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A desire to please the Court may have rendered the EPA’s new power plant rule a little too ineffectual.

If nothing else, give the Environmental Protection Agency credit for this: They seem to understand the assignment.
Last year, the Supreme Court struck down the Clean Power Plan, President Barack Obama’s ambitious attempt to restrict carbon pollution from power plants. That proposal never carried the force of law, and it had been held in suspended animation by the Court — and later the Trump administration — since 2016. But after President Joe Biden took office, Chief Justice John Roberts and the Court’s conservative majority revived it seemingly entirely for the sake of deeming it illegal.
The proposal went far beyond what was allowed by Congress, Roberts ruled. Normally, an EPA standard would require that power plants or factories install some kind of equipment on their smoke stacks to meet a pollution cap. “By contrast, and by design,” the Obama proposal could only be satisfied by burning less coal, the chief justice wrote. It required “generation shifting,” forcing states to get more of their power from renewable, nuclear, or natural-gas plants.
That overreached the EPA’s authority under the Clean Air Act, Roberts declared. If the EPA wanted to regulate greenhouse gases, then it needed to treat them like a normal air pollutant — and it needed to act like a normal technocratic agency. Above all, it had to keep its regulations to those that could be accomplished “inside the fenceline” of each power plant.
So last week, when the Biden administration finally unveiled its own draft attempt at regulating carbon pollution from power plants, it knew it was playing on the Court’s, well, court. And it behaved accordingly. The best thing you can say about the EPA’s new power-plant proposal — which will be one of the Biden era’s most important climate regulations — is that it was meticulously, painstakingly tailored to the Court’s demands. If Chief Justice Roberts asked for a normal rule, then the EPA has delivered one so awkwardly, self-consciously normal that it seems a little like a narc. The worst thing about the new rule is that this desire to please the Court may have rendered the rule a little too ineffectual.
If America wants to fight climate change, it must clean up its power plants. Generating abundant, cheap, zero-carbon electricity is the key to the country’s decarbonization strategy.
“If you clean up the power sector, it enables you to clean up other sectors of the economy too, through electrification,” Leah Stokes, an environmental-science professor at the University of California, Santa Barbara, told me. “Electric cars, heat pumps, induction stoves — all these machines can be fueled with clean power.”
Biden’s climate law, the Inflation Reduction Act, will slash emissions from the sector over the next decade, according to federal and independent modeling efforts. But it won’t get the sector all the way there. That’s where the new proposal is supposed to step in.
As per the Supreme Court’s request, the proposal details how every kind of power plant — even those that burn coal or natural gas — can meet their climate requirements for decades to come. It mandates a buildout of carbon capture and storage infrastructure, or CCS, for most coal and some natural-gas plants that plan to stay open long-term.
“The EPA rule makes sure everyone is on the same level-playing field. If the Inflation Reduction Act is enough to incentivize CCS in some places, the EPA is gonna make sure everyone is gonna do it,” Nick Bryner, a law professor at Louisiana State University, told me. “I think it’s designed very, very well to work in tandem with the IRA tax credits.”
If the IRA is the regulatory-friendly angel on its shoulder, then the Supreme Court’s decision last year — called West Virginia v. EPA — is the devil. The EPA’s desire to stay on the Court’s good side is even visible in the proposal’s name. Previous administrations have tried to give their power-plant rules a memorable name — Obama had the Clean Power Plan, of course, and the Trump administration christened its effort the “Affordable Clean Energy Rule,” or ACE. The Biden administration, by comparison, named the new proposal:
New Source Performance Standards for Greenhouse Gas Emissions from New, Modified, and Reconstructed Fossil Fuel-Fired Electric Generating Units; Emission Guidelines for Greenhouse Gas Emissions from Existing Fossil Fuel-Fired Electric Generating Units; and Repeal of the Affordable Clean Energy Rule
That’s the NSPSGHGNMRFFFEGU; EGGGEEFFFGU; RACE Rule for short.
I would say that the agency couldn’t have given it a more technocratic name if it tried, except that it obviously tried very hard. “Traditional approach, traditional name,” the EPA’s press office chirped when the Politico reporter Alex Guillén first noted the name. Just what the Supreme Court asked for!, they all but added. The agency is so desperate to look obedient and demure that even its social-media team has been briefed on current federal doctrine.
At the same time, the rule does “a tremendous amount to make the rule as flexible as possible given the constraints they’re working with in West Virginia v. EPA,” Bryner said. Under the proposal, some natural-gas plants can choose between installing carbon-capture equipment or burning low-carbon hydrogen.
But the rules may have erred on the side of too much flexibility, says Charles Harper, a policy analyst at Evergreen, a climate advocacy group and think tank. Evergreen and other environmental groups are worried that the rules might be too generous to fossil fuel companies. They’re focusing their criticism on two elements of the draft: its handling of natural-gas plants and coal retirements.
First, the EPA rule as proposed would not apply to an overwhelming majority of the country’s natural-gas plants.
A large share of carbon emissions from natural-gas plants come from so-called “baseload” plants that generate many hundreds of megawatts of electricity at all hours of the day. The rule focuses on these facilities, and it requires them either to install CCS equipment or to burn hydrogen fuel.
But the rule is not nearly so strict about small or medium-sized natural-gas plants. Natural-gas plants that generate less than 300 megawatts of electricity — or that run less than half the time — are essentially exempt from the rule. This excludes 77% of the country’s natural-gas plants from the new EPA proposal, requiring them to make no changes through 2040.
It is unclear what share of carbon emissions these natural-gas plants represent. The EPA did not provide an estimate of their carbon emissions before the deadline for this story.
As a whole, natural-gas power plants emit 43% of the U.S. electricity sector’s carbon pollution, despite producing nearly twice as much power as coal.
Environmental groups say the proposal’s coal problem is simpler to fix. In the draft, the EPA puts coal-fired power plants in different categories depending on when they’re slated to retire. Plants that have no retirement date — or that will remain open after 2040 — must install equipment to capture 90% of their emissions by the year 2030. Plants shutting down after 2035 must make a cheaper set of changes. And plants due to close by 2032 don’t have to make any changes at all, so long as they don’t increase their emissions over the next decade.
Those deadlines are too long from now, and the EPA should bring them forward in time when it issues a final version of the rule, Harper said. “2040 is pretty far out and would entail a lot of unabated emissions hitting the climate and human health,” he told me.
The EPA still has time to edit this proposal; it will hear public comment over the next few months and probably issue a final version of the rule next year. With the procedural issues resolved, the Supreme Court’s ability to object to that rule is limited to whether carbon capture is feasible and affordable enough to be used under the Clean Air Act.
If there is a bright spot for climate advocates in the new rule, it’s that the Biden administration — and last year’s Democratic majority in Congress — seem to have anticipated that move.
As the House was voting on the IRA last year, Representative Frank Pallone, the chair of the House Energy and Commerce Committee, put a statement in the congressional record saying that the EPA should take the IRA’s generous tax credits into account when proposing power-plant rules. The subsidies should be considered when the agency is deciding whether CCS is feasible and affordable, he said. The EPA cites Pallone’s statement in its new draft.
But ultimately it is Chief Justice John Roberts who will get to decide. Almost a decade ago, a set of conservative states sued the EPA to block it from requiring CCS. That issue has since been held in its own state of suspended animation. It may soon breathe again.
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A conversation with the Guardrails Alliance’s Shaunna Thomas.
This week’s Q&A is with Shaunna Thomas of the Democrat-allied super PAC Guardrails Alliance, which describes itself as “not anti-technology” but supportive of AI “rules, accountability, and a government that actually represents the public.” Part of that AI accountability they’re calling for is on data centers.
After the midterms, Guardrails Alliance sent a memorandum to all House and Senate Democratic offices arguing for AI and data center accountability to be a key part of their message and plans heading into the new Congress. Described as a “playbook for how to understand and channel anxieties about AI and data centers,” the document laid out “key narratives” that they said voters who care about these issues want to see reflected and echoed by their politics. They said the push against data centers could help Democrats build more lasting political power.
I reached out and asked if Thomas could explain further what all of this means to my readers. She kindly obliged.
The following conversation was lightly edited for clarity.
Let’s start with the elections. What were your takeaways when it came to what voters want to see on data centers?
I think the elections were a rebuke of the status quo on a number of fronts. We saw across the board that people are frustrated with what amounts to legalized corruption and the forcing without consent of new technology, and new infrastructure to support a technology that they didn’t ask for in ways that are harmful to their lives and the country.
What we saw in polling is that the data center backlash is one of the most bipartisan political issues of our time, driven by everything from noise pollution to rate hikes to Big Tech trying to steamroll state and local governments. Americans are sick and tired of the AI industry trying to control our lives by building data centers in our communities, which goes along with trying to control our data and who represents us in government. The AI industry was also trying to spend a lot on elections trying to control the outcome.
When we dig deeper on all that, it’s not just about elections. They’re seeing this unholy alliance between Big Tech and the Trump administration.
In the post-election analysis laid out in that memo, you explain these key narratives that you think Democrats should pick up against the tech sector. Can you explain how you developed these?
What we dug into during the primaries and the lead-up to the general election was questions in focus groups and polling with Republicans and Democrats about what was behind the frustration. Is this just about buildings they don’t want in their backyard or is this connected to AI and bigger picture concerns over who makes choices? About control? The data centers people were most opposed to were data centers specifically for AI, which was a really important indicator it was both/and.
We then started to talk to voters in Ohio and Iowa and Michigan about what they’d want to see in terms of changes, in terms of new leadership, how they would want to see this framed. What was appealing? We tested a number of frames and these key narratives are a compilation of that data. So for example, a key narrative says, The AI oligarchs and their political allies are wildly out of step with a supermajority of the public. There’s also sample messaging under it in the memo. And it’s a reflection of the sentiment and the tone and the language a lot of people used when they got into robust conversations about what they’re really concerned about or what they want to see their leaders doing differently.
Can you say more about these focus groups? And can you say more about what you saw in terms of bipartisan shared concern around not just data centers but these messages you’re bringing up?
I can tell you about some of the key findings of the focus groups we did in Michigan and Ohio and Iowa in August and September. People are generally open to the idea AI can have some benefit to their lives, and they’re open to using it personally. But everyone we talked to expressed some concern about the pace it was being developed. You can see technology having value but also see there’s no regulation in place or guardrails around the technology itself.
Most people we spoke to expressed concerns about how the technology has been affecting society and the environment — that came up a lot in data center conversations. People are also concerned about the role chatbots could have in their children’s lives, and that AI could replace teachers.
It’s also a lot of concern about and a lack of confidence in either government regulators or AI companies to properly regulate the technology. You saw more support for regulators at the state level and people deeply opposed to federal pre-emption, because they see more evidence of democracy working at the state level as opposed to the federal level.
People express mixed reviews about the specific policy solutions. What we’re seeing is people see AI as a vehicle for a small handful to amass more wealth and power. I don’t think we have had enough of a robust debate about how you deal with that problem.
So, on that point in particular, I want to drill down. What do we know about what voters want to see? What does accountability or guardrails look like to them?
First of all, there’s blanket support for federal regulations in general to deal with the way the technology is developed and deployed. We see a lot of clarity from voters about the fact they may not have a lot of confidence the federal government will step in. They want to see it.
When it comes to the economy, where there’s still broad public support is taxing billionaires and CEOs of these companies and raising the minimum wage and raising the social safety net. People’s interest in seeing that move forward has been growing in intensity.
On AI specifically, people don’t want to have a conversation about distribution of wealth without a conversation about distribution of power. They don’t want to be bribed to accept the acceleration of AI in their lives. They want to know that the power of those companies to do what they’re doing is going to be significantly limited and safety guardrails are put in place to keep us all safe from what the new technology is capable of.
I think once the safety conversation is step one. Step two is the conversation about how you distribute wealth from a technology built on other people’s labor and intellectual property.
On the concern about bribes, we’ve been reporting on Trump’s call for cash payments to communities to accept data centers. Are you telling me proposals like that might not be a good political strategy?
It was precisely because Trump was talking about it that we heard it brought up in focus groups, and how it was described was that voters may get some short term incentive to accept a technology they don’t trust is designed to help them fundamentally. They believe it is being deployed to more deeply consolidate power and wealth. And they don’t want that. When the president or a big AI company says they agree with it, it’ll have an impact on how the idea is perceived.
It has to also be coupled with a set of policies that are putting democratic governance over the technology itself before its deployment. People want to see technology isn’t going to continue to advance without guardrails.
Distinct from Trump’s data center dividend, some policymakers have suggested a “data dividend” — a distribution of wealth from the usage of AI products because they’re using people’s data. That’s more of what we’re talking about.
What do we know about what the public wants to see regarding data centers?
It’s important we recognize local leaders have had demands driven by their local communities. But as a structural matter, the public sees slowing down data centers as a mechanism for slowing down the project of AI generally. It remains an open question about how you do that.
There are federal policymakers working on a set of solutions that could create more space for people at the local level to be in the driver’s seat on when, how, or if data centers get built. I think we’ll see more proposals on that front.
So where do you think this conversation goes next?
I would expect the public to continue to make demands from policymakers and I would expect the Big Tech sector to continue down the path they’re going, which is, we were always Democrats and pro-regulation all the time. This will look like policies resembling always being okay with regulation but actually avoid putting checks on their power. And that’ll mean the public has even more at stake and the government has an even bigger obligation to make sure AI is deployed for public benefit as opposed to for the profits of a few companies and CEOs.
Plus more of the week’s biggest development fights.
1. New York City — We have a new must-watch offshore wind lawsuit with potential implications for the entire sector — and this time, it’s from lobstermen seeking damages.
2. Hinds County, Mississippi — The largest proposed solar farm in Mississippi is moving forward after an appeals court rejected arguments from aggrieved local residents that it had been improperly approved.
3. Dakota County, Minnesota — I’m scrutinizing a lawsuit against a data center developer centering on allegedly improper permitting of its cooling technology.
4. Polk County, Florida — Will the Sunshine State remain a challenging place for data centers after Ron DeSantis? A test case could reveal the future quite quickly.
Trump’s “data center dividend” appears to have backfired. Our latest poll results help explain why.
This year’s midterm elections called into question the efficacy of a push to pay local residents directly in exchange for building data centers.
Before the elections, I profiled the campaign for politicians to embrace the data center “dividend,” a policy idea modeled off Alaska’s Permanent Fund, which doles out checks to residents from profits off state oil, gas and mineral royalties. The Bitcoin Policy Institute, a tech policy think tank, was one of the first to trumpet the concept, but it was quickly taken up by President Donald Trump, who started raising it in speeches and on social media. “If companies want to make their Data Centers popular, pay the community, and/or individuals within the community, a ‘dividend,’” Trump posted to Truth Social on October 21.
Clearly the idea didn’t stop the bleeding. Democrats trounced Trump’s party in the midterms on a message that was heavy on attacks against data centers. But that still doesn’t explain why direct payments did so little to move the American public.
A Heatmap Pro poll conducted in early-to-mid October, right before the midterm elections, gives us an answer. As part of a broader survey of 2,500 registered voters, we asked about the idea — what we believe to be the first independent poll on direct payments for data centers by a news organization. We asked respondents whether there was a specific dollar amount they’d accept as a one-time cash payment in exchange for a data center being built near them. We also gave them the option to say no amount of money was sufficient.
Shockingly, a majority of people surveyed said they’d reject the data center cash payment in any amount. Among those who said they’d actually take the money, the median figure was around $10,000. The average was a whopping $146,000, skewed by the number of people who wrote $999,999, the maximum allowed by the survey.
This tracks what we’re seeing play out in communities where developers have tried this idea. In Hazle Township, Pennsylvania, NorthPoint — developer of an Amazon-linked data center project — proposed $10,000 cash payments to residents, no catch. Residents compared it to a bribe. In De Soto, Kansas, data center developer Digital Realty is offering annual $1,000 tax credits for a decade to neighbors of its proposed data center project. That proposal has been reportedly met with mixed reviews, too.
Clearly one of the problems here is that data centers not only face public perception issues around their local impacts, but are also more broadly associated with systemic inequality in the U.S. economy. The same Heatmap Pro survey found that a majority of voters believed AI companies have more control over the government than the oil and gas industry, pharmaceutical companies, banks, or other large industries.
Shaunna Thomas, executive director of Democratic-allied super PAC Guardrails Alliance, told me that during the campaign season they found that residents often associated the dividends with bribes, and that the president’s support for direct payments ultimately fed into voter sentiments about the tech sector controlling the government and society.
“People don’t want to have a conversation about distribution of wealth disconnected from a conversation about distribution of power,” Thomas said. “Specifically because Trump was saying that, we started hearing from voters in focus groups that it didn’t work for them. They’re hearing it as a bribe. They’re hearing they may get some sort of short-term economic or financial incentive to accept a technology they don’t trust is designed to help them.”
The Heatmap Pro survey results about cash payments ultimately reveal how emotionally driven the data center debate has become, said Sam Lyman of the Bitcoin Policy Institute. I asked Lyman to respond to the results because I thought they called into question the political effectiveness of the proposal we’d discussed months earlier. Lyman stipulated that he thinks the one-time payment nature of the question may have undermined the results, saying he prefers the dividends be paid out “in perpetuity.” But he acknowledged they also show “there’s still a lot of education to be done on data centers, what they do, and the impacts they have on the places where they’re built.”
“I think there’s a lot of Americans out there who have legitimate concerns that the future economy doesn’t include them. That’s something that needs to be addressed,” said Lyman, who said he laid part of the blame on what he called “irresponsible rhetoric” from AI industry executives about their technology’s impacts on society. “With data center dividends, the idea behind this policy is to help Americans understand the AI economy includes them. To give them a very material stake in that economy as it gets built out, especially in the rural communities that make data centers possible in the first place.”