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In a word: chaos.
A moment of profound uncertainty for many of America’s environmental laws has just become even more uncertain-er. This week, as President-elect Donald Trump considers how to revise or repeal the country’s bedrock climate laws, one of the country’s oldest environmental laws has been thrown into jeopardy.
A three-judge panel on the D.C. Circuit Court of Appeals ruled earlier this week that key rules governing the National Environmental Policy Act, which requires the federal government to study the environmental impact of its actions, do not carry the force of law. The ruling might — might — lay the groundwork for a massive revolution in the country’s environmental permitting regime. But for the time being, they guarantee a lot of chaos.
Whenever the federal government wants to build a new piece of infrastructure — and to some degree, whenever it wants to do anything significant — it has to go through NEPA. That sounds great in theory, but NEPA studies — which were originally meant to be just a few pages long — have now swelled in length, running into the thousands of pages and taking years to complete. They have become the subject of criticism from conservatives and some liberals.
That’s because NEPA doesn’t actually require the government to take the most environmentally friendly action. It only mandates that the government study the alternatives and arrive at a decision. Many critics, including progressives, now argue that NEPA has become a great bulwark of the status quo — a way for wealthy NIMBYs to slow down and block virtually any project they don’t like, including the large-scale solar, wind, and transmission projects necessary for the energy transition.
Other progressives argue that NEPA still serves a purpose — that it’s the only way environmental groups can provide a check on factory farms, new federal construction projects, or other big pieces of infrastructure. They say Congress should reform NEPA by affirmatively expanding parts of the permitting regime, adding new requirements to the process. The NEPA process is so time-consuming today not because it has become unwieldy, they say, but because the federal government does not employ enough civil servants to conduct the required studies on time. (NEPA’s critics reply to this, in essence: Sure, but why does NEPA require all those studies in the first place?)
At the heart of the case is a small federal agency called the Council on Environmental Quality. Since its creation in 1970, the Council on Environmental Quality has issued guidelines about how federal agencies should comply with NEPA. These rules have been treated as legally binding — that is, quasi-law on the same tier as federal regulation — since at least 1977.
In the ensuing decades, presidents from both parties have acted under the impression that the Council on Environmental Quality’s NEPA rules are binding. That’s why the first Trump administration went through the hassle of rewriting the council’s rules, subjecting them to the same notice-and-comment process other federal regulations must go through before they can be changed. The Biden administration later replaced the Trump administration’s rules with its own version.
But that actually isn’t the case, the judges ruled. The Council on Environmental Quality was never allowed to issue binding regulations about NEPA in the first place, they decided.
The Council on Environmental Quality can issue guidelines about how agencies should follow NEPA, the judges said. But these will have the same legal authority as executive orders, which can guide agency decisionmaking but provide no outside legal recourse. Executive orders are sort of like internal corporate policies for the government: They’re supposed to be followed by employees, but nobody can appeal to a court that a company got them wrong. What the council cannot do, the court said, is issue rules, quasi-laws that outside groups can appeal to and claim aren’t being obeyed in court.
If upheld, the ruling would throw virtually the entire body of law around NEPA into question — hundreds of cases, thousands of pages of rules, and hundreds of thousands of analyses all premised on the idea that the Center on Environmental Quality is the final NEPA arbiter. It could also vastly weaken NEPA, allowing the government to build projects quickly while giving Americans and nonprofit groups little recourse to stop them.
“It’s a very big deal,” James Coleman, an energy law professor at the University of Minnesota, told me. “NEPA by itself is a very limited piece of text. When it was adopted, no one imagined that it would lead to this comprehensive permitting system where it would take five years to get a permit.”
Over time, court cases and White House regulations have turned NEPA into the juggernaut that it is today. But now that’s exactly what is up in the air — potentially. “If a judge thinks that the decades of cases we’ve had are misconceived, then they don’t have to follow it any more,” Coleman said.
What’s odd about the case is that neither side intended to get this ruling in the first place. Neither the Federal Aviation Administration nor the Marin Audubon Society, a San Francisco-area birding group, set out to strike down the entire body of NEPA regulations. The FAA had relied on the Council on Environmental Quality’s rules when it approved a plan for tourism flights over national parks, saying that the regulations didn’t require it to conduct a NEPA study. The Marin Audubon Society argued that the air tours didn’t fall under an exemption created by the rules.
Two Republican-appointed judges on the panel then essentially took the case into their own hands, using the dispute as an opportunity to throw modern NEPA procedure into question. In fact, they said, the Council on Environmental Quality never had the authority to issue rules in the first place — so the claimed exemption didn’t matter. (Judge Sri Srinivasan, who dissented from part of the ruling, criticized the judges for opening such big legal questions when they didn’t need to do so.)
The outcome doesn’t mean that the federal government will immediately move faster to approve infrastructure projects — in some cases, it might move slower. As part of its rules, the Council on Environmental Quality has approved a list of “categorical exclusions,” federal actions that do not require a NEPA review. These can include activities like holding a small meeting or taking out a federal farm loan. The judges have now rejected the council’s ability to create categorical exclusions altogether, meaning that many more federal actions may — at least at first — be subject to NEPA oversight. (Congress has also told agencies to create some categorical exclusions — including for oil and gas drilling — and those are not affected by the case.)
For that reason, some environmental lawyers are doubtful that the argument will change NEPA in the way its opponents hope. “What the ruling does is deeply complicate things for both sides,” Sam Sankhar, the senior vice president at Earthjustice, an environmental legal group, told me. “The NEPA regulations are a body of law that has developed over years to guide the way that people do the NEPA process. The absence of those regulations does not mean the absence of NEPA — it means the absence of any guidelines about how to implement NEPA in the future.”
If the NEPA regulations get tossed out, he said, then it will “really be up to each individual judge to wing it” when interpreting the law, he added.
Nicholas Bagley, a University of Michigan law professor who has written critically about NEPA and other liberal laws that focus on procedure, tends to agree with that view. “When you go to court, agencies and challengers both would look at these regulations as a sword or a shield,” he said. Challengers used the White House rules as a weapon, asserting that the government needed to look at some question but failed to do so. But the federal government used those same rules “as a shield,” he said, showing that it faithfully followed the rules, and therefore that judges didn’t need to get involved.
If the rules are gone, then each side has lost a tool — and judges will have much more power. That means federal agencies, which are hesitant to run afoul of the courts, may now become even more timid in their decision-making, Bagley said. What’s more, the White House’s regulations would still act as executive orders, binding agency action. “They just won’t be enforceable in court,” he said. (The Trump administration could also respond by chucking out the White House regulations altogether, he said.)
It’s unclear what happens next. If the FAA appeals, the D.C. Circuit could choose to hear the case again en banc, meaning the full panel of judges — a majority of whom were appointed by Democrats — would consider the questions. But eventually a higher court may weigh in. “I would not be surprised at all to find this eventually find its way to the Supreme Court,” Coleman told me. In the past, the Supreme Court has ruled that the Council on Environmental Quality’s regulations carry the force of law. But the new, arch-conservative court — and the incoming Trump administration — might push for a different approach.
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Rob talks to Peter Brannen, author of the new book The Story of CO2 Is the Story of Everything.
How did life first form on Earth? What does entropy have to do with the origins of mammalian life — or the creation of the modern economy? And what chemical process do people, insects, Volkswagens, and coal power plants all share?
On this week’s episode of Shift Key, Rob chats with Peter Brannen, the author of a new history of the planet, The Story of CO2 Is the Story of Everything. The book weaves together a single narrative from the Big Bang to the Permian explosion to the oil-devouring economy of today by means of a single common thread: CO2, the same molecule now threatening our continued flourishing.
Brannen is a contributing writer at The Atlantic and the author of The Ends of the World, a history of mass extinctions on Earth. He is an affiliate at the Institute of Arctic and Alpine Research at the University of Colorado, Boulder. Shift Key is hosted by Robinson Meyer, the founding executive editor of Heatmap, and Jesse Jenkins, a professor of energy systems engineering at Princeton University. Jesse is off this week.
Subscribe to “Shift Key” and find this episode on Apple Podcasts, Spotify, Amazon, YouTube, or wherever you get your podcasts.
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Here is an excerpt from our conversation:
Robinson Meyer: Why do we have a surplus of oxygen in the air in the first place? It was, for me, also something I did not understand at all before I read the book.
Peter Brannen: So there’s this common trope that two out of the next three breaths you have is from phytoplankton the ocean, or a quarter of it is from the Amazon alive today. And there’s a sense in which that’s true because oxygen and CO2 are being exchanged very quickly in the biosphere. But there is something like 800 times more oxygen in the air than can be produced by the entire biosphere. And all of the oxygen that’s produced by the rainforest, say — the rainforest is a living system where everything else is consuming that organic matter and feeding off of it. And it’s kind of a wash — just as much oxygen is created by the trees as is consumed by the bugs and fungi and jaguars and all the things that are living in the rainforest that are feeding off those plants and respiring that plant matter back to things like CO2 and water. So on a net scale it’s a wash.
So that gets you a planet with close to zero oxygen, and instead we have this absurd abundance of this thing that wants to react with everything. And the only way you can do that is if, say, you imagine a tree and when it dies, rather than being decomposed by fungi and beetles and on and on, that tree suddenly gets buried in sediment and falls into the crust and becomes part of the rock record, and the oxygen it made in life is not used in its own destruction. And by shielding that tree in the earth, you leave this surplus of oxygen in the air. And over all of Earth history, as a vanishingly small amount of this organic matter, things like plants and algae, do make it into the rock record, they leave an equivalent gift of oxygen in the air as a surplus.
We are more familiar with plant matter in the crust where it’s economically exploitable — we call those fossil fuels. So in a weird way, the fact that me and you can breathe — I don’t think a lot of people attribute that to the fact that there’s fossil fuels in the ground. Luckily most, you know, quote-unquote fossil fuels are very diffuse in mudstones, and they’re not economically exploitable. And we’re never going to run out of oxygen by burning fossil fuels because, you know, we worry about CO2 going up in parts per million and oxygens in whole percent. So, you know, it is true that for every molecule of CO2 we burn we’re bringing down oxygen by an equivalent amount, it’s just not that concerning.
But yeah, there is this astounding way of reframing, of looking at the world where the plant surface is breathable only because of what’s happened in the rocks beneath it.
Mentioned:
Peter’s book, The Story of CO2 Is the Story of Everything
This episode of Shift Key is sponsored by …
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Music for Shift Key is by Adam Kromelow.
Is the “turbine crisis” coming to an end? Or at least the end of the beginning?
One of the few bright spots for renewables this year has been that their main competitor for energy generation, natural gas, has been in a manufacturing crunch. An inability (or unwillingness) to ramp up production of turbines, the core component of a gas-fired power plant, to meet rising energy demand is cited regularly by industry executives and financiers to explain why renewables are the best solution to quickly getting power. And it’s reflected in the data; planned additions to the grid are overwhelmingly solar and storage.
But now there might be more turbines coming. Mitsubishi Heavy Industry chief executive Eisaku Ito told Bloomberg over the weekend that it aims to double its capacity to build gas turbines over the next two years.
The industry is essentially an oligopoly of three suppliers: Mitsubishi, GE Vernova, and Siemens Energy. Due to the high level of capital investment necessary to build turbines, there’s little chance of the triumvirate expanding. This means it’s a seller’s market. Developers describe having to be vetted by their suppliers for a product that might get delivered in five years, instead of suppliers fiercely competing for new business. That means for the turbine crisis to be truly reversed, executives (and investors) at Mitsubishi’s two competitors will have to be convinced that large-scale capacity expansions are worth it.
Something that might help them reach that conclusion is if capacity expansion plans are met with a higher stock price. In another ominous development for the renewable energy industry, Mitsubishi’s stock price went up in response to the news. Renewable developers have enough problems on their hands without having to worry about a gas turbine industry that could supply more and more megawatts over the medium term.
Gas turbine manufacturers have been trying to navigate the tension of fulfilling orders for new gas turbines and avoiding costly investments in new capacity that might not actually be utilized should the AI boom peter out, let alone if public policy makes it much more difficult to build new fossil-powered generation.
Up until now, manufacturers — and their investors — have seemed content with heavy demand and constrained supply. Going into the weekend, the stock prices of the gas turbine industry powerhouses GE Vernova, Siemens, and Mitsubishi Heavy Industry had risen 86%, 79%, and 69% so far this year.
But Mitsubishi Heavy Industry’s stock bump on Tuesday indicates that investors are not completely averse to capacity expansion. Yet at the same time, executives across the industry are careful to portray themselves as thoughtful and prudent stewards of capital.
Ito emphasized that the planned capacity expansion would not mean reckless investments, telling Bloomberg “the goal is to be as lean as possible” and that there would be work on the efficiency of the production process to address spiraling costs of turbine manufacturing.
“The executives seem keen to stress that this expansion will be lean and efficient,” Advait Arun, a climate and infrastructure analyst at the Center for Public Enterprise and the author of a much-cited Heatmap article on the turbine shortage, told me. “There’s a tension between getting over their skis by expanding overmuch while also killing the goose that’s laying their golden egg by not expanding.”
The pressure to build is immense — but so is the industry’s hard-won reticence about expansion.
Gas turbine orders are likely to hit a new record this year, according to S&P Global Commodities Insights, and the industry might be unwilling to go further.
“Past boom-and-bust cycles have made the industry cautious in its investments, and turbine demand in the early 2030s is uncertain,” S&P analysts wrote.
Siemens Energy chief executive Christian Bruch had told Morgan Stanley analysts in a note released Tuesday that the company had “no intention” of increasing capacity beyond working to expand the facilities it already has. He also said the company’s constraints are its own supply chain issues, namely the blades and vanes used in the turbines
And GE Vernova has been practically bragging about how far back they have reservations for turbines. “Our pipeline of activity for gas demand is only growing, but it is growing at even more healthy levels for 2029 deliveries, 2030, 2031,” the company’s chief executive Scott Strazik said on an earnings call in July.
And Wall Street has been happy to see developers get in line for whatever turbines can be made from the industry’s existing facilities. But what happens when the pressure to build doesn’t come from customers but from competitors?
A federal appeals court on Tuesday cleared the way for the Trump administration to kill former President Biden’s $20 billion green bank program, which would have provided low-cost loans for solar installations, building efficiency upgrades, and other local efforts to reduce greenhouse gas emissions.
The three-judge panel overturned a lower court’s injunction temporarily requiring the Environmental Protection Agency to resume payments, and ruled that most of the plaintiffs’ claims were contract disputes and belonged in the Court of Federal Claims. If the case now moves to the Court of Federal Claims, the plaintiffs would only be able to sue for damages and any possibility of reinstating the grants would be gone. But they could also petition to appeal the decision.
Congress created the grants, known as the Greenhouse Gas Reduction Fund, as part of the Inflation Reduction Act in 2022. It authorized Biden’s EPA to award $20 billion to a handful of nonprofits that would then offer financing to individuals and organizations for emission-reduction projects, mostly geared toward low-income or otherwise disadvantaged communities. The agency fully obligated the funds last August to eight nonprofits that would “create a national financing network for clean energy and climate solutions across the country.”
Then Trump took office and ordered his agency heads to pause and review all funding for Inflation Reduction Act programs. EPA Secretary Lee Zeldin targeted the Greenhouse Gas Reduction Program for termination, making a big show of a covert recording of a former agency employee comparing Biden’s efforts to get climate money out the door after the election to “throwing gold bars off the edge” of the Titanic. Nevermind that this particular program had been fully obligated prior to the election, and recipients had already started to announce investments as early as October.
The nonprofit awardees sued the Trump administration, and the District Court for the District of Columbia issued a temporary injunction on the EPA’s grant terminations in mid-April, mandating that the funds continue to be paid out while the case proceeded. The EPA appealed that injunction, leading to today’s ruling.
In her opinion for the majority, appeals court Judge Neomi Rao, a Trump appointee, dismissed the nonprofits’ claims that the EPA’s grant terminations were arbitrary and capricious, in violation of the Administrative Procedures Act. She wrote that the dispute was “essentially contractual” and therefore did not belong in the district court to begin with. The nonprofits had also alleged that the EPA violated the constitution's separation of powers in attempting to cancel the grant agreements, as Congress had given explicit direction to the agency to award the funds by September 2024. While Judge Rao allowed that the district court had jurisdiction over this particular claim, she ruled that it was “unlikely to succeed” on the merits.
This decision, if it stands, means the case is basically over, David Super, an administrative law expert at Georgetown Law, told me. The plaintiffs could ask to have it transferred to the Court of Federal Claims if they wish to pursue monetary damages, but that’s likely a losing proposition since Judge Rao — unusually, according to Super — went on to opine that the plaintiffs would have no case there, either.
The plaintiffs could, however, ask for a rehearing by the full D.C. circuit. “Given that this is a very important case, both legally and practically, I think they would have a good chance of getting reheard,” Super said.
There was one other important point in the decision. While this case has been playing out, Congress rescinded any “unobligated” funding — money that hasn’t yet been spent or contracted out — from the Greenhouse Gas Reduction Fund as part of Trump’s tax and spending law. The Congressional Budget Office estimated that the remaining balance in the fund was just $19 million, essentially the cost of program administration. But the Trump administration has argued in the ongoing court case that the law rescinded the full $20 billion. Judge Rao disagreed, writing that the law “did not render this appeal moot.”
This is the latest in a series of wins for the Trump administration over the termination of grant funding. Last week, the D.C. district court dismissed a challenge brought by nonprofits over the termination of the Environmental and Climate Justice Block Grants, another Inflation Reduction Act program, on the grounds that it belonged in the Court of Federal Claims. The Supreme Court also issued a similar opinion in August regarding grant funding from the National Institutes of Health that was terminated on the grounds of a shift in agency priorities.
The evaporation of $20 billion in clean energy funding is no small loss, but Super said the consequences could also be much more systemic, threatening the viability of federal grantmaking as a tool to stimulate private capital. “If these commitments are utterly unenforceable, then no one's going to do business with the federal government,” he said.