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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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Solar and wind projects will take the most heat, but the document leaves open the possibility for damage to spread far and wide.
It’s still too soon to know just how damaging the Interior Department’s political review process for renewables permits will be. But my reporting shows there’s no scenario where the blast radius doesn’t hit dozens of projects at least — and it could take down countless more.
Last week, Interior released a memo that I was first to report would stymie permits for renewable energy projects on and off of federal lands by grinding to a halt everything from all rights-of-way decisions to wildlife permits and tribal consultations. At minimum, those actions will need to be vetted on a project-by-project basis by Interior Secretary Doug Burgum and the office of the Interior deputy secretary — a new, still largely undefined process that could tie up final agency actions in red tape and delay.
For the past week, I’ve been chatting with renewables industry representatives and their supporters to get their initial reactions on what this latest blow from the Trump administration will do to their business. The people I spoke with who were involved in development and investment were fearful of being quoted, but the prevailing sense was of near-total uncertainty, including as to how other agencies may respond to such an action from a vital organ of the federal government’s environmental review process.
The order left open the possibility it could also be applied to any number of projects “related to” solar and wind — a potential trip-wire for plans sited entirely on private lands but requiring transmission across Bureau of Land Management property to connect to the grid. Heatmap Pro data shows 96 renewable energy projects that are less than 7 miles away from federal lands, making them more likely to need federal approval for transmission or road needs, and another 47 projects that are a similar distance away from critical wildlife habitat. In case you don’t want to do the math, that’s almost 150 projects that may hypothetically wind up caught in this permitting pause, on top of however many solar and wind projects that are already in its trap.
At least 35 solar projects and three wind projects — Salmon Falls Wind in Idaho and the Jackalope and Maestro projects in Wyoming — are under federal review, according to Interior’s public data. Advocates for renewable energy say these are the projects that will be the most crucial test cases to watch.
“Unfortunately they’ll be the guinea pigs,” said Mariel Lutz, a conservation policy analyst for the Center for American Progress, who today released a report outlining the scale of job losses that could occur in the wind sector under Trump. “The best way to figure out what this means is to have people and projects try or not try various things and see what happens.”
The data available is largely confined to projects under National Environmental Policy Act review, however. In my conversations with petrified developers this past week, it’s abundantly clear no one really knows just how far-reaching these delays may become. Only time will tell.
We’re looking at battles brewing in New York and Ohio, plus there’s a bit of good news in Virginia.
1. Idaho — The LS Power Lava Ridge wind farm is now facing a fresh assault, this time from Congress — and the Trump team now seems to want a nuclear plant there instead.
2. Suffolk County, New York — A massive fish market co-op in the Bronx is now joining the lawsuit to stop Equinor’s offshore Empire Wind project, providing anti-wind activists a powerful new ally in the public square.
3. Madison County, New York — Elsewhere in New York, a solar project upstate seems to be galvanizing opposition to the state’s permitting primacy law.
4. Fairfield County, Ohio — A trench war is now breaking out over National Grid Renewables’ Carnation Solar project, as opponents win a crucial victory at the county level.
5. El Paso County, Colorado — I don’t write about Colorado often, but this situation is an interesting one.
6. St. Joseph County, Indiana — Something interesting is playing out in this county that demonstrates how it can be quite complicated to navigate municipal and county-level permitting.
7. Albemarle County, Virginia — It’s rare I get to tell a positive story about Virginia, but today we have one: It is now easier to build a solar farm in the county home to Charlottesville, one of my personal favorite small cities in our country.
Getting local with Matthew Eisenson of Columbia Law School’s Sabin Center for Climate Change Law.
This week’s conversation is with Matthew Eisenson at Columbia Law School’s Sabin Center for Climate Change Law. Eisenson is a legal expert and pioneer in the field of renewable energy community engagement whose work on litigating in support of solar and wind actually contributed to my interest in diving headlong into this subject after we both were panelists at the Society of Environmental Journalists’ annual conference last year. His team at the Sabin Center recently released a report outlining updates to their national project tracker, which looks at various facility-level conflicts at the local level.
On the eve of that report’s release earlier this month, Eisenson talked to me about what he believes are the best practices that could get more renewable projects over the finish line in municipal permitting fights. Oh — and we talked about Ohio.
The following conversation was lightly edited for clarity. Let’s dive in.
So first of all, walk me through your report. How has the community conflict over renewable energy changed in the U.S. over the past year?
A few things I would highlight. In Ohio, we now have 26 out of 88 counties that have established restricted areas where wind or solar are prohibited. These restrictions are explicitly enabled by the state law, SB 52. I’d also highlight that while the majority of litigation in our database is state-level litigation and contested case administrative proceedings, there are certain types of projects — particularly offshore wind — that have an extremely high prevalence of federal litigation. A majority of federally permitted offshore wind projects have been subject to federal lawsuits. The plaintiffs in these lawsuits have never succeeded on the merits, but they keep filing them and they drive up costs.
In general, as a topline takeaway, [our] report shows more and more of the same.
You personally do quite a bit of legal work on solar and wind permitting battles in the state of Ohio, where as you noted counties are curtailing deployment left and right. What’s your bird’s eye view of the situation in the state right now?
So Ohio has for years had a state-level siting process. The Ohio Power Siting Board reviews all applications for large-scale energy generation facilities, 50 megawatts or larger. The Siting Board has a set of criteria they are required to apply when they are reviewing an application, but basically only one of them seems to matter in deciding whether a project is approved or denied: whether the project serves the public’s convenience and necessity.
We’re seeing that in the majority of proceedings for approvals of large-scale wind and solar projects, there will be groups that intervene in opposition to the project, and often these groups will argue that there is so much local opposition that the project cannot possibly serve the public interest.
The Power Siting Board has been rejecting that argument in important cases recently. The board is still putting substantial weight on whether local governments are supportive or not supportive of a project, but are not rejecting projects just because of a demonstration of local opposition.
Say you’re a developer and you start facing opposition. What is the right legal avenue? How should they do the calculus, so to speak, on how to navigate legal options?
There’s numerous things developers can do. They can work with the local government and community-based groups to work with the local government to craft host community agreements, community benefit agreements — voluntary but binding contracts with the local community where a developer provides benefits; in exchange, community-based groups would agree to support the project, or at least not to oppose it. These can be very helpful and particularly meaningful in places where a local government itself is not in charge of permitting decisions themselves. So in a state like Ohio, if a developer negotiates host benefit agreements with local township governments and then those governments don’t turn around to intervene against a project, those would be extremely helpful.
It’s also important for developers to do community outreach and build a base of local supporters, and get those supporters to turn out at public meetings. Historically opponents of projects are more motivated to show up at a local meeting than supporters, but it’s really not a good look for a project when you have 500 turn out against it and 10 turn out to support.
For years the opponents were very proactive. There would be a proposal for a project in one county in Kansas and a group of opponents in the neighboring county would propose a restrictive ordinance to block future projects — supporters weren’t thinking proactively in the long-term. I think a concentrated effort will produce meaningful results. But they’re behind.