In this Issue: Permitting Reform, the Supreme Court, EV’s, and Climate Week 2024
By Basil Seggos
After nearly a decade as New York State’s environmental chief, I recently joined Foley Hoag to help the firm’s clients emerge as global leaders on climate. We’re at a unique moment of alignment on the need for climate action among government, industry, innovators, investors, and the public. At the same time, the positive momentum fueled by this alignment—record investments and a booming renewables jobs market – must now contend with emerging uncertainty across economic, legal and political landscapes. This has created considerable opportunity for firms like Foley Hoag to be a driving force in advancing the clean energy economy.
The first article in this issue of Climate Law Matters covers the hot topic of energy permitting reform, which is all the buzz in Washington and in state houses across the country. We then cover two consequential environmental and energy decisions coming out of the US Supreme Court’s most recent term that limited the EPA’s ability to curb ozone emissions and upended long-held judicial deference to agency decision making. We also explain how “catalytic capital” has emerged as an essential lever that can shift trillions of dollars to climate investment. We end with an update on the U.S. electric vehicle industry and some suggested reading from other experts in the industry.
As world leaders convene for September’s Climate Week in New York City—less than two months before November’s consequential presidential election—Foley Hoag will be there to keep pace with key developments impacting the industry and the trends that will define the next decade.
September 17, 2024 - By Zachary Gerson, Daniel Carlston
On August 29, 2024, the Massachusetts Department of Public Utilities (“DPU”) issued a highly anticipated order approving the Electric Sector Modernization Plans (“ESMPs”) filed by the three Massachusetts electric distribution companies (“EDCs”), Eversource, National Grid, and Unitil. The ESMPs will provide a strategic roadmap for the EDCs’ plans to make significant investments in their electric distribution systems to support state clean energy goals.
Read our full post here.
On the Front Burner: Energy Permitting Reform
August 26, 2024 – By Basil Seggos, Sarah Main, and Kevin Y. Chen
Energy permitting reform is one of the hottest topics in Congress and state houses nationwide. Federal legislation is building momentum, while parallel efforts at streamlining energy approvals have also emerged at the state level. Though the fate of pending bills remains uncertain, changes could come as early as the end of 2024.
Read our full post here.
Supreme Court Decision Ohio v. EPA Limits Ability to Curb Ozone and Other Air Emissions
June 28, 2024 – By Basil Seggos, Tad Heuer, and Joshua Rosen
The Supreme Court has released its opinion in Ohio v. EPA, a case involving whether the federal government’s “good neighbor” ozone regulations were properly promulgated. This decision impacts the authority of the U.S. Environmental Protection Agency (“EPA”), state regulators, and those who breathe air in non-attainment areas. As aptly put by dissent author Justice Barrett, the Court’s decision “leaves large swathes of upwind States free to keep contributing significantly to their downwind neighbors’ ozone problems….”
The “good neighbor” ozone air quality regulations, issued by EPA in 2015, required industrial facilities and power plants in the western and midwestern “upwind” states to reduce ozone emissions that, due to prevailing winds, drift into “downwind” eastern states and generate significant air pollution there. The EPA issued these standards due to concerns about asthma and other health problems, and required states to submit plans for how they would comply. In 2021, the EPA rejected plans from 21 states that had not proposed any emission changes and promulgated its own plans for those states (and two others that had not submitted plans). Three states and several industry groups sued and sought an injunction from the D.C. Circuit, which denied the injunction. The plaintiffs then sought an emergency stay from the Supreme Court, which denied the emergency stay but granted expedited argument on the motion for stay and the merits.
Read our full post here.
Does Loper Bright Mean the End of Deference to Agency Expertise?
July 31, 2024 – By Seth Jaffe
Foley Hoag partner Seth Jaffe discusses the effects of Loper Bright on deference to agency decision-making and considers how the recent Supreme Court term, and particularly this milestone decision, has reshaped the Administrative Procedure Act (APA).
Read our full post here.
Some Evidence that Deference to Agency Technical Decisions May Survive Loper-Bright
August 15, 2024 – By Seth Jaffe
Seth Jaffe discusses the recent Huntsman Petrochemical v. EPA decision that offers a full-throated defense of deference to agency technical expertise, suggesting clues to how the Supreme Court will weigh the Loper Bright decision and agency expertise moving forward.
Read our full post here.
Catalyzing Action: How Catalytic Capital Can Help Unlock Trillions in Climate Investment
September 13, 2024 – By Mark Barnett
Last month, after a meeting with the G20 financing ministers, U.S. Treasury Secretary Janet Yellen announced that US$3 trillion of additive capital investment will be necessary each year (above and beyond business as usual) to adequately combat climate change. She also deemed the global transition to a low-carbon economy “the single greatest opportunity of the 21st century.” With her statement, Secretary Yellen perfectly captured the zeitgeist of the present climate moment by simultaneously articulating a daunting call for such a massive capital influx, while recognizing what a unique set of transformative economic opportunities could abound if we meet the challenge.
To those who have been involved in or tracking the climate sector over time, the $3 trillion number may be surprising. A decade ago the International Energy Agency (IEA) estimated that, to address catastrophic climate change, the global economy would need to allocate an additional $1 trillion more per year - a number that seemed unfathomable to many at the time - through 2050 compared to a “business as usual” scenario. Having said that, in 2024 the $1 trillion per year number will be met and exceeded by the IEA’s own estimates which peg the expected investment in clean energy technologies and infrastructure at $2 trillion this year. Of course, none of these estimates represent exact science, but they are a scientifically grounded and rigorous attempt to quantify the problem, and suggest that big solutions are needed.
Government policy has played and will continue to play a central role in the mobilization of the necessary capital to address the climate crisis. The passage of the Inflation Reduction Act just over two years ago was a heroic step by the United States to take a leadership role in the necessary transition. In Europe, the passage of the European Green Deal and other key legislation has played a similarly important role. But government policy alone is not enough.
Read our full post here.
EV Update
September 10, 2024 -- By Sarah Main
In June 2024, the U.S. Department of the Treasury and IRS announced that U.S. consumers have saved more than $1 billion in upfront costs on their purchase of more than 150,000 clean vehicles since January 1, 2024, thanks to funding from the Inflation Reduction Act (“IRA”). The IRA’s 30D clean vehicle credit and 25E previously owned clean vehicle credit, and the transfer mechanisms for such credits, have enabled consumers to realize greater savings on electric vehicles (EVs) at the point of sale rather than waiting to recoup the benefits of the tax credits when the vehicle purchaser later files their taxes.
These investments are a significant milestone toward achieving the Biden-Harris Administration’s goal of having 50% of all new vehicle sales be electric by 2030. Although EV sales continued to slow this past quarter, U.S. EV sales were up by 23% over the prior quarter, and global EV sales are up overall. At the same time, the Biden-Harris Administration has continued to roll out funds under several IRA programs aimed at alleviating another barrier to widespread EV adoption – range anxiety.
This update provides a quick look at recent federal award announcements under the Charging and Fueling Infrastructure Grant Program, EV policy challenges facing states, and a few noteworthy industry updates over the last quarter.
Read the full update here.
Energy & Climate Counsel Blog:
Our Most Recent Posts
WHAT WE ARE READING
August 26th, 2024 – Eric Niller, Wall Street Journal
Eric Niller from the Wall Street Journal examines the Palisades nuclear plan as a case study to reexamine federal and state policy and attitude towards nuclear power. While Michigan had shutdown the Palisades power plan in 2022 as a relic from the 1970s, just two years later it is now on track to spend almost $2 billion to restart the reactor.
Read more.
September 5th, 2024 – Kelsey Tamborrino, Josh Siegel, PoliticoPro
Bipartisan legislation in the Senate to streamline the federal permitting process for both clean energy and fossil fuel projects would lead to a net drop in global greenhouse gas emissions, according to new analysis from the think tank Third Way. Kelsey Tamborrino and Josh Siegel from Politico dive into the new report and the potential political impacts.
Read more.
September 4, 2024 – Jael Holzman, Heatmap News
Heatmap journalist Jael Holzman has launched a new newsletter focused on the battles around renewable energy projects called “The Fight.” Jael will focus on both local battles and national trends surrounding the energy transition and provide in-depth case studies, polling, and forecasting data on these topics.
During Climate Week NYC, Jael will also be speaking on a panel with Foley Hoag partner Basil Seggos on renewable energy myths and misinformation at the Foley Hoag New York Office. To register for this event, click here. Keep reading to learn more about our Climate Week plans!
Read more.
