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The Inflation Reduction Act is probably protected from SCOTUS. New environmental regulations? Not so much.
Climate change is a huge danger to countless lives. All indications are the Biden administration takes the threat seriously. The Inflation Reduction Act, in particular, demonstrates that climate change has become a top priority for the Democratic coalition. But with Republicans in control of the House of Representatives, further sweeping legislation is off the table for at least two years.
The good news is Congress has already given the executive branch ample authority to address climate change. The bad news is it's highly likely that the Republican-controlled Supreme Court will stop it from using this authority. The Republican super-majority on the Court is coming for climate regulation.
The crucial harbinger of what is likely to come is the 2022 case West Virginia v. EPA. On one level, the decision’s effects were narrow, because the program it held to be unconstitutional (Obama’s Clean Power Plan) had never gone into effect. But the decision is ominous because of the grounds on which the Court struck down the CPP.
In an opinion written by Chief Justice Roberts and joined by other conservative justices, the Court held that the program ran afoul of the recently-invented “major questions” doctrine.” According to Roberts, the doctrine means when considering some “extraordinary cases” with heightened “economic and political significance,” the Court should “hesitate” and require that the administrative agency point to “clear congressional authorization” for its actions. Roberts asserted that the Environmental Protection Agency had failed to show a clear authorization, and hence the CPP exceeded the EPA’s authority.
The decision reflects an implausibly narrow view of the EPA’s authority. Section 111 of the Clean Air Act authorizes the EPA to regulate pollutants that “may reasonably be anticipated to endanger public health or welfare.” It also authorized the EPA to identify the “best system of emissions reduction” for power plants. The Clean Power Plan fell squarely within the statutory scheme. Greenhouse gases that accelerate climate change would seem to a paradigmatic example of what Congress wanted the EPA to regulate – carbon emissions are pollutants, and there can be no serious question that climate change poses a major threat to public welfare and safety. And the CPP’s measures to encourage power companies to either use cleaner sources or participate in a cap-and-trade program fall within its authority to select the best system for emissions reduction.
The majority’s holding that the CPP falling within the terms established by the statute was insufficient because a problem as big as climate change requires more specific authorization is perverse. As Justice Kagan observed in her dissent, a “key reason Congress makes broad delegations like Section 111 is so an agency can respond, appropriately and commensurately, to new and big problems.” Congress did not think it could anticipate every environmental problem that could be caused by air pollution, which is precisely why it delegated the authority to address unexpected problems to the EPA.
Indeed, environmental regulation is a classic example of why Congress’s authority to delegate should be deferred to rather than subjected to ad hoc rules created by the federal judiciary. Environmental science is not a static field. There are frequently new findings about the effects of various environmental hazards and new technologies for addressing these hazards in an economically feasible way. Even a highly functioning and efficient legislature filled with experts in environmental science and economics would not be able to issue specific regulations reflecting new evidence and technological developments, and the actually existing, frequently gridlocked Congress meets neither of these conditions. This is why the longstanding practice is for Congress to set the goals and for the EPA to issue regulations commensurate with these goals, subject to oversight by elected officials in the legislative and executive branches.
The next major legal battleground over environmental regulations is likely to be the new clean air rules being proposed by the EPA. These proposals are also an excellent illustration of how the process should work. The federal agency charged by Congress with helping to preserve the environment is taking advantage of the latest scientific discoveries to update rules for the first time in more than a decade in order to protect Americans from being exposed to dangerous pollutants. A legal universe in which any new set of rules triggers litigation in front of hostile federal judges frustrates the goals Congress sought to accomplish by establishing the EPA.
Indeed, the reason Republican judges are targeting this system is not because it doesn’t work, but because it does. When it invokes newly-minted rules like the “major questions” doctrine, the Court claims to be upholding the prerogatives of Congress. But it is easy to see that this is disingenuous ruse. As University of Texas Law professor Steve Vladeck points out, “*no* Congress will ever have the *capacity* to regulate across every issue with the specificity that "major questions" requires. It's not pro-democracy; it's anti-regulation.” West Virginia v. EPA does not reflect a desire to uphold the authority of Congress; it reflects the Republican Party’s hostility to environmental regulation.
It is true that other approaches taken by Congress may be less likely to face judicial hostility. The major climate provisions in the Inflation Reduction Act generally rely on direct federal spending, which is less likely to provoke a negative response from the judiciary. It would be premature to conclude there will be no effective legal challenges to these climate provisions, but generally clean energy spending is less likely to be struck down than new regulations. But while if this situation holds it gives Congress some leeway to establish some climate goals, it would not be sufficient. Protecting the environment and combating climate change requires the regulation of polluters, not just spending on clean energy.
And this is what makes West Virginia v. EPA such an ominous precedent. Even if a Democratic Congress and Democratic president of the future could overcome a Senate tilted in favor of fossil fuel-producing states and pass an updated Clean Air Act that more clearly authorized the EPA to regulate carbon emissions, it is not clear how they could overcome the obstacle of a Supreme Court that is both hostile to environmental regulation and willing to engage in bad faith readings of statutes to get its way. When Congress updated the Voting Rights Act to reject the narrow interpretation of its anti-discrimination provisions advanced by the Reagan administration, the Roberts Court just willfully misread the statute as if Reagan (and his lead Department of Justice spokesperson on the issue, John Roberts) had actually won the initial fight.
As long as conservatives control the Supreme Court, environmental regulators won't be allowed to do their jobs.
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The project from Google’s internal incubator program aims to help speed approvals to get more renewables on the grid.
The country’s largest electricity market, PJM, has a problem: It’s facing a slew of retiring fossil fuel resources just as electricity demand is ramping, largely thanks to AI data centers. Meanwhile, PJM has a years-long waitlist full of wind and solar projects seeking permission to connect to the grid that are languishing in no small part due to its slow approval process.
Enter Tapestry, the so-called “moonshot for the electric grid,” as Page Crahan, Tapestry’s general manager, put it on a press call Wednesday. The initiative is a part of Google’s internal project incubator, known simply as X. Today, the tech company and the grid operator announced a partnership that will use artificial intelligence to develop a unified model of the grid’s electricity network, bringing in data from dozens of disparate tools into one simplified “Google Maps for electrons,” as Crahan put it.
The model will give grid operators and project developers the ability to toggle on and off different layers of grid information — a vast improvement over the technical boondoggle grid planners face today. As Crahan explained, they might use one software program that tracks where grid equipment is located, another that models power flow, another that measures the equipment’s thermal capacity, and yet another that runs an economic impact analysis. Then, Crahan said, “each of these software programs will generate a file which creates its own unique model of the grid. And every time a change is made to that one model, it needs to be applied to all of the other models in consideration.” Overall, the siloed nature of these different programs makes it a headache to keep information consistent and up to date across the entire system.
This convoluted process is partially at fault for PJM’s backlogged queue, which in recent years has seen a deluge in new interconnection requests, largely for renewable energy projects. Due to this system overwhelm, PJM put a pause on reviewing applications in 2022, initially expected to last for two years. Now, it’s expected to lift at the end of next year.
Aftab Khan, an executive vice president at PJM, said on the press call that the grid operator knows there’s still more work to be done. “Even though we've made significant progress with tools and automation to manage large numbers of projects in an interconnection cycle, it’s still, end-to-end, about a two-year process,” he said. To expedite this, Tapestry plans to deliver solutions that PJM can start rolling out this year. The two entities will work together to develop new processes “over the next several quarters “ and “perhaps even the next several years,” Crahan said.
Tapestry was formed in 2017 with the mission to “bring the grid out of the industrial age and into the age of intelligence.” In addition to creating a coordinated model of PJM, Tapestry is also developing an AI tool that automates much of the review process for grid interconnection applications, thereby helping to more efficiently validate the feasibility of proposed projects. It’s as simple as dropping a PDF into Tapestry’s AI analytics tool, which can then automatically check the data in the application against other reliable sources.
“By automating and improving the data verification process for things like land rights, equipment and grid impacts, we aim to reduce the burden on the PJM planning team and the energy developers,”Crahan said. She said this will help “reduce the time it takes to evaluate these projects so that capacity can come online faster.”
All of this work builds on previous projects and pilots that Tapestry has been running both domestically and abroad. For example, Tapestry has partnered with the U.S.-based utility and power company AES to develop a vision for the digital, AI-powered grid of the future. And in Chile, Tapestry worked with the national grid operator to deploy planning tools that enable speedy, long-term simulations, allowing operators to make informed decisions about energy needs decades into the future.
“We have been able to take a process that took the planners several days and turn it into a few hours,” Crahan said of the Tapestry’s work expediting grid simulations in Chile. Though she couldn’t cite specific targets for speeding up PJM’s grid interconnection process, “we're looking for significant order of magnitude improvement to support the PJM planners,” Crahan said.
The administration is doubling down on an April 20 end date for the traffic control program.
Congestion pricing has only been in effect in New York City for three months, but its rollout has been nearly as turbulent as the 18-year battle to implement it in the first place.
Trump’s Department of Transportation escalated its threat this week to retaliate against New York if the state’s Metropolitan Transit Authority, or MTA, does not shut down the tolling program by April 20.
The federal agency reposted a CBS New York story on social media that purported it had agreed to allow congestion pricing to remain in place through October, calling the story “a complete lie.”
“Make no mistake — the Trump Administration and USDOT will not hesitate to use every tool at our disposal in response to non-compliance later this month,” the agency said in the post.
The post did not say what those tools might be, but a previous post from Transportation Secretary Sean Duffy on March 20 made a veiled threat to withhold funding from the state if it did not shut down the tolling program. “The billions of dollars the federal government sends to New York are not a blank check,” he said.
Duffy notified the MTA on February 19 that he was rescinding federal approval of its congestion pricing program, which charges a $9 fee for drivers who enter New York City’s central business district. The toll had only just gone into effect in early January, but there was already evidence that it was reducing traffic. The MTA immediately filed a lawsuit in the U.S. District Court for the Southern District of New York challenging Duffy’s actions.
The CBS New York story reported on a joint letter that the MTA and USDOT submitted to the presiding judge mapping out a timeline for the case to proceed. The MTA agreed to file an amended complaint by April 18, and the DOT agreed to respond to it by May 27. Following that, the timeline allows for the back-and-forth over evidence leading up to a ruling to potentially stretch until late October. Both parties called for the judge to reach a decision based on written arguments, without a formal trial.
Despite agreeing to this timeline for the case — the whole point of which is to determine the legality of DOT’s order to terminate congestion pricing — the DOT maintains that New York City must stop charging drivers by April 20.
The MTA refuses to do so. “Congestion pricing is in effect,” Regina Kaplan, the attorney for the MTA, said during a pretrial conference call on Wednesday. “We believe it's working, and as we stated in our complaints, we don't intend to turn it off unless there's an order from your honor that we need to do so.”
In response, Dominika Tarczynska, from the U.S. attorney’s office, told the judge that Duffy is “still evaluating what DOT’s options are if New York City does not comply, and there has been no final decision as to, what, if anything will occur on April 20.”
The president’s executive order is already too late to save at least one Arizona plant.
The Trump administration is trying to save coal again. But despite the president’s seemingly forceful actions, there’s little indication he’ll be any more successful at it this time than he was the last time around.
Backed by coal miners in hard hats and high visibility jackets, Trump on Tuesday announced a series of executive orders meant to boost “beautiful, clean coal.” The orders lift barriers to extracting coal on public lands, ask the Department of Energy to consider metallurgical coal a critical mineral, push out compliance with some air quality rules by two years, instruct the Department of Energy to use emergency authorities to keep coal plants open, and direct theattorney general to go after state climate laws that Trump claimed “discriminate” against greenhouse gas-emitting energy sources like coal.
What’s not clear is how much these orders will boost the coal industry, let alone save it. It’s not even clear whether the specific plant Trump said he was saving will burn coal again.
During the announcement, Trump said that his administration would keep open the Cholla Generating Station, an Arizona coal plant that began operating in 1962. The plant’s final two units were slated to be retired this year.
“We will ensure our nation’s critical coal plants remain online and operational,” Trump said. “To that end, I’m instructing Secretary Wright to save the Cholla coal plant in Arizona.”
But according to Arizona Public Service, the utility that co-owns the plant, the plant has already stopped generating power. A spokesperson told me the utility was “aware” of the president’s statement and is “evaluating what it means for the plant.” APS plans on preserving the site, possibly for nuclear power and has “procured reliable and cost-effective generation that will replace the energy previously generated by Cholla Power Plant,” the spokesperson said.
The Department of Energy didn’t return a request for comment.
Trump’s orders repeatedly cite Section 202 of the Federal Power Act, which allows the Secretary of Energy “during a continuance of a war in which the United States is engaged or when an emergency exists” to allow energy facilities to continue to operate on a temporary basis that otherwise would not.
In 2017, the first Trump administration used Section 202 to allow two coal plant units in Virginia to continue operating occasionally when necessary for grid reliability, despite their having been due to close to comply with air quality regulations. Two years later, the electricity market PJM told the Department of Energy that a new transmission line had rendered the emergency authorization unnecessary, and the plants closed in 2019.
The executive orders “don’t seem to realize that natural gas killed coal and if they aren’t banning fracking, none of this matters,” Grid Strategies president Rob Gramlich wrote on X. “Nothing here seems to change the economics, and it’s the economics that have held coal-fired power production down.” (Gramlich is also a Heatmap contributor.)
Of course, the United States has plenty of coal. But many of its uses — including electricity generation — can be easily substituted with other sources, such as natural gas. That’s why U.S. coal production has been falling since 2008.
“Coal is increasingly uncompetitive in deregulated electricity markets,” Seaver Wang, director of climate and energy at the Breakthrough Institute, told me. That’s because operating a coal-fired power plant comes with all sorts of extra costs that natural gas doesn’t, including the transportation and storage of coal — compare the barges and trains required to move rocks to the neat pipelines gas flows through. The energy research group Energy Innovation has foundthat nearly all coal plants are more expensive to run than the combinations of wind, solar, and storage that might replace them.
“I don’t see the demand drivers for this to remotely bring coal back. I have no idea who would ever invest as a result of this executive order or related policies,” Wang said.
While existing coal plants may stick around for another few years as a result of heightened demand or relaxed regulatory burdens, that’s a far cry from building new coal plants or opening new coal mines. A large coal plant hasn’t opened in the United States since 2013. In 2024, wind and solar generation surpassed coal generation on the grid, according to Ember.
Some 12.3 gigawatts of coal capacity are scheduled to be retired in 2025, according to the Energy Information Administration, making up two-thirds of planned retirements by capacity this year. But coal retirements have also been slowing down, according to EIA data. The 7.5 gigawatts retired last year was the least since 2011.
Jefferies analysts estimated that over 12 gigawatts of coal capacity is due for retirement in 2028. That could be pushed back thanks to the relaxation of the mercury and air toxics rules the president announced Tuesday.
“There is logic to delaying coal retirements to serve incremental high-density load customers like data centers,” the Jefferies analysts wrote. “Not all coal retirements are alike, and the economic-driven transitions will continue to draw support, but the calculus will change with more expensive renewables and natural gas alternatives from tariffs and potential changes to the Inflation Reduction Act.”
This is not the first time a Trump White House has tried to rescue this declining industry. During his first term, then Secretary of Energy Rick Perry proposed that coal and nuclear plants at risk of closing because of low demand have guaranteed payments, known as cost recovery, in order to stay open. The Federal Energy Regulatory Commission, with a Republican majority, said no to Perry by a vote of 5-0.
Despite the president’s promises throughout his campaign, the coal industry shrunk by a huge degree during his first term, part of a longer trend that brought down coal’s share in the electricity generating sector from about half in 2007 to 16% in 2023. During Trump’s time in office, coal mining jobs declined from 51,000 to 38,000 during the pandemic, and have recovered only to 40,000 today.
When it comes to mines, Wang said, investors would likely be leery of putting money into the sector, given the strong likelihood that a future Democratic administration would be far less friendly to coal. Coal investors “are going to be accounting for the fact that any policy swings are short lived,” Wang told me.
“We all know that lead times for mines are long. Everyone knows this administration only has four years in office. I don’t really expect that this will drive a lot of investment interest,” Wang said.
The critical mineral designation for coal, if it makes it through the Department of Energy’s process, may not change much initially, Wang explained. It could lead to some “beneficial outcomes in terms of agency prioritization,” he said. But much critical minerals policy is still being worked out, and there are few programs that specifically and programmatically target the critical minerals included on lists maintained by either the Department of Energy or the United States Geological Service.
“A lot of the politicking over critical minerals designation is about the expectation of future outcomes that would arise from broad bipartisan interest in critical minerals as a category,” Wang said.
And unlike with other critical minerals, the U.S. is essentially self-sufficient for coal’s industrial and energy uses. We’re not talking about graphite here, let alone praseodymium.
At least so far, the coal industry has not thrilled to having a more friendly figure in the White House, although the share prices of some coal companies are up in afternoon trading. Coal exports in January, the most recent month for which there is data, stood at 7.7 million short tons, compared to 8.4 million short tons a year prior. Central Appalachia coal prices stand at $78 per short ton, compared to $77.35 a year ago.
If nothing else, the announcements provided Trump with the type of photo-op he craves. He even got the opportunity to bash Hillary Clinton. “One thing I learned about the coal miners … they want to mine coal. She was gonna put them in a high-tech industry where you make little cell phones and things,” he told the audience in the White House. Of course, Secretary of Commerce Howard Lutnick on Sunday touted the “army of millions and millions of people screwing in little, little screws to make iPhones” that Trump’s tariffs will also help generate. But no matter what the president says or does, the coal industry may still be screwed.