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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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Instead of rocket fuel, they’re burning biomass.
Arbor Energy might have the flashiest origin story in cleantech.
After the company’s CEO, Brad Hartwig, left SpaceX in 2018, he attempted to craft the ideal resume for a future astronaut, his dream career. He joined the California Air National Guard, worked as a test pilot at the now-defunct electric aviation startup Kitty Hawk, and participated in volunteer search and rescue missions in the Bay Area, which gave him a front row seat to the devastating effects of wildfires in Northern California.
That experience changed everything. “I decided I actually really like planet Earth,” Hartwig told me, “and I wanted to focus my career instead on preserving it, rather than trying to leave it.” So he rallied a bunch of his former rocket engineer colleagues to repurpose technology they pioneered at SpaceX to build a biomass-fueled, carbon negative power source that’s supposedly about ten times smaller, twice as efficient, and eventually, one-third the cost of the industry standard for this type of plant.
Take that, all you founders humble-bragging about starting in a dingy garage.
“It’s not new science, per se,” Hartwig told me. The goal of this type of tech, called bioenergy with carbon capture and storage, is to combine biomass-based energy generation with carbon dioxide removal to achieve net negative emissions. Sounds like a dream, but actually producing power or heat from this process has so far proven too expensive to really make sense. There are only a few so-called BECCS facilities operating in the U.S. today, and they’re all just ethanol fuel refineries with carbon capture and storage technology tacked on.
But the advances in 3D printing and computer modeling that allowed the SpaceX team to build an increasingly simple and cheap rocket engine have allowed Arbor to move quickly into this new market, Hartwig explained. “A lot of the technology that we had really pioneered over the last decade — in reactor design, combustion devices, turbo machinery, all for rocket propulsion — all that technology has really quite immediate application in this space of biomass conversion and power generation.”
Arbor’s method is poised to be a whole lot sleeker and cheaper than the BECCS plants of today, enabling both more carbon sequestration and actual electricity production, all by utilizing what Hartwig fondly refers to as a “vegetarian rocket engine.” Because there’s no air in space, astronauts have to bring pure oxygen onboard, which the rocket engines use to burn fuel and propel themselves into the stratosphere and beyond. Arbor simply subs out the rocket fuel for biomass. When that biomass is combusted with pure oxygen, the resulting exhaust consists of just CO2 and water. As the exhaust cools, the water condenses out, and what’s left is a stream of pure carbon dioxide that’s ready to be injected deep underground for permanent storage. All of the energy required to operate Arbor’s system is generated by the biomass combustion itself.
“Arbor is the first to bring forward a technology that can provide clean baseload energy in a very compact form,” Clea Kolster, a partner and Head of Science at Lowercarbon Capital told me. Lowercarbon is an investor in Arbor, alongside other climate tech-focused venture capital firms including Gigascale Capital and Voyager Ventures, but the company has not yet disclosed how much it’s raised.
Last month, Arbor signed a deal with Microsoft to deliver 25,000 tons of permanent carbon dioxide removal to the tech giant starting in 2027, when the startup’s first commercial project is expected to come online. As a part of the deal, Arbor will also generate 5 megawatts of clean electricity per year, enough to power about 4,000 U.S. homes. And just a few days ago, the Department of Energy announced that Arbor is one of 11 projects to receive a combined total of $58.5 million to help develop the domestic carbon removal industry.
Arbor’s current plan is to source biomass from forestry waste, much of which is generated by forest thinning operations intended to prevent destructive wildfires. Hartwig told me that for every ton of organic waste, Arbor can produce about one megawatt hour of electricity, which is in line with current efficiency standards, plus about 1.8 tons of carbon removal. “We look at being as efficient, if not a little more efficient than a traditional bioenergy power plant that does not have carbon capture on it,” he explained.
The company’s carbon removal price targets are also extremely competitive — in the $50 to $100 per ton range, Hartwig said. Compare that to something like direct air capture, which today exceeds $600 per ton, or enhanced rock weathering, which is usually upwards of $300 per ton. “The power and carbon removal they can offer comes at prices that meet nearly unlimited demand,”Mike Schroepfer, the founder of Gigascale Capital and former CTO of Meta, told me via email. Arbor benefits from the fact that the electricity it produces and sells can help offset the cost of the carbon removal, and vice versa. So if the company succeeds in hitting its cost and efficiency targets, Hartwig said, this “quickly becomes a case for, why wouldn’t you just deploy these everywhere?”
Initial customers will likely be (no surprise here) the Microsofts, Googles and Metas of the world — hyperscalers with growing data center needs and ambitious emissions targets. “What Arbor unlocks is basically the ability for hyperscalers to stop needing to sacrifice their net zero goals for AI,” Kolster told me. And instead of languishing in the interminable grid interconnection queue, Hartwig said that providing power directly to customers could ensure rapid, early deployment. “We see it as being quicker to power behind-the-meter applications, because you don’t have to go through the process of connecting to the grid,” he told me. Long-term though, he said grid connection will be vital, since Arbor can provide baseload power whereas intermittent renewables cannot.
All of this could serve as a much cheaper alternative, to say, re-opening shuttered nuclear facilities, as Microsoft also recently committed to doing at Three Mile Island. “It’s great, we should be doing that,” Kolster said of this nuclear deal, “but there’s actually a limited pool of options to do that, and unfortunately, there is still community pushback.”
Currently, Arbor is working to build out its pilot plant in San Bernardino, California, which Hartwig told me will turn on this December. And by 2030, the company plans to have its first commercial plant operating at scale, generating 100 megawatts of electricity while removing nearly 2 megatons of CO2 every year. “To put it in perspective: In 2023, the U.S. added roughly 9 gigawatts of gas power to the grid, which generates 18 to 23 megatons of CO2 a year,” Schroepfer wrote to me. So having just one Arbor facility removing 2 megatons would make a real dent. The first plant will be located in Louisiana, where Arbor will also be working with an as-yet-unnamed partner to do the carbon storage.
The company’s carbon credits will be verified with the credit certification platform Isometric, which is also backed by Lowercarbon and thought to have the most stringent standards in the industry. Hartwig told me that Arbor worked hand-in-hand with Isometric to develop the protocol for “biogenic carbon capture and storage,” as the company is the first Isometric-approved supplier to use this standard.
But Hartwig also said that government support hasn’t yet caught up to the tech’s potential. While the Inflation Reduction Act provides direct air capture companies with $180 per ton of carbon dioxide removed, technology such as Arbor’s only qualifies for $85 per ton. It’s not nothing — more than the zero dollars enhanced rock weathering companies such as Lithos or bio-oil sequestration companies such as Charm are getting. “But at the same time, we’re treated the same as if we’re sequestering CO2 emissions from a natural gas plant or a coal plant,” Hartwig told me, as opposed to getting paid for actual CO2 removal.
“I think we are definitely going to need government procurement or involvement to actually hit one, five, 10 gigatons per year of carbon removal,” Hartwig said. Globally, scientists estimate that we’ll need up to 10 gigatons of annual CO2 removal by 2050 in order to limit global warming to 1.5 degrees Celsius. “Even at $100 per ton, 10 gigatons of carbon removal is still a pretty hefty price tag,” Hartwig told me. A $1 trillion price tag, to be exact. “We definitely need more players than just Microsoft.”
New research out today shows a 10-fold increase in smoke mortality related to climate change from the 1960s to the 2010.
If you are one of the more than 2 billion people on Earth who have inhaled wildfire smoke, then you know firsthand that it is nasty stuff. It makes your eyes sting and your throat sore and raw; breathe in smoke for long enough, and you might get a headache or start to wheeze. Maybe you’ll have an asthma attack and end up in the emergency room. Or maybe, in the days or weeks afterward, you’ll suffer from a stroke or heart attack that you wouldn’t have had otherwise.
Researchers are increasingly convinced that the tiny, inhalable particulate matter in wildfire smoke, known as PM2.5, contributes to thousands of excess deaths annually in the United States alone. But is it fair to link those deaths directly to climate change?
A new study published Monday in Nature Climate Change suggests that for a growing number of cases, the answer should be yes. Chae Yeon Park, a climate risk modeling researcher at Japan’s National Institute for Environmental Studies, looked with her colleagues at three fire-vegetation models to understand how hazardous emissions changed from 1960 to 2019, compared to a hypothetical control model that excluded historical climate change data. They found that while fewer than 669 deaths in the 1960s could be attributed to climate change globally, that number ballooned to 12,566 in the 2010s — roughly a 20-fold increase. The proportion of all global PM2.5 deaths attributable to climate change jumped 10-fold over the same period, from 1.2% in the 1960s to 12.8% in the 2010s.
“It’s a timely and meaningful study that informs the public and the government about the dangers of wildfire smoke and how climate change is contributing to that,” Yiqun Ma, who researches the intersection of climate change, air pollution, and human health at the Yale School of Medicine, and who was not involved in the Nature study, told me.
The study found the highest climate change-attributable fire mortality values in South America, Australia, and Europe, where increases in heat and decreases in humidity were also the greatest. In the southern hemisphere of South America, for example, the authors wrote that fire mortalities attributable to climate change increased from a model average of 35% to 71% between the 1960s and 2010s, “coinciding with decreased relative humidity,” which dries out fire fuels. For the same reason, an increase in relative humidity lowered fire mortality in other regions, such as South Asia. North America exhibited a less dramatic leap in climate-related smoke mortalities, with climate change’s contribution around 3.6% in the 1960s, “with a notable rise in the 2010s” to 18.8%, Park told me in an email.
While that’s alarming all on its own, Ma told me there was a possibility that Park’s findings might actually be too conservative. “They assume PM2.5 from wildfire sources and from other sources” — like from cars or power plants — “have the same toxicity,” she explained. “But in fact, in recent studies, people have found PM2.5 from fire sources can be more toxic than those from an urban background.” Another reason Ma suspected the study’s numbers might be an underestimate was because the researchers focused on only six diseases that have known links to PM2.5 exposure: chronic obstructive pulmonary disease, lung cancer, coronary heart disease, type 2 diabetes, stroke, and lower respiratory infection. “According to our previous findings [at the Yale School of Medicine], other diseases can also be influenced by wildfire smoke, such as mental disorders, depression, and anxiety, and they did not consider that part,” she told me.
Minghao Qiu, an assistant professor at Stony Brook University and one of the country’s leading researchers on wildfire smoke exposure and climate change, generally agreed with Park’s findings, but cautioned that there is “a lot of uncertainty in the underlying numbers” in part because, intrinsically, wildfire smoke exposure is such a complicated thing to try to put firm numbers to. “It’s so difficult to model how climate influences wildfire because wildfire is such an idiosyncratic process and it’s so random, ” he told me, adding, “In general, models are not great in terms of capturing wildfire.”
Despite their few reservations, both Qiu and Ma emphasized the importance of studies like Park’s. “There are no really good solutions” to reduce wildfire PM2.5 exposure. You can’t just “put a filter on a stack” as you (sort of) can with power plant emissions, Qiu pointed out.
Even prescribed fires, often touted as an important wildfire mitigation technique, still produce smoke. Park’s team acknowledged that a whole suite of options would be needed to minimize future wildfire deaths, ranging from fire-resilient forest and urban planning to PM2.5 treatment advances in hospitals. And, of course, there is addressing the root cause of the increased mortality to begin with: our warming climate.
“To respond to these long-term changes,” Park told me, “it is crucial to gradually modify our system.”
On the COP16 biodiversity summit, Big Oil’s big plan, and sea level rise
Current conditions: Record rainfall triggered flooding in Roswell, New Mexico, that killed at least two people • Storm Ashley unleashed 80 mph winds across parts of the U.K. • A wildfire that broke out near Oakland, California, on Friday is now 85% contained.
Forecasters hadn’t expected Hurricane Oscar to develop into a hurricane at all, let alone in just 12 hours. But it did. The Category 1 storm made landfall in Cuba on Sunday, hours after passing over the Bahamas, bringing intense rain and strong winds. Up to a foot of rainfall was expected. Oscar struck while Cuba was struggling to recover from a large blackout that has left millions without power for four days. A second system, Tropical Storm Nadine, made landfall in Belize on Saturday with 60 mph winds and then quickly weakened. Both Oscar and Nadine developed in the Atlantic on the same day.
Hurricane OscarAccuWeather
The COP16 biodiversity summit starts today in Cali, Colombia. Diplomats from 190 countries will try to come up with a plan to halt global biodiversity loss, aiming to protect 30% of land and sea areas and restore 30% of degraded ecosystems by 2030. Discussions will revolve around how to monitor nature degradation, hold countries accountable for their protection pledges, and pay for biodiversity efforts. There will also be a big push to get many more countries to publish national biodiversity strategies. “This COP is a test of how serious countries are about upholding their international commitments to stop the rapid loss of biodiversity,” said Crystal Davis, Global Director of Food, Land, and Water at the World Resources Institute. “The world has no shot at doing so without richer countries providing more financial support to developing countries — which contain most of the world’s biodiversity.”
A prominent group of oil and gas producers has developed a plan to roll back environmental rules put in place by President Biden, The Washington Post reported. The paper got its hands on confidential documents from the American Exploration and Production Council (AXPC), which represents some 30 producers. The documents include draft executive orders promoting fossil fuel production for a newly-elected President Trump to sign if he takes the White House in November, as well as a roadmap for dismantling many policies aimed at getting oil and gas producers to disclose and curb emissions. AXPC’s members, including ExxonMobil, ConocoPhillips, and Hess, account for about half of the oil and gas produced in the U.S., the Post reported.
A new report from the energy think tank Ember looks at how the uptake of electric vehicles and heat pumps in the U.K. is affecting oil and gas consumption. It found that last year the country had 1.5 million EVs on the road, and 430,000 residential heat pumps in homes, and the reduction in fossil fuel use due to the growth of these technologies was equivalent to 14 million barrels of oil, or about what the U.K. imports over a two-week span. This reduction effect will be even stronger as more and more EVs and heat pumps are powered by clean energy. The report also found that even though power demand is expected to rise, efficiency gains from electrification and decarbonization will make up for this, leading to an overall decline in energy use and fossil fuel consumption.
Ember
The world’s sea levels are projected to rise by more than 6 inches on average over the next 30 years if current trends continue, according to a new study published in the journal Nature. “Such rates would represent an evolving challenge for adaptation efforts,” the authors wrote. By examining satellite data, the researchers found that sea levels have risen by about .4 inches since 1993, and that they’re rising faster now than they were then. In 1993 the seas were rising by about .08 inches per year, and last year they were rising at .17 inches per year. These are averages, of course, and some areas are seeing much more extreme changes. For example, areas around Miami, Florida, have already seen sea levels rise by 6 inches over the last 31 years.
“As the climate crisis grows more urgent, restoring faith in government will be more important than ever.” –Paul Waldman writing for Heatmap about the profound implications of America becoming a low-trust society.