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Who gets to block an energy project?
One of the longest-running environmental controversies of Joe Biden’s presidency is now over, but it presages much bigger controversies to come.
Last week, the Supreme Court cleared the way for the Mountain Valley Pipeline, a 303-mile natural gas project that will link West Virginia’s booming gas fields to the East Coast’s mainline gas infrastructure. The justices lifted a halt on the project that had been imposed by a lower court. In doing so, they all but guaranteed that the project will get built.
But even if the Mountain Valley Pipeline case is over, the issues and questions at the center of the dispute are not. And they suggest that a profound and unanswered tension sits at the heart of environmental and climate law — one that concerns not only conservation, but the very nature of American democracy as well.
While environmental advocates have fought the pipeline for years, it only became a national issue when Senator Joe Manchin of West Virginia began to champion the pipeline last year. He insisted that the Biden administration back the project in exchange for his support of Biden’s flagship climate and spending bill, which became the Inflation Reduction Act.
After several failed efforts, Manchin finally found a way to help the pipeline this spring, when he got Congress to automatically approve the project as part of the bipartisan deal to raise the debt ceiling. The Fiscal Responsibility Act of 2023 — better known as the debt-ceiling deal — ordered federal agencies to issue every outstanding permit necessary for the pipeline’s construction. It declared that those permits could not be challenged in court.
Furthermore, it said that legal challenges to this accelerated decision could not be heard by the Fourth Circuit, the appeals court with jurisdiction over West Virginia, but only by the D.C. Circuit Court of Appeals. The D.C. Circuit is often described as the country’s second most powerful court; more saliently, fewer of its judges were appointed by Democratic presidents.
And that seemed like the end of the story. But in June, the Sierra Club and other environmentalist groups sued to block the Mountain Valley Pipeline again. They now alleged that Congress had violated a key Constitutional idea — the separation of powers — by rushing to approve the pipeline.
Specifically, they argued that the debt-ceiling deal violated a 151-year-old case called United States v. Klein, or just Klein for short. In that case, which revolved around several hundred cotton bales seized in Mississippi during the Civil War, the Supreme Court ruled that Congress could not pass a law that forced a court to rule on a case in a certain way. In other words, Congress may not pass a law that says: If Smith sues Jones, Smith wins.
The Sierra Club and others argue that Congress violated Klein when it automatically approved the pipeline in the debt-ceiling bill. The pipeline had been mired in permit-related lawsuits in the Fourth Circuit for years; its construction has led to dozens of alleged water-quality violations. So when Congress granted those permit approvals anyway, it was essentially doing an end-run around the appeals court. That was a clear-cut violation of Klein, environmentalists argue.
Is it so simple? In a brief supporting the pipeline, Laborer’s International Union of America argues that Congress acted entirely within its authority. Congress has essentially unlimited authority to authorize agency actions and revise court jurisdiction, the union says.
But here is the rub. To make their case, environmentalists appealed to Chief Justice John Roberts — specifically a dissent he wrote back in 2018.
That year, the Court declined to strike down an Obama-era law that told courts to “promptly dismiss” any lawsuits challenging a tribal casino in Michigan. But the majority could not agree about why, and three conservative justices — led by Roberts — dissented, arguing that the Obama-era law violated Klein because it forced the Court’s hand on a lawsuit, even if the lawsuit in question had not been filed yet.
In their case against the pipeline, the environmentalists urged the Court to adopt the logic of that dissent. And that may reveal something surprising about the tack taken by environmental groups here: Their arguments draw from what has increasingly come to seem like a conservative approach to Constitutional law. And while there are understandable reasons for this, it shows that the environmental movement may be facing a deeper crisis than it realizes. The questions now confronting the climate movement go to the center of questions over American democracy.
Above all: Who gets to rule in the American republic, and who gets to determine what is and isn’t constitutional? This is a live debate, and it goes to the center of contemporary fights over permitting reform. It is worth dwelling on for a moment.
The standard historical line is the Supreme Court, above all, decides what is and isn’t Constitutional — a power that it has claimed for itself since Marbury v. Madison in 1803.
But there is another tradition in American life, which holds that the American people, not the justices, are the final arbiter of constitutionality. President Abraham Lincoln backed this view in the run-up to the Civil War. And so did the men who created the Klein crisis.
Klein did not come out of nowhere. The case emerged during one of the most wrenching moments in our Constitutional history, when radicals and moderates battled over the meaning of the Civil War in the wake of Lincoln’s assassination.
On one side, Radical Republicans in Congress wanted to enshrine equality at the heart of the American republic, protecting the economic and civil freedoms of newly emancipated Black people and harshly punishing their traitorous Southern enslavers. On the other, moderate Republicans and Democrats sought a more reconciliatory approach to Reconstruction, welcoming former Confederate elites back into American life.
This is the background of Klein. When Congress passed the 1870 law that provoked the Klein lawsuit, it sought to prevent ex-Confederates from claiming federal money as compensation for their losses. It wanted to block a man named John Klein from being paid for cotton bales seized from his client during the Civil War, specifically because Congress believed that his client had been part of the rebellion and therefore did not deserve federal funds.
But that was part of a much broader fight between Congress, the White House, and the Supreme Court, in which radical Republican lawmakers sought to assert the people’s — and therefore Congress’s — authority to govern the other branches. Since the people created the Constitution, radicals argued, then the people had final authority over the courts that it made. “It would be a sad day for American institutions and for the sacred cause of Republican Governments if any tribunal in this land, created by the will of the people, was above and superior to the people’s power,” Representative John Bingham, an Ohio radical and the leading author of the Fourteenth Amendment, said.
That theory was revived 60 years later, when President Franklin D. Roosevelt moved to rein in a Supreme Court that kept striking down his New Deal programs. He proposed packing the court with more favorable justices, arguing that the three branches of the Constitution were like a team of three horses pulling a wagon. “It is the American people themselves who are in the driver’s seat,” he said, and therefore the people who should determine the make-up of the Court.
Although Roosevelt’s packing scheme failed, it resulted in one of the Court’s more conservative justices switching to become a more reliably pro-New Deal vote. And since Democrats controlled the Senate for all but four of the following 43 years, the Court lurched in a more liberal direction through much of the 20th century. By the 1990s, the judiciary was the favored branch of establishment liberalism, an august arbiter of civil protections as enacted in Brown v. Board of Education, Loving v. Virginia, and Roe v. Wade.
No longer. Faced with the most conservative Supreme Court in 90 years, progressives have rediscovered this forgotten controversy in the Constitution. Congress, they argue, has the power and duty to regulate the Supreme Court when it strays too far from popular will. The text of the Constitution allows Congress to set exceptions to the Court’s “appellate jurisdiction,” meaning that it could simply prevent the Court from ruling on a given topic, such as abortion or climate change.
Progressives frame this claim in small-d democratic terms, framing the Supreme Court and the electoral college as institutions designed to rob majorities of the ability to govern. “As recent events have made clear, powerful reactionaries are waging a successful war against American democracy using the countermajoritarian institutions of the American political system,” the liberal columnist Jamele Bouie wrote in The New York Times last year. But “the Constitution gives our elected officials the power to restrain a lawless Supreme Court,” he added, even if it might “spark a constitutional crisis over the power and authority of Congress.”
Conservatives have noticed this push. Last week, Justice Samuel Alito argued that Congress has no ability whatsoever to set limits on the Court’s behavior. “I know this is a controversial view, but I’m willing to say it,” Alito told The Wall Street Journal. “No provision in the Constitution gives them the authority to regulate the Supreme Court — period.”
Although Alito is speaking in broader terms, his enmity gets at the simmering Constitutional dilemma at the heart of Klein, the precedent that environmentalists are citing to try to block the Mountain Valley Pipeline. When Congress approved the pipeline earlier this year, was it expressing a democratic view that must be respected by the court system (even if climate activists don’t like it)? Or was Congress instead running roughshod over due process and violating the separation of powers?
These are not academic questions. Although Congress intervened to approve a fossil-fuel pipeline this year, it could just as easily intervene to approve clean-energy infrastructure in the future. Across the country, renewable projects and long-distance electricity transmission have been slowed down by environmental lawsuits and permitting fights; even the Sierra Club has recognized the “NIMBY threat to renewable energy.” If lawsuits were to imperil, say, a major offshore wind project, should a Democratic Congress resolve that fight by granting permit approvals by fiat — or should environmentalists reject that intervention, too, as illegitimate? Under the logic of the anti-pipeline lawsuit, granting permit approvals to any stalled energy project — whether fossil or clean — would violate Klein.
These questions matter because there is no near-term political situation in which Congress and the Supreme Court will only do good things for the climate and not bad things. But there is no way to judge them without making a political assessment: Is Congress likely to expedite a renewable project? Given Democrats’ zeal for tackling climate change, such a thing doesn’t seem ludicrous to me. But if environmentalists had won their case against the pipeline, then lawmakers’ hands would be tied in the future: They could not approve a wind farm, solar plant, or nuclear reactor in the same way that they tried to rubber-stamp the MVP. They would have to wait, instead, for the legal process to run its course.
We should be clear, here, that just because the Sierra Club and others pursued a conservative line of argument in this case does not mean that they are themselves reactionary. Their job — unlike that of politicians or pundits — is to win lawsuits. They have to fight on the terrain that politics has given them, and since that terrain tilts to the right today, they are sometimes going to advance right-leaning arguments.
But the broader environmental movement, which emerged in the 1950s and '60s as a cross-partisan, mass democratic campaign, should be careful not to confuse its goals with those of the elite legal movement. The question hangs over climate policy, permitting reform, and the entire challenge of decarbonization: How should climate advocates balance the goals of decarbonization and democracy? What does democracy even mean for the environment, a term that encompasses the water quality of a stream and the carbon intensity of the atmosphere? In the 21st century, how should Americans exert their will to reshape the land, protect the environment, and power their society?
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New York City may very well be the epicenter of this particular fight.
It’s official: the Moss Landing battery fire has galvanized a gigantic pipeline of opposition to energy storage systems across the country.
As I’ve chronicled extensively throughout this year, Moss Landing was a technological outlier that used outdated battery technology. But the January incident played into existing fears and anxieties across the U.S. about the dangers of large battery fires generally, latent from years of e-scooters and cellphones ablaze from faulty lithium-ion tech. Concerned residents fighting projects in their backyards have successfully seized upon the fact that there’s no known way to quickly extinguish big fires at energy storage sites, and are winning particularly in wildfire-prone areas.
How successful was Moss Landing at enlivening opponents of energy storage? Since the California disaster six months ago, more than 6 gigawatts of BESS has received opposition from activists explicitly tying their campaigns to the incident, Heatmap Pro® researcher Charlie Clynes told me in an interview earlier this month.
Matt Eisenson of Columbia University’s Sabin Center for Climate Law agreed that there’s been a spike in opposition, telling me that we are currently seeing “more instances of opposition to battery storage than we have in past years.” And while Eisenson said he couldn’t speak to the impacts of the fire specifically on that rise, he acknowledged that the disaster set “a harmful precedent” at the same time “battery storage is becoming much more present.”
“The type of fire that occurred there is unlikely to occur with modern technology, but the Moss Landing example [now] tends to come up across the country,” Eisenson said.
Some of the fresh opposition is in rural agricultural communities such as Grundy County, Illinois, which just banned energy storage systems indefinitely “until the science is settled.” But the most crucial place to watch seems to be New York City, for two reasons: One, it’s where a lot of energy storage is being developed all at once; and two, it has a hyper-saturated media market where criticism can receive more national media attention than it would in other parts of the country.
Someone who’s felt this pressure firsthand is Nick Lombardi, senior vice president of project development for battery storage company NineDot Energy. NineDot and other battery storage developers had spent years laying the groundwork in New York City to build out the energy storage necessary for the city to meet its net-zero climate goals. More recently they’ve faced crowds of protestors against a battery storage facility in Queens, and in Staten Island endured hecklers at public meetings.
“We’ve been developing projects in New York City for a few years now, and for a long time we didn’t run into opposition to our projects or really any sort of meaningful negative coverage in the press. All of that really changed about six months ago,” Lombardi said.
The battery storage developer insists that opposition to the technology is not popular and represents a fringe group. Lombardi told me that the company has more than 50 battery storage sites in development across New York City, and only faced “durable opposition” at “three or four sites.” The company also told me it has yet to receive the kind of email complaint flood that would demonstrate widespread opposition.
This is visible in the politicians who’ve picked up the anti-BESS mantle: GOP mayoral candidate Curtis Sliwa’s become a champion for the cause, but mayor Eric Adams’ “City of Yes” campaign itself would provide for the construction of these facilities. (While Democratic mayoral nominee Zohran Mamdani has not focused on BESS, it’s quite unlikely the climate hawkish democratic socialist would try to derail these projects.)
Lombardi told me he now views Moss Landing as a “catalyst” for opposition in the NYC metro area. “Suddenly there’s national headlines about what’s happening,” he told me. “There were incidents in the past that were in the news, but Moss Landing was headline news for a while, and that combined with the fact people knew it was happening in their city combined to create a new level of awareness.”
He added that six months after the blaze, it feels like developers in the city have a better handle on the situation. “We’ve spent a lot of time in reaction to that to make sure we’re organized and making sure we’re in contact with elected officials, community officials, [and] coordinated with utilities,” Lombardi said.
And more on the biggest conflicts around renewable energy projects in Kentucky, Ohio, and Maryland.
1. St. Croix County, Wisconsin - Solar opponents in this county see themselves as the front line in the fight over Trump’s “Big Beautiful” law and its repeal of Inflation Reduction Act tax credits.
2. Barren County, Kentucky - How much wood could a Wood Duck solar farm chuck if it didn’t get approved in the first place? We may be about to find out.
3. Iberia Parish, Louisiana - Another potential proxy battle over IRA tax credits is going down in Louisiana, where residents are calling to extend a solar moratorium that is about to expire so projects can’t start construction.
4. Baltimore County, Maryland – The fight over a transmission line in Maryland could have lasting impacts for renewable energy across the country.
5. Worcester County, Maryland – Elsewhere in Maryland, the MarWin offshore wind project appears to have landed in the crosshairs of Trump’s Environmental Protection Agency.
6. Clark County, Ohio - Consider me wishing Invenergy good luck getting a new solar farm permitted in Ohio.
7. Searcy County, Arkansas - An anti-wind state legislator has gone and posted a slide deck that RWE provided to county officials, ginning up fresh uproar against potential wind development.
Talking local development moratoria with Heatmap’s own Charlie Clynes.
This week’s conversation is special: I chatted with Charlie Clynes, Heatmap Pro®’s very own in-house researcher. Charlie just released a herculean project tracking all of the nation’s county-level moratoria and restrictive ordinances attacking renewable energy. The conclusion? Essentially a fifth of the country is now either closed off to solar and wind entirely or much harder to build. I decided to chat with him about the work so you could hear about why it’s an important report you should most definitely read.
The following chat was lightly edited for clarity. Let’s dive in.
Tell me about the project you embarked on here.
Heatmap’s research team set out last June to call every county in the United States that had zoning authority, and we asked them if they’ve passed ordinances to restrict renewable energy, or if they have renewable energy projects in their communities that have been opposed. There’s specific criteria we’ve used to determine if an ordinance is restrictive, but by and large, it’s pretty easy to tell once a county sends you an ordinance if it is going to restrict development or not.
The vast majority of counties responded, and this has been a process that’s allowed us to gather an extraordinary amount of data about whether counties have been restricting wind, solar and other renewables. The topline conclusion is that restrictions are much worse than previously accounted for. I mean, 605 counties now have some type of restriction on renewable energy — setbacks that make it really hard to build wind or solar, moratoriums that outright ban wind and solar. Then there’s 182 municipality laws where counties don’t have zoning jurisdiction.
We’re seeing this pretty much everywhere throughout the country. No place is safe except for states who put in laws preventing jurisdictions from passing restrictions — and even then, renewable energy companies are facing uphill battles in getting to a point in the process where the state will step in and overrule a county restriction. It’s bad.
Getting into the nitty-gritty, what has changed in the past few years? We’ve known these numbers were increasing, but what do you think accounts for the status we’re in now?
One is we’re seeing a high number of renewables coming into communities. But I think attitudes started changing too, especially in places that have been fairly saturated with renewable energy like Virginia, where solar’s been a presence for more than a decade now. There have been enough projects where people have bad experiences that color their opinion of the industry as a whole.
There’s also a few narratives that have taken shape. One is this idea solar is eating up prime farmland, or that it’ll erode the rural character of that area. Another big one is the environment, especially with wind on bird deaths, even though the number of birds killed by wind sounds big until you compare it to other sources.
There are so many developers and so many projects in so many places of the world that there are examples where either something goes wrong with a project or a developer doesn’t follow best practices. I think those have a lot more staying power in the public perception of renewable energy than the many successful projects that go without a hiccup and don’t bother people.
Are people saying no outright to renewable energy? Or is this saying yes with some form of reasonable restrictions?
It depends on where you look and how much solar there is in a community.
One thing I’ve seen in Virginia, for example, is counties setting caps on the total acreage solar can occupy, and those will be only 20 acres above the solar already built, so it’s effectively blocking solar. In places that are more sparsely populated, you tend to see restrictive setbacks that have the effect of outright banning wind — mile-long setbacks are often insurmountable for developers. Or there’ll be regulations to constrict the scale of a project quite a bit but don’t ban the technologies outright.
What in your research gives you hope?
States that have administrations determined to build out renewables have started to override these local restrictions: Michigan, Illinois, Washington, California, a few others. This is almost certainly going to have an impact.
I think the other thing is there are places in red states that have had very good experiences with renewable energy by and large. Texas, despite having the most wind generation in the nation, has not seen nearly as much opposition to wind, solar, and battery storage. It’s owing to the fact people in Texas generally are inclined to support energy projects in general and have seen wind and solar bring money into these small communities that otherwise wouldn’t get a lot of attention.