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The small hydrogen plant at the Port of Stockton illustrates a key challenge for the energy transition.
Officials at the Port of Stockton, an inland port in the Central Valley of California, were facing a problem. Under pressure from California regulators to convert all port vehicles to zero-emissions models over the next decade or so, they had made some progress, but had hit a wall.
“Right now we only have one tool, and that is to electrify everything,” Jeff Wingfield, the port’s deputy director, told me. The Port of Stockton has actually been something of a national leader in electrifying its vehicles, having converted about 40% of its cargo-handling equipment from diesel-powered to battery-electric machines to date. But there aren’t electric alternatives available for everything yet, and the electric machines they’ve purchased have come with challenges. Sensors have malfunctioned due to colder weather or moisture in the air. Maintenance can’t be done by just any mechanic; the equipment is computerized and requires knowledge of the underlying code. “We’ve had a lot of downtime with the equipment unnecessarily. And so when we’re trying to sell that culture change, you know, these things can set back the mindset and just the overall momentum,” said Wingfield.
The port also needs its tenant companies to make the switch, but according to Wingfield, they are hesitant to invest in the electric truck models available today. They’re more interested in hydrogen fuel-cell trucks, he said, which are also zero-emissions, and there’s even a vendor selling them right down the street. The problem was there was no source of hydrogen within an hour and a half of the port.
It was these conditions that got Wingfield and his colleagues excited about BayoTech, a company that wanted to build a new hydrogen plant there — even though BayoTech was going to make hydrogen from methane, the main component of natural gas, in a carbon emissions-intensive process. Hydrogen fuel-cell powered trucks don’t release any of the carbon or toxic pollutants that diesel trucks release, but the process of making the hydrogen fuel can still be dirty.
While the port was considering BayoTech’s proposal, California leadership was committing the state to building out a climate-friendly hydrogen industry. In July, the Biden administration awarded California $1.2 billion for a $12.6 billion plan to build new, zero-emissions hydrogen supply chains. “California is revolutionizing how a major world economy can clean up its biggest industries,” Governor Gavin Newsom said. “We’re going to use clean, renewable hydrogen to power our ports and public transportation – getting people and goods where they need to go, just without the local air pollution.”
Nonetheless, the port approved the fossil fuel-based hydrogen plant in August.
The case illustrates the complexities of this moment in the energy transition. At its center is a question: Should we gamble with higher emissions today on the premise that it could help lower emissions in the future? It’s a gamble that many climate advocates, guided by warnings from scientists about the consequences of continued fossil fuel use, fear will do more harm than good.
The port, which was the lead agency for the environmental review process, estimated that if all of the fuel BayoTech produced was used as a replacement for diesel, it would result in a net decrease in emissions of 4,317 metric tons of CO2 per year, which is like taking 1,000 cars off the road. Still, the plant will emit about 18 kilograms of carbon for every kilogram of hydrogen it produces — more than four times higher than the Department of Energy’s standard for “clean” hydrogen.
Climate and environmental groups in Stockton oppose the project. They’ve raised a number of concerns about it and the conditions under which it was approved, but one is the missed opportunity. “At a time when incentives are lining up for cleaner production methods,” Davis Harper, the carbon and energy program manager at the local group Restore the Delta, told me, “and at a time when the state in particular is really trying to transition away from methane, to approve a new steam methane reforming project in a community that’s already suffering from so many cumulative impacts of industrial pollution — it’s a major regression.”
Between operations at the port, highways, warehouses, and other industrial activity, Stockton ranks in the 96th percentile for pollution burden in California, and in the 100th percentile for cases of asthma. In addition to carbon dioxide, the BayoTech plant will release nitrogen oxides, carbon monoxide, and particulate matter. Harper and other local advocates want the community to have more of a say in shaping regional economic development and defining what its hydrogen future looks like. “I think it puts a stain on what the opportunity for hydrogen might be in the community,” he said.
But Wingfield told me it wasn’t an either/or scenario. “I mean, nobody was approaching us with a green hydrogen project,” he said. Even if someone was, Wingfield said green hydrogen was still too expensive and that no one would buy it. The port is supporting state-wide efforts to develop a more sustainable supply of hydrogen in the future, he said, “but it is slow, and for us, we need something now.”
There’s a chicken-and-egg challenge to getting a clean hydrogen economy going. In addition to a new supply of fuel, it will require investments in new vehicles, fueling stations, and modes of delivering the gas — and that’s just for trucking. Decarbonization experts also see potential to use hydrogen for cargo ships, steelmaking, and aviation. “I agree, you know, don’t wait around for the green projects that are being planned to come online,” Lew Fulton, the director of the energy futures research program at the U.C. Davis Institute of Transportation Studies, told me. “There’s a whole bunch of things we need to learn by doing. And so from that point of view, you could argue, well, in the first few years, it doesn’t matter that much what kind of hydrogen it is.”
When I asked Catharine Reid, BayoTech’s chief marketing officer, what brought the company to Stockton, she told me California is a key market and the San Joaquin Valley is currently a dead-zone for the fuel. The Regional Transit District recently purchased five new fuel-cell buses, but to fuel them, it will have to truck in hydrogen from other parts of the state. BayoTech’s business model is designed to address this kind of local need. The company builds small, modular plants and sites them as close to the point of consumption as possible to avoid the cost and emissions associated with transporting the fuel. The project in Stockton will produce just 2 tons of hydrogen per day, or enough to fill the tanks of about 50 trucks. By contrast, the average hydrogen plant in California, which mostly delivers the gas to oil refineries and fertilizer plants, produces closer to 200 tons per day. “We anticipate that that demand will be snapped up quickly,” said Reid.
The port approved the plant using an abbreviated environmental review process — another aspect that troubled the advocates I spoke to — which required BayoTech to mitigate some of its most significant impacts. To reduce pollution, the company will install equipment that cuts the plant’s nitrogen oxide emissions. It has also committed to using zero-emissions vehicles for at least 50% of deliveries. But the biggest pollutant that will come out of the plant is carbon dioxide — just over 12,000 metric tons of it per year. That’s not much compared to the average hydrogen plant. The smallest existing hydrogen plant in California, Air Products’ Sacramento facility, has the capacity to produce more than twice as much hydrogen as BayoTech will, but emitted nearly four times as much carbon in 2021, according to state data. One of BayoTech’s selling points is its technology’s efficiency.
The company has also committed to developing a community benefits plan, which is still in the works, though BayoTech has already signed an agreement to use local union labor and committed to donate $200,000 over the next four years to the community.
Part of BayoTech’s agreement with the port is that it will lower its emissions by purchasing carbon credits from producers of so-called “renewable natural gas,” or RNG, which can mean methane captured from landfills or from cow manure pits. It’s considered low-carbon because the methane would otherwise be released into the atmosphere, where it would warm the planet far more than carbon dioxide. In theory, credit sales help finance systems to capture the gas and use it for energy instead.
I asked Reid why, when there was so much focus on and funding available for clean hydrogen, like California’s $12.6 billion initiative and lucrative new federal tax credits, the company was investing in the fossil-fueled kind. She suggested that once the federal tax credit rules are finalized, the plant may in fact be eligible for the subsidies. That’s because the guidelines might allow hydrogen plants that buy RNG credits to qualify. “It’s a well established system that’s validated,” Reid said of the credits, “and the environmental benefits are there.”
It’s true that this system of RNG credits is well-established. It’s already written into California climate policy. The state has a low carbon fuel standard designed to drive down the average carbon intensity of transportation fuels over time. When it comes to calculating the carbon intensity of hydrogen for the regulations, there’s a workaround. If the hydrogen is made from natural gas, but the supplier purchases RNG credits, they can report their hydrogen as having a very low or even negative carbon intensity.
But the environmental benefits of these credits are the subject of much debate. Notably, fuel producers can buy credits from all over the country, and they don’t have to prove that their purchase had an additional effect on emissions beyond what might have happened otherwise. Though these credits may have some environmental benefit, they are certainly not causing carbon to be removed from the atmosphere, as implied by a negative carbon intensity. In an op-ed for Heatmap, scholars Emily Grubert and Danny Cullenward urged the Treasury Department not to adopt this same carbon accounting scheme for the federal tax credit, writing that it “would undermine the tax credit’s entire purpose.” They estimate that a fossil hydrogen project could qualify as zero-emissions by offsetting just 25% of its natural gas use. This could make it much harder for truly green hydrogen — like the kind made from electricity and water — to compete.
Interestingly, California’s new $12.6 billion clean hydrogen initiative appears to renounce RNG credits. A frequently asked questions page for the plan says that it “will not include the use of plastics, dairy biogas, or fossil methane paired with biomethane credits.”
Still, the California Governor’s Office of Business and Economic Development praised the BayoTech project in public comments, writing that it would “contribute to achieving California’s ambitious climate and pollution reduction goals.”
The letter seemed to be mistaken about what it was supporting, however, noting that the facility would “utilize woody biomass, helping to address two needs — utilization of a waste stream and production of renewable hydrogen.” When I reached out to the governor’s office, spokesperson Willie Rudman told me the reference to woody biomass was an accident, “resulting from a mix-up with another project.” Still, the office supports the project, he said, due to “commitments made by the developer to utilize renewable natural gas as the feedstock, which can be transported to the production facility via existing natural gas pipelines.”
When I noted that this, too, was a mix-up, and that BayoTech would be buying RNG credits, not using the fuel directly, Rudman responded that this was a cost-effective and perfectly acceptable practice under California’s low-carbon fuel standard.
If you view BayoTech’s plant as a bridge to get the hydrogen economy underway, Ethan Elkind, director of the climate program at the University of California, Berkeley’s Center for Law, Energy and the Environment, told me, it’s important to know how to get to the other side. “Is this just a lifeline for the oil and gas industry, to give them another product that they can sell, which those profits then go back into drilling more oil and gas?” He said he wasn’t categorically opposed to the idea of using natural gas to produce hydrogen for now, as long as there were built-in mechanisms to convert the facility to zero-emissions down the line.
Wingfield of the Port of Stockton asserted that BayoTech’s plant would become cleaner over time, but the port has no such commitment in writing, and it’s also not entirely clear how. BayoTech’s Reid was not sure whether the Stockton plant would find a local source of RNG. She said the company was looking, but that it was rare to find alignment between BayoTech’s business model — putting hydrogen production very close to demand — and RNG suppliers. The only other route to cleaner production, other than completely replacing the plant with one that runs on electricity, would be to install carbon capture equipment. But Reid said the amount of carbon the plant produces will be so small that it may not justify the expense. “We continue to talk to players in the industry and evaluate what they’re bringing out commercially to see if there’s a match with our production units,” she said.
Construction on the plant will begin in a few months, Reid told me, and won’t take long. BayoTech expects to be delivering hydrogen in 2025.
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On a major energy acquisition, carbon cycle cash, and a cheaper EV
Current conditions: Hurricane Imelda hit Bermuda as a Category 2 storm • Storm Amy, the first named UK storm of the season, will bring heavy rains and wind to Scotland, England, and Wales on Friday • Sudan’s Ministry of Agriculture declared a state of emergency this week after the Nile River rose to record levels.
The Department of Energy said on Wednesday that it is terminating 321 grants supporting 223 projects, cutting a total of more than $7.5 billion in funding for clean energy projects. While the Department has not yet specified what the awards were, Office of Management and Budget Director Russ Vought posted to social media yesterday that the canceled projects were located across 16 Democrat-led states. An administration official told Bloomberg that at least two of the projects in question were hydrogen “hubs” under development in California and the Pacific Northwest. The cuts come on top of $13 billion in climate funds that had not yet been dedicated to specific projects that the Department of Energy said it would “return” in late September, as instructed by the reconciliation bill.
The Department of Energy has left the recipients of billions in obligated funds for climate projects in limbo since Trump took office. Secretary of Energy Chris Wright said the agency was “reviewing” the awards in May. He testified in Congress that his office would make a decision about many of them by the end of the summer, but this week’s terminations — amid the government shutdown — are the first announcement the agency has made since an initial batch of cuts at the end of May.
The Trump administration said Wednesday that it is putting $18 billion in funding for New York City transit projects on hold while it investigates violations of a rule barring diversity considerations in hiring that the Department of Transportation published on Tuesday. “The timing is, shall we say, noteworthy,” my colleague Matthew Zeitlin wrote on Wednesday, “not least because the Democrats’ two top congressional negotiators — Representative Hakeem Jeffries and Senator Chuck Schumer — are both from New York.” In a statement, Secretary of Transportation Sean Duffy blamed those two lawmakers for the shutdown, lamenting that thanks to them, “USDOT’s review of New York’s unconstitutional practices will take more time.”
Blackrock-owned Global Infrastructure Partners, an investment fund, is in talks to buy energy developer AES for more than $38 billion in “what would be one of the largest infrastructure takeovers of all time,” according to the Financial Times. AES owns utilities in Ohio and Indiana in addition to owning both conventional and renewable energy generation projects across the globe. The company is also the top supplier of renewable energy to corporate buyers in the world. AES stock jumped nearly 17% on Wednesday on the news.
A new report from the Union of Concerned Scientists found that residential customers in seven states that are part of the PJM Interconnection, an electricity market that covers the Mid-Atlantic and parts of the Midwest, are paying nearly $4.4 billion for transmission upgrades intended to deliver electricity to data centers. The finding is not a big surprise — PJM’s own Market Monitor has acknowledged that data center load growth is the primary factor driving up rates. But the report specifically analyzes the amount the whole ratebase is shelling out for transmission projects that only benefit a single customer. It recommends that the Federal Energy Regulatory Commission create a new customer class for such customers and require them to shoulder the cost alone.
Trump has slashed millions in grants for climate science research and plans to cut the federal government’s climate science funding and staff dramatically in next year’s budget. Stepping in to replace some of that lost cash is Schmidt Sciences, a philanthropy founded by former Google CEO Eric Schmidt. Schmidt announced Thursday that it’s committing up to $45 million over five years for research to advance understanding of some of the least-studied parts of the global carbon cycle. For example, one project will measure how much carbon dioxide the Southern Ocean absorbs from the atmosphere with the help of robotic sailboats that can collect data year-round, including during times when it’s too dangerous for research ships to operate.
The 2026 Ioniq 5 Limited. Image courtesy of Hyundai
Hyundai is cutting the price tag on its 2026 Ioniq 5 by nearly $10,000, and will continue to offer $7,500 off the 2025 model — equivalent to the now-expired federal tax credit. The 2026 Ioniq 5 base model will start at just $35,000, making it one of the cheapest EVs available in the U.S.
Some of the industry’s biggest names are joining forces to keep the momentum moving forward.
Climate tech funding has slowed in the face of federal government pushback — but it has certainly not stopped. As the administration has cranked up its hostilities against everything from electric vehicles to wind turbines, companies and investors are responding by getting strategic, forming new coalitions to map, fund, and shape progress in the absence of public support.
Last month I covered the launch of the Climate Tech Atlas, an interdisciplinary effort that includes venture capitalists, nonprofits, and academics working to map out the most salient climate tech opportunities and help guide external research and funding in the sector. There’s also the All Aboard Coalition, which unites big name investors to help plug the missing middle finance gap. Sector-specific investment vehicles are popping up too, like the Oneworld BEV fund, a partnership between major airlines in the Oneworld Alliance and Breakthrough Energy Ventures to advance the commercialization of sustainable aviation fuels. All three of these new initiatives were announced in September alone.
“We are in a unique moment right now,” Carmichael Roberts, a managing partner at BEV told me via email. “Over the past decade, the climate tech ecosystem has made enormous progress driving innovation across every sector of the economy. That puts us in the position to step back and ask first, what areas are still crying out for urgent innovation?”
This year has also seen a number of climate tech companies struggle at key points in their attempts to scale. Sodium-ion battery company Natron Energy shut down in September, while direct air capture leader Climeworks laid off 22% of its staff in May, citing “current macroeconomic uncertainty” and “shifting policy priorities where climate tech is seeing reduced momentum.” Another direct air capture company, Noya, shuttered this August, while the battery recycling company Li-Cycle filed for bankruptcy in May.
Other startups pursuing emerging technologies — from carbon capture to long-duration battery storage, advanced geothermal, and next-generation nuclear — are looking to avoid the same fate. But while federal funding from places such as the Department of Energy’s Office of Clean Energy Demonstrations and the Loan Programs Office once provided an avenue for financing capital-intensive demonstration plants, the Trump administration is now retracting funding, going so far as to cancel contracts with projects previously approved under Biden.
The Oneworld fund, announced in mid-September, is BEV’s first to focus on a specific theme and its first to be backed by an industry coalition. Members of the Oneworld Alliance — which include Alaska Airlines, American Airlines, British Airways, and Cathay Pacific — had already committed to using SAF for 10% of their fuel by 2030, while also “playing an active role in the development of SAF at commercial scale.” Now, with alliance members serving as limited partners in the venture fund, they’ll benefit from the technical and commercial expertise of one of the sector’s most influential VC firms.
When I asked the BEV team to what degree the current political and economic uncertainties were making partnerships like this more valuable, Eric Toone, another BEV managing partner, responded with a refrain I’ve become familiar with — that the firm only backs technologies that “can ultimately compete on their own merits.” Yet it’s undeniable that the federal government tore up its decarbonization agenda at a moment when many climate tech firms’ investments are almost ready for deployment, a stage when government support can make all the difference.
“Many promising SAF technologies already exist, but they are stuck between lab success and commercial scale,” Roberts told me. “This is the moment when they most need capital, technical rigor, and committed offtake to bridge that gap.” While the Trump administration did maintain and extend the tax credit for clean fuels, it also reduced the maximum credit amount for SAF from $1.75 per gallon to $1, while private funding for SAF production and distribution infrastructure remains inadequate.
Given this landscape and the urgency airlines face in meeting their clean fuel targets, Toone told me the firm is open to backing companies “that are further along than what a typical BEV fund might pursue.” And while sustainable fuels are the first technology to benefit from this type of thematic focus, Roberts said that BEV is already eyeing other sectors where it plans to apply this same funding model.
As of early September, the firm is also part of the All Aboard Coalition. This elite group of venture firms is aiming to raise a $300 million fund by the end of October that will match investments in later-stage venture rounds, filling a gap known in climate tech circles as the “missing middle.” Assembled by Chris Anderson, an entrepreneur and primary convener of the TED Talks conference — which has featured many inspiring climate visionaries — the group includes 14 members such as Khosla Ventures, Prelude Ventures, DCVC, Gigascale Capital, and Energy Impact Partners.
“One of the consequences of being in the front row seat at TED all these years is you get persuaded of certain things,” he told me. “And I definitely got persuaded that climate is the outstanding, major problem we really have to fix.”
The bulk of the capital for the coalition will come from outside investors, though some members will contribute as well, Anderson told me. The goal is to incentivize these hotshots to co-invest with each other, providing a one-to-one funding match if they do so.
“First-of-a-kind rounds seem out of reach for a lot of people in the chain,” Anderson explained, referring to the network of investors that must come together to help a company fund expensive new infrastructure. At this stage, its tech has progressed beyond the capital-light, early-stage rounds but is still considered too risky for traditional infrastructure investors to take on. Companies might be seeking $100 million or more from venture firms that are used to writing checks for orders of magnitude less. “Really the purpose of the fund is to create a collective belief that there is a pathway to getting these companies funded. If you have that collective belief, then it’s much easier for a lead investor to step forward and to pull a few other people in.”
Anderson acknowledged that a $300 million fund will not go “nearly far enough.”
“It’s a starter fund. It’s a proof of concept,” he told me. “The world needs to make a couple hundred of these bets at some point.”
Other coalitions, such as the Climate Tech Atlas, are working to steer the sector towards the best bets. This group — which also includes Breakthrough Energy Ventures, alongside others such as the nonprofit investment platform Elemental Impact, the consulting firm McKinsey, and Stanford University’s Doerr School of Sustainability — has mapped out the technological milestones it sees as the clearest pathways to decarbonization. The aim is to help investors, founders, policymakers and academics alike direct their energies towards the most relevant and investable opportunities, regardless of political headwinds.
“The scale at which the government participates in the development of these new technologies — or puts a thumb on the scale for technologies in particular — will vary,” Sonia Aggarwal, CEO of the policy firm Energy Innovation, which is also a member of the alliance, told me. “But certainly that has no real bearing on the fundamental fact that innovators are out there right now thinking about these grand challenges, and there are exciting new ideas for technologies that can get to that commercial scale in the coming years.”
And indeed, sometimes the most promising ideas can take shape in moments of deep uncertainty. Some of the biggest success stories of recent tech history — Uber, Airbnb, WhatsApp, and Square — all got their start during the 2008 financial crisis or its aftermath. “Some of the strongest companies and founders are building in uncertain times,” Dawn Lippert, founder and CEO of Elemental Impact, told me. “That’s very much what we see right now.”
These groups are far from the only private-sector actors coming together to help navigate industry headwinds. When the Environmental Protection Agency withdrew support for the most widely used U.S.-based carbon accounting model for estimating scope 3 emissions, leading emissions accounting platform Watershed partnered with Stanford University’s Sustainable Solutions Lab to launch an initiative that ensures continued access. And recognizing the difficulty that early stage climate tech startups face in securing insurance, the nonprofit GreenRE Coalition and the philanthropic funder Trellis Climate partnered to create a new type of bond tailored to the needs of climate tech startups.
Whether it will all be enough to accelerate or even sustain much-needed momentum in climate tech funding is impossible to predict. But at least the private sector seems to agree that, in this moment, good old teamwork is worth one heck of a try.
His administration has zeroed in on $18 billion of projects that just so happen to be in Chuck Schumer and Hakeem Jeffries’ hometown.
The shutdown punishment has begun, and it’s aimed at New York City.
Russ Vought, the director of the Office of Management and Budget announced Wednesday on X that “roughly $18 billion in New York City infrastructure projects have been put on hold to ensure funding is not flowing based on unconstitutional DEI principles.” That includes funding for the Second Avenue Subway extension and the Gateway Program, a proposed rail tunnel connecting New York City and New Jersey.
While Vought did not refer to the government shutdown specifically in his announcement, the timing is, shall we say, noteworthy, not least because the Democrats’ two top congressional negotiators — Representative Hakeem Jeffries and Senator Chuck Schumer — are both from New York. Secretary of Transportation Sean Duffy later made the link explicit, clarifying in a statement that the real issue with the two projects was a recently released rule — as in, published on Tuesday — “barring race- and sex-based contracting requirements from federal grants.”
There would be a review of the two projects “to determine whether any unconstitutional practices are occurring,” Duffy said, and “until USDOT’s quick administrative review is complete, project reimbursements cannot be processed.” Those reviews “will take more time” thanks to the shutdown, he wrote, reaching his denouement, as “without a budget, the Department has been forced to furlough the civil rights staff responsible for conducting this review.”
The politics behind this gambit are obvious. President Trump has consistently threatened to withhold funding from states, cities, and institutions controlled by or connected to his political opponents.
“I think they very much understand the political dynamics of trying to make an example of New York. They understand where Chuck Schumer lives,” Jackson Moore-Otto, transportation fellow at the Center for Public Enterprise, told me.
The White House wasn’t exactly running away from the political implications of the denial of funding on Wednesday.Vice President J.D. Vance arched a metaphorical eyebrow during a press conference, saying that “I'm sure that Russ is heartbroken about the fact that he is unable to give certain things to certain constituencies.”
Trump has also specifically threatened federal funding for New York City if Democratic nominee Zohran Mamdani wins the upcoming mayoral election.
Duffy himself could not have been any more obvious about what he is trying to achieve by slowing down this funding. “This is another unfortunate casualty of radical Democrats’ reckless decision to hold the federal government hostage to give illegal immigrants benefits,” his statement said, while also specifically calling out the two Democratic congressional leaders, saying that the delayed review was “thanks to the Chuck Schumer and Hakeem Jefferies [sic] shutdown.”
The legality of this — and its legitimate connection to the shutdown — is not so clear.
“It’s pure political maneuvering if you read the statement closely,” David Super, a law professor at Georgetown, told me. “They’re trying to blame the shutdown for slowing their review, but they’re also effectively saying that they’re considering New York in violation of their standards.”
Super also flagged several constitutional and legal issues with the action.
“The funding allocated through laborious means to the Hudson tunnel and Second Avenue Subway is a property right that entities in New York have,” he told me. “The idea that that can be interfered with because someone wants to do an investigation is a blatant violation of due process.”
While it is possible that purported civil rights violations could lead to funding being blocked, “that would have to be established through procedure, not suspicions that they’re doing something wrong,” Super said.
The new rule Duffy referenced addresses a specific set of programs established under the Small Business Act that are designed to give organizations controlled by “socially and economically disadvantaged individuals,” i.e. “women and members of certain racial and ethnic groups,” a shot at winning government contracts.
The DOT argues that under these programs, “two similarly situated small business owners may face different standards for entering the program, based solely on their race, ethnicity, or sex,” and that the rules and legislation defining them violate equal protection as set out in recent federal court decisions and Trump executive orders.
The rule that Duffy cites as justification for his actions is itself constitutionally suspect, Super said. “The Administrative Procedure Act requires public comment on new rules, subject to limited exceptions,” which this did not have.
The slapdash way the rule has been rolled out could open up the DOT to lawsuits, whether from the Metropolitan Transit Authority, which oversees the New York City subway, or another entity involved with the Hudson tunnel project.
“Courts throughout history have insisted public comment is important,” Super said. The DOT is “violating procedures for issuing this policy and violating due process in the way they apply it.”
Moore-Otto also pointed out that the DOT release makes no specific claim that these projects are violating the rule.
“What they’re saying, it appears to me, is, New York might be doing this thing that we’ve just decided is illegal and we’re going to cut off your funding and it’s going to take longer because our lawyers aren’t being paid,” he said.
And there are broader issues around infrastructure policy at play beyond the obvious political gamesmanship, Moore-Otto pointed out. Duffy’s announcement links the supposedly unconstitutional women and minority contracting practices to the high costs that plague American infrastructure projects, saying they’re a “waste of taxpayer resources.”
But, Moore-Otto argued, what really ails U.S. infrastructure projects are extensive administrative reviews and the start-stop nature of project development.
“I think people would broadly agree the U.S. takes too much time and money to deliver infrastructure projects, and they are trying to invoke this as a pretext,” Moore-Otto said. “What strikes me as noteworthy is that when we look at why the U.S. does, in fact, take so long and use so much money building, while the rest of the world builds faster and cheaper, is that there’s a lot of stopping and starting of these infrastructure projects.”
“Assuming it’s a prolonged delay, it’s going to probably drive up costs — even though they’re saying it is a cost saving measure,” Moore-Otto added. “I think that should not be lost on anybody.”