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A little-known grant program in the Inflation Reduction Act is spurring almost every state to make a climate plan.
To date, less than half of all states have set forth targets to reduce their greenhouse gas emissions. Within two years, almost all of them will have official climate goals. Even Texas, even West Virginia, even Wyoming.
It’s already been a big year for climate action in states where the issue has been a nonstarter politically. The Inflation Reduction Act, the historic climate package that Biden signed last year, has brought billions of dollars in investment and tens of thousands of new jobs in clean energy manufacturing to places like Georgia. But that state’s governor, Brian Kemp, has managed to champion the economic opportunity without mentioning climate change. Now, his administration is gearing up for its first-ever climate plan.
That’s thanks to a program in the IRA that has flown mostly under the radar called the Climate Pollution Reduction Grants. It earmarked $3 million each for all 50 states, plus Washington, D.C. and Puerto Rico, to produce a comprehensive climate action plan.
The grants are noncompetitive, and states could access the funding simply by opting in. All but four — South Dakota, Kentucky, Florida, and Iowa — said yes, please.
By taking the money, the states agreed to produce an inventory of their greenhouse gas emissions and a list of actions they might take to reduce them, due to the Environmental Protection Agency by March. This is already a meaningful change — many states don’t regularly track or publish data about where their emissions are coming from. Then, in 2025, recipients will have to follow up with a much more detailed plan that includes projections of future emissions if the plan is followed, an analysis of benefits for disadvantaged communities, and workforce planning needs. Their plans will also have to include greenhouse gas reduction goals in line with the Biden administration’s commitment to reduce emissions 50% from 2005 levels by 2030.
For many states, that extra funding could go a long way. While some like California and New York have hundreds of staffers working on emission reduction plans, others may have a dozen or fewer. They haven’t had the capacity to do the data collection, modeling, and community engagement work that emissions inventorying, climate goal-setting, and action planning require. Now, fiscally constrained state environmental agencies will be able to hire extra staff and consultants. That extra support can also help states develop strategies to unlock more federal funding from the dozens of other programs in the IRA.
“A lot of the federal policy conversation is shaped by what happens in states,” Justin Balik, the state program director for the advocacy group Evergreen Action, which fought for this program to be included in the IRA, told me. “And so we saw this opportunity to continue to cement this role that states can play in continuing to drive the ball forward.”
Balik pointed out the funding is especially meaningful in states like Wisconsin, North Carolina, and Pennsylvania, where the governors in office want to be climate champions and have already made substantial climate plans but are hamstrung by conservative legislatures unwilling to fund them.
North Carolina, for example, recently completed a report modeling pathways it could take to achieve Gov. Roy Cooper’s goal of cutting emissions in half by 2030, and reaching net-zero by 2050. Bailey Recktenwald, the climate change policy advisor for the North Carolina governor’s office, told me that the state will use the new grant to do additional analysis of the solutions identified in that report, weighing factors like environmental justice, to determine “which of these recommendations we’ve already put together will get the most bang for our buck.”
Of course, a plan is meaningless without the willpower and funding to act on it, and there’s no requirement for states to fulfill their plans or achieve their goals. A number of states that accepted the planning grants, including Montana and New Hampshire, have made climate action plans in the past, only to let them sit on a shelf. And this could all be moot if a Republican wins in 2024 and shifts priorities at the EPA.
But the EPA’s program dangles a carrot for states to treat the planning process as a starting point — additional funding. Once they’ve submitted their priority plans, states can apply for a second round of grants for implementation. Unlike the planning grants, these are competitive. The EPA has $4.6 billion to hand out in chunks of between $2 million and $500 million for projects that reduce emissions.
That could mean — almost literally — anything. The grants could go toward a one-off project, like replacing a coal plant, or installing carbon capture on a cement plant. They could go toward programs designed to achieve sector-wide goals, like rebates for electric vehicles. Or they could be used for regional partnerships. States in the Northeast, for instance, could go in together on a program to subsidize the beleaguered offshore wind industry. Or they could work together to fund interstate transmission lines that will free up more room for renewables on the grid.
Recktenwald told me one opportunity for North Carolina might be to create incentives to cut emissions from trucks and buses. Cooper had hoped to enact clean truck regulations this year, which a number of other states have adopted, but the legislature prohibited him from doing so. “Now we’re looking for other creative ways to still move that industry and market forward,” Recktenwald said.
The grants’ flexibility leaves room for a range of outcomes — for better and for worse. The think tank RMI is encouraging states and the EPA to consider the timescales required to cut emissions from different sources. “When states are awarded money, it should be based upon how quickly they can move — how relevant a state’s suggested plan of action is to its unique situation,” Drew Veysey, a senior associate at RMI, told me.
It would be more effective for states with a lot of coal plants to use the funding to replace them than to create incentive programs for electric vehicles or heat pumps, for example. When you shut down a coal plant and replace it with clean power, those emissions stop immediately. But if a state starts encouraging the adoption of EVs, it will still have millions of previously sold gas cars driving around for the next 15 years or more. Scientific modeling efforts agree that most, if not all coal plants will have to shut down in the next decade in order to achieve Biden’s 2030 goal.
That may not be on the table in a coal-reliant state like West Virginia or Wyoming; states where climate change is still controversial are already being careful in their public messaging around the program. Montana’s Department of Environmental Quality, for one, has stressed that it’s looking at “non-regulatory, innovative, voluntary” approaches for the program. The Tennessee Department of Environment and Conservation created a video about the program that doesn’t once mention climate change. Good luck trying to avoid it forever, though — the program is literally titled “climate pollution reduction grants.”
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The new climate politics are all about affordability.
During the August recess, while members of Congress were back home facing their constituents, climate and environmental groups went on the offensive, sending a blitz of ads targeting vulnerable Republicans in their districts. The message was specific, straightforward, and had nothing to do with the warming planet.
“Check your electric bill lately? Rep. Mark Amodei just voted for it to go up,” declared a billboard in Reno, Nevada, sponsored by the advocacy group Climate Power.
“They promised to bring down prices, but instead our congressman, Derrick Van Orden, just voted to make our monthly bills go up,” a YouTube ad told viewers in Wisconsin’s 3rd district. “It removes clean energy from the electric grid, creating a massive rate hike on electricity,” the voiceover says, while the words “VAN ORDEN’S PLAN: ELECTRICITY RATE HIKE” flash on screen. The ad, paid for by Climate Power, the League of Conservation Voters, and House Majority Forward, a progressive campaign group, was shown more than a million times from August 13 to 27, according to Google’s ad transparency center.
Both were part of a larger, $12 million campaign the groups launched over the recess in collaboration with organizations including EDF Action and Climate Emergency Advocates. Similar billboards and digital ads targeted Republicans in more than a dozen other districts in Arizona, California, Colorado, Iowa, Michigan, New York, Ohio, Pennsylvania, and Texas. There were also TV spots, partnerships with Instagram influencers, bus stop posters, and in-person rallies outside district offices — all blaming Republicans in Congress for the increasing cost of food, healthcare, and energy.
Courtesy of Climate Power
As others have observed, including Heatmap’s Matthew Zeitlin back in March, rising utility rates and the broader cost of living crisis are becoming a political liability for Republicans and President Trump. Clean energy advocates are attempting to capitalize on that, trying to get Americans to connect the dots between their mounting electricity bills and their representatives in Congress who voted to cut support for renewable energy.
Some of this is run-of-the-mill politicking, but it’s not only that. It also represents a strategic shift in how the climate movement talks about the energy transition.
It’s not new for green groups to make the argument that renewable energy can save people money. Relying on “free” wind and sun rather than fuels that are subject to price volatility has always been part of the sell, and the plummeting cost of solar panels and wind turbines have only made that pitch more compelling.
But it is new for the affordability argument to come first — above job creation, economic development, reducing pollution, and, of course, tackling climate change.
For most of the past four years, the climate movement has gone all in on trying to build an association in the American mind between the transition to clean energy and jobs. “When I think of climate change, I think of jobs,” then-candidate Joe Biden said during one of his 2020 campaign speeches.
It made sense at the time, Daniel Aldana Cohen, a sociologist at the University of California, Berkeley, told me. Just two years earlier, the Sunrise Movement had emerged as a political force with a headline-grabbing rally in Nancy Pelosi’s office demanding “green jobs for all.” The group was joined by then-newly elected Representative Alexandria Ocasio-Cortez, who soon introduced her framework for a Green New Deal that would offer a “just transition” for fossil fuel workers, ensuring them a place in the new clean energy economy.
The fossil fuel industry had seeded divisions between labor and environmental groups for decades by arguing that regulations kill jobs, and Democrats would have to upend that narrative if they wanted to make progress on climate. But the rationale was also more pressing: Unemployment was skyrocketing due to the COVID-19 pandemic, and whoever won the presidency would be responsible for rebuilding the U.S. workforce.
Fast forward to the end of Biden’s first year in office, however, and the unemployment rate had snapped back to pre-pandemic levels. Meanwhile, inflation was rising fast. Even though the Democrats managed to name their climate bill the “Inflation Reduction Act,” the administration and the climate movement continued talking about it in terms of jobs, jobs, jobs.
Cohen co-directs the Climate and Community Institute, a progressive think-tank founded in 2020, and admitted that “from the very start, we would just model every policy with jobs numbers,” partly because modeling the effects of policies on cost of living was a lot more complicated. Now he sees two issues with that approach. For one, it was always going to take time for new manufacturing jobs to materialize — much longer than an election cycle. For another, when unemployment is low, “everybody experiences inflation, but extremely few people experience a good new green job,” Cohen said.
During a recent panel hosted by the Institute for Policy Studies, Ben Beachy, who was a special assistant to Biden for climate policy, expressed some regret about the jobs push. “It wasn't addressing one of the biggest economic concerns of most people at that point, which was the rent is too damn high,” he said. But Beachy also defended the strategy, noting that all of the policies addressing cost of living in Biden’s big climate bill, like money for housing, public transit, and childcare, had been stripped out to appease West Virginia Democrat Joe Manchin. “So we were left without a strong policy leg to stand on to say, this is going to lower your costs.”
When the moderator asked what message Beachy thinks climate candidates should run on today, Beachy replied, “affordability, affordability, affordability.”
Jesse Lee, a senior advisor at Climate Power who also worked as a senior communications advisor in the Biden White House, echoed Beachy’s account of what went wrong post-IRA. The cost of living crisis makes it almost impossible to talk about anything else now, he told me. “If you don't start off talking about that, you’ve lost people before you’ve even begun,” he said.
Average U.S. electricity rates jumped 10% in just the year from 2021 to 2022, and have continued to rise faster than inflation. All evidence suggests the trend will continue. Utilities have already requested or received approval for approximately $29 billion in rate increases this year, according to the nonprofit PowerLines, compared to roughly $12 billion by this time last year. And these increases likely don’t reflect the expected costs associated with ending tax credits for wind and solar, hobbling wind and solar development, and keeping aging, expensive coal plants online.
In mid-July, Climate Power issued a strategy document advising state and local elected officials how to talk about clean energy based on the group’s polling. A post-election poll found that “more than half of Americans (51%) say the main goal of US energy policies should be to lower energy prices,” and that 85% “believe policymakers should do more to lower energy costs.” A more recent poll found that telling voters that “cutting clean energy means America produces less energy overall, and that means families will pay even more to keep the lights on,” was the most persuasive among a variety of arguments for clean energy.
This tracks with our own Heatmap Pro opinion polling, which found that the top perceived benefit of renewables in the U.S. is “lower utility bills” — though while 75% of Democrats believe that argument, only 56% of Republicans do. An affordability frame also aligns with academic research on clean energy communication strategies, which has found that emphasizing cost savings is a more effective and enduring message than job creation, economic development, or climate change mitigation.
The pivot to affordability isn’t just apparent in district-level campaigns to hold Republicans accountable. Almost every press release I’ve received from the climate group Evergreen Action this month has mentioned “soaring power bills” or “Trump’s energy price hike” in reference to various actions the administration has taken to hamstring renewables. Even clean energy groups, which at first attempted to co-opt Trump’s “energy dominance” frame, can no longer parrot it with a straight face. After Trump issued a stop work order on Orsted’s offshore Revolution Wind project, which is 80% built, the American Clean Power Association accused the administration of “raising alarms about rising energy prices while blocking new supply from reaching the grid.”
Several people I spoke to for this story pointed to the example of Mikie Sherill, the Democrat running for governor in New Jersey, who last week vowed to freeze utility rates for a year if elected. She immediately followed that statement with a promise to “massively expand cheaper, cleaner power generation,” including solar and batteries.
Dan Crawford, the senior vice president of Echo Communications Advisors, a climate-focused strategy firm, declared in a recent newsletter that Democrats should “become the party of cheap electricity.” He mused that we may be at an inflection point “where the old politics of clean-vs.-polluting makes way for a new debate of cheap-vs.-expensive.”
Debate is probably too tame a term — the claim to affordability is becoming a full-on messaging war. Last week, President Trump took to social media to declare that states that get power from wind and solar “are seeing RECORD BREAKING INCREASES IN ELECTRICITY AND ENERGY COSTS,” — a claim that has no basis in reality. The Trump administration is leaning heavily on affordability arguments to justify keeping coal plants open. In defense of canceling Revolution Wind, Interior Secretary Doug Burgum told Fox News that “this is part of our drive to make sure we’ve got affordable, reliable energy for every American … These are the highest electric prices in the country coming off of these projects.” On Thursday, Energy Secretary Chris Wright posted a news story about his agency rescinding a loan for an offshore wind transmission project, writing that “taxpayers will no longer foot the bill for projects that raise electricity prices and ultimately don't work.”
Clean energy proponents aren’t just going up against Trump — the fossil fuel industry has leaned on affordability as a rhetorical strategy for a long time, Joshua Lappen, a postdoctoral fellow at the University of Notre Dame studying the energy transition, told me. Lappen, who lives in California, said cost has been at the forefront of conflicts over climate policy in the state for a while. At the moment, it’s driving a fight over oil refinery closures that threaten to drive up gas prices even more. “I took a trip over the weekend and drove through the Central Valley,” Lappen told me, “and there are placards zip-tied to every gas pump at Chevron stations that are highlighting that state climate policy is increasing the cost of gas.”
I asked Lee, of Climate Power, how the climate movement could make a convincing case when clean energy has become so politically charged. He’s not worried about that right now. “I don’t think we necessarily need to win a debate about what’s cheaper,” he said. “All we have to do is say, Hey, we're in favor of more energy, including wind and solar, and it's nuts, nuts to be taking wind and solar and batteries off the table when we have an energy crisis and when utility rates have gone up 10%.”
That may work for now, at least at the national level. Americans tend to blame whoever is in office for the economic pains of the moment, even though presidents have little influence on prices at the pump and it can take years for policy changes to make their way into utility rates.
But there’s a difference between defensively blaming rising energy costs on the administration’s efforts to block renewables, and making a positive case for the energy transition on the same grounds. While there is an argument for the latter, it’s a lot harder to convey.
The factors pushing up energy prices, such as necessary grid modernization and disaster-related costs, likely aren’t going away, whether or not we build offshore wind farms. Meanwhile, the savings that large-scale wind and solar projects offer won’t be experienced as a reduction in rates — they won’t be experienced at all because they’re measured against a counterfactual world where renewables don’t get built. That’s a lot trickier to communicate in a pithy campaign. People may end up blaming the wind farms either way.
This dilemma is a hallmark of the so-called “mid-transition,” Lappen told me. The term was coined by his advisor, the energy engineer and sociologist Emily Grubert, and Sara Hastings-Simon, a public policy professor at the University of Calgary. The two argue that the mid-transition is a period where fossil fuel systems persist alongside the growing clean energy sector.
“Comparisons of the new system to the old system are likely to rest on experience of a world less affected by climate change, such that concerns about lower reliability, higher costs, and other challenges might be perceived as inherent to zero-carbon systems, versus energy systems facing consequences of climate change and long-term underinvestment,” they write.
To Cohen, advocates need to go a lot further than rhetoric to link clean energy with affordability. “We need to rebuild the brand and then rebuild the investment priorities of climate action so that working class communities see and literally touch direct, tangible benefits in their life,” he said. He described a “green economic populism” with much more public investment in helping renters access green technologies that will lower their bills, for example, or in fixing up homes that have deferred maintenance so that they can eventually make energy efficiency improvements.
It’s not about abandoning industrial policy or research and development, Cohen told me, but rather about a shift in emphasis. He pointed to Sherill’s approach. “She's not just saying, oh, clean energy will automatically lower bills if you just unleash it. She's like, I'm going to assertively use the government to guarantee a price freeze, and then I’m going to backfill that with clean energy policies to bring down prices over time.”
To be fair, the IRA did contain policies that would have produced more tangible benefits. The $7 billion Solar for All program would have delivered the benefits of residential solar — i.e. energy bill savings — to low-income households all over the country. The remainder of the Greenhouse Gas Reduction Fund, of which Solar for All was a part, was set to make a range of other green home upgrades more accessible to the working class, and the Green and Resilient Retrofit Program would have done the same for low-income housing developments and senior living centers. Electric school bus grants and urban tree-planting programs would have brought cleaner, cooler air to communities.
These were big, ambitious programs that were never going to produce results in the span of two years, and now the Trump administration has made every effort to ensure they never do. Whether they would have paid political dividends eventually, we’ll never know. But a successful energy transition may depend on giving it another shot.
On fusion’s big fundraise, nuclear fears, and geothermal’s generations uniting
Current conditions: New Orleans is expecting light rain with temperatures climbing near 90 degrees Fahrenheit as the city marks the 20th anniversary of Hurricane Katrina • Torrential rains could dump anywhere from 8 to 12 inches on the Mississippi Valley and the Ozarks • Japan is sweltering in temperatures as high as 104 degrees.
The Environmental Protection Agency is preparing to propose a new Clean Water Act rule that would eliminate federal protections for many U.S. waterways, according to an internal presentation leaked to E&E News. If finalized, the rule would establish a two-part test to determine whether a wetland received federal regulations: It would need to contain surface water throughout the “wet season,” and it would need to be touching a river, stream, or other body of water that flows throughout the wet season. The new language would require fewer wetland permits, a slide from the presentation showed, according to reporter Miranda Willson. Two EPA staffers briefed on the proposal confirmed the report.
The new rule follows the 2023 Supreme Court decision in Sackett v. EPA, which said that only waterways “with a ‘continuous surface connection’ to a ‘relatively permanent’ body of water” fell under the Clean Water Act’s protections, according to E&E News. What “relatively permanent” means, however, the court didn’t say, nor did Biden’s EPA. The two EPA staffers, who were granted anonymity to avoid retribution, “said they believed the proposal was not based in science and could worsen pollution if finalized,” Willson wrote.
Investors are hot on the Massachusetts Institute of Technology spinoff promising to make fusion energy a reality. Commonwealth Fusion Systems netted an eye-popping $863 million in its latest fundraising round. In a press release Thursday, the company said that its “oversubscribed round of capital is the largest amount raised among deep tech and energy companies since” its $1.8 billion financing deal in 2021. Commonwealth Fusion will use the funds to complete its demonstration project and further develop its proposed first power plant in Virginia. To date, the company said, it has raised close to $3 billion, “about one-third of the total capital invested in private fusion companies worldwide.” It’s a sign that investors recognize Commonwealth Fusion “is making fusion power a reality,” CEO Bob Mumgaard said.
The fusion industry has ballooned over the past six years. “It is finally, possibly, almost time” for the technology to arrive, Heatmap’s Katie Brigham wrote last year, noting: “For the ordinary optimist, fusion energy might invoke a cheerful Jetsons-style future of flying cars and interplanetary colonization. For the cynic, it’s a world-changing moment that’s perpetually 30 years away. But investors, nuclear engineers, and physicists see it as a technology edging ever closer to commercialization and a bipartisan pathway towards both energy security and decarbonization.”
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A record 75 gigawatts of new generating capacity hooked up to the U.S. power grid last year, a 33% surge from the previous year, thanks to new federal regulations aimed at streamlining the process. That’s according to new data from the consultancy Wood Mackenzie published Thursday. The report found that the Federal Energy Regulatory Commission’s Order No. 2023, issued in July 2023, along with other reforms by independent system operators, have had a “considerable impact on processing interconnection agreements, by driving improvements through reducing speculative projects and clearing queue backlogs.” While connections increased, regional grid operators received 9% fewer new project entries and saw a 51% uptick in non-viable projects since 2022.
Solar and storage technologies made up 75% of all interconnection agreements in 2024, equaling about 58 gigawatts. Wood Mackenzie projected that the sectors will retain a similar market share in 2025. Natural gas saw an increase in interconnection requests since 2022, adding 121 gigawatts of capacity. New gas applications are already breaking annual records this year. But overall the number of gas projects that successfully hook up to the grid is down 25% since 2022.
Almost 200 people have left the Nuclear Regulatory Commission since President Donald Trump’s inauguration in January, according to new estimates published Thursday in the Financial Times. Of the 28 officials in senior leadership positions, nearly half are working in an “acting” capacity, and only three of the five NRC commissioner roles are filled. “It is an unprecedented situation with some senior leaders having been forced out and many others leaving for early retirement or worse, resignation,” Scott Morris, the former NRC deputy executive director of operations, who retired in May, told the newspaper. “This is really concerning for the staff and is one of the factors causing many key staff and leaders to leave the agency they love ... creating a huge brain drain of talent.”
The exodus comes as Trump is pressing the agency to dramatically overhaul and speed up its review and approval process for new reactors. Supporters of the president’s effort say the NRC has stymied the nuclear industry for decades, and a future buildout of new reactors requires clearing house. But skeptics of the burn-it-all-down approach warn that the atomic energy industry’s success in avoiding major accidents since the 1979 partial meltdown at Three Mile Island is owed to NRC oversight, and that the agency’s processes have actually protected nuclear developers by avoiding frivolous lawsuits and not-in-my-backyard types.
Geothermal giant Ormat has reigned over the global industry of harvesting energy from hot underground reservoirs for the past 60 years. Now a new generation of companies is promising to tap the Earth’s heat even in places without water by using fracking technology to drill much deeper, vastly expanding the potential for geothermal. And Ormat has placed a big bet on one. On Thursday, the company inked a strategic partnership with Houston-based Sage Geosystems. As part of the deal, Sage will build its first commercial power plant at an existing Ormat facility in Nevada or Utah, significantly speeding up the timeline for the debut generating station. Sage CEO Cindy Taff told me the plant could be online by next year. “Ormat’s chosen a winner,” Yakov Feygin, a researcher at the Center for Public Enterprise who co-authored a report on next-generation geothermal, told me.
A majority of U.S. voters are still unfamiliar with geothermal power, according to a new poll from Data for Progress I reported on this week. When exposed to details about how the technology works, however, support grows among voters across the political spectrum. Republicans in particular are supportive.
A recent poll shows a lack of familiarity with geothermal.Data for Progress
The Grammy- and Oscar-award winning New Orleans jazz and funk singer Jon Batiste released a new song to mark the 20th anniversary of Hurricane Katrina, the catastrophic storm that flooded his home city. Dubbed “Petrichor,” a word that describes the scent of earth after rain, the lyrics unfold like a haunting hymn over a driving beat. “Help me, Lord / They burning the planet down / No more second linin' in the street / They burning the planet down, Lord / Help me, Lord / No more plants for you to eat.” In an interview published in The Guardian, Batiste said the song was meant to be a statement. “You got to bring people together. People power is the way that you can change things in the world,” he said. “It’s a warning, set to a dance beat.”
How the Migratory Bird Treaty Act could become the administration’s ultimate weapon against wind farms.
The Trump administration has quietly opened the door to strictly enforcing a migratory bird protection law in a way that could cast a legal cloud over wind farms across the country.
As I’ve chronicled for Heatmap, the Interior Department over the past month expanded its ongoing investigation of the wind industry’s wildlife impacts to go after turbines for killing imperiled bald and golden eagles, sending voluminous records requests to developers. We’ve discussed here how avian conservation activists and even some former government wildlife staff are reporting spikes in golden eagle mortality in areas with operating wind projects. Whether these eagle deaths were allowable under the law – the Bald and Golden Eagle Protection Act – is going to wind up being a question for regulators and courts if Interior progresses further against specific facilities. Irrespective of what one thinks about the merits of wind energy, it’s extremely likely that a federal government already hostile to wind power will use the law to apply even more pressure on developers.
What’s received less attention than the eagles is that Trump’s team signaled it could go even further by using the Migratory Bird Treaty Act, a separate statute intended to support bird species flying south through the U.S. from Canada during typical seasonal migration periods. At the bottom of an Interior press release published in late July, the department admitted it was beginning a “careful review of avian mortality rates associated with the development of wind energy projects located in migratory flight paths,” and would determine whether migratory birds dying because of wind farms qualified as “‘incidental’ takings” – harm or death – under the Migratory Bird Treaty Act.
While not stated explicitly, what this means is that the department appears to be considering whether to redefine these deaths as intentional under the Migratory Bird Treaty Act, according to Ben Cowan, a lawyer with the law firm Troutman Pepper Locke.
I reached out to Cowan after the eagle investigation began because his law firm posted a bulletin warning that developers “holding active eagle permits” might want to prepare for “subpoenas that may be forthcoming.” During our chat earlier this month, he told me that the eagle probe is likely going to strain financing for projects even on private lands that wouldn’t require any other forms of federal sign-off: “Folks don’t want to operate if they feel there’s a significant risk they might take an eagle without authorization.”
Cowan then voiced increasing concern about the migratory bird effort, however, because the law on this matter could be a quite powerful – if legally questionable – weapon against wind development.
Unlike the Endangered Species Act or the eagle protection law, there is currently no program on the books for a wind project developer to even obtain a permit for incidental impacts to a migratory bird. Part of the reason for the absence of such a program is the usual federal bureaucratic struggle that comes with implementing a complex statute, with the added effect of the ping-pong of federal control; the Biden administration started a process for permitting “incidental” impacts, but it was scrapped in April by the Trump team. Most protection of migratory birds under the law today comes from voluntary measures conducted by private companies and nonprofits in consultation with the federal government.
Hypothetically, hurting a migratory bird should be legally permissible to the federal government. That’s because the administration loosened implementation of the law earlier this year with an Interior Department legal opinion that stated the agency would only go after harm that was “intentional” – a term of art under the statute.
This is precisely why Cowan is fretting about migratory birds, however. Asked why the wind industry hasn’t publicly voiced more anxiety about this potential move, he said industry insiders genuinely hope this is “bluster” because such a selective use of this law “would be so beyond the pale.”
“It’s basically saying the purpose of a wind farm is to kill migratory birds, which is very clearly not the case – it’s to generate renewable electricity,” Cowan told me, adding that any effort by the Interior Department would inevitably result in lawsuits. “I mean, look at what this interpretation would mean: To classify it as intentional take would say the purpose of operating a wind farm would be to kill a bird. It’s obviously not. But this seems to be a way this administration is contemplating using the MBTA to block the operation of wind farms.”
It’s worth acknowledging just how bonkers this notion is on first blush. Is the federal government actually going to decide that any operating wind farm could be illegal? That would put entire states’ power supplies – including GOP-heavy states like Iowa – in total jeopardy. Not to mention it would be harmful overall to take operating capacity offline in any fashion at a moment when energy demand is spiking because of data centers and artificial intelligence. Even I, someone who has broken quite a few eye-popping stories about Trump’s war on renewables, struggle to process the idea of the government truly going there on the MBTA.
And yet, a door to this activity is now open, like a cleaver hanging over the industry’s head.
I asked the Interior Department to clarify its timeline for the MBTA review. It declined to comment on the matter. I would note that in mid-August, the Trump administration began maintenance on a federal dashboard for tracking regulations such as these and hasn’t updated it since. So we’ll have to wait for nothing less than their word to know what direction this is going in.