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The Environmental Protection Agency is feeling a calendar crunch.
Since President Joe Biden took office more than two years ago, the Environmental Protection Agency has been something of a sleeping giant.
Once central to President Barack Obama’s climate policy, the EPA seemed to take a backseat under Biden. As the Department of Treasury wrote rules for a dizzying number of new tax credits, and the Department of Energy became a de facto industrial-planning organization, the EPA seemed to wallow.
Then a few weeks ago, the agency came alive.
Last week, it proposed requiring that most new cars sold in the United States — and one quarter of all heavy-duty trucks — be powered solely by electricity. A week before, it tightened limits on the amount of brain-damaging mercury that coal-burning power plants can release. In March, it instructed nearly two dozen states to clean up pollution from their factories and power plants, and it slashed the amount of toxic air pollution that buses, vans, and heavy-duty trucks can legally produce.
This sudden burst of activity is in some ways just the appetizer. Within the next few weeks, the EPA is expected to propose restricting climate-warming pollution from new and existing power plants. This set of draft rules will aim to rapidly eliminate greenhouse-gas pollution from the power sector, one of the most carbon-intensive parts of the economy, in order to meet Biden’s goal of producing 100% zero-carbon electricity by 2035.
It will also face an immediate challenge in the Supreme Court, which has blocked a similar effort in the past even as it has preserved the EPA’s broad power to issue rules about the power sector.
This sudden flurry of productivity may seem to have come out of nowhere.
So why is the EPA publishing so many of these rules now?
The same reason that any of us suddenly become productive: It’s under deadline pressure. For the EPA, and for every other executive agency, the effective beginning of the end of Biden’s first term is as little as a few weeks away. Here’s why.
Under a law called the Congressional Review Act, Congress can overturn new federal rules by a simple majority vote and with the president’s signature. Most of the time, that power doesn’t matter, because presidents rarely want to repeal rules that their own administration has issued. (Last month, Biden vetoed a CRA resolution for this reason.)
But it becomes important when a new White House and Congress take over from a president of the opposite party. In 2017, a newly elected President Donald Trump and a Republican Congress repealed 16 Obama-era rules. In 2021, the new Democratic trifecta overturned three of Trump’s rules.
Biden would like to avoid the same fate befalling his own administration’s climate rules, so he’s moving fast. The key is that Congress can only activate the CRA for new rules — which, under the law, means rules that were finalized during the past 60 “legislative days,” or days when the House or Senate was in session. Because Congress isn’t in session every day, that’s a much longer period of time than it may seem — it can stretch four or five months into the past. When Biden took office in early January 2021, for instance, Congress could use the CRA on any rules that the Trump administration finalized after August 21, 2020.
“It is difficult to know with any specificity what the ‘lookback window’ will look like in 2024,” because it depends on what “the actual session of Congress looks like,” Dan Goldbeck, the director of regulatory policy at the American Action Forum, a center-right think tank, told me. In recent years, the deadline has tended to fall sometime in the late summer, but there’s no guarantee this pattern will hold next year, he said.
Let’s figure it does, though, and that the administration must finalize rules before about August 1, 2024, in order to protect them from the CRA.
We can backfill the calendar from there. As of today, the EPA has only started to circulate drafts of its most important rules, such as the clean-cars mandate. It has yet to publish these drafts in the Federal Register, the government’s official journal of rules and regulations. When they are published, the agency will open a 60-day comment period when the public can respond to any facet of the rules; it will probably extend this to 90 days as a show of good faith.
So if the EPA publishes its draft rule in the Federal Register soon — on May 1, say — then the public comment period will end three months later, on August 1. Then the agency must go over its draft again, double check its math, and respond to every public comment that it has received. This process of finalizing the rule can take about a year. Assuming it does, then suddenly it’s August 1, 2024 — and we’re at the (approximate) deadline.
In other words, the EPA must publish as many rules as possible now in order to protect them from quick repeal if, say, Ron DeSantis is inaugurated in 2025. This is part of why the EPA is moving with such haste now — and why the Biden administration’s climate policy has entered a new and more aggressive phase.
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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.