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Why Thursday’s opinion on the Clean Water Act was not entirely out of character for the justice
On Thursday, the Supreme Court sharply limited the Environmental Protection Agency’s ability to protect wetlands under the Clean Water Act. Writing for a five-justice majority, Justice Samuel Alito said that only wetlands with a “continuous surface connection” to a protected body of water were covered by the law. The decision will remove federal protections from millions of acres of swamp, bog, and marsh, allowing companies to dump pollutants into them without penalty or oversight.
The ruling is arguably a more severe rollback to the EPA’s power than last year’s West Virginia v. EPA, which partially curtailed the agency’s authority under the Clean Air Act. In that case, the Court prevented the EPA from regulating carbon pollution in one hypothetical way, but did not prevent it from attempting to regulate emissions at all. Now the Court is lifting wetland protections that have been in place for decades.
Four justices, including the Court’s three liberals, decried the decision. “By narrowing the Act’s coverage of wetlands,” one of them wrote, “the Court’s new test will leave some long-regulated adjacent wetlands no longer covered by the Clean Water Act, with significant repercussions for water quality and flood control throughout the United States.”
Yet the identity of the justice who wrote that sentence may come as a surprise: It was Justice Brett Kavanaugh, a conservative whom President Donald Trump appointed to the Court in 2018. In what was essentially a dissent, Kavanaugh called the Court’s ruling “atextual,” warning it will “create real-world consequences for the waters of the United States.” The case could prevent the government from protecting the Chesapeake Bay or Mississippi River, he said.
The ruling was Kavanaugh’s highest-profile disagreement in an environmental case. (Technically, his dissent was filed as concurrence because all nine justices ruled against the EPA on the limited facts of the case.) And it attracted some notice, given that Kavanaugh, along with Justice Neil Gorsuch and Chief Justice John Roberts, now provide the closest thing that the right-wing Court has to a swing vote. Environmentalists and progressives noted Kavanaugh’s dissent with surprise.
Yet it was not entirely out of character for the justice. Before he was nominated to the Supreme Court, Kavanaugh was seen as a skeptic, but not an enemy, of environmental regulation. Because he previously sat on the Court of Appeals for the District of Columbia, which often hears EPA cases, Kavanaugh had a deeper record on environmental law than most other jurists who join the court.
“He’s not like a Scalia — or, to some extent, an Alito — where you read their opinions and find there’s an antipathy, a hostility, to environmental law,” Richard Lazarus, a Harvard Law professor, told me in 2018 after Kavanaugh was first nominated. “He is a conservative judge and a stickler for the notion of separation of powers. If he’s going to find an agency has sweeping regulatory authority, with significant economic or social implications, he’s going to want to find that Congress really intended it.”
That appears to be what he did in Thursday’s case. He criticized the five-justice majority for “relitigating an issue that Congress settled in 1977,” arguing that lawmakers had always intended for the Clean Water Act to cover wetlands close to, but not directly connected to, protected lakes, streams, and rivers. The Court’s “overly narrow view of the Clean Water Act,” he warned, “will have concrete impact.”
Kavanaugh also sits apart from some of his conservative colleagues for affirming the science of climate change in broad terms. “The earth is warming. Humans are contributing,” he volunteered while hearing a major EPA climate case in 2016. “There is a moral imperative. There is a huge policy imperative,” he continued. “The pope’s involved.” He did not say — crucially — whether he believed that the EPA also had the legal authority to act, although he later ruled against the agency in a similar case.
Yet Justice Amy Coney Barrett, by comparison, has declined to affirm the existence of climate change. During Barrett’s confirmation hearing in 2020, Kamala Harris, then a senator and vice-presidential candidate, asked whether smoking causes cancer and COVID-19 is contagious. Yes, they were, Barrett affirmed, but asked what Harris was driving at.
Then Harris asked: “Do you believe that climate change is happening and threatening the air we breathe and the water that we drink?”
“Again, I wondered where you were going with that,” Barrett replied. “You asked me uncontroversial questions, like COVID-19 being infectious or if smoking causes cancer, and you’re trying to solicit to an opinion from me on a very contentious matter of public debate and I will not do that. I will not express a view on a matter of public policy, especially one that is politically controversial because it is inconsistent with the judicial rule, as I explained.”
Aside from the notable failure to affirm even the scientific existence of climate change, Barrett is incorrect. The open political question about climate change is what, if anything, to do about it — not whether it exists. In the next year, Barrett and her eight colleagues — including Kavanaugh — will get to participate in that debate when she rules on a series of major EPA climate proposals. I suppose we shall learn more about her views — and his — then.
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On the National Climate Assessment, data centers, and tornadoes
Current conditions: Californians who live near the site of January’s devastating Los Angeles wildfires are being urged to get tested for lead poisoning • The Ohio River in waterlogged Louisville, Kentucky, crested at 37 feet on Wednesday • It will be about 60 degrees Fahrenheit and sunny in Brussels today, where European Commission President Ursula von der Leyen announced that the EU is pausing its retaliatory tariffs against the U.S. for 90 days following a similar move from President Trump.
1. Trump takes aim at national climate report
The Trump administration is making moves to gut the program responsible for compiling the National Climate Assessment, a report published every four years examining how climate change is affecting the United States that helps shape government response. The administration is reportedly canceling contracts with the consulting firm that provides most of the staff for the U.S. Global Change Research Program, the federal group responsible for coordinating the report across agencies. The report is required by Congress, but “it’s hard to see how they’re going to put out a National Climate Assessment now,” Donald Wuebbles, a professor in the department of atmospheric sciences at the University of Illinois who has been involved in past climate assessments, toldThe New York Times.
2. IEA: Electricity consumption from data centers to double by 2030
The International Energy Agency published a big report Thursday on how the rise of artificial intelligence will affect energy demand over the next five years. The analysis finds that global electricity consumption from the data centers that power AI will more than double by 2030, and that the U.S. will be the key driver of this growth. “By the end of the decade, the country is set to consume more electricity for data centers than for the production of aluminium, steel, cement, chemicals, and all other energy-intensive goods combined,” the report said. Other key findings as they related to energy and climate:
IEA
3. This year’s tornado reports are off the charts
We’re less than four months into 2025, but already there have been way more tornadoes in the U.S. than what’s considered normal, according to AccuWeather. More than 470 tornadoes have been reported since the start of the year, compared to the historical average of roughly 260. “The frequency and severity of extreme weather in America this year has been alarming,” said Dan DePodwin, AccuWeather’s senior director of forecasting operations. Just two other years in the 16-year record had more tornadoes reported by this time in the season. Tornadoes were reported every day from March 26 through April 7. “A 12-day streak might be typical in May, which is the peak of tornado activity, but it is uncommon for March and early April,” AccuWeather said in a press release.
AccuWeather
4. Trump to New York: End congestion pricing, or else
President Trump’s Department of Transportation escalated its threat this week to retaliate against New York if the state’s Metropolitan Transit Authority, or MTA, does not shut down congestion pricing by April 20. The tolling program, which charges a $9 fee for drivers who enter New York City’s central business district, has only been in effect for three months.
“Make no mistake — the Trump Administration and USDOT will not hesitate to use every tool at our disposal in response to non-compliance later this month,” the agency said in a social media post. The post did not say what those tools might be, but a previous post from Transportation Secretary Sean Duffy on March 20 made a veiled threat to withhold funding from the state if it did not shut down the tolling program. “The billions of dollars the federal government sends to New York are not a blank check,” he said. Duffy notified the MTA on February 19 that he was rescinding federal approval of its congestion pricing program, despite early evidence that it was reducing traffic. The MTA immediately filed a lawsuit in the U.S. District Court for the Southern District of New York challenging Duffy’s actions.
5. Tapestry and PJM partner on AI for the interconnection queue
Google X’s Tapestry project, which focuses on innovations for the electric grid, and grid operator PJM on Thursday announced a partnership that will use artificial intelligence to develop a unified model of the grid’s electricity network. The model will bring in data from dozens of disparate tools into one simplified “Google Maps for electrons,” Page Crahan, Tapestry’s general manager, told Heatmap’s Katie Brigham. The model will give grid operators and project developers the ability to toggle on and off different layers of grid information — a vast improvement over the technical boondoggle grid planners face today. PJM is facing a slew of retiring fossil fuel resources just as electricity demand is ramping up, largely thanks to AI data centers. Meanwhile, PJM has a years-long waitlist full of wind and solar projects seeking permission to connect to the grid that are languishing in no small part due to its slow approval process. Tapestry plans to deliver solutions that PJM can start rolling out this year. The two entities will work together to develop new processes “over the next several quarters “ and “perhaps even the next several years,” Crahan said.
The largest data center currently under construction could consume as much electricity as 2 million households.
The project from Google’s internal incubator program aims to help speed approvals to get more renewables on the grid.
The country’s largest electricity market, PJM, has a problem: It’s facing a slew of retiring fossil fuel resources just as electricity demand is ramping, largely thanks to AI data centers. Meanwhile, PJM has a years-long waitlist full of wind and solar projects seeking permission to connect to the grid that are languishing in no small part due to its slow approval process.
Enter Tapestry, the so-called “moonshot for the electric grid,” as Page Crahan, Tapestry’s general manager, put it on a press call Wednesday. The initiative is a part of Google’s internal project incubator, known simply as X. Today, the tech company and the grid operator announced a partnership that will use artificial intelligence to develop a unified model of the grid’s electricity network, bringing in data from dozens of disparate tools into one simplified “Google Maps for electrons,” as Crahan put it.
The model will give grid operators and project developers the ability to toggle on and off different layers of grid information — a vast improvement over the technical boondoggle grid planners face today. As Crahan explained, they might use one software program that tracks where grid equipment is located, another that models power flow, another that measures the equipment’s thermal capacity, and yet another that runs an economic impact analysis. Then, Crahan said, “each of these software programs will generate a file which creates its own unique model of the grid. And every time a change is made to that one model, it needs to be applied to all of the other models in consideration.” Overall, the siloed nature of these different programs makes it a headache to keep information consistent and up to date across the entire system.
This convoluted process is partially at fault for PJM’s backlogged queue, which in recent years has seen a deluge in new interconnection requests, largely for renewable energy projects. Due to this system overwhelm, PJM put a pause on reviewing applications in 2022, initially expected to last for two years. Now, it’s expected to lift at the end of next year.
Aftab Khan, an executive vice president at PJM, said on the press call that the grid operator knows there’s still more work to be done. “Even though we've made significant progress with tools and automation to manage large numbers of projects in an interconnection cycle, it’s still, end-to-end, about a two-year process,” he said. To expedite this, Tapestry plans to deliver solutions that PJM can start rolling out this year. The two entities will work together to develop new processes “over the next several quarters “ and “perhaps even the next several years,” Crahan said.
Tapestry was formed in 2017 with the mission to “bring the grid out of the industrial age and into the age of intelligence.” In addition to creating a coordinated model of PJM, Tapestry is also developing an AI tool that automates much of the review process for grid interconnection applications, thereby helping to more efficiently validate the feasibility of proposed projects. It’s as simple as dropping a PDF into Tapestry’s AI analytics tool, which can then automatically check the data in the application against other reliable sources.
“By automating and improving the data verification process for things like land rights, equipment and grid impacts, we aim to reduce the burden on the PJM planning team and the energy developers,”Crahan said. She said this will help “reduce the time it takes to evaluate these projects so that capacity can come online faster.”
All of this work builds on previous projects and pilots that Tapestry has been running both domestically and abroad. For example, Tapestry has partnered with the U.S.-based utility and power company AES to develop a vision for the digital, AI-powered grid of the future. And in Chile, Tapestry worked with the national grid operator to deploy planning tools that enable speedy, long-term simulations, allowing operators to make informed decisions about energy needs decades into the future.
“We have been able to take a process that took the planners several days and turn it into a few hours,” Crahan said of the Tapestry’s work expediting grid simulations in Chile. Though she couldn’t cite specific targets for speeding up PJM’s grid interconnection process, “we're looking for significant order of magnitude improvement to support the PJM planners,” Crahan said.
The administration is doubling down on an April 20 end date for the traffic control program.
Congestion pricing has only been in effect in New York City for three months, but its rollout has been nearly as turbulent as the 18-year battle to implement it in the first place.
Trump’s Department of Transportation escalated its threat this week to retaliate against New York if the state’s Metropolitan Transit Authority, or MTA, does not shut down the tolling program by April 20.
The federal agency reposted a CBS New York story on social media that purported it had agreed to allow congestion pricing to remain in place through October, calling the story “a complete lie.”
“Make no mistake — the Trump Administration and USDOT will not hesitate to use every tool at our disposal in response to non-compliance later this month,” the agency said in the post.
The post did not say what those tools might be, but a previous post from Transportation Secretary Sean Duffy on March 20 made a veiled threat to withhold funding from the state if it did not shut down the tolling program. “The billions of dollars the federal government sends to New York are not a blank check,” he said.
Duffy notified the MTA on February 19 that he was rescinding federal approval of its congestion pricing program, which charges a $9 fee for drivers who enter New York City’s central business district. The toll had only just gone into effect in early January, but there was already evidence that it was reducing traffic. The MTA immediately filed a lawsuit in the U.S. District Court for the Southern District of New York challenging Duffy’s actions.
The CBS New York story reported on a joint letter that the MTA and USDOT submitted to the presiding judge mapping out a timeline for the case to proceed. The MTA agreed to file an amended complaint by April 18, and the DOT agreed to respond to it by May 27. Following that, the timeline allows for the back-and-forth over evidence leading up to a ruling to potentially stretch until late October. Both parties called for the judge to reach a decision based on written arguments, without a formal trial.
Despite agreeing to this timeline for the case — the whole point of which is to determine the legality of DOT’s order to terminate congestion pricing — the DOT maintains that New York City must stop charging drivers by April 20.
The MTA refuses to do so. “Congestion pricing is in effect,” Regina Kaplan, the attorney for the MTA, said during a pretrial conference call on Wednesday. “We believe it's working, and as we stated in our complaints, we don't intend to turn it off unless there's an order from your honor that we need to do so.”
In response, Dominika Tarczynska, from the U.S. attorney’s office, told the judge that Duffy is “still evaluating what DOT’s options are if New York City does not comply, and there has been no final decision as to, what, if anything will occur on April 20.”