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Four rulings from the past week will weigh heavily on future climate regulation.
Perhaps it’s futile to talk about any Supreme Court decision this term other than the justices’unprecedented ruling in the Trump case. The court’s decision to grant broad immunity to the president from criminal prosecution could reshape the modern presidency and empower Donald Trump during his potential — and increasingly likely — second term.
That ruling, too, will have profound practical implications for Americans who care about climate change. During his presidency, Trump flexed his power to slow the energy transition, bury scientific reports, and attack protesters. What will happen now that he is unbound?
But just as the court was expanding the president’s personal authority, it was confining and shrinking the power of any president to address climate change or regulate carbon dioxide emissions.
In a series of important rulings over the past week, the Supreme Court sharply limited the Environmental Protection Agency’s ability to regulate carbon pollution. These rulings could resonate for years to come, no matter who wins the White House in November.
It did so by focusing on a corner of federal law that is often overlooked by the mass public: administrative law, the body of rules that govern how federal agencies constrain and regulate the private sector. Although Americans rarely interact with these rules, they affect the water we drink, air we breathe, and the food and drugs that we ingest.
Taken together, the four cases — Loper Bright Enterprises, Corner Post, Jarkesy,and Ohio v. EPA — are not as high-profile as the Supreme Court’s broad grant of immunity to Trump. But they could substantially weaken the EPA for decades to come, stymying its ability to write and enforce rules limiting carbon pollution. They could also slow down the permitting and construction of new clean energy infrastructure.
“All of these decisions — all four of them — inflate the role of the courts relative to the bureaucracy. This is part of a longstanding campaign by the conservative legal movement to bring the administrative state to judicial heel,” Nicholas Bagley, a law professor at the University of Michigan Law School, told me.
“Congress has not comprehensively addressed climate change but the agencies are trying to,” Emily Hammond, an environmental law professor at George Washington University, told me. “What these cases do, all together, is fairly comprehensively limit the ability of agencies to protect health and human safety and try to mitigate climate change.”
“It’s a shocking and scary grab of power by a court that is rapidly discarding principles that we’ve been able to rely on and expect for a long time,” she added.
In the first case, Loper Bright Enterprises v. Raimondo, the Supreme Court repealed a 40-year-old tenet of American regulatory law that said courts should generally defer to executive agencies such as the EPA when interpreting an ambiguous law. In the second, Corner Post v. Board of Governors, the court opened the door to lawsuits targeting federal regulations that have been on the books for years. Instead of allowing companies to challenge a new rule during the first six years after it was published, the court ruled that companies can challenge a new rule during the six years after the rule begins to affect them. That seemingly allows companies to challenge federal regulations long after they have been issued and treated as settled law.
In the EPA’s case, these two cases may have less influence than it may seem— not because the EPA won’t be subject to these precedents, but rather because the agency receives so little deference from the justices already.
The high court has asserted since 2022 that agencies cannot write new rules on questions of “vast economic and political significance” without clear authorization from Congress. This principle, called the “major questions doctrine,” was first invoked by the justices to overturn the Clean Power Plan, an Obama-era rule that restricted greenhouse gas pollution from power plants in part by setting up an interstate carbon trading scheme. But the doctrine would seem to constrain almost any EPA attempt to regulate activities related to climate change, Carlson said. The EPA’s recent attempt to limit tailpipe pollution from cars — in addition to rules cutting carbon pollution from heavy-duty trucks — could run astray of the major questions doctrine.
“At least in my mind, in terms of what regulations will be challenged and how, the major questions doctrine poses the biggest threat to regulatory authority,” Carlson said.
The Corner Post ruling, which effectively extends the statute of limitations for suing over new regulations, may also mean less for the EPA than for other agencies. That’s because virtually every EPA climate protection is already battled over in court, and once a court has decided whether a given regulation is legal, everyone has to abide by that precedent.
“Most rules worth challenging will already have been challenged,” Bagley said.
The EPA may escape, too, from the worst of the Corner Post ruling, but only because its rules are almost always litigated within the first six years of their life anyway, Carlson told me. That means companies probably won’t need to sue after that, as they might want to do for other federal regulations.
Even if those cases have a muted effect on the EPA, however, the other two rulings — which have received less attention so far — could prove far more restrictive to the agency’s authority.
In one case, Securities and Exchange Commission v. Jarkesy, the court ruled 6-3 that the SEC cannot use an in-house tribunal of administrative judges to impose a civil penalty on a company. Instead, the agency must grant the company a full jury trial in federal court. But many other agencies, including the EPA, also use administrative judges and in-house trials to punish individuals or companies for breaking the law. Each year, the EPA imposes hundreds of millions of dollars in fines on companies that violate the Clean Air Act and Clean Water Act.
Over the next few years, federal judges — and eventually the Supreme Court — will have to decide whether the Jarkesy ruling affects all executive agencies, including the EPA. If they decide it does, then it could slow down the agency’s efforts to penalize polluting companies by forcing virtually every decision into an already overworked court system.
But perhaps the most ominous ruling, Bagely said, is the one in a lawsuit concerning the EPA itself. On Thursday, in Ohio v. EPA,the court blocked the agency’s “good neighbor” rule, meant to limit how much air pollution upwind states can release into downwind states. The five-justice majority did so not only because it disagreed about the agency’s interpretation of the Clean Air Act, but also because the justices felt that the EPA had not properly addressed a few of the more than 1,100 comments about the rulemaking that it had received from the public. As such, they stayed the rule — temporarily blocking it from being enforced — and sent the case back down to a lower court.
That decision could change how everycourt views the rulemaking process, Bagley told me. Whenever the EPA drafts a new environmental rule, it receives thousands of public comments criticizing and praising different aspects of the proposal. Under a law called the Administrative Procedure Act, which governs how federal agencies deal with the public, it must respond to the substance of each of those comments before it can finalize and enforce the rule.
The EPA did respond to the comments at the center of the Ohio case, but Justice Neil Gorsuch, writing for the majority, decided the agency did not address a few specific concerns sufficiently.
Justice Amy Coney Barrett issued a dissent — joined by the court’s liberals — and castigated Gorsuch for focusing on “an alleged procedural error that likely had no impact” on the EPA’s actual anti-pollution plan.
“Given the number of companies included and the timelines for review, the court’s injunction leaves large swaths of upwind States free to keep contributing significantly to their downwind neighbors’ ozone problems for the next several years,” Barrett wrote.
Although the ruling may seem technical, it could create a major new obstacle for agencies to take almost any action, Bagley said. “The reason this worries me in the environmental context is that every major environmental action is going to come with 1,000, 2,000, 3,000 public comments,” he said. “What the court did here is flyspeck those comments,” meaning it looked for a tiny error and used it to justify pausing the entire rule. That’s despite the fact that the Clean Air Act, which the EPA was enforcing in the Ohio case, says that the courts must already meet an unusually high standard to intervene in an agency’s response to public comments.
“By flyspecking these comments … it increases the incentive to submit lots and lots of comments” in the hope that the EPA misses one of them. In those comments, “industry groups strew rakes all over your lawn in the hope that you’ll step on one — eventually an agency will.”
That has dire implications for the EPA’s ability to propose new climate rules, he said, but more broadly it affects any regulatory proceeding where the federal government has to reply to hundreds or thousands of public comments.
In recent years, for insurance, some Democrats and many clean energy developers have grown frustrated with the National Environmental Policy Act, or NEPA, which requires the government to study the environmental impact of any action that it takes. NEPA seems to particularly hamstring clean energy projects, such as transmission lines and geothermal wells. NEPA does not require that agencies minimize a project’s impact to the environment; only that the government study all potential impacts. But as part of the NEPA process, the government must respond to public comments about the proposed action.
The government can receive hundreds or thousands of comments about a given NEPA case.
That means virtually every NEPA process could now be subject to the same high level of scrutiny that the court imposed on the EPA in Ohio v. EPA. “This is a dramatic intensification of the stringency of judicial review across a number of domains,” Bagley said.
It is ironic, at best, that these sharp new limits on executive agencies’ ability to regulate carbon pollution came from the same Court that vastly expanded the president’s immunity under the law.
“This is a court that is hostile to environmental regulation,” Ann Carlson, a UCLA environmental law professor and the former acting head of the National Highway Traffic Safety Administration from 2022 to 2023, told me. “I don’t think there’s any other way to view it.”
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A conversation with Mary King, a vice president handling venture strategy at Aligned Capital
Today’s conversation is with Mary King, a vice president handling venture strategy at Aligned Capital, which has invested in developers like Summit Ridge and Brightnight. I reached out to Mary as a part of the broader range of conversations I’ve had with industry professionals since it has become clear Republicans in Congress will be taking a chainsaw to the Inflation Reduction Act. I wanted to ask her about investment philosophies in this trying time and how the landscape for putting capital into renewable energy has shifted. But Mary’s quite open with her view: these technologies aren’t going anywhere.
The following conversation has been lightly edited and abridged for clarity.
How do you approach working in this field given all the macro uncertainties?
It’s a really fair question. One, macro uncertainties aside, when you look at the levelized cost of energy report Lazard releases it is clear that there are forms of clean energy that are by far the cheapest to deploy. There are all kinds of reasons to do decarbonizing projects that aren’t clean energy generation: storage, resiliency, energy efficiency – this is massively cost saving. Like, a lot of the methane industry [exists] because there’s value in not leaking methane. There’s all sorts of stuff you can do that you don’t need policy incentives for.
That said, the policy questions are unavoidable. You can’t really ignore them and I don’t want to say they don’t matter to the industry – they do. It’s just, my belief in this being an investable asset class and incredibly important from a humanity perspective is unwavering. That’s the perspective I’ve been taking. This maybe isn’t going to be the most fun market, investing in decarbonizing things, but the sense of purpose and the belief in the underlying drivers of the industry outweigh that.
With respect to clean energy development, and the investment class working in development, how have things changed since January and the introduction of these bills that would pare back the IRA?
Both investors and companies are worried. There’s a lot more political and policy engagement. We’re seeing a lot of firms and organizations getting involved. I think companies are really trying to find ways to structure around the incentives. Companies and developers, I think everybody is trying to – for lack of a better term – future-proof themselves against the worst eventuality.
One of the things I’ve been personally thinking about is that the way developers generally make money is, you have a financier that’s going to buy a project from them, and the financier is going to have a certain investment rate of return, or IRR. So ITC [investment tax credit] or no ITC, that IRR is going to be the same. And the developer captures the difference.
My guess – and I’m not incredibly confident yet – but I think the industry just focuses on being less ITC dependent. Finding the projects that are juicier regardless of the ITC.
The other thing is that as drafts come out for what we’re expecting to see, it’s gone from bad to terrible to a little bit better. We’ll see what else happens as we see other iterations.
How are you evaluating companies and projects differently today, compared to how you were maybe before it was clear the IRA would be targeted?
Let’s say that we’re looking at a project developer and they have a series of projects. Right now we’re thinking about a few things. First, what assets are these? It’s not all ITC and PTC. A lot of it is other credits. Going through and asking, how at risk are these credits? And then, once we know how at risk those credits are we apply it at a project level.
This also raises a question of whether you’re going to be able to find as many projects. Is there going to be as much demand if you’re not able to get to an IRR? Is the industry going to pay that?
What gives you optimism in this moment?
I’ll just look at the levelized cost of energy and looking at the unsubsidized tables say these are the projects that make sense and will still get built. Utility-scale solar? Really attractive. Some of these next-gen geothermal projects, I think those are going to be cost effective.
The other thing is that the cost of battery storage is just declining so rapidly and it’s continuing to decline. We are as a country expected to compare the current price of these technologies in perpetuity to the current price of oil and gas, which is challenging and where the technologies have not changed materially. So we’re not going to see the cost decline we’re going to see in renewables.
And more news around renewable energy conflicts.
1. Nantucket County, Massachusetts – The SouthCoast offshore wind project will be forced to abandon its existing power purchase agreements with Massachusetts and Rhode Island if the Trump administration’s wind permitting freeze continues, according to court filings submitted last week.
2. Tippacanoe County, Indiana – This county has now passed a full solar moratorium but is looking at grandfathering one large utility-scale project: RWE and Geenex’s Rainbow Trout solar farm.
3. Columbia County, Wisconsin – An Alliant wind farm named after this county is facing its own pushback as the developer begins the state permitting process and is seeking community buy-in through public info hearings.
4. Washington County, Arkansas – It turns out even mere exploration for a wind project out in this stretch of northwest Arkansas can get you in trouble with locals.
5. Wagoner County, Oklahoma – A large NextEra solar project has been blocked by county officials despite support from some Republican politicians in the Sooner state.
6. Skagit County, Washington – If you’re looking for a ray of developer sunshine on a cloudy day, look no further than this Washington State county that’s bucking opposition to a BESS facility.
7. Orange County, California – A progressive Democratic congressman is now opposing a large battery storage project in his district and talking about battery fire risks, the latest sign of a populist revolt in California against BESS facilities.
Permitting delays and missed deadlines are bedeviling solar developers and activist groups alike. What’s going on?
It’s no longer possible to say the Trump administration is moving solar projects along as one of the nation’s largest solar farms is being quietly delayed and even observers fighting the project aren’t sure why.
Months ago, it looked like Trump was going to start greenlighting large-scale solar with an emphasis out West. Agency spokespeople told me Trump’s 60-day pause on permitting solar projects had been lifted and then the Bureau of Land Management formally approved its first utility-scale project under this administration, Leeward Renewable Energy’s Elisabeth solar project in Arizona, and BLM also unveiled other solar projects it “reasonably” expected would be developed in the area surrounding Elisabeth.
But the biggest indicator of Trump’s thinking on solar out west was Esmeralda 7, a compilation of solar project proposals in western Nevada from NextEra, Invenergy, Arevia, ConnectGen, and other developers that would, if constructed, produce at least 6 gigawatts of power. My colleague Matthew Zeitlin was first to report that BLM officials updated the timetable for fully permitting the expansive project to say it would complete its environmental review by late April and be completely finished with the federal bureaucratic process by mid-July. BLM told Matthew that the final environmental impact statement – the official study completing the environmental review – would be published “in the coming days or week or so.”
More than two months later, it’s crickets from BLM on Esmeralda 7. BLM never released the study that its website as of today still says should’ve come out in late April. I asked BLM for comment on this and a spokesperson simply told me the agency “does not have any updates to share on this project at this time.”
This state of quiet stasis is not unique to Esmeralda; for example, Leeward has yet to receive a final environmental impact statement for its 700 mega-watt Copper Rays solar project in Nevada’s Pahrump Valley that BLM records state was to be published in early May. Earlier this month, BLM updated the project timeline for another Nevada solar project – EDF’s Bonanza – to say it would come out imminently, too, but nothing’s been released.
Delays happen in the federal government and timelines aren’t always met. But on its face, it is hard for stakeholders I speak with out in Nevada to take these months-long stutters as simply good faith bureaucratic hold-ups. And it’s even making work fighting solar for activists out in the desert much more confusing.
For Shaaron Netherton, executive director of the conservation group Friends of the Nevada Wilderness, these solar project permitting delays mean an uncertain future. Friends of the Nevada Wilderness is a volunteer group of ecology protection activists that is opposing Esmeralda 7 and filed its first lawsuit against Greenlink West, a transmission project that will connect the massive solar constellation to the energy grid. Netherton told me her group may sue against the approval of Esmeralda 7… but that the next phase of their battle against the project is a hazy unknown.
“It’s just kind of a black hole,” she told me of the Esmeralda 7 permitting process. “We will litigate Esmeralda 7 if we have to, and we were hoping that with this administration there would be a little bit of a pause. There may be. That’s still up in the air.”
I’d like to note that Netherton’s organization has different reasons for opposition than I normally write about in The Fight. Instead of concerns about property values or conspiracies about battery fires, her organization and a multitude of other desert ecosystem advocates are trying to avoid a future where large industries of any type harm or damage one of the nation’s most biodiverse and undeveloped areas.
This concern for nature has historically motivated environmental activism. But it’s also precisely the sort of advocacy that Trump officials have opposed tooth-and-nail, dating back to the president’s previous term, when advocates successfully opposed his rewrite of Endangered Species Act regulations. This reason – a motivation to hippie-punch, so to speak – is a reason why I hardly expect species protection to be enough of a concern to stop solar projects in their tracks under Trump, at least for now. There’s also the whole “energy dominance” thing, though Trump has been wishy-washy on adhering to that goal.
Patrick Donnelly, great basin director at the Center for Biological Diversity, agrees that this is a period of confusion but not necessarily an end to solar permitting on BLM land.
“[Solar] is moving a lot slower than it was six months ago, when it was coming at a breakneck pace,” said Patrick Donnelly of the Center for Biological Diversity. “How much of that is ideological versus 15-20% of the agencies taking early retirement and utter chaos inside the agencies? I’m not sure. But my feeling is it’s less ideological. I really don’t think Trump’s going to just start saying no to these energy projects.”