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“The only common thread is the seeming desire of the court to aggrandize the power of the courts.”
The word “consequential” barely touches the importance of the Supreme Court’s decisions this term, as two cases — Loper Bright Enterprises v. Raimondo and Corner Post, Inc. v. Board of Governors — took a wrecking ball to the stability of the administrative state. Courts will no longer give deference to regulators to interpret statute and will permit new challenges against existing rules. Essentially, depending on whom you ask, anything goes.
So naturally, we had to ask. While the legal universe is still digesting these rulings, climate and environmental law experts had plenty of opinions about them, as lawyers tend to do. Here’s what we heard:
The Supreme Court has been on a campaign to weaken environmental regulation. In 2016, it halted implementation of President Obama’s Clean Power Plan without explanation. In 2022, it issued the devastating opinion in West Virginia v. Environmental Protection Agency, finding that the EPA couldn’t go very far in using the Clean Air Act to fight climate change because the statute isn’t specific enough. In 2023, the court in Sackett v. EPA greatly reduced the coverage of the Clean Water Act.
That campaign intensified this year. On June 27, 2024, in Ohio v. EPA, it struck down a life-saving Clean Air Act rule based on exceedingly narrow technical grounds that Justice Amy Coney Barrett, in her dissent, found were completely off base. The same day, in SEC v. Jarkesy, the Court said that agencies could not use long-established administrative processes to impose certain kinds of penalties. On June 28, the court reversed the Chevron doctrine in Loper Bright Enterprises v. Raimondo. On July 1, in Corner Post, Inc. v. Board of Governors, it said that corporate defendants can challenge federal regulations long past the usual statute of limitations. And this campaign may continue: on June 24 the Supreme Court agreed to hear Seven County Infrastructure Coalition v. Eagle County, which may shrink the coverage of the National Environmental Policy Act.
The next election will determine whether the 6-3 conservative majority may be enlarged and rejuvenated to last another generation, or — depending on the fates — may shrink or be reversed.
For good reason, the last day of the Supreme Court’s term will be known for its decision giving presidents incredibly broad immunity from criminal prosecution. But another decision that will play a major role in restricting the ability of the executive branch to protect the environment should not be neglected. Corner Post effectively eliminated what had been a six-year statute of limitations for challenging federal regulations. The impact of Corner Post will amplify the effect of last week’s opinion overturning the Chevron decision, which had held that the judiciary should defer to reasonable legal interpretations made by the executive branch.
The Court announcing that it will take a much more aggressive role in replacing the judgment of regulatory experts in the executive branch with their own judgments will have particularly dire consequences for environmental regulations. What they see as “excessive” environmental regulation is one of the central reasons why conservative legal activists wanted the Chevron doctrine overruled. It’s not a coincidence that last week, the court also prevented a federal regulation of air pollutants from going into effect, one of a long series of Roberts court rulings undermining environmental regulation. And in a darkly comic illustration of what a bad idea it is to replace the judgment of EPA experts with that of arrogant, power-hungry judges, in his opinion for the court, Justice Gorsuch confused “nitrous oxide” (commonly known as “laughing gas”) and “nitrogen oxides” (the pollutant the EPA sought to regulate.)
People who want to stop environmental regulation will not be laughing when considering the effects of this Supreme Court term. Conservative lawyers will aggressively forum-shop for judges hostile to environmental regulations to bring challenges even to long-settled rules, and the authority of the EPA will be under constant threat as the planet continues to warm.
The combined effect of the Corner Post and Loper decisions may not be immediate, but they will be profound. They will make it harder for agencies to do their work, and easier for challengers (especially very well-funded challengers) to attack and delay actions.
The two opinions are hard to reconcile. In Loper, the opinion cites Chevron as "fostering unwarranted instability" in the law, but in Corner Post, the court has added extreme instability by leaving open-ended the question of when a regulation is ever settled. The only common thread is the seeming desire of the court to aggrandize the power of the courts.
Specific to climate, notwithstanding the statement in the opinion that Loper does not reopen prior holdings that used the Chevron framework, it is hard to imagine that such challenges will not be forthcoming. In particular, opponents of the finding in Massachusetts v. EPA may see Loper and Corner Post as an opportunity to reopen that 2007 case, especially as the court seems quite ready and willing to overturn past precedents.
Finally, we have examples of how pre- Chevron litigation worked under the Clean Air Act — and these examples should give as much pause to conservatives as to progressives. Courts are not likely to function well as regulatory agencies. The original Chevron decision was favored by conservatives at the time; post-Chevron, conservatives may regret that they got what they asked for.
The Supreme Court’s rulings this session jeopardize critical environmental protections and climate progress and are likely to wreak chaos across the regulatory landscape. In Corner Post the Supreme Court upended the statute of limitations for challenging many government regulations, opening the door to hundreds of new corporate challenges to long-established protections we all take for granted. And in Loper Bright, the court displaced the long-standing Chevron doctrine by shifting power to judges and sidelining the expertise of agency staff who live and breathe the science and safety concerns that federal agencies specialize in.
In combination, the cases tip the balance of power away from everyday Americans that depend on commonsense protections to industry groups that believe they will financially benefit without any limitations in place. We’re ready to fight back to make sure this conservative supermajority doesn't leave us with a patchwork of inconsistent rulings and an annihilation of the regulatory structure and critical protections that keep us safe and healthy.
The Supreme Court's decisions, in combination, make it clear that the Court intends to insert itself as, in Justice Kagan's words, the country's “administrative czar.” Those decisions give courts control over a wide array of scientific, technical, and policy choices necessary to effectively implement our laws protecting clean air, clean water, and affordable and reliable energy (and much more). That is likely to prove corrosive to climate policy; judges lack the accountability, expertise, and experience of agencies like the EPA or the Department of Energy.
But the primary drivers of decarbonization — economics and public investments to accelerate the clean energy transition, like the Inflation Reduction Act — remain relatively insulated from judicial interference. So while the court's decisions make the likely pathway to decarbonization less steady, science-driven, and predictable, it should not derail our ongoing progress towards achieving our climate goals over the long term.
Undoubtedly, the Supreme Court’s decisions in Corner Post and Loper Bright will make it easier for plaintiffs to prevail in legal challenges to environmental regulations. But we should be careful to keep things in perspective. The end of Chevron deference means that agency interpretations of statutes will get more judicial scrutiny than they did before, but even under Chevron deference it was limited by such things as the major questions doctrine. Agency interpretations are still likely to prevail in many cases. Similarly, while the changes to when the statute of limitations begins to run will allow additional challenges to be brought, a regulation that has already survived earlier legal challenges is likely to be upheld again if challenged by a new plaintiff later on. Agencies like EPA or the Federal Energy Regulatory Commission do not need to be insulated from judicial review in order to be able to function. If they do, that suggests a deeper problem with the administrative state.
In its regulatory jurisprudence this term, the Supreme Court has fundamentally changed the playing field for environmental regulation, making it much more difficult for agencies to use the flexibility that Congress has attempted to provide to protect the environment. This is likely to be felt especially where agencies are trying to tackle new problems using older statutes. The ball is now in Congress's court to protect the American people by regularly improving the nation's environmental laws, ensuring that federal regulatory programs that prevent pollution and preserve our country's natural resources for future generations are not lost forever over legal technicalities.
Taken together, Corner Post and Loper Bright fire the starting gun for an onslaught of lawsuits challenging long-settled regulatory programs. (They also sound the dinner bell for amoral corporate law firms.)
Judicial conservatives have long proclaimed the need for judicial minimalism and caution. Judges, they say, are not elected, and have no business making policy from the bench. They should decide individual cases and focus on the facts in front of them to avoid ripple effects that they can’t foresee and can’t easily fix.
This conservative supermajority is instead heedlessly pursuing a political agenda. By rewriting settled precedents to pursue a holy war against federal regulations, the court is truly legislating from the bench. And in justifying all this by citing idiosyncratic views of the separation of powers, the court is practically holding a new constitutional convention behind closed doors.
The Supreme Court has made it clear that legal precedents and the plain language of statutes will not slow their crusade to destroy the modern regulatory state at the behest of their wealthy benefactors. Justice Ketanji Brown Jackson got it right in her dissent in Corner Post: “At the end of a momentous Term, this much is clear: The tsunami of lawsuits against agencies that the Court's holdings in this case and Loper Bright have authorized has the potential to devastate the functioning of the Federal Government.”
This tsunami of lawsuits will result in less consistent statutory interpretations based on individual courts' views on government regulation generally and on the matter at hand. The court's power grab lays bare the importance of civil society and elected officials finding ways to rebalance the relationships between the three branches of government and supporting the ability of federal agencies to implement federal laws effectively.
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A review of Heatmap Pro data reveals a troubling new trend in data center development.
Data centers are being built in places that restrict renewable energy. There are significant implications for our future energy grid – but it’s unclear if this behavior will lead to tech companies eschewing renewables or finding novel ways to still meet their clean energy commitments.
In the previous edition of The Fight, I began chronicling the data center boom and a nascent backlash to it by talking about Google and what would’ve been its second data center in southern Indianapolis, if the city had not rejected it last Monday. As I learned about Google’s practices in Indiana, I focused on the company’s first project – a $2 billion facility in Fort Wayne, because it is being built in a county where officials have instituted a cumbersome restrictive ordinance on large-scale solar energy. The county commission recently voted to make the ordinance more restrictive, unanimously agreeing to institute a 1,000-foot setback to take effect in early November, pending final approval from the county’s planning commission.
As it turns out, the Fort Wayne data center is not an exception: Approximately 44% of all data centers proposed in Indiana are in counties that have restricted or banned new renewable energy projects. This is according to a review of Heatmap Pro data in which we cross-referenced the county bans and ordinances we track against a list of proposed data centers prepared by an Indiana energy advocacy group, Citizens Action Coalition of Indiana.
This doesn’t necessarily mean the power going to these data centers is consistently fossil. Data centers can take years to construct and often rely on power fed to them from a distributed regional energy grid. But this does mean it would be exceptionally costly for any of these projects to build renewable generation on site, as a rising number of projects choose to do – not to mention that on a macro level, data centers may increasingly run up against the same cultural dynamics that are leading to solar and wind project denials. (See: this local news article about the Fort Wayne data center campus).
Chrissy Moy, a Google spokesperson, told me the Fort Wayne facility will get its power off of the PJM grid, and sent me links to solar projects and hydroelectric facilities in other states on the PJM it has power purchase agreements with. I’d note the company claims it “already matches” all of its global annual electricity demand with “renewable energy purchases.” What this means is that if Google can’t generate renewable energy for a data center directly, it will try to procure renewable energy at the same time from the same grid, even if it can’t literally use that clean power at that data center. And if that's not possible, it will search farther afield or at different times. (Google is one of the more aggressive big tech companies in this regard, as my colleague Emily Pontecorvo details.) Google has also boasted that it will provide an undisclosed amount of excess clean electricity through rights transfers to Indiana Michigan Power when the tech company’s load is low and demand on the broader grid is peaking, as part of Google’s broader commitment to grid flexibility.
I reached out to Tom Wilson, an energy systems technical executive at the Electric Power Research Institute, an industry-focused organization that studies modern power and works with tech companies on flexible data center energy use, including Google. Wilson told me that in Indiana, many of the siting decisions for data centers were made before counties enacted moratoria against renewable energy and that tech companies may not always be knowingly siting projects in places where significant solar or wind generation would be impractical or even impossible. (We would just note that Fort Wayne, Indiana, has an opposition risk score of 84 in Heatmap Pro, meaning it would have been a very risky place to build a renewable energy project even without that restrictive ordinance.) It also indicates some areas may be laying down renewables restrictions after seeing data center development, which is in line with a potential land use techlash.
Wilson told me that two thirds of data centers rely on power from the existing energy grid whereas surveys indicate about a third choose to have at least some electricity generation on site. In at least the latter case, land use constraints and permitting problems really can be a hurdle for building renewable energy close to where data is processed. This is a problem exacerbated when centers are developed near population centers, which Wilson said is frequently the case because companies want to reduce “latency” for customers. In other words, they want to “reduce the time it takes to get answers to people” via artificial intelligence or other data products.
“The primary challenges are the size of the data center and the amount of space it takes to build renewables,” he said. “They are moving from 20 megawatt or 40 megawatt data centers to 100, 200, 300 megawatt data centers. It’s really hard to locate that much renewable [energy] right near a population center. So that requires transmission, and unfortunately right now in the U.S. and in many other countries, transmission takes a significant amount of time to build.”
The majority of data centers are served by regional power grids, Wilson told me. Companies like Google, Meta, and others continue to invest in renewable energy procurement while building facilities in areas that have restricted new solar or wind power infrastructure. In some cases, companies may feel they’re forced to seek these places out because the land is just plain cheap and has existing fiber optic cable networks.
At the same time, there are large data centers getting energy generated on site, and how they each approach their energy sources varies. It’s also not always consistent.
For instance, Meta’s new Prometheus supercluster complex in New Albany, Ohio — potentially the world’s first 1 gigawatt data center — will reportedly have a significant amount of new gas power generation constructed at the facility, even though the company also struck a deal with Invenergy over the summer to procure at least 400 megawatts of solar from two projects in Ohio that already have their permits. One is in Clinton County and was fully permitted but resulted in a years-long fight before the Ohio Power Siting Board and included conservative media backlash. The other is in Franklin County and got its permits in 2021, before a recent wave of opposition against solar projects. Prometheus itself will be sited on the Licking County side of New Albany, where solar has been extremely difficult to build, even though most of this Columbus suburb is in solar-supporting Franklin.
Meanwhile, Elon Musk’s xAI data center notoriously relies on a polluting gas plant in Memphis, Tennessee. The surrounding Shelby County had a solar moratorium until mere months ago that residents want to bring back. An affiliate company of xAI used for the project’s real estate is subleasing land near the data center for a solar farm, but it is unclear right now if it’ll power the data center.
In the end, it really does seem like data centers are being sited in places with renewable energy restrictions. What the data center developers plan to do about it — if anything — is still an open question.
Current conditions: After walloping Bermuda with winds of up to 100 miles per hour, Hurricane Imelda is veering northeast away from the United States • While downgraded from a hurricane, Humberto is set to soak Ireland and the United Kingdom as Storm Amy in the coming days and bring winds of up to 90 miles per hour • Typhoon Matmo is strengthening as it hits the Philippines and barrels toward China.
The Department of Energy is canceling two regional hydrogen hubs in California and the Pacific Northwest as part of a broader rescinding of 321 grants worth $7.5 billion for projects nationwide. Going after the hydrogen hubs, which the oil and gas industry lobbied to keep open after President Donald Trump came back to office, “leaves the agency’s intentions for the remaining five hubs scattered throughout the Midwest, Midatlantic, Appalachia, the Great Plains, and Texas unclear,” Heatmap’s Emily Pontecorvo wrote yesterday.
The list of canceled projects that Emily got her hands on “does seem to confirm that blue state grants were the hardest hit,” she wrote. But, she found, “many would actually have benefitted Republican strongholds,” including a $20 million grant for a manufacturing plant in Texas that was slated to create 200 jobs.
Tesla’s global deliveries rose 7% in the third quarter, hitting a new record as Americans rushed to buy electric vehicles before the federal tax credit expired on September 30. The automaker delivered 497,099 vehicles in the three months leading up to that date, up from 462,890 in the same period last year, according to the Financial Times. That was well above analyst forecasts of 444,000.
That may do little to turn around the headwinds blasting the EV giant. While the company benefited from buyers scrambling to tap the federal EV tax credit, Tesla sank to its lowest-ever share of the electric vehicle market in August as drivers flocked to offerings from other automakers. It’s not just a problem in the U.S. As Heatmap’s Matthew Zeitlin wrote last month, “Thanks to CEO Elon Musk’s association with right wing politics in the U.S. and abroad, and to fierce competition from Chinese EV leader BYD, Tesla’s sales have fallen dramatically in Europe. Globally, BYD overtook Tesla in sales last year.”
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Conservative leader Kemi Badenoch. Dan Kitwood/Getty Images
Kemi Badenoch, the leader of the British Conservatives, has vowed to repeal the United Kingdom’s landmark climate law if her party, colloquially known as the Tories, wins the next election. Eliminating the Climate Change Act, passed almost unanimously under a Tory government in 2008, would dismantle controls on greenhouse gas emissions and remove what The Guardian described as “the cornerstone of green and energy policy for successive governments” for the past 17 years.
The move rankled past Tory leaders. Former Prime Minister Theresa May condemned the campaign pledge as a “catastrophic mistake.” Calling it a “retrograde” step, she said that “while consensus is being tested, the science remains the same.” Alok Sharma, the former Tory minister who led the COP26 climate summit in Glasgow in 2021, told The Guardian in a separate article that a repeal risked “many tens of billions of pounds of private sector investment and accompanying jobs.”
Sea ice in Antarctica reached its third-smallest winter peak extent since satellite records began 47 years ago, according to a new analysis by Carbon Brief. Provisional data from the U.S. National Snow and Ice Data Center showed Antarctic sea ice reaching a winter maximum of just under 6.9 million square miles as of September 17. That’s nearly 350,000 square miles below the average between 1981 and 2010, the historical baseline against which recent changes in sea ice extent are compared. The “lengthening trend of lower Antarctic sea ice poses real concerns regarding stability and melting of the ice sheet,” one expert told the publication.
The finding comes as a “groundbreaking” study the European Geosciences Union published Thursday in the journal Earth System Dynamics found that Antarctic sea ice has emerged as a key predictor of accelerated ocean warming. Using Earth system models and satellite images from 1980 to 2020, the researchers found higher sea ice extent enhances cloud cover, which has a cooling effect overall by reducing incoming solar radiation. As a result, ongoing sea ice loss is linked to larger reductions in clouds, stronger surface warming, and even more ocean heat uptake, accelerating the cycle.
Duke Energy plans to meet surging demand for electricity by increasing its natural gas and battery capacity, keeping coal plants open for up to four years longer than previously estimated, and evaluating new sites for nuclear reactors. The 100-page biennial proposal published this week dials back plans for more renewables such as wind and solar. It also pushed back the earliest start date for a new reactor to 2037, declined to commit to either small modular reactors or large traditional units, and said the utility still needs extra protections against cost overruns before embarking on construction.
In the meantime, the added years of coal burning “will result in millions of tons in additional greenhouse gases over the next decade when combined with other proposed changes to the utility’s fuel mix,” Inside Climate News reported. In a statement to Axios, North Carolina Governor Josh Stein, a Democrat, called on the state’s utilities commission to “require significant changes” and condemned Duke for “retreating from the state’s clean energy future.”
New research by a team of scientists from the U.K. and New Zealand has found that new analytical methods could bolster conservation breeding programs by offering a better understanding of why eggs don’t hatch. The researchers used fluorescent dyes to discover that nearly 66% of 174 unhatched eggs examined in the study had been fertilized, whereas previous methods suggested that only 5.2% had been fertilized. “There are many different factors that contribute to breeding success,” Gary Ward, a co-author from the London-based ZSL Institute of Zoology, said in a statement, “and the more understanding we can have into why an egg might not hatch, the more we can refine our care for these birds and the better chance of recovery we can give them.”
And more on the week’s most important fights around renewable energy projects.
1. Ocean County, New Jersey – A Trump administration official said in a legal filing that the government is preparing to conduct a rulemaking that could restrict future offshore wind development and codify a view that could tie the hands of future presidential administrations.
2. Prince William County, Virginia – The large liberal city of Manassas rejected a battery project over fire fears, indicating that post-Moss Landing, anxieties continue to pervade in communities across the country.
3. Oklahoma County, Oklahoma – The Sooner state legislature on Monday held a joint committee meeting on solar and wind setbacks featuring prominent anti-wind advocates.
4. Tippacanoe County, Indiana – The developers of a large-scale solar project are suing the county over being rejected.
5. Dane County, Wisconsin – The Wisconsin Public Service Commission approved Invenergy’s Badger Hollow wind project – the state’s first new fully-permitted wind energy project in more than a decade.