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A conversation with the co-chair of the House Sustainable Energy and Environment Coalition

This week’s conversation is with Rep. Sean Casten, co-chair of the House Sustainable Energy and Environment Coalition – a group of climate hawkish Democratic lawmakers in the U.S. House of Representatives. Casten and another lawmaker, Rep. Mike Levin, recently released the coalition’s priority permitting reform package known as the Cheap Energy Act, which stands in stark contrast to many of the permitting ideas gaining Republican support in Congress today. I reached out to talk about the state of play on permitting, where renewables projects fit on Democrats’ priority list in bipartisan talks, and whether lawmakers will ever address the major barrier we talk about every week here in The Fight: local control. Our chat wound up immensely informative and this is maybe my favorite Q&A I’ve had the liberty to write so far in this newsletter’s history.
The following conversation was lightly edited for clarity.
Okay, so to start, how does the Cheap Energy Act fit into the bipartisan permitting talks?
There are two separate theories about how Congress is supposed to work, and neither of these theories is universally true but I think they inform two different approaches: do you believe the purpose of Congress is to craft good policy and then put together political consensus to put that policy forward or do you think the purpose of Congress is to find where political compromise exists and then advance the policy that can proceed along that constraint?
Depending on the situation you take Door 1 or you take Door 2.
What Mike Levin and I have tried to do with our Cheap Energy Act is to say, let’s identify the barriers to deploying cheap energy in the United States, let’s try to find the policy that’ll help consumers first and then try to get that policy done. That approach – because of the way our politics is geographically sorted out in our country – implies a wealth transfer from energy producers to energy consumers. And energy producers in this country tend to be dominant in Republican areas. That’s where coal mining is, oil and gas, logging. And energy consumers are where the population is, which skews Democratic. So on a bipartisan basis you really can’t put consumers first because that is detrimental to producers.
I think that’s why you have these two different approaches going on. I guess I have a bias towards our approach but I think we have to be very candid that the other approach does not remove the barriers to cheap energy. It removes the barriers to dirty energy.
To an overwhelming degree, and I’m slightly exaggerating, but there really aren’t permitting barriers to clean energy. There are a lot of permitting barriers to dirty energy. Which is not to say you can’t weaponize the permitting system to stop clean energy from going forward. But if you’re building a solar farm and it has to have a wire that connects it to a load, your environmental footprint is very small.
Now we’ve done some things in our bill to pre-identify corridors where there is minimal species disruptions, minimal disruption of historical artifacts, and say these are corridors where you can build things fast without guessing. Let’s not kid ourselves here: the Antiquities Act exists for a reason, the Endangered Species Act exists for a reason, and the Clean Water Act exists for a reason. But the footprint of those projects environmentally is just much, much smaller than an oil rig and a pipeline and a refinery because all of those things have the potential to leak nasty chemicals that permanently defile the air, land, and water in the vicinity.
The challenge that manifests through permitting is that if I want to lower your cost of energy, that means by definition I am undercutting your current energy provider. For the most part, that provider has undue power over whether or not you get a permit. And they have an incentive to start pamphleting the neighbors around a new transmission line, for example, to say a line is going to lower people’s property values. That’s because it is an economic threat. The reason I know that’s not an issue is you never see utilities struggle to get a new wire.
I previously reported on how the biggest sticking point in bipartisan permitting talks underway today is whether Republicans will go for tying Trump’s hands in his pursuit to stop federal renewable energy permits. Do you think any GOP lawmakers will actually do that?
Ignore whatever politics someone might have. If you’re representing a district that had a ton of wind power, not a lot of load, and you live 200 miles from a major urban center that was paying a lot for electricity, you would probably be very supportive of making it easier to build the wire to access that market and making it easier for the wind turbines to go up.
I have just described the entire Iowa congressional delegation.
Let’s say in the next election, we flip some of those Iowa seats and now what was Republican is now a Democrat, that wouldn’t change the interests of the Iowa delegation. It would just change the party. So there’s reasons why [Iowa Republican] Randy Feenstra and I have led letters on trying to build SOO Green, this high voltage transmission line that would solve exactly the problem I described there. That’s not because he’s a Republican – it’s because it is in the interests of his community.
But then why do we see so few Republicans standing up to the president in his fight specifically against renewable energy, at least in the permitting talks?
We have a huge problem with the White House that they’ve been entirely captured by the interests of energy producers and they have a rooted interest in making the price of energy expensive. The reason why they’re blocking wind permits, and the reason why they’re accelerating oil and gas exports, is because they’re completely captured by people who want the price of oil and gas to be high and they lose money when the price is low.
But that’s a completely separate series of problems.
Within the House, the leadership of the Democratic Party represents concentrated areas that would like the price of energy to be cheap. The leadership of the Republican Party represents oil and gas extractive areas that would like the price of energy to be high. So a rank and file member of the Democratic Party has no particular problem advocating for energy consumers because they’re not crossing leadership. A rank and file member of the Republican Party has no particular problem advocating for the interests of producers because they’re not crossing leadership.
I think where there’s a slight distinction is you can identify any number of Democrats from the oil and gas patch who will regularly vote with the interests of oil and gas producers, and leadership will understand why they are doing that. But it is much harder to identify members of the Republican Party who are advocating for the interests of consumers and get a pass from leadership to do that.
Mmm. So to close the loop on this, how much of a priority is it for Democrats that whatever bipartisan permitting deal is made won’t be used to speed things up for fossil while Trump continues to put the brakes on every little thing a renewable energy permit requires?
Look, I’ve seen nothing out of the House or Senate that wouldn’t do exactly what you just said. Everything would make the price of energy more expensive and make it harder to do reasonable and thoughtful environmental review. In the House and Senate as currently constituted, we are not going to get a good bill that comes through.
I think within the House you have a growing awareness that energy prices are a problem. Certainly the recent elections in New Jersey and Virginia have made that clear. You need to have a strategy to bring energy costs down. That does create an opportunity prior to next November where folks say, can I do something to help my community?
We’ll see when this bill ultimately gets out whether we get much support. I’ll say we’ve privately found Republican support for pieces of it. The way we fix this problem is by doing what the Republican Party used to be known for, which is competition. There’s no reason why we couldn’t incentivize utilities to make money by saving their consumers money. Or incentivize various pieces of the energy industry to better interconnect their markets so you could always choose the lowest cost option because Adam Smith is a god. Those arguments play much better with Republicans in states that have heavily deregulated. There are individual pieces where we’ve found Republican support. And if you think good policy and economics wins, let’s make good policy and economics wins and build support for it.
Last thing – you said there aren’t permitting barriers to clean energy. But in my reporting, I’m constantly covering local communities opposing renewable energy projects, transmission siting, battery storage. It’s a major barrier to development.
What role do you think the federal government and Congress has in dealing with the issue of local control?
It’s an old saw: depending on the issue, I’ll tell you that I’m supportive of states rights.
There are huge chunks of our energy system that should be federalized but aren’t. As an example, it makes no sense that if you want to build a gas pipeline across multiple states in the U.S., you go to FERC and they are the sole permitting authority and they decide whether or not you get a permit. If you go to the same corridor and build an electric transmission line that has less to worry about because there’s no chance of leaks, you have a different permitting body every time you cross a state line. That’s only because of laws going back to the 1930s that gave FERC sole authority on gas but not on the electric side. Our bill would fix that.
We’ve had this legacy of local control that has – not intentionally – had the practical effect of making it much easier for communities to block electric generation and distribution than natural gas distribution. This necessarily means that we have made natural gas producers more politically powerful and electricity consumers less politically powerful. Whether it was an intentional choice or not, it was a choice.
There are ways consistent with energy policy and congressional law where we can rationalize and have more parity across the energy system to make sure we make the right decision every time.
I also think at the end of the day, markets win. West Virginia one hundred years ago was the place to site your energy-intensive manufacturer because they had a ton of hydro and a ton of coal. They’ve tapped out the hydro, the coal is no longer cheap, and the economy is not good anymore. Then shift to Texas which has built more wind and solar than any state in the country and unusually for a red state has been much more pro-competition in how they regulate their energy markets, that has given them more dynamic electricity costs. Those are two different red states and sets of policy choices.
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A new front opens in the data center wars.
A series of lawsuits filed in federal court asks a big question – are data center moratoria constitutional?
In early August, data center developer DC Blox sued the city of Nashville in federal court to overturn a zoning moratorium stopping them from building a hyperscale facility adjacent to the city zoo. “The Data Center Moratorium, moreover, is a targeted attack against DC BLOX, in violation of federal constitutional protections,” the suit argued, claiming that it defied the corporation’s due process and equal protection rights.
Around the same time, another developer – Wixom Industrial One – filed a federal lawsuit against the city of Wixom, Michigan, to try and “invalidate the city’s illegal police power moratorium” blocking their data center.
These two cases were far from novel or the first of their kind, and they’re now a fresh front in the battle over hyperscale data centers. At least that’s what some who work on these cases say: In April, attorneys with the law firm Vorys published a “client alert” asserting “many moratoria may be vulnerable to statutory, procedural, and constitutional challenges.” The attorneys advised that constitutional arguments against moratoria “may be stronger where a government singles out data centers without a sound factual basis, treats similar land uses differently without a reasonable basis, or adopts a restriction driven more by political pressure than by defensible planning or regulatory objectives.”
Months later, according to court documents, the Vorys attorneys who authored the alert now represent real estate firm Thor Equities in a federal case against the Ohio city of Urbana, arguing the city’s decision to reject their data center project broke “fundamental protections” under the U.S. Constitution. (Vorys and Thor Equities did not respond to requests for comment.)
It’s unclear how many of these kinds of cases have been filed to date. Data on federal court cases is quite opaque. But legal experts and industry attorneys tell me we should expect them to be on the rise as developers seek whatever tools they can find to get projects built.
“Bringing a lawsuit like this is fairly cheap, something they can do at a relatively low cost, and imposes a real cost on local governments to defend themselves,” said Daniel Metzger, director of the Cities Climate Law Initiative at Columbia Law School’s Sabin Center. “The cases out there will be bellwethers. And if successful, there’ll be a lot more of them.”
What developers probably want looks a lot like Hill County, Texas, where an LLC proposing an $80 million data center project was stymied in May by the state’s first countywide moratorium. (It predated Governor Greg Abbott’s temporary freeze of data center development in Texas by three months.) Within a period of only a few weeks, the LLC sued and the county rescinded the pause on approvals. The case was dropped a month later. Local reports state the county had to afterwards pay the corporation $100,000 in legal fees – a drop in the bucket compared to what a drawn-out court battle would have cost the rural county.
Metzger said whether the companies will win these cases is ultimately not the point – their goal is to win a finished data center, not a judicial ruling. By filing expansive litigation in the national court system, a hypothetical developer can exhaust the coffers of a city or county with legal expenses that are chump change compared to would-be billions in private financing for compute infrastructure.
“These lawsuits may deter some local governments from taking steps to oppose data center development, just because of the cost it would impose on them to defend a lawsuit, even if they know they have a strong legal basis for the action they want to take.”
Those I spoke to in private practice about data center developers’ constitutional arguments agreed with Metzger’s assessment that it’s too early to tell whether the companies will win. Generally, they said, a city or county will win this kind of case if it demonstrates a rational basis for its decision-making and courts typically want to defer to governmental autonomy. The onus will be on the developers to prove a moratorium was meritless – that’s the due process challenge – or unfairly targeted their industry in a way other sectors don’t face, which is the basis of the equal protection claim.
“What they’re saying is in essence that these actions the municipality is taking are arbitrary and capricious, which is one of the sort of catch-all standards,” Thomas Allen, a partner at K&L Gates, told me. “They say the laws lack a rational basis. And then they make equal protection claims, saying data centers are being singled out because of political concerns as opposed to actual things relevant to the legislature’s directive. They’re not basing their decisions on the underlying merits of the project but reacting to political pressure.”
“It’s a reliance question and it’s about the treatment of their projects,” added Laura Morton, an attorney with Ashurst Perkins Coie. “It’s always been important to talk about and engage with communities where your infrastructure is planned. Here, I think this is the developers going in, maybe having conversations, and then suddenly they’re getting a reversal after already receiving these approvals and making investments based off of what the conversations and rules were.”
The likelihood of these constitutional challenges reaching higher courts anytime soon is quite low. It’ll be a long time before we see one of these cases reach a verdict, let alone some kind of appeals process come to fruition. Nevertheless, the new legal ambiguity around these local restrictions is an important new facet of the data center wars, including for developers.
“Companies want to act within the law to get [things] done, so whatever tactics they can do to help get the project over the line that are legal and ethical, they may try those,” Allen told me. “And if that includes the pressure of a lawsuit, that’s a judgment they’ll have to make.”
And more on this week’s conflicts around project development.
1. Montgomery County, Pennsylvania – We reached a new normal in the data center backlash, and it all seems to have started in King of Prussia.
2. Columbia County, Wisconsin – The gubernatorial race in this state is transforming local fights over wind projects into must-watch popcorn fodder for anyone obsessed with the state of the energy transition, or national politics for that matter.
3. Shelby County, Alabama – One quick update on the intervention of John Rich, the country star turned Trump’s “special envoy for American landowners,” in an Alabama Power transmission project: it’s getting a lot more elected officials involved.
4. New Jersey – We try to conclude every Hotspots on a positive note. So this week’s silver lining comes to you from the Garden State, where state regulators have approved more than a dozen agrivoltaics projects.
A conversation with Ella Nilsen — formerly of CNN, now with Echo Communications — about where we stand in the fight over the energy transition.
This week’s conversation is with Ella Nilsen, who recently left CNN as a climate reporter and is now a new vice president at energy and cleantech PR firm Echo Communications. Having worked on Capitol Hill alongside Nilsen, I knew her to be an exceptional reporter who asked hard questions of those in power on all sides. So when I found out she was taking her journalism hat off and putting the comms cap on, I wanted to do something you rarely get to do with one of your reporting peers: ask for her own opinion about where we stand in the fight over the energy transition.
Our chat was lightly edited for clarity.
What’s it like going from CNN and climate journalism to advising on communications in the energy sector, especially when it comes to clean tech in this fraught moment?
So before I covered climate and clean energy, I was a political reporter who covered campaign cycles and Capitol Hill for a while, and I was always interested in the nexus of politics and politics. I tried to make as much of my coverage about that. Politics is policy, and the other way around.
Being on the other side of it is, well, I know from my experience as a reporter what interests them. I’m trying to figure out ways to make sure when I’m bugging you all that the pitch lands, because hopefully it’ll be something people are interested in. Things are changing so fast. It’s a really fascinating time to be a reporter and be in the clean energy comms space.
Okay, but now that you’re in clean energy comms, how do you handicap the fight over developing these technologies? Who is winning, who is losing, and why?
I think it’s tough to call exact winners and losers right now because over the last few months, there have been so many new and interesting developments.
Look at the Invest in Tomorrow Coalition, which has been getting involved in Republican primaries for Freedom Caucus members. There’s been this perception for a long time that the clean energy industry didn’t fare well in the One Big Beautiful Bill Act fight. They had important wins while losing pretty key stuff. But there’s been this interesting reckoning within the industry, and even this last summer, where people are moving the ball forward in interesting ways. They’re trying to get involved in political fights with direct results.
What messages do these primaries send? On the one hand I can see there being political consequences but also, now, more solar energy money going into Republican politics has the anti-renewable folks saying they need to go harder at them. I’m curious how you see the energy fight landscape changing in light of these election results.
I think it shows the industry has some fight in it. What the Coalition would probably say is, they want to be lethal and this is political warfare. They’re trying to be taken seriously.
There is sort of this two-pronged strategy happening right now. Obviously Invest in Tomorrow has gotten a lot of press attention for their track record. There’s also within the industry an attempt to shape a public narrative around wind, solar, battery storage to combat misinformation, both through conventional media and social media. They’re happening in tandem and it's a reflection of the results.
How is the backlash over data center development affecting the work you’re now doing?
Well, I’m still early, but I think the data center question is a fascinating one. Conversations around policy and where we go from here really seem to me to be happening in the state realm. Not a lot of policy happening at the federal level. There’s New York State’s data center pause, which is leading to lawmakers trying to get more leverage.
It’s in the backdrop, where projects are being announced with massive power plants to supply new data center demand, and at the same time there’s a conversation around virtual power plants, DERs. Another phrase emerging for it is “community power.”
It’s starting to be a fascinating conversation around community benefits. There are tax benefits when a data center comes to town but when it comes to energy use, what can communities actually leverage out of this? I know former Energy Secretary Jennifer Granholm has been arguing for strong community benefit agreements, getting big tech companies to pay for solar and EVs and then using all of that to create a virtual power plant. Getting that to be flexible for data centers. That’s only one part of the pie but it’s fascinating to have this conversation about what forms of energy we need for all this demand happening.
What do you foresee about the impact of the backlash, given that land use, visuals, air, and water – its all being swept up in the same conversation?
I don’t have a crystal ball and have the same questions.
It’s all happening so quickly and it’s all playing out in so many different states. There are really important questions here and there are people smarter than I am on this, talking about how we meet this demand in the short term and long term or whether this is an opportunity for getting clean energy onto the grid. But it’s a delicate dance.