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America’s energy regulators are hashing it out in the comments.
As decades of administrative law were being rendered irrelevant last week by a landmark Supreme Court decision denying regulators deference in their interpretations of ambiguous legal statues, one such regulator, Mark Christie, already had some ideas about what do with this new development.
Christie, the Federal Energy Regulatory Commission’s sole Republican member, had taken issue with FERC Order No. 1920, which was unveiled in May and established a new set of rules requiring transmission planners to be more proactive in assessing their future needs and how to pay for them. The order was decided in a 2-1 vote along partisan lines and was largely hailed by environmental and climate groups, who saw it as a way to encourage building out the transmission necessary to bring more wind and solar onto the grid.
To some conservatives, however, the order would remove states from their rightful role in the transmission planning process and stick ratepayers with the cost of infrastructure they never asked for. The rule is already being challenged by state utility commissions, Republican state attorneys general, and the country’s largest regional transmission organization in a FERC process known as request for rehearing. Lawsuits will almost certainly follow.
Those lawsuits will play out on the new terrain laid out by Loper Bright Enterprises v. Raimondo, the Supreme Court decision rendered last week, which overturned a decades-old legal principle known as Chevron deference. Named for the 1984 case Chevron v. Natural Resources Defense Council, which established the notion that courts should defer to agencies’ interpretation of ambiguous statutory language to justify their rulemaking activity, Chevron deference formed the legal foundation for much of the U.S. regulatory apparatus.
In Christie’s lengthy and impassioned dissent to the order, however, he signaled that he thought that foundation might be crumbling.
“The final rule does not deserve a shred of deference under Chevron,” Christie wrote. Unlike past transmission planning rules that had survived legal challenge, this new order was “pretextual” and “heavy handed.” An earlier transmission case case that reached the Washington, D.C. Court of Appeals in 2014, South Carolina Public Service Authority v. FERC, upholding FERC’s ability to mandate transmission planning was, Christie wrote, decided in favor of FERC because it “upheld precisely because it was only mandating processes, not outcomes,” whereas the new rule “nakedly intends to produce very specific outcomes.” Christie was basically painting a red flag on the order for the bull of the judicial process to run through.
Once Chevron deference was no longer in force, Christie issued an update to that dissent, writing in a statement on Friday that the “most important legal lifeline that Order No. 1920 needed was pulled away today, and the final rule’s chances of surviving court challenges just shrank to slim to none.” He referred to outstanding petitions for rehearing the order as “devastating takedowns.” Without Chevron to lean on, he prognosticated, “the Commission can wait for a court to strike down” 1920, or it can answer “those many petitions asking for rehearing or amendments with a new opportunity for amendments.”
In other words, the order should not have had Chevron’s protection, but now that it doesn’t, it’s toast.
On Monday, the Commission’s Democratic Chairman Willie Phillips released a statement (because there was nothing else going on in the legal world that day) arguing that the Commission’s ability to regulate both planning and the distribution of costs “has long been recognized by bipartisan majorities of the Commission and U.S. Court of Appeals for the District of Columbia Circuit,” adding that “nothing in the Supreme Court’s Loper Bright decision overturning the Chevron doctrine calls that conclusion into question.”
He also gave a preview of how the Commission will likely defend the rule in federal court. Order No. 1920 “fits easily within the South Carolina precedent,” he wrote. “It does not promote particular public policies, does not dictate specific outcomes, does not include any selection mandate whatsoever, and employs only the lightest touch possible on cost allocation by simply restating the well-established cost causation principle.”
In conclusion, according to Phillips, Christie’s statement “does not provide a logical or reasonable basis for calling into question whether we have that authority in the first place.”
“It’s not every day that two FERC commissioners just decide to release their thoughts on the latest Supreme Court case,” Ari Peskoe, the director of the Electricity Law Initiative at Harvard Law School, told me.
FERC’s likely argument rests on two legal pillars. The first is that FERC gets its authority from the Federal Power Act, which calls for utility rates to be “just and reasonable” and not “unduly discriminatory or preferential.” FERC has argued that this gives it power over practices that directly affect rates, including transmission planning, which the D.C. Circuit affirmed in South Carolina.
In a separate 2016 case, the Supreme Court ruled that FERC could make rules on practices that directly affect wholesale electricity rates but not retail sales. This case did not depend on Chevron, with Justice Elena Kagan writing in her opinion that the justices “think FERC’s authority clear.” The combined D.C. and Supreme Court precedent, Peskoe said, adds up to FERC having “authority when something directly affects rates."
But in this new legal environment, these precedents may not be enough for a fresh case against FERC's transmission planning authority.
“What does happen now? Who knows,” University of Richmond law professor Joel Eisen told me. “What you would expect now is for litigants to say that any major FERC order, including this one, is inconsistent with the statutory authority that the agency has. They would cite Loper Bright to say that the court has to make an independent judgment that FERC has interpreted law to grant authority to do sweeping change to transmission planning, and that is simply no longer the case,” Eisen said.
Much of FERC’s more than 1,300-page order is devoted to detailed analysis of the electricity market as it stands now and how it will evolve over time, justifying the new transmission planning rules. It’s this record, Eisen said, that might let the order survive in a post-Chevron world, even when FERC asserting that the Federal Power Act gives it the right to set rules may be insufficient on its own.
“That may not have been done as an explicit nod to whether a court might uphold it under Chevron going forward. “It seems to me at least that in this new landscape, what will matter is the robustness of the agency grounded in its expertise,” Eisen told me. “The voluminous record supporting 1920 may be persuasive to a federal court.”
But, as Eisen and Peskoe both warned, which federal court may be as important — if not more so — than any argument FERC makes.
Will FERC's arguments about the nature of the electricity market and precedents relating to interpretation of the Federal Power Act fly in, say, a Texas federal court in the Fifth Circuit, where state utility commissions or Republican attorneys general may file suit? District and appeals court judges in the Fifth Circuit have shown great eagerness to throw out Biden-era rules, with a federal judge in Louisiana only this week blocking the Biden administration’s pause on approving new natural gas export terminals.
“If it goes to the Fifth Circuit,” Peskoe said, “that will be bad news.”
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On PJM pressure, Orsted’s approval, and a carbon storage well milestone
Current conditions: Hurricane Kiko, now a Category 3 storm, is expected to bring heavy rainfall to Hawaii this week as wind speeds roar up to 125 miles per hour • Dry air in the Caribbean is stymying any tropical storm from gaining wind intensity • Tropical Storm Tapah strengthened to a typhoon over China on Monday morning.
U.S. immigration authorities arrested hundreds of South Korean workers at a Hyundai battery plant in Georgia, in a move already prompting geopolitical blowback that could threaten efforts to reestablish manufacturing in the United States. After U.S. Immigration and Customs Enforcement officers conducted their biggest workplace raid since President Donald Trump took office again on Thursday, the South Korean government chartered planes to ferry detained workers back home. At an emergency meeting in Seoul, South Korean Foreign Minister Cho Hyun said his government was “deeply concerned,” and that he would consider flying to the U.S. to meet with the Trump administration. Most of the 475 people arrested at the electric vehicle battery plant — a joint venture between automaker Hyundai and the battery company LG Energy Solution – were South Korean nationals. Videos of the arrests showed the workers’ wrists and ankles wrapped in chains as they were led away.
“You are already poorer because of this idiocy, you just don’t know it yet,” Heatmap’s Robinson Meyer wrote in a post on X, in response to a video of ICE agents chaining workers at the wrists and ankles. “This will crush American manufacturing know-how.”
Under a solar panel in Pennsylvania. Drew Hallowell/Getty Images for NASCAR
Political pressure is mounting on the nation’s largest grid operator to make hooking up new power sources easier amid surging demand. In remarks made as part of a public process for overhauling the grid’s rules, the governors of Pennsylvania, New Jersey, Maryland, and Illinois called on the PJM Interconnection to streamline the process to connect new resources to the grid, citing ERCOT, the independent power system in Texas, as an example of a successful model. “We must open all feasible pathways to bring additional electrons to our grid,” the governors said in a public comment highlighted on X by energy researcher Tyler Norris.
The push comes as PJM is fending off criticism from big tech companies and data centers over a proposal that would allow the grid to encourage big power users to pare back consumption when demand is particularly high. The backlash isn’t surprising to Abraham Silverman, a former lawyer for the New Jersey Board of Public Utilities and an assistant research scholar at Johns Hopkins. As he explained to Heatmap’s Matthew Zeitlin: “The existing rules are financially very favorable to the data centers.” The focus on adding new generation rather than curtailing new load is consistent with that more traditional approach.
Trump once called the Infrastructure Investment and Jobs Act former President Joe Biden signed in 2021, better known as the Bipartisan Infrastructure Law, “a loser for the U.S.A.” that “patriots will never forget.” Now he’s taking credit for the projects it’s funding. In recent months, signs have gone up around the U.S. bearing the president’s name on bridge projects in Connecticut and Maryland, rail-yard improvements in Seattle, Boston, and Philadelphia, and the replacement tunnel on an Amtrak route between Baltimore and Washington, according to The New York Times. “PRESIDENT DONALD J. TRUMP” a sign by the road in southern Connecticut reads. “REBUILDING AMERICA’S INFRASTRUCTURE.”
Republicans had previously balked at similar signs bearing Biden’s name. As Heatmap’s Emily Pontecorvo wrote, “Senator Ted Cruz of Texas lodged a grievance with the Office of Special Counsel alleging Biden had violated the Hatch Act by using taxpayer dollars to pay for ‘nothing more than campaign yard signs.’” Republican Senator Joni Ernst of Iowa (who recently announced her intention not to seek reelection after becoming a target of Trump supporters) gave the signs one of her monthly “squeal awards” last year, demanding to know how much they cost.
Orsted’s shareholders on Friday backed the company’s plans to shore up its finances by raising $9.4 billion on the stock market to fend off attacks from the Trump administration. The approval came even as the world’s largest offshore wind developer cut its profit guidance for the year as lower-than-expected wind speeds dinged the company’s planned power output for the year. At an investor meeting in Copenhagen that the Financial Times described as “extraordinary,” at least 98.5% of shareholders voted in favor of authorizing the issuance of new shares.
The Sweetwater Carbon Storage Hub completed drilling for the nation’s deepest carbon storage well in Wyoming. The project, a collaboration between the University of Wyoming’s School of Energy Resources and the company Frontier Infrastructure holdings, reached a vertical depth of 18,437 feet. Preliminary data from the well “is highly encouraging,” according to the nonprofit newsroom Oil City News. “This deeper well gives us a more complete picture of the subsurface, reinforcing our commitment to building scalable, practical carbon solutions for Wyoming’s key industries,” said Robby Rockey, president and co-CEO of Frontier.
Still, as I reported in this newsletter last week, the new research from the International Institute for Applied Systems Analysis and Imperial College London found “a prudent global limit” of around 1.46 trillion tons of CO2 that can be safely stored in geologic formations. That’s “almost 10 times smaller than estimates proposed by industry that have not considered risks to people and the environment.”
A long-term study spanning more than 50 years found that beavers that have returned to the Evo region in southern Finland increased habitat biodiversity as a result of how they engineer the ecosystem with dams. “While the positive effects of the changes brought about by beavers in the boreal region are significant, their long-term effects on biodiversity dynamics remain partly unknown. This is why long time series are needed to understand the far-reaching ecological effects of these changes,” Petri Nummi, a senior lecturer at the University of Helsinki and an author of the paper, said in a press release.
Using more electricity when it’s cheap can pay dividends later.
One of the best arguments for electric vehicles is the promise of lower costs for the owner. Yes, EVs cost more upfront than comparable gas-powered cars, but electric cars are cheaper to fuel and should require less routine maintenance, too. (Say goodbye to the 3,000-mile oil change.)
What about the societal scale, though? As the number of EVs on the road continues to rise, more analysts are putting forth the argument that EV ownership could lead to lower energy bills for everyone, even the people who don’t buy them.
The idea may be counterintuitive, given the prevailing narrative about voracious appetite for electricity. EVs do require a lot of energy. Electricity demand for EVs in the U.S. jumped 50% from 2023 to 2024 alone as more Americans bought electric, and the research group Ev.energy says demand could triple by 2030. Studies suggest that replacing every internal combustion vehicle in the country with an EV would eat up as much as 29% of American electricity.
Meanwhile, the grid is struggling to keep up — it is, after all, much more difficult to add more megawatts to the capacity of our power system than it is to put a few more EVs on the road. The obvious inference would then seem to be that a battery-powered car fleet could cause an energy crunch and spike in prices.
A new report from Ev.energy, however, argues that if we got smarter about how and when we charge our cars, their presence could actually cut costs for the average American by 10%. The gains could be even better if EVs reach their true potential as a way to give the grid a unique kind of flexibility and resilience.
Compare an electric car to a data center, the other application painted as a ticking time bomb for electricity prices. Worries about the energy-gobbling habits of AI-powering servers are well-founded, given their 24/7 appetite. An EV, however, needs to charge only once in a while. In fact, most people don’t need to charge every day, given the range of modern EVs and the driving habits of the typical American.
As we've covered before, it’s when you charge that matters. Optimizing EV charging can be a helpful way to ease pressure on the power grid and align EV charging with the availability of clean energy.
Here in California, which has far and away the most EVs in America, TV commercials remind us to use less energy between 4 p.m. and 9 p.m., when the state is dealing with rising residential energy use just as solar power is tapering off for the day. It would cause a grid crisis if every EV owner charged as soon as they got home from work. Having EV owners charge their cars overnight, a period of low demand, helps ease the pressure. So does charging during midday, when California sometimes has more solar energy than it knows what to do with.
When EVs charge in this mindful manner, using energy during times of day when it’s cheap for utilities to provide it, data suggests they can effectively push down electricity prices for everyone. Says one recent report from Synapse Energy: “In California, EVs have increased utility revenues more than they have increased utility costs, leading to downward pressure on electric rates for EV-owners and non-EV owners alike.” As the NRDC points out, California has revenue decoupling in place for its utilities, so “any additional revenue in excess of what was anticipated is returned to all utility customers — not just EV drivers — in the form of lower rates.”
Those rosy figures depend upon drivers following this model and charging during off-peak hours, of course. But with time-of-use rates giving them the financial motivation to charge overnight rather than in the early evening, it’s not an outrageous presumption.
And there’s something else that differentiates EVs from other applications that consume lots of electricity: Thanks to their ability to store a large number of kilowatt-hours over a lengthy period of time, electric vehicles can give back. EVs can be a cornerstone of the virtual power plant model because the cars — those equipped with bidirectional charging capabilities, at least — could feed the energy in their batteries back onto the grid to prevent blackouts, for example. In Australia, the Electric Vehicle Council recently crunched the numbers to argue in favor of incentivizing residents to install vehicle-to-grid infrastructure. Their math indicates Australia would reap more than the government invests because these connected EV would cut everyone’s electricity price.
It’s getting more expensive for the individual to own an EV — the federal tax credit for buying one disappears at month’s end, and punitive yearly fees for EV ownership are coming. Yet it seems that driving electric might be doing your neighbors a favor, and not just by clearing the air.
The energy sector — including oil and gas — and manufacturing took some heavy hits in the latest jobs report.
We got a much better sense of what the American labor market is doing today. And the news was not good.
The economy added only 22,000 jobs last month, far fewer than economists had predicted, according to a new release from the Bureau of Labor Statistics. The new data also shows that the economy gained slightly more jobs in July than we thought at the time, but that it actually lost 13,000 jobs in June — making that month the first since 2020 to see a true decline in U.S. employment.
The unemployment rate now stands at 4.3%, one tenth of a percent higher than it was last month. All in all, the American labor market has been frozen since President Trump declared “Liberation Day” and announced a bevy of new tariffs in April.
On the one hand, some aspects of that job loss shouldn’t be a surprise. As we’ve covered at Heatmap, the Trump administration has spent the past few months attacking the wind, solar, and electric vehicle industries. It has yanked subsidies from new electricity generation, rewritten rules on the fly, and waged an all-out regulatory war on offshore wind farms. Electricity costs are rising nationwide, constraining essentially all power-dependent industries except artificial intelligence.
In short: The news hasn’t been good for the transition industries. But what’s notable in this report is that the job declines are not limited to these green industries. The first eight months of Donald Trump’s presidency have been more and more damaging for the blue collar fields and heavy industries that he promised to help.
For instance: Mining, quarrying, and oil extraction lost 6,000 jobs in August. These losses were led by the oil and gas industry, as well as mining support companies. Other industries — such as coal mining firms — saw essentially no growth or very slightly declines.
More cuts are likely to come soon for the fossil fuel industry. The oil giant ConocoPhillips says it will lay off about a quarter of its roughly 13,000-person workforce before the year is out. The oilfield services company Halliburton has also been shedding workers in recent weeks, according to Reuters. The West Texas benchmark oil price has lost nearly $10 since the year began, and is now hovering around $62. That’s roughly the average breakeven price for drilling new wells in the Permian Basin.
The manufacturing industry has lost 78,000 jobs since the year began. In the past month, it shed jobs almost as fast as the federal government, which has deliberately culled its workforce, as the economic analyst Mike Konczal observed.
This manufacturing weakness is also showing up in corporate earnings. John Deere, the American farm equipment maker, has seen its income degrade through the year. It estimates that Trump’s steel and aluminum tariffs will cost the company $600 million in 2025, and it recently laid off several hundred workers in the Midwest.
Even industries that have previously shown some resilience — and that benefited from the AI boom — have started to stall out a bit. The utility industry lost about 1,000 jobs last month, on a seasonally adjusted basis, according to the new data. (At the same time, the number of non-managerial utility workers slightly increased.) The utility sector has still gained more than 6,000 jobs compared to a year ago.
A few months ago, I quipped that you could call President Trump “Degrowth Donald” because his tax and trade policies seemed intent on raising prices and killing the carbon-intensive sectors of the American economy. (Of course, Trump was doing plenty that radical climate activists didn’t want to see, too, and his anti-renewable campaign has only gotten worse.) Now we’re seeing the president’s anti-growth policies bear fruit. It was a joke then. Now it’s just sad.