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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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The Trump administration is now being lobbied to nix offshore wind projects already under construction.
Anti-wind activists have joined with well-connected figures in conservative legal and energy circles to privately lobby the Trump administration to undo permitting decisions by the National Oceanic and Atmospheric Administration, according to documents obtained by Heatmap.
Representatives of conservative think tanks and legal nonprofits — including the Caesar Rodney Institute, the Heartland Institute and Committee for a Constructive Tomorrow, or CFACT — sent a letter to Interior Secretary Doug Burgum dated February 11 requesting that the Trump administration “immediately revoke” letters from NOAA to 11 offshore wind projects authorizing “incidental takes,” a term of regulatory art referencing accidental and permissible harassment, injury, or potential deaths under federal endangered species and mammal protection laws. The letter lays out a number of perceived issues with how those approvals have historically been issued for offshore wind companies and claims the government has improperly analyzed the cumulative effects of adding offshore wind to the ocean’s existing industrialization. NOAA oversees marine species protection.
The letter also requested “an immediate cession of construction” at four offshore wind projects with federal approvals that have begun construction: Dominion Energy’s Coastal Virginia offshore wind project, Copenhagen Infrastructure Partners’ Vineyard Wind 1, and Ørsted’s Revolution Wind and Sunrise Wind projects.
“It is with a sense of real urgency we write you today,” the letter states, referencing Trump’s executive order targeting the offshore wind industry to ask that he go further. “[E]leven projects have already received approvals with four of those under construction. Leasing and permitting will be reviewed for these approved projects but may take time.”
I obtained the letter from Paul Kamenar, a longtime attorney in conservative legal circles currently with the D.C.-based National Legal and Policy Center, who told me the letter had been sent to the department this week. Kamenar is one of multiple attorneys involved in a lawsuit filed last year by Heartland and CFACT challenging permits for Dominion’s Coastal Virginia project over alleged potential impacts to the endangered North Atlantic right whale. We reported earlier this week that the government signaled in proceedings for that case it will review approvals for Coastal Virginia, the first indication that previous permits issued for offshore wind could be vulnerable to the Trump effect.
Kamenar described the request to Burgum as “a coalition letter,” and told me that “the new secretary there is sympathetic” to their complaints about offshore wind permits. “We’re hoping that this letter will basically reverse the letter[s] of authorizations, or have the agency go back,” Kamenar said, adding a message for Dominion and other developers implicated by the letter: “Just because the company has the approval doesn’t mean it’s all systems go.”
The Interior Department does not directly oversee NOAA – that’s the Commerce Department. But it does control the Bureau of Ocean Energy Management, which ultimately regulates all offshore wind development and issues final approvals.
Interior did not immediately respond to a request for comment on the letter.
Some signees of the document are part of a constellation of influential figures in the anti-renewables movement whose voices have been magnified in the new administration.
One of the letter’s two lead signatories is David Stevenson, director of the Center for Energy and Environmental Policy at the Caesar Rodney Institute, an organization involved in legal battles against offshore wind projects under development in the Mid-Atlantic. The Institute says on its website it is a member of the State Policy Network, a broad constellation of think tanks, legal advocacy groups, and nonprofits.
Multiple activists who signed onto the letter work with the Save Right Whales Coalition, a network of local organizations and activists. Coalition members have appeared with Republican lawmakers at field hearings and rallies over the past few years attacking offshore wind. They became especially influential in GOP politics after being featured in a film by outspoken renewables critic and famous liberal-turned-conservative Michael Shellenberger, who is himself involved in the Coalition. His film, Thrown to the Wind, blew up in right-wing media circles because it claimed to correlate whale deaths with offshore wind development.
When asked if the Coalition was formally involved in this request of the administration, Lisa Linowes, a co-founder of the Coalition, replied in an email: “The Coalition was not a signer of the request.”
One cosigner sure to turn heads: John Droz, a pioneer in the anti-wind activist movement who for years has given talks and offered roadmaps on how best to stop renewables projects.
The letter also includes an endorsement from Mandy Davis, who was involved with the draft anti-wind executive order we told you was sent to the Trump transition team before inauguration. CFACT also co-signed that draft order when it was transmitted to the transition team, according to correspondence reviewed by Heatmap.
Most of the signatories to the letter list their locations. Many of the individuals unrelated to bigger organizations list their locations as in Delaware or Maryland. Only a few signatories on the letter have locations in other states dealing with offshore wind projects.
On its face, this letter represents a new stage of Trump’s war on offshore wind.
Yes, he has frozen leasing, along with most permitting activity and even public meetings related to pending projects. But the president’s executive order targeting offshore wind opened the door to rescinding leases and previous permits. Doing so would produce new, costly legal battles for developers and for publicly-regulated utilities, ratepayers. Over the past few weeks, offshore wind developers with projects that got their permits under Biden have sought to reassure investors that at least they’ll be fine.
If this new request is heeded, that calm will subside.
Beyond that, reversing these authorizations could represent a scandal for scientific integrity at NOAA – or at least NOAA’s Fisheries division, the National Marine Fisheries Service. Heeding the letter’s requests would mean revisiting the findings of career scientists for what developers may argue are purely political reasons, or at minimum arbitrary ones.
This wouldn’t be the first time something like this has happened under Trump. In 2020, I used public records to prove that plans by career NOAA Fisheries employees to protect endangered whales from oil and gas exploration in the Atlantic were watered down after a political review. At the time, Democratic Representative Jared Huffman — now the top Democrat on the House Natural Resources Committee — told me that my reporting was evidence of potential scientific integrity issues at NOAA and represented “blatant scientific and environmental malpractice at the highest order.”
It’s worth emphasizing how much this mattered, not just for science but literally in court, as the decision to allow more seismic testing for oil under Trump was challenged at the time on the grounds that it was made arbitrarily.
Peter Corkeron, a former NOAA scientist with expertise researching the North Atlantic right whale, reviewed the letter to Burgum and told me in an email that essentially, the anti-offshore wind movement is exploiting similar arguments made by conservationists about issues with the federal government’s protection of the species to target this sector. The federal regulator has for many years faced the ire of conservation activists, who’ve said it does not go far enough to protect endangered species from more longstanding threats like fishing and vessel strikes.
If NOAA were to bow to this request, Corkeron wrote, he would interpret that as the agency’s failure to fully protect the species in good faith instead becoming “suborned by the hydrocarbon exploitation industry as a way of eliminating a competing form of energy production that should, in time, prove more beneficial for whales than what we’re currently doing.”
“The point on cumulative impacts is, on face value, fair,” he said. “The problem is its lack of context. Cumulative impacts on North Atlantic right whales from offshore wind are possible. However, in the context of the cumulative impacts of the shipping (vessel strike kills, noise pollution), and fishing (death, maiming, failure to breed) industries, they’ll be insignificant. Because NOAA has never clearly set out to address ways to offset other impacts while developing the offshore wind industry, these additive impacts place a burden on this new industry in ways that existing, and more damaging, industries don’t have to address.”
CFACT responded to a request for comment by sending me a press release with the letter attached that was not publicly available, and did not respond to the climate criticisms by press time. David Stevenson of the Caesar Rodney Institute sent me a statement criticizing offshore wind energy and questioning its ability to “lower global emissions.”
“The goal is to pause construction until everything is reviewed,” Stevenson said. When asked if there was an outcome where a review led to projects being built, he said no, calling offshore wind an “environmental wrecking ball.”
Well, we’ll soon find out what the real wrecking ball is.
And more of the week’s biggest conflicts around renewable energy.
1. Monterey County, California – The Moss Landing battery fire is now the big renewables PR crisis we should all be watching, even with Trump 2.0 going on.
2. Portage County, Wisconsin – Doral Renewables’ Vista Sands solar project is facing a prolonged legal fight with the Wisconsin Wildlife Federation, a state outdoor recreation and wildlife advocacy group. At the center of the conflict is a bird that’s long bedeviled developers of all stripes: the greater prairie chicken.
3. Santa Fe County, New Mexico – Energy developer AES got a green light for its Rancho Viejo solar-plus-battery project, prevailing for now over an organized opposition campaign.
Here’s what else I’m watching…
In New York, a NineDot BESS project is the latest scene of the Staten Island battery backlash, while Yonkers extended its battery moratorium.
In Indiana, one county — Pulaski — has moved forward with plans to ban BESS, even though, according to media reports, no projects are proposed there.
In Ohio, tempers remain hot over Open Road Renewables’ Grange Solar project, which will face an Ohio Power Siting Board public comment meeting next month.
In North Carolina, a NextEra utility-scale solar project was approved by county regulators, but …
In Oklahoma, a different NextEra utility-scale solar project was rejected by county regulators.
In Wyoming, one county board of commissioners apparently gave EG Haystack Solar, the developer behind a proposed large-scale solar farm, an absolute grilling over a project it wound up rejecting. Read the full account here.
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A look at the biggest news around renewable energy policy this week.
1. The anti-renewable locavore – Republican lawmakers are aiming to empower localities to block renewables projects, a similar scene to what’s played out in Ohio, where state legislators gave towns the power to have a final word on development instead of state-led entities.
2. Sgamma thoughts – Trump selected Kathleen Sgamma, head of the pro-oil Western Energy Alliance, to head the Bureau of Land Management. What does this mean for renewables developers? It’s hard to tell because so much of her time was spent on a single mission: liberating as much oil from the ground as possible.
3. Contract law challenge – The Trump administration’s funding freezes are challenging the foundations of the compact between private industry and contracted government services. If you haven’t read it yet, I implore you to scroll through my colleague Robinson Meyer’s new article on the issue.
Here’s what else I’m watching…
In California, Democratic legislators have introduced a bill that would ensure the state keeps studying offshore wind port infrastructure despite Trump’s permitting freeze.
In Maryland, lawmakers are trying to move permitting legislation under the banner of lowering utility bills.