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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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Six months in, federal agencies are still refusing to grant crucial permits to wind developers.
Federal agencies are still refusing to process permit applications for onshore wind energy facilities nearly six months into the Trump administration, putting untold billions in energy infrastructure investments at risk.
On Trump’s first day in office, he issued two executive orders threatening the wind energy industry – one halting solar and wind approvals for 60 days and another commanding agencies to “not issue new or renewed approvals, rights of way, permits, leases or loans” for all wind projects until the completion of a new governmental review of the entire industry. As we were first to report, the solar pause was lifted in March and multiple solar projects have since been approved by the Bureau of Land Management. In addition, I learned in March that at least some transmission for wind farms sited on private lands may have a shot at getting federal permits, so it was unclear if some arms of the government might let wind projects proceed.
However, I have learned that the wind industry’s worst fears are indeed coming to pass. The Fish and Wildlife Service, which is responsible for approving any activity impacting endangered birds, and the U.S. Army Corps of Engineers, tasked with greenlighting construction in federal wetlands, have simply stopped processing wind project permit applications after Trump’s orders – and the freeze appears immovable, unless something changes.
According to filings submitted to federal court Monday under penalty of perjury by Alliance for Clean Energy New York, at least three wind projects in the Empire State – Terra-Gen’s Prattsburgh Wind, Invenergy’s Canisteo Wind, and Apex’s Heritage Wind – have been unable to get the Army Corps or Fish and Wildlife Service to continue processing their permitting applications. In the filings, ACE NY states that land-based wind projects “cannot simply be put on a shelf for a few years until such time as the federal government may choose to resume permit review and issuance,” because “land leases expire, local permits and agreements expire, and as a result, the project must be terminated.”
While ACE NY’s filings discuss only these projects in New York, they describe the impacts as indicative of the national industry’s experience, and ACE NY’s executive director Marguerite Wells told me it is her understanding “that this is happening nationwide.”
“I can confirm that developers have conveyed to me that [the] Army Corps has stopped processing their applications specifically citing the wind ban,” Wells wrote in an email. “As I have understood it, the initial freeze covered both wind and solar projects, but the freeze was lifted for solar projects and not for wind projects.”
Lots of attention has been paid to Trump’s attacks on offshore wind, because those projects are sited entirely in federal waters. But while wind projects sited on private lands can hypothetically escape a federal review and keep sailing on through to operation, wind turbines are just so large in size that it’s hard to imagine that bird protection laws can’t apply to most of them. And that doesn’t account for wetlands, which seem to be now bedeviling multiple wind developers.
This means there’s an enormous economic risk in a six-month permitting pause, beyond impacts to future energy generation. The ACE NY filings state the impacts to New York alone represent more than $2 billion in capital investments, just in the land-based wind project pipeline, and there’s significant reason to believe other states are also experiencing similar risks. In a legal filing submitted by Democratic states challenging the executive order targeting wind, attorneys general listed at least three wind projects in Arizona – RWE’s Forged Ethic, AES’s West Camp, and Repsol’s Lava Run – as examples that may require approval from the federal government under the Bald and Golden Eagle Protection Act. As I’ve previously written, this is the same law that bird conservation advocates in Wyoming want Trump to use to reject wind proposals in their state, too.
The Fish and Wildlife Service and Army Corps of Engineers declined to comment after this story's publication due to litigation on the matter. I also reached out to the developers involved in these projects to inquire about their commitments to these projects in light of the permitting pause. We’ll let you know if we hear back from them.
On power plant emissions, Fervo, and a UK nuclear plant
Current conditions: A week into Atlantic hurricane season, development in the basin looks “unfavorable through June” • Canadian wildfires have already burned more land than the annual average, at over 3.1 million hectares so far• Rescue efforts resumed Wednesday in the search for a school bus swept away by flash floods in the Eastern Cape province of South Africa.
EPA
The Environmental Protection Agency plans to announce on Wednesday the rollback of two major Biden-era power plant regulations, administration insiders told Bloomberg and Politico. The EPA will reportedly argue that the prior administration’s rules curbing carbon dioxide emissions at coal and gas plants were misplaced because the emissions “do not contribute significantly to dangerous pollution,” per The Guardian, despite research showing that the U.S. power sector has contributed 5% of all planet-warming pollution since 1990. The government will also reportedly argue that the carbon capture technology proposed by the prior administration to curb CO2 emissions at power plants is unproven and costly.
Similarly, the administration plans to soften limits on mercury emissions, which are released by burning coal, arguing that the Biden administration “improperly targeted coal-fire power plants” when it strengthened existing regulations in 2024. Per a document reviewed by The New York Times, the EPA’s proposal will “loosen emissions limits for toxic substances such as lead, nickel, and arsenic by 67%,” and for mercury at some coal power plants by as much as 70%. “Reversing these protections will take lives, drive up costs, and worsen the climate crisis,” Climate Action Campaign Director Margie Alt said in a statement. “Instead of protecting American families, [President] Trump and [EPA Administrator Lee] Zeldin are turning their backs on science and the public to side with big polluters.”
Fervo Energy announced Wednesday morning that it has secured $206 million in financing for its 400-megawatt Cape Station geothermal project in southwest Utah. The bulk of the new funding, $100 million, comes from the Breakthrough Energy Catalyst program.
Fervo’s announcement follows on the heels of the company’s Tuesday announcement that it had drilled its hottest and deepest well yet — at 15,000 feet and 500 degrees Fahrenheit — in just 16 days. As my colleague Katie Brigham reports, Fervo’s progress represents “an all too rare phenomenon: A first-of-a-kind clean energy project that has remained on track to hit its deadlines while securing the trust of institutional investors, who are often wary of betting on novel infrastructure projects.” Read her full report on the clean energy startup’s news here.
The United Kingdom said Tuesday that it will move forward with plans to construct a $19 billion nuclear power station in southwest England. Sizewell C, planned for coastal Suffolk, is expected to create 10,000 jobs and power 6 million homes, The New York Times reports. Sizewell would be only the second nuclear power plant to be built in the UK in over two decades; the country generates approximately 14% of its total electricity supply through nuclear energy. Critics, however, have pointed unfavorably to the other nuclear plant under construction in the UK, Hinkley Point C, which has experienced multiple delays and escalating costs throughout its development. “For those who have followed Sizewell’s progress over the years, there was a glaring omission in the announcement,” one columnist wrote for The Guardian. “What will consumers pay for Sizewell’s electricity? Will it still be substantially cheaper in real terms than the juice that will be generated at Hinkley Point C in Somerset?” The UK additionally announced this week that it has chosen Rolls-Royce as the “preferred bidder” to build the country’s first three small modular nuclear reactors.
The European Union on Tuesday proposed a ban on transactions with Nord Stream 1 and 2 as part of a new package of sanctions aimed at Russia, Bloomberg reports. “We want peace for Ukraine,” the president of the European Commission, Ursula von der Leyen, said at a news conference in Brussels. “Therefore, we are ramping up pressure on Russia, because strength is the only language that Russia will understand.” The package would also lower the price cap on Russian oil to $45 a barrel, down from $60 a barrel, von der Leyen said, as well as crack down on Moscow’s “shadow fleet” of vessels used to transport sanctioned products like crude oil. The EU’s 27 member states need to unanimously agree to the package for it to be adopted; their next meeting is on June 23.
The world’s oceans hit their second-highest temperature ever in May, according to the European Union’s Earth observation program Copernicus. The average sea surface temperature for the month was 20.79 degrees Celsius, just 0.14 degrees below May 2024’s record. Last year’s marine heat had been partly driven by El Niño in the Pacific, so the fact that the oceans remain warm in 2025 is alarming, Copernicus senior scientist Julien Nicolas told the Financial Times. “As sea surface temperatures rise, the ocean’s capacity to absorb carbon diminishes, potentially accelerating the build-up of greenhouse gases in the atmosphere and intensifying future climate warming,” he said. In some areas around the UK and Ireland, the sea surface temperature is as high as 4 degrees Celsius above average.
Image: Todd Cravens/Unsplash
The Pacific Island nation of Tonga is poised to become the first country to recognize whales as legal persons — including by appointing them (human) representatives in court. “The time has come to recognize whales not merely as resources but as sentient beings with inherent rights,” Tongan Princess Angelika Lātūfuipeka Tukuʻaho said in comments delivered ahead of the U.N. Ocean Conference in Nice, France.
Microsoft, Amazon, Google, and the rest only have so much political capital to spend.
When Donald Trump first became a serious Presidential candidate in 2015, many big tech leaders sounded the alarm. When the U.S. threatened to exit the Paris Agreement for the first time, companies including Google, Microsoft, Apple, and Facebook (now Meta) took out full page ads in The New York Times and The Wall Street Journal urging Trump to stay in. He didn’t — and Elon Musk, in particular, was incensed.
But by the time specific climate legislation — namely the Inflation Reduction Act — was up for debate in 2022, these companies had largely clammed up. When Trump exited Paris once more, the response was markedly muted.
Now that the IRA’s tax credits face clear and present threats, this same story is playing out again. As the Senate makes its changes to the House’s proposed budget bill, tech giants such as Microsoft, Google, Meta, and Amazon are keeping quiet, at least publicly, about their lobbying efforts. Most did not respond to my request for an interview or a statement clarifying their position, except to say they had “nothing to share on this topic,” as Microsoft did.
That’s not to say they have no opinion about the fate of clean energy tax credits. Microsoft, Google, Meta, and Amazon have all voluntarily set ambitious net-zero emissions targets that they’re struggling to meet, largely due to booming data center electricity demand. They’re some of the biggest buyers of solar and wind energy, and are investing heavily in nuclear and geothermal. (On Wednesday morning, Pennsylvania’s Talen Energy announced an expanded power purchase agreement with Amazon, for nearly 2 gigawatts of power through 2042.) All of these energy sources are a whole lot more accessible with tax credits than without.
There’s little doubt the tech companies would prefer an abundant supply of cheap, clean energy. Exactly how much they’re willing to fight for it is the real question.
The answer may come down to priorities. “It’s hard to overstate how much this race for AI has just completely changed the business models and the way that these big tech companies are thinking about investment,” Jeff Navin, co-founder of the climate-focused government affairs firm Boundary Stone Partners, told me. “While they’re obviously going to be impacted by the price of energy, I think they’re even more interested and concerned about how quickly they can get energy built so that they can build these data centers.”
The tech industry has shown much more reluctance to stand up to Trump, period, this time around. As the president has moved from a political outsider to the central figure in the Republican party, hyperscalers have increasingly curried his favor as they advocate against actions that could pose an existential risk to their business — think tighter regulations on the tech sector or AI, or tariffs on key supplies made in Asia.
As Navin put it to me, “When you have a president who has very strong opinions on wind turbines and randomly throws companies’ names in tweets in the middle of the night, do you really want to stick your neck out and take on something that the president views as unpopular if you’ve got other business in front of him that could be more impactful for your bottom line?”
It is undeniably true that the AI-driven data center boom is pushing these companies to look for new sources of clean power. Last week Meta signed a major nuclear deal with Constellation Energy. Microsoft is also partnering with Constellation to reopen Three Mile Island, while Google and Amazon have both announced investments in companies developing small modular reactors. Meta, Google, and Microsoft are also investing in next-generation geothermal energy startups.
But while the companies are eager to tout these partnerships, Navin suspects most of their energy lobbying is now being directed towards efforts such as permitting reform and building out transmission infrastructure. Publicly available lobbying records confirm that these are indeed focus areas, as they’re critical to bringing data centers online quickly, regardless of how they’re powered and whether that power is subsidized. “They’re not going to stop construction on an energy project that has access to electricity just because that electricity is marginally more expensive,” Navin told me. “There’s just too much at stake.”
Tech companies have lobbied on numerous budget, tax, sustainability, and clean energy issues thus far this year. Amazon’s lobbying report is the only one to specifically call out efforts on “renewable energy tax credits,” while Meta cites “renewable energy policy” and Microsoft name-drops the IRA. But there’s no hard and fast standard for how companies describe the issues they’re lobbying on or what they’re looking to achieve. And perhaps most importantly, the reports don’t disclose how much money they allot to each issue, which would illuminate their priorities.
Lobbying can also happen indirectly, via industry groups such as the Clean Energy Buyers Association and the Data Center Coalition. Both have been vocal advocates for preserving the tax credits. The Wall Street Journal recently detailed a lobbying push by the latter — which counts Microsoft, Amazon, Meta, and Google among its most prominent members — that involved meetings with about 30 Republican senators and a letter to Senate Majority Leader John Thune.
DCC didn’t respond to my request for an interview. But CEBA CEO Rich Powell told me, “If we take away these incentives right now, just as we’re getting the rust off the gears and getting back into growth mode for the electricity economy, we’re really concerned about price spikes.”
The leader of another industry group, Advanced Energy United, shared Powell’s concern that passing the bill would mean higher electricity prices. Taking away clean energy incentives would ”fundamentally undercut the financing structure for — let’s be frank — the vast majority of projects in the interconnection queue today,” Harry Godfrey, the managing director of AEU, told me.
Being part of an industry association is by no means a guarantee of political alignment on every issue. Microsoft, Google, Meta, and Amazon are also members of the U.S. Chamber of Commerce — by far the largest lobbying group in the U.S. — which has a long history of opposing climate action and the IRA itself. Apple even left the Chamber in 2009 due to its climate policy stances.
But Powell and Godfrey implied that the tech giants' views are — or at least ought to be — in alignment with theirs. “Many of our members are lobbying independently. Many of them are lobbying alongside us. And then many of them are supporting CEBA to go and lobby on this,” Powell told me, though he wouldn’t reveal what actions any specific hyperscalers were taking.
Godfrey said that AEU’s positions are “certainly reflective of what large energy consumers, notably tech companies, have been working to pursue across a variety of technologies and with applicability to a couple of different types of credits.”
And yet hyperscalers may have already spent a good deal of their political capital fighting for a niche provision in the House’s version of the budget bill, which bans state-level AI regulation for a decade. That would make the AI boom infinitely easier for tech companies, who don’t want to deal with a patchwork of varying regulations, or really most regulations at all.
On top of everything else, big tech in particular is dealing with government-led anti-trust lawsuits, both at home and abroad. Google recently lost two major cases to the Department of Justice, related to its search and advertising business. A final decision is pending regarding the Federal Trade Commission’s antitrust lawsuit against Meta, regarding the company’s acquisition of Instagram and WhatsApp. Not to be outdone, Amazon will also be fighting an antitrust case brought by the FTC next year.
As these companies work to convince the public, politicians, and the courts that they’re not monopolistic rule-breakers, and that AI is a benevolent technology that the U.S. must develop before China, they certainly seem to be relinquishing the clean energy mantle they once sought to carry, at least rhetorically. We’ll know more once all these data centers come online. But if the present is any indication, speed, not green electrons, is the North Star.
Editor’s note: This story has been updated to reflect Amazon’s power purchase agreement with Talen Energy.