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The challenges of long-duration energy storage have inspired some creative solutions.
Imagine a battery. Maybe you envision popping one into a fading flashlight or a dead remote controller. Perhaps you consider the little icon on the top of your phone or laptop screen, precariously dipping into the red while you search for a charger. Or you might picture the powerful battery pack inside your electric vehicle, helping to make gas stations obsolete.
These minor to major electrochemical marvels are fine, but the opportunity space for energy storage is so, so much larger — and weirder. Water moving between two reservoirs is a classic un-classic battery, but compressed air stored in a cavern, raising and lowering heavy blocks, even freezing water or heating up rocks can also all be batteries. And these methods of energy storage have the potential to be enormously helpful where standard lithium-ion batteries fall short — namely for long-duration energy storage and large-scale heating and cooling applications.
Lithium-ion batteries still dominate the market, Kevin Shang, a senior research analyst at energy consultancy Wood Mackenzie, told me. But “over the next 10 years, we do see more and more long-duration energy storage coming into play.” Typical lithium-ion batteries can provide only about four hours of continual power, occasionally reaching up to eight — though that’s an economic constraint rather than a technical one. Generally speaking, it’s too pricey for lithium-ion to meet longer-duration needs in today’s market. So as states and countries get real about their clean energy targets and install more wind and solar generation, they need some way to ensure their grids’ reliability when the weather’s not cooperating or demand is peaking.
“There’s a need for something that can substitute for natural gas,” Logan Goldie-Scot, director of market research at the sustainable infrastructure investment firm Generate Capital told me. Almost no one believes lithium-ion batteries will be a viable alternative. “And so then it is an open question of whether that role will be filled by long-duration energy storage, by green hydrogen, or by clean firm power” like nuclear or geothermal, he said.
There are some novel battery chemistries and configurations out there, from Form Energy’s iron-air batteries to flow batteries that store their electrolytes in separate tanks to zinc-based batteries. But there are also numerous more creative, non-chemical, not-what-you-might-consider-a-battery batteries vying for a role in the long-duration storage market.
Founded back in 2010, Toronto-based Hydrostor has been pursuing “advanced compressed air energy storage” for a while now. Essentially, the system uses off-peak, surplus, or renewable grid energy to compress air and pump it into a water-filled cavern, displacing that water to the surface. Then when energy is needed, it releases the water back into the cavern, pushing the air upward to mix with stored heat, which turns a turbine and produces electricity.
“Everybody has talked about long-duration storage for probably the past five years or so. The markets have not been there to pay for it at all. And that’s starting to change,” Jon Norman, Hydrostor’s president, told me.
Part of Hydrostor’s pitch is that its tech is a “proven pathway,” as it involves simply integrating and repurposing preexisting systems and technologies to produce energy. It’s also cheaper than lithium-ion storage, with no performance degradation over a project’s lifetime. Major investors are buying it — the company raised $250 million from Goldman Sachs in 2022, to be paid out in tranches tied to project milestones. At the time, it was one of the largest investments ever made in long-duration energy storage.
The company has operated a small 1.75 megawatt facility in Canada since 2019, but now with Goldman’s help it’s scaling significantly, developing a 500 megawatt grid-scale project in California in partnership with a community choice aggregator, as well as a 200 megawatt microgrid project in a remote town in New South Wales, Australia.
“Our bread and butter application is serving the needs of grids and utilities that are managing capacity and keeping the lights on all the time,” Norman told me. The company’s projects under development are designed to deliver eight hours of energy. “That’s what the market’s calling for right now,” Norman said, though theoretically Hydrostor could handle multi-day storage.
Standard lithium-ion batteries have shown that they can be economical in the eight-hour range too, though. Back in 2020, a coalition of community choice aggregators in California requested bids for long-duration storage projects with at least eight hours of capacity. While Hydrostor and numerous other startups threw their hats in the ring, the coalition ultimately selected a standard lithium-ion battery project for development.
While this could be viewed as a hit to more nascent technologies, Hydrostor said the process ultimately led to the company’s 25-year, 200 megawatt offtake contract with Central Coast Community Energy, which will purchase power from the company’s 500 megawatt project in California’s Central Valley, set to come online in 2030. But that long lead time could be one of the main reasons why Hydrostor didn’t win the coalition’s bid in the first place.
“When you consider the very pertinent needs for energy storage systems today in California and yesterday, a technology that is not due to come online for another six years – I don’t think you’re even yet at the cost comparison conversation,” Goldie-Scot told me, in reference to Hydrostor’s timeline. “It’s just, how soon can some of these companies deliver a project?” Generate recently acquired esVolta, a prominent developer of lithium-ion battery storage projects.
But ultimately, Norman says he doesn’t really view Hydrostor as in competition with lithium-ion. “We would even add [traditional] batteries to our system if we wanted to provide really fast response times,” he told me. He says the use cases are just different, and that he has faith that compressed air storage will eventually prove to be the superior option for grid-scale, long-duration applications.
Another company taking inspiration from pumped storage hydropower is Energy Vault. Founded in 2017, the Swiss company is pursuing a “gravity-based” system that can store up to 24 hours of energy. While the design of its system has shifted over the years, the basic concept has remained the same: Using excess grid energy to lift heavy blocks (initially via cranes, now via specialized elevators), and then lowering those blocks to spin a turbine when there’s energy demand.
The company raised $110 million from Softbank Vision Fund in 2019, but failed to find an immediate market for its tech. “When we founded the company, we started thinking long-duration was going to be required much more quickly, and hence the focus on gravity,” Rob Piconi, Energy Vault’s CEO, told me.
But instead of waiting around for the long-duration market to boom, the company went public via SPAC in early 2022 and reinvented itself. Now it makes much of its revenue selling the sort of traditional lithium-ion energy storage systems that it once sought to replace, and has made moves into the green hydrogen space, too.
“The near term difficulty for many of these long-duration storage companies is that we’re still relatively early on in the scaling of lithium-ion,” Goldie-Scot, told me, noting that prices for Chinese-made batteries have plunged in the past year. Generate usually only invests in tech that’s well-proven and ready to scale up. So while lithium-ion alternatives will look more and more attractive as the world moves toward full decarbonization, in the interim, “there’s a gap between that longer term need and where the market is today.”
Piconi agrees. “If you look at storage deployments 95% to 98% of them are all this shorter duration type of storage right now, because that’s where the market is,” he said, though he added that he’s seeing demand pick up, especially in places like California that are investing heavily in storage.
All that’s to say the company hasn’t given up on its foundational concept — its first commercial-scale gravity energy storage system was recently connected to the grid in China, and the company has broken ground on a second facility in the country as well. These facilities provide four hours of energy storage duration, which lithium-ion batteries can also easily achieve — but the selling point, Piconi says, is that unlike lithium-ion, gravity storage systems don’t catch fire, rely on critical minerals, or degrade over time. And once the market demands it, Energy Vault can provide power for much longer.
Still, the upfront costs of Energy Vault’s system can be daunting for risk-averse utilities. So in an effort to lower prices, the company recently unveiled a series of new gravity storage prototypes that leverage either existing slopes or multi-purpose skyscrapers. They were designed in partnership with the architecture and engineering firm Skidmore, Owings & Merrill, the company behind the world’s tallest building.
The market may not have been ready five years ago, Piconi told me. But “in 12 to 24 months, we’re going to start to see gravity pop up,” he projected.
But wait, there’s more. Perhaps one of the best use cases for lithium-ion alternatives is in onsite, direct heating and cooling applications. That’s what the Israeli company Nostromo Energy is focused on, aiming to provide cleaner, cheaper air conditioning for large buildings like offices, school campuses, hotels, and data centers.
The company uses off-peak or surplus renewable energy to freeze water, storing it for later use in modular cells. Then, as temperatures rise and air conditioning turns on, that frozen water will cool down the building without the need for energy-intensive chillers, which commercial buildings normally rely upon. The system can be configured to discharge energy for two-and-a-half all the way up to 10 hours.
“Because air conditioning is roughly half of the electricity consumption of a building, we can provide that half from stored energy. And that’s overall a huge relief on the grid,” Nostromo’s CEO Yoram Ashery told me.
While a lot of (my) attention has been focused on how thermal batteries can help decarbonize heat-intensive industrial processes, and much has been written about the benefits of electric heat pumps over gas-powered heating, cooling is sometimes overlooked. That’s at least partially because air conditioning is already electrified.
But as more of our vehicles, appliances, and systems go electric, strain on the grid is poised to increase, especially during times of peak energy demand in the late afternoon and evening as people return home from the office before the sun goes down. Nostromo’s system can help shift that load by charging either midday (when solar is abundant) or at night (when wind is peaking), and discharging as demand for AC ramps throughout the afternoon.
Goldie-Scot said thermal storage technologies like this “offer something that some of the other technologies that are purely power-focused cannot. But they are still competing against relatively cheap natural gas.”
The upfront cost of the system, $2 to $3 million, is also nothing to sneeze at. But Ashery says it will fully pay for itself after just five years, as building owners stand to see significant savings on their electricity bills by shifting their demand to off-peak hours.
While one could theoretically power a building’s AC system using large lithium-ion-batteries, “it’s a problem to put big lithium batteries inside buildings,” Ashery told me. That’s due to the fire risk, which could impact insurance premiums for businesses, as well as space issues — these batteries would need to be container-sized to run an HVAC system. “That’s why only 1% of energy storage currently goes into commercial/industrial buildings,” Ashery wrote in a follow up email.
Shang told me that he sees so-called “behind the meter” applications like this as promising early markets for long-duration storage tech, especially given that utilities are “pretty cautious to adopt these technologies on a large scale.” But ultimately, he believes that policy is what’s really going to jumpstart this market.
“For long-duration storage, it may look years ahead, but actually the future is now,” he said. Because some of these new systems take longer to design and build, Shang told me, “you have to invest now. For the policies, you have to be ready now to support the development of these [long-duration energy storage] technologies.”
The Biden administration is certainly trying. All energy storage tech — thermal, compressed air, gravity, and lithium-ion — stands to benefit from generous IRA tax credits, which will cover 30% of a project’s cost, assuming it meets certain labor standards. Additional savings can accrue if a project meets domestic content requirements or is sited in a qualifying “energy community,” such as a low-income area that derives significant revenue from fossil fuel production.
The Department of Energy’s ultimate goal is to reduce the cost of grid-scale long-duration energy storage by 90% this decade (with “long” defined as 10-plus hours). And last year, the DOE announced $325 million in funding for 15 long-duration demonstration projects.
So while the market might not be quite ripe yet for funky, alternative approaches to long-duration storage, support like this is going to be necessary to ensure that these technologies are proven, cost-effective and available as the grid decarbonizes and the need crystallizes.
“There is not currently a system-wide way of valuing long-duration energy storage while competing against gas, but there are customers and utilities that have shown a willingness, especially with federal and state support, to invest in these technologies,” Goldie-Scot said. “That I think is giving us the first real inkling of the role that the long-duration can play in this market.”
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Not even the companies that — on the surface, at least — seem most likely to benefit from them.
Amidst the chaos of President Donald Trump’s tariff regime so far, there has been one constant — the 25% levies on steel and aluminum imports applied in February, with no country-specific exemptions. I’ve been a bit befuddled as to what these tariffs may, or may not, mean for the companies trying to green these notoriously hard-to-decarbonize sectors. And it turns out, some of them are a bit befuddled, too.
“It’s a mixed bag,” Cody Finke, CEO of the Bay Area-based clean cement and aluminum startup Brimstone told me. Brimstone’s core breakthrough is figuring out a way to co-produce cement and alumina — the core material in the critical mineral aluminum — using carbon-free calcium silicates such as basalt rather than limestone, which releases a lot of CO2 when it’s processed.
At least on the surface, a company like Brimstone should fall squarely among the beneficiaries of Trump’s trade policy — the whole point of the tariffs, after all, is to increase demand for domestic steel and aluminum by making foreign metals more expensive. That will likely allow U.S.-based producers to raise prices, too, generating even more revenue.
Then again, green steel and aluminum producers rely on imports of these same materials to build their own plants. Tariffs on these vital construction materials — plus exorbitant levies on all goods from China — will make building new production facilities significantly costlier. (As Keith Norman, CEO of the domestic battery manufacturer Lyten told me last month, “The reality is, the energy transition is a manufacturing transition.”) Not to mention the fact that the auto industry — a heavy user of both steel and aluminum — is facing its own 25% tariffs on imported vehicles and auto parts. That stands to raise the price and thus lower the demand for cars, in turn reducing demand for the materials needed to build them, green or not.
Large industry players such as Nucor and Cleveland Cliffs — both of which have plans to produce green steel — have seen mixed responses since the tariffs were announced. “Nucor recently said on an earnings call that they have huge backlogs, suggesting increased demand. [Cleveland] Cliffs, on the other hand, is idling plants due to low demand,” Hilary Lewis, the steel director at Industrious Labs, a nonprofit advocating for heavy industry decarbonization, told me via email. But it’s difficult to know how much a company’s recent performance is attributable to the tariffs. “The impact of the steel tariffs are uneven and subject to other disruptions in the market,” Lewis said.
Industrious Labs aluminum lead Annie Sartor told me that Trump’s first term tariffs on aluminum failed to revitalize the industry, which she said “saw a continued downturn.” So while the latest tariffs are more robust, Sartor is hesitant to to think that “this will be a real game changer.” As she explained, “The biggest challenge that the industry faces is access to electricity, and specifically renewable electricity.”While the tariffs won’t directly address that, Sartor said that an optimistic analysis would suggest that with their extra revenue, companies that rely on electrification to clean up their operations “could use those additional funds to help them access the renewable energy that they want.”
At least for now, many of the leading companies have expressed strong support for Trump’s trade agenda. Century Aluminum’s CEO Jesse Gary said the tariffs “will help drive the resurgence of domestic aluminum production,” while Cleveland Cliff’s CEO Lourenco Goncalves stated they would “penalize the foreign competitors who have been playing by a different set of rules.” And while Leon Topalian, CEO of Nucor, acknowledged that the tariffs will increase the price of the raw materials for steel, such as iron ore, he told investors that he thinks this will be outweighed by “the overall macroeconomic trends in the industry, a healthy, vibrant steel industry.”
Aluminum giant Alcoa, which has also expressed interest in producing green aluminum, is an outlier among industry leaders in its opposition to tariffs. The company’s CEO, Bill Oplinger, told the crowd at a metals and mining conference in February that the disruption caused by the tariffs could eliminate 100,000 jobs in the domestic aluminum industry. The company operates two smelters in Canada that will be subject to tariffs, while it’s closed down many older smelters in the U.S. that it’s in no rush to reopen. “It’s hard to make a restart decision based on tariffs that could change,” Oplinger said during an analyst call, the Wall Street Journal reported. “We just don’t know whether they will stick.”
Startups focused narrowly on green metals production, however, have generally been more circumspect in their responses. “At this point, we’re trying to just stay steady through all of it — not reacting to the day-to-day,” Adam Rauwerdink, senior vice president at the green steel startup Boston Metal, told me. His company uses renewable power to electrolyze iron ore at high temperatures to create molten iron, the feedstock for steel.
Boston Metal has yet to build its first demonstration plant, and while Rauwerdink told me the tariffs could provide some incentive to site the facility in the states, the increase in domestic materials demand that tariffs will presumably bring is by no means enough to guarantee a U.S.-based facility will be worth it. “Here in the U.S. right now, the challenge is just the grid not being sufficient,” he said.
With electricity demand on the rise, green metals companies are now competing for renewable resources with tech giants that are trying to scoop up as much clean energy as possible to power their artificial intelligence-focused data centers. “Innovations like that, which change the landscape on the grid, can definitely impact some of these other solutions that are going to be competing for electrons and are probably less profitable than an AI data center,” Rauwerdink told me.
Electra, a startup that’s also using electrolysis to decarbonize the ironmaking process, recently landed a $186 million Series B funding round to build its demonstration plant in Colorado. But the tariffs aren’t enough for them to commit to the U.S. market, either. As the company’s CEO, Sandeep Nijhawan, told me, building a facility in an area with easy access to renewables is of paramount importance to them too.
Adding to all of this tariff-related uncertainty is the fact that many of these demonstration plants or first commercial facilities, including Brimstone’s, aren’t even scheduled to come online until the latter half of Trump’s term, if not the next decade. “We don’t know what the policy of the United States will be at that time,” Finke told me. The plan is for the company’s first commercial demonstration plant to be operational in 2030. “Maybe the next president will extend those tariffs, or maybe they will cut them back,” Finke said. After all, Biden mostly kept Trump’s first term tariffs on steel and aluminum in place — although prior to this February, there were numerous country-specific exemptions in place.
At the end of the day, tariffs are only one of numerous policy unknowns plaguing these green producers. Another major one is the status of the funding many of them were granted from the Department of Energy but have yet to see. In Brimstone’s case, that’s a $189 million award from the Office of Clean Energy Demonstrations to build its first plant. While Finke told me the company has started spending that money scoping out potential sites, it hasn’t yet been reimbursed. I asked him if that was concerning. “It’s a good question,” he told me. “At this time, it’s too early to say that.”
Similarly, Century Aluminum and Cleveland Cliffs both have $500 million awards from OCED to produce green aluminum and green steel, respectively. While I reached out to both companies for comment on the tariffs and the status of their funding, neither got back to me. Boston Metal also has a $50 million DOE grant for a facility that would produce chromium, a critical material for many advanced energy technologies. That money is, of course, now mired in “limbo and uncertainty,” Rauwerdink told me.
Green aluminum manufacturers large and small also stand to benefit from the Inflation Reduction Act’s advanced manufacturing production tax credit, which incentivizes the domestic production of critical minerals, as well as certain types of clean energy components. This credit — along with so many others — may or may not be slashed as Republicans look to cut funding for a variety of IRA-related initiatives in the budget reconciliation process.
While Finke told me — as so many other companies did — that Brimstone does not rely on tariffs, tax credits, or the company’s DOE grant for its survival,it sure would be nice to have just a little certainty for once. “What we’d really like is to know what number to put in our financial model,” he told me.
Wouldn’t we all.
On EU EVs, Exxon’s CCS projects, and Australia’s election
Current conditions: Spring rainshowers and thunderstorms will move over the Central and Eastern U.S. at the start of the week • The Eta Aquarids meteor shower, the result of debris from Halley’s Comet, peaks Monday night and Tuesday morning in the Northern Hemisphere • It’s another sunny day in Rio de Janeiro, where authorities are investigating an attempted attack on Lady Gaga’s Sunday outdoor concert at Copacabana Beach.
First quarter new car registrations for the European Union are in, revealing that March was the second-best month ever for BEVs on the continent, up 24% year-over-year with 245,000 units sold, Clean Technica reports. While the Tesla Model Y and Model 3 remained the top-selling electric vehicles for the month, Model Y deliveries were down 41% year-over-year. “The name Tesla has become toxic for many, limiting its appeal, so don’t expect the Model Y’s performance to go back to the sky-high results it once had,” Clean Technica writes. The Model 3, meanwhile, was up 6% year-over-year in March, but down 14% over the whole quarter.
The Renault 5, in third place for the month, delivered just over 8,000 units, marking “a new record for the French model” that could be even higher for April as it benefits from “Tesla’s off-peak month.” The Volkswagen ID.4, sitting in the fifth place spot with almost 7,600 deliveries, saw a remarkable 52% growth year-over-year. Also creeping up the charts was the BYD Song, which had the best result ever in Q1 for a BYD model in Europe.
ExxonMobil characterized carbon capture and storage as “probably the biggest thing we’re investing in this year” during its first quarter earnings call on Friday. “We have the permanent storage, we’ve drilled the wells, we’ve got the monitoring put in place, and so we’re feeling very good about how that business is progressing,” Kathryn Mikells, Exxon’s chief financial officer and senior vice president, said on the call, adding that low-carbon projects amount to “$30 billion of our total [capital expenditure] from 2024 through 2030,” or about 10% of the company’s total capital expenditure. Earlier in the week, energy consultancy Wood Mackenzie said ExxonMobil’s low-carbon investments place it ahead of Shell and BP.
Darren Woods, Exxon’s president and chief executive officer, also shared an update on the company’s planned Baytown Blue Hydrogen project. The project was announced in 2022 and would be the world’s largest such facility if developed; it aims to eventually produce 1 billion cubic feet of low-carbon hydrogen per day. Acknowledging there’s “some debate today with the Trump administration” and that “policy may change,” Woods said, “our expectation is the things that we need to drive low-carbon hydrogen will probably stay in place.” He added that he expects to make a final investment decision on the project “hopefully … later this year.”
A view of a proposed nuclear facility in Port Augusta, Australia.Brook Mitchell/Getty Images
Australia’s center-left Labor Party retained power in the national election on Saturday, securing Prime Minister Anthony Albanese a second term in office. He is the first Australian prime minister to win consecutive re-election in two decades, and is expected to secure the largest win for his party since 1946 — a landslide victory many have credited to the conservative coalition leader’s association with President Trump.
Though the Australian campaigns, like Canada’s, did not center around climate issues, “few voters have as much power over climate change as an Australian citizen,” The New York Times writes, noting that the country has the highest per capital greenhouse gas emissions among democracies and that it is one of the biggest exporters of coal and natural gas, which it mainly ships to Asia. During the campaign, the Labor Party pitched voters on quickly deploying wind, solar, and pumped storage hydropower to reduce domestic emissions, while the conservative coalition made a pitch for building new nuclear reactors over the next 10 years. “This was an energy referendum,” Amanda McKenzie, the CEO of Australia’s Climate Council, said. “Nuclear bombed at the ballot, with Australians dubbing it toxic.” Australian Conservation Foundation CEO Kelly O’Shanassy added that the landslide for Labor means the door has not just closed on nuclear — “it is welded shut.”
Soil testing by the Los Angeles Timeshas found that properties that burned in the Los Angeles fires in January have elevated levels of arsenic, lead, and mercury — in some cases, levels that are “three times higher than the state benchmark.” That is true even of properties remediated by the U.S. Army Corps of Engineers, with dangerous contaminants potentially present in “thousands” of the county’s now-empty lots.
Soil testing is a precautionary measure that has followed every major California wildfire since 2007, the Times writes, due to the known toxicity of fire-scorched properties. In my interview earlier this year with Ruben Juarez, one of the lead researchers of the Maui Wildfire Exposure Study, a multi-year effort to track the 2023 Lahaina fire’s physical and mental health impacts on residents, he told me that “60% of participants may have poor lung health, and 40% may have mild to severe lung obstruction. We believe this is associated with the exposure to ash and the [inadequate] personal protective equipment individuals wore when they returned to the fire site.”
The Federal Emergency Management Agency “now insists it’s not the agency’s responsibility to meet California’s health standards for private properties,” the Times writes, and has said its current clean-up procedures are “sufficient to rid properties of fire-related contamination.” Rachel Morello-Frosch, an environmental health scientist and professor at the University of California Berkeley, described FEMA’s attitude as “no data, no problem,” calling the government’s failure to properly clean up contaminated properties in Altadena a “quintessential environmental justice issue.” Read the Times’ full findings here.
Two major American scientific societies have announced their intention to produce peer-reviewed studies on climate change in the wake of the Trump administration’s retreat from funding such research. “This effort aims to sustain the momentum of the sixth National Climate Assessment, the authors and staff of which were dismissed earlier this week by the Trump administration, almost a year into the process,” the American Meteorological Society and the American Geophysical Union said in their joint statement on Friday. The Trump administration laid off nearly 400 scientists from working on the NCA, which is mandated by Congress and due in 2027. “Our economy, our health, our society are all climate-dependent,” AMS President David Stensrud said, per The Guardian. “While we cannot replace the NCA, we at AMS see it as vital to support and help expand this collaborative scientific effort for the benefit of the U.S. public and the world at large.”
Hawaii passed a first-of-its-kind law on Friday that will increase the tax on hotels, vacation rentals, and cruise ships to raise money for climate resiliency projects. Officials say the new tax could generate as much as $100 million for the fund annually.
The administration can’t have it both ways on the Clean Air Act.
The Trump administration filed lawsuits this week against four states that are pursuing compensation from oil and gas companies for climate change-related damages. But Trump’s separate aim to revoke the government’s “endangerment finding,” the conclusion that greenhouse gases pose a threat to public health and should therefore be regulated under the Clean Air Act, could directly undercut the legal basis for the suits.
In each of the cases, the Trump administration is arguing that the Clean Air Act preempts the states’ actions. But if the Environmental Protection Agency rules that the Clean Air Act does not, in fact, require the federal regulation of greenhouse gases, that argument could fall apart.
Two of the lawsuits target Vermont and New York for their new “climate superfund” laws that require the companies responsible for the greatest amount of emissions over the last three decades to pay into a fund supporting adaptation and disaster response. The Department of Justice is also suing Hawaii and Michigan to block them from suing fossil fuel companies for damages for climate change-related harms. Neither state had actually filed such a lawsuit yet, although both had expressed interest in doing so. (Hawaii went ahead and filed its suit on Thursday night.)
“I just want to start by saying that these lawsuits by the government are totally unprecedented,” Rachel Rothschild, an assistant professor of Law at the University of Michigan, told me when we hopped on the phone. To her knowledge, never before has the federal government tried to preemptively stop a state from filing a liability case against companies.
In an executive order in early April, Trump had directed Attorney General Pam Bondi to “stop the enforcement” of state climate laws and actions that “may be unconstitutional” or “preempted by federal law.” The order singled out lawsuits against oil companies as well as climate superfund laws, calling both a form of “extortion” and a “threat to economic and national security.”
Nevermind that climate change is a major threat to economic and national security, and states have filed these lawsuits and created these laws because they are scrambling to find ways to pay to address the unprecedented damages brought by the increasing severity of wildfires and floods.
Even before Trump took office, Rothschild said, the federal government had warned states that they were going to need to take more responsibility for preparing for and responding to increasing natural disasters. “[States] do not have the resources alone to address this problem,” said Rothschild. “These companies have engaged in an activity that causes external harms that they’ve not taken into account as part of their business practices, they’'re imposing all the costs of those harms on states and citizens, and they should be liable to help us deal with the resulting problems. That’s a very normal activity for tort suits.”
Dozens of states have filed similar lawsuits seeking damages from oil companies. (A Justice Department press release did not say why it was singling out states that had not taken any legal action yet rather than targeting those that had.) Many of these lawsuits have been stuck in a holding pattern for years, though. “Climate superfund” laws are a new legal strategy, modeled on the federal superfund program, that some states are testing to get oil companies to pay up.
The DOJ’s lawsuits claim that states cannot fine oil companies for their emissions because that authority lies with the federal government under the Clean Air Act. That argument is underpinned by the Environmental Protection Agency’s endangerment finding, which stems from a 2007 Supreme Court ruling that greenhouse gases are a pollutant as defined by the Clean Air Act, and therefore the EPA must determine whether these emissions pose a threat to public health. The court said that if the agency finds there is enough scientific evidence to say greenhouse gases are harmful, it must develop regulations to rein them in. EPA officially made this finding in 2009.
This was a big headache for Trump during his first term. He wasn’t allowed to simply repeal Barack Obama’s greenhouse gas rules — by law, he had to replace them. If he’s able to reverse the endangerment finding, however, he could undo climate protection rules and that would be that.
At the same time, he’d make oil companies much more vulnerable. “There is great concern that reversing the finding would open the door to a lot more nuisance lawsuits against all types of energy companies,” Jeff Holmstead, a partner with Bracewell, a lobbying firm, told E&E News. “It would eliminate one of the best arguments that oil companies have used to get lawsuits against them dismissed,” he added.
EPA administrator Lee Zeldin will face an uphill battle in reversing the finding, as there is a mountain of scientific evidence that greenhouse gases cause dangerous climate change. But Zeldin may instead try to argue that the EPA did not consider the cost of addressing these emissions when it made the initial finding — and that the costs of reining them in outweigh the costs of emitting freely.
Legal experts are skeptical this argument will go anywhere, either. In 2012, the D.C. Circuit Court found that the EPA’s endangerment finding should be based on science, not economics. Cost-benefit analyses and other policy considerations are relevant if the EPA finds that greenhouse gases do, in fact, pose a threat, but they “do not inform the ‘scientific judgment’” that the law requires the EPA to make, the judge ruled. Meanwhile, the Supreme Court’s decision last year to overturn “Chevron deference,” a decades-long precedent that gave agencies broad authority to interpret their statutory mandates, could also hurt Zeldin’s case.
Rothschild, for her part, is confident that states’ superfund laws and tort suits are defensible regardless of what happens to the endangerment finding. These actions have nothing to do with the Clean Air Act, she argued, because they are not an attempt to regulate emissions. “They're trying to impose liability for local, environmental, and public health harms from past activities,” she said.
One thing is for certain: Between states’ lawsuits suing oil companies, oil companies’ countersuits, the DOJ’s new lawsuits against states, and probably future suits against any actions the Trump administration takes on endangerment, there’s going to be a whole lot of new case law about greenhouse gases over the next four years.