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Georgetown’s Lisa Heinzerling on the Supreme Court’s climate shell game.
It’s a sad day for the regulatory state. On Friday, the Supreme Court struck down a 40-year-old precedent that deferred to agencies’ interpretations of their own mandates where the statutory guidance was incomplete or ambiguous, otherwise known as Chevron deference, after the losing side in the original case. Not only has it been cited in more than 19,000 federal opinions, it’s the one congressional aides — the ones actually writing the laws — are most familiar with, as Lisa Heinzerling, a professor of environmental law at Georgetown Law, told me.
“So there’s a way in which Congress has been relying on Chevron for decades, right?” she said. “If Congress banked on Chevron, banked on the idea that if they didn’t make things clear the agency would take care of it, then that reliance is not being honored.”
This is not the first time the court has come for regulators. Two years ago, in West Virginia v. Environmental Protection Agency, the court held that the authority to resolve questions of interpretation involving high-stakes political and economic questions, a.k.a. “major questions,” rests with Congress, not the agencies, raising the threat of legal nightmares should regulators attempt to take any kind of big swings. This explicitly concerns only “extraordinary cases,” and yet regulators already appear to be reining in their own ambition to gird against potential challenges.
Friday’s decision comes the day after the court struck down a provision of the Dodd-Frank Act giving certain enforcement powers to the Securities and Exchange Commission and granted a stay on enforcement of the Environmental Protection Agency’s “good neighbor” rule, aimed at preventing harmful pollution from crossing state lines.
The two cases decided this week — Loper Bright Enterprises et al. v. Raimondo, Secretary of Commerce, et al. and Relentless, Inc. v. Department of Commerce — turned on whether private commercial fishing companies could be compelled to pay for federal monitors to ride along and ensure they were complying with applicable fishing rules. Or at least they did initially. “The court decided to decide only the question whether to overrule Chevron, the case that establishes deference for agencies legal interpretations,” Heinzerling explained the day before the ruling came down. Our conversation has been edited for length and clarity.
Without Chevron, are we going to get completely bogged down in revising statutes? Are our courts going to be clogged up with nuisance suits from people who simply don’t want to have to follow the rules?
I think there will be a lot of efforts to undo other precedent that relied on Chevron — and especially paired with the Corner Post case, which has to do with the timing of challenges to agency action. You know, realistically, if that case comes down, accepting a longer period of time in which to sue people could go nuts, challenging all sorts of agency interpretations from the past. So that’s disruptive.
The Supreme Court is constantly saying, well, go and get a new statute. Well, okay, we saw what happens when Congress passes a new statute: The court holds it unconstitutional. The Dodd-Frank Act. Look what happened to the Affordable Care Act. These major pieces of legislation, major, major political stakes, and the court has not respected those. So I feel like we’re kind of in a shell game, something that’s not quite honest. That in all of these cases, actually, Congress did pass a law, but the court either rules it unconstitutional, says it’s not clear enough. And so I don’t think they’re respecting Congress’s handiwork as it exists now.
You mentioned Corner Post, could you talk about that case?
It came to the court kind of quietly. It’s got rich backers. It’s just a little truckstop, just like the commercial fisherman, that wants to challenge a rule on credit cards. They were incorporated after the rule went into effect, and they want to say, we weren’t injured when it first passed, so we should get the benefit of a longer period of time in which to sue. And amazingly, the justices seemed willing to accept that. That just adds to the stakes of overruling Chevron.
The Chevron deference is a big part of how agencies do their job. But after West Virginia, does it still matter? I’m not a lawyer, but I’m going to pretend I am one when I ask: Does the major questions doctrine effectively invalidate Chevron anyway?
No. They said that the major questions idea was for extraordinary cases, to see how it turns out over the years, but it’s not every case. Where Chevron applied, theoretically, in every case. At least it was a mix.
What recent regulatory decisions would be most vulnerable in a post-Chevron world?
It is complicated to know because it has to be a question about a statute, a question about a statute that a court finds ambiguous, right? That’s where Chevron would have helped. And I think it depends on what court you’re in. If you’re in the Fifth Circuit, there’s a good chance — I mean, they’ve just stopped using Chevron, period.
Is there a world in which courts develop more subject matter expertise as a result of being forced to decide on questions of statutory interpretation?
Over the years people have offered the possibility of science courts or environmental courts — specialized courts where adjudicators have expertise. That’s never really taken off — never really at all taken off. Certainly the D.C. Circuit judges handle administrative cases all the time. Cases go exclusively to them, and I think the judges do develop some expertise. But it doesn’t turn them into ecologists or engineers. And the thing is that the structure of a judicial chambers is both tiny and insular: you have one judge; on the Supreme Court four clerks, but elsewhere two to three. It’s just not that much. Whereas EPA, they have teams of people on these rules from all over the agency, and then the rule gets reviewed by others.
We’re obviously focused on climate-related regulations, but is there an area of policy that you think will be most vulnerable immediately without Chevron?
The hallmarks of where Chevron has been really important: complicated statutes; technical and/or scientific subject matter; places where the language is either vague or just broad enough, it’s not clear how to fill it in. That’s environmental law, but there’s a lot of other law that’s also … I mean, it’s just OSHA, FDA, the FTC. Looking for those signature traits, that’s going to be a place where it pinches particularly hard. I think the agencies now are sort of bracing for this, but they still have a lot of rules in the works, and this is going to come down in the middle of that in election year.
Chevron started with Reagan wanting to change the way the EPA interpreted its mandate. Would removing it potentially make things more difficult for an incoming Trump administration?
I mean, it should. Chevron was supposed to work that way. But certainly the major questions doctrine, at least as it’s been practiced, so far cuts only against ambitious regulation. It doesn’t cut in favor of it.
The thing that worries me is the anti-regulatory skew that’s in some of the court’s other recent rulings. So for example, in West Virginia itself, the Supreme Court struck down Obama’s Clean Power Plan but upheld — without even explaining why — Trump’s plan. They were the same question under the same statute with the same evidence, the same costs and benefits. Everything was the same except for the direction. If one was a major question, the other should have been a major question. And so if you want to put it in the terms of these two possible administrations, they will go after Biden rules more than they’ll go after Trump rules, at least on the major questions idea.
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While you were watching Florida and Wisconsin, voters in Naperville, Illinois were showing up to fight coal.
It’s probably fair to say that not that many people paid close attention to last night’s city council election in Naperville, Illinois. A far western suburb of Chicago, the city is known for its good schools, small-town charm, and lovely brick-paved path along the DuPage River. Its residents tend to vote for Democrats. It’s not what you would consider a national bellwether.
Instead, much of the nation’s attention on Tuesday night focused on the outcomes of races in Wisconsin and Florida — considered the first electoral tests of President Donald Trump and Elon Musk’s popularity. Outside of the 80,000 or so voters who cast ballots in Naperville, there weren’t likely many outsiders watching the suburb’s returns.
But for clean energy and environmental advocates, the Naperville city council results represent an encouraging, if overlooked, victory. On Tuesday, voters in the suburb elected four candidates — incumbents Benjamin White and Ian Holzhauer, and newcomers Mary Gibson and Ashfaq Syed — all of whom oppose the city signing a new contract with the Prairie State Generating Station, the state’s largest and youngest coal-fired plant and the seventh-dirtiest electricity provider in the country.
Naperville is one of 30 municipal investors in the Prairie State plant whose contract with the Illinois Municipal Electric Agency, a public power agency and one of the nine partial owners of Prairie State, has it locked into coal through 2035. Recently, IMEA approached the municipal investors with the promise of favorable terms on a new contract if the cities and towns were willing to re-sign a decade early — by April 30 — and commit to another 20 years of coal power. Most municipalities took the deal, which will run through 2055; Naperville, along with the towns of St. Charles and Winnetka, are still debating the decision, with the deadline looming.
“IMEA’s proposition for communities is, ‘Hey, instead of paying Wall Street and shareholder dividends, we don’t have any of that because we’re a nonprofit, so you get lower energy costs,’” Fernando Arriola, the community relations chair for Naperville Environment and Sustainability Task Force, which opposes the deal with IMEA, told me. “But the way I look at it is, it’s a deal with the devil because you’re locked in for 30 years. And it’s like Hotel California — you can check in anytime you like, but you can never leave.”
In a statement to Heatmap, Staci Wilson, the vice president of government affairs and member services at IMEA, told me that the contract it offered to Naperville is “designed to help … secure more future green resources to serve our member communities for the long term. IMEA is the only power supplier to allow the city to have a direct voice in procuring their wholesale power supply and make reliable, economical, and sustainable resource decisions for the future.”
While it’s true that IMEA allows its municipal members a voice in its future planning, those in Naperville who oppose the new contract point out that the community has just one vote in the process despite making up 35% of the utility’s market.
The pending contract decision became one of the major themes of the city council race in Naperville — attention that caused some locals to grumble about the injection of partisan politics and outside interest in the campaigns. But Syed, a newly elected city council member and a recent immigrant from Dubai, told me that learning that his city relied on coal for 80% of its energy needs was what ultimately galvanized him into running. “Naperville has been a leader in many things, but in this area, we were not doing good,” he said. “So I stepped up.”
Illinois has one of the nation’s most aggressive decarbonization timelines, requiring coal and gas plants to close by 2030. But there is a carve-out for plants owned by public entities like municipal utilities or rural electric cooperatives, and Prairie State fits that bill. Instead, the power plant has to reduce emissions by 45% by 2038, a goal IMEA says it can reach by installing multi-billion dollar carbon capture and storage technologies. Energy experts have been widely skeptical of the proposal. “The people I’ve talked to say that’s unproven and it doesn’t necessarily work, and it’s a high price,” Arriola said.
Still, cost concerns related to transitioning away from coal had “definitely been a conversation in town” leading up to Tuesday’s election, Arriola told me. “A lot of people are seriously concerned about pricing, and there are also concerns about the reliability.” Syed told me that was one of the objections he heard the most when talking to constituents during his campaign. “Some of the Republicans who were against [exporing alternative energy options] were trying to influence people, saying we need to think about the cost,” he said. “My standard answer to these people was that I am not going to compromise clean energy just for the cost purpose.”
Perhaps most interestingly, unlike many communities that oppose power plants, Naperville is located almost 300 miles north of the Prairie State Generating Station and is unaffected by its immediate pollution. Naperville voters who opposed renewing the contract did so on the merits of finding cleaner energy sources and on the objection to dirty electricity that is otherwise out of sight and out of mind. As Amanda Pankau, the director of energy and community resiliency at the Prairie Rivers Network, an environmental nonprofit in the state, told me, “From a climate perspective, we should all care about the Prairie State coal plant.” She noted that the emissions from the plant — around 12.4 million tons of carbon dioxide a year — are “impacting every single Illinoisan and every single person that lives on planet Earth.”
Despite those existential stakes, it could be tempting to wave away the results in Naperville as being on trend for a relatively affluent and liberal-leaning town. Compared to the Wisconsin supreme court election, where the Democrat-backed candidate overcame enormous spending margins to trounce her Republican-backed opponent, it does not necessarily indicate the same momentum for the party heading into 2026’s midterms. (Nor does it even have the biggest climate-related election headline of the night: Tesla is suing Wisconsin for a law preventing car manufacturers from owning car dealerships, which the state’s high court will likely decide.)
But at a time of little good news in the climate sphere, the Naperville election is an encouraging and invigorating reminder that there are candidates who believe in cleaner technologies, and that the battles can still — or especially — be won at the local level. “Twenty-five or 30 years ago, the IMEA contract we signed for that time was okay,” Syed said. “But it’s not okay today. We cannot have this $2 billion contract until 2055 because the next generation will ask us this question: ‘What have you people done for us this time?’”
The Department of Energy has put together a list of sites and is requesting proposals from developers, Heatmap has learned.
The Department of Energy is moving ahead with plans to allow companies to build AI data centers and new power plants on federal land — and it has put together a list of more than a dozen sites nationwide that could receive the industrial-scale facilities, according to an internal memo obtained by Heatmap News.
The memo lists sites in Texas, Illinois, New Jersey, Colorado, and other locations. The government could even allow new power plants — including nuclear reactors and carbon-capture operations — to be built on the same sites to generate enough electricity to power the data centers, the memo says.
Trump officials hope to start construction on the new data centers by the end of this year and switch them on by the end of 2027, according to the memo.
The agency will request formal feedback from artificial intelligence companies and developers about how best to proceed with its proposal as soon as Thursday, according to an individual who wasn’t authorized to speak about the matter publicly.
The effort, aimed at maintaining America’s “global AI dominance,” represents one of the few points of agreement between the Trump and Biden administrations. In the final days of his term, President Biden ordered the government to identify federal properties where new data centers could be built.
Scarcely a week later, President Trump issued an executive order lifting all Biden-era limits on AI development — but keeping the mandate to move quickly to maintain America’s alleged edge in the new technology. “It is the policy of the United States to sustain and enhance America’s global AI dominance,” the Trump order said.
The new memo proposes a list of 16 federal sites that could host AI data centers, new power plants, and other “AI infrastructure.” They include several sites where nuclear weapon components are made, including the Pantex site near Amarillo, Texas, and the Kansas City National Security Campus, which is operated by Honeywell International. The other candidate sites are:
Other sites could still be considered, the memo says, and the current list has no particular ranking or order.
The offer may not be enough to convince developers to work with the federal government, one energy expert told me.
“I think it’s important that the government is thinking about how to help the industry, but you also have to think about it from the perspective of the industry a little bit. Why is doing this on a DOE site better than doing this as a project in Texas?” said Peter Freed, a founding partner at the Near Horizon Group and the former director of energy strategy at Meta.
“Historically, the perspective is that anything involving government land just adds complexity,” Freed told me. “I love Idaho National Lab. It’s a national treasure. But if you want a data center there by the end of 2027 — where is the power going to come from?”
Only if the government were able to guarantee fast-track access to certain kinds of equipment — such as transformers or circuit breakers, which are in a severe shortage — would it make sense for most developers to work with them, he said.
The new memo raises the idea that “innovative energy technologies” including “nuclear reactors, enhanced geothermal systems, fuel cells, carbon capture, energy storage systems, and portfolios of on-site technologies” could be considered to power the new data centers.
The memo asks potential developers, “What information would you need to determine the suitability of various energy storage systems (e.g., subsurface thermal energy storage, flow battery, metal anode battery) as a means for supporting data center cooling or other operations?” It also asks what companies would need to know about a site’s suitability for carbon capture and storage operations. It asks, too, what information might be needed about a site’s topography, physical security, and earthquake risk to build a new nuclear power plant.
The memo doesn’t mention wind turbines or new solar farms, although they could fall under some of the terms it sets out. It also asks companies what information they might need about nearby nuclear power plants or the local power grid — and it inquires whether some data center operations could be turned on and off depending on local power availability.
Although the government could allow new data centers to be built, it won’t accept all liability for them. The memo adds that companies might need to “agree to bear all responsibility for costs and liabilities related to construction and operation of the Al data centers as well as other infrastructure upgrades necessary to support those data centers.”
The Trump administration seems intent on moving quickly on the proposal. Once it publishes the request, companies will have 30 days to respond.
Current conditions: A rare wildfire alert has been issued for London this week due to strong winds and unseasonably high temperatures • Schools are closed on the Greek islands of Mykonos and Paros after a storm caused intense flooding • Nearly 50 million people in the central U.S. are at risk of tornadoes, hail, and historic levels of rain today as a severe weather system barrels across the country.
President Trump today will outline sweeping new tariffs on foreign imports during a “Liberation Day” speech in the White House Rose Garden scheduled for 4 p.m. EST. Details on the levies remain scarce. Trump has floated the idea that they will be “reciprocal” against countries that impose fees on U.S. goods, though the predominant rumor is that he could impose an across-the-board 20% tariff. The tariffs will be in addition to those already announced on Chinese goods, steel and aluminum, energy imports from Canada, and a 25% fee on imported vehicles, the latter of which comes into effect Thursday. “The tariffs are expected to disrupt the global trade in clean technologies, from electric cars to the materials used to build wind turbines,” explained Josh Gabbatiss at Carbon Brief. “And as clean technology becomes more expensive to manufacture in the U.S., other nations – particularly China – are likely to step up to fill in any gaps.” The trade turbulence will also disrupt the U.S. natural gas market, with domestic supply expected to tighten, and utility prices to rise. This could “accelerate the uptake of coal instead of gas, and result in a swell in U.S. power emissions that could accelerate climate change,” Reutersreported.
Republican candidates won in two House races in Florida on Tuesday, one of which was looking surprisingly tight going into the special elections. The victories by Jimmy Patronis in Florida’s First District and Randy Fine in the Sixth District bolster the party’s slim House majority and could spell trouble for the Inflation Reduction Act as the House Ways and Means Committee mulls which programs to cut to pay for tax cuts. But the result in Wisconsin’s Supreme Court election was less rosy for Republicans. Liberal Judge Susan Crawford defeated conservative Brad Schimel despite Schimel’s huge financial backing from Tesla CEO and Trump adviser Elon Musk, who poured some $15 million into the competition. The outcome “could tarnish the billionaire’s political clout and trigger worry for some Republicans about how voters are processing the opening months of Trump’s new administration,” as The Wall Street Journalexplained.
The Trump administration announced mass layoffs across the Department of Health and Human Services on Wednesday, part of a larger effort to reduce the agency’s workforce by 25%. The cuts included key staffers with the Low Income Home Energy Assistance Program, which has existed since 1981 and helps some 6.7 million low-income households pay their energy bills. A 2022 white paper calls LIHEAP “one of the most critical components of the social safety net.” The move comes at a time when many U.S. utilities are preparing to raise their energy prices to account for higher costs for materials, labor, and grid upgrades. In a scathing letter to HHS Secretary Robert F. Kennedy. Jr., Senate Energy and Commerce Democrats call the workforce cuts “reckless” and demand detailed explanations for why roles have been eliminated.
Energy storage startup Energy Vault on Wednesday announced it had closed $28 million in project financing for a hybrid green hydrogen microgrid energy storage facility in California. The firm says its Calistoga Resiliency Center, deployed in partnership with utility company Pacific Gas & Electric, is “specifically designed to address power resiliency given the growing challenges of wildfire risk in California.” The zero-emission system will feature advanced hydrogen fuel cells that are integrated with lithium-ion batteries, which can provide about 48 hours of back-up power via a microgrid to the city of Calistoga during wildfire-related power shutoffs. The site is expected to be commercially operational in the second quarter of 2025.
“The CRC serves as a model for Energy Vault’s future utility-scale hybrid microgrid storage system deployments as the only existing zero-emission solution to address [power shutoff] events that is scalable and ready to be deployed across California and other regions prone to wildfires,” the company said in a press release. As Heatmap’s Katie Brigham wrote last fall, PG&E has become an important partner for climate and energy tech companies with the potential to reduce risk and improve service on the grid.
China will finalize its first-ever sale of a green sovereign bond Wednesday. The country is expected to issue the bond on the London Stock Exchange and has reportedly received more than $5 billion in bids. “It’s no coincidence that China has chosen to list its debut green bond in London, given European investors’ continued strong demand for environmental products,” Bloombergnoted. Green bonds are investment vehicles that raise money exclusively for projects that benefit the climate or environment. China’s finance ministry wants the bond to “attract international funds to support domestic green and low-carbon development,” and specifically climate change mitigation and adaptation, nature conservation and biodiversity, and pollution prevention and control. Some of the money raised might also go toward China’s EV charging infrastructure, according toReuters.
GE Vernova has now produced more than half of the turbines needed for the SunZia Wind project in New Mexico. When completed in 2026, the 2.4 gigawatt project will be the largest onshore wind farm in the Western Hemisphere.