Winter Storm Uri collapsed the Texas grid as natural gas pipes froze and demand for electricity to heat homes designed to stay cool in a typically arid climate skyrocketed. Back then, he said, batteries were “still a pretty new asset class.”
“People were still uncertain about how it would perform,” Prueher said. But his company was “able to keep our batteries up and operating 100% of the time, no one minute of downtime during that entire episode.”
“From a market perspective, the storm showed that, if you can bring this new type of technology into the market, it can really deliver remarkable value,” he added. “We made 10 years of revenue in six days.”
In a lot of ways, he went on, “this is the same thing.”
“We’ve proven a technology is reliable,” Prueher said. “It works at commercial scale over a period of time. We would regard this as a real pivot point in the industry.”
Voters are mad at Trump over rising bills, but assigning blame is complicated.
Electricity prices are rising and voters are mad about it — two facts that might seem to add up to a political victory for Democrats.
Environmental groups and elected officials alike are gearing up to use electricity prices against Trump, citing the president’s multi-pronged assault on renewables as the problem and promising to immediately bring them down as the solution. “Cheap is clean and clean is cheap,” Hawaii Senator Brian Schatz said at Heatmap House during New York Climate Week, echoing what has become essentially a universal talking point among climate activists.
The problem with that message, however, is that lowering electricity prices is really hard. In reality, the responsibility for high prices can’t be laid that the feet of any one person, party, or governmental body. What’s worse for Democrats: the voters seem to agree.
That’s not to say Trump isn’t giving Democrats a fighting chance.
“What’s interesting politically is that Trump started this term with cost of living being his single strongest issue, and now it’s his weakest,” Democratic political strategist David Shor said at an event hosted by the moderate Democratic group Third Way during New York Climate Week last week.
“A lot of the Democratic attacks trying to blame these energy price increases on Republicans have done well in our testing,” Shor said, and that there was “potential” for such attacks to be effective.
But the public’s views on energy go back further than January 20.
Trump won the 2024 election in part because of public outrage at rising prices across the board. Polling done during the campaign showed that Trump both had an advantage on cost of living issues in general and energy in particular. A Third Way poll conducted early last year showed that Trump had strong advantages on energy production, supporting manufacturing, reducing the cost of energy and gasoline, and the economy in general.
“While Biden was president, energy was one of his biggest vulnerabilities,” Shor said on the panel. “The flip side though, though, is that Democrats aren’t in charge anymore.”
According to polling by Heatmap Pro, voters largely don’t pin the fault for high electricity prices on Washington, D.C. They are more likely to blame “more demand,” their “ electricity utility,” or their “state government,” with roughly equal numbers blaming “the Biden administration and Democrats” and “the Trump administration and Republicans,” with predictable partisan splits.
And while the Trump administration is undoing tax credits for clean energy projects and unleashing regulatory hellfire on existing projects, the electricity price hikes we’re already experiencing are largely due to the cost of the poles and wires that transit and distribute electricity. In some cases, sharply rising demand has played a role, especially in the Mid-Atlantic and parts of the Midwest covered by PJM Interconnection.
Because the bulk of high energy costs are due to investments that have already been made — and can likely only be slowed down by new investments in longer-distance transmission — politicians are unlikely to find a way to lower costs, so much as perhaps slow down their increase. “Unfortunately, electricity rates are not going to go down. Our goal here is to minimize how much they go up,” Gretchen Kershaw, vice president of strategy at Grid Strategies, said on the same Climate Week panel as Shor’s.
Any politician running as a challenger can simply say that rising electricity prices are bad and force incumbents to take responsibility for it, even if they don’t have a plan to lower prices in the short term.
However, Democrats are in charge in some places that have seen large price increases, and that has tripped up their ability to make electricity price increases a marquee issue.
New Jersey, for instance, not only has some of the highest retail electricity prices in the nation, it has seen substantial price increases over the last five years as the state’s electricity market, PJM, has faced billions of dollars in new costs for capacity. Just in the past year, retail electricity prices in New Jersey have risen by over 25%, to around 25 cents per kilowatt-hour.
Along with Virginia, New Jersey’s gubernatorial election — held the year after the presidential election, is often considered a kind of mid-mid-term temperature-check for the country as a whole.
New Jersey is a solidly Democratic state, although one that swung considerably towards Trump in 2024. The Democratic nominee in this year’s governor’s race, Mikie Sherrill, is the favorite and should be able to ride the backlash against Trump to Drumthwacket, a.k.a. the New Jersey governor’s mansion. But with electricity prices at the center of the race, she has failed to dominate the polls.
Her Republican opponent, Jack Ciattarelli, has tried to pin the price increases on progressive policy, namely support for renewables, especially the troubled offshore wind industry, as well as efforts to prevent new fossil fuel power plants from opening.
One anti-Sherrill ad quotes the congresswoman saying, “We need to move into clean power. It’s going to cost you an arm and a leg, but if you’re a good person you’ll do it,” and describes her price freeze plan as just a way to “lock in” already high prices.
Sherrill’s campaign has hit back at the Republican Governors Association, which ran the ad, pointing out that the quote was actually Sherrill explaining how not to talk about climate and energy policy. In other words, Sherrill is getting tagged with the argument that she explicitly says Democrats should reject.
Sherrill has tried to go after utilities specifically in her campaign, and in August proposed a freeze on electricity rate increases.
There’s some indication that voters in New Jersey at least give an edge to Republicans on energy and electricity questions. In a Quinnipiac poll showing Sherrill leading Ciattarelli 49% to 41%, she had just a two-point lead on electricity prices, specifically, with 17% of the respondents not having an opinion.
In short, Sherrill was right to be concerned about how voters perceive Democrats when it comes to electricity prices.
“Democrats have to be very careful,” Shor said. “If you just ask people ‘what party do you trust more to keep energy prices down’? Historically, that’s something that Republicans have massive advantages on.”