The Supreme Court’s Double-Edged Change to Permitting Law

Summary

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Podcast Summary: Shift Key with Robinson Meyer and Jesse Jenkins

Episode Title: The Supreme Court’s Double-Edged Change to Permitting Law

Date: June 4, 2025
Host: Heatmap News
Guests: Nicholas Bagley, Thomas G. Long Professor of Law at the University of Michigan

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Overview

This episode explores the Supreme Court’s recent, landmark decision affecting the National Environmental Policy Act (NEPA)—often regarded as the “Magna Carta” of U.S. environmental law. Meyer, Jenkins, and guest expert Nicholas Bagley dissect the details and implications of this ruling, including its impact on climate and clean energy projects, the status quo of permitting in America, legal strategies used by both environmentalists and industry, and its broader context given current political shifts. They also discuss parallel congressional efforts to reform permitting and the broader consequences for U.S. infrastructure.

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Key Discussion Points & Insights

1. The Supreme Court’s Ruling on NEPA: What Happened?

• Context: The case centered on an 88-mile railroad in Utah intended to facilitate oil extraction, and whether its federal permitting process adequately considered indirect environmental impacts, like downstream drilling and refining.
• Core Issue: Environmental groups argued the permitting agency (Surface Transportation Board) failed to appropriately consider the larger, indirect impacts (e.g., greenhouse gas emissions from subsequent oil drilling and refining).
• Supreme Court Decision: The conservative majority used the case to issue a broader directive: Federal agencies should be granted substantial deference in how thoroughly they study and consider environmental impacts, and lower courts should significantly curtail second-guessing agency decisions.
  • “The touchstone for any NEPA case is deference.” – Nicholas Bagley [11:20]

2. What Does the Ruling Mean?

• Narrow Element: All justices agreed: If an agency can’t act on certain environmental information, it shouldn’t be forced to deeply consider that information.
  • “It doesn’t make sense to require [an agency] to evaluate [downstream] climate effects if it can’t even consider that factor in its decision.” – Nicholas Bagley [10:15]
• Broad, Major Change: The majority opinion laid out a “new era” of deference, reducing the legal leverage environmental groups have in challenging permits through NEPA.
  • Jenkins: “That seems huge.” [12:05]
  • Bagley: “It is a walloping loss for environmental groups, at least as a matter of tone and intention by the Supreme Court.” [12:43]

3. The Evolution and Purpose of NEPA

• Original Intent (1970): NEPA was meant as a procedural “stop and think” statute, not as a mandate to select environmentally friendly options. The belief: If agencies considered environmental impacts, they’d likely avoid egregious environmental harms.
  • “NEPA…becomes this immense burden on agencies that are looking to do anything that might touch on the natural world.” – Nicholas Bagley [17:46]
• Judicial Overreach: Over decades, courts pushed agencies to do more exhaustive reviews, resulting in lengthy, costly, and time-consuming studies—sometimes thousands of pages long and spanning years.
• Resulting Status Quo: The default becomes: favor the status quo, raise burdens on any project that changes it, regardless of whether the project is fossil-based or renewable energy.

4. The Status Quo Bias and Real-World Trade-Offs

• Litigation as a Tool: NEPA’s procedural requirements—intended or not—have long been used to block both fossil fuel and renewable projects.
  • “It’s…a blunt and haphazard tool employed by project opponents who may not always be entirely motivated by concern for the environment.” – Robinson Meyer [21:13]
• Implications: Lowering permitting barriers may spur both fossil and clean energy buildout, especially under a Trump-led EPA less inclined to regulate emissions.
  • *“When you remove something favoring the status quo, we might get a build out of fossil at the same time we get a build out of clean, or…” – Robinson Meyer [34:03]
• Net Climate Impact: Bagley and Jenkins acknowledge it’s hard to pin down NEPA’s exact effect on net emissions, given it blocks so many types of projects.

5. Congressional Permitting Reform Efforts

• House Republican Proposal: Would allow private project sponsors to pay for a “fast-tracked” NEPA report, shielded from court review. This process does not extend to government projects (e.g., Everglades restoration).
  • “I’ve never seen a law that allows you to pay money to get out of judicial review before.” – Nicholas Bagley [37:31]
• “Fix Our Forests” Act: Aims to ease NEPA restrictions for forest management, illustrating growing, bipartisan willingness to amend NEPA.
• Political Dynamics: Even some on the left now favor permitting reform, focusing on state capacity and the need for faster infrastructure buildout.

6. Federalism & Local Barriers

• Beyond NEPA: Many of the greatest obstacles to clean energy are at the state and local level—zoning, local ordinances, state commissions—not just federal law.
  • “A lot of the challenges…are state and local laws. They’re actually not federal permits that are the issue, but state and local permits.” – Nicholas Bagley [42:40]
• Possible Solutions: Federal preemption could override local barriers, as with the Telecom Act and cell tower buildout, but this would be politically difficult for large-scale energy infrastructure.

7. The Politics of Permitting Under Trump

• Recent DOE Action: Secretary of Energy Chris Wright clawed back $3.7 billion in grants for industrial decarbonization projects—including both clean energy and carbon capture tech—because agreements were finalized post-2024 election.
  • “The idea that CCS was some kind of giveaway that the Biden administration was doing to fossil fuel companies, I think, has been totally disproven.” – Robinson Meyer [52:12]
• Permitting as State Capacity: The permitting process’s slowness meant that projects weren’t up and running—and thus could be cancelled by a new administration. Permitting structure, not just funding or intent, governs the pace of action.
  • “It’s permitting laws…If this money had been out the door…the thing would be done and operating.” – Robinson Meyer [54:38]

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Notable Quotes & Memorable Moments

• On Supreme Court’s shift:

  • “The basic rule of a NEPA case is now going to be that environmental groups lose.”
    • Nicholas Bagley, [12:43]

• On the intent and ironies of NEPA litigation:

  • “It’s pretty weird to think that Justice Kavanaugh is anointing himself the protector of progressive climate change initiatives, but I think there’s a sense in which he’s not wrong.”
    • Nicholas Bagley, [21:59]
  • “There’s a weird kind of selectivity in the court’s decision…All of those considerations seem to go right out the door when the Environmental Protection Agency moves to regulate.”
    • Nicholas Bagley, [24:06]

• On the trade-offs of permitting reform:

  • “Once you get rid of [NEPA], you can more clearly see what the other bottlenecks are.”
    • Nicholas Bagley, [30:14]
  • “I think anybody who tells you there are no trade offs is really avoiding the hard question at the heart of this.”
    • Nicholas Bagley, [29:15]

• On permitting process as state capacity:

  • “If this money had been out the door…and the concrete was poured, you wouldn’t be able to yank this money away...it’s the fact that they didn’t get the money out because they had to do two years of permitting procedure…”
    • Robinson Meyer, [54:08]

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Timestamps for Significant Segments

• [04:30] – Supreme Court case summary and specifics about the Utah railroad
• [06:25] – Lower court strategy and what brought the case to SCOTUS
• [09:59] – Narrow and broad holdings of the Supreme Court’s decision
• [15:29] – Brief history and evolution of NEPA’s meaning and process
• [19:46] – Reflection on NEPA’s shift from controlling environmental damage to slowing progress
• [21:59] – Kavanaugh’s rationale and its odd congruity with progressive aims
• [32:38] – NEPA’s effectiveness and climate law vs clean energy law dichotomy
• [35:20] – On the risk that deregulation could spark both clean and fossil buildout
• [36:30] – Congressional NEPA reform proposals and their potential impact
• [42:40] – After NEPA, focus must shift to state/local permitting hurdles
• [44:45] – Possibility and precedent for federal preemption of local regulatory barriers
• [47:06] – “Upshift/Downshift” segment: Stagnant EV sales (Jenkins)
• [49:00] – “Downshift”: $3.7B in DOE decarbonization grants rescinded (Meyer)
• [54:38] – Permitting laws as the root cause of delayed decarbonization progress

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Tone and Style

The episode maintains a lively yet wonky and well-informed tone characteristic of Shift Key. Meyer excels at contextualizing legal and policy issues for a non-specialist audience, while Jenkins contributes a systemic perspective grounded in energy transition realities. Bagley is forthright and clear-eyed, offering deep legal insight but also emphasizing the ambiguity and evolving nature of environmental policy in the courts.

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Conclusion

This episode presents a nuanced exploration of how a Supreme Court ruling and pending congressional action could reshape the balance between environmental protection and infrastructure buildout. The hosts and their expert guest highlight the complexity and unintended consequences of procedural environmental law, especially at a time when both climate action and energy security demand swift infrastructure change. While the immediate effect is a legal and procedural shift away from the status quo bias, the big battle over America’s state capacity, permitting, and decarbonization is far from settled.

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Transcript

[A]

You are listening to Shift Key weekly podcast from heatmap News. On this week's show, we are talking about a major new ruling from the Supreme Court affecting what's been described as the Magna Carta of environmental law. What does it mean for the climate? What does it mean for the clean energy buildout, and what does it mean for the Trump administration? We're talking about all of it with one of the country's biggest permitting experts and it's all coming up after this. You might know about heatmap for our award winning journalism covering the clean energy transition, and you may know about heatmap for this podcast, but do you know that we also have a data platform called heatmap Pro? Heatmap Pro is this special platform full of data and insights on political risk that energy developers can't get anywhere else. In heatmap Pro, we track contested renewable projects all around the country and county level restrictions and ordinances. Then we bring in additional data sources and proprietary polling, all to forecast the risk of local opposition to your project. We generate a political risk score for every county in the country. To learn more about using heatmap Pro for your community affairs strategy, visit heatmap News Pro. That's heatmap News Pro. Hi, I'm Robinson Meyer, the founding executive editor of heatmap News.

[B]

And I'm Jesse Jenkins, a professor of energy systems engineering at Princeton University.

[A]

And you are listening to Shift Key Heat Maps weekly podcast about decarbonization and the shift away from fossil fuels. On this week's show, we are talking about permitting reform. Everyone's favorite topic, or at least my favorite topic, I'm really, actually truly excited. It is like the most famously driest topic, but. But it's so important to understanding why the American economy works, why it does right now. Well, since its passage in 1970, the National Environmental Policy act has been a bedrock part of the country's environmental law. It requires, in essence, that before the government does anything, whether that spend money or approve an infrastructure project or adopt a new regulation, it must consider the environmental impact of its decisions. There's three different kinds of studies that can happen under this law, which is generally referred to as nepa. All of these studies, but especially the most stringent of them, which are called environmental impact assessments, have become really lengthy and very time consuming over the past few years. Many on the right and some on the left have argued that NEPA is now holding the government back from doing things. Traditional environmental groups reply that NEPA actually is a very important part of our environmental law. And has been an important tool for restricting and slowing down fossil fuel development, especially oil and natural gas pipelines. Well, now the Supreme Court has taken a side. In a major ruling last week, the court said that it too thought NEPA held back too many projects and had grown too restrictive. It had become too much of a barrier. That ruling is a major, major decision for climate law, but also for clean energy law. And we have a great guest to talk about it. Joining us on Shift Key this week is Nicholas Bagley. He's the Thomas G. Long professor of Law at the University Michigan. He's former chief legal counsel to Michigan Governor Gretchen Whitmer. He's clerked on the Supreme Court and he's a national expert in permitting law, in procedural barriers to building and to NEPA itself. I'm thrilled to have him on the show today. He was on Shift Key last year, so he's a friend of the show. Running guest. I happen to know he's a Shift Key listener as well. Nick, welcome to Shift Key.

[C]

It's great to be here, Rob.

[A]

Nick, last year when we had you on the show, there had just been a big Supreme Court ruling about the environment. And now again, there has been another big Supreme Court ruling and it's time to have you back. Last week the Supreme Court ruled in a case that I think has flown under the radar. It's about the National Environmental Policy Act. It's an extremely important case about the country's environmental permitting regime and just how the country builds infrastructure. And the ruling, I think we all expected a big ruling, but the ruling was in some ways even more momentous than maybe I anticipated. So can you just start out by telling us what happened in this case and what was the end result?

[C]

Yeah. So the case was a controversy over an 88 mile railroad line out in the middle of nowhere, Utah desert. And the idea was for this rail line to connect some potential drilling sites, oil drilling sites in the middle of the Uinta Basin in Utah to the interstate rail network in order to get whatever crude oil might come up from the oil fields in Utah down to the Gulf coast and refined. And the question was whether the railroad ought to get a federal permit in order to allow it to proceed. And the Surface Transportation Board is the federal agency. You probably know it and love it, right, Rob?

[A]

Oh, I think about them all the time. One of my favorite independent federal agencies.

[C]

Surface Transportation Board, issues a permit saying that it's okay for this railroad to proceed and in the course of so doing, it conducts what they call an environmental impact Statement under the National Environmental Policy Act. And that environmental impact statement is supposed to figure out the environmental impacts of the particular project in question. And they said here, this 88 mile railroad, there are going to be some consequences, some disruptions, but we still think it makes sense to, to get the permit and so we're going to do it. A bunch of environmental groups challenged that determination. What they said is, listen, you didn't really think hard enough about two things. First, you didn't really think hard enough about the environmental consequences, not of the railroad itself, but of the additional drilling that the railroad is going to facilitate. And you also didn't think about the environmental consequences of all that additional refining that's going to happen down on the Gulf Coast. And you didn't think about those things. And because you didn't think about those things, you couldn't issue that permit under nepa. It was inappropriate and that permit should therefore be vacated.

[B]

That's a pretty common strategy, right, or litigation strategy in these kinds of cases. Is this sort of extension to indirect impacts. We've seen that in a lot of rulings at the lower courts to date. So what brought this particular case to the Supreme Court? It's sort of a routine litigation strategy that we've seen in probably hundreds of cases over the last few decades. Is it simply just that the composition of the court has changed to be more willing to strike this down, or what is unique about this that brought it to the court level?

[C]

It's a mix of a bunch of different factors. So one is just that the environmental plaintiffs won big at the D.C. circuit in a decision that, that looked like the court was scrutinizing the environmental impact statement here with a kind of, with an unusual degree of rigor. So I think right out of the gate, you know, eyebrows were raised about this decision. Beyond that, there is a narrative that has emerged and it's a bipartisan narrative, although it's especially prominent on the right, that NEPA has itself become an obstacle to big development projects in a way that is very difficult to justify, that the benefits of that kind of additional environmental review just aren't worth the costs. And so as part of a general skepticism about maybe environmental protection efforts, a deep skepticism of environmental groups that try to weaponize nepa. I think the conservative justices saw the lower court decision, said we gotta intervene precisely because, Jesse, as you say, this is so common that these kinds of cases are brought and usually the environmental litigants don't end up winning, but they often extract lots of concessions and impose lots of Delays along the way here, they happen to win big. And now I do kind of wonder if they regret just how big they won because they attracted the attention of the Supreme Court.

[A]

And so when this case was taken up by the Supreme Court, people went, oh, that's interesting that the court is taking up this case. That could mean that there's a change to NEPA law coming down the line. But it seems like the change that has come down and this ruling from Justice Kavanaugh is maybe even bigger than was first anticipated or more important than some of the coverage suggested earlier in the summer. So what did the court decide and why is that important?

[C]

Yeah, so the key thing to understand about NEPA cases is that when courts review the quality of environmental impact statements or environmental assessments, what they're doing is asking has the agency acted arbitrarily or capriciously. So it's a pretty deferential standard in the mine run case, but it's a pretty fact intensive standard too. Whether an agency has acted arbitrarily in a particular case has a lot to do with particular case. I mean, this 88 mile railroad, for example, the environmental impacts that were at issue there are going to be very different from the environmental impacts for running an oil pipeline under the Great Lakes or doing Everglades restoration or what you will. And so a lot of folks saw this petition, including me, and thought, you know, there's something here, here. The D.C. circuit was definitely aggressive, but the court might just pass up reviewing the case because it's so fact bound, it's not gonna not a really good target for them. All they're gonna be able to say is it's either reasonable or unreasonable and then these cases will continue apace. But instead what the court did, and this is quite dramatic, is take the case and use it to make a statement to say not only that what the Surface Transportation Board did here was fine, but to say to the lower courts that the way you have been applying NEPA is way out of line and we expect you to get with the program.

[B]

So break down that ruling. What exactly are they telling the courts now?

[C]

Yeah, let me give you the narrow holding and then the broader holding. So there was a narrow holding that all eight justices signed up onto, and that includes the liberal justices joining with conservatives. And all eight of them agreed that when an agency can't make a different decision based on an environmental impact statement considering a particular factor, it's kind of goofy to insist that the agency consider that factor. So to be concrete here, the Surface Transportation Board has A series of factors it has to consider when it decides whether to grant a permit to a new railroad. One of those factors is not whether it's going to increase greenhouse gas emissions or other pollutants down at the Gulf Coast. And so if it can't even consider that deciding whether to grant the permit, it doesn't make sense to require it to evaluate the climate effects of the railroad. Everybody agreed about that. And if the Court had just stopped there, it would look a lot like other NEPA decisions that the Court has issued in the past, where it typically is cited to the government. It's typically said we ought to give agencies the benefit of the doubt. And they acted basically reasonably here. So, you know, move on. Instead, the conservative majority here, and there were five Justices in the conservative majority. Justice Gorsuch was recused in the case. The five justice conservative majority issued an extremely strident decision saying that the touchstone for any NEPA case is deference. And it repeated that word deference a dozen times across the course of the opinion, emphasizing that agencies get deference on how much to study environmental impacts, what alternatives have to be considered, whether they should conduct an EIS or whether they can just do an ea. The full range of decisions that agencies have to make in the course of doing environmental reviews. The Court said you should be deferring lower courts all the time, through and through. And if you are tempted at any point to go through and fly spec an agency's decision, don't really, seriously, don't we mean it. Knock it off.

[B]

That seems huge.

[A]

It seems like what the Court is doing here is not only basically using this to make a statement, it's saying, we are now announcing a new jurisprudence on NEPA and we want you to start treating this law really, really differently than you've been treating, or really quite differently than you've been treating it in the past. And like we are going to come down into your room and force you to clean up this message like, whenever we want to now because of how important we think this is. Do you think that's like, too strong a statement? It seems like this is not only like declaring what the Court's view on NEPA is, but almost declaring a new plan of action.

[C]

Yeah, like many Supreme Court decisions, I think it's amenable to two competing interpretations. So one is exactly as you say. It's a new era of NEPA jurisprudence. And the basic rule of a NEPA case is now going to be that environmental groups lose. And so I think there's no way to read the decision, except as a walloping loss to environmental groups, at least as a matter of tone and, I think, intention by the Supreme Court. But there is a narrower reading available, and one that suggests that maybe this decision won't have as big an effect as maybe the Supreme Court justices want it to. And the reason for that is they didn't close the door altogether on the judicial evaluation of the reasonableness of its actions. And when a court goes in and says, has an agency acted arbitrarily? Again, that's a multifaceted inquiry. It's going to involve a lot of different factors. And the court says, be deferential, but that's actually always been the rule. And so they use a lot of strident language here. But that strident language is not going to make a lick of difference if you get in front of a highly motivated judge who happens to dislike the project in question in a district court court in New Mexico, and that happens. So if you're an agency and you're thinking to yourself, can I cut back on the amount of environmental studies that I do? Can I not investigate these dopey alternatives? You might think to yourself, I have a, like a 20 or a 30% chance. Better. Like, my odds are a little better than they were before, maybe even a lot better than they were before at winning if this case is litigated. But they're also not 100%. So maybe what I ought to do is keep doing what I've been doing just to be safe. And I think that's at least a possibility. And we don't know how it's going to play out on the ground. The last thing I'll say about this is you said that the Supreme Court is going to act like your mom is going to come and tell you to clean up your room. The trouble is it takes something like, what, 50 cases a year? There are hundreds of these cases brought, and there's only so much the Supreme Court can do. And in closer cases, I think it might just be inclined to let matters lie. So I think it is a reason, it is reasonable to think that this is the Supreme Court's effort to usher in a new era of NEPA jurisprudence. It is reasonable to think it is going to have some effects on agency behavior and some effects on lower court behavior, but it may not portend the revolution that it looks like on its face.

[A]

I want to open the aperture here for a second to talk about what comes next and the importance of the ruling before we even get into this further, what does the law require? And let me ask this in two ways. What does the law require as passed by Congress, and what does the law like, actually require today as it's been interpreted by the courts?

[C]

Yeah, I'm glad you teased apart those two things. So back in 1970, when the law was adopted, it was right as the modern environmental movement was taking shape and Congress had grown sick and tired of hearing agencies say that they didn't need to think about the environment when they acted. The biggest culprits there were the US Army Corps and the Atomic Energy Commission, both of which said, our job is to build dams or our job is to license nuclear reactors. We don't need to think about fish or, you know, like, nuclear waste. That's not our thing. And Congress said, no, no, no, no, no, hold on. Like, the environment is part of your job. You have to take that into account when you make big decisions. And all NEPA says is shall not be a national policy that agencies take the environment into consideration. And, and that when they do any kind of major action, they have to issue a detailed statement about the effect that that action might have on the environment and what alternatives they've considered. It doesn't actually require them to do anything. In particular, if there are two options on the table, one of which is really harmful to the environment, the other which is not at all, they're not required to pick the less environmentally damaging approach. It's a strictly procedural statute. But the idea was if you make agencies stop and think, they'll probably make more environmentally respectful choices. And initially at least, that was what happened. Agencies hired biologists and environmental engineers, and the science on ecosystems developed as agencies really started to take more seriously the way that their decisions could affect the environment. At the same time. What ends up happening is that NEPA gets adopted at the precise moment that the courts are intensifying the rigors of judicial review for federal agencies. And so the court starts saying things like, it's not enough for you just to take into account, like this environmental concern, you really got to study it, and it's not enough for you to think a little bit about this alternative or that alternative. You've really got to think about the full range of alternatives and you got to think about the possibility of not doing something. And so generalist judges started getting into the business of second guessing the scope and intensity of these environmental reviews. And as a result, agencies who are really risk averse and really don't want their big actions upended in court, they started devoting more and more resources to the environmental review, these environmental reviews. And so you start getting these immense, extremely lengthy, turgid and detailed environmental reviews that span often hundreds, even thousands of pages. The environmental review at issue in the case we're discussing was more than 3,000 pages long for a single 88 mile stretch of railroad. And these environmental reviews also last for years, sometimes for decades. And so the rigors of judicial review end up creating a procedural behemoth that make it very hard, makes it very hard to do much of anything of any significance. And so nepa, which starts as this really modest intervention, becomes this immense burden on agencies that are looking to do anything that might touch on the natural world.

[A]

It is so interesting to go back and you tipped me off to this, Nick. But to go back to this 1971 case by Judge Skelly Wright, that's the first case to really interpret NEPA and to begin to turn NEPA into the law that it has become today. He says in the ruling, several recently enacted statutes attest the commitment of the government to control at long last the destructive engine of material progress. And he puts air quotes around progress. And then he says, but it remains to be seen whether the promise of this legislation will become a reality or whether it will get lost or misdirected in the vast hallways of the federal bureaucracy. And it's such a, number one, it's so of its era, but number two, it's so striking to see the judge raising questions even about the idea of progress. When I think one of the big memes now, one of the big concerns now, you can see it in abundance discourse, you can see it in a number of other places is this fear that progress has been lost altogether and that progressivism or a kind of operative American liberalism might depend on technological progress itself.

[C]

Yeah, I like to think of Seven county, the case with the 88 mile railroad, the one that was just issued as a sort of counterpoint to Caliber Cliffs. It's a way of showing how the law has shifted over the past 50 years, how the kinds of concerns that we've got have really changed. It used to be the case that we were really, really worried about building too recklessly. And it was genuine concern back in the 1960s and 70s. And now the concern is that we're not building enough. I do think it's one way of reading the case is as a sort of a coming out party for the law of abundance. The idea that we really care about fostering progress instead of using the law, allowing the opponents of change in the real world massive opportunities to delay and run up costs in the real world.

[B]

Yeah. Putting aside the environmental context of this, what this really creates, what NEPA really creates as a procedural barrier to any agency decisions is a status quo bias. Right. Because you're not evaluating the status quo. You're evaluating any major action which would change that status quo, whether that's a new rail line that's going to carry oil or a new transmission line that's going to carry wind power. Whatever it is, it's the changes that trigger these kinds of legal proceedings and the procedural efforts of agencies on the front end. And so you can see why this with a conservative approach to government. Right. A kind of approach that is designed to keep things the way they are now. And that's effectively what, you know that most of these legal cases hinge on.

[C]

That's exactly right.

[A]

I want to. Well, you. You might even say, jesse, I want to play advocate for the kind of other side of this in a second. But I was going to say, Jesse, you might even say that NEPA has transformed from a modest procedural require into a blunt and haphazard tool employed by project opponents who may not always be entirely motivated by concern for the environment to try to stop or at least slow down new infrastructure and construction projects. Some project opponents have invoked NEPA and sought to enlist the courts in blocking or delaying even those projects that otherwise comply with all relevant substantive environmental laws. Indeed, certain project opponents have relied on NEPA to fight even clean energy projects, from wind farms to hydroelectric dams, from solar farms to geothermal wells. And in fact, that is what Justice Kavanaugh writes in this ruling.

[C]

Yeah, it's pretty weird to think that Justice Kavanaugh is anointing himself the protector of progressive climate change initiatives, but I think there's a sense in which he's not wrong. I think we're tempted to reduce everything down to just ideology, but here I think he's got a point.

[A]

I will say, you know, I'm just going to read from one more thing because I think there's a one to just get it on the record. And then I'm going to say this, which is he goes on to add, fewer projects make it to the finish line, indeed, fewer projects make it to the starting line. Those that survive often end up costing much more than is anticipated or necessary, both for the agency preparing the EIS and for the builder of the project. And that in turn means fewer and more expensive railroads, airports, wind turbines, transmission lines, dams, housing developments, highways, bridges, subways, stadiums, arenas, data centers, and the like. And that Also means fewer jobs as new projects become difficult to finance and build in a timely fashion. He's reading it sounds like an Ezra Klein column. I mean, it just. There's no other way to put this. It sounds like an Ezra Klein column. Obviously. You know, I think Justice Kavanaugh has a particular history and one that may feel make the jurisprudence here somewhat awkward, I think, especially for folks like Ezra Klein or Derek Thompson who want to inaugurate these kinds of ideas as a new part of the progressive canon. I will say having seen Justice Kavanaugh when he was Judge Kavanaugh be part of a multi judge panel presiding over the arguments of the Clean Power plan back in 2015 when he was on the D.C. circuit, he's always been aware of climate issues like this. He was always reading what folks were writing about climate change and was in fact particularly attentive to cases like this one where what were historically liberal goals, liberal legal goals, were getting in the way of what could be construed as climate or environmental goods. This has been like a theme for in some ways the past 10 years of his rulings.

[C]

Maybe. But let me actually interject there because I do want to. I don't want to let him off the hook altogether. There's a weird kind of selectivity in the court's decision. The court is all about deference and the need to defer to federal agencies that know better about the scope of their authority. They know better about what they're up to. They know better how to evaluate environmental impacts than generalist judges. All of those considerations seem to go right out the door when the Environmental Protection Agency moves to regulate. So last term, when I last spoke with you, it was a case involving ozone pollution that leads to smog. They drift over state lines. And so EPA had adopted a rule called the Good Neighbor Rule, attempting to tell upwind states that they needed to knock it off with their emissions to protect the air of downwind states. And in that case, Justice Kavanaugh joined with the conservative majority to overturn that EPA decision on a basis that was, I mean, just unbelievably fly specky. The Court said the failure to respond to a single oblique comment issued by a group of polluters was enough to doom the entire project. So, you know, on the one hand, I want to endorse the decision in seven county because it is so sensitive to the damage that NEPA can cause. But then I have to say, like all the complaints that you had about lower courts behaving unpredictably and arbitrarily in their oversight of federal agencies, they apply with equal force to what the Supreme Court just did last term. And so it does raise the question of whether the justices are adjusting the stringency of their review based on whether they like the underlying decision.

[A]

Policy based jurisprudence from this course, seems.

[B]

Like they might be. Can I just point out too, there's an inconsistency in that approach. Right. Because one of the rationales you could bring for not considering these downstream effects of say, refineries refining crude that was transported on this rail line is that that downstream activity is the place that the locus of regulation. Right. That is appropriate. Right.

[A]

If, and that's if there's an environmental.

[B]

Concern, yeah, you should regulate the refinery and not the rail line or the pipeline. And that there's some logic to that. But if the Supreme Court is also simultaneously wiping away a lot of the EPA's ability to regulate at those points of intervention, then it becomes quite inconsistent.

[A]

I was just going to go in and say, Nick, I totally agree with, with the inconsistency between this and this ruling and last year's ruling. And I wouldn't also describe Kavanaugh as a friend of the environment. I think what's interesting is that in some ways, because this ruling, back when he was first selected for the court, before the drama over his appointment, I wrote a story where I talked to environmental lawyers and they were not as negative about his appointment as they had been say about Justice Gorsuch's. They were like, well, he kind of does listen. And I think in some ways this case, which like accomplishes a long standing conservative goal around nepa, but does it able to be cloaked partly in the cloak of abundance and permitting reform, is in some ways like quite representative of how he has gone about this or the structure his arguments take.

[B]

So can we just pause for a second to tease out this, you know, the two sides of the coin here? I think of what it means to remove these barriers to change. This is, as we talked about this, NEPA litigation has been a key tool in the environmentalist toolbox to prevent all kinds of projects that have legitimate and substantial environmental harms. It also is a tool that others can use for other purposes and has led to an extremely long procedure by which agencies conduct these studies. But let's. Can we just pause on that idea that what are the pros and cons of having our default legal position be change is okay versus our default legal position being change is bad? And you have to justify all the reasons why we need to change because that seems to be the kind of default here in the NEPA case is, you know, you need to consider all of the possible damages that are caused by this action and consider them in quite, quite a lot of detail. Otherwise we might send you back to do more evaluation and overturn your decisions.

[C]

Yeah, that's exactly right. A thumb on the scale in favor of the status quo privileges the status quo. And the trouble is, when you take your thumb off that scale, it's not always clear what happens next. We can all guess and have our best informed guess based on the research that's out there about how agencies will respond and what kind of effect that's going to have on the environment. But the fact is, it's really hard to pin down. So if you talk to an environmental group, they might say to you, listen, you're being naive. The solar and wind farms, yeah, sometimes they're held up, but really the important thing is that we stop any kind of development that might wed us to fossil fuel extraction for decades to come, and that the benefits of stopping that kind of construction outweigh whatever costs might be imposed on renewable construction and development. I'm not persuaded by that, especially in the current environment, where the costs for solar and wind have dropped so precipitously, where battery technology is coming online so quickly. But obviously there are trade offs here. And I think anybody who tells you there are no trade offs is really avoiding the hard question at the heart of this. Yeah.

[B]

And I can imagine at this particular moment with the Trump administration dismantling much of the regulatory abilities of agencies like the Environmental Protection Agency, that concern is resonant. Right. People are particularly focused on the. Well, what does this allow the Trump administration to get away with that they might have otherwise been blocked by the NRDC or EDF or Earth justice lawsuits. So that makes a lot of sense. But you're pointing out there's this other side to that as well, which is in the longer term, it's unclear what a bias for or against change will lead to. And if you look at the just the case of the electricity sector, you do look at what's getting built, what's in the interconnection queues. Right. To connect to our grids. It is overwhelmingly clean electricity technologies.

[A]

Not, I think people would respond to you, Jesse. That's the issue is they're stuck in the interconnected queues. Right. They're not stuck in Neva Holdings. We call it a permitting, but they're stuck in a different local permitting structure, which does not happen to be nepa.

[C]

And that's the problem in general with nepa, is that it's just one impediment. There are lots of others. The National Historic Preservation act, the Endangered Species act. Not only legal procedural burdens, but also those interconnection cues that are themselves the product of state utility commission procedural oversight and review. There's tons of different things that make it hard to build in the real world. And so one answer to that is sometimes, well, let's not bother getting rid of nepa, because there are so many other targets out there. And my perspective is you got to start somewhere. And I think this is a reasonable place to start, given that NEPA itself is the core federal permitting burden that exists. And once you get rid of it, you can more clearly see what the other bottlenecks are.

[A]

Do you think it's fair to say that the ruling is a defeat for climate law, but a victory for clean energy law? Because it seems to me that if you look at the broader, the broad arc of rulings over the past and of legal history, let's say over the past 15 years, there has been an effort to, through means other than the environmental statutes and through means other than the air pollution regulations, have the law take heed of the dangers of greenhouse gases. And there's been an effort to do it through financial regulation. This was an effort to do it through NEPA and through kind of the regulatory burdens incurred by environmental reviews. And that effort has really not been very successful. If you think about it. We kind of brushed off earlier the greenhouse gas effect of increased drilling in the Uinta Basin. But Justice Sotomayor writes in the Concurrence for the liberals that increased drilling in the Uinta Basin would be about 1/10 of 1% of global greenhouse gas emissions, which doesn't sound like a lot, but on the other hand, is equal to, like Ireland's national annual emissions is actually, or Sweden's worth of national annual emissions. You starting to talk about a new European small country's worth of emissions being added to the global balance here. It seems like this ruling really shuts the door on a lot of the attempts to have NEPA and to have agency actions take heed of increased fossil fuel extraction through the NEPA process. But it seems like probably good for the clean energy industry that there are going to be lower NEPA burdens going forward.

[C]

Yeah, I think that's right. Really, the central challenge for environmental groups that want to use the law to try to combat climate change is that Congress hasn't been on board so if you want legal change, typically the right approach is to secure legislation, but that's been bottled up.

[B]

Change the law.

[C]

Yes, to change the law. And so instead you're forced into these kind of off the backboard approaches, like you bring a lawsuit to say that carbon dioxide is a greenhouse gas under the Clean Air Act. And it's a totally defensible legal argument. I was working at the Supreme Court when Massachusetts against EPA was decided and the court said, sure, but the fact is the Clean Air act is really poorly designed to deal with climate change because it was adopted before we knew anything about climate change. And the same goes for nepa, as you're taking a law that was adopted at a very different time to deal with very different problems and attempting to wedge climate concerns in into it. And that just hasn't been terribly effective. And this decision, I think really if it doesn't shut the door, it really closes it most of the way. On that line of attack, has it.

[B]

Not been that effective? I mean, I get the sense that it has been effective at shutting down a lot of projects that come under suit.

[C]

Oh, I should be clear. No, it's not been effective at. Depends what you mean. It's been effective at shutting down lots of fossil fuel projects, but it's also been pretty effective at shutting down lots of big renewable projects. So its net effect on climate, I think, is really quite hard to pin down.

[A]

And it's also, I mean, I talked to Sam Sankar, who's a senior lawyer at Earthjustice Environmental Group that participated in this case. I think what he would say here, and I think what's very fair is, look, nepa, famously, there are lots of actions that the oil and gas industry can take that basically under a 2005 law passed by Congress, are exempt from NEPA. That doesn't actually mean that agencies don't have to do anything around NEPA for those actions. Agencies still have to process the paperwork sometimes, but they are exempt from NEPA drilling for more, fracking for gas. Those are all exempt actions. But pipelines are not pipelines. You still have to run a NEPA process for. And NEPA has been quite effective in slowing down or delaying or blocking various pipeline construction. We've talked about NEPA so far as a part of the law that basically favors the material status quo. It does seem possible that one effect here, and one thing that I think permitting reform advocates have to be on board with, is that when you remove something favoring the status quo, we might get a build out of fossil at the Same time we get a build out of clean or even that. The Trump administration uses this opportunity to jam through a lot of fossil and opponents have fewer tools to block it, at least for the next two or three years.

[C]

I think it's totally fair and I think you want to go into that with open eyes. One of the reasons that I don't love that argument is first, it's aging poorly, right? Oil pipelines are still being built and they still will be built. But again, the industry is shifting toward renewables. And so at some point, and I think that point has passed, that argument is going to wear pretty thin. But more importantly, if what you want to do is shut down oil pipelines, pass a law, there's nothing stopping the political process from passing a law saying that fossil fuels ought to be phased out. The trouble is the political process doesn't accommodate that. People don't want higher electricity bills to cope with climate change. So the environmental groups are using these kind of off the backboard legal tools to try to achieve that same goal through the courts. And I don't think that's sustainable. I think you're going to get decisions like the one we see in Seven county. And I think along the way you're going to cause a lot of damage because you're going to make it harder for the renewables that we actually do look to to solve this problem at this point to come online. And I think a lot of environmental groups are kind of stuck, stuck where they were in the 1980s and 1990s when these technologies were in their infancy.

[A]

It's kind of funny, the court has issued this major NEPA ruling right now because at the same time that this ruling is coming through, Congress is working on its own version of NEPA reform. The House passed as part of the reconciliation mega bill that Republicans are working on, a change to NEPA that would basically allow project sponsors, that's anyone who needs a federal agency to approve a private project to pay and get a version of their NEPA report that cannot be reviewed by the courts. This would, as we've been talking about this seems like quite a big deal. We don't yet know if it's going to survive the birdbath, the kind of set of tests that the Senate parliamentarian and the Senate process subjects various reconciliation provisions to. But it does seem like there's change coming for NEPA this year almost no matter what happens. So if that House proposal goes through and does become law, what would creating a NEPA fast track essentially do for nepa? Do you Think, Nick.

[C]

Yeah, I mean, it's a wild law. I've never seen a law that allows you to pay money to get out of judicial review before. But I do think it would give agencies a whole lot more confidence when they are conducting their environmental impact statements of their environmental assessments that they don't need to chase down every cockamamie alternative. At the extreme, you could imagine agencies simply shirking their responsibilities. Now under the Trump administration, I think that's a risk, although I don't know how substantial it is, because there is still some degree of judicial oversight and because that law does not extend to other statutes, like the National Historic Preservation act, like the Endangered Species act, like lots of other laws that are usually considered as part of that NEPA process. But look, the broader point is well taken that something is happening when it comes to nepa. It is no longer a sacrosanct. It's often referred to as the Magna Carta of environmental law. The notion that you go back and undo the Magna Carta is, I think, long, long thought to be unthinkable. Now, it's, it's very thinkable. It's thinkable on the right, but it's even thinkable on pockets of the left. And I don't know what that's going to lead to, and I don't know if the kinds of choices that Congress make are going to be sufficient to really address the problem. But something is in the air. And if it doesn't happen this year, it'll happen next or the year after.

[A]

Something I've wondered about this Supreme Court case and the House proposal is that one reason I think there's a lot of friendliness to NEPA reform on the left is because of this sense that NEPA really holds back state capacity. And if you understand abundance, as I do, as an attempt to understand why the Obama administration basically was able to pass the ACA and able to change social policy in the country quite significantly, but not able to get California high speed rail done and really did not have a major effect, and especially not a major immediate effect on the country's built environment. You wind up concluding that NEPA and these other permitting laws which slow down the government's ability to build infrastructure or anything that happens in the physical world really matter a lot. And I guess my question, one question I have about the House Republican proposal is that does it kind of affect the parts of NEPA that I think folks on the left are least concerned about? In other words, does it allow project sponsors, that is private companies that want to build infrastructure and need the government's approval to do it. A fast track through nepa, but not the government? Or is NEPA such that, like other government agencies will be able to use this kind of new fast track once it's been established for private companies as well?

[C]

No fast track applies only to private companies that are able to buy their environmental impact statements or environmental assessments. And I do think that's an imbalance. So if you're the Army Corps and you're looking to do Everglades restoration, which is a major infrastructure project in Florida, because there's a private company that's looking to sponsor that, that's because the federal government has plowed billions of dollars to try to restore, you know, a treasured national park. And projects like that aren't going to get relief under the House bill. And I do think that's an imbalance. It's not as bad as an imbalance. As I feared. I thought maybe the NEPA carve out would only be for fossil fuels and it wouldn't extend to renewables. So, like, there are ways it could be worse still.

[A]

Don't, don't, don't say that process has been. They can always make it worse.

[B]

I just wanted to posit, note that the reason they have to pay for that expedited permitting is precisely because this is the budget bill and they are trying to have some fig leaf that this is a budgetary policy and not a substantive regulatory policy change. That's why it may or may not survive in the Senate side, where they tend to look at these things with a little bit more rigor.

[C]

Yeah. In some ways, the more interesting law that's under consideration is the Fix Our Forests act, which is an effort to relieve some NEPA burdens on the Forest Service when it goes and tries to do mechanical thinning or controlled burns in order to prevent national forests from going up in massive conflict conflagrations out West. It's been a problem that the Forest Service will study whether it can do these fuel reduction efforts. And while it's studying those fuel reduction efforts, the forests burn down. So the Fix Our Forests act has divided the environmental community, with some environmental groups lining up in favor of it and some lining up opposed. And that, I think, is a pretty interesting signal about where Congress is leaning. Even if this kind of more kooky pay to play sort of initiative eventually falls out of the House bill, what.

[A]

Comes next for NEPA and for permitting reform? Because one thing that you've hinted at a few times in this conversation is that nepa, which is Justice Kavanaugh says, is a, quote, purely procedural statute, just requires the government to do something before it can approve a project. Is like, maybe not the biggest barrier here compared to more substantive statutes like the National Historic Preservation act or the really, really big one, the Endangered Species act, which I think progressives would feel way more worried about starting to disturb, is like the next step, that NEPA becomes a totally different law by the end of the year, and then we wind up talking about these more substantive statutes. Or is there still a lot more to change on nepa and this is like a longer fight? Like, where should folks devote their attention next?

[C]

I think the answer is that once you start chipping away at nepa, some of the other bottlenecks will become a little bit clearer. And some of them are other federal statutes, some of them are procedural statutes, some of them are substantive statutes. But a lot of the challenges that we face to certainly the green build out, but also with respect to housing and other local infrastructure, they're state and local laws. They're actually not federal permits that are the issue, but state and local permits. And I think as we create a permission structure for people to start saying, hey, we've made it way too hard to build in this country, my hope is that some of the example of what it is the federal government does starts to roll downhill, that courts will take a lead, state courts will take a lead from what the US Supreme Court has done, that lower state legislatures will start saying, hey, Congress is thinking about removing some of these procedural burdens. How do we think about the packet of state and local laws that are causing problems here? It's not going to happen overnight. I think about the procedural bloat that's happened over the course of the last five decades. Think of it like kudzu vines in the South. They just grow and grow and grow. And so you're gonna have to slice off one part of the vine, and then it's gonna grow back slowly, you're gonna slice it off again, you're gonna slice off the rest, you're gonna keep going at it with a hammer and tongs over and over and over again, if you want to see if you wanna get progress. But, you know, you gotta start somewhere. And I do think this shows at least some nascent commitment to trying to make it easier to do things in the real world because the climate depends on it. But so too our housing market, so too to our transportation infrastructure, our manufacturing base, we really are falling behind in the ability to get things done in the real world.

[A]

I'd be remiss at this point if I didn't mention that this is exactly State and local barriers are exactly the kind of things we track at Heat Map Pro. And indeed we found thousands of county level laws that restrict renewable development across the United States. I think this is as much a federalism question as anything else. But can we imagine a world where Congress steps in Congress and the President and say, hey, look, you can't have this kind of state level regulation. You can't have that kind of state level regulation? Or is that not really possible because it's likely to run afoul of federalism concerns?

[C]

No, it is possible. It's a heavy political lift. But the best example we have was a change to the federal communication to the Federal Telecom act when cell phones were first getting rolled out. The problem was there weren't enough cell phone towers to assure reliable service. But the reason there weren't enough cell phone towers is a lot of localities didn't want what they thought to be ugly towers going up in their backyards. So Congress passed a law that, although it's a little bit complicated in the details, effectively preempted state and local zoning rules that would have prohibited the construction of those cell phone towers. And as a result, we got really quick build out of those towers. Now solar and wind take up a lot more space. They're a lot more controversial. You're going to need a lot more of it than you did with cell phone towers. So I don't pretend for a moment that it would be easy. And of course, traditionally big land use decisions have been left to states and localities. But there's nothing in the Constitution that would prohibit Congress from making a move like that. And I think it is definitely a move worth exploring. The other example we have are states that have moved to preemptive local ordinances that would prohibit big solar wind build out. And my home state of Michigan is one of them. So if you have those kinds of laws at the state level, they could be expanded or built upon at the federal level as well.

[A]

We'll have to leave it there. But there's much more. The nice thing about permitting reform is there's always so much more to talk about and there's so much more that's likely to happen in the future. Nick Bagley, thank you for joining us on Shift Key.

[C]

It's a pleasure to be here.

[B]

Foreign.

[A]

Welcome back. It's time for Upshift Downshift, our weekly segment where we take a look at a item from Climate or decarbonization or energy news from the past week. And you probably know the drill. But if it's making us feel good about the energy transition this week, it is of course an upshift. If it's making us feel more pessimistic about the energy transition this week, then it's a downshift. Jesse. I feel like we were doing upshifts. We had a great year there. Lots of upshifts, so many upshifts. And now it's just nothing but downshifts, downshifts all the time.

[B]

We've been trying to find some diamonds in the rough and give you something to be excited about, but I'm afraid this week I don't have one of those for you.

[A]

Okay, Justin, what do you got? What do you have?

[B]

Yeah, I've got a downshift for you this week, which is first quarter sales in the United States of plug in hybrid and electric battery electric vehicles were flat this year for the first quarter so far they're actually down from battery electric vehicle sales are actually down from the fourth quarter. But overall battery EVs are about 8% of US light vehicle sales, that's all cars, trucks and SUVs and plug in hybrids are another 2%, so about a 10% combined share. That's exactly where we're in 2024. I would imagine that this is continuing to be Tesla's struggles in the market, but I'd have to dive into the sales totals vehicle by vehicle to figure out exactly what's going on. Obviously the uncertainty around tariffs is probably not helping consumer confidence and overall sales as well. But we would hoped, of course, if it was an upshift to see a continued increase in EV sales shares, at least for the first quarter of the year. That's not the case. Should note though, of course, that these quarterly values bump up and down and we've seen this in the past. And so we'll keep an eye on whether this is a sustained trend for a couple quarters or if this is just a first quarter thing and the rest of the year looks a little bit better.

[A]

It is so funny. Elon was on 60 Minutes this past weekend basically being like, yeah, I don't agree with everything this, this administration does, but I really know how to talk about it. It feels like he's figured out the idea that companies should be politically neutral from first principles. But like those, like, along the way, Elon, like along the way decided to be more involved than any other Fortune 500 CEO in like, American history.

[B]

Ever since the war board of, you know.

[C]

Yeah.

[A]

Which I also, I don't want to excuse. As I said, I don't say that he's like, I don't want to grant total credence to what he's saying now. I think to some degree he's doing cleanup now and knew what he was doing when he chose to be the second or third most most powerful person in the Trump administration for the first few months. But it is interesting times.

[B]

Brand, reputation does matter. Rob, what do you have for us?

[A]

I have another downshift. I have a downshift, Jesse. The Secretary of Energy, Chris Wright, clawed back on Friday 24 grants for projects to cut emissions from heavy industry. Those grants came to $3.7 billion and they would have helped companies build first of a kind or second of a kind or early scale demonstration projects in what we sometimes call hard to decarbonize industries. These are like heavy industrial or light industrial companies that use a process that's particularly carbon intensive. And the government was going to pitch in to help them create new facilities that would demonstrate first of a kind, early scale technologies that could then potentially be scaled to the rest of the economy. These companies worked in food and beverage and steel making and cement in chemicals productions. And Chris Wright was just like, nope, we're not funding these. Largely funded by the Office of Clean Energy Demonstration, which the particular, the Trump administration seems to have particular antipathy for. I think of some interest here is that the two largest projects, a number of large projects here, were to support carbon capture demonstration projects.

[B]

They went to note those were. Those projects were funded, I think, by the carbon capture demonstration funds from the bipartisan infrastructure law rather than the industrial demo program that was largely funded by the Inflation Reduction Act. So this was a bipartisan bill that funded those programs.

[A]

So I just want to like, it's kind of important to dwell here because there's like two particular theories of change in climate politics that have been damaged.

[B]

If not are being actively tested.

[A]

Actively tested. The first is that some people say the IRA is now being tested by Congress because it was too partisan. And actually all climate action should be done through bipartisan bills. And Joe Biden could have passed the bipartisan climate bill if he had tried. Well, he did pass bipartisan climate policy in the ija, the bipartisan infrastructure law, and hasn't stopped the Trump administration from coming in and tearing it apart. So that's theory number one, not looking too hot. Theory number two is that carbon capture is actually just a giveaway to the oil and gas industry and that when Democrats support carbon capture, even though kind of the science says that carbon capture and direct air capture especially are might be important tools to achieve our deep decarbonization and net zero goals, I think there's some folks who say no, that is theoretically true, but in American politics, what you're really just doing here is subsidizing the fossil fuel industry and doing the bidding of what Republicans and the fossil fuel industry would do anyway. I also think that that idea is not looking too hot because here you have Republicans coming in and yanking those grants away. It turns out Republicans don't want the fossil fuel industry to develop carbon capture technology. They don't want anyone to have carbon capture technology because they reject the premise that carbon emissions are dangerous at all. And in fact, they would rather not have any evidence out there that this technology works or that you could deploy it at scale because that might open the door to regulation. And so this idea that CCS was some kind of giveaway that the Biden administration was doing to fossil fuel companies, I think has been totally disproven because what we've actually seen is that what a Republican administration does is not come in and fund CCS projects. What they do is they come in and yank all the funding away because they don't want a speck of evidence out there that you could ever deploy this at scale. And they don't want the oil companies to get invested at all in the idea that like, this might be a technology that could work for them. And so I just think that this is like a really important touchstone here because I don't think the Biden administration was perfect. I think it was a big problem that, for instance, the President couldn't talk. I think some theories the Biden administration had about how the IRA would work are really being tested right now, if not disproven. But there are folks who come in, speaking of fly specking and say the Biden administration should have done more climate policy on a bipartisan basis and they shouldn't have done anything on CCS because that's a giveaway to the fossil fuel industry. And I think both of those ideas have been really disproven. By the way the right led Energy Department has acted. And I just want to say that is not. I'm not happy about that, though. I think it's a massive bummer because it means that what we're seeing is that at least with the Republican Party and its current dispensation, you can't do a lot in the upper Legislature, you can't do a lot in the Senate to like, create bipartisan consensus around climate policy. If one of the founding ideas of the current Republican Trump era Republican energy establishment is that climate policy is always and everywhere a bad thing now.

[B]

Yeah, I think that's all a great point. I also couldn't let this one go by without noting that the putative reason why these particular grants were selected for cancellation is that they were all grants where the agreements were finalized after the election. And so this is sort of in keeping with this idea that the EPA is also. Lee Zelda. The EPA has also put forward that they're trying to throw up all this money at the last minute and therefore there's evidence that they fraud and they're not looking out for the taxpayers money. And so that's the reason why these grants should be, should be taken back. I think the reality is that actually because of the length of time they went through to vet these grants, that that's what pushed their final approval back after the election. And so all of these projects went through an extensive vetting process before selection that went for months.

[A]

Here's, here's the conversation we really need to have, which is why did it take so long to do the vetting?

[B]

Perhaps they should have got them all done much earlier.

[A]

Permitting laws. It's permitting laws. I mean, I don't want to be. It's. It's permitting. When you talk to people in the Biden administration why these projects took so long, it's the permitting laws. And because they were vetting the projects, they were making sure they were dotting all their eyes. But like the actual statutes that require the most intensive form of dotting the I's and crossing the T's were the permitting laws. And when people say, oh, permitting keeps the government from acting quickly, it reduces state capacity because the government can't do anything quickly. This is an example where if this money had been out the door and the contracts had been signed and everything was completed, if the steel was in the ground and the concrete was poured, you wouldn't be able to yank this money away because the thing would be done and operating. Yeah, it's the fact that they didn't get the money out because they had to do two years of permitting procedure, that this money could even be yanked away in the first place.

[B]

I think that's right. Well, double downshift.

[A]

Well, at least we learned something. At least we learned something from the Biden administration. Now let's see if we can act on it. Thank you so much. For listening. If you enjoyed this show or if you hated it, let us know. If you think there's someone else who might enjoy this podcast, you can feel free to send it to them. You can find us at wherever you get your podcast at Spotify, Apple, the French one whose name I can't remember. We're everywhere. Search for Shift Key with Robert Smyer and Jesse Jenkins, or find us at heatmap News. That's heatmap News. Shift Key is a production of heatmap News. Our editors are Gillian Goodman and Nicola Roricella. Multimedia editing and audio engineering is by Jacob Lambert and by Nick Woodbury. Our music is by Adam Kramolow. Thank you so much for listening and see you next week.