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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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The nonprofit laid off 36 employees, or 28% of its headcount.
The Trump administration’s funding freeze has hit the leading electrification nonprofit Rewiring America, which announced Thursday that it will be cutting its workforce by 28%, or 36 employees. In a letter to the team, the organization’s cofounder and CEO Ari Matusiak placed the blame squarely on the Trump administration’s attempts to claw back billions in funding allocated through the Greenhouse Gas Reduction Fund.
“The volatility we face is not something we created: it is being directed at us,” Matusiak wrote in his public letter to employees. Along with a group of four other housing, climate, and community organizations, collectively known as Power Forward Communities, Rewiring America was the recipient of a $2 billion GGRF grant last April to help decarbonize American homes.
Now, the future of that funding is being held up in court. GGRF funds have been frozen since mid-February as Lee Zeldin’s Environmental Protection Agency has tried to rescind $20 billion of the program’s $27 billion total funding, an effort that a federal judge blocked in March. While that judge, Tanya S. Chutkan, called the EPA’s actions “arbitrary and capricious,” for now the money remains locked up in a Citibank account. This has wreaked havoc on organizations such as Rewiring America, which structured projects and staffing decisions around the grants.
“Since February, we have been unable to access our competitively and lawfully awarded grant dollars,” Matusiak wrote in a LinkedIn post on Thursday. “We have been the subject of baseless and defamatory attacks. We are facing purposeful volatility designed to prevent us from fulfilling our obligations and from delivering lower energy costs and cheaper electricity to millions of American households across the country.”
Matusiak wrote that while “Rewiring America is not going anywhere,” the organization is planning to address said volatility by tightening its focus on working with states to lower electricity costs, building a digital marketplace for households to access electric upgrades, and courting investment from third parties such as hyperscale cloud service providers, utilities, and manufacturers. Matusiak also said Rewiring America will be restructured “into a tighter formation,” such that it can continue to operate even if the GGRF funding never comes through.
Power Forward Communities is also continuing to fight for its money in court. Right there with it are the Climate United Fund and the Coalition for Green Capital, which were awarded nearly $7 billion and $5 billion, respectively, through the GGRF.
What specific teams within Rewiring America are being hit by these layoffs isn’t yet clear, though presumably everyone let go has already been notified. As the announcement went live Thursday afternoon, it stated that employees “will receive an email within the next few minutes informing you of whether your role has been impacted.”
“These are volatile and challenging times,” Matusiak wrote on LinkedIn. “It remains on all of us to create a better world we can all share. More so than ever.”
A battle ostensibly over endangered shrimp in Kentucky
A national park is fighting a large-scale solar farm over potential impacts to an endangered shrimp – what appears to be the first real instance of a federal entity fighting a solar project under the Trump administration.
At issue is Geenex Solar’s 100-megawatt Wood Duck solar project in Barren County, Kentucky, which would be sited in the watershed of Mammoth Cave National Park. In a letter sent to Kentucky power regulators in April, park superintendent Barclay Trimble claimed the National Park Service is opposing the project because Geenex did not sufficiently answer questions about “irreversible harm” it could potentially pose to an endangered shrimp that lives in “cave streams fed by surface water from this solar project.”
Trimble wrote these frustrations boiled after “multiple attempts to have a dialogue” with Geenex “over the past several months” about whether battery storage would exist at the site, what sorts of batteries would be used, and to what extent leak prevention would be considered in development of the Wood Duck project.
“The NPS is choosing to speak out in opposition of this project and requesting the board to consider environmental protection of these endangered species when debating the merits of this project,” stated the letter. “We look forward to working with the Board to ensure clean water in our national park for the safety of protection of endangered species.”
On first blush, this letter looks like normal government environmental stewardship. It’s true the cave shrimp’s population decline is likely the result of pollution into these streams, according to NPS data. And it was written by career officials at the National Park Service, not political personnel.
But there’s a few things that are odd about this situation and there’s reason to believe this may be the start of a shift in federal policy direction towards a more critical view of solar energy’s environmental impacts.
First off, Geenex has told local media that batteries are not part of the project and that “several voicemails have been exchanged” between the company and representatives of the national park, a sign that the company and the park have not directly spoken on this matter. That’s nothing like the sort of communication breakdown described in the letter. Then there’s a few things about this letter that ring strange, including the fact Fish and Wildlife Service – not the Park Service – ordinarily weighs in on endangered species impacts, and there’s a contradiction in referencing the Endangered Species Act at a time when the Trump administration is trying to significantly pare back application of the statute in the name of a faster permitting process. All of this reminds me of the Trump administration’s attempts to supposedly protect endangered whales by stopping offshore wind projects.
I don’t know whether this solar farm’s construction will indeed impact wildlife in the surrounding area. Perhaps it may. But the letter strikes me as fascinating regardless, given the myriad other ways federal agencies – including the Park Service – are standing down from stringent environmental protection enforcement under Trump 2.0.
Notably, I reviewed the other public comments filed against the project and they cite a litany of other reasons – but also state that because the county itself has no local zoning ordinance, there’s no way for local residents or municipalities opposed to the project to really stop it. Heatmap Pro predicts that local residents would be particularly sensitive to projects taking up farmland and — you guessed it — harming wildlife.
Barren County is in the process of developing a restrictive ordinance in the wake of this project, but it won’t apply to Wood Duck. So opponents’ best shot at stopping this project – which will otherwise be online as soon as next year – might be relying on the Park Service to intervene.
And more on the week’s most important conflicts around renewable energy.
1. Dukes County, Massachusetts – The Supreme Court for the second time declined to take up a legal challenge to the Vineyard Wind offshore project, indicating that anti-wind activists' efforts to go directly to the high court have run aground.
2. Brooklyn/Staten Island, New York – The battery backlash in the NYC boroughs is getting louder – and stranger – by the day.
3. Baltimore County, Maryland – It’s Ben Carson vs. the farmer near Baltimore, as a solar project proposed on the former Housing and Urban Development secretary’s land is coming under fire from his neighbors.
4. Mecklenburg County, Virginia – Landowners in this part of Virginia have reportedly received fake “good neighbor agreement” letters claiming to be from solar developer Longroad Energy, offering large sums of cash to people neighboring the potential project.
5. York County, South Carolina – Silfab Solar is now in a bitter public brawl with researchers at the University of South Carolina after they released a report claiming that a proposed solar manufacturing plant poses a significant public risk in the event of a chemical emissions release.
6. Jefferson Davis County, Mississippi – Apex Clean Energy’s Bluestone Solar project was just approved by the Mississippi Public Service Commission with no objections against the project.
7. Plaquemine Parish, Louisiana – NextEra’s Coastal Prairie solar project got an earful from locals in this parish that sits within the Baton Rouge metro area, indicating little has changed since the project was first proposed two years ago.
8. Huntington County, Indiana – Well it turns out Heatmap’s Most At-Risk Projects of the Energy Transition has been right again: the Paddlefish solar project has now been indefinitely blocked by this county under a new moratorium on the project area in tandem with a new restrictive land use ordinance on solar development overall.
9. Albany County, Wyoming – The Rail Tie wind farm is back in the news again, as county regulators say landowners feel misled by Repsol, the project’s developer.
10. Klickitat County, Washington – Cypress Creek Renewables is on a lucky streak with a solar project near Goldendale, Washington, getting to bypass local opposition from the nearby Yakama Nation.
11. Pinal County, Arizona – A large utility-scale NextEra solar farm has been rejected by this county’s Board of Supervisors.