Environmental law faces big tests in 2024

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Dec 22, 2023 View in browser   By Pamela King and Rebekah Alvey Presented by Programming note: Power Switch will not publish next week. We’ll be back in your inboxes Jan. 2. Happy holidays! The Supreme Court on Sept. 26, 2022. | Francis Chung/POLITICO Federal and state courts made monumental decisions this year that transformed environmental policy. Get ready for more of the same in 2024. As I report today, a flurry of environment-related court rulings are expected in the coming months. The Supreme Court will consider cases that could overturn a legal doctrine key to upholding federal rules — environmental and otherwise — and block a significant EPA air quality regulation, while a Hawaii court will begin holding the second-ever U.S. youth climate trial. Environmental lawyers say they are bracing for losses before the conservative-dominated Supreme Court. “The agencies are going to have to be much more intentional,” said Kerry McGrath, a partner at Hunton Andrews Kurth, who specializes in environmental, energy and administrative law. “They can’t just assert authority based on some broad statutory language.” Let’s recap In the biggest environmental ruling of 2023 — Sackett v. EPA — the Supreme Court released Chantell and Michael Sackett from the government’s requirement that they obtain a federal water permit to build their dream home on an Idaho lakeshore. But Sackett also put new limits on EPA’s oversight powers, demolishing protections for most of the nation’s wetlands and shifting authority to states that may not have the desire or the resources to ramp up their own water permitting programs. One of the nation’s most prominent energy court battles was also obliterated in 2023 by congressional mandate. Lawsuits over the contentious Mountain Valley pipeline nearly disappeared after Democratic Sen. Joe Manchin of West Virginia brokered a deal to save the $7 billion project designed to carry natural gas through his home state. The year also saw an historic legal victory for environmental activists. In August, a Montana court found that state officials violated the rights of young people by ignoring the climate damage wrought by fossil fuels — the first ruling of its kind in the United States. The decision — Held v. Montana — is already driving similar lawsuits in other states, including Hawaii. Buckle up In January, the Supreme Court will hear arguments in a case that has the potential to end a 40-year-old legal doctrine that helps federal agencies like EPA win in court. The court’s decision in Loper Bright v. Raimondo, which is expected by early summer, will come as the Biden administration begins to finalize — and legally defend — rules to limit power plant emissions, curb tailpipe pollution and define federally protected waters. In February, the high court will also consider blocking an EPA rule that stops states from spewing smog-forming air pollutants to their downwind neighbors. “This could be a precursor of a changing of the environmental standards we’ve lived with for the past 30 or 40 years,” said Mark Sudol, senior adviser at the environmental permitting consulting firm Dawson & Associates. “I hope not, but we’ll see where it goes.”   It's Friday — thank you for tuning in to POLITICO's Power Switch. We're your hosts, Pamela King and Rebekah Alvey. Power Switch is brought to you by the journalists behind E&E News and POLITICO Energy. Send your tips, comments, questions to pking@eenews.net.   A message from Williams: Meeting increasing energy demands while reducing emissions requires collaboration and balanced energy solutions. As a trusted operator with more than 100 years of experience in the evolution of energy delivery, Williams is leveraging its existing infrastructure to reliably meet increasing energy needs while supporting emissions reductions. Learn more about how our natural gas focused strategy embraces change and complements the growth of renewables.   Listen to today’s POLITICO Energy podcast Today in POLITICO Energy’s podcast: Matt Daily breaks down the top climate and energy policy events and trends of 2023. Power Centers Gauging the EV market A blip in electric vehicle sales is fueling dueling narratives: EVs are either a booming business or the cars are piling up on dealer lots because nobody wants them, writes David Ferris and James Bikales. The U.S. market for EVs is, in fact, growing; just not at the blistering pace it was a few months ago. And Americans shattered records in November by buying a million EVs in a single year. The politics of electric cars could become clearer in the coming months, as the presidential election heats up. President Joe Biden will highlight investments in U.S. battery plants. Republicans are already propping up figures suggesting the U.S. market for EVs is stalling. Hydrogen boost The Treasury Department dropped highly anticipated tax guidance for “clean” hydrogen Friday, writes Brian Dabbs. The credits range from 60 cents to $3 per kilogram of hydrogen depending on CO2 equivalent emissions. The regulations, which are now open for 60 days of public comment, aim to ensure hydrogen production isn't siphoning clean electricity from the larger grid that powers houses and businesses. Instead, hydrogen producers are supposed to use new sources of clean energy developed in the region. Some big names in hydrogen said the guidance is too strict and places “unnecessary burdens” on the burgeoning industry. Climate and the courts 2023 brought big legal wins for climate activists in the United States and around the world, writes Lesley Clark. Courts are becoming a key battleground, from a historic ruling in Montana in a youth-led climate case to a Supreme Court ruling against the fossil fuel industry that advanced cases in state court.   A message from Williams:   In Other News Disease and climate: A string of rare illnesses like brain-eating amoeba seen this year is proving what scientists have long warned: Climate change can shift the spread of disease in the United States. Property values suffer: New research found properties within a mile of a proposed wind farm dropped in value in comparison to surrounding properties after the project was announced. However, the difference in value is temporary. Subscriber Zone A showcase of some of our best subscriber content. Richard Glick, the former chair of the Federal Energy Regulatory Commission, exceeded his authority in requesting an appeals court remand a decision on the PJM Interconnection’s price cap back to the commission, the 6th U.S. Circuit Court of Appeals ruled this week. Governors have signaled interest in taking advantage of federal climate funding in 2024, before a potential return of former President Donald Trump to the White House. Even Republican state leaders are looking to tap into the funds at least to stay competitive with other states pulling in private climate investments. New York is struggling to meet its goal of reaching 70 percent renewable energy by 2030. About 60 percent of onshore renewable projects have canceled contracts with the state. Since early December, 52 additional proposed renewable energy projects have ended their agreements. That's it for today, folks. Thanks for reading, and see you in 2024!   A message from Williams: As we approach important climate targets, our planet is still burning more coal worldwide for electricity generation than any other time in history. Replacing carbon-intensive coal with natural gas is a readily available, pragmatic solution to dramatically reduce emissions. Globally, switching the top 5% of carbon emitting power generation plants would reduce world emissions from power generation by 30%. Natural gas, in partnership with renewables, is the best way to efficiently and affordably meet increasing clean energy demands brought on by electrification while providing reliable backup capacity to support the growing deployment of solar and wind power. Currently, natural gas powers more American electricity generation than all renewables combined and has 100% reliability as ascribed by regulators. Our industry can address this complex energy landscape with infrastructure developments and investments in the advancement of natural gas—a must-have complementary fuel to grow alongside renewables. Learn more.     Follow us on Twitter Arianna Skibell @ariannaskibell   Follow us

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