How to Solve a Problem Like a Wind Ban

1. Trump’s Big Promise – Our nation’s incoming president is now saying he’ll ban all wind projects on Day 1, an expansion of his previous promise to stop only offshore wind.

• “They litter our country like paper, like dropping garbage in a field,” Trump said at a press conference Tuesday. “We’re going to try and have a policy where no windmills are built.”
  
• Is this possible? It would be quite tricky, as the president only has control over the usage of federal lands and waters. While offshore wind falls entirely under the president’s purview, many onshore wind projects themselves fall entirely on state lands.
• This is where the whole “wind kills birds” argument becomes important. Nearly all wind projects have at least some federal nexus because of wildlife protection laws, such as the Endangered Species Act and Migratory Bird Treaty Act.
• Then there are the cables connecting these projects to the grid and interstate transmission projects that may require approval from the Federal Energy Regulatory Commission.
• I’m personally doubtful he will actually stop all wind in the U.S., though I do think offshore wind in its entirety is at risk (which I’ve written about). Trump has a habit of conflating things, and in classic fashion, he only spoke at the press conference about offshore wind projects. I think he was only referring to offshore wind, though I’m willing to eat my words.

2. The Big Nuclear Lawsuit – Texas and Utah are suing to kill the Nuclear Regulatory Commission’s authority to license small modular reactors.

• If successful, it would totally neuter permitting powers in this sector, letting developers and manufacturers avoid a lengthy federal approval process. SMR startup Last Energy is also involved in the lawsuit.
• The lawsuit cites the Supreme Court’s recent decision to undo a longstanding principle in American regulatory law that courts should defer to agency experts when interpreting vague language in statute. As Heatmap’s Robinson Meyer explained when that ruling came down, this means judges themselves get to decide if a law explicitly gives an agency authority to do something.
  
• The lawsuit argues the nation’s primary nuclear law, the Atomic Energy Act, did not give the NRC the discretion to regulate SMRs. “If Congress wanted the NRC to have plenary authority in this area it needed to speak clearly. Instead, it has unambiguously indicated the opposite.”
• I expect more of these lawsuits to come down the pike in the coming months, as the federal government under Trump will have the power to settle those cases and offer plaintiffs favorable deregulation through that process.

3. Biden’s parting words – The Biden administration has finished its long-awaited guidance for the IRA’s tech-neutral electricity credit (which barely changed) and hydrogen production credit.

• As Heatmap’s Emily Pontecorvo explains in our coverage of the final hydrogen guidance, the administration made “a number of changes, exceptions, and other ‘flexibilities’” in order to make “the program easier to administer and take advantage of.” You can read the full story here.
  
• Meanwhile in Congress, House Republicans made it easier to say selling public lands is fiscally conservative, and bipartisan permitting reform died a very anti-climactic death.