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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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Without the endangerment finding on greenhouse gases, the state could have a case for re-imposing its own greenhouse limits on auto emissions.
Trump’s Environmental Protection Agency has moved to abdicate the federal government’s responsibility to regulate greenhouse gas emissions for vehicles. At this point it’s only a proposal, and legal challenges to the shift could take years to resolve even after the change gets finalized.
But if the law eventually closes the door on national standards, it might open a new one for states.
The Clean Air Act prohibits states from enacting their own pollution regulations for mobile sources, such as cars and trucks. California, however, is allowed to request a waiver from the EPA to create its own, stricter rules, since the state was already regulating vehicle pollution prior to the law’s passage. Once EPA approves one of California’s waivers, other states can subsequently adopt the stricter rules without requesting the same federal dispensation.
At first California’s air quality regulations were focused on more traditional health-harming pollutants such as ozone and particulate matter. But in 2005, California created the world’s first greenhouse gas emissions standards for cars, beginning with model year 2009, and requested a waiver from the EPA to enforce them.
At the time the EPA did not have any national standards for greenhouse gas emissions, but a seminal court case would soon force it to create them. In 2007, the Supreme Court ruled in Massachusetts vs. EPA that greenhouse gases are pollutants, as defined by the Clean Air Act, and that the agency has a duty to regulate them if it finds that they endanger public health or welfare. In 2009, the EPA under President Obama issued its “endangerment finding,” determining under a mountain of evidence that yes, greenhouse gases threaten public health, and prompting the development of the first federal climate standards for vehicles.
Now the Trump administration is trying to reverse that finding and put an end to federal climate regulations for vehicles once and for all.
At the same time, Trump has approved a move by Congress to rescind California’s latest waivers — although the move was legally dubious and the state is challenging it in court. Congress revoked the waivers under the Congressional Review Act, a law that allows the legislative branch to undo recently-finalized agency rules with a simple majority, despite previous rulings from the Government Accountability Office and the Senate parliamentarian that the waivers are not “rules” as defined by the Congressional Review Act.
But if the EPA says the Clean Air Act does not require the agency to regulate greenhouse gas emissions, does California even need those waivers?
“If I were the state of California and the endangerment finding gets rescinded, I would argue that there are no federal standards,” Ann Carlson, a professor of environmental law at the University of California, Los Angeles, and a former Biden administration official, told me. “There is, in the view of EPA, no need to regulate, and therefore states shouldn’t be preempted. I don’t know if that’s a winner, but I think it’s worth a try.”
Eliminating the endangerment finding would give states a solid argument for being able to regulate greenhouse emissions themselves, Carlson told me. But what would make the argument a “slam dunk,” she said, was if the Supreme Court ultimately overturned Massachusetts vs. EPA, and ruled that greenhouse gases are not air pollutants under the Clean Air Act after all.
The road to that outcome would be long and could veer in a different direction if Democrats retake the White House in 2028. First, the EPA has to put out its proposal for public comments and issue a final decision. That process alone could take a year. Then states or environmental groups would challenge the decision in the D.C. Circuit Court of Appeals, which would likely take another year to reach a ruling, putting us into mid-2027 or so.
While we won’t know what EPA’s exact argument will be until it issues the final decision, the justifications it has put forward so far are weak, according to experts. The agency’s main claim in the proposal is that it can only regulate pollutants that endanger health through local or regional exposures — the global problem of climate change doesn’t count. “This is hard to square with the Supreme Court’s decision in Massachusetts vs. EPA,” Harvard Law School’s Jody Freeman told me, “but EPA claims that doesn’t settle it.”
Carlson said she thinks there’s a pretty good chance the D.C. court would strike down the EPA’s attempt to reverse the endangerment finding. But the Trump administration would presumably appeal that ruling to the Supreme Court, which would present an opportunity for the conservative majority to overturn Massachusetts vs. EPA. Chief Justice Roberts, along with Justices Alito and Thomas, dissented in the original 2007 decision, while Justice Brett Kavanaugh, who was confirmed in 2018, “has made clear his disdain for using the Clean Air Act to regulate greenhouse gasses,” Carlson said.
There are a lot of open questions about what would happen next. If the case is still ongoing by 2029, the next administration could decide to withdraw it, or simply to reinstate the endangerment finding.
Another wrinkle: The Inflation Reduction Act amended the Clean Air Act to explicitly define greenhouse gases as pollutants under new sections of the law. That could make it harder for the Supreme Court to overturn Massachusetts vs. EPA, although the court has previously held that different sections of the law may define “air pollutant” differently.
Finally, even if the case goes all the way to the point of reversing Massachusetts vs. EPA, there would probably still need to be additional litigation to clarify what states can do, Atid Kimelman, a clean vehicles attorney for the National Resources Defense Council, told me.
He noted that the federal government might argue that regardless of the fact that the EPA isn’t regulating greenhouse gases, states are still preempted, as the whole point of the preemption in the Clean Air Act is to make sure that the country doesn’t have 50 different standards for motor vehicles. Another hurdle might be that the federal Energy Policy Conservation Act, which authorizes the Department of Transportation to set fuel economy standards, also preempts states from adopting their own vehicle regulations.
“This is somewhat novel territory that hasn’t really played out in courts,” he said. “These are arguments that have to be tested.”
Along with Senator John Curtis of Utah, the Iowa senator is aiming to preserve the definition of “begin construction” as it applies to tax credits.
Iowa Senator Chuck Grassley wants “begin construction” to mean what it means.
To that end, Grassley has placed a “hold” on three nominees to the Treasury Department, the agency tasked with writing the rules and guidance for implementing the tax provisions of the One Big Beautiful Bill Act, many of which depend on that all-important definition.
Grassley and other Republican senators had negotiated a “glidepath for the orderly phaseout” of tax credits for renewables, the senator in a statement announcing the hold, giving developers until July 2026 to start construction on projects (or complete the projects and have them operating by the end of 2027) to qualify for tax credits.
Days after signing the law, however, President Trump signed an executive order calling for new guidance on what exactly starting construction means. The title of that order, “Ending Market Distorting Subsidies for Unreliable, Foreign Controlled Energy Sources,” has generated understandable concern within the renewables industry that, as part of a deal to get conservative House members to support the bill, the Treasury Department will write new guidance making it much more difficult for wind and solar projects to qualify for tax credits.
“What it means for a project to ‘begin construction'’ has been well established by Treasury guidance for more than a decade,” Grassley said. Under these longstanding definitions, “beginning construction” can mean undertaking “physical work of a significant nature,” which can include or buying certain long-lead equipment or components like transformers. Another way to qualify for the credits is to spend 5% of the total cost of the project.
A more restrictive interpretation of “begin construction,” however, could turn the tax credit language into a dead letter, especially when combined with the rest of the administration’s full-spectrum legal assault on renewable energy.
Grassley said that new guidance is expected within two weeks, and that “until I can be certain that such rules and regulations adhere to the law and congressional intent, I intend to continue to object to the consideration of these Treasury nominees.”Grassley has a long history with production tax credits for wind energy, playing a pivotal role in their extension in 2015. “As the father of the first wind energy tax credit in 1992, I can say that the tax credit was never meant to be permanent,” Grassley said at the time. “The five-year extension for wind energy brings about the best possible long-term outcome that provides certainty, predictability and a responsible phase-down of a tax incentive for a renewable energy source.”
Almost 60% of Iowa’s electricity is generated by wind turbines, the highest proportion of any state, according to Energy Information Administration data.
Utah Senator John Curtis has joined Grassley in placing a hold on nominees, delaying their vote before the whole Senate, according to Politico’s Joshua Siegel. Grassley and Curtis, alongside Lisa Murkowski of Alaska and Thom Tillis of North Carolina, were unable to get a meeting with the Treasury Department to discuss the guidance, Siegel reported.
On Puerto Rico’s water crisis, LNG’s tax scam, a nuclear safety scandal
Current conditions: Wildfire smoke in Alberta, Canada, is so thick that the airport had a visibility of just about 650 feet, and the air quality index hit 2241, 10 times higher than “hazardous” levels • At least 10 Chinese provinces are on alert for heavy rainfall this week, with as much as 8 inches deluging Beijing • Prolonged heatwave conditions in southeastern Europe are raising the risk of fires.
A wildfire in Arizona’s Grand Canyon National Park that has burned for nearly a month has grown into the largest blaze in the continental U.S. so far this year, scorching more than 114,000 acres as of this weekend. The Dragon Bravo fire, near the park’s North Rim, is expected to increase in size in the coming days due to the exceptionally dry, hot weather, The New York Times reported.
It’s far from the only major fire burning out West. The Gifford fire in California grew to nearly 40,000 acres on Sunday within the Los Padres National Forest in south-central California. The fire was just 3% contained as of late Sunday evening, according to the federal wildfire tracker, InciWeb. Last month, my colleague Jeva Lange wrote that the “next big wave” of wildfires out West “could happen any day.” As she reported, “the components for a bad fire season are all there — the landscape just needs a spark.” Lightning has been a particular concern in the Pacific Northwest, where thunderstorms led to 72 fires in two Oregon counties during just one night in June. A lightning strike is the likely cause of the Dragon Bravo fire.
One of many anti-corruption protests in San Juan, Puerto Rico. Jose Jimenez/Getty Images
Nearly eight years after Hurricane María decimated Puerto Rico’s power grid, the United States’ most populous territory still suffers electricity outages every week and faces rising utility bills. But the island of more than 3 million American citizens is reeling this week from yet another utility failure: Water outages. As many as 180,000 households in Puerto Rico lost access to running water last week, and thousands are still without service. The electricity and water issues are combined. Updates on the state-run water utility’s X page indicated that several water pumping stations are out of service due to a lack of electricity. Governor Jenniffer González Colón called in the National Guard to help distribute water.
It’s just the latest crisis afflicting the Caribbean territory’s basic infrastructure as the island enters the peak of hurricane season. The local government last month escalated its battle with New Fortress Energy, the financially troubled New York-based gas company that provides its fuel and operates its power plants. González Colón is considering ending the island’s contract with LUMA Energy, the private consortium that controls the power grid. Faced with ongoing blackouts, the government just scrapped Puerto Rico’s renewable energy targets and extended the life of a highly polluting coal plant, threatening devastating health consequences for the surrounding community, as I reported earlier this summer for the MIT Technology Review. And, despite González Colón’s chummy relationship with President Donald Trump, federal funding for Puerto Rico’s post-María reconstruction is still trickling out almost a decade after the storm.
The One Big Beautiful Bill Act is bringing tax credits for wind turbines, solar panels, and electric vehicles to a swift end on the grounds that the technologies are mature and therefore no longer worth subsidizing. Yet America’s largest exporter of liquified natural gas is seeking “alternative fuel” tax credits simply for running its vessels on the fuel they carry, exactly as they’re designed to do. The tax credit, originally signed into law by former President George W. Bush in 2005, was intended to incentivize the switch from gasoline and diesel to biofuels, LNG, and liquid fuels derived from coal. The tankers Cheniere Energy, the nation’s top overseas seller of American LNG, uses to ship its fuel around the world are built to boil off fuel from the tanks that hold its cargo. But the company is seeking federal rewards for using the LNG, according to an investigation by Inside Climate News. If the Internal Revenue Service approves the request, Cheniere could net more than $140 million.
The Trump administration has vowed to cut back and streamline nuclear regulations to make building new reactors easier, potentially compromising safety. The effort has stirred enough drama at the Nuclear Regulatory Commission that a Republican commissioner resigned last week. Now a scandal at the St. Lucie Nuclear Power Plant in Florida is providing a timely reminder of why strict oversight exists over atomic energy stations. An inspection report on the plant, owned by Florida Power & Light, revealed that workers feared reporting safety problems to upper management lest they face retaliation. And that comes right as a database shows safety violations soared over the past year, according to the Tampa Bay Times.
The investigation came as the Department of Energy discovered four radioactive wasp nests at the defunct Savannah River nuclear facility in South Carolina. The finding suggested that environmental contamination at the site, which previously developed weapons-grade material for the U.S. government, is more extensive than previously understood. While advocates of nuclear energy draw clear distinctions with the military-related sites, political upheaval at the federal agency that oversees radioactive materials could put the growing bipartisan consensus on building more reactors at risk.
Tesla’s board approved a $30 billion payout of shares to Elon Musk in a new compensation deal, according to a regulatory filing on Monday that followed the billionaire's threat to leave the electric automaker if he didn't receive more stock.
The move came days after a jury in Florida found flaws in Tesla’s self-driving software partly responsible for a crash that killed a 22-year-old woman in 2019 and severely injured her boyfriend, The New York Times reported. If Friday's verdict holds, Tesla will be on the hook for as much as $243 million in damages to the parents of the woman and her boyfriend. The jury decided that Tesla bore 33% of the blame for the crash. Tesla said it would appeal. It’s a setback for Musk’s driverless ambitions. As Tesla’s human-driven automotive offerings stalled out last year, Heatmap contributor Andrew Moseman wrote that, “sure, maybe it will be the one to crack full autonomous driving. But in practical terms, that tech is not close to reality, and Tesla’s version of it has encountered its fair share of bugs and been sued over crashes.”
New research from Stanford University has “upended conventional wisdom about electric vehicle battery management. Contrary to popular belief, a more dynamic driving style could significantly extend the lifespan of EV batteries,” including not charging the units to 100%.