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The full conversation from Shift Key, episode three.

This is a transcript of episode three of Shift Key: Is Biden's Climate Law Actually Working?
ROBINSON MEYER: Hi, I'm Rob Meyer. I'm the founding executive editor of Heatmap News and you are listening to Shift Key, a new podcast about climate change and the shift away from fossil fuels from Heatmap. My co-host Jesse Jenkins will join us in a second and we'll get on with the show. But first a word from our sponsor.
[AD BREAK]
MEYER: Hi, I'm Robinson Meyer. I'm the founding executive editor of Heatmap News.
JESSE JENKINS: And I'm Jesse Jenkins, a professor at Princeton University and an expert in energy systems.
MEYER: And you are listening to Shift Key, the new podcast about climate change and the energy transition from Heatmap News. On today's show, we're going to talk about how the IRA, the Inflation Reduction Act, President Joe Biden's big climate law passed in 2022, how it's working, whether it's working. We have new data to shine light on this extremely important question. And we also are going to do as always our upshift and downshift, our thing that gave us hope this week and our thing that maybe has us feeling a little down. So Jesse, ready?
JENKINS: I'm ready. Let's dig in.
MEYER: Let's get into it. In August 2022, President Joe Biden signed the Inflation Reduction Act, the IRA. It's the largest climate law in American history and arguably in global history. And it threw the full financial power of the US federal government behind decarbonization, directing more than $500 billion in grants and tax credits toward replacing old dirty fossil fuel infrastructure with new clean zero carbon technologies. Now, when it passed, modeling, including from the REPEAT Project, which is a collaboration of ZERO Lab at Princeton University, led by my co-host Jesse Jenkins and Evolved Energy Research, a consulting firm, suggested that the law would cut US greenhouse gas emissions 37 to 41% by 2030. And I should say this research when it came out was a big deal. You don't have to take my word for it. The ZERO lab’s work was cited in the Guardian and the New York Times, by the Wall Street Journal, by legislators and by the White House itself.
And it wasn't the only kind of piece of energy modeling that we used to figure out how big a deal the IRA was. There were other reports, one from an organization called the Rhodium Group and another from a nonprofit called Energy Innovation. Now those reports really, I think at the time, helped us understand just how big a deal this law was going to be. We're now just about 18 months after the Inflation Reduction Act has been signed. And that means we're getting to a point where we can see the impact of this legislation. We can start to see whether it's working. And the REPEAT project, in conjunction with the Rhodium Group, MIT and Energy Innovation — all the groups that did this research last time have gone and conducted the first analysis of whether the law is working — our kind of first midstream assessment, 18 months in, of whether the IRA is actually reducing emissions and decarbonizing the economy like we hoped that it would. So that's what we're gonna talk about on the show. The first real analysis of whether Biden's climate law is cutting greenhouse gas emissions, with my co-host Jesse Jenkins, one of the researchers who helped us understand its potential in the first place. So Jesse, I actually want to start by backing up slightly. And before we get into this new data that you have that talks about, you know, whether the law is working, let's start with this: how is the IRA supposed to work?
JENKINS: The IRA is effectively putting clean energy on sale for all Americans. That's how it's supposed to work. It is a set of financial incentives that effectively drop the cost of just about any action you would want to take to help accelerate the clean energy transition by, you know, somewhere in the order of 20 to 50%. So it's a little bit like you know, Black Friday shopping deals or Cyber Monday or whatever your favorite sale is. It’s, you know, using the federal purse to make it easier and a smarter financial decision for households or businesses or utilities or whoever else to just make the greener investment or purchasing decision over the dirtier one.
And it's really quite comprehensive. It involves a set of incentives that cut across really all of the major emitting sectors of the economy. But in particular, all of our modeling from REPEAT Project and our colleagues at Energy innovation and Rhodium Group, indicated that the biggest emissions reductions over the next decade, in particular, would come from the power sector, electricity generation, and the transportation sector, particularly the uptake of electric vehicles.
These are two trends that were already underway before passage of the Inflation Reduction Act. And what we're looking for is evidence that those trends have basically been supercharged by the incentives provided in the act.
MEYER: And luckily my understanding is that those are exactly the two sectors we have new data on today. Is that right?
JENKINS:
That's right. So yeah, this should be a terrifying moment for any modeler — when we get to check our modeling projections against reality. But we did just that. We have data from 2023 now, courtesy of the Clean Investment Monitor Project. If you go to cleaninvestmentmonitor.org, you can check out this data yourself. This is a joint project of the MIT Center for Energy Economic Policy Research and the Rhodium Group. This is led in part by Brian Deese, who is one of the chief economic advisors to President Biden and one of the key architects of the series of laws passed in the last Congress. He was the chair of the National Economic Council and is now an innovation fellow at MIT in helping lead this project.
And what it's doing is, it's basically giving us as close to real time a look at the progress of the clean economy in the United States as I think we can get. It's basically updated every quarter and it's tracking all of the public and private investments in actuality as well as announced projects, that kind of as a leading indicator of what's coming in the future across most of the major sectors that we're talking about here. It's a really helpful data set to gauge our progress. So what we did was we took that data on zero emissions vehicle adoption — so EVs and fuel cell vehicles and plug in hybrids and clean electricity capacity additions — and compared that to what each of our three modeling groups were estimating was likely to happen after passage of the Inflation Reduction Act, and I should add the Bipartisan Infrastructure Law as well, which we were modeling you know back in 2022. So now we have year end 2023 data and the question is, how well are we tracking at least in this first year out from passage of those major laws?
MEYER: I wanna talk in a second about how confident we are that the signal that we're seeing in the data is actually the IRA or the Bipartisan Infrastructure Law, like how confident we are in the Bidenomics signal. But first, let's do the moment of truth. Let's just first get to the data. So in the power sector, what do we see?
JENKINS: What we see in the electricity sector is a new record set for zero carbon electricity generation and storage capacity additions. That's new power plant and battery storage construction. In aggregate, we saw over 32,000 megawatts or 32 gigawatts of new zero carbon generation and storage added to the US grid in 2023. That's about a 32% increase from the rate in 2022. And it edges out a previous record that we saw in 2021 of about 31.6 gigawatts.
So good news is we're setting new record growth rates in total in terms of wind and solar and battery additions. Unfortunately, that does fall on the lower end of what we were projecting in most of the modeling results. We were looking for on average about 46 to 79 gigawatts. So call it, you know, 40 to 80 gigawatts on average of additions in 2023 and 2024. And we fell short of the low end of that range right at 32.3 gigawatts. And so, unless the pace accelerates substantially in 2024, we're probably going to fall a bit behind schedule in terms of capacity additions.
MEYER: And do we have a sense of what's driving that? Because I think that's a very surprising finding, that we're behind schedule in the power sector where I think people feel pretty good generally about the pace of decarbonization or I think where the common wisdom at least is that the pace of decarbonization is like proceeding apace. What's driving this underperformance of the model?
JENKINS: So it's really the difference between solar and wind additions. The solar sector added about 18.4 gigawatts of capacity in 2023. That's up massively from just about 11 gigawatts in 2022. It's about double what we had seen in 2020 which was kind of our reference when we were doing our modeling as we started the REPEAT project in 2021. And so that's looking encouraging and in fact, is running ahead of schedule with the average pace of additions that we saw in REPEAT project results.
Batteries are growing way faster than we expected. And that helps really make the most of those solar capacity additions because solar and batteries are kind of like peanut butter and jelly, they go together quite well. And that's because solar has this nice, regular daily fluctuation, right? From the sun rising and setting. And that pairs really well with batteries, which today in a way lithium ion batteries are best suited for, you know, only a few hours of storage. So they'll charge for three or four hours in the middle of the day when we've got an abundance of sun. And then they'll discharge in the evening to help meet the evening peak of demand when everybody's coming home from work.
The batteries basically helped shift the solar output from the middle of the day to hit that evening peak. And that's, that's really helpful.
Where things are running behind schedule is really in the wind sector, where we only built about half of the peak rate, actually less than half, that we've seen historically in 2023. Additions of wind power in 2023 were only about 6.3 gigawatts, and that's down from nearly 15 gigawatts in each of 2020 and 2021.
So that's a step backwards at a time when we should be smashing new record growth rates across all of these sectors. And that's giving me the biggest concern as we look at in the next couple of years.
MEYER: And that's, I mean, last show we talked about offshore wind and the troubles in offshore wind and how it seems like some big offshore wind projects that we thought might be coming online in the middle of this decade might not be coming online till the end of the decade. But when we talk about wind underperforming in terms of the whole country over the past year, we're really still talking about onshore wind. This is like big turbines in the middle of the Great Plains, not big turbines off the coast of New York, New Jersey, right?
JENKINS: That's right. Yeah, I think I don't think we had any significant offshore wind capacity additions coming in 2024. You know, most of that we were expecting would come in between 2026 and 2030 or 2035. So this is really a story about onshore wind, where if we look at the economics of onshore wind across the country, there's a tremendous number of sites that look very economic given the incentives provided by the Inflation Reduction Act.
And unfortunately, we're just not building out at the pace that would be economically justified. And that is really an indicator that there are a substantial number of other non-economic frictions or barriers to deployment of wind in particular at the pace that we want to see.
MEYER: Before we go on, I just want to make it clear—
JENKINS: Maybe it's worth pausing and unpacking what those incentives look like. But the main one is what's known as a production tax credit that provides a payment of tax credits for every megawatt hour of clean electricity produced over the first 10 years of operations from a new facility. And that credit is worth about $28 per megawatt hour, which is getting pretty close to the average wholesale revenue that you would get just from selling your electricity. So it's basically doubling roughly, or maybe it's an 80% increase, the revenues that a wind or solar facility gets during its first 10 years of operation. And that is a huge boost in terms of the return on investment that people are seeing. And so that is the incentives that the IRA expanded and extended into the long term, you can increase it even further than that, if you meet domestic content requirements or build in so-called energy communities. And so it could be an even larger incentive worth up to 20% more than that if you meet both of those requirements.
MEYER: I was going to say, the back of the envelope number I usually hear is like a 5% increase in interest rates, is like a doubling of project cost. But if you're doubling project revenue, that actually suggests that yes, we're seeing some big non-economic factors hold up offshore wind.
JENKINS: Yeah, so it's definitely true that the increase in interest rates is sucking up some of what would have been the kind of financial tailwinds provided by the Inflation Reduction Act. And that's why I'm eager to see what our new round of modeling results looks like. But the other, I think data point here is that, you know, batteries and solar are also 100% capital investments just like wind. And so interest rates would affect all of them equally in many ways. So there has to be something unique to the wind industry here that's holding the wind sector back while solar and batteries set new growth records. I have my speculation as to what that is, I think it's, you know, three factors and I have no idea, you know what proportion we can assign to each of them.
One of the first things that's I think unique about the wind sector is that it was facing the full expiration of that production tax credit that I was mentioning. So prior to passage of the Inflation Reduction Act, which extended this credit for the long term out through into the 2030’s. We've had this on again, off again history with the production tax credit of expirations every few years. It's been around since 1994 but it's not a permanent part of the tax code. And so every few years, it's up for renewal.
But unlike the ITC, the investment tax credit that was supporting solar previously, which was also on a ramp down but was still in place when the IRA passed, the production tax credit had entirely phased out for projects that commenced construction after the end of 2021. At that point, it had been reduced to only 60% of its full value. So if you wanted to get the full value, you had to finish or start construction by the end of 2019.
And I think we can see that in the data, what that did was that pulled forward the project pipeline, the development pipeline, and encouraged everyone if they could to start their construction by the end of 2019 in order to lock in the full value of that production tax credit. And that's why I think we saw record build outs in 2020 and 2021 because everybody was finishing projects that they commenced in 2019 in order to get the full value of the credit.
MEYER: You think the first factor here is like maybe a pipeline problem, so to speak, where a ton of projects started in the pipeline in 2019, they were completed in 2020 or 2021, and now we're in this fallow period where the projects that started after the IRA passed aren't complete yet, so we don't see them showing up.
JENKINS: That's exactly right. So that's the first factor. So if that's an issue, then what we would expect to see is that the project pipeline is large now and that we would see more projects coming in 2024 and 2025 that were started as the IRA was passed.
Now the other factor that's, I think, a little bit more unique to wind is also the impacts of the supply chain disruptions that we saw around COVID, and the increase in labor costs, particularly in Western countries. And that's because the solar sector and batteries are dominated by China and other Asian manufacturing bases. Whereas wind is really still a Western-produced technology, most of the wind manufacturing is in Europe or the United States.
That's partly because these are such big components, wind turbines, missiles and towers and blades are massive. And so there's less advantage of shipping them around the world. You want to build them closer to where you need them. And so we maintain more of a manufacturing base. I think something like two thirds of all of the content of wind turbines built in the US were manufactured here, whereas we only build about 5% of the solar PV modules in the US in terms of their domestic content right now. So I think that's important because what we saw was, you know, a very different pandemic response, right, in Europe and the US versus China where China largely kept its manufacturing going for most of the pandemic. Whereas the US had, you know, these disruptions and Europe had these disruptions from lockdowns.
We had more rapid inflation, you know, labor costs were going up. And so all of that I think hit the wind industry harder than it hit batteries and solar PV. We see that in the real costs of these projects. So for the first time, we saw real cost increases for all of the technologies we're talking about: wind, solar and batteries. But already in 2023 costs are back down for modules, solar PV modules and battery packs, but they're still up for wind. So I think that's an important factor too.
MEYER: It's not only that China kept the factories going, it's that even in the post pandemic moment— I feel like this is such an important aspect of how the global economy is working right now that hasn't been fully understood— the US did a ton of demand support macro-economically. Not electricity demand, but I mean, we sent checks to people, we did expanded employment, we made sure the consumers kept spending. China really did so much less of that. And so China's pathway to growing its economy to the level that it hopes to grow it right now is entirely through expanding exports and trade.
JENKINS: And so no wonder they were pumping the supply side up, right?
MEYER: All their support has gone to the supply side. And then furthermore, there's just like this structural support to the supply side because Chinese consumers are in such poor condition, basically, that they have to export things they make is their only possibility of breaking even and growing the economy.
JENKINS: Yeah, for now, at least. I'm sure we'll come back to talk about China's transition soon. So I would say those two factors are hopefully transitory, right? The sort of supply shocks are fading. The inflation is ebbing and we should be rebuilding the pipeline.
The third factor is the one that keeps me up at night. And that's just that I worry that wind is just much more difficult to site and much more transmission-dependent than solar and batteries are.
And that's kind of a function of the physics of wind power, which is interesting. Wind speeds and solar radiation, you know, kind of vary about proportionally. The best wind sites in the country are about twice as good as the worst wind sites. And that's true for solar too, like the best solar sites in Arizona or New Mexico have about twice the resource quality as you know, Maine or, you know, somewhere else in New England. And that makes sense because the physics of the wind is driven largely by the impacts of the sun heating different parts of the planet differentially and that moves pressure and temperature around and that drives the wind.
The big difference is that solar panels convert sunlight or insulation into electricity kind of proportionally to the resource quality. So a linearly one for one kind of relationship, whereas wind turbines convert wind speeds to wind power at the wind speed cubed. So if you double the wind speed, you get about an 8x increase in the wind power generation. And what that does is it makes wind much more site-dependent than solar, right? If you have a good wind speed site, you're not just a little bit better than a bad wind speed site, you're way better. And so the best, most economic, you know, attractive projects, they have to be where it's really windy.
And that means they don't have as much flexibility about where to build and those windy locations, you know, right up and down the middle of the Great Plains, for example, tend to be a lot further from where most people live. And so they're also much more dependent on transmission to site those projects than solar projects, where you can kind of move around pretty freely across a broad area without really sacrificing much in terms of resource quality. And therefore you can pick a site that's easier to build, that has less local opposition, that happens to be closer to a transmission line. Maybe you lose 3-5% of your, you know, power output by picking that easy-to-develop-site over maybe the best one around. But it's just not that big a difference whereas for wind, it really could make or break a project.
MEYER: Last question, then I want to move on to EVs, because that's so interesting. But how much does solar and batteries need to overperform to make up for this issue we're seeing with wind?
JENKINS: So if wind can't really get back on the same track as it was in 2020 and 2021 where we're building at least 15 gigawatts a year and kind of growing steadily from there, then it's true that solar and batteries are going to have to step up and kind of fill the gap.
And I think there's a chance that could happen if we look at the results kind of extrapolating out a bit further beyond 2023. We in the REPEAT project are estimating about 26 gigawatts a year of solar additions between now and 2026. So 2023 through 2026, and about 15 gigawatts a year of wind. And so if wind can only do eight or seven, you would have to see solar growing at maybe 35 or 40 gigawatts a year.
And that's actually exactly what the US Energy Information Administration is projecting for the solar sector over the next couple of years. They're projecting that in 2024, we'll build about 44 gigawatts of utility scale solar, of both utility and distributed solar, I should say, and about a similar amount in 2025. And so there's a chance that we actually could see solar kind of over-performing and making up for wind being a laggard and that kind of gets us through the next couple of years. But the growth rate just has to keep smashing new records every year from here on out. And I don't think we can really do that if we're dependent only on solar and batteries, we need both wind and solar pulling their weight. And if the wind industry can't pick things back up, I think we're probably gonna fall short of the targets that we were seeing in our modeling.
[AD BREAK]
MEYER: I want to move now to the other sector that your new research looked at, which is EVs, transportation, vehicles. What is happening in the US vehicle sector?
JENKINS: Yeah, this is one where it's funny, you know, you mentioned that I think most people have pretty good vibes about the power sector but maybe there's some warning signs that wind is lagging. I think we've seen a lot of bad vibes on the EV sector as I wrote for Heatmap a while back.
MEYER: It’s nothing but bad vibes right now!
JENKINS: Yeah, it's just all bad vibes. And yet this is the sector that is unequivocally on track, at least compared to our modeling— maybe not compared to Ford or GM’s sales growth projections— but as a sector, compared to our modeling from REPEAT project, as well as Rhodium and Energy Innovation, the EV transition is actually moving at about the pace that we expected. And that's probably likely to be true for the next several years also, not just for 2023.
MEYER: I just wanted to pause and put a pin in this point because it shocked me when I saw the initial report and I think it is so important. In the power sector, I feel like it's mostly good vibes right now. Like people have a sense that the power sector is decarbonizing at roughly the pace we need. That seemingly is not true! In the electric car sector, in EVs, there's a sense that like EVs are in trouble, the transition is in danger, things aren't going well, it's not going as well as the Biden administration wants or thought it would. And in fact, it's going basically at the pace we thought it would happen.
I just think this is such an important, interesting thing because it is completely the opposite of, if you're just reading the paper, it's completely the opposite of what you would think.
JENKINS: Yeah. And maybe this reflects just that our modeling groups were a little bit more conservative than individual car companies were in their sales growth projections. But we look at new technology adoption and we typically apply an S-curve to that adoption where they're growing at double-digit compound annual growth rates at the beginning. But then they hit, usually, a linear phase where they're growing at a pretty steep rate but it's a straight line rather than continuing to bend upwards like an exponential curve. And what that means is that you would expect the annual growth rates, the percentage growth, to be declining even as the absolute sales growth is increasing because you're building on a much bigger base, right? You know, adding 20% to a million vehicles is easier than adding 20% to 5 million vehicles, right?
MEYER: I mean, this is like a version of the Facebook problem, right? Where eventually just enough humans are Facebook users that Facebook has to find other ways to make money. It can't just keep adding new humans every quarter.
JENKINS: Exactly. So we all modeled these uptake rates pretty similarly as this kind of S-curve where we expected growth to be strong. We expected, I think, supply chain constraints on the production side to persist a bit longer than they did in reality. So that's an interesting divergence from at least our kind of underlying thinking at REPEAT. We thought that it would be harder to ramp up manufacturing capacity as quickly as the auto industry has.
MEYER: Huh!
JENKINS: But in general, you know, we are expecting to see what we saw. Actually it’s interesting, in 2023, we actually saw the annual growth rate go up. In 2022, the growth rate for zero-emissions vehicles, and that includes EVs and plug-in hybrids as well as fuel cells (although they’re a rounding error) went up by about 43%, 44% in 2022. And that growth rate accelerated in 2023 to 52%. So despite all the vibes about slowing growth, there's actually no evidence of that, at least on an annual basis. 2023 grew faster in compound annual growth terms, percentage growth terms, than 2022. But we would expect that growth rate to decline. None of our modeling is expecting a 50% annual growth rate from every year. We would hit 100% sales in just a matter of a few years if that were the case.
Instead, we're expecting the growth rate in 2024 to 2026 to be somewhere between 30 and 44% and to fall even further to somewhere between about 15 and 27% from 2027 to 2030. You know, exactly following that S-curve where the annual growth rate is declining as we hit that linear phase.
MEYER: I just want to be clear, this is in the absence of any technology-forcing policy, like new EPA rules that say you have to sell a certain number of EVs per year.
JENKINS: We do include the states that have been following California in adopting the Advanced Clean Cars to standard, which is their requirement that by 2035, 100% of vehicles need to be zero-emissions vehicles, vehicles sold, I should say in 2035 need to be zero-emissions vehicles. And so we had included at the state level, some states like that, there's about a dozen that are following in that direction. That's maybe 30% or so of the overall vehicle market in the US. So it's not inconsequential, but it's not the only thing going on. I think we all expect that 2024 will see a slowdown from 2023. But again, that's in line with what we expected in our modeling.
What's actually really interesting, at least from the REPEAT side, is that hybrids, both plug-in hybrids and just regular hybrid electrics, are far outselling our projections from our modeling.
MEYER: The IRA has incentives for some plug-in hybrid vehicles, but it has no incentives for regular hybrid vehicles. Is that right?
JENKINS: That's right. Yeah, that's right. And that's kind of what we expected was that basically hybrids would kind of give way to EVs, and that seems to be not what we're seeing. We're seeing that actually, they're kind of additive, particularly hybrids. Where last year, I think we mentioned this on an earlier show, we sold about as many hybrid electric vehicles as we did battery electric vehicles about 1.1 or 1.2 million of each of them, and that is way higher than what we expected. I think we only expected about a 1 or 2% sale share, which is about where we were in 2019.
And instead hybrid electric vehicles have just grown right alongside EV growth, and that's encouraging from an emissions perspective because those hybrids are emitting about 40% less per mile traveled, probably, than an equivalent sized internal combustion car.
MEYER: They're also going to then go have a long life as a used car, continuing to reduce emissions.
JENKINS: So from a climate perspective, every internal combustion engine vehicle that's sold that's a hybrid instead of a regular one, that's a win.
MEYER: It is funny because I feel like on the one hand, this is surprising. And on the other hand, I can think of multiple new car consumers, like in my life, friends I know, who were buying a new car in the past two years and were EV-curious, they looked at EVs. They kind of quickly decided there were none in their price range or there were none that needed exactly what they needed them to do. And so then they bought a hybrid.
Why did they buy a hybrid? Well, because they wanted to buy an EV, and they couldn't find one they liked. So they bought a hybrid because they felt like that was on the path of the transition, which is not really a rational consumer behavior as I think you would expect from a model. But on the other hand, kind of makes sense from a certain flavor of like, “Oh, well, I wanna help with this, but I can't buy an EV yet, so I'm gonna buy a hybrid.”
JENKINS: Yeah, I mean that was my mental model too because I think that's how you think about it. If you're segmenting the market, there's a certain amount of consumer who cares about the environment, they care about the cost of fueling their vehicle or both. And so they're looking at a hybrid versus a plug-in hybrid versus an EV, and they're going to fall in that range. And our expectation was that the large incentives provided for EVs would basically shift the consumer from a hybrid to the EV. But it looks like either that's not what's happening or there's a larger market out there for EVs than even we anticipated, and it's just that right now that market is still being split between hybrids and EVs.
But there's basically twice as many consumers interested in one of those than we thought, right? Because we sold about 2.2 million hybrids and battery electric vehicles, you know, whereas we were only expecting, you know, a few 100,000 hybrids and then around that many EVs. So, you know, there's a million extra consumers out there that we didn't think would be there in the market in 2023. And again, my thinking was, look, a plug-in hybrid vehicle is always going to be more expensive than a battery electric or an internal combustion car because it's just, both drivetrains crammed into the same vehicle.
MEYER: Right.
JENKINS: It's got a pretty big battery, not as big as an EV, but it's a pretty good size one. It has to keep the internal combustion drivetrain and add the electric motors, you know, and so it's gonna be relative. It's always gonna be a cost premium over an internal combustion car. Whereas a battery electric vehicle, they're getting cheaper and cheaper every year and there's gonna be a point before too long where even the upfront cost is lower. I think the cost of ownership is already at parity, but you're gonna go to the dealership and it's just gonna be cheaper to get in a battery electric car than a internal combustion car because they're simpler to build and they have less parts and batteries are the biggest chunk of the cost and batteries keep getting cheaper year after year.
MEYER: Yeah, there's this argument you hear from Toyota executives, which I've always taken as like 70% cope. Where they say, “Oh, well, actually, you know, plug-in hybrids and regular hybrids make more sense because as long as lithium and these minerals we need for the batteries are scarce, you get more emissions reductions per ton of lithium or per ounce of lithium or per ounce of cobalt, whatever, than you do with, with a plug-in hybrid or a regular hybrid than you would with a pure battery electric vehicle. Do you think that a plug-in hybrid is this range anxiety security blanket where you're able to do a lot of your trips plug-in but, whenever you need—
JENKINS: It depends on the size of the battery. Yeah, in some ways, the plug-in hybrid is the ideal vehicle, right? If you had, you know, a 40 or 30 mile range, that covers most people's daily commute, the all year around town, driving to pick up the kids at soccer, school or whatever. And then when you need to go on a road trip, you've got your gasoline engine and you can go for as long as you want. So in some ways, it's kind of the ideal American car if you didn't think about charging infrastructure.
But of course, as we build out the charging infrastructure and as batteries get cheaper, you know, BEVS get cheaper. I think it will make sense for more and more people to just get rid of the gas part and you don't need the range extender. You know, we are a single car household. We have one EV only and our second car is an e-bike, for riding around town. You know, we put 20,000 miles on our car since we bought it in November of 2022. And we've been on many road trips and we had maybe one or two charging experiences that were suboptimal.
MEYER: [laughs]
JENKINS: But like that is such a small part of my overall driving experience on those 20,000 miles. Most of them, I just wake up in the morning and my car is full with 280 miles, 290 miles of range. That's like enough for a week. And I never have to go to the gas station! The convenience of that so outweighs the one or two frustrating experiences in a long distance trip every year, that I think most people, once they're in a battery electric vehicle, they don't miss the gas at all. We've seen actually in recent consumer reports, trends that consumers who have bought EVs are far more likely to buy a second EV than to go back to internal combustion cars.
Toyota's argument about lithium, I think is intellectually correct, I should say, if you think that lithium is in finite supply. But go look at lithium prices on the market right now. They're in freefall. We are not lithium constrained, right? So, I don't know, it's a good, nice ex post justification for Toyota’s strategy. But basically what Toyota did was they bet big on fuel cell vehicles and they've lost massively. So they're trying to recoup their position by doubling down on the one area where they do have advantage, and that's in hybrids and plug-in hybrids.
MEYER: How would you look at this big— is Paris any good or not? Yes or no, is the IRA working?
JENKINS: I would say yes, I think that we're still within the cone of growth for these sectors that we projected. So I don't think there's any evidence that we're off, you know, way off base yet. Emissions did fall in 2023 as the economy expanded for the first time since the pandemic hit, it’s lower than what we projected in our modeling. So, you know, again, it's early. We should have mentioned this much earlier on, but it's hard to know— I think you alluded this actually in your setup— how much signal there is here from the IRA.
MEYER: Yeah.
JENKINS: Because we spent most of the last 18 months writing tax credit guidance and setting up new grant programs and issuing RFPs and reviewing those and most of the money hasn't actually gotten out the door yet. And so, whatever we're seeing now is just sort of like the early stages of influence from these policies and where the real signal is going to show up is in particularly 2025 and 2026 and 2027. When you have time to build a new factory, to install a new wind farm, to expand our charging infrastructure, and really take advantage of the credits and grant programs and others that were enacted by these laws, which are really just starting to get out the door.
MEYER: One more observation, which is, it is crazy that hybrids especially— I don't want to keep going back to this and I feel like again, we're just seeding topics for a future conversation— but it is crazy that hybrids are popping off during a year when gas prices did not go up.
JENKINS: Yeah!
MEYER: Because I feel like in the past, what we've seen is the only years where Americans don't buy more SUVs, let's say, than they did the previous year, is in years like 2007 or 2022, when gas prices spike to really high, you know, previously unprecedented levels. 2023, gas prices went down.
JENKINS: Maybe the memory is still in people's minds, maybe it's the inflation and the cost of living overall is still very salient for people. And so the ability to save some money on your gas bill is still helpful even if gas is not at its peak inflation levels.
I think the other factor is just that the upfront cost of buying a hybrid has fallen so much that for many models, it's just like a total no brainer. I spend a few $100 more and I get a better car that has more power and less fuel consumption. You know, it just makes a ton of sense from an economic perspective.
MEYER: And I was thinking earlier that in some ways, the presence of battery electric vehicles really defangs conventional hybrids because it is no longer the “lib car.” I mean, I don't think that cultural politics are the entire driver here, but the presence of battery electric vehicles as kind of the new “Democrat car” for lack of a more elegant way of phrasing that particular cultural idea. Okay, what I've learned from this is we need to do like 15 more episodes on cars and we need to do another 15 more episodes on China's macroeconomy and green transition.
JENKINS: Alright, we got the next season lined out.
MEYER: Yeah, let's do Upshift and Downshift. But first, let's take a break.
[AD BREAK]
MEYER: Okay, let's do Upshift/Downshift. Jesse, what is your downshift for the week?
JENKINS: So my downshift is one of the things that I think flew under the radar for a lot of people, is that on February 15th, the US Federal Energy Regulatory Commission approved a new pipeline from Texas to Mexico that will export about 2.8 billion cubic feet of natural gas for the purposes of supplying a new liquefied natural gas plant on the Pacific coast of Mexico. You know, we talked in our first episode about the pause that the Biden administration has put on the review of new LNG export terminals in the US.
This is an export pipeline which I think falls under the same criteria of, you know, having to decide whether it's in the public interest or not. And we just approved another 2.8 billion cubic feet of exports. That's like a quarter of all of our LNG exports today! And this is going to go out as a pipeline, not as LNG, right. It'll leave the US in a pipeline but it will then go to the Pacific coast of Mexico where it will supply a new $15 billion LNG terminal that is meant to supply Asian markets, right? So the ability to get the gas to the Pacific Ocean and then go from there to Asia is, you know, quite advantageous relative to the Gulf coast terminals that we're mostly talking about in the US.
So I just thought this was really interesting, I mean, we've had this big debate in our first episode and across the energy sphere about the role of exports in the US economy of natural gas exports, and here's this really massive pipeline that just kind of snuck in under most people's radar. I almost didn't catch it. But you know, big approval last week of a 2.8 billion cubic feet per day gas export pipeline to Mexico. What’s let you down this week?
MEYER: I feel like I'm about to use a downshift that I will have to use sparingly over the next few months. The presidential election, Jesse! I'm not sure you've heard about it, but there's a presidential election in the United States of America in 2024. And it has me down. Ezra Klein published a really interesting audio essay this past week about calling for Biden to step aside and for a Democratic Convention, an open Democratic Convention later this summer to select a candidate. I think he counseled something in that, which I thought was quite wise, which was that it's February and a lot of Democrats are acting very fatalistically about their candidate, and that's kind of absurd.
It's February, it's too late to get on the primary ballot in a lot of states. But there's still many months to go before the presidential election and nothing is written. There’s still a lot of different possibilities that could happen. It’s just that the outcome of the presidential election is not yet secure. However, at this point, I think it is important to say Biden is losing, which from a strictly climate policy lens would be a really bad thing for climate policy.
And I think what has me most worried about this presidential election and, and which I think, I hope that folks listening to this and folks who were very angry at me when I posted the Ezra Klein essay— I don't know whether I agree with it, I'm not gonna take an advice standpoint here— I will say that what has been so noticeable about the campaign so far is the reluctance to use Biden and the reluctance to put Biden out in public. And that the way to dispel public concerns, which seem to be extremely widespread, understandably, about the president's age, are to have the president out there a lot, talking! Showing that he can campaign, showing that he's up to the task, and the fact that that has not happened as much over the past two weeks and the fact that the president is so unavailable— he's done fewer press conferences than both of his predecessors— I think should give a lot of folks who are interested in US politics, even solely because of climate policy, a lot of pause.
Well, let's turn this around, and what's your upshift?
JENKINS: My upshift is from Jeff Stein at the Washington Post who is an economics reporter there and has been doing some really interesting on-the-ground reporting as to the impacts of the Inflation Reduction Act and other incentives in these climate bills on, you know, local economies around the country. And so he spent some time last week in Michigan with the United Association Union of Plumbers and pipefitters in central Michigan. So this is, you know, a union that does plumbing and HVAC technicians and welding and pipe fitting. And what he found is that the demand for union jobs there is just booming, driven largely by two massive new EV battery plants that are under construction in Michigan, driven by the Inflation Reduction Act and the incentives for domestic battery manufacturing that the law provides, that includes both direct subsidies for manufacturing EVs in the US, as well as tying some of the EV tax credits to the sourcing of domestic or North American assembled batteries.
So it’s a straight line from the passage of the Inflation Reduction Act to the employment boom that they're talking about. He noted that typically this union in central Michigan has fewer than 1000 members and that these two plants alone could hire about 500 full time jobs each from their union. So the entire union would be employed building these two battery plants. And clearly that's gonna create new jobs and new opportunities for union work and well-paid family-supporting jobs in Michigan. I think that that story is playing out across the country. That’s hopefully encouraging in the long term for the politics of the clean energy transition because when people see the clean energy transition as something that's fueling their economic future and not just as about avoiding scary future climate outcomes, I think that has a strong amount of durability and a lot of political salience.
MEYER: I am so curious though to see whether these— I mean, unions are now, the federal government has passed a ton of policy that increases demand for union workers, and like a lot of these unions have to grow in a way they have not been asked to grow in a long time. And I'm so curious to see how that happens.
JENKINS: So, what about you, Rob? Do you have something to close us out on and keep us a little bit more positive than that electoral news?
MEYER: There's a really interesting study that came out earlier this month in the Journal Earth's Future by Mallory L. Barnes et al, she's a scholar at Indiana University in Bloomington, that looked at this question that I think has kind of hung over some climate data for a long time, which is when you look at these global maps of temperature rise and how much different parts of the planet have experienced global warming, often the least amount of warming has happened in the Eastern United States. And you'll sometimes even hear this called “a warming hole” that while the rest of the planet seems to be experiencing, you know, varying levels of global warming and especially at the poles, quite extreme levels of global warming, the Eastern US, which of course, is this extremely important area, if you're talking about global climate policy, the Eastern US isn't experiencing as much warming, at least compared to other places in the world.
So what this study found, the study is called “A Century of Reforestation Reduced Anthropogenic Warming in the Eastern United States.” What the study found is that basically in the Southeast US, especially, a lot of land that used to be tillage or farmland has since become reforested. And that reforestation drives local cooling and that has mitigated a lot of the global warming we'd otherwise expect to see, and that’s why recent temperatures have been cooler than we might have expected with global warming. And so the abstract says, “Ground and satellite-based observations showed that Eastern United States forests cool the land service by 1 to 2 °C annually compared to nearby grasslands and crop lands, with the strongest cooling effect during midday in the growing season when cooling is 2 to 5 °C.”
I just found that really fascinating. Of course, it raises lots of adaptation questions like should we be doing more reforestation in other places in order to generate local cooling in those places? Reforestation has, while not a silver bullet by any means, does also have climate benefits as well. You know, carbon cycle benefits. And so I just thought that was such a cool study and while it might not be kind of encouraging in the conventional sense in the same way that maybe yours was, I just found it to be so engrossing. It made me think about processes being connected to each other in ways I maybe hadn't thought about before. I thought it was really cool.
JENKINS: That is really fascinating. Those are not small effects. Those are quite substantial. So that's really quite interesting. I'm glad you shared that. I've heard a lot of conversation about urban forestation as an adaptation measure, right? Adding urban tree canopies does have appreciable impacts on local heat island effects that you see in cities, and that's maybe an important area of adaptation policy. Some of my colleagues here at Princeton are exploring those kinds of dynamics and there's a lot of interest there. But this is interesting. This is almost continental scale effects, right?
MEYER: Exactly.
JENKINS: Across a broad region for reforestation, not just in cities. So, wow, that's, that's really interesting. Thanks for sharing.
MEYER: Well, Jesse, I feel like we have so much here. There's just like 10 different things we could talk about next week. And I know I want to talk about China, I know I want to talk more about electric vehicles, I want to talk about transportation policy, maybe reforestation.
JENKINS: Yeah, there is so much to unpack here on Shift Key. I hope you all join us again next week as we dive in again.
MEYER: Thank you for listening to Shift Key.
[AD BREAK]
MEYER: Shift Key is a production of Heatmap News. The podcast was edited by Jillian Goodman. Our editor in chief is Nico Lauricella, multimedia editing and audio engineering by Jacob Lambert and Nick Woodbury. Our music is by Adam Kromelow. Thanks so much for listening and see you next week.
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Current conditions: A train of three storms is set to pummel Southern California with flooding rain and up to 9 inches mountain snow • Cyclone Gezani just killed at least four people in Mozambique after leaving close to 60 dead in Madagascar • Temperatures in the southern Indian state of Kerala are on track to eclipse 100 degrees Fahrenheit.
What a difference two years makes. In April 2024, New York announced plans to open a fifth offshore wind solicitation, this time with a faster timeline and $200 million from the state to support the establishment of a turbine supply chain. Seven months later, at least four developers, including Germany’s RWE and the Danish wind giant Orsted, submitted bids. But as the Trump administration launched a war against offshore wind, developers withdrew their bids. On Friday, Albany formally canceled the auction. In a statement, the state government said the reversal was due to “federal actions disrupting the offshore wind market and instilling significant uncertainty into offshore wind project development.” That doesn’t mean offshore wind is kaput. As I wrote last week, Orsted’s projects are back on track after its most recent court victory against the White House’s stop-work orders. Equinor's Empire Wind, as Heatmap’s Jael Holzman wrote last month, is cruising to completion. If numbers developers shared with Canary Media are to be believed, the few offshore wind turbines already spinning on the East Coast actually churned out power more than half the time during the recent cold snap, reaching capacity factors typically associated with natural gas plants. That would be a big success. But that success may need the political winds to shift before it can be translated into more projects.

President Donald Trump’s “drill, baby, drill” isn’t moving American oil extractors, whose output is set to contract this year amid a global glut keeping prices low. But production of natural gas is set to hit a record high in 2026, and continue upward next year. The Energy Information Administration’s latest short-term energy outlook expects natural gas production to surge 2% this year to 120.8 billion cubic feet per day, from 118 billion in 2025 — then surge again next year to 122.3 billion cubic feet. Roughly 69% of the increased output is set to come from Appalachia, Louisiana’s Haynesville area, and the Texas Permian regions. Still, a lot of that gas is flowing to liquified natural gas exports, which Heatmap’s Matthew Zeitlin explained could raise prices.
The U.S. nuclear industry has yet to prove that microreactors can pencil out without the economies of scale that a big traditional reactor achieves. But two of the leading contenders in the race to commercialize the technology just crossed major milestones. On Friday, Amazon-backed X-energy received a license from the Nuclear Regulatory Commission to begin commercial production of reactor fuel high-assay low-enriched uranium, the rare but potent material that’s enriched up to four times higher than traditional reactor fuel. Due to its higher enrichment levels, HALEU, pronounced HAY-loo, requires facilities rated to the NRC’s Category II levels. While the U.S. has Category I facilities that handle low-enriched uranium and Category III facilities that manage the high-grade stuff made for the military, the country has not had a Category II site in operation. Once completed, the X-energy facility will be the first, in addition to being the first new commercial fuel producer licensed by the NRC in more than half a century.
On Sunday, the U.S. government airlifted a reactor for the first time. The Department of Defense transported one of Valar Atomics’ 5-megawatt microreactors via a C-17 from March Air Reserve Base in California to Hill Air Force Base in Utah. From there, the California-based startup’s reactor will go to the Utah Rafael Energy Lab in Orangeville, Utah, for testing. In a series of posts on X, Isaiah Taylor, Valar’s founder, called the event “a groundbreaking unlock for the American warfighters.” His company’s reactor, he said, “can power 5,000 homes or sustain a brigade-scale” forward operating base.
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After years of attempting to sort out new allocations from the dwindling Colorado River, negotiators from states and the federal government disbanded Friday without a plan for supplying the 40 million people who depend on its waters. Upper-basin states Colorado, Utah, Wyoming, and New Mexico have so far resisted cutting water usage when lower-basin states California, Arizona, and Nevada are, as The Guardian put it, “responsible for creating the deficit” between supply and demand. But the lower-basin states said they had already agreed to substantial cuts and wanted the northern states to share in the burden. The disagreement has created an impasse for months; negotiators blew through deadlines in November and January to come up with a solution. Calling for “unprecedented cuts” that he himself described as “unbelievably harsh,” Brad Udall, senior water and climate research scientist at Colorado State University’s Colorado Water Center, said: “Mother Nature is not going to bail us out.”
In a statement Friday, Secretary of the Interior Doug Burgum described “negotiations efforts” as “productive” and said his agency would step in to provide guidelines to the states by October.
Europe’s “regulatory rigidity risks undermining the momentum of the hydrogen economy. That, at least, is the assessment of French President Emmanuel Macron, whose government has pumped tens of billions of euros into the clean-burning fuel and promoted the concept of “pink hydrogen” made with nuclear electricity as the solution that will make energy technology take off. Speaking at what Hydrogen Insight called “a high-level gathering of CEOs and European political leaders,” Macron, who is term-limited in next year’s presidential election, said European rules are “a crazy thing.” Green hydrogen, the version of the fuel made with renewable electricity, remains dogged by high prices that the chief executive of the Spanish oil company Repsol said recently will only come down once electricity rates decrease. The Dutch government, meanwhile, just announced plans to pump 8 billion euros, roughly $9.4 billion, into green hydrogen.
Kazakhstan is bringing back its tigers. The vast Central Asian nation’s tiger reintroduction program achieved record results in reforesting an area across the Ili River Delta and Southern Balkhash region, planting more than 37,000 seedlings and cuttings on an area spanning nearly 24 acres. The government planted roughly 30,000 narrow-leaf oleaster seedlings, 5,000 willow cuttings, and about 2,000 turanga trees, once called a “relic” of the Kazakh desert. Once the forests come back, the government plans to eventually reintroduce tigers, which died out in the 1950s.
In this special episode, Rob goes over the repeal of the “endangerment finding” for greenhouse gases with Harvard Law School’s Jody Freeman.
President Trump has opened a new and aggressive war on the Environmental Protection Agency’s ability to limit climate pollution. Last week, the EPA formally repealed its scientific determination that greenhouse gases endanger human health and the environment.
On this week’s episode of Shift Key, we find out what happens next.
Rob is joined by Jody Freeman, the director of the Environmental and Energy Law Program at Harvard Law School, to discuss the Trump administration’s war on the endangerment finding. They chat about how the Trump administration has already changed its argument since last summer, whether the Supreme Court will buy what it’s selling, and what it all means for the future of climate law.
They also talk about whether the Clean Air Act has ever been an effective tool to fight greenhouse gas pollution — and whether the repeal could bring any upside for states and cities.
Shift Key is hosted by Robinson Meyer, the founding executive editor of Heatmap News.
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:
Jody Freeman: The scientific community, you know, filed comments on this proposal and just knocked all of the claims in the report out of the box, and made clear how much evidence not only there was in 2009, for the endangerment finding, but much more now. And they made this very clear. And the National Academies of Science report was excellent on this. So they did their job. They reflected the state of the science and EPA has dropped any frontal attack on the science underlying the endangerment finding.
Now, it’s funny. My reaction to that is like twofold. One, like, yay science, right? Go science. But two is, okay, well, now the proposal seems a little less crazy, right? Or the rule seems a little less crazy. But I still think they had to fight back on this sort of abuse of the scientific record. And now it is the statutory arguments based on the meaning of these words in the law. And they think that they can get the Supreme Court to bite on their interpretation.
And they’re throwing all of these recent decisions that the Supreme Court made into the argument to say, look what you’ve done here. Look what you’ve done there. You’ve said that agencies need explicit authority to do big things. Well, this is a really big thing. And they characterize regulating transportation sector emissions as forcing a transition to EVs. And so to characterize it as this transition unheralded, you know, and they need explicit authority, they’re trying to get the court to bite. And, you know, they might succeed, but I still think some of these arguments are a real stretch.
Robinson Meyer: One thing I would call out about this is that while they’ve taken the climate denialism out of the legal argument, they cannot actually take it out of the political argument. And even yesterday, as the president was announcing this action — which, I would add, they described strictly in deregulatory terms. In fact, they seemed eager to describe it not as an environmental action, not as something that had anything to do with air and water, not even as a place where they were. They mentioned the Green New Scam, quote-unquote, a few times. But mostly this was about, oh, this is the biggest deregulatory action in American history.
It’s all about deregulation, not about like something about the environment, you know, or something about like we’re pushing back on those radicals. It was ideological in tone. But even in this case, the president couldn’t help himself but describe climate change as, I think the term he used is a giant scam. You know, like even though they’ve taken, surgically removed the climate denialism from the legal argument, it has remained in the carapace that surrounds the actual ...
Freeman: And I understand what they say publicly is, you know, deeply ideological sounding and all about climate is a hoax and all that stuff. But I think we make a mistake … You know, we all get upset about the extent to which the administration will not admit physics is a reality, you know, and science is real and so on. But, you know, we shouldn’t get distracted into jumping up and down about that. We should worry about their legal arguments here and take them seriously.
You can find a full transcript of the episode here.
Mentioned:
From Heatmap: The 3 Arguments Trump Used to Gut Greenhouse Gas Regulations
Previously on Shift Key: Trump’s Move to Kill the Clean Air Act’s Climate Authority Forever
Rob on the Loper Bright case and other Supreme Court attacks on the EPAThis episode of Shift Key is sponsored by ...
This episode of Shift Key is sponsored by ...
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Music for Shift Key is by Adam Kromelow.
This transcript has been automatically generated.
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Robinson Meyer:
[1:25] Hi, I’m Robinson Meyer, the founding executive editor of Heatmap News, and you are listening to Shift Key, Heatmap’s weekly podcast about decarbonization and the shift away from fossil fuels. It is Monday, February 16. This is a semi-emergency episode of Shift Key. And on this show, we are talking about what else is the endangerment finding from the EPA. So at the tail end of last week, the Trump administration repealed the endangerment finding. That is the scientific determination made by the Environmental Protection Agency, the EPA, that carbon dioxide and other greenhouse gases endanger human health and the natural world. It’s a big deal. This is the most aggressive attack on American climate law that I think has come out of the Trump administration so far. It is certainly the most aggressive attack on U.S. climate regulation that President Trump has ever attempted. This is more aggressive, I think, on climate change than anything they did this term or the past term from 2016 to 2020. If this were to become law and be upheld by the Supreme Court, then it would essentially undo the EPA’s ability to regulate greenhouse gases under the Clean Air Act at all and leave future Democratic presidents with a much, much smaller playbook to regulate climate change.
Robinson Meyer:
[2:37] I should say, it took the Trump administration a very long time to tell us how they were actually going to do this. So on Thursday around noon, President Trump went out with Lee Zeldin, the EPA administrator, and said, we’re repealing the endangerment finding. He called climate change a giant scam. He talked about how this was this giant deregulatory action. It then took like 24 hours for the EPA to actually post legal documents saying how they were going to repeal the endangerment finding. They have now done so. And it is now, just to let you into our digital recording studio. We are recording this the very tail end of Friday, because we have finally had time to look at the documents, metabolize them, and be joined by a great legal
Robinson Meyer:
[3:17] expert who’s going to help us understand them. Joining me on this week’s show is Jody Freeman, former, future, and present shift key guest. She’s also the Archibald Cox Professor of Law at Harvard Law School and the Director of the Energy and Environmental Law Program there. And she has worked on these issues directly for a long time. She was Counselor for Energy and Climate Change in the Obama White House from 2009 to 2010. And while in the White House, she was the architect of President Barack Obama’s agreement with the U.S. Auto industry to double fuel economy standards and to regulate greenhouse gases under the Clean Air Act. So this has been an issue, as you’ll hear, near and dear to her heart for a long time. And it’s always fun to talk about this stuff with her. Jody Freeman, welcome to Shift Key.
Jody Freeman:
[4:01] Great to be with you, as always.
Robinson Meyer:
[4:03] So, Jody, you worked on these issues, in fact, this exact set of legal questions in the Obama White House more than a decade ago when these decisions were made that set us up for the Clean Air Act regulating greenhouse gases.
Robinson Meyer:
[4:18] Before we get into this discussion, what do you think is the headline here? How should we think about the announcement that the Trump administration and President Trump just made?
Jody Freeman:
[4:27] So first of all, you’re right. These issues are near and dear to my heart, I have to say. I guess I’d summarize it as they’re going for the juggler, they’re swinging for the fences, any other metaphor like that. They’re going big, trying to essentially knock out the ability of the Environmental Protection agency to regulate greenhouse gases. And, you know, why does this matter? The Clean Air Act has been the main driver, the main legal vehicle for trying to control emissions of these pollutants in our economy. And it’s been the legal authority to regulate transportation sector emissions, which are the issue here in this rule, but also power plant emissions and methane emissions from oil and gas. And it’s also been the basis for our pledges to the international community. So to knock out the Clean Air Act is really consequential and serious, and they are bent on doing it.
Robinson Meyer:
[5:23] Can you lean in a bit on what the Clean Air Act has done? Because the Obama administration, right when it came in, did quite innovative regulatory work using the Clean Air I think the history, even if you closely follow these issues, the history of using the Clean Air Act to regulate climate change has been one legal battle after another. It’s been in and out of the courts. It seems like there’s always fighting about something. The Supreme Court’s always curtailing or hearing arguments that then don’t actually matter because the administration changes. How has the Clean Air Act actually reduced greenhouse gas emissions since 2009?
Jody Freeman:
[6:07] Well, that’s a big question. And it’s a very important question because you’re right. The headline of the Clean Air Act is one battle after the other. But you might also say that’s because it’s such a consequential law. I mean, it’s a major statute to protect American public health. That’s really what this law was passed to do in 1970 and to allow the EPA to regulate harmful pollution. And the only part of what you said in your description there that I might take a little bit of issue with is that it was innovative to address greenhouse gases. I’m not so sure. I think it follows in the pattern of what the Clean Air Act was set up to do.
Jody Freeman:
[6:47] There was an open question, are greenhouse gases a pollutant under the law? Do they fit the definition of what Congress meant when they
Jody Freeman:
[6:57] Defined that term pollutant, that was the open question back in the George W. Bush administration. And it was decided in Massachusetts v. EPA, the famous Supreme Court case that yes, greenhouse gases are pollutants regulable under the act. And that meant they would be treated like other pollution. And so back in the Obama administration, we took the EPA decision seriously and said, okay, now what are the legal steps we have to follow if greenhouse gases are pollutants? And the other question in Mass v. EPA was, could the Bush administration at that time refuse to make a finding that this pollution endangers the public health and welfare for the reasons that it set out? It didn’t want to do that because it knew that making an endangerment finding, that’s what it’s called, would lead to a requirement that they set standards. And they didn’t want to do it. So when the Obama administration came in, we said, well, we do need to make this finding. The science supports it. Greenhouse gases do harm public health or welfare of Americans, not just others, not just globally. And if we make that finding, we’re obligated to set standards first for cars and trucks. And that’s what we did. And the idea is just to control pollution from the cars, just like you would any other pollution from the cars, which makes them cleaner over time.
Jody Freeman:
[8:14] And I think the law, you know, Rob, you asked about what it’s done. I think this law has proven very effective at cleaning up harmful pollution from cars, trucks, and other transportation sources. And I think it’s helped to drive the power sector, you know, power plants toward a decarbonization agenda as well. I actually think it’s been very successful as a lever here to advance cleaner production, cleaner vehicles,
Jody Freeman:
[8:45] Cleaner systems for producing electricity, I think it’s been a major component of what has made the U.S. start to clean up its act, for lack of a better word, in terms of GHG emissions. It was never meant to be the only instrument. You know, the Clean Air Act is one statute. It’s a powerful statute. I think it’s been a hugely successful statute overall in terms of public health generally. You know, there are studies that show that while Clean Air Act regulations can be very expensive, the expenses, the costs are dwarfed by the benefits to the public. And so that’s really important to cite because this is part of why it’s one battle after another. They’re really important rules. They affect really powerful industries. They sue all the time and always have historically going back to the 1970s. There’s nothing new about that. Any major air rule is going to be litigated. And so it is in fact trench warfare, you know, and it has been for decades, I think climate change introduced a new level of contentiousness. There are folks who lost the battle over Massachusetts v. EPA who never thought greenhouse gases ought to be regulated under this law, essentially have never given up. And the truth is, I think they’re largely behind this proposal. They’re now in the Trump administration. And their argument is, they’re not explicitly calling to overturn Massachusetts v. EPA, but the arguments really are a rehash of the losing arguments.
Robinson Meyer:
[10:14] And to some degree, like a number of other Trump regulatory decisions, including what they’ve attempted actually successfully at this point or nearly successfully at this point with independent agencies, what they’ve attempted in some parts of labor law, they’ve basically taken an extremely aggressive regulatory action, acting as if they’ve won a landmark Supreme Court case, and then turned to the Supreme Court and said, don’t you want to give us this landmark ruling that will allow us to actually go do this? Like, it’s an invitation to the Supreme Court to deliver them a landmark ruling, even though the Supreme Court had not yet done so.
Jody Freeman:
[10:51] Yeah, how you put that is so right and so interesting. The idea is they can read their audience. They know they’ve got a new Supreme Court composed of different kinds of justices than back in 2007 when the Mass v. EPA case was decided. They know that all the justices that voted in the majority in that case to say greenhouse gases or pollutants and to say if you make the endangerment finding has to be based on science, they’re gone. And they know they’ve got three justices from the dissent, including the chief, that they are targeting. And they think they have a sympathetic audience and maybe can attract a couple more votes. And what they’re arguing now is a version of or cousins to the kinds of arguments they made in that case that didn’t win at the time, but they think they can win now.
Jody Freeman:
[11:36] And there’s some nuance to what they’re saying. They’re saying two main things.
Robinson Meyer:
[11:39] I was going to say, so let’s get into it. What are they arguing in the legal brief? Because, and before we even get into it, we should say, the president announced that they were repealing the endangerment finding at like 1:30 p.m. on Thursday, and they did not actually release the documents to do it until about 24 hours later. So we’ve only had, at the time we record this, just the end of the day on Friday, we’ve only had these documents for a few hours. But what is their legal argument that they’re making?
Jody Freeman:
[12:05] Just to say, this is a huge package. This is, you know, hundreds of pages, but here’s a super simple summary. There’s a section of the Clean Air Act that says that EPA has to set emission standards for vehicles, cars and trucks to control their pollutants. If those pollutants contribute to air pollution that endangers health or welfare. So there’s two parts of that. First, you decide, is there air pollution that endangers public health or welfare? That would be greenhouse gases in the atmosphere that create global warming that cause harms. That would be the air pollution that endangers health or welfare. And then the first question you ask is, do emissions from our cars and trucks contribute to that? And in 2009, EPA said yes. And the scientific record supports both of those. And now the EPA is saying that’s wrong for two main reasons. First, the quote-unquote air pollution that endangers public health or welfare, well, that’s global pollution. And we can only regulate local or regional pollution that creates direct harms. So we don’t have the authority to regulate that air pollution. Now, that argument seems to conflict directly with Mass v. EPA that said greenhouse gases are pollutants, but it never technically addressed what air pollution was.
Jody Freeman:
[13:28] It said GHGs are pollutants, but it didn’t say it’s air pollution that endangers health or welfare. See my point? So there’s this subtle linguistic difference here, and they’re all over that. And their argument is really a rehash of saying this law is really just about local pollution. And if the court were to go for that argument, they’d be saying, right, EPA can’t regulate anything other than local pollutants. And so essentially that would overturn Mass v. EPA. Okay. The second part of their argument is, and it’s separate. So they all sort of, they want them to stand alone.
Robinson Meyer:
[14:05] They’re saying- And they kind of have set this up so that they could say, well, if you don’t like this argument, you could go for this argument and it would also.
Jody Freeman:
[14:11] Prove- It’s a box of chocolates and the Supreme Court can take whatever chocolate they like. So the idea is Well, even if, you know, we can regulate global pollution that creates an endangerment, we don’t contribute to it. Car and truck emissions don’t contribute to it. They’re just such an infinitesimally, fractionally small share of global emissions. They don’t make a dent. That’s not a contribution. You know, for something to be a contribution, their argument is it has to be enough that if you were to reduce our contribution, it would make a difference and it won’t. Their argument is it doesn’t matter that nothing we do can make a dent in global climate change and the harms the flow from it and so it’s futile they say it’s futile to do it and they jump ahead to setting standards which is not part of this analysis but they sort of merge the next step which would be setting the standards into their analysis when they say and you know doing it would be hugely costly for the American consumer and have all these problems and so they actually lumped two parts of their legal obligation together to help them out.
Jody Freeman:
[15:18] And while at the same time, splintering another part of the analysis to help them out by saying, you know, the way we’re looking at contribution is we look at each category and class of motor vehicle. We shouldn’t consider all the cars and trucks, all the new cars and trucks. We should slice and dice them. Because when we slice and dice them,
Jody Freeman:
[15:37] you see that the share of emissions is so, so nothing. It’s so little so they sort of divide things up when it suits them when it helps them and they merge stuff when it helps them and the collection of arguments is one way or another supreme court we’re either too small a share of this to matter and it’s futile or we don’t even have the authority in the first place to deal with this problem and we would like you very much to shut us down so that no future administration can do this if they want to
Robinson Meyer:
[16:06] And if the future administration is really the way we should think about the ultimate legal consequences of this, of this derogatory action and the Supreme Court case that could potentially result, because to be clear, this, the Trump administration is not going to come out with some kind of future rule on tailpipe pollution or power plant pollution before 2028. This is all about taking away regulatory authority from a future likely Democratic president, right?
Jody Freeman:
[16:33] Right. That’s a key insight because we all know that we’re not going to see any climate regulation out of this administration and we’re going to see the opposite, right? They’re trying to stymie renewable energy. They’re trying to revive coal. They’re going in the exact opposite direction. But that’s what I mean when I say swing for the fences or going for broke. They’re really trying to stop the future administrations from using the Clean Air Act without having Congress amend the law. You know, they’re trying to set it up. So you need a congressional amendment to authorize this regulation. It’s really important to note the Supreme Court has never shown any interest in upsetting the endangerment finding. That’s considered to be the basic scientific finding that undergirds all greenhouse gas rules in the Clean Air Act. And while they’ve narrowed the EPA’s authority to set standards in certain situations or to set it using a certain method that the EPA preferred, like EPA was using a method for power plants that the court rejected and said, you can’t set up a rule that shifts generation from dirty sources to clean sources and so on. The Supreme Court has rejected certain approaches EPA has taken, but they’ve never in all these cases since Mass v. EPA been interested, it would seem, in upsetting the endangerment finding. So it’s odd, right, that they would do so now, but the EPA now thinks they might have a sympathetic audience.
Robinson Meyer:
[17:49] I remember talking to Trump officials during the first Trump administration and the feeling, I mean, this was an earlier class of Trump oil and gas official. But I think their feeling at the time was like touching the endangerment finding, that’s going to be a mess. Like we don’t need to do that and we don’t want to do that because that’s going to really get us into hot water if we were to lose.
Jody Freeman:
[18:12] Can I say one thing about that,
Robinson Meyer:
[18:13] Though? Yeah, please. Yeah.
Jody Freeman:
[18:14] Because what you’re saying is really important. It gets to why they dropped one of their arguments. You’re exactly right. I think historically people have said the science is so solid on greenhouse gas causing global warming and the harms that flow from it are only getting clearer and worse that nobody would want to take issue with the science. But what they’ve done here is say, well, we thought we’d attack the science. Our proposal attacked the science, but we’re dropping all that. And this final rule rests on interpreting the law in the ways I described to say, well, it all turns on what a contribution is and it’s too small. It all turns on the meaning of air pollution and it should be local. And they affirmatively say science has nothing to do with that. We’re not interested in the science. Now, of course, they’re wrong about that. Science does have something to do with that. In fact, the National Academy study that came out in August that updated climate science concluded very clearly that the severity of climate impacts gets worse with every additional ton. So small shares do matter, but they’re trying to say the scientists have nothing to do. This is all legal interpretation.
Robinson Meyer:
[19:19] It’s so funny because we were just about to talk about this, where one key argument that we thought they were going to use because they used it in the proposal, they’ve completely dropped out of this document. And that is this argument about climate science, where the Department of Energy kind of got together this set of, I think they’re often referred to as contrarian. They are the most out there kind of ideological set of seven or eight climate scientists who take some distinction with the official lot, with I think what scientific consensus is, where they say, well, actually, if you look at this particular record, we should be thinking about differently. If you look at this particular statistic, that actually pokes this tiny hole in the way that people like to word these conclusions. And once you poke that tiny hole, we really can’t say whether the climate is changing at all. Now, I do think, I did not originate this line of thinking, but I think it’s a true one. If you read between the lines of this DOE contrarian science report that they put out last year, you actually can still make an affirmative case for the endangerment finding because they are unable, they have to cite existing science and they are unable to knock it all down. And from the existing science they leave standing, I think you can go and say, oh, that sounds like carbon dioxide is a big problem. Maybe not as big of a problem as other people think, but still a big problem we should do something about and someone that’s dangerous. But they’ve totally dropped it.
Jody Freeman:
[20:45] There are so many problems with this. So first of all, it was, like you say, a handful, I think it was five. Now, these scientists and one I think is an economist, they were published in peer-reviewed journals, but they were considered to be far outside the mainstream and their claims have been debunked in the past already. So they were already known to be, as you say, the contrarians. But the problem is DOE handpicked these people. They didn’t create a balanced review process. In fact, they canceled the government’s normal multi-agency review process. So it already looked really suspicious. And then they came out with this report that was just, I mean, just so completely misleading and cherry picked and so on. Now, a federal court has held that the process DOE used violates federal law. So that’s number one. So that’s a problem. And then they scattered, like they disbanded and ran away.
Robinson Meyer:
[21:30] Yeah, rather than try to defend it, they were just like, actually, this is all over. We’re done with this.
Jody Freeman:
[21:34] So it’s not a shocker that EPA concluded that to rely heavily on this would just invite judicial overturning, right? Or at least the eyebrows would go up in the courts and make them look like they were so off base. And it might sort of lead to more skepticism about the rest of their arguments, right? So it makes some sense that they dropped it. The other feature I have to give a lot of credit to the scientific community.
Jody Freeman:
[21:56] You know, filed comments on this proposal and just knocked all of the claims in the report out of the box and made clear how much evidence not only there was in 2009 for the endangerment finding, but much more now. And they made this very clear. And the National Academies of Science report was excellent on this. So they did their job. They reflected the state of the science and EPA has dropped any frontal attack on the science underlying the endangerment finding. Now, it’s funny. My reaction to that is like twofold. One, like, yay science, right? Go science. But two is, okay, well, now the proposal seems a little less crazy, right?
Jody Freeman:
[22:38] Or the rule seems a little less crazy. But I still think they had to fight back on this sort of abuse of the scientific record. And now it is the statutory arguments based on the meaning of these words in the law. And they think that they can get the Supreme Court to bite on their interpretation. And they’re throwing all of these recent decisions that the Supreme Court made into the argument to say, look what you’ve done here. Look what you’ve done there. You’ve said that agencies need explicit authority to do big things. Well, this is a really big thing. And they characterize regulating transportation sector emissions as forcing a transition to EVs. And so to characterize it as this transition unheralded, you know, and they need explicit authority, they’re trying to get the court to bite.
Jody Freeman:
[23:28] And, you know, they might succeed, but I still think some of these arguments are a real stretch.
Robinson Meyer:
[25:09] One thing I would call out about this is that while they’ve taken the climate denialism out of the legal argument, they cannot actually take it out of the political argument. And even yesterday, as the president was announcing this action, which I would add, they described strictly in deregulatory terms. In fact, they seemed eager to describe it not as an environmental action, not as something that had anything to do with air and water, not even as a place where they were. They mentioned the Green News scam, quote unquote, a few times. But mostly this was about, oh, this is the biggest deregulatory action in American history. It’s all about deregulation, not about like something about the environment, you know, or something about like we’re pushing back on those radicals. It was ideological in tone. But even in this case, the president couldn’t help himself but describe climate change as I think the term he used is a giant scam. You know, like even though they’ve taken, surgically removed the climate denialism from the legal argument, it has remained in the carapace that surrounds the actual.
Jody Freeman:
[26:12] And I understand what they say publicly is, you know, deeply ideological sounding and all about climate is a hoax and all that stuff. But I think we make a mistake … You know, we all get upset about the extent to which the administration will not admit physics is a reality, you know, and science is real and so on. But, you know, we shouldn’t get distracted into jumping up and down about that.
Jody Freeman:
[26:34] We should worry about their legal arguments here and take them seriously.
Robinson Meyer:
[26:38] How much does this whole argument rely on the major questions doctrine, which is this recent Supreme Court idea or doctrine that if the government, seemingly usually democratic administrations want to do something ambitious under a law that’s already on the books. They’re not allowed to.
Jody Freeman:
[26:58] Well, they need express authorization.
Robinson Meyer:
[26:59] They need express authorization from Congress.
Jody Freeman:
[27:01] And that’s a bit of a trick because many statutes, including the Clean Air Act, broadly delegate authority to agencies, especially when those agencies have to address public health concerns or safety concerns where there’s changing technology over time. The statutes are drawn broadly by Congress specifically to leave room for the agencies to adjust to new developments over time. But the court has now said broad authority isn’t clear enough. You need pointed express authority, and we don’t really know what will qualify, right? It would mean Congress has to be prescient and say, one day there will be something called global climate change, and you should address that too, right? So that is sort of an aspect of this that makes it really hard for Congress to ever anticipate that conditions will change and give authorities power. When you ask how big a deal is this doctrine playing, I think that they could win without it. They don’t need to succeed. It would be a knockout blow to say, look, whatever you think about climate change and whatever you think about cars contributing to it, the bottom line is this agency, meaning us, they’re saying that about themselves. This would be such a big deal to do that we want the Congress to tell us again that we should do it very clearly. That’s a knockout blow. That says, send this back to Congress. It invites the court to really say, we don’t need to get into the details. We just think that’s true. And we’re going to stop the agency there.
Robinson Meyer:
[28:28] I think one line that’s worth pulling out that came out in some of your earlier comments that I just want to spell out for listeners is like the power plant, you know, the Clean Air Act, can be used on any number of polluting facilities or polluting technologies. But the two that are responsible for the most emissions and the two that there’s been the most regulation about are cars and trucks, moving vehicles, and power plants. And what happened first, what Mass v. EPA is about, is whether California or the EPA could regulate greenhouse gas emissions from cars. And regulating greenhouse gas emissions from cars has actually been relatively straightforward. Forward and the automakers have accepted it, it’s then taking that and apply taking the fact that you can regulate greenhouse gas emissions and applying it to power plants that has been the thing that’s bumped in and out of the courts for the, you know, 15 years.
Jody Freeman:
[29:21] Well, I agree with you that regulating car and truck emissions is really very straightforward. And on top of it all, it doesn’t really meet the test for being a, quote, major question, because this is something EPA has done since the 1970s. They set standards for auto manufacturers that they have limits on how much pollution per mile the cars can produce. And that’s just very well understood. And it definitely forces internal combustion engines to get cleaner over time. And it has driven some additional plug-in hybrids and battery electric vehicles. But this idea that it’s forcing an abandonment of the internal combustion engine and everybody has to drive an EV is false. And even the EPA’s most ambitious car and truck standards issued under the Biden administration had a very significant share of internal combustion engines still. Nobody is forced to drive anything they don’t want to drive.
Robinson Meyer:
[30:11] I just want to say that very clearly. That’s right, though. I do think that the Biden administration, or at least there’s some political messaging that like they didn’t help themselves there, where these things initially come out. They want to describe, they want, and the Biden administration wants to show to environmental groups and environmentalists how far it’s going.
Jody Freeman:
[30:28] This is the tension. You have a Supreme Court that says, major questions, watch out. You shouldn’t do transformative stuff without express authority. You have politicians standing up to say, look how transformative we are. And not a great media strategy if it’s going to come back to bite you in court.
Robinson Meyer:
[30:45] Well, and ultimately what this may require is environmental groups that can translate for politicians. So politicians can say, we’re actually doing completely boring and uninteresting stuff with the power sector and with cars. You don’t need to worry about it at all. It’s not going to change your life. And then environmental groups can be, they’re actually really going to reduce emissions a lot.
Jody Freeman:
[31:03] The other thing I just want to mention is that in this rule, EPA is making a lot of this case called Loper, Loper Bright, which overturned the very famous Chevron doctrine. And all that means, I mean, people may have been following this. I think you probably have talked about it on your show.
Jody Freeman:
[31:18] All that new case Loper means is that courts will interpret statutes, and there’s no deference to agencies when the language is ambiguous, okay? When the language is ambiguous, the courts will decide. But sometimes the language will give the matter to the agency. Sometimes the matter will delegate the discretion to the agency, and that instance is happening here because this section of the law says in the administrator’s judgment, you know, does the pollutant contribute to air pollution and so on. So they’re trying to suggest that this Loper case changes everything and somehow it should lead them to rethink what they did in Massachusetts v. EPA. But that is completely wrong because, bear with me here, in Mass v. EPA, the court expressly cited the prior cases that raised this major questions idea. And they rejected that argument and said, no, this statute’s clear. This statute means one thing. And the one thing is pollutants include greenhouse gases. So this sort of thing about Loper Bright and rejecting Chevron, it’s sort of beside the point because the court has said the law is already clear.
Robinson Meyer:
[32:37] And I would say that in the course of reporting the story, I’ve actually been surprised by how clear the law is, how clearly the law does seem to apply to greenhouse gases. There’s this term of art that’s in the law, which is welfare that I think we summarize in our story is like the natural world. But when you look at the law, the law is like, this is about soils. This is about water. This is about vegetation. This is about animal life. This is about human property. This, it’s about the climate. Like, the law is quite clear.
Jody Freeman:
[33:05] Your wellbeing and economics.
Robinson Meyer:
[33:07] Yeah. And welfare is meant that this other term that, you know, does a certain pollutant endanger human health or welfare, that welfare should be taken extremely expansively.
Jody Freeman:
[33:18] The bottom line here is, you know, there are folks who are deeply committed
Jody Freeman:
[33:23] to the idea that this law should never have been used to do anything about climate change. It was a misapplication, and they’re back fighting that fight. I don’t agree with that. I think the statute is perfectly capable of being legitimately used to address climate change because I do think greenhouse gases fit the definition of pollution. If you want to fight about how stringent the standard should be, that’s something to have a discussion about. But the Act also addresses that. When EPA sets the standards for cars and trucks, when it sets the standards for power plants, they have to consider cost. They have to consider technological feasibility. They have to consider lead time when it comes to cars and trucks. In other words, Congress thought about making sure the agency couldn’t do extreme things without considering the implications. So I do think this is a rather well thought through statute and its application, at least to cars and trucks. The issue we’re talking about, as you said, is pretty straightforward.
Robinson Meyer:
[34:18] Let’s say that the repeal is upheld, that the Supreme Court says that actually, yes, the Clean Air Act doesn’t apply to greenhouse gases. Does that have unintended upside for state or local governments? Because one thing that started to some climate activists or climate groups have started to say is like, look, states and local governments have wanted to pass laws penalizing oil and gas companies or finding some kind.
Robinson Meyer:
[34:43] Of responsibility for oil among oil and gas companies for climate change. The argument that oil and gas companies, fossil fuel companies have made in court is like, look, we’re actually not responsible in these kind of common law terms or under this part of the law, because the Clean Air Act regulates greenhouse gases. And therefore, we have legal immunity at the state and local level and from civil law claims, because this is actually a federal issue. And as long as the EPA is regulating greenhouse gas, we can’t be found liable for that. If the Supreme Court were to go in and say, okay, actually, clean air doesn’t apply to greenhouse gases, does that create this legal opening? Or can the Supreme Court just as easily close that opening the moment they create it?
Jody Freeman:
[35:25] This is a hard question because those lawsuits that have proceeded to some extent, the sort of nuisance cases seeking damages or some other remedy because of power plants or oil and gas companies’ contributions to emissions, they have largely failed because of a causation problem proving the linkage between those emissions and the impact that’s a hard thing to do in tort law right the chain of causation the other reason you cited is also real which is we have another supreme court decision that says when congress delegates greenhouse gas regulation dpa under the clean air act plaintiffs can’t come into federal courts and plead nuisance cases. Those cases are precluded. The federal court common law claims are precluded by the Clean Air Act, which gave the matter to the EPA.
Jody Freeman:
[36:16] You’re saying, well, if the court says it doesn’t belong with the EPA, maybe they can come back into federal court and file these nuisance claims again. I have no doubt that a decision that holds, if it were to happen, that the Clean Air Act doesn’t cover greenhouse gases would unleash a chaotic barrage of litigation. But I’m not sure all of that succeeds, partly because there are complicated landing spots where the court could wind up saying something as thread the needle-ish as, well, EPA still has authority to regulate greenhouse gases as pollutants. That’s true. But in this instance, it doesn’t reach the contribution threshold that would be required. It’s not a significant enough contribution so EPA can choose not to regulate because it’s too small a share of the global problem. And that leaves us in this no man’s land of
Jody Freeman:
[37:08] EPA still owns the regulatory issue, but it does nothing about the regulatory issue. And somebody might argue, well, too bad, you’re still precluded, right, from bringing federal common law claims. So I don’t know how that will all play out, but I can guarantee you that certainly there will be follow-up litigation, you know.
Robinson Meyer:
[37:27] Would that, I guess, would that apply? There’s another kind of local climate action we’ve seen lately, these climate superfund laws where a state says, if you sold oil and gas in our state a certain amount, you have to pay into a fund that will then use for climate adaptation. I mean, does, would that kind of...
Jody Freeman:
[37:45] Those are already being attacked by the administration, right? Which argues that they’re unconstitutional and that will play out. I guess I’m not a fan of us pursuing a strategy of exclusively litigation. I think we have to have a strategy of what does new legislation look like, whether or not this case winds up coming down in favor of the Trump administration or they lose. Because let’s face it, the Clean Air Act is a magnificent instrument and very
Jody Freeman:
[38:16] useful for controlling pollution that harms Americans, including greenhouse gas pollution. But it was never meant to do everything on its own. It was never meant to get us everywhere we need to get to address climate change and the harms that flow from it, both mitigation and adaptation. It was never meant to be the only tool that would help us accomplish an energy transition. So it’s time, regardless of this rule rescinding the endangerment finding, regardless of what happens to it, for us to think about new approaches. So that means new legislation when we get an administration and a Congress that wants to do something about this issue, new state level initiatives, new ideas about how to get capital into the market to support renewables and alternatives. And so we have to rethink the whole package of policy approaches. That’s my message, that the Clean Air Act cannot bear the weight that people want to put on it.
Robinson Meyer:
[39:10] And it does seem like if the Supreme Court were to rule that the EPA does get to regulate greenhouse gases, but it can’t do anything about them. That’s like the apotheosis of where they’ve been trying to get for the past 15 years. They’ll finally have done it. They’ll finally have figured out how to.
Jody Freeman:
[39:25] I hope it doesn’t come to that.
Robinson Meyer:
[39:26] The perfect John Roberts decision.
Jody Freeman:
[39:28] And I also want to just defend the Clean Air Act as this law, you know, this historic law, because even if you, if as you pointed out, the power plant standards never got implemented. Right. Like in the Obama administration, they created the clean power plan to try to transition these power plants to cleaner energy. And the court struck it down. Right. Now, this took a long time before they reached it and struck it down. It had never been implemented. And you could say, well, that was a total failure.
Robinson Meyer:
[39:53] They didn’t really strike it down until they put it on the back burner. And then Biden won. And they were like, actually, we’d like to rule on this. We don’t think it’s legal. Yeah.
Jody Freeman:
[40:00] But the point of all this is to say you can make an argument. Well, look, this act hasn’t panned out. Right. We never got these power plant standards anyway. I would just disagree with this. Number one, we’ve had two to three generations of vehicle standards that have helped drive cleaner cars, okay, already saving many, many millions of metric tons of pollution, but also reducing costs for consumers who don’t have to spend as much for gas at the pump, like FYI. So they’ve been very successful with car standards to date. They also, even the so-called failed clean power plan, that process helped to spur a decarbonization conversation among utilities and in the states that helped them plan for the future and was really consistent with the market going in the direction of cheaper renewable energy, solar, wind, et cetera. So I still think the process around the clean power plan was really productive and helpful. And I would give a lot of credit to the Clean Air Act here. Likewise, with methane leaking from oil and gas facilities regulating that getting the oil and gas companies in a conversation about cleaning up their own leaks a valuable product so Even if when we move forward, we’re going to need a new suite of tools, I think we have to give a lot of credit to how the Clean Air Act performed in the first generation of climate regulation.
Robinson Meyer:
[41:20] I’m looking forward to talking about those new tools and what could happen. But for now, we’re going to have to leave it there. Jody Freeman, thank you so much for joining us on Shift Key. Thanks so much for listening. That will do it for our show this week. You can follow me on, as always, on X at @robinsonmeyer or Bluesky or LinkedIn at my name. If you enjoyed Shift Key, leave us a review on your favorite podcast app or send this episode to one of your friends, your most clean, air-act, concerned friend. We’ll be back later this week with a new episode of Shift Key. And until then, Shift Key is a production of Heatmap News. Our editors are Jillian Goodman and Nico Lauricella. Multimedia editing and audio engineering is by Jacob Lambert and by Nick Woodbury. Our music is by Adam Kromelow. Thank you so much for listening and see you soon.