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Reading the Supreme Court’s decision in Sackett v. EPAmight cause you to question your grasp of the English language. Wetlands are wet but are they water? What is water, anyway? Is it distinct from “waters,” plural? How about the word “adjacent” — does it mean “next to” or is it a nonsensical string of syllables signifying nothing?
Even attempting to explain the breakdown of the court’s decision, issued Thursday, requires small abuses of language. The ruling was “nominally unanimous” in that all the justices technically agreed the Environmental Protection Agency overstepped its jurisdiction when it dinged Michael and Chantell Sackett of Idaho in violation of the Clean Waters Act after they backfilled their property with dirt and rocks in preparation for construction. (The EPA claimed the Sackett’s land was protected wetland; in this specific case, the justices didn’t buy it). But the judges were far from unanimous in their reading of the law more broadly, with conservative Justice Brett Kavanaugh notably breaking from his ideological cohorts to issue a scathing clarifying opinion that was joined by the court’s four liberal judges.
Sackett v. EPA was probably always going to come down to semantics. The case marked the latest chapter in a decades-long legal debate over what counts as “waters” when it comes to the “waters of the United States,” which are federally protected by the 1972 Clear Water Act (CWA). In 1975, the Army Corps clarified that wetlands that are “adjacent to other navigable waters” should be considered a part of that protected body of water, and Congress codified this definition in 1977 when it made amendments to the CWA. This conventional interpretation of the words “waters” and “adjacent” had been the standard for 45 years and survived eight presidential administrations.
But hey, what is a word, really? Who decides what it means? Writing for the five other conservative justices, Samuel Alito proposed that wetlands might not be continuously wet enough to count as part of the larger protected whole:
The EPA argues that “waters” is “naturally read to encompass wetlands” because the “presence of water is ‘universally regarded as the most basic feature of wetlands...’”
… which, yeah, of course. Any child can tell you that wetlands are wet and that the “wet” in question is caused by water, not hot lava or buttermilk. But lo! “[T]hat reading proves too much,” Alito said. “Consider puddles, which are also defined by the ordinary presence of water even though few would describe them as ‘waters.’” It’s not even a creative false equivalency; besides, no one is trying to protect puddles.
Alito further fretted that by allowing for a definition of wetlands that includes, uh, wetlands, landowners could face “crushing” fines for “inadvertent violations” of the Clean Water Act “like moving dirt.” As Alito worried, “What are landowners to do if they want to build on their property?” (“Don’t pollute American waterways” seems like a pretty reasonable answer to that question!)
The real battle, though, boiled down to the word “adjacent.” In a 2006 Supreme Court opinion for Rapanos v. United States, the late conservative Antonin Scalia wrote for the plurality that wetlands only count as protected when they are “indistinguishable from waters of the United States.” (The court was divided and the case was ultimately sent back to the Sixth Circuit.)
By this unorthodox interpretation, the Clean Water Act would only protect “wetlands with a continuous surface connection” to protected waters, as Alito endorsed and wrote in the opinion released Thursday. What this means in real life is that when wetlands are separated from a larger body of protected water by something like a man-made levee or a naturally occurring berm or a sand dune — as many wetlands are — then the wetland in question is not indistinguishable from the larger body of water and thus no longer federally protected.
You might notice that “adjacent” and “continuous” are two different words. When Congress adopted the Army Corps’ language for protecting American waters from pollution, it did not protect wetlands that are “indistinguishable from other waters” but rather wetlands that are adjacent to other waters. As Kavanaugh pointed out:
The ordinary meaning of the term “adjacent” has not changed since Congress amended the Clean Water Act in 1977 to expressly cover “wetlands adjacent” to waters of the United States. Then as now, “adjacent” means lying near or close to, neighboring, or not widely separated. Indeed, the definitions of “adjacent” are notably explicit that two things need not touch each other in order to be adjacent.
Alito’s argument that adjacent means the same thing as adjoining goes “against all indications of ordinary meaning,” Kavanaugh added.
This isn’t just semantic nitpicking. The consequences of changing the definition of “adjacent” to something more like “an extension of” have huge ramifications for what the EPA can now protect. Because of that interpretation, millions of acres of wetlands theoretically just lost their federal protections. The Mississippi River, for example, uses levees to control flooding, but under Alito’s definition of “continuous surface connection,” such barriers would “seemingly preclude Clean Water Act coverage of adjacent wetlands on the other side,” Kavanaugh wrote. Federal protection of the Chesapeake Bay might also be up in the air for similar reasons.
Justice Elena Kagan, in her own extra spicy opinion joined by the other court liberals, ripped into the conservative majority for its word games. “[T]he majority shelves the usual rules of interpretation — reading the text, determining what the words used there mean, and applying that ordinary understanding concurring in judgment even if it conflicts with judges’ policy preferences,” she slammed, then added for good measure: “One last time: ‘Adjacent’ means neighboring, whether or not touching ... That congressional judgment is as clear as clear can be — which is to say, as clear as language gets.”
Of course, the decision isn’t about clarity or standard definitions. It’s about muddying the waters. What, after all, do we now make of wetlands that have surface water levels that fluctuate due to tides or dry spells? What of manmade barriers that existed before their builders knew the structures would cut off a wetland from federal protection? What even counts as a “continuous surface connection” — does a ditch? A pipe? How do we make sense of naturally shifting landscapes like dunes that temporarily cut off wetlands, only to eventually melt away again due to erosion or winds?
The conservative justices are more interested in exploitable ambiguities than answers to these questions.
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On the presidential debate, California’s wildfires, and the nuclear workforce
Current conditions: Hurricane Francine is approaching Louisiana as a Category 1 storm • The streets of Vietnam’s capital of Hanoi are flooded after Typhoon Yagi, and the death toll has reached 143 • Residents of Nigeria’s northern Borno state are urged to watch out for crocodiles and snakes that escaped from a zoo due to flooding.
Former President Trump and Vice President Kamala Harris squared off on the debate stage in Philadelphia last night. Here are some important climate and energy highlights from the evening:
Three large wildfires – the Line fire, the Bridge fire, and the Airport fire – are burning in Southern California, fueled by intense heat and thick, dry vegetation. Already more than 100,000 acres have been scorched. The Line fire is closing in on the popular vacation destination Big Bear, and is threatening some 65,000 structures. Los Angeles County Fire Chief Anthony Marrone said the scale of the emergencies is straining firefighting resources, and FEMA is sending financial aid to the state. In neighboring Nevada, the Davis Fire has grown to nearly 6,000 acres and is burning toward ski resorts in Tahoe. Temperatures in the region started to cool yesterday after a long and brutal heat wave. The weather shift could help firefighters bring the blazes under control.
The White House is launching an American Climate Corps national tour this fall to highlight the work being carried out by corps members in different communities and showcase important projects. The events will feature remarks from the administration and other officials, roundtable talks with ACC members, and swearing-in ceremonies. The tour began in Maine this week with a focus on climate resilience and urban forestry, and heads to Arizona next week. The rest of the schedule is as follows, with more dates to come:
The number of students studying to become nuclear engineers is declining as demand for carbon-free nuclear energy is on the rise, according toThe Wall Street Journal. Citing data from the Oak Ridge Institute for Science and Education, the Journal reported that just 454 students in the U.S. graduated with a degree in the field in 2022, down 25% from a decade earlier. Meanwhile, the industry’s workforce is aging. “We need nuclear expertise in order to combat climate change,” said Sara Pozzi, professor of nuclear engineering and radiological sciences at the University of Michigan. “We are at a crucial point where we need to produce the new generation of nuclear experts so that they can work with the older generation and learn from them.” The drop in new recruits comes down to nuclear’s image problem thanks to public disasters like Chernobyl and Fukushima, the Journal speculated.
Critical metal refining company Nth Cycle announced this week it has become the first company to produce nickel and cobalt mixed hydroxide precipitate (MHP) in the U.S. following the opening of its commercial-scale facility in Ohio. The company’s “Oyster” technology uses electricity to turn recyclable industrial scrap and mined ore into MHP, a key component in clean-energy technologies like batteries. “This revolutionary innovation replaces pyrometallurgy with one of the cleanest technologies in the world, and accelerates the net zero targets of the public and private sector,” the company said in a press release. It claims the Ohio unit can produce 900 metric tons of MHP per year, which would be enough to supply batteries for 22 million cell phones. The company says its process reduces emissions by 90% compared to traditional mining methods and can help EV manufacturers meet the IRA’s sourcing requirements.
A new nationwide poll of 1,000 registered U.S. voters found that 90% of respondents support President Biden’s federal clean energy incentives in the Inflation Reduction Act, including 78% of respondents who said they were Trump voters.
Maybe you’ve never heard of it. Maybe you know it too well. But to a certain type of clean energy wonk, it amounts to perhaps the three most dreaded words in climate policy: the interconnection queue.
The queue is the process by which utilities decide which wind and solar farms get to hook up to the power grid in the United States. Across much of the country, it has become so badly broken and clogged that it can take more than a decade for a given project to navigate.
On this week’s episode of Shift Key, Jesse and Rob speak with two experts about how to understand — and how to fix — what is perhaps the biggest obstacle to deploying more renewables on the U.S. power grid. Tyler Norris is a doctoral student at Duke University’s Nicholas School of the Environment. He was formerly vice president of development at Cypress Creek Renewables, and he served on North Carolina Governor Roy Cooper’s Carbon Policy Working Group. Claire Wayner is a senior associate at RMI’s carbon-free electricity program, where she works on the clean and competitive grids team. Shift Key is hosted by Robinson Meyer, the founding executive editor of Heatmap, and Jesse Jenkins, a professor of energy systems engineering at Princeton University.
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Here is an excerpt from our conversation:
Robinson Meyer: Can I interject and just ask why, over the past decade, the interconnection queue got much longer — but also over the past decade, 15 years, the U.S. grid did change in character and in fuel type a lot, right? We went from burning a lot of coal to a lot of natural gas. And that transition is often cited as one of the model transitions, one of the few energy transitions to happen globally that happened at the speed with which we would need to decarbonize. Obviously, switching coal to gas is not decarbonizing, but it is a model — it happened fast enough that it is a good model for what decarbonizing would look like in order to meet climate goals.
Evidently, that did not run into these kind of same interconnection queue problems. Why is that? Is that because we were swapping in within individual power plants? We were just changing the furnace from a coal furnace to a gas furnace? Is that because these were larger projects and so it didn’t back up in the queue in the same way that a lot of smaller solar or wind farms do?
Claire Wayner: I would say all the reasons you just gave are valid, yeah. The coal to gas transition involved, likely, a lot of similar geographic locations. With wind and solar, we’re seeing them wanting to build on the grid and in a lot of cases in new, rather remote locations that are going to require new types of grid upgrades that the coal to gas transition just doesn’t have.
Jesse Jenkins: Maybe it is — to use a metaphor here — it’s a little bit like traffic congestion. If you add a generator to the grid, it’s trying to ship its power through the grid, and that decision to add your power mix to the grid combines with everyone else that’s also generating and consuming power to drive traffic jams or congestion in different parts of the grid, just like your decision to hop in the car and drive to work or to go into the city for the weekend to see a show or whatever you’re doing. It’s not just your decision. It’s everyone’s combined decisions that affects travel times on the grid.
Now, the big difference between the grid and travel on roads or most other forms of networks we’re used to is that you don’t get to choose which path to go down. If you’re sending electricity to the grid, electricity flows with physics down the path of least resistance or impedance, which is the alternating current equivalent of resistance. And so it’s a lot more like rivers flowing downhill from gravity, right? You don’t get to choose which branch of the river you go down. It’s just, you know, gravity will take you. And so you adding your power flows to the grid creates complicated flows based on the physics of this mesh network that spans a continent and interacts with everyone else on the grid.
And so when you’re going from probably a few dozen large natural gas generators added that operate very similarly to the plants that they’re replacing to hundreds of gigawatts across thousands of projects scattered all over the grid with very complicated generation profiles because they’re weather-dependent renewables, it’s just a completely different challenge for the utilities.
So the process that the regional grid operators developed in the 2000s, when they were restructuring and taking over that role of regional grid operator, it’s just not fit for purpose at all for what we face today. And I want to highlight another thing you mentioned, which is the software piece of it, too. These processes, they are using software and corporate processes that were also developed 10 or 20 years ago. And we all know that software and computing techniques have gotten quite a bit better over a decade or two. And rarely have utilities and grid operators really kept pace with those capabilities.
Wayner: Can I just say, I’ve heard that in some regions, interconnection consists of still sending back and forth Excel files. To Tyler’s point earlier that we only just now are getting data on the interconnection queue nationwide and how it stands, that’s one challenge that developers are facing is a lack of data transparency and rapid processing from the transmission providers and the grid operators.
And so, to use an analogy that my colleague Sarah Toth uses a lot, which I really love: Imagine if we had a Domino’s pizza tracker for the interconnection queue, and that developers could just log on and see how their projects are doing in many, if not most regions. They don’t even have that visibility. They don’t know when their pizza is going to get delivered, or if it’s in the oven.
This episode of Shift Key is sponsored by …
Watershed’s climate data engine helps companies measure and reduce their emissions, turning the data they already have into an audit-ready carbon footprint backed by the latest climate science. Get the sustainability data you need in weeks, not months. Learn more at watershed.com.
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Antenna Group helps you connect with customers, policymakers, investors, and strategic partners to influence markets and accelerate adoption. Visit antennagroup.com to learn more.
Music for Shift Key is by Adam Kromelow.
In the closing minutes of the first presidential debate tonight, Donald Trump’s attacks on Kamala Harris took an odd, highly specific, and highly Teutonic turn. It might not have made sense to many viewers, but it fit into the overall debate’s unusually substantive focus on energy policy.
“You believe in things that the American people don’t believe in,” he said, addressing Harris. “You believe in things like, we’re not gonna frack. We’re not gonna take fossil fuel. We’re not gonna do — things that are going to make this country strong, whether you like it or not.”
“Germany tried that and within one year, they were back to building normal energy plants,” he continued. “We’re not ready for it.”
What is he talking about? Let’s start by stipulating that Harris has renounced her previous support for banning fracking. During the debate, she bragged that the United States has hit an all-time high for oil and gas production during her vice presidency.
But why bring Germany into it? At the risk of sane-washing the former president, Trump appears to be referencing what German politicians call the Energiewiende, or energy turnaround. Since 2010, Germany has sought to transition from its largest historic energy sources, including coal and nuclear energy, to renewables and hydropower.
The Energiewiende is often discussed inside and outside of Germany as a climate policy, and it has helped achieve global climate goals by, say, helping to push down the global price of solar panels. But as an observant reader might have already noticed, its goals are not entirely emissions-related: Its leaders have also hoped to use the Energiewiende to phase out nuclear power, which is unpopular in Germany but which does not produce carbon emissions.
The transition has accomplished some of its goals: The country says that it is on target to meet its 2030 climate targets. But it ran into trouble after Russia invaded Ukraine, because Germany obtained more than half of its natural gas, and much of its oil and coal besides, from Russia. Germany turned back on some of its nuclear plants — it has since shut them off again — and increased its coal consumption. It also began importing fossil fuels from other countries.
In order to shore up its energy supply, Germany is also planning to build 10 gigawatts of new natural gas plants by 2030, although it says that these facilities will be “hydrogen ready,” meaning that they could theoretically run on the zero-carbon fuel hydrogen. German automakers, who have lagged at building electric vehicles, have also pushed for policies that support “e-fuels,” or low-carbon liquid fuels. These fuels would — again, theoretically — allow German firms to keep building internal combustion engines.
So perhaps that’s not exactly what Trump said, to put it mildly — but it is true that to cope with the Ukraine war and the loss of nuclear power, Germany has had to fall back on fossil fuels. Of course, at the same time, more than 30% of German electricity now comes from wind and solar energy. In other words, in Germany, renewables are just another kind of “normal energy plant.”