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A conversation with Colorado's junior senator on the 2024 election, permitting reform, and what might happen with the IRA.
This week we’re talking to Senator John Hickenlooper of Colorado who joined me yesterday at Heatmap’s Election Post-Game event in Washington, D.C., for a spirited chat about the 2024 election, permitting, and support for renewable energy in a Trump 2.0 era. We also talked about beer and The Fray, but we’ll spare you those details. The following is an abridged version of our conversation.
So you’ve said in your time in the Senate there needs to be a “business plan” for climate change. What’s the business plan now that Trump is going to be president again?
I said from the moment I got to Washington that I could not understand how we got so far down the road without any kind of plan. No one has mapped it out – and at this point it has to change – but there’s no sense of a plan.
Right now we have to look at the possibility of dramatic rollbacks from a lot of legislation that got passed in 2023. The Inflation Reduction Act, the largest financial commitment to addressing climate change in the history of the world. I think the CHIPS and Science Act has a lot of stuff in it that over time is going to have dramatic benefits in terms of addressing climate. Rolling back those efforts for the simple purpose of giving another tax break to the publicly traded stocks of America doesn’t seem constructive.
One thing that’ll make that difficult is many of the people who worked so hard to elect Donald Trump are receiving those benefits and those jobs. A lot of those tax credits are being spent in red states.
Faced with that rollback, which I think is really an interruption and which slows down the momentum – you want to disrupt the business plan, you want to throw a wrench in the gears, one way to do that is to create unpredictability. That anything agreed to [isn’t] going to stay the same for more than two years.
I’ve heard the argument a lot before, the past few years, that a lot of the money being spent is going to red states. Why was that not an election winning argument in these states?
My impression is people basically felt that the elites – Democrats and Republican elites – are looking down on them. They’re being judged by a woke culture. They’re being bossed around. Well over 2/3rds of the people who start business aren’t doing it to make a lot of money. They’re doing it because they can’t stand having a boss. They’re doing it because they want to be in control of their lives, their job, their work, their hours, their mission. And we Democrats did a piss poor disappointing job of communicating that way.
There’s a whole bunch of reasons why this happened like it did. Hearing the war stories the past couple of days, the kinds of ads that were used as a way of taking down Democrats were pretty outrageous.
What’s to come with permitting reform?
I think we’re seeing an alignment of self interest around permitting reform. Most of the large environmental organizations recognize that if we’re going to successfully address climate change, we’ve got to get transmission lines – you can’t spend 20 years permitting transmission lines. We’ve got to go faster. The time, sense of urgency we have, is not really sufficient. The same thing is true about critical minerals. We’re going to need so much of them and we haven’t really identified where they’re going to come from.
The bill that’s sitting there right now, I think we can get that passed. I’m not saying we’re going to. But I’m saying we have a very good chance of Republicans and Democrats lining up and saying, alright I don’t like a lot of this, but we need it.
So you think the first place people are going to go is the Manchin-Barrasso bill?
Yeah I think in the short-term I think that’s where they’re going to give their best shot.
Both sides have certain parts of that bill they are really unhappy with, and they modified certain parts of it, so [we’ll] come back from recess and everyone’ll [be] taking a fresh look at it and say well I still don’t like this but it’s not as bad as it was before.
There’s some worry in some corners of climate advocacy spaces that they’ll have less of an ear from members of Congress in light of the election results. In listening to more progressive environmentalists who’ve been critical of the bill, is listening to them a politically smart idea? Practically smart idea?
I don’t think it’s a smart idea politically or practically because I do feel this sense of urgency that we’ve got to go now.
With the Barrasso-Manchin bill, we’re still going to have to do all this work. We’re just going to do it in six months or a year or two years down the road and it takes us further and further away from dealing with the issue. The costs are asymptotic.
What climate gains will be made this Congress aside from permitting reform?
I think this great transition’s going to continue. It might slow down a little bit.
There is genuine factual basis that this transition makes sense on so many levels. Politically, it’s not something you want to talk about. But we as a country have to move in that direction. Maybe talk a little less, do a little more? I heard that advice in the musical Hamilton – talk less, smile more. We have to do the opposite, do more and smile less.
What do you mean by the transition being something you don’t want to talk about?
As you’re describing the cost of waiting for people, they can get into the nits and gnats where they can go back to who they represent and say hey, there’s a problem. The same thing happens when we talk about it. Try to talk about the issues in the broadest, most fundamental ways, because that’s the hardest way for it to be attacked. Just having the broad statement is going to be more effective with a large group of people.
So I asked if progress will be made on climate in Congress besides permitting and you didn’t say yes…
No, I’ll say yes. The great thing about the Inflation Reduction Act is that it put a lot of things in play. Carbon capture, there’s a bunch of research projects and a couple of implementations in red states where they are making great progress in terms of how they can get carbon out of the air in an increasingly cost-effective way. I haven’t seen it make any kind of economic sense, but that doesn’t mean they aren’t going to get there. Hydrogen is a huge thing. Looking at some of the new nuclear reactors, where they’re looking at types of fusion reactors, small and large. Climate change is not going to allow us to go and pick out our favorite treats.
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How the Migratory Bird Treaty Act could become the administration’s ultimate weapon against wind farms.
The Trump administration has quietly opened the door to strictly enforcing a migratory bird protection law in a way that could cast a legal cloud over wind farms across the country.
As I’ve chronicled for Heatmap, the Interior Department over the past month expanded its ongoing investigation of the wind industry’s wildlife impacts to go after turbines for killing imperiled bald and golden eagles, sending voluminous records requests to developers. We’ve discussed here how avian conservation activists and even some former government wildlife staff are reporting spikes in golden eagle mortality in areas with operating wind projects. Whether these eagle deaths were allowable under the law – the Bald and Golden Eagle Protection Act – is going to wind up being a question for regulators and courts if Interior progresses further against specific facilities. Irrespective of what one thinks about the merits of wind energy, it’s extremely likely that a federal government already hostile to wind power will use the law to apply even more pressure on developers.
What’s received less attention than the eagles is that Trump’s team signaled it could go even further by using the Migratory Bird Treaty Act, a separate statute intended to support bird species flying south through the U.S. from Canada during typical seasonal migration periods. At the bottom of an Interior press release published in late July, the department admitted it was beginning a “careful review of avian mortality rates associated with the development of wind energy projects located in migratory flight paths,” and would determine whether migratory birds dying because of wind farms qualified as “‘incidental’ takings” – harm or death – under the Migratory Bird Treaty Act.
While not stated explicitly, what this means is that the department appears to be considering whether to redefine these deaths as intentional under the Migratory Bird Treaty Act, according to Ben Cowan, a lawyer with the law firm Troutman Pepper Locke.
I reached out to Cowan after the eagle investigation began because his law firm posted a bulletin warning that developers “holding active eagle permits” might want to prepare for “subpoenas that may be forthcoming.” During our chat earlier this month, he told me that the eagle probe is likely going to strain financing for projects even on private lands that wouldn’t require any other forms of federal sign-off: “Folks don’t want to operate if they feel there’s a significant risk they might take an eagle without authorization.”
Cowan then voiced increasing concern about the migratory bird effort, however, because the law on this matter could be a quite powerful – if legally questionable – weapon against wind development.
Unlike the Endangered Species Act or the eagle protection law, there is currently no program on the books for a wind project developer to even obtain a permit for incidental impacts to a migratory bird. Part of the reason for the absence of such a program is the usual federal bureaucratic struggle that comes with implementing a complex statute, with the added effect of the ping-pong of federal control; the Biden administration started a process for permitting “incidental” impacts, but it was scrapped in April by the Trump team. Most protection of migratory birds under the law today comes from voluntary measures conducted by private companies and nonprofits in consultation with the federal government.
Hypothetically, hurting a migratory bird should be legally permissible to the federal government. That’s because the administration loosened implementation of the law earlier this year with an Interior Department legal opinion that stated the agency would only go after harm that was “intentional” – a term of art under the statute.
This is precisely why Cowan is fretting about migratory birds, however. Asked why the wind industry hasn’t publicly voiced more anxiety about this potential move, he said industry insiders genuinely hope this is “bluster” because such a selective use of this law “would be so beyond the pale.”
“It’s basically saying the purpose of a wind farm is to kill migratory birds, which is very clearly not the case – it’s to generate renewable electricity,” Cowan told me, adding that any effort by the Interior Department would inevitably result in lawsuits. “I mean, look at what this interpretation would mean: To classify it as intentional take would say the purpose of operating a wind farm would be to kill a bird. It’s obviously not. But this seems to be a way this administration is contemplating using the MBTA to block the operation of wind farms.”
It’s worth acknowledging just how bonkers this notion is on first blush. Is the federal government actually going to decide that any operating wind farm could be illegal? That would put entire states’ power supplies – including GOP-heavy states like Iowa – in total jeopardy. Not to mention it would be harmful overall to take operating capacity offline in any fashion at a moment when energy demand is spiking because of data centers and artificial intelligence. Even I, someone who has broken quite a few eye-popping stories about Trump’s war on renewables, struggle to process the idea of the government truly going there on the MBTA.
And yet, a door to this activity is now open, like a cleaver hanging over the industry’s head.
I asked the Interior Department to clarify its timeline for the MBTA review. It declined to comment on the matter. I would note that in mid-August, the Trump administration began maintenance on a federal dashboard for tracking regulations such as these and hasn’t updated it since. So we’ll have to wait for nothing less than their word to know what direction this is going in.
And more on the week’s most important conflicts around renewable energy projects.
1. Santa Fe County, New Mexico – County commissioners approved the controversial AES Rancho Viejo solar project after months of local debate, which was rendered more intense by battery fire concerns.
2. Nantucket, Massachusetts – The latest episode of the Vineyard Wind debacle has dropped, and it appears the offshore wind project’s team is now playing ball with the vacation town.
3. Klickitat County, Washington – Washington Gov. Bob Ferguson is pausing permitting on Cypress Creek Renewables’ Carriger solar project despite a recommendation from his own permitting council, citing concerns from tribes that have dogged other renewables projects in the state.
4. Tippecanoe County, Indiana – The county rejected what is believed to have been its first utility-scale solar project, flying in the face of its zoning staff.
5. Morrow County, Oregon – This county is opting into a new state program that purports to allow counties more input in how they review utility-scale solar projects.
6. Ocean County, New Jersey – The Jersey shoreline might not get a wind farm any time soon, but now that angst is spreading to battery storage.
7. Fairfield County, Ohio – Hey, at least another solar farm is getting permitted in Ohio.
Talking NEPA implementation and permitting reform with Pamela Goodwin, an environmental lawyer at Saul Ewing LLP.
This week’s conversation is with Pamela Goodwin, an environmental lawyer with Saul Ewing LLP. I reached out to her to chat about permitting because, well, when is that not on all of our minds these days. I was curious, though, whether Trump’s reforms to National Environmental Policy Act regulations and recent court rulings on the law’s implementation would help renewables in any way, given how much attention has been paid to “permitting reform” over the years. To my surprise, there are some silver linings here – though you’ll have to squint to see them.
The following chat was lightly edited for clarity.
So walk me through how you see the Trump administration handling renewable energy projects right now under NEPA.
In general, the federal government has been much more reluctant to the timely issue of permits in contrast to what we might be seeing on the more traditional side of things.
But that’s separate from NEPA — it relates to public notice and comments and the opportunity for third parties to get involved, ensuring any decision-making on the government side is done in a way that’s evocative of a fair system. On the NEPA side, I don’t know if they’re going to treat renewables any differently than they’re going to treat other sorts of projects. That’s different, from a policy perspective, [from] how they’re handling the permits.
If, from a policy perspective, the federal government is less inclined to make a determination about a particular project — or if it decides that it doesn’t like wind, for example, and isn’t going to issue a permit — that’s different than the procedural elements associated with a NEPA review.
The Supreme Court recently ruled in the Seven County case that agencies can be granted a lot of deference in their reviews under NEPA, seeing it more as a procedural statute than a substantive roadblock. What will this lead to?
I think that what we’re seeing – and every agency’s different – but what the court said is that lower courts should defer to the agency to establish their own protocols under NEPA. They’ve begun to streamline the process by which they issue permits, issue notices of those permits, and give people the opportunity to comment on them.
What we’re anticipating will happen if the court gets its wishes – and candidly, I think this is a good thing for developers, on both the renewables and non-renewables side – is that we’ll see more expeditious permitting from the federal government.
You may not like the determinations. There’s a possibility that certain permits are denied if the nature of the permit is in conflict with the federal government’s policy and intention. But you’ll get a quicker decision than you used to get. And if there’s a will to issue a permit, you’ll get it faster.
We’ve heard the concept of permitting reform or NEPA reform as a leveling of the playing field, but in this environment, it is not entirely clear that’ll be the case. Where does the battleground turn then for those who get, as you put it, rejections faster?
That’s a great question. Regrettably, the immediate battleground is the courts. There is certainly a right and an opportunity for anybody who feels a determination was incorrect to challenge that, and to challenge the particular agency’s implementation of NEPA.
Okay, but what’s the remedy here if renewables companies are just getting rejections faster from the Trump team?
Without a real-world example, it’s hard to give you legal theories, but they will always exist. It’ll be circumstantial, and good lawyers always come up with good arguments. I don’t think this issue is fully resolved, either. The Supreme Court has done a favor to everybody by at least defining the issue, but now we’ll have to see what happens as agencies make these kinds of determinations.