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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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Defenders of the Inflation Reduction Act have hit on what they hope will be a persuasive argument for why it should stay.
With the fate of the Inflation Reduction Act and its tax credits for building and producing clean energy hanging in the balance, the law’s supporters have increasingly turned to dollars-and-cents arguments in favor of its preservation. Since the election, industry and research groups have put out a handful of reports making the broad argument that in addition to higher greenhouse gas emissions, taking away these tax credits would mean higher electricity bills.
The American Clean Power Association put out a report in December, authored by the consulting firm ICF, arguing that “energy tax credits will drive $1.9 trillion in growth, creating 13.7 million jobs and delivering 4x return on investment.”
The Solar Energy Industries Association followed that up last month with a letter citing an analysis by Aurora Energy Research, which found that undoing the tax credits for wind, solar, and storage would reduce clean energy deployment by 237 gigawatts through 2040 and cost nearly 100,000 jobs, all while raising bills by hundreds of dollars in Texas and New York. (Other groups, including the conservative environmental group ConservAmerica and the Clean Energy Buyers Association have commissioned similar research and come up with similar results.)
And just this week, Energy Innovation, a clean energy research group that had previously published widely cited research arguing that clean energy deployment was not linked to the run-up in retail electricity prices, published a report that found repealing the Inflation Reduction Act would “increase cumulative household energy costs by $32 billion” over the next decade, among other economic impacts.
The tax credits “make clean energy even more economic than it already is, particularly for developers,” explained Energy Innovation senior director Robbie Orvis. “When you add more of those technologies, you bring down the electricity cost significantly,” he said.
Historically, the price of fossil fuels like natural gas and coal have set the wholesale price for electricity. With renewables, however, the operating costs associated with procuring those fuels go away. The fewer of those you have, “the lower the price drops,” Orvis said. Without the tax credits to support the growth and deployment of renewables, the analysis found that annual energy costs per U.S. household would go up some $48 annually by 2030, and $68 by 2035.
These arguments come at a time when retail electricity prices in much of the country have grown substantially. Since December 2019, average retail electricity prices have risen from about $0.13 per kilowatt-hour to almost $0.18, according to the Bureau of Labor Statistics. In Massachusetts and California, rates are over $0.30 a kilowatt-hour, according to the Energy Information Administration. As Energy Innovation researchers have pointed out, states with higher renewable penetration sometimes have higher rates, including California, but often do not, as in South Dakota, where 77% of its electricity comes from renewables.
Retail electricity prices are not solely determined by fuel costs Distribution costs for maintaining the whole electrical system are also a factor. In California, for example,it’s these costs that have driven a spike in rates, as utilities have had to harden their grids against wildfires. Across the whole country, utilities have had to ramp up capital investment in grid equipment as it’s aged, driving up distribution costs, a 2024 Energy Innovation report argued.
A similar analysis by Aurora Energy Research (the one cited by SEIA) that just looked at investment and production tax credits for wind, solar, and batteries found that if they were removed, electricity bills would increase hundreds of dollars per year on average, and by as much as $40 per month in New York and $29 per month in Texas.
One reason the bill impact could be so high, Aurora’s Martin Anderson told me, is that states with aggressive goals for decarbonizing the electricity sector would still have to procure clean energy in a world where its deployment would have gotten more expensive. New York is targetinga target for getting 70% of its electricity from renewable sources by 2030, while Minnesota has a goal for its utilities to sell 55% clean electricity by 2035 and could see its average cost increase by $22 a month. Some of these states may have to resort to purchasing renewable energy certificates to make up the difference as new generation projects in the state become less attractive.
Bills in Texas, on the other hand, would likely go up because wind and solar investment would slow down, meaning that Texans’ large-scale energy consumption would be increasingly met with fossil fuels (Texas has a Renewable Portfolio Standard that it has long since surpassed).
This emphasis from industry and advocacy groups on the dollars and cents of clean energy policy is hardly new — when the House of Representatives passed the (doomed) Waxman-Markey cap and trade bill in 2009, then-Speaker of the House Nancy Pelosi told the House, “Remember these four words for what this legislation means: jobs, jobs, jobs, and jobs.”
More recently, when Democratic Senators Martin Heinrich and Tim Kaine hosted a press conference to press their case for preserving the Inflation Reduction Act, the email that landed in reporters’ inboxes read “Heinrich, Kaine Host Press Conference on Trump’s War on Affordable, American-Made Energy.”
“Trump’s war on the Inflation Reduction Act will kill American jobs, raise costs on families, weaken our economic competitiveness, and erode American global energy dominance,” Heinrich told me in an emailed statement. “Trump should end his destructive crusade on affordable energy and start putting the interests of working people first.”
That the impacts and benefits of the IRA are spread between blue and red states speaks to the political calculation of clean energy proponents, hoping that a bill that subsidized solar panels in Texas, battery factories in Georgia, and battery storage in Southern California could bring about a bipartisan alliance to keep it alive. While Congressional Republicans will be scouring the budget for every last dollar to help fund an extension of the 2017 Tax Cuts and Jobs Act, a group of House Republicans have gone on the record in defense of the IRA’s tax credits.
“There's been so much research on the emissions impact of the IRA over the past few years, but there's been comparatively less research on the economic benefits and the household energy benefits,” Orvis said. “And I think that one thing that's become evident in the last year or so is that household energy costs — inflation, fossil fuel prices — those do seem to be more top of mind for Americans.”
Opinion modeling from Heatmap Pro shows that lower utility bills is the number one perceived benefit of renewables in much of the country. The only counties where it isn’t the number one perceived benefit are known for being extremely wealthy, extremely crunchy, or both: Boulder and Denver in Colorado; Multnomah (a.k.a. Portland) in Oregon; Arlington in Virginia; and Chittenden in Vermont.
On environmental justice grants, melting glaciers, and Amazon’s carbon credits
Current conditions: Severe thunderstorms are expected across the Mississippi Valley this weekend • Storm Martinho pushed Portugal’s wind power generation to “historic maximums” • It’s 62 degrees Fahrenheit, cloudy, and very quiet at Heathrow Airport outside London, where a large fire at an electricity substation forced the international travel hub to close.
President Trump invoked emergency powers Thursday to expand production of critical minerals and reduce the nation’s reliance on other countries. The executive order relies on the Defense Production Act, which “grants the president powers to ensure the nation’s defense by expanding and expediting the supply of materials and services from the domestic industrial base.”
Former President Biden invoked the act several times during his term, once to accelerate domestic clean energy production, and another time to boost mining and critical minerals for the nation’s large-capacity battery supply chain. Trump’s order calls for identifying “priority projects” for which permits can be expedited, and directs the Department of the Interior to prioritize mineral production and mining as the “primary land uses” of federal lands that are known to contain minerals.
Critical minerals are used in all kinds of clean tech, including solar panels, EV batteries, and wind turbines. Trump’s executive order doesn’t mention these technologies, but says “transportation, infrastructure, defense capabilities, and the next generation of technology rely upon a secure, predictable, and affordable supply of minerals.”
Anonymous current and former staffers at the Environmental Protection Agency have penned an open letter to the American people, slamming the Trump administration’s attacks on climate grants awarded to nonprofits under the Inflation Reduction Act’s Greenhouse Gas Reduction Fund. The letter, published in Environmental Health News, focuses mostly on the grants that were supposed to go toward environmental justice programs, but have since been frozen under the current administration. For example, Climate United was awarded nearly $7 billion to finance clean energy projects in rural, Tribal, and low-income communities.
“It is a waste of taxpayer dollars for the U.S. government to cancel its agreements with grantees and contractors,” the letter states. “It is fraud for the U.S. government to delay payments for services already received. And it is an abuse of power for the Trump administration to block the IRA laws that were mandated by Congress.”
The lives of 2 billion people, or about a quarter of the human population, are threatened by melting glaciers due to climate change. That’s according to UNESCO’s new World Water Development Report, released to correspond with the UN’s first World Day for Glaciers. “As the world warms, glaciers are melting faster than ever, making the water cycle more unpredictable and extreme,” the report says. “And because of glacial retreat, floods, droughts, landslides, and sea-level rise are intensifying, with devastating consequences for people and nature.” Some key stats about the state of the world’s glaciers:
In case you missed it: Amazon has started selling “high-integrity science-based carbon credits” to its suppliers and business customers, as well as companies that have committed to being net-zero by 2040 in line with Amazon’s Climate Pledge, to help them offset their greenhouse gas emissions.
“The voluntary carbon market has been challenged with issues of transparency, credibility, and the availability of high-quality carbon credits, which has led to skepticism about nature and technological carbon removal as an effective tool to combat climate change,” said Kara Hurst, chief sustainability officer at Amazon. “However, the science is clear: We must halt and reverse deforestation and restore millions of miles of forests to slow the worst effects of climate change. We’re using our size and high vetting standards to help promote additional investments in nature, and we are excited to share this new opportunity with companies who are also committed to the difficult work of decarbonizing their operations.”
The Bureau of Land Management is close to approving the environmental review for a transmission line that would connect to BluEarth Renewables’ Lucky Star wind project, Heatmap’s Jael Holzman reports in The Fight. “This is a huge deal,” she says. “For the last two months it has seemed like nothing wind-related could be approved by the Trump administration. But that may be about to change.”
BLM sent local officials an email March 6 with a draft environmental assessment for the transmission line, which is required for the federal government to approve its right-of-way under the National Environmental Policy Act. According to the draft, the entirety of the wind project is sited on private property and “no longer will require access to BLM-administered land.”
The email suggests this draft environmental assessment may soon be available for public comment. BLM’s web page for the transmission line now states an approval granting right-of-way may come as soon as May. BLM last week did something similar with a transmission line that would go to a solar project proposed entirely on private lands. Holzman wonders: “Could private lands become the workaround du jour under Trump?”
Saudi Aramco, the world’s largest oil producer, this week launched a pilot direct air capture unit capable of removing 12 tons of carbon dioxide per year. In 2023 alone, the company’s Scope 1 and Scope 2 emissions totalled 72.6 million metric tons of carbon dioxide equivalent.
If you live in Illinois or Massachusetts, you may yet get your robust electric vehicle infrastructure.
Robust incentive programs to build out electric vehicle charging stations are alive and well — in Illinois, at least. ComEd, a utility provider for the Chicago area, is pushing forward with $100 million worth of rebates to spur the installation of EV chargers in homes, businesses, and public locations around the Windy City. The program follows up a similar $87 million investment a year ago.
Federal dollars, once the most visible source of financial incentives for EVs and EV infrastructure, are critically endangered. Automakers and EV shoppers fear the Trump administration will attack tax credits for purchasing or leasing EVs. Executive orders have already suspended the $5 billion National Electric Vehicle Infrastructure Formula Program, a.k.a. NEVI, which was set up to funnel money to states to build chargers along heavily trafficked corridors. With federal support frozen, it’s increasingly up to the automakers, utilities, and the states — the ones with EV-friendly regimes, at least — to pick up the slack.
Illinois’ investment has been four years in the making. In 2021, the state established an initiative to have a million EVs on its roads by 2030, and ComEd’s new program is a direct outgrowth. The new $100 million investment includes $53 million in rebates for business and public sector EV fleet purchases, $38 million for upgrades necessary to install public and private Level 2 and Level 3 chargers, stations for non-residential customers, and $9 million to residential customers who buy and install home chargers, with rebates of up to $3,750 per charger.
Massachusetts passed similar, sweeping legislation last November. Its bill was aimed to “accelerate clean energy development, improve energy affordability, create an equitable infrastructure siting process, allow for multistate clean energy procurements, promote non-gas heating, expand access to electric vehicles and create jobs and support workers throughout the energy transition.” Amid that list of hifalutin ambition, the state included something interesting and forward-looking: a pilot program of 100 bidirectional chargers meant to demonstrate the power of vehicle-to-grid, vehicle-to-home, and other two-way charging integrations that could help make the grid of the future more resilient.
Many states, blue ones especially, have had EV charging rebates in places for years. Now, with evaporating federal funding for EVs, they have to take over as the primary benefactor for businesses and residents looking to electrify, as well as a financial level to help states reach their public targets for electrification.
Illinois, for example, saw nearly 29,000 more EVs added to its roads in 2024 than 2023, but that growth rate was actually slower than the previous year, which mirrors the national narrative of EV sales continuing to grow, but more slowly than before. In the time of hostile federal government, the state’s goal of jumping from about 130,000 EVs now to a million in 2030 may be out of reach. But making it more affordable for residents and small businesses to take the leap should send the numbers in the right direction, as will a state-backed attempt to create more public EV chargers.
The private sector is trying to juice charger expansion, too. Federal funding or not, the car companies need a robust nationwide charging network to boost public confidence as they roll out more electric offerings. Ionna — the charging station partnership funded by the likes of Hyundai, BMW, General Motors, Honda, Kia, Mercedes-Benz, Stellantis, and Toyota — is opening new chargers at Sheetz gas stations. It promises to open 1,000 new charging bays this year and 30,000 by 2030.
Hyundai, being the number two EV company in America behind much-maligned Tesla, has plenty at stake with this and similar ventures. No surprise, then, that its spokesperson told Automotive Dive that Ionna doesn’t rely on federal dollars and will press on regardless of what happens in Washington. Regardless of the prevailing winds in D.C., Hyundai/Kia is motivated to support a growing national network to boost the sales of models on the market like the Hyundai Ioniq5 and Kia EV6, as well as the company’s many new EVs in the pipeline. They’re not alone. Mercedes-Benz, for example, is building a small supply of branded high-power charging stations so its EV drivers can refill their batteries in Mercedes luxury.
The fate of the federal NEVI dollars is still up in the air. The clearinghouse on this funding shows a state-by-state patchwork. More than a dozen states have some NEVI-funded chargers operational, but a few have gotten no further than having their plans for fiscal year 2024 approved. Only Rhode Island has fully built out its planned network. It’s possible that monies already allocated will go out, despite the administration’s attempt to kill the program.
In the meantime, Tesla’s Supercharger network is still king of the hill, and with a growing number of its stations now open to EVs from other brands (and a growing number of brands building their new EVs with the Tesla NACS charging port), Superchargers will be the most convenient option for lots of electric drivers on road trips. Unless the alternatives can become far more widespread and reliable, that is.
The increasing state and private focus on building chargers is good for all EV drivers, starting with those who haven’t gone in on an electric car yet and are still worried about range or charger wait times on the road to their destination. It is also, by the way, good news for the growing number of EV folks looking to avoid Elon Musk at all cost.