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Who needs new models when you have chargers and price cuts?

“It doesn't matter if you win by an inch or a mile. Winning's winning.”
I’m reluctant to call Vin Diesel’s Dominic Toretto one of the great philosophers of our time, but his line in the inaugural Fast & Furious movie is as true about street racing as it is about anything else. And in the current electric vehicle sales race, Tesla is the clear winner in mid-2023—this, despite an aging lineup of vehicles, tactics that make the rest of the car business nervous and a dependence on non-car products to entice buyers.
Things could’ve gone very differently this year. I certainly thought so about six months ago. This was supposed to be the year that Tesla’s slew of increasingly dated cars faced real, direct competition for the first time ever; when its CEO’s objectively disastrous foray into social media ownership took attention away from his core business; and when most other car companies got truly serious about creating a future without gasoline.
But now that we have insight into what EVs people bought — or didn’t buy — in the first and second quarters of this year, the numbers tell a different story. Tesla is still the clear leader in EV sales, moving almost half a million cars globally in just the past three months. The Model Y is the best-selling car in the world. The rest of the competition that was supposed to show up and eat Elon Musk’s lunch? Not even remotely close.
According to data from Automotive News, the rest of the EV landscape looks sad by comparison. After the Model Y and Model 3, the bronze medal finish went to the Chevrolet Bolt — an EV that’s generally excellent and affordable but outdated and soon to be discontinued. (By the way, Tesla sold almost six times as many Model Ys as Chevy sold Bolts.)
Right below the Bolt, there’s the expensive and also aging Model S, followed by the Volkswagen ID.4, finally hitting its stride somewhat due to EV tax incentives. After that, the Ford Mustang Mach-E, which has had a slew of production problems this year; then the Hyundai Ioniq 5, a superb EV but one that does not qualify for any tax breaks unless it’s leased; and then Tesla’s own Model X, also long in the tooth.
Keep in mind that the freshest product in Tesla’s lineup these days is the Model Y, which went on sale in 2020, followed by the Model 3, which is now six years old — at the point when another car company would replace it with an entirely new model. The point is, the hottest-selling EVs in the world aren’t fresh, new products at all. (And to be fair, Tesla’s had its own share of headaches with the Cybertruck, which has been pushed back so much it’s starting to feel like the Half-Life 3 of cars.)
Finally, questions are arising about EV demand in general. Monday morning, Axios reported on “the growing mismatch between EV supply and demand,” meaning that while EV sales are steadily climbing and making up more and more of the U.S. market, those sales aren’t matching what car companies are actually building and putting up for sale. In fact, the time EVs spend sitting on dealer lots — a measurement of demand for a car, traditionally — is now nearly double the industry average, Axios reports. In other words, they’re sitting there, unpurchased, about twice as long as gasoline cars.
That’s disheartening news for the climate, especially given how palpably horrific the heat and weather events have been this summer. The world cannot wait for people to switch to electrified and lower-emission vehicles. But there are a lot of reasons this is happening, and the biggest factor is still cost.
With rising interest rates, an uncertain economy ahead and the average EV still costing almost $60,000 — which actually went up this year despite Tesla’s price cuts and all the new cars on the road — can you really blame buyers for sitting this out until things get cheaper?
Simply put, Tesla is offering the best deals right now. As old as the Model 3 and Model Y are, they’re still fun to drive, high-range EVs boasting the best charging network in the business (we’ll get to that in a bit.) They’re also still cutting-edge in most ways that count for EV newcomers; they just don’t look new and are beginning to lack key features offered by many new competitors like bidirectional charging or more predictable automated driving assistance.
This year, Tesla has dramatically slashed their prices and positioned them to take advantage of the full EV tax credits when other car companies cannot. Tesla’s lead remains a solid one in 2023; it has the experience, production capacity, and scale to slash prices on these cars while remaining profitable. Other automakers are sweating their ability to make money on EVs at all right now.
Generally, car companies are wary of slashing prices too much or relying too heavily on discounts. They tend to water down a brand’s image while cutting into profit margins, and the auto industry is very much a business of margins. Now, Tesla has taken a hit to its gross profit margins amid these price cuts, but it’s still doing well and Musk doesn’t seem to care. In the meantime, more than likely, a person’s first EV will be a Tesla.
And then there’s America’s new EV tax credit scheme, which may actually be backfiring to some degree right now.
In short, to get the full $7,500 tax credit on an EV, a car and its batteries must be now made in North America. On a long enough timeline that will help build a robust electric car and battery manufacturing infrastructure here, so that both aren’t dependent on China — exactly the goal of the law. The problem is, local battery factories alone will take years to set up; it’s going to be a long time before the majority of EVs Americans can buy meet both qualifications.
At the beginning of this year, EV demand seemed to be booming because those “buy local” rules hadn’t taken effect yet. Now, a bunch of automakers, including BMW, Volvo, and Hyundai, are left out of the credits because their EVs aren’t made here yet. While well-intentioned, the stringent rules of the tax credit scheme run the risk of dampening EV demand and killing the momentum the car industry had in January.
Finally, car companies now seem to be struggling to reconcile their big environmental promises — you know, vowing to go all-electric by 2035 — with the cold, hard realities of public-company capitalism.
Take General Motors, for example. While it’s made that all-electric commitment, its promised EV lineup has barely materialized yet; the Bolt is the best representation of this promise and it’s on the way out. The Cadillac Lyriq? MIA. The other EVs? Delayed. And the GMC Hummer EV is so environmentally unfriendly, they may as well have just given it a V8 engine. Speaking of, GM has said it’s committed to making gasoline heavy-duty trucks and SUVs for a long time to come; they’re far too profitable to phase out, planet be damned.
Or take the Volkswagen Group, the original “pivot to EVs” automaker in penance for its diesel-cheating sins. It’s dealt with a ton of delays, production problems, and software issues, and it too is reluctant to phase out its most profitable ICE vehicles. And both companies are due to have massive fights with their labor unions over EVs and jobs soon enough.
Essentially, pivoting to EVs is hard. It’s not just about making battery-powered cars. Automakers must retool how cars are designed, built, and sold while focusing on software and revamping their entire supply chains. Deep down, most auto executives would probably rather not do this. It will be an expensive, messy, and complicated process that runs counter to just making shareholders happy each quarter with the status quo until you comfortably retire.
And Tesla’s most powerful weapon keeps proving to be its charging network. There’s perhaps no greater signifier of car companies’ EV trepidation than their willingness to say “You know what? You deal with this” while handing the charging keys to Tesla. GM, Ford, Volvo, Rivian, Volvo, and now Mercedes-Benz have all said they’ll switch to Tesla’s charging standard in North America, giving EV buyers access to that network in the coming years. Perhaps that will drive up EV purchases and make buyers consider things that aren’t Teslas. I think that it probably will.
But in doing so, Tesla will reap significant income in public funding for EV charging stations made possible by the 2021 infrastructure law. It’s unclear whether doing that — and getting revenue from the charging itself — will outweigh potential lost future sales to Mercedes or Volvo or whoever, but one thing seems clear: the biggest winner of the Biden-era tax incentives so far is Tesla.
Short of dramatic price cuts — which are unlikely to happen because these things are so unprofitable as-is — or radically new cheaper battery technologies, it feels unlikely that Tesla will lose the lead in the electric drag race this year or anytime soon.
Who cares if it’s winning on price cuts and its charging network? Ask Dom; a win’s a win.
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A new front opens in the data center wars.
A series of lawsuits filed in federal court asks a big question – are data center moratoria constitutional?
In early August, data center developer DC Blox sued the city of Nashville in federal court to overturn a zoning moratorium stopping them from building a hyperscale facility adjacent to the city zoo. “The Data Center Moratorium, moreover, is a targeted attack against DC BLOX, in violation of federal constitutional protections,” the suit argued, claiming that it defied the corporation’s due process and equal protection rights.
Around the same time, another developer – Wixom Industrial One – filed a federal lawsuit against the city of Wixom, Michigan, to try and “invalidate the city’s illegal police power moratorium” blocking their data center.
These two cases were far from novel or the first of their kind, and they’re now a fresh front in the battle over hyperscale data centers. At least that’s what some who work on these cases say: In April, attorneys with the law firm Vorys published a “client alert” asserting “many moratoria may be vulnerable to statutory, procedural, and constitutional challenges.” The attorneys advised that constitutional arguments against moratoria “may be stronger where a government singles out data centers without a sound factual basis, treats similar land uses differently without a reasonable basis, or adopts a restriction driven more by political pressure than by defensible planning or regulatory objectives.”
Months later, according to court documents, the Vorys attorneys who authored the alert now represent real estate firm Thor Equities in a federal case against the Ohio city of Urbana, arguing the city’s decision to reject their data center project broke “fundamental protections” under the U.S. Constitution. (Vorys and Thor Equities did not respond to requests for comment.)
It’s unclear how many of these kinds of cases have been filed to date. Data on federal court cases is quite opaque. But legal experts and industry attorneys tell me we should expect them to be on the rise as developers seek whatever tools they can find to get projects built.
“Bringing a lawsuit like this is fairly cheap, something they can do at a relatively low cost, and imposes a real cost on local governments to defend themselves,” said Daniel Metzger, director of the Cities Climate Law Initiative at Columbia Law School’s Sabin Center. “The cases out there will be bellwethers. And if successful, there’ll be a lot more of them.”
What developers probably want looks a lot like Hill County, Texas, where an LLC proposing an $80 million data center project was stymied in May by the state’s first countywide moratorium. (It predated Governor Greg Abbott’s temporary freeze of data center development in Texas by three months.) Within a period of only a few weeks, the LLC sued and the county rescinded the pause on approvals. The case was dropped a month later. Local reports state the county had to afterwards pay the corporation $100,000 in legal fees – a drop in the bucket compared to what a drawn-out court battle would have cost the rural county.
Metzger said whether the companies will win these cases is ultimately not the point – their goal is to win a finished data center, not a judicial ruling. By filing expansive litigation in the national court system, a hypothetical developer can exhaust the coffers of a city or county with legal expenses that are chump change compared to would-be billions in private financing for compute infrastructure.
“These lawsuits may deter some local governments from taking steps to oppose data center development, just because of the cost it would impose on them to defend a lawsuit, even if they know they have a strong legal basis for the action they want to take.”
Those I spoke to in private practice about data center developers’ constitutional arguments agreed with Metzger’s assessment that it’s too early to tell whether the companies will win. Generally, they said, a city or county will win this kind of case if it demonstrates a rational basis for its decision-making and courts typically want to defer to governmental autonomy. The onus will be on the developers to prove a moratorium was meritless – that’s the due process challenge – or unfairly targeted their industry in a way other sectors don’t face, which is the basis of the equal protection claim.
“What they’re saying is in essence that these actions the municipality is taking are arbitrary and capricious, which is one of the sort of catch-all standards,” Thomas Allen, a partner at K&L Gates, told me. “They say the laws lack a rational basis. And then they make equal protection claims, saying data centers are being singled out because of political concerns as opposed to actual things relevant to the legislature’s directive. They’re not basing their decisions on the underlying merits of the project but reacting to political pressure.”
“It’s a reliance question and it’s about the treatment of their projects,” added Laura Morton, an attorney with Ashurst Perkins Coie. “It’s always been important to talk about and engage with communities where your infrastructure is planned. Here, I think this is the developers going in, maybe having conversations, and then suddenly they’re getting a reversal after already receiving these approvals and making investments based off of what the conversations and rules were.”
The likelihood of these constitutional challenges reaching higher courts anytime soon is quite low. It’ll be a long time before we see one of these cases reach a verdict, let alone some kind of appeals process come to fruition. Nevertheless, the new legal ambiguity around these local restrictions is an important new facet of the data center wars, including for developers.
“Companies want to act within the law to get [things] done, so whatever tactics they can do to help get the project over the line that are legal and ethical, they may try those,” Allen told me. “And if that includes the pressure of a lawsuit, that’s a judgment they’ll have to make.”
And more on this week’s conflicts around project development.
1. Montgomery County, Pennsylvania – We reached a new normal in the data center backlash, and it all seems to have started in King of Prussia.
2. Columbia County, Wisconsin – The gubernatorial race in this state is transforming local fights over wind projects into must-watch popcorn fodder for anyone obsessed with the state of the energy transition, or national politics for that matter.
3. Shelby County, Alabama – One quick update on the intervention of John Rich, the country star turned Trump’s “special envoy for American landowners,” in an Alabama Power transmission project: it’s getting a lot more elected officials involved.
4. New Jersey – We try to conclude every Hotspots on a positive note. So this week’s silver lining comes to you from the Garden State, where state regulators have approved more than a dozen agrivoltaics projects.
A conversation with Ella Nilsen — formerly of CNN, now with Echo Communications — about where we stand in the fight over the energy transition.
This week’s conversation is with Ella Nilsen, who recently left CNN as a climate reporter and is now a new vice president at energy and cleantech PR firm Echo Communications. Having worked on Capitol Hill alongside Nilsen, I knew her to be an exceptional reporter who asked hard questions of those in power on all sides. So when I found out she was taking her journalism hat off and putting the comms cap on, I wanted to do something you rarely get to do with one of your reporting peers: ask for her own opinion about where we stand in the fight over the energy transition.
Our chat was lightly edited for clarity.
What’s it like going from CNN and climate journalism to advising on communications in the energy sector, especially when it comes to clean tech in this fraught moment?
So before I covered climate and clean energy, I was a political reporter who covered campaign cycles and Capitol Hill for a while, and I was always interested in the nexus of politics and politics. I tried to make as much of my coverage about that. Politics is policy, and the other way around.
Being on the other side of it is, well, I know from my experience as a reporter what interests them. I’m trying to figure out ways to make sure when I’m bugging you all that the pitch lands, because hopefully it’ll be something people are interested in. Things are changing so fast. It’s a really fascinating time to be a reporter and be in the clean energy comms space.
Okay, but now that you’re in clean energy comms, how do you handicap the fight over developing these technologies? Who is winning, who is losing, and why?
I think it’s tough to call exact winners and losers right now because over the last few months, there have been so many new and interesting developments.
Look at the Invest in Tomorrow Coalition, which has been getting involved in Republican primaries for Freedom Caucus members. There’s been this perception for a long time that the clean energy industry didn’t fare well in the One Big Beautiful Bill Act fight. They had important wins while losing pretty key stuff. But there’s been this interesting reckoning within the industry, and even this last summer, where people are moving the ball forward in interesting ways. They’re trying to get involved in political fights with direct results.
What messages do these primaries send? On the one hand I can see there being political consequences but also, now, more solar energy money going into Republican politics has the anti-renewable folks saying they need to go harder at them. I’m curious how you see the energy fight landscape changing in light of these election results.
I think it shows the industry has some fight in it. What the Coalition would probably say is, they want to be lethal and this is political warfare. They’re trying to be taken seriously.
There is sort of this two-pronged strategy happening right now. Obviously Invest in Tomorrow has gotten a lot of press attention for their track record. There’s also within the industry an attempt to shape a public narrative around wind, solar, battery storage to combat misinformation, both through conventional media and social media. They’re happening in tandem and it's a reflection of the results.
How is the backlash over data center development affecting the work you’re now doing?
Well, I’m still early, but I think the data center question is a fascinating one. Conversations around policy and where we go from here really seem to me to be happening in the state realm. Not a lot of policy happening at the federal level. There’s New York State’s data center pause, which is leading to lawmakers trying to get more leverage.
It’s in the backdrop, where projects are being announced with massive power plants to supply new data center demand, and at the same time there’s a conversation around virtual power plants, DERs. Another phrase emerging for it is “community power.”
It’s starting to be a fascinating conversation around community benefits. There are tax benefits when a data center comes to town but when it comes to energy use, what can communities actually leverage out of this? I know former Energy Secretary Jennifer Granholm has been arguing for strong community benefit agreements, getting big tech companies to pay for solar and EVs and then using all of that to create a virtual power plant. Getting that to be flexible for data centers. That’s only one part of the pie but it’s fascinating to have this conversation about what forms of energy we need for all this demand happening.
What do you foresee about the impact of the backlash, given that land use, visuals, air, and water – its all being swept up in the same conversation?
I don’t have a crystal ball and have the same questions.
It’s all happening so quickly and it’s all playing out in so many different states. There are really important questions here and there are people smarter than I am on this, talking about how we meet this demand in the short term and long term or whether this is an opportunity for getting clean energy onto the grid. But it’s a delicate dance.