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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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According to a new analysis shared exclusively with Heatmap, coal’s equipment-related outage rate is about twice as high as wind’s.
The Trump administration wants “beautiful clean coal” to return to its place of pride on the electric grid because, it says, wind and solar are just too unreliable. “If we want to keep the lights on and prevent blackouts from happening, then we need to keep our coal plants running. Affordable, reliable and secure energy sources are common sense,” Chris Wright said on X in July, in what has become a steady drumbeat from the administration that has sought to subsidize coal and put a regulatory straitjacket around solar and (especially) wind.
This has meant real money spent in support of existing coal plants. The administration’s emergency order to keep Michigan’s J.H. Campbell coal plant open (“to secure grid reliability”), for example, has cost ratepayers served by Michigan utility Consumers Energy some $80 million all on its own.
But … how reliable is coal, actually? According to an analysis by the Environmental Defense Fund of data from the North American Electric Reliability Corporation, a nonprofit that oversees reliability standards for the grid, coal has the highest “equipment-related outage rate” — essentially, the percentage of time a generator isn’t working because of some kind of mechanical or other issue related to its physical structure — among coal, hydropower, natural gas, nuclear, and wind. Coal’s outage rate was over 12%. Wind’s was about 6.6%.
“When EDF’s team isolated just equipment-related outages, wind energy proved far more reliable than coal, which had the highest outage rate of any source NERC tracks,” EDF told me in an emailed statement.
Coal’s reliability has, in fact, been decreasing, Oliver Chapman, a research analyst at EDF, told me.
NERC has attributed this falling reliability to the changing role of coal in the energy system. Reliability “negatively correlates most strongly to capacity factor,” or how often the plant is running compared to its peak capacity. The data also “aligns with industry statements indicating that reduced investment in maintenance and abnormal cycling that are being adopted primarily in response to rapid changes in the resource mix are negatively impacting baseload coal unit performance.” In other words, coal is struggling to keep up with its changing role in the energy system. That’s due not just to the growth of solar and wind energy, which are inherently (but predictably) variable, but also to natural gas’s increasing prominence on the grid.
“When coal plants are having to be a bit more varied in their generation, we're seeing that wear and tear of those plants is increasing,” Chapman said. “The assumption is that that's only going to go up in future years.”
The issue for any plan to revitalize the coal industry, Chapman told me, is that the forces driving coal into this secondary role — namely the economics of running aging plants compared to natural gas and renewables — do not seem likely to reverse themselves any time soon.
Coal has been “sort of continuously pushed a bit more to the sidelines by renewables and natural gas being cheaper sources for utilities to generate their power. This increased marginalization is going to continue to lead to greater wear and tear on these plants,” Chapman said.
But with electricity demand increasing across the country, coal is being forced into a role that it might not be able to easily — or affordably — play, all while leading to more emissions of sulfur dioxide, nitrogen oxide, particulate matter, mercury, and, of course, carbon dioxide.
The coal system has been beset by a number of high-profile outages recently, including at the largest new coal plant in the country, Sandy Creek in Texas, which could be offline until early 2027, according to the Texas energy market ERCOT and the Institute for Energy Economics and Financial Analysis.
In at least one case, coal’s reliability issues were cited as a reason to keep another coal generating unit open past its planned retirement date.
Last month, Colorado Representative Will Hurd wrote a letter to the Department of Energy asking for emergency action to keep Unit 2 of the Comanche coal plant in Pueblo, Colorado open past its scheduled retirement at the end of his year. Hurd cited “mechanical and regulatory constraints” for the larger Unit 3 as a justification for keeping Unit 2 open, to fill in the generation gap left by the larger unit. In a filing by Xcel and several Colorado state energy officials also requesting delaying the retirement of Unit 2, they disclosed that the larger Unit 3 “experienced an unplanned outage and is offline through at least June 2026.”
Reliability issues aside, high electricity demand may turn into short-term profits at all levels of the coal industry, from the miners to the power plants.
At the same time the Trump administration is pushing coal plants to stay open past their scheduled retirement, the Energy Information Administration is forecasting that natural gas prices will continue to rise, which could lead to increased use of coal for electricity generation. The EIA forecasts that the 2025 average price of natural gas for power plants will rise 37% from 2024 levels.
Analysts at S&P Global Commodity Insights project “a continued rebound in thermal coal consumption throughout 2026 as thermal coal prices remain competitive with short-term natural gas prices encouraging gas-to-coal switching,” S&P coal analyst Wendy Schallom told me in an email.
“Stronger power demand, rising natural gas prices, delayed coal retirements, stockpiles trending lower, and strong thermal coal exports are vital to U.S. coal revival in 2025 and 2026.”
And we’re all going to be paying the price.
Rural Marylanders have asked for the president’s help to oppose the data center-related development — but so far they haven’t gotten it.
A transmission line in Maryland is pitting rural conservatives against Big Tech in a way that highlights the growing political sensitivities of the data center backlash. Opponents of the project want President Trump to intervene, but they’re worried he’ll ignore them — or even side with the data center developers.
The Piedmont Reliability Project would connect the Peach Bottom nuclear plant in southern Pennsylvania to electricity customers in northern Virginia, i.e.data centers, most likely. To get from A to B, the power line would have to criss-cross agricultural lands between Baltimore, Maryland and the Washington D.C. area.
As we chronicle time and time again in The Fight, residents in farming communities are fighting back aggressively – protesting, petitioning, suing and yelling loudly. Things have gotten so tense that some are refusing to let representatives for Piedmont’s developer, PSEG, onto their properties, and a court battle is currently underway over giving the company federal marshal protection amid threats from landowners.
Exacerbating the situation is a quirk we don’t often deal with in The Fight. Unlike energy generation projects, which are usually subject to local review, transmission sits entirely under the purview of Maryland’s Public Service Commission, a five-member board consisting entirely of Democrats appointed by current Governor Wes Moore – a rumored candidate for the 2028 Democratic presidential nomination. It’s going to be months before the PSC formally considers the Piedmont project, and it likely won’t issue a decision until 2027 – a date convenient for Moore, as it’s right after he’s up for re-election. Moore last month expressed “concerns” about the project’s development process, but has brushed aside calls to take a personal position on whether it should ultimately be built.
Enter a potential Trump card that could force Moore’s hand. In early October, commissioners and state legislators representing Carroll County – one of the farm-heavy counties in Piedmont’s path – sent Trump a letter requesting that he intervene in the case before the commission. The letter followed previous examples of Trump coming in to kill planned projects, including the Grain Belt Express transmission line and a Tennessee Valley Authority gas plant in Tennessee that was relocated after lobbying from a country rock musician.
One of the letter’s lead signatories was Kenneth Kiler, president of the Carroll County Board of Commissioners, who told me this lobbying effort will soon expand beyond Trump to the Agriculture and Energy Departments. He’s hoping regulators weigh in before PJM, the regional grid operator overseeing Mid-Atlantic states. “We’re hoping they go to PJM and say, ‘You’re supposed to be managing the grid, and if you were properly managing the grid you wouldn’t need to build a transmission line through a state you’re not giving power to.’”
Part of the reason why these efforts are expanding, though, is that it’s been more than a month since they sent their letter, and they’ve heard nothing but radio silence from the White House.
“My worry is that I think President Trump likes and sees the need for data centers. They take a lot of water and a lot of electric [power],” Kiler, a Republican, told me in an interview. “He’s conservative, he values property rights, but I’m not sure that he’s not wanting data centers so badly that he feels this request is justified.”
Kiler told me the plan to kill the transmission line centers hinges on delaying development long enough that interest rates, inflation and rising demand for electricity make it too painful and inconvenient to build it through his resentful community. It’s easy to believe the federal government flexing its muscle here would help with that, either by drawing out the decision-making or employing some other as yet unforeseen stall tactic. “That’s why we’re doing this second letter to the Secretary of Agriculture and Secretary of Energy asking them for help. I think they may be more sympathetic than the president,” Kiler said.
At the moment, Kiler thinks the odds of Piedmont’s construction come down to a coin flip – 50-50. “They’re running straight through us for data centers. We want this project stopped, and we’ll fight as well as we can, but it just seems like ultimately they’re going to do it,” he confessed to me.
Thus is the predicament of the rural Marylander. On the one hand, Kiler’s situation represents a great opportunity for a GOP president to come in and stand with his base against a would-be presidential candidate. On the other, data center development and artificial intelligence represent one of the president’s few economic bright spots, and he has dedicated copious policy attention to expanding growth in this precise avenue of the tech sector. It’s hard to imagine something less “energy dominance” than killing a transmission line.
The White House did not respond to a request for comment.
Plus more of the week’s most important fights around renewable energy.
1. Wayne County, Nebraska – The Trump administration fined Orsted during the government shutdown for allegedly killing bald eagles at two of its wind projects, the first indications of financial penalties for energy companies under Trump’s wind industry crackdown.
2. Ocean County, New Jersey – Speaking of wind, I broke news earlier this week that one of the nation’s largest renewable energy projects is now deceased: the Leading Light offshore wind project.
3. Dane County, Wisconsin – The fight over a ginormous data center development out here is turning into perhaps one of the nation’s most important local conflicts over AI and land use.
4. Hardeman County, Texas – It’s not all bad news today for renewable energy – because it never really is.