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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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The saga of the Greenhouse Gas Reduction Fund takes another turn.
On July 3, just after the House voted to send the reconciliation bill to Trump’s desk, a lawyer for the Department of Justice swiftly sent a letter to the U.S. Court of Appeals for the D.C. Circuit. Once Trump signed the One Big Beautiful Bill Act into law, the letter said, the group of nonprofits suing the government for canceling the biggest clean energy program in the country’s history would no longer have a case.
It was the latest salvo in the saga of the Greenhouse Gas Reduction Fund, former President Joe Biden’s green bank program, which current Environmental Protection Agency Administrator Lee Zeldin has made the target of his “gold bar” scandal. At stake is nearly $20 billion to fight climate change.
Congress created the program as part of the Inflation Reduction Act in 2022. It authorized Biden’s EPA to award that $20 billion to a handful of nonprofits that would then offer low-cost loans to individuals and organizations for solar installations, building efficiency upgrades, and other efforts to reduce emissions. The agency announced the recipients last summer, before its September deadline to get the funds out.
Then Trump took office and ordered his agency heads to pause and review all funding for Inflation Reduction Act programs.
In early March, buoyed by a covert video of a former EPA employee making an unfortunate and widely misunderstood comparison of the effort to award the funding to “throwing gold bars off the edge” of the Titanic, Zeldin notified the recipients that he was terminating their grant agreements. He cited “substantial concerns” regarding “program integrity, the award process, programmatic fraud, waste, and abuse, and misalignment with agency’s priorities.”
In court proceedings over the decision, the government has yet to cite any specific acts of fraud, waste, or abuse that justified the termination — a fact that the initial judge overseeing the case pointed out in mid-April when she ordered a preliminary injunction blocking the EPA from canceling the grants. But the EPA quickly appealed to the D.C. Circuit Court, which stayed the lower court’s injunction. The money remains frozen at Citibank, which had been overseeing its disbursement, as the parties await the appeals court’s decision.
As all of this was playing out, Congress wrote and passed the One Big Beautiful Bill Act. The new law rescinds the “unobligated” funding — money that hasn’t yet been spent or contracted out — from nearly 50 Inflation Reduction Act programs, including the Greenhouse Gas Reduction Fund. According to an estimate from the Congressional Budget Office, the remaining balance in the fund was just $19 million.
The Trump administration, however, is arguing in court that the OBBBA doesn’t just recoup that $19 million, but also the billions in awards at issue in the lawsuit. Congress has rescinded “the appropriated funds that plaintiffs sought to reinstate through this action,” Principal Deputy Assistant Attorney General Yaakov Roth wrote in his July 3 letter, implying that the awards were no longer officially “obligated” and that all of the money would have to be returned. Therefore, “it is more clear than ever that the district court’s preliminary injunction must be reversed,” he wrote.
Roth cited a statement that Shelley Moore Capito, chair of the Senate Environment and Public Works Committee, made on the floor of the Senate in June. She said she agreed with Zeldin’s decision to cancel the Greenhouse Gas Reduction Fund grants, and that it was Congress’ intent to rescind the funds that “had been obligated but were subsequently de-obligated” — about $17 billion in total. She did not acknowledge that Zeldin’s decision was being actively litigated in court.
On Monday, attorneys for the plaintiffs fired back with a message to the court that the reconciliation bill does not, in fact, change anything about the case. They argued that the EPA broke the law by canceling the grants, and that the OBBBA can’t retroactively absolve the agency. They also served up a conflicting statement that Capito made about the fund to Politico in November. “We’re not gonna go claw back money,” she said. “That’s a ridiculous thought.”
Capito’s colleague Sheldon Whitehouse, a Democrat, offered additional evidence on the floor of the Senate Wednesday. He cited the Congressional Budget Office’s score of the repeal of the program of $19 million, noting that it was the amount “EPA had remaining to oversee the program” and that “at no point in our discussions with the majority, directly or in our several conversations with the Parliamentarian, was this score disputed.” Whitehouse also called up a previous statement made by Republican Representative Morgan Griffith, a member of the House Energy and Commerce Committee, during a markup of the bill. “I just want to point out that these provisions that we are talking about only apply as far, as this bill is concerned, to the unobligated balances,” Griffith said.
Regardless, it will be up to the D.C. Circuit Court as to whether the lower court’s injunction was warranted. If it agrees, the nonprofit awardees may still, in fact, be able to get the money flowing for clean energy projects.
“Wishful thinking on the part of DOJ does not moot the ongoing litigation,” Whitehouse said.
A renewable energy project can only start construction if it can get connected to the grid.
The clock is ticking for clean energy developers. With the signing of the One Big Beautiful Bill Act, wind and solar developers have to start construction (whatever that means) in the next 12 months and be operating no later than the end of 2027 to qualify for federal tax credits.
But projects can only get built if they can get connected to the grid. Those decisions are often out of the hands of state, local, or even federal policymakers, and are instead left up to utilities, independent system operators, or regional trading organizations, which then have to study things like the transmission infrastructure needed for the project before they can grant a project permission to link up.
This process, from requesting interconnection to commercial operation, used to take two years on average as of 2008; by 2023, it took almost five years, according to the National Renewable Energy Laboratory. This creates what we call the interconnection queue, where likely thousands of gigawatts of proposed projects are languishing, unable to start construction. The inability to quickly process these requests adds to the already hefty burden of state, local, and federal permitting and siting — and could mean that developers will be locked out of tax credits regardless of how quickly they move.
There’s no better example of the tension between clean energy goals and the process of getting projects into service than the Mid-Atlantic, home to the 13-state electricity market known as PJM Interconnection. Many states in the region have mandates to substantially decarbonize their electricity systems, whereas PJM is actively seeking to bring new gas-fired generation onto the grid in order to meet its skyrocketing projections of future demand.
This mismatch between current supply and present-and-future demand has led to the price for “capacity” in PJM — i.e. what the grid operator has greed to pay in exchange for the ability to call on generators when they’re most needed — jumping by over $10 billion, leading to utility bill hikes across the system.
“There is definitely tension,” Abe Silverman, a senior research scholar at Johns Hopkins University and former general counsel for New Jersey’s utility regulator, told me.
While Silverman doesn’t think that PJM is “philosophically” opposed to adding new resources, including renewables, to the grid, “they don’t have urgency you might want them to have. It’s a banal problem of administrative competency rather than an agenda to stymie new resources coming on the grid.”
PJM is in the midst of a multiyear project to overhaul its interconnection queue. According to a spokesperson, there are around 44,500 megawatts of proposed projects that have interconnection agreements and could move on to construction. Of these, I calculated that about 39,000 megawatts are solar, wind, or storage. Another 63,000 megawatts of projects are in the interconnection queue without an agreement, and will be processed by the end of next year, the spokesperson said, likely making it impossible for wind and solar projects to be “placed in service” by 2028.
Even among the projects with agreements, “there probably will be some winnowing of that down,” Mark Repsher, a partner at PA Consulting Group, told me. “My guess is, of that 44,000 megawatts that have interconnection agreements, they may have other challenges getting online in the next two years.”
PJM has attempted to place the blame for project delays largely at the feet of siting, permitting, and operations challenges.
“Some [projects] are moving to construction, but others are feeling the headwinds of siting and permitting challenges and supply chain backlogs,” PJM’s executive vice president of operations, planning, and security Aftab Khan said in a June statement giving an update on interconnection reforms.
And on high prices, PJM has been increasingly open about blaming “premature” retirements of fossil fuel power plants.
In May, PJM said in a statement in response to a Department of Energy order to keep a dual-fuel oil and natural gas plant in Pennsylvania open that it “has repeatedly documented and voiced its concerns over the growing risk of a supply and demand imbalance driven by the confluence of generator retirements and demand growth. Such an imbalance could have serious ramifications for reliability and affordability for consumers.”
Just days earlier, in a statement ahead of a Federal Energy Regulatory Commission conference, PJM CEO Manu Asthana had fretted about “growing resource adequacy concerns” based on demand growth, the cost of building new generation, and, in a direct shot at federal and state policies that encouraged renewables and discouraged fossil fuels, “premature, primarily policy-driven retirements of resources continue to outpace the development of new generation.”
The Trump administration has echoed these worries for the whole nation’s electrical grid, writing in a report issued this week that “if current retirement schedules and incremental additions remain unchanged, most regions will face unacceptable reliability risks.” So has the North American Electric Reliability Corporation, which argued in a 2024 report that most of the U.S. and Canada “faces mounting resource adequacy challenges over the next 10 years as surging demand growth continues and thermal generators announce plans for retirement.”
State officials and clean energy advocates have instead placed the blame for higher costs and impending reliability gaps on PJM’s struggles to connect projects, how the electricity market is designed, and the operator’s perceived coolness towards renewables.
Pennsylvania Governor Josh Shapiro told The New York Times in June that the state should “re-examine” its membership in PJM following last year’s steep price hikes. In February, Virginia Governor Glenn Youngkin wrote a letter calling for Asthana to be fired. (He will leave the transmission organization by the end of the year, although PJM says the decision was made before Youngkin’s letter.)
That conflict will likely only escalate as developers rush to start projects — which they can only do if they can get an interconnection services agreement from PJM.
In contrast to Silverman, Tyson Slocum, director of Public Citizen’s energy program, told me that “PJM, internally and operationally, believes that renewables are a drag on the grid and that dispatchable generation, particularly fossil fuels and nuclear, are essential.”
In May, for instance, PJM announced that it had selected 51 projects for its “Reliability Resource Initiative,” a one-time special process for adding generation to the grid over the next five to six years. The winning bids overwhelmingly involved expanding existing gas-fired plants or building new ones.
The main barrier to getting the projects built that have already worked their way through the queue, Repsher told me, is “primarily permitting.” But even with new barriers thrown up by the OBBBA, “there’s going to be appetite for these projects,” thanks to high demand, Repsher said. “It’s really just navigating all the logistical hurdles.”
Some leaders of PJM states are working on the permitting and deployment side of the equation while also criticizing the electricity market. Pennsylvania’s Shapiro has proposed legislation that would set up a centralized state entity to handle siting for energy projects. Maryland Governor Wes Moore signed legislation in May that would accelerate permitting for energy projects, including preempting local regulations for siting solar.
New Jersey, on the other hand, is procuring storage projects directly.
The state has a mandate stemming from its Clean Energy Act of 2018 to add 2,000 megawatts of energy storage by 2030. In June, New Jersey’s utility regulator started a process to procure at least half of that through utility-scale projects, funded through an existing utility-bill-surcharge.
New Jersey regulators described energy storage as “the most significant source of near-term capacity,” citing specifically the fact that storage makes up the “bulk” of proposed energy capacity in New Jersey with interconnection approval from PJM.
While the regulator issued its order before OBBBA passed, the focus on storage ended up being advantageous. The bill treats energy storage far more generously than wind and solar, meaning that New Jersey could potentially expand its generation capacity with projects that are more likely to pencil due to continued access to tax credits. The state is also explicitly working around the interconnection queue, not raging against it: “PJM interconnection delays do not pose a significant obstacle to a Phase 1 transmission-scale storage procurement target of 1,000 MW,” the order said.
In the end, PJM and the states may be stuck together, and their best hope could be finding some way to work together — and they may not have any other choice.
“A well-functioning RTO is the best way to achieve both low rates for consumers and carbon emissions reductions,” Evan Vaughan, the executive director of MAREC Action, a trade group representing Mid-Atlantic solar, wind, and storage developers, told me. “I think governors in PJM understand that, and I think that they’re pushing on PJM.”
“I would characterize the passage of this bill as adding fuel to the fire that was already under states and developers — and even energy offtakers — to get more projects deployed in the region.”
On Neil Jacobs’ confirmation hearing, OBBBA costs, and Saudi Aramco
Current conditions: Temperatures are climbing toward 100 degrees Fahrenheit in central and eastern Texas, complicating recovery efforts after the floods • More than 10,000 people have been evacuated in southwestern China due to flooding from the remnants of Typhoon Danas • Mebane, North Carolina, has less than two days of drinking water left after its water treatment plant sustained damage from Tropical Storm Chantal.
Neil Jacobs, President Trump’s nominee to head the National Oceanic and Atmospheric Administration, fielded questions from the Senate Commerce, Science, and Transportation Committee on Wednesday about how to prevent future catastrophes like the Texas floods, Politico reports. “If confirmed, I want to ensure that staffing weather service offices is a top priority,” Jacobs said, even as the administration has cut more than 2,000 staff positions this year. Jacobs also told senators that he supports the president’s 2026 budget, which would further cut $2.2 billion from NOAA, including funding for the maintenance of weather models that accurately forecast the Texas storms. During the hearing, Jacobs acknowledged that humans have an “influence” on the climate, and said he’d direct NOAA to embrace “new technologies” and partner with industry “to advance global observing systems.”
Jacobs previously served as the acting NOAA administrator from 2019 through the end of Trump’s first term, and is perhaps best remembered for his role in the “Sharpiegate” press conference, in which he modified a map of Hurricane Dorian’s storm track to match Trump’s mistaken claim that it would hit southern Alabama. The NOAA Science Council subsequently investigated Jacobs and found he had violated the organization’s scientific integrity policy.
The Republican budget reconciliation bill could increase household energy costs by $170 per year by 2035 and $353 per year by 2040, according to a new analysis by Evergreen Action, a climate policy group. “Biden-era provisions, now cut by the GOP spending plan, were making it more affordable for families to install solar panels to lower utility bills,” the report found. The law also cut building energy efficiency credits that had helped Americans reduce their bills by an estimated $1,250 per year. Instead, the One Big Beautiful Bill Act will increase wholesale electricity prices almost 75% by 2035, as well as eliminate 760,000 jobs by the end of the decade. Separately, an analysis by the nonpartisan think tank Center for American Progress found that the OBBBA could increase average electricity costs by $110 per household as soon as next year, and up to $200 annually in some states.
EIA
Saudi Arabia’s state-owned oil company Saudi Aramco is in talks with Commonwealth LNG in Louisiana to buy liquified natural gas, Reuters reports. The discussion is reportedly for 2 million tons per year of the facility’s 9.4 million-ton annual export capacity, which would help “cement Aramco’s push into the global LNG market as it accelerates efforts to diversify beyond crude oil exports” and be the “strongest signal yet that Aramco intends to take a material position in the U.S. LNG sector,” OilPrice.com notes. LNG demand is expected to grow 50% globally by 2030, but as my colleague Emily Pontecorvo has reported, President Trump’s tariffs could make it harder for LNG projects still in early development, like Commonwealth, to succeed. “For the moment, U.S. LNG is still interesting,” Anne-Sophie Corbeau, a research scholar focused on natural gas at Columbia University’s Center on Global Energy Policy, told Emily. “But if costs increase too much, maybe people will start to wonder.”
Ford confirmed this week that its $3 billion electric vehicle battery plant in Michigan will still qualify for federal tax credits due to eleventh-hour tweaks to the bill’s language, The New York Times reports. Though Ford had said it would build its factory regardless of what happened to the credits, the company’s executive chairman had previously called them “crucial” to the construction of the facility and the employment of the 1,700 people expected to work there. Ford’s battery plant is located in Michigan’s Calhoun County, which Trump won by a margin of 56%. The last-minute tweaks to save the credits to the benefit of Ford “suggest that at least some Republican lawmakers were aware that cuts in the bill would strike their constituents the hardest,” the Times writes.
Italy and Spain are on track to shutter their last remaining mainland coal power plants in the next several months, marking “a major milestone in Europe’s transition to a predominantly renewables-based power system by 2035,” Beyond Fossil Fuels reported Wednesday. To date, 15 European countries now have coal-free grids following Ireland’s move away from coal in 2025.
Italy is set to complete its transition from coal by the end of the summer with the closure of its last two plants, in keeping with the government’s 2017 phase-out target of 2025. Two coal plants in Sardinia will remain operational until 2028 due to complications with an undersea grid connection cable. In Spain, the nation’s largest coal plant will be entirely converted to fossil gas by the end of the year, while two smaller plants are also on track to shut down in the immediate future. Once they do, Spain’s only coal-power plant will be in the Balearic Islands, with an expected phase-out date of 2030.
“Climate change makes this a battle with a ratchet. There are some things you just can’t come back from. The ratchet has clicked, and there is no return. So it is urgent — it is time for us all to wake up and fight.” — Senator Sheldon Whitehouse of Rhode Island in his 300th climate speech on the Senate floor Wednesday night.