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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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On storm damage, the Strait of Hormuz, and Volkswagen’s robotaxi
Current conditions: A dangerous heat dome is forming over central states today and will move progressively eastward over the next week • Wildfire warnings have been issued in London • Typhoon Wutip brought the worst flooding in a century to China’s southern province of Guangdong.
Hurricane Erick made landfall as a Category 3 storm on Mexico’s Pacific coast yesterday with maximum sustained winds around 125 mph. Damages are reported in Oaxaca and Guerrero. The storm is dissipating now, but it could drop up to 6 inches of rain in some parts of Mexico and trigger life-threatening flooding and mudslides, according to the National Hurricane Center. Erick is the earliest major hurricane to make landfall on Mexico's Pacific coast, and one of the fastest-intensifying storms on record: It strengthen from a tropical storm to a Category 4 storm in just 24 hours, a pattern of rapid intensification that is becoming more common as the Earth warms due to human-caused climate change. As meteorologist and hurricane expert Michael Lowry noted, Mexico’s Pacific coast was “previously unfamiliar with strong hurricanes” but has been battered by epic storms over the last two years. Acapulco is still recovering from Category 5 Hurricane Otis, which struck in late 2023.
AccuWeather
An oil tanker collision near the Strait of Hormuz is raising environmental and security concerns. The accident in the Gulf of Oman involved the Adalynn and Front Eagle tankers. It caused a “small oil spill,” according to the Emirati government, but Greenpeace analyzed satellite images and said the oil plume stretches some six square miles from the collision site. “This is just one of many dangerous incidents to take place in the past years,” said Greenpeace campaigner Farah Al Hattab. The Strait of Hormuz is a choke point for oil shipments, with about one-third of the volume of crude exported by sea moving through that route. Oil prices have been on a roller coaster ride since Israel launched airstrikes against Iran on June 13. Ships in the region have been reporting more GPS navigation interference in recent days. “If the conflict continues, we expect these interferences to continue as well,” Jean-Charles Gordon, senior director of ship tracking at research firm Kpler, toldThe New York Times.
North Carolina lawmakers finalized a bill repealing a mandate that directs electric regulators to reduce their carbon dioxide emissions by 70% by 2030. The mandate was part of a landmark 2021 law aimed at dramatically reducing the state’s power plant emissions. While at least 17 other states have similar laws in place, just two – North Carolina and Virginia – are in the Southeast. The new bill’s supporters say that the interim emissions goal would require energy providers to switch to more expensive power sources and that the costs would be passed on to consumers in the form of higher power bills.
Confusingly, regulators would still be asked to work toward carbon neutrality by 2050, even while the short-term emissions goal might be nixed. “Not having any target, even an aspirational target, could mean that we don’t stay on track to get to our 2050 goal,” Democratic Sen. Julie Mayfield said. The bill now goes to Democratic Gov. Josh Stein’s desk. There’s a chance he might veto it, but “with over a dozen House and Senate Democrats voting for the final version, the chances that any Stein veto could be overridden are higher,” The Associated Pressreported.
The United Kingdom issued long-awaited environmental guidance that it will use to determine whether new oil and gas proposals should be approved. The guidance requires that developers estimate and include scope 3 emissions – or the downstream pollution from burning oil and gas – in their drilling applications. This “will ensure the full effects of fossil fuel extraction on the environment are recognized in consenting decisions,” the Department for Energy Security and Net Zero said. The government will consider these emissions, as well as other factors like “the potential economic impact” of a project and a company’s efforts to remove carbon dioxide when granting or denying approval. The guidance will help determine whether major new drilling projects from oil giants Shell and Equinor are approved for the North Sea.
Volkswagen Group unveiled its first fully autonomous production vehicle, the ID. Buzz AD. The electric robotaxis will target corporate customers and mobility services. They “come packed with everything that’s needed to operate them,” explained Iulian Dnistran at InsideEVs. “What makes this solution interesting compared to other ride-hailing platforms is that it enables anybody to start an Uber or Waymo rival without investing hundreds of millions of dollars in research, development, and certification.” The shuttles are slated for launch across Europe and the U.S. next year. Tesla recently announced that its first Robotaxis would hit the streets in Austin, Texas, sometime this month.
Volkswagen
In a new peer-reviewed paper published in the journal Communications Earth & Environment, researchers conclude that offsetting the potential carbon emissions from reserves held by the world’s 200 largest fossil fuel companies would require planting new forests that are larger than the entire continent of North America.
The energy secretary's philosophy is all over the Senate mega-bill.
As the Senate Finance Committee worked on its version of the reconciliation bill that would, among things, overhaul the Inflation Reduction Act, there was much speculation among observers that there could be a carve out for sources of power like geothermal, hydropower, and nuclear, which provide steady generation and tend to be more popular among Republicans, along the lines of the slightly better treatment received by advanced nuclear in the House bill.
Instead, the Senate Finance Committee’s text didn’t carve out these “firm” sources of power, it carved out solar and wind, preserving tax credits for everything else through 2035, while sunsetting solar and wind by 2028.
For much of the last few months — and for years before he was sworn in as Secretary of Energy — Chris Wright has been expounding on his philosophy of energy and climate. If anything, the Senate Finance draft seems to hew closer to Wright’s worldview than Trump’s, which is less specific, even more critical of renewables (especially wind), and largely in favor of nuclear power when it comes to non-carbon-emitting generation.
“I’m sure Secretary Wright’s strong support for firm technologies over the past few months played a role in Chairman Crapo’s approach to energy tax credit reform,” Pavan Venkatakrishnan, an infrastructure fellow at the Institute for Progress, told me.
Wright argues that climate change is real but not a top-tier concern and that it certainly should not be addressed by restricting energy usage, which he sees as foundational to the good life here and abroad.
And among energy sources, the former fracking executive is no opponent of fossil fuels but is also enthusiastic about energy innovation.
In his company Liberty Energy’s Bettering Human Lives report, published last year, which doubles as a kind of manifesto, Wright wrote that “viable paths to reducing greenhouse gas (GHG) emissions can only come from reliable and affordable low-carbon energy technologies,” and specifically listed next-generation nuclear and geothermal, which Liberty had invested in through the geothermal company Fervo and nuclear company Oklo.
“To achieve largescale human betterment, we will need significant future energy additions from nuclear, hydropower, geothermal, and all other viable energy technologies,” the report read.
And he’s often been skeptical of renewables along the lines of many Congressional Republicans, that they aren’t reliable enough and require additional resources to fully support the grid.
“Maybe the biggest problem is intermittency,” Wright said at a Liberty Energy event last year.
“You can build a lot of wind and solar, and then at night, the sun’s not shining and then sometimes the wind doesn’t blow, and you have no energy. So to keep society running, you have to have a whole second separate energy system,” Wright said.
In testimony to the House of Representatives last week, Wright said “If you’re not there at peak demand, you’re just a parasite on the grid, because you just make the other sources turn up and down as you come and go.”
Many critics of the Republican reconciliation bills have noted that much of the electricity generation pipeline is solar, wind, or storage, and so cutting off their tax credits risks leaving the country at an energy shortage while gas turbines take years and years to actually get on the grid.
But as Congress was working on the reconciliation bill, Wright made a series of widely noted public appearances where he promoted clean firm power and continued government support for it.
“My recommendation has been to leave behind the equivalent of the wind and solar tax credits — through if you start construction by 2031 — for nuclear fission and fusion and geothermal,” Wright said at an event earlier this month.
In May, Wright addressed the Nuclear Energy Institute, outlining his support for sunsetting wind and solar tax credits will working to kickstart nuclear power. “My personal goal would be to much more rapidly sunset the technologies that have been around and have been living on decades of subsidies,” Wright said. He also supported a “window” of “favorable treatment” for nuclear and geothermal.
“I’m in favor of every nudge, every incentive we can get from the federal government to restart this industry,” Wright said.
While Wright has been skeptical of wind and solar and optimistic about nuclear and geothermal for years, he’s also started talking more positively about energy storage. In the past, he’s talked up hydrocarbons for “coming with their own storage,” as he put it in a 2018 podcast.
But at an appearance at ARPA-E in March, Wright gave some of his most extended thoughts on energy storage, which sits somewhat awkwardly between variable resources like solar and wind and firm resources like nuclear and geothermal.
“Solar is growing very fast, getting more efficient and taking panels, cheaper materials and developing energy,” Wright said. “The biggest problem there is the sun doesn’t always shine, and we don’t know when clouds are going to come and when it’s not going to shine, but if we can get energy storage better, that’s a game changer.”
At least until 2035.
When I reached out to climate tech investors on Tuesday to gauge their reaction to the Senate’s proposed overhaul of the clean energy tax credits, I thought I might get a standard dose of can-do investor optimism. Though the proposal from the Senate Finance committee would cut tax credits for wind and solar, it would preserve them for other sources of clean energy, such as geothermal, nuclear, and batteries — areas of significant focus and investment for many climate-focused venture firms.
But the vibe ended up being fairly divided. While many investors expressed cautious optimism about what this latest text could mean for their particular portfolio companies, others worried that by slashing incentives for solar and wind, the bill’s implications for the energy transition at large would be categorically terrible.
“We have investments in nuclear, we have investments in geothermal, we have investments in carbon capture. All of that stuff is probably going to get a boost from this, because so much money is going to be flowing out of quote, unquote, ‘slightly more established’ zero emissions technologies,” Susan Su, a climate tech investor at Toba Capital, told me. “So we’re diversified. But for me, as a human being, and as somebody that cares about climate change and cares about having an abundant energy future, this is very short-sighted.”
Bigger picture aside, the idea that the Senate proposal could lead to more capital for non-solar, non-wind clean energy technologies was shared by other investors, many of whom responded with tentative hope when I asked for their thoughts on the bill.
“The extension of the nuclear and geothermal tax credits compared to the House bill is really important,” Rachel Slaybaugh, a climate tech investor at DCVC, told me. The venture firm has invested in the nuclear fission company Radiant Nuclear, the fusion company Zap Energy, and the geothermal startup Fervo Energy. As for how Slaybaugh has been feeling since the bill’s passage as well as the general sentiment among DCVC’s portfolio companies, she told me that “it's mostly been the relief of like, thank you for at least supporting clean, firm and bringing transferability back.”
Indeed, the proposed bill not only fully preserves tax credits for most forms of zero-emissions power until 2034, but also keeps tax credit transferability on the books. This financing mechanism is essential for renewable energy developers who cannot fully utilize the tax credits themselves, as it allows them to sell credits to other companies for cash. All of this puts nascent clean, firm technologies on far more stable footing than after the House’s version of the bill was released last month.
Carmichael Roberts of Breakthrough Energy Ventures echoed these sentiments via email when he told me, “the Senate proposal is a meaningful improvement over the House version for clean energy companies. It creates more predictability and a clearer runway for emerging technologies that are not yet fully commercial.” Breakthrough invests in multiple fusion, geothermal, and long-duration energy storage startups.
Amy Duffuor, co-founder and general partner at Azolla Ventures, also acknowledged in an email that it’s “encouraging” that the Senate has “seen the way forward on clean firm baseload power.” However, she issued a warning that the unsettled policy environment is leading to “material risks and uncertainties for start-ups reliant on current tax incentives.”
Solar and wind are by far the most widely deployed and cost-competitive forms of renewable energy. So while they now mainly exist outside the remit of venture firms, there are numerous climate-focused startups that operate downstream of this tech. Think about all the software companies working to optimize load forecasting, implement demand response programs, facilitate power purchase agreements, monitor grid assets, and so much more. By proxy, these startups are now threatened by the Senate’s proposal to phase out the investment and production tax credits for solar and wind projects beginning next year, with a full termination after 2027.
“I think solar and wind will survive. But it's going to be like 80% of the deals don't pencil for a long time,” Ryan Guay, co-founder and president of the software startup Euclid Power, told me. Euclid makes data management and workflow tools for renewable project developers, so if the tax credits for solar and wind go kaput, that will mean less business for them. In the meantime though, Guay expects to be especially busy as developers rush to build projects before their tax credit eligibility expires.
As Guay explained to me, it’s not just the rescission of tax credits that he believes will kill such a large percent of solar and wind projects. It’s the combined impact of those cuts, the bill’s foreign entity of concern rules restricting materials from China, and Trump’s tariffs on Chinese-made components. “You’re not giving the industry enough time to actually build that robust domestic supply chain, which I agree needs to happen,” Guay told me. “I’m all for the security of the grid, but our supply chains are already very constrained.”
Many investors also expressed frustration and confusion over why Senate Republicans, and the Trump administration at large, would target incentives for solar and wind — the fastest growing domestic energy sources — while touting an agenda of energy dominance and American leadership. Some even used the president’s own language around energy issues to deride the One Big Beautiful Bill’s treatment of solar and wind as well as its repeal of the electric vehicle tax credits.
“The rollbacks of the IRA weaken the U.S. in key areas like energy dominance and the auto industry, which is rapidly becoming synonymous with the EV industry,” Matt Eggers, a managing director at the climate-tech investment firm Prelude Ventures, wrote to me in an email. “This bill will still ultimately cost us economic growth, jobs, and strategic positioning on the world stage.”
“The only real question is, are we going to double down on the future and on American dynamism?” Andrew Beebe, managing director at Obvious Ventures, asked in an emailed response. “Or are we going to cling to the past by trying to hold back a future of abundant, clean, and affordable energy?”
Su wanted to focus on the bigger picture too. While the Senate’s proposal gives tax credits for solar and wind a much longer phaseout period than the House’s bill — which would have required projects to start construction within 60 days of the bill’s passage and enter service by 2028 — Su still doesn’t think the Senate’s version is much to celebrate.
“The specific changes that came through in the Senate version are really kind of nibbling at the edges and at the end of the day, this is a huge blow for our emissions trajectory,” Su told me. She’s always been a big believer that there’s still a significant amount of cutting edge innovation in the solar and wind sectors, she told me. For example, Toba is an investor in Swift Solar, a startup developing high-efficiency perovskite solar cells. Nixing tax credits that benefit the solar industry will hit these smaller players especially hard, she told me.
With the Senate now working to finalize the bill, investors agreed that the current proposal is certainly not the worst case scenario. But many did say it was worse than they had — perhaps overly optimistically — been holding out for.
“To me, it's really bad because it now has a major Senate stamp of approval,” Su told me. The Senate usually tempers the more extreme, partisan impulses of the House. Thus, the closer a bill gets to clearing the Senate, the closer it usually is to its final form. Now, it seems, the reconciliation bill is suddenly feeling very real for people.
“At least back between May 22 and [Monday], we didn't know what was going to get amended, so there was still this window of hope that things could change more dramatically." Su said. Now that window is slowly closing, and the picture of what incentives will — and won’t — survive is coming into greater focus.