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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 Mike Hall of Anza.
This week’s conversation is with Mike Hall, CEO of the solar and battery storage data company Anza. I rang him because, in my book, the more insights into the ways renewables companies are responding to the war on the Inflation Reduction Act, the better.
The following chat was lightly edited for clarity. Let’s jump in!
How much do we know about developers’ reactions to the anti-IRA bill that was passed out of the House last week?
So it’s only been a few days. What I can tell you is there’s a lot of surprise about what came out of the House. Industries mobilized in trying to improve the bill from here and I think a lot of the industry is hopeful because, for many reasons, the bill doesn’t seem to make sense for the country. Not just the renewable energy industry. There’s hope that the voices in Congress — House members and senators — who already understand the impact of this on the economy will in the coming weeks understand how bad this is.
I spoke to a tax attorney last week that her clients had been preparing for a worst case scenario like this and preparing contingency plans of some kind. Have you seen anything so far to indicate people have been preparing for a worst case scenario?
Yeah. There’s a subset of the market that has prepared and already executed plans.
In Q4 [of 2024] and Q1 [of this year] with a number of companies to procure material from projects in order to safe harbor those projects. What that means is, typically if you commence construction by a certain date, the date on which you commence construction is the date you lock in tax credit eligibility, and we worked with companies to help them meet that criteria. It hedged them on a number of fronts. I don’t think most of them thought we’d get what came out of the House but there were a lot of concerns about stepdowns for the credit.
After Trump was elected, there were also companies who wanted to hedge against tariffs so they bought equipment ahead of that, too. We were helping companies do deals the night before Liberation Day. There was a lot of activity.
We saw less after April 2nd because the trade landscape has been changing so quickly that it’s been hard for people to act but now we’re seeing people act again to try and hit that commencement milestone.
It’s not lost on me that there’s an irony here – the attempts to erode these credits might lead to a rush of projects moving faster, actually. Is that your sense?
There’s a slug of projects that would get accelerated and in fact just having this bill come out of the House is already going to accelerate a number of projects. But there’s limits to what you can do there. The bill also has a placed-in-service criteria and really problematic language with regard to the “foreign entity of concern” provisions.
Are you seeing any increase in opposition against solar projects? And is that the biggest hurdle you see to meeting that “placed-in-service” requirement?
What I have here is qualitative, not quantitative, but I was in the development business for 20 years, and what I have seen qualitatively is that it is increasingly harder to develop projects. Local opposition is one of the headwinds. Interconnection is another really big one and that’s the biggest concern I have with regards to the “placed-in-service” requirement. Most of these large projects, even if you overcome the NIMBY issues, and you get your permitting, and you do everything else you need to do, you get your permits and construction… In the end if you’re talking about projects at scale, there is a requirement that utilities do work. And there’s no requirement that utilities do that work on time [to meet that deadline]. This is a risk they need to manage.
And more of the week’s top news in renewable energy conflicts.
1. Columbia County, New York – A Hecate Energy solar project in upstate New York blessed by Governor Kathy Hochul is now getting local blowback.
2. Sussex County, Delaware – The battle between a Bethany Beach landowner and a major offshore wind project came to a head earlier this week after Delaware regulators decided to comply with a massive government records request.
3. Fayette County, Pennsylvania – A Bollinger Solar project in rural Pennsylvania that was approved last year now faces fresh local opposition.
4. Cleveland County, North Carolina – Brookcliff Solar has settled with a county that was legally challenging the developer over the validity of its permits, reaching what by all appearances is an amicable resolution.
5. Adams County, Illinois – The solar project in Quincy, Illinois, we told you about last week has been rejected by the city’s planning commission.
6. Pierce County, Wisconsin – AES’ Isabelle Creek solar project is facing new issues as the developer seeks to actually talk more to residents on the ground.
7. Austin County, Texas – We have a couple of fresh battery storage wars to report this week, including a danger alert in this rural Texas county west of Houston.
8. Esmeralda County, Nevada – The Trump administration this week approved the final proposed plan for NV Energy’s Greenlink North, a massive transmission line that will help the state expand its renewable energy capacity.
9. Merced County, California – The Moss Landing battery fire is having aftershocks in Merced County as residents seek to undo progress made on Longroad’s Zeta battery project south of Los Banos.
Anti-solar activists in agricultural areas get a powerful new ally.
The Trump administration is joining the war against solar projects on farmland, offering anti-solar activists on the ground a powerful ally against developers across the country.
In a report released last week, President Trump’s Agriculture Department took aim at solar and stated competition with “solar development on productive farmland” was creating a “considerable barrier” for farmers trying to acquire land. The USDA also stated it would disincentivize “the use of federal funding” for solar “through prioritization points and regulatory action,” which a spokesperson – Emily Cannon – later clarified in an email to me this week will include reconfiguring the agency’s Rural Energy for America loan and grant program. Cannon declined to give a time-table for the new regulation, stating that the agency “will have more information when the updates are ready to be published.”
“Farmland should be for agricultural production, not solar production,” Cannon wrote – a statement also made in the USDA report.
REAP is a program created in 2008 that exists to help fund renewable energy and sustainability projects at the level of individual farms and has been seen as a potential tool for not only building more solar but also more trust in agriculturally-focused communities. It’s without question that retooling REAP to actively disincentivize awardees from building solar on farmland could have a chilling effect, at least amongst those who receive money from the program or wish to in the future. This comes after Trump officials temporarily froze money promised to farmers, too.
As we’ve previously written in The Fight, agricultural interests can at times present as much a threat to the future of solar energy as any oil-funded dark money group, if not more so. Conflicts over solar production on farmland make up a large portion of the total projects I cover in The Fight every week, and it is one of the most frequently cited reasons for opposition against individual renewables projects. (Agricultural workforces are one of the most important signals for renewable energy opposition in Heatmap Pro’s modeling data as well.) I wrote shortly after Trump’s inauguration that I wondered when – not if – he would adopt this position.
It’s unclear what exactly led USDA to dive headlong into the “No Solar on Farmland” campaign, aside from its growing popularity in conservative political circles, but there is reason to believe farming interests may have played a role. USDA has stated the report was the product of discussions with farming groups and an industry roundtable. In addition, per lobbying disclosures, at least one agricultural group – the Pennsylvania Farm Bureau – advocated earlier this year for “congressional action and/or executive orders” to “balance renewable and conventional sources of energy” through “limit[ing] solar on productive farmland.” (The Pennsylvania Farm Bureau denied this in an email to me earlier this week.)
There’s also reason to believe some key stakeholders were caught off-guard or weren’t looped in on the matter.
American Farmland Trust has been trying to cultivate common ground between farmers, solar companies, and various agencies at all levels of government over the future of development. But when asked about this report, the nonprofit told me it couldn’t speak on the matter because it was still trying to suss out what was going on.
“AFT is meeting with the Trump administration to learn more about what they are planning in terms of policy and programs to implement this concept,” AFT media relations associate Michael Shulman told me.