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Policy Watch

How to Solve a Problem Like a Wind Ban

And more of this week’s top policy news around renewables.

Trump.
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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.

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Spotlight

Trump Keeps Wind Farms Waiting Despite Court Ruling

The administration told a federal court that it has a “new analytical methodology,” hence the continued delays.

Trump measuring wind turbines.
Heatmap Illustration/Getty Images

A federal judge ruled in early August that the Trump administration’s freeze on vertical height clearances for wind turbines was likely illegal. More than a month later nearly all of the wind energy projects remain on pause, as federal officials add new red tape that industry representatives say runs afoul of the court’s edict.

Let’s catch-up quickly on the American wind sector’s existential dilemma: the federal government has control over airspace higher than 200 feet from the ground and wind farm turbines essentially always enter that sphere of control. For at least a year and a half, the Trump administration through the Department of Defense and the Federal Aviation Administration has slowly gummed up what industry and former government officials have said was once a rote, benign bureaucratic process for ensuring turbine rotation didn’t interfere with flight patterns or radar at nearby airports.

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Q&A

Why a Climate Law Expert Sees ‘Small Glimmers of Hope’

Talking about the data center backlash, the midterm elections, and the future of renewables with Columbia Law School’s Romany Webb.

Romany Webb.
Heatmap Illustration/Getty Images

This week’s conversation is a quick catch-up with our friends at Columbia Law School’s Sabin Center for Climate Change Law. I hopped on the phone with the center’s deputy director Romany Webb to chat about recent updates they published to anti-renewables opposition analysis. I wanted to dig into their research beyond the toplines — what should people care about in the coming election? How have data centers come up in their research? Or the repeal of the Inflation Reduction Act?

The following conversation was lightly edited for clarity.

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Hotspots

All the Data Center News That’s Fit to Print

A developer sues an Arkansas paper, plus more of the week’s biggest development fights.

The United States.
Heatmap Illustration/Getty Images

1. Pulaski County, Arkansas – A major utility sued the biggest newspaper in Arkansas over reporting on a data center energy deal. It’s a crucial case to follow.

  • The lawsuit Entergy filed last week against the Arkansas Democrat-Gazette centers on whether the newspaper was legally able to publish about an Entergy deal with Google around payments for a large solar farm to power a data center. It claims the information reported was a trade secret accidentally released by the state public services commission.
  • In a statement to a local ABC station, the utility claimed Google’s “electricity contract may be confidential to newspapers,” and that the publication also erroneously reported on the solar farm financing. Entergy is seeking a temporary restraining order blocking the publication from reporting any more information in its possession that would qualify as theirs or Google’s trade secrets, and claims they believe more information is in the publication’s possession that may be reported in the future, according to federal court filings.
  • So far, the utility has been unable to win the stoppage and U.S. District Judge Lee Rudofsky rejected their request on Wednesday. The case is proceeding and I will be checking in regularly for you on this one.
  • Why is this case so important? This is easily the most aggressive communications response to public reporting on a previously-unknown deal related to a data center. At a time when non-disclosure agreements are a profound liability for the sector, I am surprised to see a utility go as far as a federal court challenge.

2. Lackawanna County, Pennsylvania – Speaking of hardcore legal strategies, have you ever heard of a data center developer asking every local official to recuse themselves?

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