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On the president’s environmental legacy, NYC congestion pricing, and winter weather

Current conditions: Extreme heat in southeastern Australia triggered fire bans • More than 260 flood alerts are in place across England and Wales • A snow emergency is in effect in Washington, D.C., where lawmakers are set to gather today to certify President-elect Donald Trump’s 2024 victory.
More than 60 million people across 30 states are under weather warnings as a winter storm bears down. At least seven states have declared emergencies: Kansas, Missouri, Kentucky, Virginia, West Virginia, Arkansas, and New Jersey. One of the hardest-hit cities is Kansas City, Missouri, which got about a foot of snow. The system – dubbed Winter Storm Blair by the Weather Channel – is moving east now and will bring six to 12 inches of snow, as well as icy conditions, to the mid-Atlantic. The National Weather Service warned that “travelers should anticipate significant disruptions.” After this storm passes, temperatures will continue to plunge well below normal throughout much of the nation. “Should the cold wave evolve to its full potential, maximum temperature departures could plunge 30-40 degrees Fahrenheit below the historical average from the northern Plains and Midwest to the interior Southeast through the first two weeks of January,” said AccuWeather meteorologist Alex Duffus. The forecast prompted Jim Robb, the CEO of the North American Electric Reliability Corp., to put out a warning via YouTube about the potential for power outages. Robb urged everyone within the power system to prepare for the worst. “The actions you take now may very well help us avoid the consequences of events such as we saw in Texas in 2021 and in the mid-Atlantic in 2022,” he said. As of this morning, about 300,000 customers were without power across Missouri, Illinois, Indiana, Kentucky, Virginia, and West Virginia.
The White House today announced that President Biden will move to permanently ban new offshore oil and gas drilling across huge swathes of U.S. coastal waters. “Biden has determined that the environmental and economic risks and harms that would result from drilling in these areas outweigh their limited fossil fuel resource potential,” the administration said. The 625 million acres included in the protections will cover the entire East Coast, the eastern Gulf of Mexico, the Pacific off the coasts of Washington, Oregon, and California, as well as parts of the Northern Bering Sea in Alaska. As Politico noted, most of those areas are of little interest to the oil and gas industry, but “the eastern part of the Gulf of Mexico is believed to hold large untapped reservoirs of oil.” It will be difficult for the incoming Trump administration to dismantle Biden’s ban, but the fossil fuel industry is likely to challenge it. With this decision, Biden will have conserved more lands and waters than any other U.S. president, the White House added. “President Biden has been a steadfast champion for climate progress from Day One of his administration,” Margie Alt, director of the Climate Action Campaign, said in a statement. “His legacy of conservation and advocacy to protect our climate will leave an indelible mark on the health of our communities and our environment.”
The first congestion pricing scheme in the U.S. officially came into effect on Sunday. Drivers entering lower Manhattan during peak hours will now have to pay $9, which is down from the $15 fee originally proposed. Gov. Kathy Hochul paused the ambitious plan last summer, then hastily reinstated it at the lower rate before the incoming Trump administration could do anything to block it. The program aims to reduce traffic and pollution in New York City, with the Metropolitan Transportation Authority estimating it will cut traffic by 10% and raise money to pay for infrastructure upgrades. Its success – or failure – could help inform other cities that might consider similar moves. A “congestion pricing tracker” is monitoring the new scheme’s effect on commutes in real-time. Here’s a snapshot of the data from the Holland Tunnel yesterday, where commute times seem to have been cut down to about 10 minutes from 30 minutes:
After being re-elected as House speaker on Friday, Mike Johnson made it clear that energy policy would be a top priority for the new Congress. “We have to stop the attacks on liquefied natural gas, pass legislation to eliminate the Green New Deal,” Johnson said. “We’re going to expedite new drilling permits, we’re going to save the jobs of our auto manufacturers, and we’re going to do that by ending the ridiculous EV mandates.” Of course, there is no actual “Green New Deal” to eliminate, nor any EV mandates to end. Those minor details aside, Johnson’s message signalled that the fight over President Biden’s landmark climate and energy policies has only just begun. “It is our duty to restore America’s energy dominance,” Johnson said, “and that’s what we’ll do.”
In case you missed it: The Fish and Wildlife Service on Friday finalized a decision to expand the boundaries of a Georgia wildlife refuge by 22,000 acres. The new boundaries for the Okefenokee National Wildlife Refuge, the largest blackwater swamp in North America, will include some lands that mining company Twin Pines Minerals had hoped to use to mine titanium dioxide. Environmental groups (and the Biden administration) opposed the mine; Interior Secretary Deb Haaland said it “poses an unacceptable risk to the long-term hydrology” of the swamp. In its statement, the FWS called the expansion “minor,” but said it would help “strengthen protection of the hydrological integrity of the swamp, provide habitat for the gopher tortoise, mitigate impacts of wildfires, and provide opportunities for longleaf pine restoration to benefit the red-cockaded woodpecker.”
Thirteen of the world’s busiest oil ports could be badly damaged by rising sea levels as soon as 2070, according to recent scientific analysis.
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The facility will power OpenAI’s 10-gigawatt data center in Pike County, Ohio.
The Trump administration aims to complete its environmental review of what would be the biggest fossil fuel power project in the country in just a few months, Heatmap has learned.
This news follows Monday’s announcement from OpenAI that it intends to lease a new 10-gigawatt data center under development in Pike County, Ohio, financed by a mixture of money from a SoftBank subsidiary and the chip company Nvidia. This AI hyperscale facility — known as the PORTS-Pike project — is expected to draw power from the largest gas power facility ever built in the United States, a 9.2-gigawatt facility sited on federal lands that would be built and owned by the Energy Department.
According to OpenAI, the data center campus will be built and started up in phases, with the first 800 megawatts starting construction this year and operational in 2028. That first phase will rely mostly on existing power infrastructure operated by AEP Ohio. How things progress from there will depend at least in part on the permitting and construction timelines for the new power plant.
Building large infrastructure of any kind on federal land or with significant federal investment typically triggers a review under the National Environmental Policy Act. I’ve been curious to find out what kind of review this particular project was going to get, especially after the administration allowed a NEPA review for a solar project to be repurposed for a data center on federal lands earlier this year.
Turns out some information about the PORTS-Pike permitting process is public. Before OpenAI confirmed its involvement with the site, the Trump administration added the project to the federal FAST-41 permitting dashboard, where it posts regular updates on the timeline for getting federal sign-offs. Per the lone federal notice available about the PORTS-Pike project, it will include “several data center buildings and power plants.” That will require at least two federal greenlights: an Army Corps of Engineers permit and approval from the Fish and Wildlife Service, which is being consulted about potential endangered bats in the project area.
The NEPA permitting work for this historically large data center-plus-fossil fuel power project began on July 10 and will conclude on December 23, the day before Christmas Eve, according to the Trump administration’s estimates. This comes after paperwork to begin the review was submitted to the Army Corps in May, per the federal notice — a total timeline of about seven months.
Those familiar with NEPA and the debate over permitting reform will likely be surprised by the speed of this review. It’s moving fast in part because the project is receiving just an Environmental Assessment, the lesser and smaller type of analysis than the EIS. I do not know why the government decided to take this route because the government’s NEPA review determination is not currently public, but I have asked the Army Corps to explain this move.
I’m not sure exactly how air permitting will fit into this NEPA review, as the Clean Air Act isn’t listed as a review step on the federal dashboard. The Ohio EPA has primary authority over permitting projects like these under the Clean Air Act, and I’ve reached out to them to confirm whether PORTS has submitted a permitting application. The state agency’s permitting database does not have any information on air permitting for the project, though it does include reports from third-party consultants confirming wetlands and protected species warranted reviews from the Army Corps and Fish and Wildlife.
Lastly, these timetables are not sacrosanct. Under the Fiscal Responsibility Act of 2023, agencies are supposed to complete environmental assessments within one year, but nevertheless they regularly fail to meet them. The White House’s Council on Environmental Quality said in a report to Congress last year that from mid-2023 to mid-2025, the Army Corps was the agency that most often missed these statutory NEPA deadlines for environmental assessments.
Still, news of this speedy review for a priority Trump project is sure to excite pro-data center advocates who see expedited construction as an imperative in the global AI arms race. It’s also guaranteed to put a foul taste in the mouths of environmentalists already frustrated by federal revisions to NEPA regulations they say elide analysis of climate impacts.
What’s undebatable in all this is that, as my colleague Robinson Meyer wrote, the PORTS project could ignite a new era of mega-gas plants. This permitting timeline couldn’t be more important for the future of the data center boom — and the nation’s greenhouse gas emissions.
SB Energy, the SoftBank subsidiary behind the data center project, did not provide comment before publication.
A new front opens in the data center wars.
A series of lawsuits filed in federal court asks a big question – are data center moratoria constitutional?
In early August, data center developer DC Blox sued the city of Nashville in federal court to overturn a zoning moratorium stopping them from building a hyperscale facility adjacent to the city zoo. “The Data Center Moratorium, moreover, is a targeted attack against DC BLOX, in violation of federal constitutional protections,” the suit argued, claiming that it defied the corporation’s due process and equal protection rights.
Around the same time, another developer – Wixom Industrial One – filed a federal lawsuit against the city of Wixom, Michigan, to try and “invalidate the city’s illegal police power moratorium” blocking their data center.
These two cases were far from novel or the first of their kind, and they’re now a fresh front in the battle over hyperscale data centers. At least that’s what some who work on these cases say: In April, attorneys with the law firm Vorys published a “client alert” asserting “many moratoria may be vulnerable to statutory, procedural, and constitutional challenges.” The attorneys advised that constitutional arguments against moratoria “may be stronger where a government singles out data centers without a sound factual basis, treats similar land uses differently without a reasonable basis, or adopts a restriction driven more by political pressure than by defensible planning or regulatory objectives.”
Months later, according to court documents, the Vorys attorneys who authored the alert now represent real estate firm Thor Equities in a federal case against the Ohio city of Urbana, arguing the city’s decision to reject their data center project broke “fundamental protections” under the U.S. Constitution. (Vorys and Thor Equities did not respond to requests for comment.)
It’s unclear how many of these kinds of cases have been filed to date. Data on federal court cases is quite opaque. But legal experts and industry attorneys tell me we should expect them to be on the rise as developers seek whatever tools they can find to get projects built.
“Bringing a lawsuit like this is fairly cheap, something they can do at a relatively low cost, and imposes a real cost on local governments to defend themselves,” said Daniel Metzger, director of the Cities Climate Law Initiative at Columbia Law School’s Sabin Center. “The cases out there will be bellwethers. And if successful, there’ll be a lot more of them.”
What developers probably want looks a lot like Hill County, Texas, where an LLC proposing an $80 million data center project was stymied in May by the state’s first countywide moratorium. (It predated Governor Greg Abbott’s temporary freeze of data center development in Texas by three months.) Within a period of only a few weeks, the LLC sued and the county rescinded the pause on approvals. The case was dropped a month later. Local reports state the county had to afterwards pay the corporation $100,000 in legal fees – a drop in the bucket compared to what a drawn-out court battle would have cost the rural county.
Metzger said whether the companies will win these cases is ultimately not the point – their goal is to win a finished data center, not a judicial ruling. By filing expansive litigation in the national court system, a hypothetical developer can exhaust the coffers of a city or county with legal expenses that are chump change compared to would-be billions in private financing for compute infrastructure.
“These lawsuits may deter some local governments from taking steps to oppose data center development, just because of the cost it would impose on them to defend a lawsuit, even if they know they have a strong legal basis for the action they want to take.”
Those I spoke to in private practice about data center developers’ constitutional arguments agreed with Metzger’s assessment that it’s too early to tell whether the companies will win. Generally, they said, a city or county will win this kind of case if it demonstrates a rational basis for its decision-making and courts typically want to defer to governmental autonomy. The onus will be on the developers to prove a moratorium was meritless – that’s the due process challenge – or unfairly targeted their industry in a way other sectors don’t face, which is the basis of the equal protection claim.
“What they’re saying is in essence that these actions the municipality is taking are arbitrary and capricious, which is one of the sort of catch-all standards,” Thomas Allen, a partner at K&L Gates, told me. “They say the laws lack a rational basis. And then they make equal protection claims, saying data centers are being singled out because of political concerns as opposed to actual things relevant to the legislature’s directive. They’re not basing their decisions on the underlying merits of the project but reacting to political pressure.”
“It’s a reliance question and it’s about the treatment of their projects,” added Laura Morton, an attorney with Ashurst Perkins Coie. “It’s always been important to talk about and engage with communities where your infrastructure is planned. Here, I think this is the developers going in, maybe having conversations, and then suddenly they’re getting a reversal after already receiving these approvals and making investments based off of what the conversations and rules were.”
The likelihood of these constitutional challenges reaching higher courts anytime soon is quite low. It’ll be a long time before we see one of these cases reach a verdict, let alone some kind of appeals process come to fruition. Nevertheless, the new legal ambiguity around these local restrictions is an important new facet of the data center wars, including for developers.
“Companies want to act within the law to get [things] done, so whatever tactics they can do to help get the project over the line that are legal and ethical, they may try those,” Allen told me. “And if that includes the pressure of a lawsuit, that’s a judgment they’ll have to make.”
And more on this week’s conflicts around project development.
1. Montgomery County, Pennsylvania – We reached a new normal in the data center backlash, and it all seems to have started in King of Prussia.
2. Columbia County, Wisconsin – The gubernatorial race in this state is transforming local fights over wind projects into must-watch popcorn fodder for anyone obsessed with the state of the energy transition, or national politics for that matter.
3. Shelby County, Alabama – One quick update on the intervention of John Rich, the country star turned Trump’s “special envoy for American landowners,” in an Alabama Power transmission project: it’s getting a lot more elected officials involved.
4. New Jersey – We try to conclude every Hotspots on a positive note. So this week’s silver lining comes to you from the Garden State, where state regulators have approved more than a dozen agrivoltaics projects.