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Justice Brett Kavanaugh’s decision in the case of Seven County Infrastructure Coalition v. Eagle County, Colorado enlists the nation’s highest court in the campaign to reform federal environmental enforcement.

A new chapter opened for one of the country’s most important environmental laws this week.
On Thursday, the Supreme Court transformed the National Environmental Policy Act, or NEPA, an environmental permitting law that affects virtually every decision that the federal government makes. The quasi-unanimous ruling limits the law’s scope and cuts off future avenues for challenging energy and infrastructure projects under the law.
It could reshape the scale of legal challenges that projects could face in the future, giving the Trump administration — and any successive administration — greater leeway to approve energy projects.
Under NEPA, federal agencies must study the environmental impacts of their decisions before they make them. The strictest studies can run into the hundreds of pages, and they can take years to complete.
But in what was essentially an 8-0 decision, the Court ruled that federal agencies almost never need to analyze the second-order environmental effects of their decisions. In other words, an agency need only study the environmental impact of a project itself — be it a pipeline, a solar farm, or, in the case at issue, a railroad — and not its metaphorically downstream consequences. That remains the case even if a given project might indirectly make it much easier to do something with a big environmental footprint, such as drilling for oil or natural gas.
That is the clearest effect of the ruling. But Justice Brett Kavanaugh, writing for the court’s conservative majority, went much further than that summary alone suggests. In a broad and forceful ruling, he told lower courts that they should stop nitpicking the environmental studies that federal agencies must publish under NEPA to justify their own decision-making. Courts should, instead, defer to federal agencies as much as is reasonable when reviewing a NEPA study. “The goal of the law,” he writes, “is to inform agency decision-making, not to paralyze it.” (Justice Neil Gorsuch recused himself from the case because of his connection to an oil magnate who could have benefited from the ruling.)
That suggests a significant change is coming to how the court system interprets NEPA, a law that is little known to the general public but that plays a defining role in how federal agencies make decisions or approve infrastructure projects. NEPA creates a procedural requirement that federal agencies study the environmental impact of any “major decision,” but that category is so broad that it affects virtually everything the federal government does — spend money, write a new regulation, or approve a new project on federal land. The law and the yearslong lawsuits that it spawns have been blamed for delays in building solar farms and transmission lines, but also oil refineries and gas pipelines.
Kavanaugh’s ruling is “pretty striking for just how strident it is, and how assertively it tries to shut the door on further NEPA litigation,” Nicholas Bagley, a University of Michigan law professor who studies the permitting system, told me. Kavanaugh’s message to lower courts is, in essence, “We keep telling you to knock it off. You keep not listening. So knock it the fuck off,” Bagley said.
At the very least, the ruling suggests that a new phase in the effort to reform the country’s permitting laws has arrived. Now that movement has, in essence, been blessed by the Supreme Court.
The case in question — Seven County Infrastructure Coalition v. Eagle County, Colorado — concerns an 88-mile railroad proposed to connect the Uinta Basin in eastern Utah to the national freight rail network. In 2021, the Surface Transportation Board, a federal agency that regulates railroads, approved the project after completing a roughly 3,600-page study of the railroad’s potential environmental impact.
Almost immediately, environmental groups argued that the board’s study did not go far enough. The ground beneath the Uinta Basin is rich in a waxy and particularly carbon-intensive crude oil; right now, very little of that oil is extracted because the only way to get it out is by truck, along windy mountain roads. The railroad, if built, would allow for much larger volumes of crude to be transported out of the basin and sent to Gulf Coast refineries. Building the railroad, in other words, would indirectly increase local oil extraction, and thereby raise global greenhouse gas emissions.
The board argued that its NEPA study did not need to consider these downstream effects because the board itself does not regulate oil extraction — that is, it regulates the building of railroads, not what gets moved on them.
The eight justices agreed that the board was right: It didn’t have to consider the effects of second-order oil drilling when it approved the railroad. (The railroad remains on hold for other reasons, Sambhav Sankar, a senior vice president at Earthjustice, told me.) But by going further in his ruling, Kavanaugh entered into a running debate about the role of NEPA and other permitting laws in the American economy.
NEPA was never meant to play the commanding role that it does today, Kavanaugh writes. When it was first signed into law in 1970, NEPA was meant to act as a “purely procedural” check on federal decision-making. Agencies were supposed to conduct environmental studies, make their decisions, then move on. But in a famous 1971 ruling concerning a proposed nuclear power plant in Maryland, Judge Skelly Wright of the D.C. Circuit Court of Appeals transformed the law. He found that agencies had to carry out NEPA’s procedural requirements “to the fullest extent possible,” and crucially that courts could reject agencies’ analysis for lack of completeness.
Over the years, as hundreds of cases following Wright’s have added up, NEPA has turned into a “fearsome project killer,” Bagley said. Agencies spend decades of person-power and hundreds of thousands of dollars to prepare fastidious environmental reviews of their decisions. Any new infrastructure project or new policy change — even New York City’s congestion charge — requires some form of NEPA study.
Many conservatives have long opposed the modern NEPA process. But in recent years, some liberals have joined them, arguing that the law primarily slows down clean energy infrastructure and encourages NIMBYism. In practice, they say, NEPA acts as more of hindrance to the clean economy than the old fossil fuel economy: Because of a 2005 law, most oil and gas drilling has been exempt from the NEPA process, while wind farms, solar plants, and other forms of zero-carbon energy infrastructure still have to face it. Environmental groups rebut that the law is a useful tool to slow down fossil fuel pipelines, which do not generally get a NEPA exemption.
Data supports the idea that NEPA holds back clean energy projects, but that is partly because it holds back so many kinds of projects. The R Street Institute, a center-right think tank, has found that 42% of projects stalled by NEPA involved green infrastructure or conservation. Another analysis from the Center for Growth and Opportunity at Utah State University found that it takes more than two years on average for federal agencies to complete environmental reviews of solar and wind projects. Reviews for new hydroelectric or nuclear power plants take even longer.
Kavanaugh, in essence, rejects all of this. NEPA was never supposed to block or hinder large-scale energy or infrastructure projects, he writes; it was meant to “inform agency decision-making, not to paralyze it.”
“A 1970 legislative acorn has grown over the years into a judicial oak that has hindered infrastructure development ‘under the guise’ of just a little more process,” he says. When federal agencies write environmental studies under NEPA, courts should broadly defer to the decisions that they make. And even if an agency gets something wrong in its study or omits something important, that does not mean the entire study — and the decision that it justifies — should be thrown out. (There’s some irony to Kavanaugh’s call for deference to agencies here, given that the Supreme Court rejected the idea that agency regulations deserve deference last year.)
“What’s notable for me is that they didn’t just rule on the case,” Sankar, the Earthjustice lawyer told me. (Earthjustice participated in the case.) “They decided to take a broad swipe at NEPA itself, really unnecessarily.”
Alexander Mechanick, a senior policy analyst at the Niskanen Center and former White House regulatory official, agreed with Sankar about the scope of the ruling. The court’s decision “does communicate over and over again, with a heavy hand, a real desire to get lower courts out of the business of fly specking the environmental impact assessments,” he told me.
It’s this forthrightness that seems to announce a new era of NEPA jurisprudence — one where the courts will accept a level of environmental review that they may have once rejected. In a way, Kavanaugh’s ruling is a fitting sequel to Wright’s 1971 decision in that both set the tone and capture the overarching environmental concerns of their respective eras, Bagley said.
Half a century ago, Judge Wright wanted to make sure that the American public could slow the wave of infrastructure that threatened to overwhelm the country’s landscape. NEPA represented “the commitment of the government to control, at long last, the destructive engine of material ‘progress,’” he wrote, asserting that judges must make sure the law’s goals are not “lost or misdirected in the vast hallways of the federal bureaucracy.”
Now, Kavanaugh seems to fear that progress itself has been held up. He writes that the modern NEPA process, with its cycles of “speculation and consultation and estimation and litigation,” has slowed down infrastructure projects and driven up their cost. He can sound more like an op-ed writer than a legal scholar as he lays out the law’s consequences in the ruling:
Fewer projects make it to the finish line. Indeed, fewer projects make it to the starting line. Those that survive often end up costing much more than is anticipated or necessary, both for the agency preparing the EIS and for the builder of the project. And that in turn means fewer and more expensive railroads, airports, wind turbines, transmission lines, dams, housing developments, highways, bridges, subways, stadiums, arenas, data centers, and the like. And that also means fewer jobs, as new projects become difficult to finance and build in a timely fashion.
In this declaration, Kavanaugh seems to put himself on the side of a growing and tenuously bipartisan movement to reform NEPA. A 2023 debt ceiling bill, signed by President Biden, included modest reforms to the NEPA process, imposing page limits and deadlines on the strictest forms of environmental studies. A more sweeping bipartisan effort to change the law failed last year. Now, House Republicans are taking their own crack at revising NEPA, creating an optional and more expensive permitting “fast track” for developers in the reconciliation bill.
Sankar, whose organization has championed NEPA, argues that the ruling’s practical upshot will be to allow the Trump administration greater leeway to build fossil fuel infrastructure. Kavanaugh’s ruling exhibits “a shocking disregard for the realpolitik of what's going on with this administration in particular,” he said.
“As we’ve been saying all along, NEPA gets demonized as the problem,” Sankar said. With the law’s role reduced, “I think people will see that there are a lot of other things that are the problem here, and taking federal agency expertise out of the equation is not going to hurry things up.” He added that state and local governments often rely on federal NEPA reports for their own analyses, and now those reviews may be less trustworthy.
Bagley, who has generally supported permitting reform efforts, agreed that NEPA is just one of several laws holding back clean energy projects nationwide. But it is an important one, he said, and reducing its scope will likely allow more projects to happen. He added that by changing it, advocates will learn of additional bottlenecks that are holding back construction — including laws that nobody has noticed yet because they were previously less important than NEPA. Advocates can also now focus their attention on state and local barriers to building.
“If you want to look at the permitting burdens across the United States, probably 80% to 90% of them are state and local. This [ruling] isn’t going to inaugurate a new era of American dynamism,” Bagley said. “It’s a small step in the right direction.”
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At this point, I think it’s clear that AI data centers are unpopular.
You probably know it, at least. I was preparing talk about data center opposition on a podcast today and I took the opportunity to dive back into our data, so I certainly know it. At this point, we’ve written about results from our polling that show Americans overwhelmingly oppose local data center construction, that majorities of Americans now support a national data center moratorium, and that the only group of Americans who feels more optimistic than pessimistic about artificial intelligence is … men older than 65 years old.
So I got curious: Given all that, who actually supports AI data centers?
One question from our recent Heatmap Pro poll, conducted by Embold Research, helps give us a sense. This is the profile of someone our data says would support a data center built in their local area:
A few facets stand out. These data center YIMBYs are more likely to be men, and more likely to be 2024 Trump voters, but they’re not locked into one age demographic or voting cohort. A third are Harris supporters, and roughly a third are women. Data center YIMBYs are more likely to be older than 50, but the majority isn’t overwhelming.
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Perhaps more surprising: The group has many more people who voted third-party in the 2024 election (8%) than the general population (just under 2%), although that response could also include people who didn’t vote. (Alas, the data can’t quite confirm how many in this group are libertarian.)
What’s perhaps most interesting: This group overwhelmingly believes that artificial intelligence will make their lives better. And in heartening news for climate advocates, they are even more likely to support a given data center project if it is powered by renewables.
I was going to joke that the profile is essentially a newly retired engineering dad — except that, to my surprise, these data center YIMBYs are far less gender imbalanced than the American engineering profession. (They’re also less gender-imbalanced than American Tesla owners.) So I’ll leave it at that.
Five takeaways from the latest Lazard Levelized Cost of Energy report.
It’s all getting more expensive.
That’s the conclusion of the investment bank Lazard’s latest report on the levelized cost of energy, one of the most closely watched and cited energy reports of the year.
Levelized cost of energy measures the dollars per megawatt-hour a power plant needs to earn in revenue to break even over the course of its lifetime in present-value terms.
What makes LCOE so alluring is that it’s a way to compare any type of generator, whether it requires a large upfront investment but has few operating costs, like a utility-scale solar project, or whether its expenses are largely fuel costs incurred in the future, like a combined cycle natural gas plant. This is also why LCOE has its critics, who point out that a solar panel that only runs during certain times of day has a different value to the electricity system than a natural gas plant that can ramp up and down quickly or a nuclear plant that provides steady baseload power.
Anyway, here’s what we can learn from this year’s Lazard report.
Curves that were once gently sloping downward are starting to look like incipient U’s. While longterm LCOE falls are still dramatic and impressive for some technologies — utility solar has fallen from $359 per megawatt-hour in 2009 to $69 in 2026 — the short term rises are worrisome. That $69 per megawatt hour represents a nearly 10% increase from 2025, when utility-scale solar had a LCOE of $58. And it’s not just renewables — the LCOE for a combined cycle natural gas plant rose from $78 per megawatt-hour to $90 in the past year. Gas plant LCOE got as low as $60 in 2021. That’s a 50% price hike in just five years.
Lazard attributed the increase in solar and wind LCOE to “higher capital costs, sustained interest rates, tariff pass-through and supply chain repricing.” These technologies are also the most “sensitive” to subsidies by way of the tax code, with federal tax tax credits taking the low end cost of utility solar to as low as $16 per megawatt hour. To the extent those tax credits are no longer available or weren’t accessible due to strict eligibility rules, that could be a source of future upward pressure on costs.
That being said, renewables “maintain their relative cost advantage despite facing the same cost pressures affecting the rest of the generation stack,” the Lazard analysts concluded.
Natural gas, meanwhile, is seeing prices spiral upward on huge and growing customer demand.
“Continuous upward revisions to demand projections have driven a sharp increase in announced new-build gas generation despite a 15-year high LCOE and historically long development lead times,” according to Lazard.
The report hints at what LCOE is not always able to capture, namely that generators like gas have attributes besides low cost that make them attractive. “New gas combined cycle plants offer the lowest-cost dispatchable power in high-demand and low-cost-gas environments,” the analysts point out.
Anyone building a new combined cycle gas plant, however, will have to deal with the high cost and low availability for turbines, which is “extending development timelines well beyond historical norms.” That provides an opening for renewables that can be deployed quickly and cheaply, like solar and accompanied by battery storage.
In 2019, the low end of LCOE for onshore end was $28 per megawatt-hour, according to Lazard’s figures, and the high end was $54. In 2026, however, the low end costs sits a bit higher at $37 per megawatt-hour, but the high end cost rose to $99. There’s a similar story for utility solar: in 2019, the spread between low and high was a snug $8 per megawatt-hour, while this year it’s ballooned to $58.
The broadening range is “likely reflecting that some project developers have been better able to mitigate broader cost pressures across supply chain and project-level economics than others,” the Lazard analysts wrote.
The Lazard report doesn’t just look at the discounted cost of individual generators over their lifetimes. It also tries to figure how much they cost on certain grids. One way of doing this is to look at what Lazard calls the “cost of firming intermittency” or “levelized firming costs.” This is essentially looking at what it costs to bring solar, solar and storage, and wind and storage onto actual grids considering their ability to perform when the grid is most stressed.
This measure tries to refine LCOE to give a sense of how various forms of energy generation compare to gas plants in real world circumstances, not just as a financial construct. This is not a perfect, real-world comparison — gas capacity needs to be “firmed” as well, as it’s not always entirely available at times of peak need — but at least it gives an idea of how these resources actually function in a real-world grid.
Even with firming costs, “renewables remain broadly cost-competitive,” the report concludes.
Not surprisingly, some of the most dramatic costs are in America’s most troubled electricity market, PJM Interconnection. The unsubsidized cost of firming intermittency for solar and storage is $167 per megawatt-hour, compared to $150 in Texas or $115 in California. That’s also compared to a $129 per megawatt-hour at the high end for conventional combined cycle gas plants in PJM.
PJM is notorious for its inability to bring on new resources quickly and its strict standards for accrediting the contribution of storage and renewables to grid stability.
While the Lazard authors explicitly caution that it doesn’t measure what the“total system costs are for 1 MWh of incremental electricity” and can’t say “the optimal mix of renewables, conventional generation and storage,” it does conclude that “firming costs and dispatchability are increasingly critical for comparing resources on a more complex grid.”
In short, no matter what ends up on the grid, grid planners will have to think carefully about how to make sure it’s reliable and works in concert with what’s already there.
Timber companies think of them as pests, but new research indicates that stands of the slender tree can act as barriers against raging flames.
Colorado’s Aspen Acres Fire is named after a quiet RV campground located high in the San Isabel Mountains, about a five-hour drive due southeast of the state’s better-known Aspen. Both places, however, are named after the iconic deciduous tree known for its golden leaves in the fall. While the start of monsoon season may yet prevent the Aspen Acres Fire — the seventh-largest in Colorado’s history — from joining Utah’s Babylon Fire as the second 100,000-acre “megafire” of the season, the conflagration has been aided in its rampage not by aspens, but rather by dead, downed, and blighted ponderosa pines, spruce, and Douglas firs. The wildfire has now burned over 98,000 acres and nearly 300 homes, and is only 36% contained due to steep terrain that has hampered firefighting efforts, along with extreme drought conditions and beetle infestations that have greatly degraded the forest health of the region.
But what about its aspens? Though the extent of the damage at the campground remains unknown, according to a recent study of Populus tremuloides, Colorado’s iconic golden trees could be one of the keys to more wildfire-resistant forests in the future.
Flavie Pelletier, a recent PhD graduate of McGill University’s Natural Resource Sciences program, told me she first became interested in aspens while working as a tree planter in British Columbia. “The historical assumption on aspen is that stands are very good at stopping fire progression. But the paradox is that if you take an aspen by itself, it’s going to burn at high severity,” Pelletier, who published her findings in Forest Ecology and Management, told me.
By creating near-real-time maps of fires using satellites and comparing them against the Canadian Forest Service’s newly available maps of dominant tree species in the boreal, Pelletier and her colleagues discovered that aspen were almost two and a half times more common at the perimeter of a burned area than inside it. The finding suggests that despite the flammability of a single aspen with its thin bark, stands of aspen act as a kind of barrier when wildfire ran up against them, likely because they lack the flammable resins of conifers and their high foliage helps force running crown fires back toward the ground. Pine and spruce, by contrast, showed a near-zero or even negative effect.
When aspen stands did burn, Pelletier found they did so more slowly: A tree cover of 50% aspen burned at about 224 hectares per day, compared to 717 hectares per day in areas where aspen made up less than 10% of the cover. That’s the equivalent of about 1,000 FIFA-regulation soccer pitches per day in places where aspen are sparser — like Aspen Acres.
Even more surprising, though, was that the pattern held true in the early season, when the trees are still twiggy and have yet to grow their moisture-filled leaves, and despite the severity of fire weather. “Aspen still showed resilience even when the fire weather was very intense, [like in 2023, when] we had all the fires,” Pelletier said.
But she was also the first to admit that seasons are getting more extreme, and that there’s no guarantee the pattern will hold for the next 10 or 20 years.
Pelletier was reluctant to make a policy recommendation based on her research, noting that she’s not a forest manager. But in Alberta and British Columbia, timber companies spray hundreds of thousands of acres of timber with glyphosate, an herbicide, to kill off aspens because the trees outcompete the more commercially valuable conifers. Her findings are “a big argument to stop the spreading of herbicides because you’re increasing the risk of fire in your forest by removing aspen,” Pelletier said.
Despite her hesitation, Pelletier is explicit in her paper about one thing: that aspens “should be encouraged — specifically around key landscape positions, such as population centers” — given that they are a proven means of hardening the wildland-urban interface against wildfires. It might be too late for the idyllically named Aspen Acres, of course; any of the aspens that once drew tourists to the area are likely now ash.
But this not be Colorado’s last fire, either.