You’re out of free articles.
Log in
To continue reading, log in to your account.
Create a Free Account
To unlock more free articles, please create a free account.
Sign In or Create an Account.
By continuing, you agree to the Terms of Service and acknowledge our Privacy Policy
Welcome to Heatmap
Thank you for registering with Heatmap. Climate change is one of the greatest challenges of our lives, a force reshaping our economy, our politics, and our culture. We hope to be your trusted, friendly, and insightful guide to that transformation. Please enjoy your free articles. You can check your profile here .
subscribe to get Unlimited access
Offer for a Heatmap News Unlimited Access subscription; please note that your subscription will renew automatically unless you cancel prior to renewal. Cancellation takes effect at the end of your current billing period. We will let you know in advance of any price changes. Taxes may apply. Offer terms are subject to change.
Subscribe to get unlimited Access
Hey, you are out of free articles but you are only a few clicks away from full access. Subscribe below and take advantage of our introductory offer.
subscribe to get Unlimited access
Offer for a Heatmap News Unlimited Access subscription; please note that your subscription will renew automatically unless you cancel prior to renewal. Cancellation takes effect at the end of your current billing period. We will let you know in advance of any price changes. Taxes may apply. Offer terms are subject to change.
Create Your Account
Please Enter Your Password
Forgot your password?
Please enter the email address you use for your account so we can send you a link to reset your password:
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.”
Log in
To continue reading, log in to your account.
Create a Free Account
To unlock more free articles, please create a free account.
Packed hearings. Facebook organizing. Complaints about prime farmland and a disappearing way of life. Sound familiar?
Solar and wind companies cite the rise of artificial intelligence to make their business cases after the United States government slashed massive tax incentives for their projects.
But the data centers supposed to power the AI boom are now facing the sort of swift wave of rejections from local governments across the country eerily similar to what renewables developers have been dealing with on the ground over the last decade. The only difference is, this land use techlash feels even more sudden, intense, and culturally diffuse.
What’s happening is simple: Data centers are now routinely being denied by local governments in zoning and permitting decisions after local residents turn against them. These aggrieved denizens organize grassroots campaigns, many with associated Facebook groups, and then flood city council and county commission hearings.
Just take this past week. Last Thursday, Prince George’s County, Maryland, paused all data center permitting after a campaign against converting an abandoned mall into a data center gained traction online, with a petition garnering more than 20,000 signatures. On Monday, faced with a ferocious public outcry, Google rescinded a proposal to build what would’ve been its second data center in Indiana in Franklin Township, a community in southeastern Indianapolis – a withdrawal requested mere minutes before the township council was reportedly going to reject it.
That same day, the rural Illinois town of DeKalb denied a solar company’s request to build a “boutique data center” on the same site as a previously-permitted solar farm. And on Tuesday, the small city of Howell – located smack between Lansing and Detroit, Michigan – denied a data center proposed by an anonymous Fortune 100 company. Apparently, so many people showed up to voice their opposition to the project that the hearing was held in a high school gymnasium.
Opponents cite many things in their arguments against development, some unique to the sector like energy and water use, and others familiar to the solar and wind industry, like preserving prime farmland or maintaining a way of life.
These arguments are incredibly salient, as polling conducted by Heatmap News has revealed: less than half of Americans would ever support a data center coming near them, and this technology infrastructure is less popular than any form of renewable energy. Digging into the cross-tabs of that poll, data centers are unpopular with essentially all age demographics, and arguments against the facilities – like “they use too much water” or “they consume too much electricity” – get relatively similar agreement from registered Democrats and Republicans alike.
Ben Inskeep, a clean energy advocate in Indianapolis, told me he started fighting data centers last year after he became aware of the total power needed to fuel the rising number of projects in the state. His advocacy organization, Citizens Action Coalition of Indiana, previously weighed in on rate hikes and electricity generation decisions. Now, they’re tracking more than 40 data center projects they say are proposed in the state and getting involved in the fight on the ground against them.
Inskeep told me that, from his point of view, the primary support for data centers comes from local governments and municipally-funded works like schools and health facilities that are facing slashed budgets. In some cases the projects are being rejected despite representing millions – even billions – in capital investments and potential tax revenues so large that municipal governments are put between a rock and a hard place as they’re pressured by a weakening economy and state funding cuts.
That’s what happened in Indianapolis. Earlier this month the school district that would’ve been funded by the now-rejected Google data center came out in support of the project, declaring it would welcome new tax revenue, and said it would also lead to new educational partnerships with the tech giant. But none of that mattered. Some local officials even lambasted their colleagues' support as unwarranted, a lashing out that reminds me of what happens to pro-solar officials in Ohio.
Heatmap News has been tracking contested data center projects since the spring of this year and has found almost 100 projects under development across the country that are being actively fought by local organizers, citizens advocacy groups, and environmental organizations. The data is preliminary and likely an undercount.
Still, there’s lots to glean from it. Crucially, as we’ve seen with renewable energy development, data center opposition crops up most often in tandem with the number of projects proposed and constructed. This is only logical: the more of something that is built in a place, the more likely people are to say, “We’ve built enough of that.” This is why Virginia is the top state when it comes to data centers being opposed – it’s a hub that’s seen development spike for far longer than elsewhere in the United States.
I believe that as data center project proposals continue to rise across the country, we’ll see in parallel rising hostility to their development – potentially much larger than anything renewable energy has ever faced. It will undoubtedly also be a problem for anyone in solar or wind who is riding on an AI boom to add demand for their projects.
And more of the week’s most important news around renewable energy conflicts.
1. Pulaski County, Arkansas – The attorney general of Arkansas is reassuring residents that yes, they can still ban wind farms if they want to.
2. Des Moines County, Iowa – This county facing intense pressure to lock out renewables is trying to find a sweet spot that doesn’t involve capitulation. Whether that’s possible remains to be seen.
3. Fayette County, Tennessee – This county just extended its solar energy moratorium for at least the next 18 months after pressure from residents.
4. McCracken County, Kentucky – It’s not all bad news this week, as a large solar project in Kentucky appears to be moving forward without fomenting difficulties on the ground.
A conversation with Wil Gehl at the Solar Energy Industries Association
This week I chatted with Wil Gehl, the InterMountain West senior manager at the Solar Energy Industries Association. I reached out in the hopes we could chat candidly about the impacts of the current national policy regime on solar development in the American West, where a pause on federal permits risks jeopardizing immense development in Nevada. To my delight, Wil was (pun intended) willing to get into the hot seat with me and get into the mix.
The following conversation was lightly edited for clarity.
So for starters, walk me through how solar development out west has changed since the start of this year.
Certainly been a lot of changes. I think there’s sort of a confluence of lots of uncertainty and change in the industry. The impending tax credit deadlines and safe harbor and commence construction deadlines, all of that combined with the sort of things that have been ongoing in the West for a while — public lands, siting issues — I think those have made a relatively difficult development environment for folks.
But that said, we’re also seeing unprecedented load growth across the West, and Nevada’s a really good example of that. So the demand for solar and storage remains super high. But I think now we’re navigating even more difficulty in getting projects both sited and also over the finish line.
How has the pause on federal permitting impacted projects in this area of the country?
Nevada is 80% public land, give or take, so those changes at the federal level, particularly, the Department of Interior … it’s pretty difficult if you’re looking at utility-scale solar in the state to avoid a sort of federal lands nexus. Those policy changes are really being felt on the ground in Nevada.
We don’t do a ton of engagement at the county level but I’ve been tracking those developments across the state, in Nevada, and others around the West. Whether they’re moratoriums or consideration on moratoriums, or new siting restrictions… in most states in the West, the land use decisions rest at the local level, either the county or the municipal jurisdiction. The patchwork of changing ordinances, that [has a] pace that has intensified a little bit this year as well.
How is SEIA trying to get those projects unstuck? I think about Esmeralda 7 for example, which hasn’t seen its permitting timeline updated online in half a year. What’s the process for trying to get these projects to move forward at this juncture?
I guess I don’t have project by project specific information but in general, I think the example with Nevada Gov. Joe Lombardo’s letter is how we’ve been approaching this issue. Trying to make the case for states like Nevada with really high load growth that projects like this are critical to meeting energy demand and serving customers reliably. Trying to tie the really near-term challenge of serving load together with these issues of federal land so that people on the ground at the state level are aware of it and can use the influence they have with federal officials and other folks to make this situation known, that this has real practical effects with states and their economic development.
When it comes to transmission for these solar projects, what’s the status? Is the scope of the pause just limited to the scope of solar generation or also transmission lines connected to them?
I think the kind of more recent challenges have been more focused on the generation side. The pace of the transmission and associated queue bottlenecks, I feel like that situation has not improved by any means but I don’t get the sense there’s any near-term changes that have impacted that. I’d be curious if other folks who work more closely on the transmission side have a different perspective, but that’s kind of what I’m seeing.
Is there from your vantage point a clip or an end here? If these projects are unable to be unstuck, do you expect developers to try and wait out this limbo with public lands? Or do you expect developers to rethink how they site their projects?
I think in general for projects already under the development process, folks have already invested a lot of time, energy, and capital to get those projects to this point. Particularly those in the West really necessary to serve as growing load, I would expect folks to really be pursuing every angle they can to get those projects over the finish line.
That said, I’m sure there is some point. I just don’t have a good sense of when this becomes totally unpalatable or you’re not able to move forward.
NV Energy recently had a filing at the Federal Energy Regulatory Commission that allowed projects previously in their queue an escape route out if they were not able to maintain their queue position. I do think that’s a sign of the siting difficulties, the people re-evaluating their project portfolio. I’m not a developer but if you’re looking on private land or federal land, signs are pointing to a smoother path forward on private land but in states like Nevada where 80% plus is public land, even for a project fully sited on private land, it’s really difficult to avoid interconnection or transmission. There are pretty much always going to be federal impacts. That’s just going to be a challenge that industry’s facing at this point.
What’s your message to developers who are anxious in this moment?
That’s a good question. I share the anxiety.
I also think there’s a lot of effort being undertaken by developers to explain the situation on the ground to their elected officials and I really think that’s the kind of message that needs to get out there. These real tangible impacts of projects that were already invested in, in some cases already under construction, that are being hindered by these policy decisions that I don’t think are serving the public interests and are going to limit economic development if they don’t come online in time. Ultimately energy is needed to meet the growing demand. There’s not a great alternative to these projects not getting done.