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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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Data centers are a big test for the nascent industry. But they also can’t fill the orderbooks.
For the last few years, there’s been just one story dominating the economy, Silicon Valley, and much of the climate tech world too: artificial intelligence. It has consumed investor’s time and money, leaving relatively little for the rest of the startup ecosystem. But for companies that can hitch themselves to the AI boom and tie their value proposition to the data center buildout, this narrow funding focus can be a tailwind.
The most obvious beneficiaries so far have largely fallen into two camps: startups using AI to build cheaper, better products or those developing technologies to cleanly power data centers themselves. But what about the companies actually manufacturing the physical materials behind these facilities? The data center buildout is ultimately an investment in the physical economy, which largely means an investment in concrete — the most widely used man-made material on Earth.
Cement, the key ingredient that binds concrete together, accounts for 8% of global CO2 emissions, and is a major driver of hyperscaler’s scope 3 emissions. Microsoft and Google’s recent sustainability reports, for example, reveal that their largest emissions category isn’t electricity but “capital goods,” which includes the embodied carbon in their physical assets and infrastructure such as the concrete, steel, server racks, and silicon used to build data centers.
Cement is a big part of that picture because producing it typically requires burning limestone in kilns at extremely high temperatures, a process that both uses large amounts of fossil fuels and releases CO2 through the underlying chemical reaction itself. So if hyperscalers are serious about decarbonization, one might expect them to be pretty interested in startups such as Brimstone, Sublime Systems, and Fortera, each of which is pursuing a different approach to reducing cement’s carbon footprint.
And they are interested. But that alone won’t fill these company’s orderbooks or offset the headwinds generated by the Trump administration rescinding previously obligated grants. That challenge has only been compounded by climate tech’s broader fall from favor as investors chase flashier, more explicitly AI-centric bets.
Still, Cory Waltrip, Sublime’s VP of business development, told me that data centers make a fantastic beachhead market for the company’s low-carbon cement, which it produces through an electrochemical process that eliminates the need for high-temperature kilns. Hyperscalers, he said, have both the market power and financial runway to think long-term about “the way that they’re signing agreements” and “how you can structure those agreements.” Of course, “the balance sheet and the amount of capital that they allocate towards sustainability commitments” doesn’t hurt either.
Last May, Microsoft signed an offtake agreement with Sublime to purchase up to 622,500 metric tons of cement from the company’s future demonstration plant in Holyoke, Massachusetts, as well as a yet-to-be-sited full-scale facility. The deal is unique because it doesn’t require Microsoft to actually use Sublime’s cement in its data centers. Since cement is expensive and impractical to ship long distances, what Microsoft really purchased is the cement’s so-called “environmental attributes,” allowing Sublime to sell the physical product to local customers while Microsoft gets to claim the associated emissions reductions.
It was one of the first deals in the cement industry to decouple the physical product from its environmental benefits. But that good news was quickly overshadowed. Just eight days later, Energy Secretary Chris Wright announced the cancellation of 24 awards from the DOE’s Office of Clean Energy Demonstrations, including a $87 million grant for Sublime and a $189 million grant for Brimstone. That sent Sublime into a tailspin: In December, it paused plans for its demo plant, and in March it laid off roughly two-thirds of its workforce. The company has since filed a suit in the court of federal claims, alleging that the DOE breached its contract with Sublime, but a resolution could take years.
All the cement-hungry data centers in the world would struggle to make up for the loss of that federal funding. Hyperscalers want to buy low-carbon cement from companies that already have a credible pathway to commercial production, not foot the bill for a first-of-a-kind plant.
So Sublime is now pursuing “alternative scale up plans” that don’t involve the Holyoke facility, with Microsoft remaining “a committed customer,” Waltrip said. The most promising option involves co-locating with existing but underutilized standard cement plants in North America or Europe. Doing so could reduce capital costs by roughly 20% to 40%, Waltrip told me. “We can use all of the existing crushing, grinding, finishing, and storage equipment that an existing cement plant already has.”
Building in Europe — something Sublime has yet to commit to but is certainly considering — could also open the door to other non-dilutive public financing, such as the bloc’s roughly €40 billion EU Innovation Fund, which regularly backs industrial decarbonization projects such as low-carbon cement.
In the meantime, the company also says it’s made significant process improvements that could drastically change the scale at which it builds plants. While former CEO Leah Ellis described Sublime’s future commercial facility as a “megaton-scale plant,” Sublime now thinks it could economically produce the material in 50,000 to 250,000 metric tons-per-year facilities. These smaller plants would be far easier to finance without relying on large government grants, Waltrip told me.
Sublime is exploring multiple other undisclosed data center engagements as well, as Waltrip revealed that “we’ve completed materials testing with at least one hyperscaler. We’ve completed a concrete demonstration pour with another hyperscaler,” and “we’ve negotiated or are in the process of negotiating commercial agreements with other hyperscalers beyond Microsoft.”
The company also conducted a small test pour of its low-carbon concrete last year with STACK Infrastructure, a data center developer that leases out its facilities. But while the material has exceeded performance standards, STACK is unlikely to become a customer anytime soon. “If we had a commercial plant ready to go, I think we would be having no issues with finding customers for that product,” Waltrip told me. The challenge is that developers outside the major hyperscalers typically lack the financial flexibility to sign long-term offtake agreements for a product that may not reach meaningful scale until the mid-2030s.
So for now, Google, Microsoft, Meta, and Amazon remain the most sought-after buyers.
Brimstone, another low-carbon cement company, also landed a major hyperscaler deal last year. The company, which still uses kilns but replaces limestone with carbon-free calcium silicate rocks in its production process, agreed to supply Amazon with an undisclosed amount of cement and supplementary cementitious materials, which can partially replace cement in concrete. CEO Cody Finke told me he couldn’t share any additional details, including the volume of materials reserved or when he expects deliveries to begin, though he readily acknowledges the impact of the data center boom.
“There’s no question that the data center buildout has increased the demand for these materials,” Finke told me. Early last year, the company announced that it’s also figured out how to adapt its process to produce alumina — the refined material that smelters turn into aluminum. Data centers also use this metal throughout their operations in structural panels, server racks, and cooling systems. Eventually, the company says it will be able to make additional critical minerals and materials including steel, magnesium, and titanium.
For now though, Brimstone is working to complete construction of its demo plant in Reno, Nevada, which the company recently said it expects to be operational in 2028. Finke was somewhat more cautious, however, telling me only that it should come online by “the end of the decade.” The company’s first full-scale plant, the location of which it’s yet to announce, is slated to begin operations around 2034, producing 350,000 metric tons of alumina and an undisclosed amount of cement and other materials.
But like Sublime, Brimstone also lost a major source of federal support when the Trump administration rescinded its $189 million DOE grant, which was intended to finance construction of the demo plant. Finke, however, insisted this hasn’t altered the company’s timeline because Brimstone, having netted over $80 million to date, “had effectively raised the money that we needed, regardless of the grant.”
Finke isn’t relying on the goodwill of hyperscalers either, even though many do appear willing to pay a green premium in order to align with their ambitious, if flailing, decarbonization agendas. “To be frank, I don’t think that it’s that important to the transition whether or not those climate policies exist, because the companies that really matter are going to be cheaper anyway,” he told me.
Brimstone, he argues, is one of those companies. By co-producing multiple products at once, each can effectively offset the cost of the others, and Finke expects even the cement produced at the Reno demo plant to sell at standard market rates. Ultimately, while he sees growth in the data center industry as a tailwind, he doesn’t think Brimstone depends on that market, noting these facilities still only account for a small sliver of global cement demand. The company’s primary customers, he said, will ultimately be traditional buyers: concrete producers purchasing cement and aluminum smelters buying alumina.
Yet data centers willing to negotiate multi-year contracts still represent uniquely valuable first customers in an industry where such agreements are exceedingly rare. Instead, producers typically sell cement into a merchant spot market, where buyers purchase from whatever supplier meets their myriad requirements at the time. But that leaves low-carbon materials startups in a bind, Fortera’s CEO Ryan Gilliam told me. “When you’re trying to bring a new technology to market like us, you typically use offtake agreements to get project financing to justify building up big projects,” he explained. Potential investors simply want to see demonstrated future demand.
Fortera, which has raised about $150 million and has an operational pilot plant in California, captures the CO2 emitted from conventional cement production and converts it into a mineral form that then becomes part of the cement itself. Last year, it secured a strategic investment from Microsoft’s Climate Innovation Fund to help finance its first commercial-scale facility, expected to produce 400,000 tons of cement per year. In return, the tech giant secured the right to procure Fortera’s low-carbon cement and its associated environmental attribute certificates — more of a reservation than the binding offtake contract it signed with Sublime.
Just one plant of this size “would meet all the hyperscalers’ needs easily,” Gilliam told me, underlining Finke’s point that data centers will by no means represent a cement company’s largest buyer long-term. “Most hyperscalers, you’re talking maybe upwards of 100,000 tons a year of requirements around cement, and that might even be at the upper end,” Gilliam explained. By comparison, standard cement plants typically produce about a million tons of product annually.
So while Gilliam and others are happy to ride the AI boom, they also recognize that data centers are likely more valuable as an early market signal than a long-term source of demand. Even now, it remains unclear whether the boom is even a net positive for the sector as a whole.
“The number of AI startups and the amount of money that’s been diverted into that space definitely changed the pool of investors that you can go to right now,” Gilliam told me. And that’s the core paradox. The data center boom has become one of the clean cement industry’s most promising early markets and one of its fiercest competitors for capital. Welcome to the AI economy.
The energy developer is backing off after a Heatmap report.
Clearway says it is backing off its plans to build a data center and gas power plant on federal land, days after Heatmap revealed the energy developer’s proposal.
Last week, I reported that Clearway asked the Trump administration’s Bureau of Land Management to swap a five year-old application for a solar farm’s permits with “a proposed data center and natural gas facility.” Clearway’s chief development officer John Woody had written in a letter to BLM dated April 3 that the swap was “the result of a shift in our internal development priorities” and intended “to better align with the goals of our Administration.” He also noted the plans were in “exploratory early stages.”
This news fit a trend. I obtained Clearway’s letter right after reporting on a different solar project on federal land that was being swapped for a data center. But it turns out, the company’s internal thinking continued to shift: on Friday, they reached out to me saying they are now nixing the data center and gas plant, after concluding it wasn’t the right call for their business.
“Since our initial filing, we’ve evaluated how to make the best use of this public land in a way that serves its intended purpose: the public interest. As a clean energy developer and operator, our focus in Nevada remains solar and battery storage,” Clearway said in a statement it provided to me from an unnamed spokesperson. “We are in the process of amending our application to reflect the state’s growing demand for low-cost, reliable energy.”
In addition, Clearway on Monday sent a letter to BLM formally alerting the agency it has no plans to build the data center, which it also provided to me.
When I first broke news of Clearway’s plans, I said it was an apparent aberration – they oversaw relatively few fossil projects and had never worked in data centers. I chalked this pivot up to yet another energy developer changing its tune with the winds of national politics. Now that the company is apparently sticking to its guns, I’m mostly just left wondering what happened here – and relieved some still remain committed to zero-emissions power in the booming business of electrons.
On ‘draconian’ water cuts, Tesla’s China business, and Italian nuclear
Current conditions: Slow-moving storms are set to pour rain on the American Northeast, drenching New York City • Temperatures in Phoenix are to top 113 degrees Fahrenheit for the next two days before the heat dome starts to ease • Across China, 11 weather stations broke their August hottest records.

Washington State officials ordered thousands to evacuate parts of Spokane over the weekend as “home after home caught fire and exploded into flames along with trees” as winds of up to 45 miles per hour fanned a “wall of flames,” according to The Spokesman-Review. Governor Bob Ferguson activated the National Guard to battle against what the newspaper called one of Spokane’s worst natural disasters in history. Major Gen. Gent Welsh, the adjutant general in charge of Washington’s Air and National Guard forces, said the fire conditions eclipsed anything he’d seen in his 38-year career. “When the sun sets and the sun rises, we are going to be in shock,” Welsh said at a news conference. By Sunday, more than 640 homes had been reduced to charred ash. Tom Clemo, the incident commander leading the firefighting effort, said it would take days to assess just how many properties were lost. “Probably the largest, most destructive fire in Washington’s history occurred yesterday afternoon,” he told the paper. The Pacific Northwest has been primed for a big fire since at least last year, as my colleague Jeva Lange, a native daughter of the region, wrote last year.
The Trump administration’s final plan to relieve the drought-parched Colorado River over the next decade puts Arizona first in line to slash its use of the freshwater. The proposal, finalized on Friday, departs from the decades-long rules that traditionally governed how the water was divided between states, according to E&E News. Instead, the Department of the Interior is set to issue smaller plans every two years to decide how the water supply is distributed. “This framework provides the flexibility to respond to changing hydrologic conditions while preserving the opportunity for the Basin States to continue working toward durable, consensus-based solutions,” Secretary of the Interior Doug Burgum said in a statement. But Arizona Governor Katie Hobbs, a Democrat, said the plan is filled with “unacceptable options that include the federal government forcing Arizona to take the majority of draconian water cuts.”
When Tesla entered the Chinese market, billionaire CEO Elon Musk designed the division to be easily separated from the U.S. business in case of geopolitical tensions. Now The Wall Street Journal is reporting that Musk is exploring a sale of the unit to clear the way for a merger between his electric auto giant and SpaceX, his rocket and satellite enterprise. “Obviously we can’t talk about, you know, combining companies and that kind of thing on earnings calls,” Musk told investors last week. “It [has] got to be done with the appropriate process.” On X, Musk — who has routinely beefed with the nation’s leading financial newspaper — called the story “fake news.” But the timing is notable. As Heatmap contributor Andrew Moseman wrote last month, China — along with Europe — has been fueling a resurgence in Tesla’s sales.
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American Electric Power has outbid a data center developer to buy a coal plant in West Virginia, the Financial Times reported last week. The utility inked a deal to buy the Longview coal plant located along the state’s northern border with Pennsylvania. The name of the data center company was not included in the story, but sources told the reporter Martha Muir it was a “household name” and a “competitive bidding process.” As I told you in June, the Trump administration is betting $850 million on a coal revival. But my colleague Matthew Zeitlin explained last year what the bigger problem is: Even the plants that get funding to stay open keep breaking down.
Base Power, one of the nation’s largest developers of residential battery storage, is raising money on a $13 billion valuation, The Wall Street Journal reported Monday. Co-founded by CEO Zach Dell, son of computer magnate Michael Dell, the three-year-old company’s model is to deploy tens of thousands of batteries at homes and tap those units to balance out the grid. “We have so much to do and so much room to grow, and we’re very early in the scope of the opportunity,” Dell said.
A mining company says it’s found America’s largest deposit of tungsten, a key metal needed for ammunition and weapons production. But NASA is blocking development of the resource in eastern Nevada. The problem, the Financial Times reported, is that “a third of the company’s claim covers a unique region used to track signals beamed to Earth by satellites in space,” cautioning that mining could disrupt the operations.