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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 every court 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 new front opens in the data center wars.
A series of lawsuits filed in federal court asks a big question – are data center moratoria constitutional?
In early August, data center developer DC Blox sued the city of Nashville in federal court to overturn a zoning moratorium stopping them from building a hyperscale facility adjacent to the city zoo. “The Data Center Moratorium, moreover, is a targeted attack against DC BLOX, in violation of federal constitutional protections,” the suit argued, claiming that it defied the corporation’s due process and equal protection rights.
Around the same time, another developer – Wixom Industrial One – filed a federal lawsuit against the city of Wixom, Michigan, to try and “invalidate the city’s illegal police power moratorium” blocking their data center.
These two cases were far from novel or the first of their kind, and they’re now a fresh front in the battle over hyperscale data centers. At least that’s what some who work on these cases say: In April, attorneys with the law firm Vorys published a “client alert” asserting “many moratoria may be vulnerable to statutory, procedural, and constitutional challenges.” The attorneys advised that constitutional arguments against moratoria “may be stronger where a government singles out data centers without a sound factual basis, treats similar land uses differently without a reasonable basis, or adopts a restriction driven more by political pressure than by defensible planning or regulatory objectives.”
Months later, according to court documents, the Vorys attorneys who authored the alert now represent real estate firm Thor Equities in a federal case against the Ohio city of Urbana, arguing the city’s decision to reject their data center project broke “fundamental protections” under the U.S. Constitution. (Vorys and Thor Equities did not respond to requests for comment.)
It’s unclear how many of these kinds of cases have been filed to date. Data on federal court cases is quite opaque. But legal experts and industry attorneys tell me we should expect them to be on the rise as developers seek whatever tools they can find to get projects built.
“Bringing a lawsuit like this is fairly cheap, something they can do at a relatively low cost, and imposes a real cost on local governments to defend themselves,” said Daniel Metzger, director of the Cities Climate Law Initiative at Columbia Law School’s Sabin Center. “The cases out there will be bellwethers. And if successful, there’ll be a lot more of them.”
What developers probably want looks a lot like Hill County, Texas, where an LLC proposing an $80 million data center project was stymied in May by the state’s first countywide moratorium. (It predated Governor Greg Abbott’s temporary freeze of data center development in Texas by three months.) Within a period of only a few weeks, the LLC sued and the county rescinded the pause on approvals. The case was dropped a month later. Local reports state the county had to afterwards pay the corporation $100,000 in legal fees – a drop in the bucket compared to what a drawn-out court battle would have cost the rural county.
Metzger said whether the companies will win these cases is ultimately not the point – their goal is to win a finished data center, not a judicial ruling. By filing expansive litigation in the national court system, a hypothetical developer can exhaust the coffers of a city or county with legal expenses that are chump change compared to would-be billions in private financing for compute infrastructure.
“These lawsuits may deter some local governments from taking steps to oppose data center development, just because of the cost it would impose on them to defend a lawsuit, even if they know they have a strong legal basis for the action they want to take.”
Those I spoke to in private practice about data center developers’ constitutional arguments agreed with Metzger’s assessment that it’s too early to tell whether the companies will win. Generally, they said, a city or county will win this kind of case if it demonstrates a rational basis for its decision-making and courts typically want to defer to governmental autonomy. The onus will be on the developers to prove a moratorium was meritless – that’s the due process challenge – or unfairly targeted their industry in a way other sectors don’t face, which is the basis of the equal protection claim.
“What they’re saying is in essence that these actions the municipality is taking are arbitrary and capricious, which is one of the sort of catch-all standards,” Thomas Allen, a partner at K&L Gates, told me. “They say the laws lack a rational basis. And then they make equal protection claims, saying data centers are being singled out because of political concerns as opposed to actual things relevant to the legislature’s directive. They’re not basing their decisions on the underlying merits of the project but reacting to political pressure.”
“It’s a reliance question and it’s about the treatment of their projects,” added Laura Morton, an attorney with Ashurst Perkins Coie. “It’s always been important to talk about and engage with communities where your infrastructure is planned. Here, I think this is the developers going in, maybe having conversations, and then suddenly they’re getting a reversal after already receiving these approvals and making investments based off of what the conversations and rules were.”
The likelihood of these constitutional challenges reaching higher courts anytime soon is quite low. It’ll be a long time before we see one of these cases reach a verdict, let alone some kind of appeals process come to fruition. Nevertheless, the new legal ambiguity around these local restrictions is an important new facet of the data center wars, including for developers.
“Companies want to act within the law to get [things] done, so whatever tactics they can do to help get the project over the line that are legal and ethical, they may try those,” Allen told me. “And if that includes the pressure of a lawsuit, that’s a judgment they’ll have to make.”
And more on this week’s conflicts around project development.
1. Montgomery County, Pennsylvania – We reached a new normal in the data center backlash, and it all seems to have started in King of Prussia.
2. Columbia County, Wisconsin – The gubernatorial race in this state is transforming local fights over wind projects into must-watch popcorn fodder for anyone obsessed with the state of the energy transition, or national politics for that matter.
3. Shelby County, Alabama – One quick update on the intervention of John Rich, the country star turned Trump’s “special envoy for American landowners,” in an Alabama Power transmission project: it’s getting a lot more elected officials involved.
4. New Jersey – We try to conclude every Hotspots on a positive note. So this week’s silver lining comes to you from the Garden State, where state regulators have approved more than a dozen agrivoltaics projects.
A conversation with Ella Nilsen — formerly of CNN, now with Echo Communications — about where we stand in the fight over the energy transition.
This week’s conversation is with Ella Nilsen, who recently left CNN as a climate reporter and is now a new vice president at energy and cleantech PR firm Echo Communications. Having worked on Capitol Hill alongside Nilsen, I knew her to be an exceptional reporter who asked hard questions of those in power on all sides. So when I found out she was taking her journalism hat off and putting the comms cap on, I wanted to do something you rarely get to do with one of your reporting peers: ask for her own opinion about where we stand in the fight over the energy transition.
Our chat was lightly edited for clarity.
What’s it like going from CNN and climate journalism to advising on communications in the energy sector, especially when it comes to clean tech in this fraught moment?
So before I covered climate and clean energy, I was a political reporter who covered campaign cycles and Capitol Hill for a while, and I was always interested in the nexus of politics and politics. I tried to make as much of my coverage about that. Politics is policy, and the other way around.
Being on the other side of it is, well, I know from my experience as a reporter what interests them. I’m trying to figure out ways to make sure when I’m bugging you all that the pitch lands, because hopefully it’ll be something people are interested in. Things are changing so fast. It’s a really fascinating time to be a reporter and be in the clean energy comms space.
Okay, but now that you’re in clean energy comms, how do you handicap the fight over developing these technologies? Who is winning, who is losing, and why?
I think it’s tough to call exact winners and losers right now because over the last few months, there have been so many new and interesting developments.
Look at the Invest in Tomorrow Coalition, which has been getting involved in Republican primaries for Freedom Caucus members. There’s been this perception for a long time that the clean energy industry didn’t fare well in the One Big Beautiful Bill Act fight. They had important wins while losing pretty key stuff. But there’s been this interesting reckoning within the industry, and even this last summer, where people are moving the ball forward in interesting ways. They’re trying to get involved in political fights with direct results.
What messages do these primaries send? On the one hand I can see there being political consequences but also, now, more solar energy money going into Republican politics has the anti-renewable folks saying they need to go harder at them. I’m curious how you see the energy fight landscape changing in light of these election results.
I think it shows the industry has some fight in it. What the Coalition would probably say is, they want to be lethal and this is political warfare. They’re trying to be taken seriously.
There is sort of this two-pronged strategy happening right now. Obviously Invest in Tomorrow has gotten a lot of press attention for their track record. There’s also within the industry an attempt to shape a public narrative around wind, solar, battery storage to combat misinformation, both through conventional media and social media. They’re happening in tandem and it's a reflection of the results.
How is the backlash over data center development affecting the work you’re now doing?
Well, I’m still early, but I think the data center question is a fascinating one. Conversations around policy and where we go from here really seem to me to be happening in the state realm. Not a lot of policy happening at the federal level. There’s New York State’s data center pause, which is leading to lawmakers trying to get more leverage.
It’s in the backdrop, where projects are being announced with massive power plants to supply new data center demand, and at the same time there’s a conversation around virtual power plants, DERs. Another phrase emerging for it is “community power.”
It’s starting to be a fascinating conversation around community benefits. There are tax benefits when a data center comes to town but when it comes to energy use, what can communities actually leverage out of this? I know former Energy Secretary Jennifer Granholm has been arguing for strong community benefit agreements, getting big tech companies to pay for solar and EVs and then using all of that to create a virtual power plant. Getting that to be flexible for data centers. That’s only one part of the pie but it’s fascinating to have this conversation about what forms of energy we need for all this demand happening.
What do you foresee about the impact of the backlash, given that land use, visuals, air, and water – its all being swept up in the same conversation?
I don’t have a crystal ball and have the same questions.
It’s all happening so quickly and it’s all playing out in so many different states. There are really important questions here and there are people smarter than I am on this, talking about how we meet this demand in the short term and long term or whether this is an opportunity for getting clean energy onto the grid. But it’s a delicate dance.