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Rob and Jesse pick apart Justice Brett Kavanaugh’s latest opinion with University of Michigan law professor Nicholas Bagley.
Did the Supreme Court just make it easier to build things in this country — or did it give a once-in-a-lifetime gift to the fossil fuel industry? Last week, the Supreme Court ruled 8-0 against environmentalists who sought to use a key permitting law, the National Environmental Policy Act, to slow down a railroad in a remote but oil-rich part of Utah. Even the court’s liberals ruled against the green groups.
But the court’s conservative majority issued a much stronger and more expansive ruling, urging lower courts to stop interpreting the law as they have for years. That decision, written by Justice Brett Kavanaugh, may signal a new era for what has been called the “Magna Carta” of environmental law.
On this week’s episode of Shift Key, Rob and Jesse talk with Nicholas Bagley, a University of Michigan law professor and frequent writer on permitting issues. He is also Michigan Governor Gretchen Whitmer’s former chief legal counsel. Rob, Jesse, and Nick discuss what NEPA is, how it has helped (and perhaps hindered) the environment, and why it’s likely to change again in the near future. Shift Key is hosted by Jesse Jenkins, a professor of energy systems engineering at Princeton University, and Robinson Meyer, Heatmap’s executive editor.
Subscribe to “Shift Key” and find this episode on Apple Podcasts, Spotify, Amazon, or wherever you get your podcasts.
You can also add the show’s RSS feed to your podcast app to follow us directly.
Here is an excerpt from our conversation:
Robinson Meyer: It seems like what the court is doing here is not only basically using this to make a statement, it’s announcing a new jurisprudence on NEPA. We want you to start treating this law really, really differently than you’ve been treating it in the past. And like, we are going to come down into your room and force you to clean up this mess whenever we want to now because of how important we think this is.
Do you think that’s too strong a statement? It seems this is not only declaring what the court’s view on NEPA is, but almost declaring a new plan of action.
Nicholas Bagley: Like many Supreme Court decisions, I think it’s amenable to two competing interpretations. One is exactly as you say: It’s a new era of NEPA jurisprudence, and the basic rule of a NEPA case is now going to be that environmental groups lose. And so I think there’s no way to read the decision except as a walloping loss to environmental groups, at least as a matter of tone and, I think, intention by the Supreme Court.
But there is a narrower reading available, and one that suggests that maybe this decision won’t have as big an effect as maybe the Supreme Court justices want it to. And the reason for that is they didn’t close the door altogether on the judicial evaluation of the reasonableness of its actions. And when a court goes in and says, Hmm, has an agency acted arbitrarily? Again, that’s a multifaceted inquiry. It’s going to involve a lot of different factors. And the court says be deferential, but that’s actually always been the rule.
They use a lot of strident language here, but that strident language is not going to make a lick of difference if you get in front of a highly motivated judge who happens to dislike the project in question in a district court in New Mexico. And that happens. So if you’re an agency and you’re thinking to yourself, Can I cut back on the amount of environmental studies that I do? Can I not investigate these dopey alternatives? You might think to yourself, you know, I have like a 20% or a 30% chance, my odds are a little better than they were before — maybe even a lot better than they were before — at winning if this case is litigated. But they’re also not 100%. So maybe what I ought to do is keep doing what I’ve been doing just to be safe. And I think that’s at least a possibility. We don’t know how it’s going to play out on the ground.
The last thing I’ll say about this is, you said that the Supreme Court is going to act like your mom who’s going to come and tell you to clean up your room.
Meyer: Yeah, exactly. Yes.
Bagley: The trouble is it takes something like, what, 50 cases a year? There are hundreds of these cases brought, and there’s only so much the Supreme Court can do, and in closer cases I think it might just be inclined to let matters lie.
So, you know, I think it is reasonable to think that this is the Supreme Court’s effort to usher in a new era of unique NEPA jurisprudence. It is reasonable to think it is going to have some effects on agency behavior and some effects on lower court behavior. But it may not pretend the revolution that it looks like on its face.
Music for Shift Key is by Adam Kromelow.
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SpaceX has also now been dragged into the fight.
The value of Tesla shares went into freefall Thursday as its chief executive Elon Musk and traded insults with President Donald Trump. The war of tweets (and Truths) began with Musk’s criticism of the budget reconciliation bill passed by the House of Representatives and has escalated to Musk accusing Trump of being “in the Epstein files,” a reference to the well-connected financier Jeffrey Epstein, who died in federal detention in 2019 while awaiting trial on sex trafficking charges.
The conflict had been escalating steadily in the week since Musk formally departed the Trump administration with what was essentially a goodbye party in the Oval Office, during which Musk was given a “key” to the White House.
Musk has since criticized the reconciliation bill for not cutting spending enough, and for slashing credits for electric vehicles and renewable energy while not touching subsidies for oil and gas. “Keep the EV/solar incentive cuts in the bill, even though no oil & gas subsidies are touched (very unfair!!), but ditch the MOUNTAIN of DISGUSTING PORK in the bill,” Musk wrote on X Thursday afternoon. He later posted a poll asking “Is it time to create a new political party in America that actually represents the 80% in the middle?”
Tesla shares were down around 5% early in the day but recovered somewhat by noon, only to nosedive again when Trump criticized Musk during a media availability. The shares had fallen a total of 14% from the previous day’s close by the end of trading on Thursday, evaporating some $150 billion worth of Tesla’s market capitalization.
As Musk has criticized Trump’s bill, Trump and his allies have accused him of being sore over the removal of tax credits for the purchase of electric vehicles. On Tuesday, Speaker of the House Mike Johnson described Musk’s criticism of the bill as “very disappointing,” and said the electric vehicle policies were “very important to him.”
“I know that has an effect on his business, and I lament that,” Johnson said.
Trump echoed that criticism Thursday afternoon on Truth Social, writing, “Elon was ‘wearing thin,’ I asked him to leave, I took away his EV Mandate that forced everyone to buy Electric Cars that nobody else wanted (that he knew for months I was going to do!), and he just went CRAZY!” He added, “The easiest way to save money in our Budget, Billions and Billions of Dollars, is to terminate Elon’s Governmental Subsidies and Contracts. I was always surprised that Biden didn’t do it!”
“In light of the President’s statement about cancellation of my government contracts, @SpaceX will begin decommissioning its Dragon spacecraft immediately,” Musk replied, referring to the vehicles NASA uses to ferry personnel and supplies to and from the International Space Station.
“You can’t just divest from the eco-right after the election,” contends Johannes Ackva of Founder Pledge.
Johannes Ackva likes a contrarian bet. Back in 2020, when he launched the climate program at Founders Pledge, a nonprofit that connects entrepreneurs to philanthropic causes, he sought out “surgical interventions” to support technologies that didn’t already enjoy the widespread popularity of wind turbines and solar panels, such as advanced nuclear reactors and direct air carbon capture.
By late 2023, however, the Biden administration’s legislative sweep was directing billions to the very range of technologies Ackva previously saw as neglected. So he turned his attention to shoring up those political wins.
The modern climate movement came into its own demanding that the world stop shrinking from inconvenient truths. But as polls increasingly showed the 2024 election trending toward Republicans, Ackva saw few funders propping up advocates with any influence over the GOP. Founders Pledge pumped millions into Deploy/US, a climate group where former Republican Representative Carlos Curbelo of Florida served as the top adviser, which then distributed the money to upward of 30 right-leaning climate groups, including the American Conservation Coalition and the Evangelical Environmental Network.
The bipartisan gamble paid off. In April 2024, Founders Pledge received an anonymous $40 million donation to bolster its efforts. Now an anonymous donor has granted Founders Pledge’s climate fund another $50 million, Heatmap has learned.
Founders Pledge declined to say whether the money came from the same unnamed source or separate donors. But the influx of funding has “radically transformed our ability to make large grants,” Ackva told me, noting that the budget before 2024 came out to about $10 million per year.
“The word exponential is overused,” he said. “But that’s roughly the trajectory.”
Amid the so-called green freeze that followed the Trump administration’s rollback of climate funding, Founders Pledge has joined other climate philanthropies in stepping in to back projects that have lost money. When Breakthrough Energy shuttered its climate program in March, Founders Pledge gave $3.5 million to serve as the primary funding for the launch of the Innovation Initiative, started by former staff from the Bill Gates-backed nonprofit.
Ackva said his organization is looking to invest in climate efforts across the political spectrum. But Founders Pledge’s focus on right-of-center groups wasn’t an election-year gimmick.
“You can’t just divest from the eco-right after the election,” he said. “That’s not an authentic way to build a civil society ecosystem.”
As Republicans in Congress proceed with their gutting of green funding, including through Trump’s One Big, Beautiful Bill Act, Ackva said it’s too soon to say whether the political strategy is paying off.
“If you think of grantmaking as making bets, some bets exceed others sooner, but that doesn’t make them bad bets,” Ackva told me. “Ultimately, philanthropy cannot define how a given policy goes. You can adjust the probabilities, maybe level the bets. But obviously it’s larger forces at play that shape how the One Big, Beautiful Bill gets made.”
The Senate may save or even expand parts of the IRA that support baseload power, e.g. nuclear and geothermal. But regardless, Ackva said, climate advocates are making a mistake training their focus so intently on the fate of this one law.
“It’s kind of the only thing that’s being discussed,” he said.
Meanwhile the Infrastructure Investment and Jobs Act, better known as the Bipartisan Infrastructure Law, is set for reauthorization next fall. The Energy Act of 2020 is slated for renewal this year. And funding for the Department of Energy is up for debate as the White House now pushes to expand the Loan Programs Office’s lending authority for nuclear projects by $750 million.
“Those are things we would see as at least as important as the Inflation Reduction Act,” Ackva said.
Given those deadlines, Ackva said he expected other donors to press advocates for plans last year on how to sway Republicans toward more ambitious bills this Congress. But after former Vice President Kamala Harris took over the Democratic ticket last year, he said he’d heard from his grantees “that they were asked what they were going to do with a Harris trifecta.”
“Everyone was betting on Harris to win,” he said. “There’s a very strong ideological lean among climate funders to a degree that was frankly a little bit shocking.”
The partisan divide over climate wasn’t always so pronounced. In 2008, the Republican presidential nominee, John McCain, ran on a more ambitious decarbonization platform than what President Barack Obama proposed in the White House.
There are dueling — though not mutually exclusive — narratives about how the American climate movement over-indexed on one side of the political spectrum. Both stories start in 2010.
The version liberals and leftists will find familiar is one that blames fossil fuel megadonors such as Charles and David Koch for aggressively promoting climate denial among Republican lawmakers.
The version told by Ted Nordhaus, the founder of the Breakthrough Institute think tank where Ackva got his start years before joining Founders Pledge, starts with the failure of the Obama-era cap-and-trade bill to pass through Congress.
When the legislation “went up in flames in 2010,” Nordhaus told me, a bunch of environmental philanthropies hired Harvard professor Theda Skocpol to author a 145-page report on what triggered the blaze.
“The report concluded that the problem is we were too focused on the technocratic, inside-the-Beltway stuff,” Nordhaus summarized. “We needed to build political power so the next time there’s an opportunity to do big climate policy, we would have the political power to put a price on carbon.”
Out of that finding came what Nordhaus called the “two-pronged, boots-on-the-ground” era of the movement, which backed college campus campaigns to divest from fossil fuels and also efforts to prevent new fossil fuel infrastructure such as the Keystone XL pipeline.
Reasonable people could debate the fiduciary merits of scrapping investments in natural gas companies or the value of blocking oil infrastructure whose cancellation spurred more shipments of crude on rail lines that face higher risk of a spill or explosion than pipelines. But once supporting fossil fuel divestment or opposing pipelines became the key litmus tests activists used to determine if a Democrat running for office took climate change seriously, the issue became more ideological.
“That made it impossible for any Democrat to become a moderate on climate, and made it impossible for any Republican to be a moderate on climate,” Nordhaus said. “The Republican Party has its own craziness and radicalism, but a bunch of that is negative polarization.”
To fund an effective “climate right,” Nordhaus said, Founders Pledge should seek out groups that don’t explicitly focus on the climate or environment at all.
“I’d be looking at which groups are all-in on U.S. natural gas, which has been the biggest driver of decarbonization in the U.S. over the last 15 years; which groups are all in and really doing work on nuclear; and which groups are doing work on permitting reform,” Nordhaus said. “That’s how you’re going to make progress with Republicans.”
I asked Ackva where the line would be for funding an eco right. Would Founders Pledge back groups that — like some green-leaning elements of Italian Prime Minister Giorgia Meloni’s party or allies of France’s Marine Le Pen — support draconian restrictions on immigration in the name of reducing national emissions from the increased population?
“That would not be appropriate,” Ackva told me. “When we say we’re funding the eco right, like when we’re funding groups on the left or in the center, the things they are proposing don’t need to be exactly the things we will be prioritizing, but they need to be plausible, high-impact solutions.”
To Emmet Penney, a senior fellow focused on energy at the right-leaning Foundation for American Innovation, it’s an obvious play. The green left that has long dominated climate policy debates “is premised on aggressive permitting and environmental law that makes it impossible to actually build anything useful toward addressing the things they’re most afraid of.”
“It’s become clear to anyone who wants to build anything that what the environmental left has to offer simply doesn't work,” he told me. “Naturally, more centrist organizations who might not even otherwise be slated as right-wing now look that way and are becoming increasingly attractive to people who are interested in building.”
On Senate committees, a public lands selloff, and energy investment
Current conditions: Southern New England will experience its hottest day of the year so far today, with temperatures around 90 degrees Fahrenheit • Record levels of Sargassum seaweed are overwhelming Caribbean resorts • Saharan dust has spread across most of Florida and will continue over the coastal Southeast through this weekend.
1. The Senate’s first pass at IRA repeal cuts huge climate programs ...
On Wednesday evening, Republicans on the Senate’s Environment and Public Works Committee released their section of President Trump’s “One Big, Beautiful” budget reconciliation bill. “At least so far, it’s hardly deviating from the stark cuts to the Inflation Reduction Act that have already passed the House,” my colleague Emily Pontecorvo wrote in her analysis of the contents — although there is one Environmental Protection Agency grant program, for reducing pollution at ports, that had been targeted in by the House bill and is absent from the Environment and Public Works Committee’s text. As in the House bill, the latest text eliminates the $27 billion Greenhouse Gas Reduction Fund, which the Trump administration has sought to kill with accusations of fraud, though it has yet to produce any evidence of impropriety.
Elsewhere in the Senate, however, some Republicans appear more friendly toward preserving at least some IRA tax credits. “I would be in the camp that doesn’t think we need [to do] a full repeal and instead can live with a circumscribed, narrower version of the existing IRA credits,” Senator Todd Young of Indiana, a member of the Finance Committee, said, as reported by Axios. Senator John Curtis of Utah published an op-ed in Deseret News on Wednesday in which he argued that “the right policy solution must navigate tax credits and regulatory reform in what I believe is central to America’s economic future, the planet and our national security: energy.”
2. … and a public lands sell-off is back on the table
Senate Republicans are reviving a plan to sell off public lands to fund President Trump’s tax cuts after their colleagues in the House thwarted a similar proposal, Senator Mike Lee of Utah told reporters on Wednesday. According to the senator, a new version of the plan will be included in the Committee on Energy and Natural Resources’s pass at the bill, which will likely be made public on Monday, Bloomberg reports.
Representative Ryan Zinke of Montana helped lead the charge to kill the earlier version of the proposal in the House, although Lee added that his version would exempt Montana. Still — as I’ve reported — the plan would jeopardize as much as 500,000 acres of public land across Utah and Nevada alone. “These are the places people recreate with their families, they are places to hunt and fish, and they are held in trust for the American people to enjoy for generations to come,” Travis Hammill, the D.C. director for the Southern Utah Wilderness Alliance, said in a statement.
3. 2025 will be a banner year for energy investment, despite economic turbulence: IEA
Despite tariffs, trade wars, and economic uncertainty, the International Energy Agency anticipates a record $3.3 trillion investment in global energy in 2025, per a new report released Thursday. That represents a 2% rise from 2024. “The fast-evolving economic and trade picture means that some investors are adopting a wait-and-see approach to new energy project approvals, but in most areas we have yet to see significant implications for existing projects,” IEA Executive Director Fatih Birol said in a statement about the findings.
Around $2.2 trillion of the total global investment is “going collectively to renewables, nuclear, grids, storage, low-emissions fuels, efficiency, and electrification, twice as much as the $1.1 trillion going to oil, natural gas, and coal,” the report says. Solar specifically is booming, with a forecast of $450 billion in investment by 2025. The overall picture represents an enormous reversal from a decade ago, when fossil fuel investments were 30% higher than electricity generation, grids, and storage. That said, the research also found that investment in grids — at around $400 billion per year — is “failing to keep pace with spending on generation and electrification,” mainly because of “lengthy permitting procedures and tight supply chains for transformers and cables.” Read the full report here.
4. UK solar is having a record year due to unusually sunny spring
Carbon BriefSolar farms in the United Kingdom generated more electricity than ever before in the first five months of the year, according to a newly released accounting by Carbon Brief. The surge in solar energy was 42% higher than over the same period last year, growing from 5.4 terawatt-hours of electricity generated to a record 7.6 terawatt-hours. Carbon Brief credited the record output to the nation’s sunniest spring on record, although the publication notes it was also “aided by rising capacity, which reached 20.2GW in 2024, up by 2.3GW from 17.9GW a year earlier.” You can read the full report here.
5. ‘Atmospheric thirst’ is making droughts more severe: study
While extreme heat almost always has a climate change signal, the same cannot be said for droughts, which have different causes and feedback mechanisms that researchers are still working to understand. A new study published Wednesday in Nature has found that atmospheric evaporative demand — that is, the complex process of water evaporation into the atmosphere, also called “atmospheric thirst” — has increased drought severity by an average of 40%. Over the five years from 2018 to 2022, areas in drought have expanded 74% on average compared to the 1981 to 2017 period, with atmospheric evaporative demand “contributing to 58% of this increase,” the report further found. “We were very much shocked when we saw the results,” Solomon Gebrechorkos, a hydroclimatologist at the University of Oxford and lead author of the study, told The New York Times.
“A large majority of new residential houses and buildings in Germany feature a heat pump as their main heating system,” according to government numbers reported by Clean Energy Wire. “The climate-friendly heating technology was installed in more than two-thirds (69.4%) of the 76,100 homes finished in 2024, a 5% increase compared to 2023.”