Sign In or Create an Account.

By continuing, you agree to the Terms of Service and acknowledge our Privacy Policy

Podcast

The Supreme Court’s Double-Edged Change to Permitting Law

Rob and Jesse pick apart Justice Brett Kavanaugh’s latest opinion with University of Michigan law professor Nicholas Bagley.

The Supreme Court.
Heatmap Illustration/Getty Images

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.

Yellow

You’re out of free articles.

Subscribe today to experience Heatmap’s expert analysis 
of climate change, clean energy, and sustainability.
To continue reading
Create a free account or sign in to unlock more free articles.
or
Please enter an email address
By continuing, you agree to the Terms of Service and acknowledge our Privacy Policy
Energy

Residential Solar’s No Good, Very Bad Day

Shares in Sunrun, SolarEdge, and Enphase are collapsing on the Senate’s new mega-bill draft.

Sad solar panels on a roof.
Heatmap Illustration/Abbr. Projects

The residential solar rescue never happened. Shares in several residential solar companies plummeted Tuesday as the market reacted to the Senate Finance Committee’s reconciliation language, which maintains the House bill’s restriction on investment tax credits for residential solar installers and its scrapping of the tax credit for homeowners who buy their own systems.

The Solar Energy Industries Association, a solar trade group, criticized the Senate text, saying that it had only “modest improvements on several provisions” and would “pull the plug on homegrown solar energy and decimate the American manufacturing renaissance.”

Keep reading...Show less
Blue
Politics

AM Briefing: Senate Finance Puts Its Spin on IRA Tax Credit Cuts

On the Senate Finance Committee’s budget proposal, the NRC, and fossil-fuel financing

Senate Finance Puts Its Spin on IRA Tax Credit Cuts
Heatmap Illustration/Getty Images

Current conditions: A brush fire that prompted evacuations in Maui on Sunday and Monday is now 93% containedThe Des Moines metro area issued its first-ever ban on watering lawns due to record nitrate concentrations in nearby riversFor only the fourth time since 1937, Vancouver, British Columbia got no rain at all in the first half of June. The dry streak may finally break tonight.

THE TOP FIVE

1. Senate Slightly Softens House’s Cuts to the IRA

The Senate Finance Committee published its portion of the budget reconciliation bill on Monday night, including details of its highly anticipated plan to revise the nation’s clean energy tax credits. Though the Senate version slightly softens the House’s proposed phase out of tax credits, “the text would still slash many of the signature programs of the Inflation Reduction Act,” my colleagues Emily Pontecorvo and Robinson Meyer write in their breakdown of the bill. Other changes to be aware of include:

Keep reading...Show less
Yellow
The Capitol.
Heatmap Illustration/Getty Images

The Senate Finance committee published its highly anticipated tax proposal for Trump’s One Big, Beautiful Bill on Monday night, including a new plan to revise the nation’s clean energy tax credits.

Senate Republicans widened the aperture slightly compared to the House version of the bill, extending tax credits for geothermal energy, batteries, and hydropower, and preserving “transferability” — a crucial rule that allows companies to sell their tax credits for cash — for years to come.

Keep reading...Show less