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A conversation with Carl Fleming of McDermott Will & Emery
This week we’re talking to Carl Fleming, a renewables attorney with McDermott Will & Emery who was an advisor to Commerce Secretary Gina Raimondo under the Biden administration. We chatted the morning after the Trump administration attempted to freeze large swathes of federal spending. My goal? To understand whether this chaos and uncertainty was trickling down into the transition as we spoke. But Fleming had a sober perspective and an important piece of wisdom: stay calm and remain on course.
The following conversation has been lightly edited for clarity.
How are you seeing the private sector respond to all of this news?
My view is, you can read a lot into what people publish in the EOs and what’s written and what’s issued and you can sometimes read a good deal into what hasn’t been issued and what hasn’t been said. In the executive orders that got first issued in a flurry we saw a few that got pointed directly at onshore wind, some on offshore wind, but solar and standalone storage – as predicted – remained pretty much intact.
We were under the impression and we stood by it that we had the guidance in hand, bankable guidance, from the IRS prior to the change in administration and prior to any look-back window that people had been transacting on over the past year at kind of a record pace. Standalone storage has just had a breakout year. Solar continues to go, to continue to be put on the grid. And we also have manufacturing of solar panels, the domestic supply chain. This year we stood up is nowhere near what we need to fulfill our requirements to get everything we need to do domestically to fill our generation requirements [but] its a pretty great step in the right direction. And those credits have been pretty good to the economy and Republican states.
The way I’ve seen people react is, I’ve probably been busier than ever the past two weeks, not only fielding questions like that but also for tax credit transfers, all of the corporates we work with. We work in both the buy and the sell side of all these credit transfers. We’re working with a lot of solar module manufacturers to sell the credits under the IRA. We’re working with a lot of buyers to purchase those credits. And we’re working with the buyers and sellers under the generation of these projects.
All of the buyers have come out and continued with their 2025 strategy to buy more of these credits, if not more so. And all of the developers we represent continue to produce more of these credits. So I haven’t seen a hiccup or slowdown in actual transactions. If anything, I’ve seen stuff pick up in the solar space and in the manufacturing space. I continue to be very optimistic about those two fundamental parts of the energy transition, because if you need to go be an energy superpower, you wouldn’t want to turn off solar, turn off storage –
Is that argument that if you were trying to deal with “energy security,” you wouldn’t turn off solar and storage – is that enough to assuage uncertainty in the investor space?
I think it’s helpful. If you’re a private equity investor or you’re any sort of lender or a developer, you’re probably not going to base your whole model on the hopes that our energy security strategy syncs up with what most people think it should look like. But when you layer it on top of some of the fundamentals… I want to say that solar did not go away eight years ago. When Trump first came in, we saw more renewables deployed in his administration. At times, we saw more beneficial guidance, issuance of tax guidance under that administration, than we would hope for from some more favorable administrations.
The fact that the IRA has disproportionately benefited red states is just a fact that can’t be overlooked. I met with a group of about two dozen lawmakers a few weeks ago to talk about the IRA and there’s quite a few of those folks in the room that say, “Whatever we do, we can’t dismantle the IRA.”
But how has the chaos in the last week and a half impacted investment in renewable energy, though?
I think the renewable energy industry is used to a lack of predictability. It’s kind of a lawyer’s job, our team’s job, to help folks mitigate risk [and] to see what potential pitfalls there may be and to structure and draft around those.
You might see as things get more unpredictable, as folks go out to investors to raise capital, you might see a little bit of tightening around different portfolios or different types of companies based on their pipelines or how they’re put together. But I think one investor’s look on a project or pipeline may vary widely from another investor who’s got a different project or pipeline. There’s a lot of capital out there to be deployed. I think people are looking to invest.
I think you just need to partner the right developers with the right investors.
Are you seeing any slowdown in solar investment though?
I don’t see folks taking a hardline approach or stopping any time soon.
This is not an existential crisis while the ITC [investment tax credit] and PTC [production tax credit] exist. It’s not even, could you go back in time to unwind these credits. It’s moreso, going forward, what will the IRA look like? Will there be additional technologies added to the IRA? That’s possible to help stand up other technologies. Will the runway for the credit, instead of it being unlimited for at least 10 years, will [it] be pared back a bit? There’s potential, but it’s unlikely.
Okay last question and it’s a fun one: what was the last song you listened to?
I’m not going to lie, I’m an Eagles fan. And I’m from Philly and a huge Meek Mill fan. So “Uptown Vibes” by Meek Mill is in the car.
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A review of Heatmap Pro data reveals a troubling new trend in data center development.
Data centers are being built in places that restrict renewable energy. There are significant implications for our future energy grid – but it’s unclear if this behavior will lead to tech companies eschewing renewables or finding novel ways to still meet their clean energy commitments.
In the previous edition of The Fight, I began chronicling the data center boom and a nascent backlash to it by talking about Google and what would’ve been its second data center in southern Indianapolis, if the city had not rejected it last Monday. As I learned about Google’s practices in Indiana, I focused on the company’s first project – a $2 billion facility in Fort Wayne, because it is being built in a county where officials have instituted a cumbersome restrictive ordinance on large-scale solar energy. The county commission recently voted to make the ordinance more restrictive, unanimously agreeing to institute a 1,000-foot setback to take effect in early November, pending final approval from the county’s planning commission.
As it turns out, the Fort Wayne data center is not an exception: Approximately 44% of all data centers proposed in Indiana are in counties that have restricted or banned new renewable energy projects. This is according to a review of Heatmap Pro data in which we cross-referenced the county bans and ordinances we track against a list of proposed data centers prepared by an Indiana energy advocacy group, Citizens Action Coalition of Indiana.
This doesn’t necessarily mean the power going to these data centers is consistently fossil. Data centers can take years to construct and often rely on power fed to them from a distributed regional energy grid. But this does mean it would be exceptionally costly for any of these projects to build renewable generation on site, as a rising number of projects choose to do – not to mention that on a macro level, data centers may increasingly run up against the same cultural dynamics that are leading to solar and wind project denials. (See: this local news article about the Fort Wayne data center campus).
Chrissy Moy, a Google spokesperson, told me the Fort Wayne facility will get its power off of the PJM grid, and sent me links to solar projects and hydroelectric facilities in other states on the PJM it has power purchase agreements with. I’d note the company claims it “already matches” all of its global annual electricity demand with “renewable energy purchases.” What this means is that if Google can’t generate renewable energy for a data center directly, it will try to procure renewable energy at the same time from the same grid, even if it can’t literally use that clean power at that data center. And if that's not possible, it will search farther afield or at different times. (Google is one of the more aggressive big tech companies in this regard, as my colleague Emily Pontecorvo details.) Google has also boasted that it will provide an undisclosed amount of excess clean electricity through rights transfers to Indiana Michigan Power when the tech company’s load is low and demand on the broader grid is peaking, as part of Google’s broader commitment to grid flexibility.
I reached out to Tom Wilson, an energy systems technical executive at the Electric Power Research Institute, an industry-focused organization that studies modern power and works with tech companies on flexible data center energy use, including Google. Wilson told me that in Indiana, many of the siting decisions for data centers were made before counties enacted moratoria against renewable energy and that tech companies may not always be knowingly siting projects in places where significant solar or wind generation would be impractical or even impossible. (We would just note that Fort Wayne, Indiana, has an opposition risk score of 84 in Heatmap Pro, meaning it would have been a very risky place to build a renewable energy project even without that restrictive ordinance.) It also indicates some areas may be laying down renewables restrictions after seeing data center development, which is in line with a potential land use techlash.
Wilson told me that two thirds of data centers rely on power from the existing energy grid whereas surveys indicate about a third choose to have at least some electricity generation on site. In at least the latter case, land use constraints and permitting problems really can be a hurdle for building renewable energy close to where data is processed. This is a problem exacerbated when centers are developed near population centers, which Wilson said is frequently the case because companies want to reduce “latency” for customers. In other words, they want to “reduce the time it takes to get answers to people” via artificial intelligence or other data products.
“The primary challenges are the size of the data center and the amount of space it takes to build renewables,” he said. “They are moving from 20 megawatt or 40 megawatt data centers to 100, 200, 300 megawatt data centers. It’s really hard to locate that much renewable [energy] right near a population center. So that requires transmission, and unfortunately right now in the U.S. and in many other countries, transmission takes a significant amount of time to build.”
The majority of data centers are served by regional power grids, Wilson told me. Companies like Google, Meta, and others continue to invest in renewable energy procurement while building facilities in areas that have restricted new solar or wind power infrastructure. In some cases, companies may feel they’re forced to seek these places out because the land is just plain cheap and has existing fiber optic cable networks.
At the same time, there are large data centers getting energy generated on site, and how they each approach their energy sources varies. It’s also not always consistent.
For instance, Meta’s new Prometheus supercluster complex in New Albany, Ohio — potentially the world’s first 1 gigawatt data center — will reportedly have a significant amount of new gas power generation constructed at the facility, even though the company also struck a deal with Invenergy over the summer to procure at least 400 megawatts of solar from two projects in Ohio that already have their permits. One is in Clinton County and was fully permitted but resulted in a years-long fight before the Ohio Power Siting Board and included conservative media backlash. The other is in Franklin County and got its permits in 2021, before a recent wave of opposition against solar projects. Prometheus itself will be sited on the Licking County side of New Albany, where solar has been extremely difficult to build, even though most of this Columbus suburb is in solar-supporting Franklin.
Meanwhile, Elon Musk’s xAI data center notoriously relies on a polluting gas plant in Memphis, Tennessee. The surrounding Shelby County had a solar moratorium until mere months ago that residents want to bring back. An affiliate company of xAI used for the project’s real estate is subleasing land near the data center for a solar farm, but it is unclear right now if it’ll power the data center.
In the end, it really does seem like data centers are being sited in places with renewable energy restrictions. What the data center developers plan to do about it — if anything — is still an open question.
And more on the week’s most important fights around renewable energy projects.
1. Ocean County, New Jersey – A Trump administration official said in a legal filing that the government is preparing to conduct a rulemaking that could restrict future offshore wind development and codify a view that could tie the hands of future presidential administrations.
2. Prince William County, Virginia – The large liberal city of Manassas rejected a battery project over fire fears, indicating that post-Moss Landing, anxieties continue to pervade in communities across the country.
3. Oklahoma County, Oklahoma – The Sooner state legislature on Monday held a joint committee meeting on solar and wind setbacks featuring prominent anti-wind advocates.
4. Tippacanoe County, Indiana – The developers of a large-scale solar project are suing the county over being rejected.
5. Dane County, Wisconsin – The Wisconsin Public Service Commission approved Invenergy’s Badger Hollow wind project – the state’s first new fully-permitted wind energy project in more than a decade.
A conversation with Courtney Brady of Evergreen Action.
This week I chatted with Courtney Brady, Midwest region deputy director for climate advocacy group Evergreen Action. Brady recently helped put together a report on rural support for renewables development, for which Evergreen Action partnered with the Private Property Rights Institute, a right-leaning advocacy group. Together, these two organizations conducted a series of interviews with self-identifying conservatives in Pennsylvania and Michigan focused on how and why GOP-leaning communities may be hesitant, reluctant, or outright hostile to solar or wind power.
What they found, Brady told me, was that politics mattered a lot less than an individual’s information diet. The conversation was incredibly informative, so I felt like it was worth sharing with all of you.
The following chat was edited lightly for clarity. Let’s dive in:
Okay, so tell me first why you did this report.
Clean energy deployment is getting increasingly challenging for a variety of reasons. What’s happening on the federal level is one thing, but something we don’t talk about much in the climate movement is what’s happening locally, what actually determines the odds of a project being successful and incorporated into the grid.
The side of the story we often hear that’s the loudest is from people at the local level who are opposed to these projects, and it limits our ability to understand the nuances. It’s not always that everyone opposes these projects in their community — that’s often not the case. We talked to several farmers in this report who are using these projects as a lifeline to keep farms in their families’ hands, generate income, preserve their farms. These projects can provide an income lifeline for these farms.
Something we tried to accomplish with this report was to understand the different perspectives, what was driving them. The only way we could do that was by going out and talking to these people in their own communities, on their own land.
The group we worked with has a very conservative background. They work on Republican campaigns. They’re very involved in local government relations. And they were the ones who were able to go out and interview these folks about what this means for their communities.
A few weeks ago, I interviewed the head of the League of Conservation Voters about the way that renewables are perceived as culturally left wing. Are there any takeaways in your research about how to deal with that?
You know, I expected to hear a little bit more of that political ideological leanings than what we actually got in these interviews. Our partners went out and interviewed seven folks; four of the case studies were in Pennsylvania, and three of them were in Michigan. It was a mix of local government officials and landowners themselves, most of whom were farmers. And they asked them, What are you hearing in your community? Where’s the opposition coming from?
I’d assumed this would be a left-versus-right, red-versus-blue issue, but this is not what we heard. We heard a lot about a lack of information or misinformation in these communities and the crucial incomes these projects can provide to landowners themselves. Again, everyone in this report that was interviewed identified as a conservative or said they were Trump supporters. It’s interesting to hear that hasn’t impacted their views of clean energy at large. They were either really happy with the projects they’d sited or still trying to get projects sited years and years later.
When you talked about misinformation, what came up?
The sizing of these leases. We heard about fears in communities that land was going to be completely overtaken over by solar or wind.
Some of these farmers said one of the biggest things they heard from their neighbors was that we’re giving away hundreds and thousands of acres to solar projects and wind projects and taking away land that should go towards crops and food. We’re hearing from these farmers that a lot of this land is no longer fertile, so providing a temporary solar lease allows that farmer to continue generating revenue while letting that land breathe.
People really had this fear of farmland being completely converted to energy production. I don’t know where a lot of that came from. We asked if that was something spread on the internet and we heard, Neighbors talk and there are Facebook groups. So there’s this overblown fear about the size of projects.
When it comes to these interviews, it does seem like you spoke to a lot of people who believe what you say. But did you speak to people who don’t believe this stuff? Because right now we’re seeing cases where opposition is either winning over county commissioners or voting out of office local officials who believe exactly what you heard from some folks.
We’ve heard so much of the opposition. It’s trending, really growing across the country. And understanding the root of why opposition is there is important. But so often we don’t hear the other side of it, these really nuanced perspectives.
There are these folks in the middle who are really thematic in these interviews — this is not about energy but a core American property rights issue. That resonates with people regardless of party.
The other piece is, there’s fear in communities of being the person to speak out against groups that are loud, the ones who want to kick people out of office over energy things. So it was really important to elevate these voices and in the interviews just made a lot of common sense. This was about elevating voices that don’t always get a seat at the table in discussions around these issues.