Withdrawing from the UN Climate Negotiations: Cascading Mistakes from the Trump Administration By Rachel Westrate
No one was particularly shocked when one of President Trump’s first acts upon returning to office on January 20, 2025 was to sign an executive order directing the State Department to withdraw from the Paris Agreement on climate change. After all, Trump pulled out of the Agreement during his first term, only for the United States to re-join the Agreement under the leadership of President Joe Biden in 2021. Now, a new January 7, 2026 Presidential Memorandum demands the U.S. withdraw from the parent treaty of the Paris Agreement—the United Nations Framework Convention on Climate Change (UNFCCC)—as well as 30 other United Nations entities and 35 non-U.N. organizations.
Withdrawal from the UNFCCC will make the United States the only U.N. member state that does not participate in the international climate treaty. For those who care about the health of our planet, U.S. foreign relations, or general international order, this move is deeply troubling. It is unsurprising that this Administration would take such drastic measures to prevent the United States from participating in the international climate conversation. But it is also a profoundly un-strategic move by the Trump Administration, given both their keen interest in international energy trends and ongoing domestic litigation against state climate laws.
This blog will provide a brief background on the international climate regime, summarize the legal speculations around the U.S. withdrawal from the UNFCCC, and discuss the implications for Trump’s international and domestic priorities.
Background: the UNFCCC & International Climate Negotiations
The United States was the first industrialized country and the fourth country overall to join the UNFCCC, after ratification by the Senate and signature by Republican President George H.W. Bush. As the first and still the most significant multinational climate treaty, the UNFCCC establishes the framework under which countries cooperate to address climate change. That framework entails an annual Conferences of the Parties (COPs) where UNFCCC member states negotiate “legal instruments” or “protocols” to help achieve the UNFCCC’s goal of stabilizing greenhouse gas concentrations in our atmosphere.
Countries have negotiated and adopted two main instruments under the UNFCCC: the 1997 Kyoto Protocol and the 2015 Paris Agreement. The United States signed the Kyoto Protocol in 1998. But the Senate never ratified that treaty, because it called for binding emissions reductions in developed countries without imposing similar obligations on developing countries (the Byrd-Hagel Resolution expressing the Senate’s distaste for Kyoto passed with a vote of 95 – 0). As soon as it became clear that the U.S., the largest annual emitter of greenhouse gases at the time, would not ratify the Kyoto Protocol, negotiations began anew under the UNFCCC to work toward an agreement that would be more universally accepted.
The result was the Paris Agreement. Paris, unlike Kyoto, does not mandate emission cuts from any country. Instead, it establishes a cooperative framework under which countries work together to limit warming to under 2 degrees Celsius by creating and submitting plans to reduce national greenhouse gas emissions (called Nationally Determined Contributions, or NDCs). Parties to the Paris Agreement must also submit annual reports on their greenhouse gas emissions. Aside from those reporting obligations, though, the Paris Agreement is an entirely voluntary instrument, relying on bottom-up, domestic action within countries to address climate change—an evolution from the top-down, mandatory emissions reductions required under the Kyoto Protocol. 195 member countries to the UNFCCC adopted the Paris Agreement in 2015, and President Obama used his executive authority to ratify the Agreement on behalf of the United States in 2016.
President Trump withdrew from the Paris Agreement upon taking office, with the U.S. withdrawal becoming effective in 2020. The U.S. then rejoined under President Biden in 2021, only to deposit a notice of withdrawal from the Paris Agreement with the Office of the U.N. Secretary General on January 27, 2025, shortly into Trump’s second term. The U.S. withdrawal will become effective one year from that date, on January 27, 2026. (For a full timeline and guide, see NRDC’s Paris Climate Agreement: Everything You Need to Know).
Legal Implications of Withdrawing from the UNFCCC
While a President can unilaterally withdraw from the Paris Agreement (given that President Obama unilaterally entered it in 2016), it is a matter of legal debate whether the same is true of the UNFCCC. During the last Trump Administration, legal scholars built a body of work exploring this question. Professor Harold Koh published a 2018 essay arguing the President does not have the authority to unilaterally terminate or withdraw from any international agreement. Professor Jean Galbraith argued in a law review article that if a President unilaterally withdraws from a Senate-ratified treaty, the action does not negate the Senate’s initial advice and consent, and a future President could unilaterally rejoin the same treaty without seeking Senate re-authorization. But there is no Supreme Court precedent on unilateral withdrawal or rejoining of Senate-ratified treaties, and so the question remains up for debate.
This time around, the climate legal community has been quick to opine on whether or not the President can withdraw from the Framework Convention without consulting Congress and what withdrawal might mean for U.S. participation under a more climate-friendly future administration. Former U.S. climate negotiator Sue Biniaz and Professor Galbraith explained the international and domestic process of withdraw and reiterated their theory of rejoining without additional Senate consent. Carbon Brief collected experts’ thoughts on withdrawal, rejoining, and practical changes to the climate negotiations absent U.S. participation, detailing the legal uncertainty of the move and analogizing to other international organizations the U.S. has left and rejoined. Law Professor Dan Farber suggested that the U.S. may not even need to be a party to the UNFCCC to play a role in the Paris Agreement. The Executive Secretary of the UNFCCC issued a statement on Thursday, January 8th noting that “the doors remain open for the US to reenter in the future”—but what that looks like legally is anyone’s guess.
We have yet to see if any litigation will be filed against the Trump Administration for this latest action—and whether any potential litigation may provide us with a definitive answer.
International Implications
By withdrawing from Paris, the United States will no longer be required to submit an NDC, nor will it submit yearly reports on domestic emissions (although, despite the withdrawal not officially occurring until 2026, the Trump Administration failed to submit the data in 2025). U.S. funding to the international climate organizations has ceased, including the UNFCCC and the Green Climate Fund (GCF).
But the U.S. withdrawal also means it can no longer participate in negotiations as a party and does not have the right to vote, which in turn means the U.S. will no longer have a say on topics that seem central to the Trump Administration’s policy agenda. In recent years, multinational climate negotiations have increasingly seen calls for an international roadmap to phase out fossil fuels, which would jeopardize the Administration’s goal of exporting domestic fossil fuels. The U.S. has already used its influence in other spheres to weaken environmental language coming out of the U.N., and it seems strange the Administration is willing to so easily give up the opportunity to thwart international climate progress.
Pulling out of the UNFCCC also means that future decisions and agreements will not reflect the interests or priorities of the United States—and are likely to be more heavily influenced by other big players. That includes China, which is rapidly expanding its global influence and renewable energy markets, and the European Union, which usually favors a more top-down, regulatory approach to addressing climate change in comparison to U.S.-favored market-based, voluntary approaches (for evidence of the U.S.-EU tension, see recently released State Department papers detailing the lead up to the Paris summit).
But what is bad for the Trump Administration could well be good for people and the planet. The lack of the presence of the United States, and particularly the Trump Administration, could leave room for more innovation and progress in the climate talks, as U.S. positions (in both Republican and Democratic Administrations) against mandatory emissions reductions, climate finance contributions, and phase-out of fossil fuel subsidies have frustrated negotiations in the past. While deep divides remain among countries party to the UNFCCC and the Paris Agreement, the power vacuum left by the U.S. may create an opportunity for new players and alliances to support ideas that would have previously been considered dead on arrival.
The folly of the Trump Administration and the potential for new movement in the climate negotiations, however, are unlikely to outweigh the staggering loss of the U.S. withdrawing from the UNFCCC. A climate process without the largest historical emitter of greenhouse gases, the second largest current emitter of GHGs, and the world’s largest economy can only achieve so much when climate change is a collective action problem. And while the international climate negotiations process will not break down without the participation of the U.S., the country has been a major player for the last thirty years and often a broker of compromise.
Beyond this Administration, if decisions and agreements coming out of the COPs are not reflective of U.S. priorities and political landscape, it may also make it more difficult for the U.S. to rejoin in the future. President Obama was able to unilaterally join the Paris Agreement because domestic legislation and authority already existed to allow the country to comply with obligations under the agreement—and U.S. negotiators worked to design the agreement with this in mind. Even in the final hours of the negotiations over the Paris Agreement, State Department lawyers had to lobby for a one-word change that threatened the U.S.’s ability to support the outcome. Without U.S. input and pressure, it is possible for the negotiations to produce outcomes that even a climate-friendly Administration would be unable to rejoin without action from the Congress.
Domestic Implications: Inconsistencies in Ongoing Litigation
Perhaps especially cofounding is the Trump Administration’s decision to withdraw from the UNFCCC while relying on U.S. membership in the organization to justify ongoing domestic litigation against state climate laws. Both Vermont and New York passed climate superfund acts in 2024, which require payments from entities that emitted large amounts of greenhouse gases in the past several decades to help pay for climate adaptation projects in the states. On May 1, 2025, the United States of America and the United States Environmental Protection Agency filed suit against Vermont and New York, claiming (among other things) that the climate superfund laws are preempted by the federal government’s foreign affairs power.
The basis for the lawsuits overall is fundamentally flawed, given that the climate superfund laws do not regulate greenhouse gas emissions, states have both a right and responsibility to protect their citizens and environment, and both the UNFCCC and Paris Agreement support subnational action. But putting aside the Trump Administration’s mischaracterization of the laws and misunderstanding of national and international law, withdrawing from the UNFCCC fatally undermines their arguments that the federal government’s participation in the UNFCCC is what preempts states from acting on climate.
In its complaint against Vermont, the United States argues that “[b]y adopting the Framework Convention, the federal government undertook to formulate foreign policy” on greenhouse gases. It characterizes Trump’s decision to withdraw from the Paris Agreement as a foreign policy decision because Trump wants to “put the interests of the American people first in negotiating the terms of any future treaty to implement the” UNFCCC. The Vermont Act, the brief claims, “interferes with… the United States’ participation in the” UNFCCC. In a subsequent brief, the Department of Justice also argues that state climate superfund statutes conflict with the 1987 Global Climate Protection Act, in which Congress directed the President to “‘work towards multilateral agreements’ on greenhouse gas emissions.”
By withdrawing from the UNFCCC, the Trump Administration has pulled the rug out from under those arguments. The Administration has ensured that the United States will not be negotiating any future treaty to implement the UNFCCC or to carry out its obligations under the Global Climate Protection Act. By abdicating its role in formulating the American climate policy, the Trump Administration may well have cleared the way for states to fill the void.
The news from January 7th is, without a doubt, a major setback for the international climate negotiations. But it is also, as U.N. climate chief Simon Steill said, a “colossal own goal” for the United States and the Trump Administration in their quest to influence international and domestic climate priorities in the coming years.
Justice and Equity in Community Forestry: An Enigmatic Dogma? By Aayush Gautam[1]
In 1987, the Brutland Commission offered the world a new vision with the report “Our Common Future”: a development that meets present needs without compromising the future.[2] This gave rise to a new domain of developmental approach, the concept of “Sustainable Development”, which gained global prominence in the early 1990s.[3] With this came a wave of participatory natural resource management, an ethos grounded in local empowerment and ecological sustainability. Around the globe, countries began embracing models that placed communities as a frontier of development and environmental stewardship.
Nepal, a readily accepting nation for the global initiatives, rode this global wave with legal acceptance in the forestry sector giving legality to the Community Forestry (CF), which later became one of the most acclaimed environmental governance models in the country.[4] However, community-based forest management in Nepal had already taken root in earlier decades, under state-led programs such as Panchayat Forest and Panchayat Protected Forest under the legal provision of Forest Act, 1961.[5] While these earlier models were framed under the centralized Panchayat governance structure, they offered a glimpse of local involvement in forest care and use.
By the early 1990s, this evolved into a nationwide movement. Community Forests, now legally recognized and supported by formal policies, became one of the most acclaimed environmental governance models in the country. Fast forward to today, over 23,000 Community Forestry User Groups (CFUGs) manage approximately 2.58 million hectares, accounting for more than 36% of Nepal’s forest area.[6]
Community Forests: Beyond the canopy
The journey of CFs is, by many measures, a success story. Did CFs help reestablish depleted forest cover that had been lost in the 1970s and 80s? Yes. Did they support livelihoods and reduce dependency on state-managed resources? Yes. Did they strengthen local relationships and collective action? Yes. Did they inject value into local economies and into the national economy as a whole? Yes. But as in most complex social endeavors, bold “Yes” or “No” answers rarely capture the full picture. There is often a blurry line between the two sides of yes and no.
For example, while community forestry successfully restored forest cover, a critical examination is required: : What is the actual meaning of forest restoration? Is it just the visual recovery of the tree stands and increased forest cover? Or the regeneration of a healthy, functional forest ecosystem? Much of Nepal’s CF’s success has focused on reestablishing lost forest cover, but issues of monoculture plantation, the growing threat of wildfires, biodiversity loss of often ignored flora and fauna cast doubt on the ecological robustness of this restoration. Similarly, CFs were initially established to meet local sustenance needs, especially in Nepal’s mid-hills, where fuelwood was essential for cooking. But has CF governance evolved to meet the changing aspirations of communities whose energy needs, economic goals, and demographic dynamics have shifted? Theat remains an unreached terrain of answered geography.
However, caution to the readers, this article does not aim to glorify the pessimistic views presented to downplay CF’s notable achievements. Romanticizing or vilifying the participatory model misses the nuances of interpretation. The goal of this piece is to reflect honestly upon the scenario, on the dimensions of social justice and equity, which often remain buried beneath the roots of a tall standing forest canopy.
The Musahar Community Forest is located at the confluence of Khairmara and Madiya river in Ward No. 10 of Bardibas Municipality, Mahottari district. With an area of 36 Hectares, it serves as a vital resource for its users, which provides both ecological benefits and livelihood opportunities. During the early 1980s, local communities from Gausala (south of the forest) felled the forest trees for agricultural purposes, starting a feud with the forest authorities. In the early 1990s, the forest was covered with overgrown bushes, which were cleared by the Musahar community and subsequently planted with fruit trees. Mangoes, jackfruit, citrus, and litchi trees were introduced in about 14 hectares of land. “Each of the 37 households planted 32 fruit trees in the forest completing almost 2000 fruit trees plantation in 1996” – says Dev Narayan Yadav and Ramchandra Sada.
The sale of mangoes through contracts brought an annual average income of almost 0.5 million (all financial figures written in Nepali rupees, NRS). The community already have provided assistance of almost 2 million in social and infrastructure development initiatives like roads, electricity, drinking water, and hospitals. “We were providing monthly salary of 49 thousand to four teachers of Musahar and Yadav community in the nearby school” – says one of the members in the meeting of the user groups. The hand-over of the community forest soon became a transformative initiative in enhancing both ecological and social well-being.
Nonetheless, things gradually took an unprecedented turn. Tensions began to rise among and within the community once lucrative income from the mangoes sales became apparent. Initially managed by the marginalized Musahar and Tamang communities, the CF soon faced demand for inclusion from communities like Koiri, Yadav, and Mahato households. These disputes led to divisions among community members, fueled by historical grievances and socio-political dynamics. “Whenever the meetings were held, disputes arose, and after that, forest officials stopped attending the meetings” – says Ram Babu Mahato in the user group meeting.
Internal tensions, coupled with allegations of financial mismanagement, also made Mangoes’ contract inconsistent and on the brink of closure. Total earnings from the sales were overshadowed by the Secretary of the committee, with significant amount left unrecorded and unaccounted for. This exacerbated mistrust among users. Consequently, the financial discrepancy is being watched by the Commission for the Investigation of Abuse of Authority (CIAA), the bank account has been frozen, and the salaries of the teachers have not been paid for five months. The forest’s exemplary transformation to the community-managed resource spectacle devolved into a state of stalemate and governance fiasco.
Reflection and Conclusion
The issue in the Musahar CF is not an isolated case. It is a reflection, sometimes a warning, of deeper structural issues in community forests across Nepal. Power asymmetries, weak institutional safeguards, and selective participation often overshadow the ideals.
One of the female CFUG secretaries in Kavrepalanchowk district of central mid-hill region says, “I’m in the committee just as a mud statue. They tell me to sign a decision or a cheque, so I do. I don’t know what they do or how they do it. They say nothing will happen.” In the name of obligatory representation, it is a symbolic inclusion, a common practice across many CFUGs. We cannot deny that the “pseudo-participation” seen here is not mirrored in countless community-based forest governance, where decisions are made behind the back and marginalized voices are reduced to a mere signatory.
If Nepal’s community forestry model is to thrive ecologically and ethically, it must go beyond the practice of merely planting trees and sharing resources based on legal provisions. It must redistribute power, recognize structural inequalities, and represent all voices fairly, especially those of the marginalized ones. Because in the end, a community forest is more than just a patch of trees. It is a social contract, and its health depends as much on its canopies as on the justice rooted beneath it.
[1] Aayush Gautam is a forestry researcher working at the intersection of forest science, governance, and forest-based enterprise development in Nepal. He holds a Master of Science in Forestry (Gold Medalist) from Tribhuvan University and has a background in applied research, policy analysis, and field-based forest management.
[2]See Our Common Future, Rep. Of the World Comm’n on Env’t and Dev., U.N. Doc. A/42/427 (1987).
[3] . History of SD, Sustainable Development Commission, https://www.sd-commission.org.uk/pages/history_sd.html (last visited Oct. 5, 2025).
[4] Forrest Act, 2049 of 1993; see also G. C. Dhruba Bijaya, et.al., Community Forestry And Livelihood In Nepal: A Review, The Journal of Animal & Plant Sciences (2016), https://www.thejaps.org.pk/docs/v-26-01/01.pdf.
[5] Pramod Ghimire & Uchita Lamichhane, Community Based Forest Management In Nepal: Current Status, Successes and Challenges, Grassroots Journal of Natural Resources (June 20, 2020), https://www.researchgate.net/publication/342501024_Community_Based_Forest_Management_in_Nepal_Current_Status_Successes_and_Challenges.
[6]Nepal’s Community Forest Groups: Incubators of Democracy, Community Conservation (July 2, 2025), https://communityconservation.org/nepals-community-forest-groups-incubators-of-democracy/; see also Hari Krishna Laudari, et.al., Community forestry in a changing context: A perspective from Nepal’s mid-hill, 138 Land Use Policy (Mar. 2024), https://www.sciencedirect.com/science/article/pii/S0264837723004842.
[7] Some assertions are from the Author’s experience during a field visit to the Musahar Community Forest. The field visit was conducted in June 2025 and involved direct observation, participation in user group meetings, and discussions with community forest user group members and local residents. The following account draws on these field interactions and community testimonies.
Can You Dig It? Artificial Pond Construction in Vermont By Dane Whitman
“What I have observed of the pond is no less true in ethics. It is the law of average.”[1]
In 1901, the Harvard Law Review published an article stating, “[a]lthough comparatively little has as yet been written about the law of ponds, the decisions are hopelessly confused.”[2] One could argue that, since then, ponds continue to attract relatively little attention in the field of environmental law. Rather than perform an extensive review of the “law of ponds” (previously attempted by Samuel Warren and Louis Brandeis in the 1889 edition of Harvard Law Review),[3] this blog post will explore a narrower topic: artificial pond construction in Vermont.
Vermont is home to “hundreds of small ponds, many of which provide a great habitat for plants, animals, and people.”[4] Satellite images over Vermont (such as the title image) reveal a landscape sprinkled with countless kidney-bean-shaped pockets of water seemingly unconnected to natural waterways.[5] Are these pools the result of lawless backwoods excavations? Or are backyard ponds evidence of Vermonters exercising their property rights to improve the local ecosystem? An overview of Vermont’s legal landscape suggests that there are both environmental opportunities and considerable risks regarding artificial ponds.
One example of a Vermont homestead utilizing artificial ponds for environmental benefits is Whole Systems Research Farm in the Mad River Valley.[6] The farm’s owner, Ben Falk, excavated a pond that catches rainwater and snowmelt from the upper portions of the property and then irrigates a series of terraced rice paddies.[7] The pond serves as a “bathroom” for his domestic ducks, and therefore the pond water irrigating the rice paddies is “rich in nutrients.”[8] The two small paddies are scaled for subsistence farming, producing enough rice “to satisfy the grain needs of a family of four.”[9]
Amy Siedl, a biologist and lecturer at the University of Vermont, has cited Falk’s farm as a model for climate adaptation.[10] Seidl has suggested that, given the Northeast’s increasing precipitation from climate change, artificial pond systems such as Falk’s are well-suited to capture rain from these events.[11] For example, Falk’s rice crop “thrives” during historic rain events, such as Hurricane Irene, whereas many of Vermont’s corn farmers have struggled with increasingly wet soil conditions.[12]
The remarkable potential of these artificial ponds begs the question: are they legal? Most prudent property owners might be intimidated by the prospect of renting an excavator and breaking ground without performing due diligence. Fortunately, Vermont regulators provide guidance (often accompanied by disclaimers of liability) for property owners to dig ponds that are structurally safe and environmentally sound.
To some extent, Vermont law supports property owners to construct artificial ponds. For example, Vermont’s statutes expressly allow property owners to stock and harvest fish from “artificial ponds.”[13] This requires, however, that “the sources of water supply for such pond are entirely upon his or her premises or that fish do not have access to such pond from waters not under his or her control . . . .”[14] In essence, this statute facilitates backyard fish farming, also known as “aquaculture.”[15]
Vermont’s administrative agencies also provide ample guidance for property owners who wish to excavate and manage artificial ponds on their property. Some of this guidance is practical, ranging from siting considerations; water supply needs; various depth requirements for fish versus waterfowl; which kinds of ponds require engineering consultation; and even a directory of excavation contractors.[16] The State also points potential pond owners to information regarding the best fish to stock, a list of native plants to prevent erosion, methods to maintain water quality for swimming, and how to optimize bird watching potential.[17]
While state resources appear to enable (if not encourage) pond construction, these materials also carry a strong dose of caution. Any pond “capable of impounding more than 500,000 cubic feet of water” will essentially constitute a dam requiring approval by the Department of Environmental Conservation.[18] For some perspective, a person could cover an acre of land with an 11-foot deep pond and still be shy of 500,000 cubic feet of water.[19] The Department explains, however, that even dams for small backyard ponds “are significant structures that can have major public safety and environmental implications.”[20] A variety of local, state, and federal laws can affect dam ownership, and more information can be found on Vermont’s Dam Safety Program website.[21]
Based on the specifics of a project, a suite of other regulatory entitles may also have a stake in your pond construction. Any construction that impacts a stream may require a stream alteration permit with Vermont’s River Management Program.[22] Any pond work that comes within fifty feet of a wetland may require a permit through Vermont’s Wetlands Program.[23] Other considerations include rare, threatened, and endangered species; fish and wildlife; local zoning bylaws; Vermont’s Act 250; historic or archaeological significance; and Vermont’s water quality standards.[24]
Of course, a great variety of tort and property law claims could also involve a pond. One illustrative case dates back to 1909, when a plaintiff successfully argued that mosquitos breeding behind a newly constructed dam caused him and his family to contract malaria.[25] While this was a Georgia case, the court’s words of wisdom apply to any Vermonter hoping to stay a good neighbor while constructing a new pond:
[I]n the construction of dams and in the backing of water they must choose their sites with due regard to the surroundings. They are not authorized to maintain stagnant ponds, polluted pools of water, or places in which mosquitoes breed, in unusual numbers to the endangering of the health of surrounding communities.[26]
Artificial ponds may provide an immediate opportunity for Vermont’s property owners to enhance biodiversity, climate resiliency, and land productivity on a hyper-local scale. Property owners should, however, perform due diligence to mitigate any potential environmental, public health, or safety issues associated with pond construction and maintenance. Nonetheless, it may be well worth the effort to hear choruses of frogs singing through the night; to watch birds inspecting the shoreline; or to ponder over schools of fish—all thriving because somebody dug a hole in the right place.
Lithium Valley Project Dead in the Water? By Jules Mulé
On the eastern border of California and Mexico lies the Sonoran desert’s hidden gem: the Salton Sea, the largest body of water in California.[1] It was formed in 1905 when the Colorado River flooded an irrigation canal servicing Imperial County farming communities.[2] From afar, the lake looks like an idyllic desert oasis. Up close, the Salton Sea is more akin to a harbinger of death. After decades of evaporation, the shrinking lake has bombarded residents with exposed pollutants from agricultural runoff that become airborne in toxic dust storms.[3] Constant exposure to these pollutants contributes to exceptionally poor air quality[4] and much higher rates of asthma than the national average.[5] Locals also face high poverty[6] and unemployment rates,[7] largely due to conservative-led immigration policy prioritizing border patrol.[8] But, there is hope for the residents of Imperial County, now known as the Lithium Valley.
The Salton Sea’s surrounding basin boasts geographical features that make it ideal for both geothermal energy production and direct lithium extraction.[9] Geothermal energy and lithium extraction are important tools for combatting climate change. Geothermal is a carbon-free renewable resource, and lithium is crucial for electrification because it is used in the large batteries found in electric vehicles and energy storage systems.[10] The most common method of lithium production is to evaporate large pools of brine, which involves significant freshwater consumption and pollution.[11] However, the geothermal energy plants around the Salton Sea present a unique opportunity for a cleaner method of lithium production. Geothermal plants use mineral-rich brine pumped up from beneath the Earth’s surface to generate electricity. This brine can be co-opted for “direct lithium extraction” before returning to the geothermal plant for subsurface reinjection.[12] Direct lithium extraction is currently the cleanest way to source lithium, as it extracts the lithium directly from the brine with minimal water loss.[13]
Only one domestic lithium mine is currently operational, so the United States is significantly dependent on the lithium from evaporation pools in Argentina and Chile.[14] Increasing domestic production would serve as an economic benefit, a supply security measure, and a step towards combatting climate change. These factors have led to an unprecedented amount of support from the federal,[15] state,[16] and local[17] governments for lithium production around the Salton Sea. The current administration also remains supportive of geothermal energy despite the largely negative treatment of decarbonization and renewable energy development.[18]
Controlled Thermal Resources (“CTR”) is determined to capitalize on the opportunity with the Hell’s Kitchen Project, a 50MW geothermal energy facility with large-scale direct lithium extraction facilities.[19] Hell’s Kitchen is estimated to generate 25,000 metric tons of lithium each year.[20] That much lithium would account for more than 10% of the global production in 2024.[21] However, there is substantial concern among community groups that local resident benefits are being overlooked and underprioritized.[22] Environmentalists are also concerned that risks associated with direct lithium extraction—especially water consumption and air pollution—are being ignored.[23] Motivated by these concerns, the Comité Cívico Del Valle (“CCV”) filed suit against CTR in the Imperial County Superior Court on March 13th, 2024.[24] The court dismissed the case in favor of CTR,[25] but CCV filed an appeal with California’s Fourth Appellate District nearly a year later.[26] In their brief, CCV claims that CTR had not conducted the environmental impact report properly, that they failed to account for the accurate scope of water use, and that they did not consult with local tribal leaders pursuant to California law.[27] CTR has until October 13th of this year to respond.
The lawsuit highlights a significant concern at the heart of the global climate crisis: how do we fight climate change without compromising on environmental justice? Decarbonization and electrification should counteract, rather than utilize, harmful environmental practices. Lithium batteries in electric vehicles and energy storage systems are crucial for decarbonization and electrification.[28] Accordingly, global production and consumption is projected to increase over 300% by 2030.[29] But importing nearly all of the lithium we’d need for these industries, as we do now, keeps the country dependent on fluctuating global supply generated by environmentally harmful traditional mining practices.
Domestic lithium production around the Salton Sea via direct extraction presents the unique opportunity to simultaneously increase supply security and promote a safer lithium extraction method. Domestic lithium production can also increase renewable energy development in the form of geothermal energy. However, there is equal opportunity to directly harm the Lithium Valley residents if environmental guidelines and community voices are ignored. To be done properly, mining operations in the Lithium Valley should be to the benefit of the local residents, not at their expense.
[5] Shohreh F. Farzan et al., Assessment of Respiratory Health Symptoms and Asthma in Children near a Drying Saline Lake, Int’l J. Env’t Rsch. and Pub. Health 1, 1 (2019).
[29] IEA, Global Critical Minerals Outlook 124–35 (2024).
Tribal Environmental Sovereignty in Oklahoma: Where Did It Come from and Where Did It Go? By Lauren Burden
What does environmental regulation look like for Tribes in Oklahoma today? To answer that question, an understanding of the complicated history of Tribal sovereignty in Oklahoma is essential.
There are three pillars of Tribal sovereignty: (1) inherent sovereignty, (2) delegated sovereignty, and (3) negotiated sovereignty.[1] Negotiated sovereignty comes from treaties and US Supreme Court decisions interpreting those treaties, such as Worcester v. Georgia and Cherokee Nation v. Georgia.[2] Both of these landmark cases confirmed tribal sovereignty by limiting state reach into tribal affairs and officially recognizing tribes as nations.[3] Inherent sovereignty, however, differs from negotiated sovereignty because it is rooted in tribes recognizing themselves as sovereign through self-governance, like they did before colonization.[4] Although tribes still practice inherent sovereignty today[5], tribal governance within reservations and tribal boundaries is often limited, especially regarding non-natives in civil cases.[6] Delegated sovereignty, on the other hand, seems to allow tribes a little more leeway.
Tribes get delegated sovereignty from Congress via the Commerce Clause.[7] The Clause states, “Congress shall have power . . . to regulate commerce with foreign Nations . . . and with the Indian Tribes,”[8] implying Indian Tribes are like foreign Nations. One example of delegated sovereignty in Oklahoma is the Environmental Protection Agency (EPA) delegating to qualifying Tribes the ability to create and manage environmental regulatory programs in Indian country.[9] Specific examples include the Quapaw Tribe of Indians (regulating air quality), the Pawnee Nation of Oklahoma (establishing water quality standards), and the Cherokee Nation (targeting lead abatement).[10] This delegation of sovereign authority, while still technically overseen by the EPA,[11] promotes tribal sovereignty through environmental regulatory self-governance.
Similar to Tribes, Oklahoma also receives authority from the EPA to regulate environmental programs over lands under EPA’s authority (with some oversight, of course).[12] Before McGirt v. Oklahoma, this typically meant tribal lands within Indian country were excluded from state regulation.[13] And since only some Tribes had delegated sovereignty to regulate environmental programs within Indian country, the EPA had environmental authority over most tribal lands before October 2020.[14] This all changed after McGirt.
McGirt v. Oklahoma is another landmark case regarding tribal sovereignty. Specifically, the Supreme Court held in McGirt that the Creek Nation’s reservation remained intact and that only Congress could disestablish it (which it had not).[15] After this ruling, Oklahoma State courts confirmed that other tribal reservations also remained intact.[16] While one would think this is great news for Tribal Nations in Oklahoma, there is a catch. The catch, also known as the “Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users” (“SAFETEA Act”), is an appropriations bill for transit programs and highway safety.[17] This unsuspecting bill has a provision, known as the midnight rider, that keeps tribes in Oklahoma from regulating their own environmental programs without making a deal with the State first.[18] And the State has used this to its advantage.
After McGirt, the State applied for EPA approval under the SAFETEA Act to regulate environmental programs over lands that were previously State regulated but are now considered Indian country.[19] Under the midnight rider, once the State requests this authority, the Administrator (here, the EPA) must grant approval.[20] The EPA approved it in October 2020.[21] But that’s not the end of this story.
In January 2021, President Biden issued an executive order requiring agencies to review the last four years’ actions and regulations to see if they conflict with any national objectives.[22] After review and consultation with Tribes,[23] EPA issued notice of a proposal to withdraw and reconsider its 2020 decision.[24] In January 2025, the EPA withdrew its 2020 decision and replaced it with the new 2025 decision, detailing its decision in a letter to Oklahoma’s Governor Stitt.[25] This new decision conditions state environmental regulatory approval on Tribal consultation through a specific engagement process,[26] and highly encourages individual State-Tribal agreements to better promote tribal sovereignty.[27] While Governor Stitt considers this an overreach of power,[28] tribal nations are ready to work with the State in protecting their valuable natural resources.[29]
Now we’ve seen where tribal environmental sovereignty in Oklahoma comes from and where it has been, but where will it go from here? That’s a question that only the State and the Tribes can answer. I just hope it’s someplace great.
[4]Id.; See also Kimberley Chen, Comment, Toward Tribal Sovereignty: Environmental Regulation in Oklahoma After McGirt, 121 Colum. L. Rev. Forum (2021).
[22]Id.; see also Executive Order on Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis, 86 Fed. Reg. 7037 (Jan. 25, 2021).
NEPA Without CEQ: Environmental Review Under Trump and Seven County Written by Benjamin Behimer and Christophe Courchesne
Introduction
Long a cornerstone of federal environmental law, the National Environmental Policy Act of 1969 (NEPA) has been the target of a series of judicial and executive attacks in 2025. Below, we provide a brief description and history of NEPA, including legislative history, before examining how the 2025 rescission of CEQ’s government-wide regulations and the Supreme Court’s decision in Seven County reshape the practical future of NEPA litigation.
I. NEPA and Congressional Intent
NEPA passed with overwhelming support in both chambers of Congress in 1969 and was signed into law by President Richard Nixon on January 1, 1970.[1] Congress set out NEPA’s purpose, inter alia, in Section 101:
[I]t is the continuing policy of the Federal Government . . . to use all practicable means and measures . . . to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans.[2]
Congress also recognized that there had been no uniform national policy or guidance for managing the environment and its natural resources.[3] It indicated that one purpose of NEPA was to provide this policy.[4]
Section 102 implemented “action-forcing procedures” to ensure that the policy goals in Section 101 were met.[5] Congress directed that all other federal laws should be interpreted and applied in accordance with Section 102 “to the fullest extent possible.”[6] It also required all agencies of the Federal Government to prepare a “detailed statement,” i.e., an environmental impact statement (EIS), for all “major Federal [sic] actions significantly affecting the quality of the human environment.”[7] The House’s Conference Report provided a succinct summary of the elements that were to be considered in an EIS:
[T]he environmental impact of the proposed action, any adverse environmental effects which can not [sic] be avoided should the proposal be adopted, alternatives to the proposed action, the relationship between the short-term uses of the environment and the maintenance and enhancement of long-term productivity, and any irreversible and irretrievable commitments of resources which would be involved.[8]
In practice, agencies do not undertake EISs for most projects. If the agency responsible for drafting the EIS is uncertain whether the major federal action[9] will significantly affect the environment, it will prepare an environmental assessment (EA).[10] An EA has less stringent requirements than an EIS and is significantly shorter.[11] A common conclusion of an EA, a finding of no significant impact (FONSI), is the endpoint of the process.[12] Depending on whether the agency finds that its action will have significant environmental effects, it will prepare either a FONSI or an EIS.[13] If the agency determines that there will be no significant environmental effects, it will issue a FONSI that explains its reasoning for finding no significant impacts.[14] If it finds that the project will have significant effects, it will prepare a full EIS.[15]
II. “Purely Procedural”
In the early years following NEPA’s enactment, the U.S. Court of Appeals for the D.C. Circuit established that NEPA is primarily a procedural statute.[16] Although the court did not completely foreclose the possibility that a court could reverse an agency’s substantive decision, there has never been a successful challenge of an agency’s substantive decision under NEPA.[17] In other words, NEPA requires agencies to study the environmental consequences of their proposals through a prescribed process that includes substantial public involvement but does not dictate what agencies ultimately do. The statute reflects Congress’s insistence that agencies carefully consider the environmental values articulated in the law, without imposing those values on every decision.
In May 2025, the Supreme Court issued its most recent NEPA decision, Seven County Infrastructure Coalition v. Eagle County, confirming that NEPA is “purely procedural” and “‘does not mandate particular results, but simply describes the necessary process’ for an agency’s environmental review of a project.”[18] The Court further stated that in determining whether an “agency action was arbitrary and capricious[19] due to a deficiency in an EIS,” the reviewing court may only review whether “the agency has addressed environmental consequences and feasible alternatives as to the relevant project”—not whether the agency’s decision to move forward with the project was the “correct” one.[20]Seven County’s other key holdings are discussed below.[21]
III. The Council on Environmental Quality
NEPA Section 202 established the Council on Environmental Quality (CEQ).[22] The CEQ’s statutory purpose is to advise the president by compiling information to help determine whether NEPA’s policy goals are being met and to recommend national policies that further NEPA’s goals, as set out in Section 101.[23] Notably, NEPA was not the direct source of CEQ’s authority to create and enact NEPA regulations. Instead, CEQ’s authority to create NEPA regulations has historically been grounded in an executive order issued by President Jimmy Carter in 1977.[24] Pursuant to Carter’s executive order, CEQ promulgated final NEPA implementing regulations on November 29, 1978, to “accomplish three principal aims: to reduce paperwork, to reduce delays, and to produce better decisions.”[25]
Aside from technical changes and an amendment to one provision in 1986, CEQ’s NEPA implementing regulations remained unchanged for 40 years.[26] President Trump broke this streak in 2017 when he issued an executive order directing CEQ to identify and propose changes to the regulations.[27] CEQ proposed regulations and, after notice and comment, these updated regulations were adopted in 2020.[28] These changes were reversed shortly thereafter under President Biden in two phases—the first in 2022,[29] and the second in 2024.[30] In the background sections of both the 2022 and 2024 CEQ final rules, CEQ emphasized the important role its regulations have played in realizing NEPA’s purposes:
[T]he NEPA regulations reflected CEQ’s interpretation of the statutory text and Congressional intent, expertise developed through issuing and revising the CEQ guidelines and advising Federal agencies on their implementation of NEPA, initial interpretations of the courts, and Federal agency experience implementing NEPA. The 1978 regulations reflected the fundamental principles of informed and science-based decision making, transparency, and public engagement Congress established in NEPA.[31]
All seemed well again until, in 2024, a panel of the D.C. Circuit held in Marin Audubon, sua sponte, that all CEQ NEPA regulations were ultra vires.[32] Without engaging with the nearly half-century of experience of the regulations or receiving briefing from the parties, the court’s reasoning was simple and superficial: under separation-of-powers principles, the executive cannot create laws through an executive order.[33] In other words, because CEQ’s rulemaking authority stemmed from an executive order rather than legislation, CEQ’s regulations are not legally enforceable. Marin Audubon was the perfect opening for President Trump to take CEQ’s regulations off the books.
IV. Executive Order 14154 and the Rescission of CEQ’s NEPA Regulations
On January 20, 2025, President Trump issued Executive Order 14154: Unleashing American Energy.[34] A lengthy read, the Order begins by setting out background and policy goals: namely, that the U.S. is rich in natural resources and that it is the policy of the U.S. to remove as many regulations as possible to extract those resources.[35] Specifically, Trump ordered an “immediate review” of all agency actions that might impose an “undue burden” on domestic energy resource development.[36] He revoked Carter’s executive order authorizing CEQ to issue NEPA regulations and directed the CEQ Chairman to propose rescinding CEQ’s NEPA regulations and to provide “guidance on implementing the National Environmental Policy Act.”[37]
CEQ issued an interim final rule on February 25, 2025, rescinding its NEPA regulations and requesting public comments.[38] It delayed the rule’s implementation until April 11, 2025.[39] Although CEQ’s authority for issuing an interim final rule under the APA’s “good cause” exemption was certainly questionable under the circumstances, it was ultimately not challenged, likely due to the D.C. Circuit’s determination that CEQ’s NEPA regulations were ultra vires.[40]
Despite CEQ’s rescission of its NEPA regulations, there is still binding and nonbinding authority that agencies and NEPA practitioners can rely on. The first place to look is NEPA itself. Caselaw and binding agency-specific NEPA regulations (i.e., agency rules that do not constitute nonbinding guidance) are also applicable. Agency regulations themselves are now also in transition, as agencies work to implement CEQ’s directive to modify their rules to expedite permitting;[41] some agencies have moved to rescind their own procedures altogether.[42] Regarding nonbinding guidance, CEQ published a memorandum on September 29, 2025, in which it recommended that agencies voluntarily rely on its rescinded NEPA regulations.[43] It also discussed and urged agencies to keep in mind the Supreme Court’s decision in Seven County, which it correctly described as a “landmark decision.”[44]
V. The Supreme Court’s Seven County Decision: Deference
In Seven County, the Court reversed the U.S. Court of Appeals for the D.C. Circuit’s holding that the U. S. Surface Transportation Board’s EIS—which considered the environmental effects of an 88-mile railroad line construction project to connect the oil-rich Uinta Basin to a national rail network—was inadequate.[45] The Court’s reasoning was twofold: first, the D.C. Circuit “did not afford the Board the substantial judicial deference” that NEPA requires;[46] second, contrary to the D.C. Circuit’s holding, NEPA did not require the Board to address the upstream or downstream environmental effects of the project.[47]
Regarding the “substantial judicial deference” that NEPA requires, the Court held that NEPA is “purely procedural,”[48] and that “[t]he bedrock principle of judicial review in NEPA cases can be stated in a word: Deference.”[49] The Court reasoned that agencies, not courts, should “determine whether and to what extent to prepare an EIS . . . ” because agencies better understand the relevant facts of projects under their authority.[50] The Court further emphasized that courts should defer to agencies “so long as [the agency’s decision] fall[s] within a broad zone of reasonableness.”[51]
Regarding the Court’s holding that agencies need not consider the upstream or downstream environmental effects of the project, the Court stated that substantial deference should also be afforded to agencies regarding the scope of the environmental effects to be addressed.[52] In Seven County, the Board determined in its EIS that the possible upstream environmental effects of building the rail line—namely, a potential increase in oil drilling in the Uinta Basin—fell outside the scope of its EIS because the Board would not have authority over potential future oil drilling projects in the Basin, and any environmental effects from future drilling projects were speculative and attenuated from the rail line project.[53] The Board similarly reasoned that the possible downstream environmental effects of the project—namely, that oil from the Uinta Basin would be transported to refineries elsewhere in the U.S.—fell outside the scope of its EIS because the Board would not have authority to regulate the oil refining process, and it would be difficult to identify which refineries to analyze in the EIS.[54]
The Court held that the Board’s decision not to analyze the upstream or downstream effects of the rail line project should have been afforded substantial deference, and that “when the effects of an agency action arise from a separate project—for example, a possible future project or one that is geographically distinct from the project at hand—NEPA does not require the agency to evaluate the effects of that separate project.”[55] Ultimately, the Court’s holding that agencies need not analyze the environmental effects of projects separate in time or place from the current project relied on the reasoning that such projects break the proximate chain of causation between the environmental effects of such projects and the project under review.[56]
The Court emphasized that through this decision, it was making a “course correction”[57] to bring what it deemed “overly intrusive (and unpredictable)” judicial review in NEPA cases back to NEPA’s statutory language.[58] In this regard, Seven County—empowering agencies to disregard NEPA’s statutory values—is in arguable contradiction with the Court’s recent decisions scaling back agency authority.[59] In describing the required level of judicial deference to agency decision making, the Court quoted Baltimore Gas: “[b]lack-letter administrative law instructs that when an agency makes those kinds of speculative assessments or predictive or scientific judgments, and decides what qualifies as significant or feasible or the like, a reviewing court must be at its ‘most deferential.’”[60] But what was the Court referring to when it wrote “those kinds”?
By “those kinds of speculative assessments or predictive or scientific judgments,” the Court was attempting to draw a broad category of agency decisions that, if speculative, predictive, or scientific, should be deferred to. However, the Court misapplied the language from Baltimore Gas. The Court in Baltimore Gas was referring specifically to situations in which the agency is making decisions at the frontiers of science[61]: “a reviewing court must remember that the Commission is making predictions, within its area of special expertise, at the frontiers of science. When examining this kind of scientific determination, as opposed to simple findings of fact, a reviewing court must generally be at its most deferential.”[62]
Despite its holding that NEPA’s bedrock principle is deference, the Seven County decision failed to correctly distinguish between agency decisions that are made at the frontiers of science—such as the Nuclear Regulatory Commission’s decision regarding long-term nuclear waste storage in Baltimore Gas[63]—from those decisions that are more common or more easily understood. Whether courts will be sympathetic to this distinction remains to be seen.
What’s Next for NEPA?
NEPA was one of the first comprehensive federal environmental statutes, in which Congress recognized that “each person has a responsibility to contribute to the preservation and enhancement of the environment.”[64] Although NEPA is “purely procedural,”[65] it was enacted with the hope that, by following NEPA’s required procedures, agencies would consider the significant environmental effects of their actions.[66] That aspiration has never been more under threat, and the statute’s roles as a sentinel and a bulwark against environmental degradation will depend on how advocates, agencies, and courts navigate the coming years of disputes in the new world of NEPA implementation under Trump and Seven County.
Author Bio: Ben Behimer is the Senior Managing Editor of the Vermont Law Review for Volume 50 at Vermont Law and Graduate School. His interests focus on environmental and energy law, and he wrote this piece drawing on his work with Vermont Law and Graduate School’s Environmental Advocacy Clinic, where he has worked on NEPA-related litigation. He thanks Professor Christophe Courchesne for his guidance and feedback on this piece.
[2] 42 U.S.C. § 4331(a) (emphasis added). Section 101 also lists more specific policy goals, such as assuring a safe and healthful environment for all Americans and recognizing that “each person has a responsibility to contribute to the preservation and enhancement of the environment.” Id. § 4331(b)(2), (c).
[9] The phrase “major federal actions” has been construed broadly, such that it is easier to describe what does not constitute a major federal action than to describe what does: “[m]ajor federal actions do not include nonfederal actions with ‘no or minimal federal funding,’ federally funded actions where the agency lacks oversight or control over the subsequent use of the funds, or other circumstances where the federal agency ‘does not exercise sufficient control’ over the outcome of the project.” Kristen Hite & Heather McPherron, Cong. Rsch. Serv., IF12560, National Environmental Policy Act: An Overview 1 (2025).
[16] Calvert Cliffs’ Coordinating Comm., Inc. v. U. S. Atomic Energy Comm’n, 449 F.2d 1109, 1114 (D.C. Cir. 1971).
[17]Id. at 1115 (stating that courts “probably” could not reverse a substantive decision on the merits).
[18] Seven Cnty. Infrastructure Coal. v. Eagle Cnty., Colorado, 145 S. Ct. 1497, 1510 (2025) (quoting Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989)).
[19] NEPA challenges are typically brought under section 706 of the Administrative Procedure Act because NEPA itself does create a cause of action. Eli Dourado, Much More Than You Ever Wanted to Know About NEPA, The Ctr. for Growth & Opportunity (Oct. 20, 2022), https://www.thecgo.org/benchmark/much-more-than-you-ever-wanted-to-know-about-nepa/. APA § 706 requires that a “reviewing court shall . . . hold unlawful and set aside agency action, findings, and conclusions found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A).
[40] Marin Audubon Soc’y v. Fed. Aviation Admin., 121 F.4th 902, 908 (D.C. Cir. 2024). The APA allows agencies to dispense with “notice and public procedure” if it determines them to be “impracticable, unnecessary, or contrary to the public interest.” 5 U.S.C. § 553(b)(B). CEQ stated in its interim final rule that “the need to meet the deadlines in E.O. 14154 and to avoid agency confusion given the recent vacatur of CEQ’s 2024 Rule” made notice and comment impracticable and unnecessary. Removal of National Environmental Policy Act Implementing Regulations, 90 Fed. Reg. 10610, 10614 (Feb. 25, 2025). It is well established in administrative law that the need to meet a deadline cannot, in itself, satisfy the good cause exemption. United States v. Gould, 568 F.3d 459, 480 (4th Cir. 2009) (“strict congressionally imposed deadlines, without more, by no means warrant invocation of the good cause exception”). Additionally, CEQ’s reasoning that “agency confusion” renders notice and comment unnecessary would be unlikely to satisfy the good cause exemption. United States v. Valverde, 628 F.3d 1159, 1166 (9th Cir. 2010) (“If ‘good cause’ could be satisfied by an Agency’s assertion that ‘normal procedures were not followed because of the need to provide immediate guidance and information[,] . . . then an exception to the notice requirement would be created that would swallow the rule’”) (quoting Zhang v. Slattery, 55 F.3d 732, 746 (2d Cir. 1995)).
[41] Council on Env’t Quality, Exec. Off. of the President, Memorandum for Heads of Federal Departments and Agencies, Implementation of the National Environmental Policy Act 1 (Feb. 19, 2025).
[42] For example, the USDA and DoD rescinded most NEPA regulations of the agencies under their purview in favor of more general, department-wide regulations. Federal Agencies Roll Out New NEPA Regulations, Greenberg Traurig (July 10, 2025), https://www.gtlaw.com/en/insights/2025/7/federal-agencies-roll-out-new-nepa-regulations; National Environmental Policy Act, 90 Fed. Reg. 29632, 29632 (July 3, 2025) (publishing an interim final rule and request for comments rescinding USDA’s NEPA regulations); Department of Defense Implementation of the National Environmental Policy Act, 90 Fed. Reg. 27857, 27857 (June 30, 2025) (providing notice that the Army, Navy, and Air Force are rescinding their NEPA regulations). Other agencies have taken different approaches; for instance, the DoI rescinded most of its NEPA regulations, but stated in its interim final rule that it would maintain most of its NEPA procedures in a Handbook separate from the Federal Register. Brandon Tuck et al., The New NEPA: Federal Agencies Overhaul Procedures for Environmental Reviews, Vinson & Elkins (July 11, 2025), https://www.velaw.com/insights/the-new-nepa-federal-agencies-overhaul-procedures-for-environmental-reviews/; National Environmental Policy Act Implementing Regulations, 90 Fed. Reg. 29498, 29498 (July 3, 2025).
[43] Council on Env’t Quality, Exec. Off. of the President, Memorandum for Heads of Federal Departments and Agencies, Implementation of the National Environmental Policy Act 3 (Sept. 29, 2025).
[54]Id. The Court stated that the identity of refineries would depend on the refineries’ ability and willingness to receive oil from the Uinta Basin. Id. at 1509.
[59] Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2273 (2024) (“Courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority . . . . ”).
[60]Seven Cnty., 145 S. Ct. at 1512 (quoting Balt. Gas & Elec. Co. v. NRDC, 462 U.S. 87, 103 (1983)).
[66] Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989) (NEPA “ensures that the agency, in reaching its decision, will have available, and will carefully consider, detailed information concerning significant environmental impacts . . . [and] ensures that important effects will not be overlooked or underestimated only to be discovered after resources have been committed or the die otherwise cast.”).
The Night the Lights Will Go Out in Georgia: Regulatory Action Is Needed to Protect Communities From Footing the Bill of Data Centers’ Energy Demands Written by Cassidy McMann and Dr. Guanchi Zhang
Data centers are proliferating across the country, fueled primarily by the recent Artificial Intelligence (AI) boom. Georgia has emerged as the fastest-growing hub for data center development. Although advocates for data centers tout benefits, such as tax revenue and jobs, data centers come with serious tradeoffs, like high energy demand. Data centers strain the electric grid, necessitating utility companies to build new infrastructure necessary to meet the surging demand. However, the cost of doing so is often passed onto residential consumers. Communities in Georgia are currently facing this issue. Georgia serves as an example of the importance of being cautious and mindful of data center development to protect residents against the economic burdens imposed by data centers. Regulators in Georgia, and in other states, need to take action now because it is not a matter of if a data center comes to your community, but when.
Georgia’s Data Center Industry
Data centers enable many modern digital services, such as cloud computing, online transactions, streaming, and AI applications.[1] The largest of data centers can contain 5,000 or more computer servers to support these technological services.[2] However, these servers take up large swaths of space; the size of a data center can range anywhere from 20,000 to over a million square feet, ranging from mid-sized to hyperscale.[3] Currently, there is between 4,000 to 6,000 data centers in the U.S.[4] In Georgia, the exact number also varies, but 97 data centers have been confirmed.[5] Georgia’s data center industry is booming, with data center construction increasing in Metro Atlanta by 76% in just the past year.[6] Data center developers are attracted to Georgia because it has two of the biggest fiber network routes in the nation along with a reliable grid.[7] The state’s lucrative tax breaks also attract tech companies looking to build data centers. Georgia’s sales and use tax exemption is expected to waive about $296 million in tax revenue.[8] Meanwhile, some local governments approved “hundreds of millions in property tax savings” to entice developers earlier this year.[9] For example, Fulton County’s Development Authority approved a $75 million tax break over ten years for Microsoft’s proposed data center campus in Union City.[10] Data center opponents question the necessity of such tax breaks considering the tech companies receiving them already rake in millions, or even billions, of dollars in revenue each year.[11] Microsoft alone earned “$212 billion in sales revenue and [had] a net income of $72.4 billion” for 2023.[12]
Data Centers’ Energy Demand
Data centers’ servers need electricity to operate and cooling systems to prevent overheating.[13] AI especially demands copious amounts of electricity because “advanced machine learning models require massive computational power for training and inference.”[14] For example, a ChatGPT search uses ten times the amount of energy than a Google search request.[15] In 2023, data centers accounted for more than 4% of U.S. electricity, and estimates suggest that number could increase to 12% by 2028.[16] Georgia is no different. In late 2023, to meet the increasing energy demand stemming from data centers, Georgia Power, the state’s largest utility,[17] “filed an updated Integrated Resource Plan (IRP), which projected a 6,600 megawatt (MW) increase in annual load demand by 2030.”[18] To compare, Georgia Power’s request to the state’s Public Service Commission (PSC) to add capacity to the grid was a mere 400 MW in 2022.[19] This sharp jump in load demand demonstrates just how quickly data centers are popping up in Georgia and how they are already impacting the state’s electricity needs.
Georgia Power’s request rose even higher in 2025 when the utility giant requested the PSC “to add 10,000 megawatts to its power generation fleet in the next five years.”[20] However, the PSC shared that bills for residential customers could go up by $20 or more if Georgia Power’s request is approved.[21] Evidence shows that Georgia Power’s “aggressive forecasts have [previously] overestimated electricity demand from data centers,” so the utility could be overbuilding for electricity that is not needed.[22] The PSC can act as an important check on utility companies like Georgia Power by deciding what kind of electricity a company puts on the grid and who pays for it.[23] For example, this past summer the regulatory body voted to freeze Georgia Power’s base rates through 2028.[24] The PSC will either approve or deny Georgia Power’s robust buildout by the end of 2025.[25]
Georgians’ electricity bills are already high and have been rising.[26] Between 2023 and 2025 the PSC granted six rate hikes for Georgia Power customers, causing the average residential bill to rise by $43 per month, or $516 per year.[27] Electricity use by data centers is significantly higher than previously expected and is a “key driver for near-term regional load growth.”[28] Data centers’ high energy demand strain the electric grid, in turn forcing utilities to build additional infrastructure.[29] These costly infrastructure upgrades are passed onto ratepayers, including residential customers.[30] Moreover, data centers encourage fossil fuel plants to remain open. For example, Mississippi Power’s Plant Daniel was “scheduled to retire its coal units in 2027,” until Georgia Power decided to purchased 750 MW from the plant.[31] In Georgia, Plant Scherer, a coal power plant owned by Georgia Power, was originally set to close in 2028.[32] However, the plant is now remaining open indefinitely to help support the increasing energy demand from data centers.[33] Furthermore, Georgia Power wants almost 60% of its requested 10,000 MW “to come from new or existing natural gas plants.”[34] Research shows that electrical load growth from data centers could “induce more near-term CO2 emissions” due to a reliance on existing coal- and gas-fired plants.[35]
Georgia’s Current Policy Framework
Data centers’ attraction to Georgia can be tied back to a 2018 law that created a sales tax break for equipment, “enabled a tax credit for job creation, and created a local property tax abatement.”[36] In 2024, the Georgia legislature passed a bill that would “suspend the exemptions,” but Governor Brian Kemp vetoed the bill, citing how it would “ ‘undermine investments’ ” and “ ‘inhibit infrastructure and job development.’ ”[37] A bill that would require data centers to share where it is going to be built, its estimated water and electricity use, and estimated sound level in order to receive state tax incentives also failed this year.[38] However, Georgia does require data centers to “submit an annual report detailing financial data such as job creation, payroll, and tax-deductible investments;” they are not required to report energy demands or use.[39] In November, the Georgia Department of Community Affairs (DCA) adopted new rules that require proposals for data centers be subject to state review.[40] The DCA expanded the definition of what is considered “development of regional impact” to now include data centers.[41] DCA oversees Developments of Regional Impact (DRIs), which “are large-scale developments that are likely to have regional effects beyond” the locality where they are located.[42] The DCA also responded to disagreement at the local level over how to treat data centers by creating a new “technological facilities” category.[43] However, these new state rules are not binding. The DRI process is intended to allow the public to review and comment on a proposed development.[44] Local decision-making authority is not limited by the DRI process or the DCA.[45] If a local community wishes to support or oppose a DRI, they may do so unrestricted.[46]
Data Centers Face Resistance At The Local Level
Some counties and cities in Georgia have responded to accelerating data center development by putting in place moratoriums and even outright bans. For example, the Atlanta City Council passed legislation “prohibiting construction near MARTA metro stations and along the Beltline.”[47] But there are some counties that openly welcome data centers. For example, Bartow County, which already houses various industrial manufacturing facilities, welcomed one data center and there is a second currently being built.[48] The county administrator cited the tax revenue that data centers rake in and the subsequent benefit of reducing tax burdens on residents as the reasons for welcoming these facilities into the community.[49] Counties that do have moratoriums have cited the need to update their local commercial and industrial zoning codes since neither even include the term ‘data center.’[50] Others acted in response to residents’ concerns over “electromagnetic fields and water supplies.”[51] These moratoriums signal that those counties will likely have ordinances addressing data centers once the moratorium is over.[52] The priorities of ordinances vary, with some only creating noise restrictions and the requirement of a buffer zone, and others requiring closed loop water usage.[53] However, there are a few pending ordinances that place restrictions on energy usage.[54]
With a moratorium currently in place until June, 2026, DeKalb County is working on drafting an ordinance that would restrict data centers to industrial areas and generally require a developer to first secure a special land-use permit.[55] The County seeks to protect the community from any potentially significant land, energy, and water consumption impacts.[56] At its core, the ordinance “will add data centers as a use in industrial areas and regulate their location, design, and provide supplemental review standards.”[57] The proposed ordinance rewards data centers that offset at least 45% of the facility’s total energy usage with renewables by allowing them to be built at most 150 feet higher.[58] A Noise Impact Assessment would also be required as part of the permitting process along with a Water Consumption and Sustainability Plan.[59] Importantly, the Water Consumption and Sustainability Plan must “demonstrate that the water usage shall not significantly strain DeKalb County’s water supply.”[60] The proposed ordinance also demands an Energy Consumption and Sustainability Plan.[61] That plan must include the “estimated energy load before construction and the daily operational load once constructed.”[62] Moreover, the Energy Consumption and Sustainability Plan shall outline “strategies for mitigating strain on local power infrastructure,” “[p]roposed improvements or alternatives to minimize the need for additional transmission lines,” and “[t]he use of sustainable alternatives for on-site water or power generation.”[63] Interestingly, the proposed ordinance incentivizes the redevelopment of existing industrial sites for data centers by not requiring a special land use permit “for the redevelopment, reuse, renovation, or reconstruction of a site.”[64]
Lumpkin County already has an ordinance in place addressing data centers. The ordinance requires an “annual independent audit” about a facility’s energy usage.[65] A water usage plan that demonstrates “the sustainability of water withdrawal from wells and its impact on the local aquifer or public water supplies” is required as part of the permitting application.[66] The ordinance also puts restrictions on noise, limiting daytime noise to 60 dBA and below and nighttime noise to 50 dBA beyond the property line.[67] If a facility exceeds these noise limitations, the County has discretion to require a noise reduction barrier or device be installed, however it is not an automatic requirement.[68] Looking at DeKalb and Lumpkin Counties’ ordinances, it is clear that some localities are creating stricter requirements than others. Although DeKalb’s ordinance is only a draft, it is more detailed and offers more protection than Lumpkin’s. The varying degrees of ordinances demonstrates how local communities in Georgia are uniquely addressing data center proliferation.
What We Can Learn From Georgia
As an emerging epicenter of data center development, Georgia has the potential to lead data center regulation, which could influence other states. Many counties in the state have already taken up this task by enacting moratoriums on data center development and passing ordinances that explicitly address data centers. Community leaders and government officials are increasingly faced with pushback from residents who do not want a data center in their community, and who are concerned about the impacts such a facility would have on their natural resources and electrical bill.[69] Resistance to data centers has quickly become the newest example of NIMBYism.[70] That is why it is important for communities to get ahead of the data center boom by drafting ordinances and passing moratoriums prior to the proposal of a data center. Having an ordinance or regulation already in place could reduce the pressure on local governments when it comes time to consider a data center permitting application. Establishing rules ahead of time may also lead to a more detailed and well-thought out end product. In turn, this could result in stronger protections for communities.
Georgia also demonstrates the importance of freezing utility rates for consumers. Although Georgia PSC’s current base utility rate freezes for Georgia Power are short sighted—only lasting until 2028—it shows a commitment to protecting residential customers from footing the bill for data center fueled grid infrastructure.[71] However, Georgia Power’s current plan for meeting anticipated MW demand relies heavily on fossil fuel-powered plants. This is why ordinances, like DeKalb County’s draft ordinance, are critical in incentivizing the use of renewable energy by data centers. There is no question that data centers are here to stay. States and local governments need to adapt and prepare for the data center boom by adopting ordinances and regulations that will prevent utility companies from passing the cost of grid buildout to residential consumers and will encourage the use of renewables for powering data centers.
Author Bio: Cassidy McMann is a third-year joint J.D. and Master of Climate & Environmental Policy student from Highland, New York. Cassidy received her B.S. in Environmental Studies with a focus in Policy, Planning, and Law from SUNY College of Environmental Science and Forestry. She serves as the Technology Editor for the Vermont Journal of Environmental Law and is a 3L Senator for VLGS’s Environmental Law Society. Cassidy chose to pursue this topic after hearing the stories of residents from across the country fighting against data center proliferation in their communities. After law school, Cassidy hopes to use the knowledge and skills she’s gained to promote the enforcement of our environmental protection laws and regulations.
[1] Terry Nguyen & Ben Green, What Happens When Data Centers Come to Town? 3 (2025).
[6] Mary Romano et al., The Resource-Draining Origins of Our AI Assistants: Potential Policy Solutions to the Unregulated Growth of Georgia’s Data Center Industry, 26 J. Sci. Pol’y & Governance, June 2025, at 3.
[71] Ga. Pub. Serv. Comm’n, 2025 Data Center Fact Sheet (2025).
Rage Against the Wind: The Markets Won’t Do What the OBBB Tells Them Written by Emily Dwight and Professor Mark James
On his first day back in office President Donald Trump declared a “national energy emergency,” claiming the United States faces “a precariously inadequate and intermittent energy supply” threatening national security.[1] Six months later, he signed the “One Big Beautiful Bill Act” [2] (OBBB), fundamentally restructuring renewable energy tax incentives passed in the Inflation Reduction Act.[3]
There is only one problem: the emergency does not exist. Fossil fuel production reached record levels under the previous administration, grid reliability metrics contradict claims of systemic instability, and independent assessments found no evidence of a supply crisis.[4] As Columbia Law School scholars observed, “evidence suggests that current energy supply and price conditions simply do not constitute a national emergency.”[5]
The legal foundation for this emergency declaration is equally precarious. The Supreme Court warned in Biden v. Nebraska that emergency authority “does not empower the President to take actions free from statutory limitations.”[6] Legal scholars have categorized statutory emergency authorities, finding that many contain “specific statutory criteria or descriptions of ‘emergency’ circumstances which suggest that the declared energy emergency may not qualify.”[7] Even where agencies possess broader discretion, actions taken under a manufactured emergency could face “arbitrary and capricious” challenges under the Administrative Procedure Act.[8] Declaring an emergency, as the Columbia analysis noted, “regardless of fanfare and spectacle, does not give President Trump carte blanche to pursue his energy policy” when no true emergency exists.[9]
This disconnect raises a fundamental question: for what purpose? The OBBB imposes substantial costs on renewable energy development—wind and solar are the only sources that can be deployed at scale in the next few years—while failing to address genuine energy security concerns or reduce overall energy costs. The question is not whether we need more energy; we clearly do. The question is what resources can be deployed fastest and cheapest to meet surging demand. By every objective measure, that answer is renewable energy with battery storage, not new coal plants or extended operation of aging fossil infrastructure.
Perhaps the answer lies not in policy analysis but personal obsession. President Trump’s opposition to wind turbines predates his presidency by nearly two decades. Since 2006, he has waged a personal crusade against offshore wind development near his Aberdeen golf course in Scotland, filing multiple lawsuits claiming the turbines would destroy the property’s aesthetic value.[10] He lost every legal challenge, with UK courts ultimately ruling in 2015 that the project could proceed.[11] His objections were never grounded in energy policy analysis or grid reliability concerns—they were about the view from his golf course. His personal grievance has become America’s energy policy.
Like Cervantes’ knight-errant tilting at windmills, imagining them to be giants, the administration wages war against wind turbines while genuine challenges go unaddressed. The OBBB represents modern energy policy quixotism—an ideologically driven crusade against market forces, technological progress, and economic reality. The markets will not do what the OBBB tells them to.
American Energy Policy After the OBBB
The OBBB terminates tax credits for wind and solar projects placed in service after December 31, 2027, with a narrow exception for facilities beginning construction by July 4, 2026.[12] This compressed timeline creates extraordinary pressure: wind and solar projects starting construction in 2025 must be operational by 2029; those beginning after 2025 but before July 4, 2026 must achieve commercial operation by 2030; any project starting after that cutoff must be online by 2027—an incredibly short timeframe for utility-scale development.[13]
The IRA provided a decade-long framework that encouraged billions in capital commitments for manufacturing facilities, supply chain investments, and project development pipelines. The OBBB shattered that certainty overnight. Under the Inflation Reduction Act, technology-neutral clean energy tax credits were available for projects beginning construction through 2032, with a phaseout schedule extending into the late 2030s.[14]
The OBBB abandons technology neutrality for selective intervention that reveals the administration’s true targets. Energy storage, hydropower, and geothermal facilities retain credits phasing out in 2034. Fuel cell property gains a flat 30% credit without emissions requirements. Nuclear facilities receive enhanced credits through energy community bonuses.[15] This isn’t technology neutrality; it is energy favoritism. The “All of the Above” strategy has been replaced with the nightclub policy of “Yes, You, But Not You.”
The OBBB piles on more obstacles to the rapid deployment of solar and battery storage with the introduction of extraordinarily complex Foreign Entity of Concern (FEOC) provisions requiring applicants for the technology-neutral tax credits to demonstrate that their projects avoid prohibited “material assistance” from specified foreign entities.[16] The thresholds vary significantly by technology and year: wind and solar facilities beginning construction in 2026 must show that at least 40% of total direct costs come from non-FEOC sources, rising to 60% by 2030.[17] Battery storage projects face even higher thresholds—55% in 2026, escalating to 75% by 2030.[18] Solar energy components sold in 2026 must demonstrate 50% non-FEOC content, increasing to 85% by 2030.[19]
For technologies containing dozens of components manufactured across multiple countries, this demands supply chain visibility multiple tiers back through manufacturing processes. Industry analysts estimate compliance costs could add 15-25% to project development expenses, rendering marginal projects uneconomic even if credits remain technically available.[20]
A Multi-Front Assault: Beyond Tax Credits
The OBBB’s tax credit terminations represent only one front in a comprehensive, government-wide campaign. against renewable energy. Administrative actions have erected barriers potentially more devastating than loss of tax credit.
In August 2025, Interior Secretary Doug Burgum signed Secretarial Order 3438 requiring all wind and solar projects on federal lands to meet a “capacity density” threshold—essentially mandating that renewables generate as much energy per acre as nuclear or gas plants.[21] Since an advanced nuclear plant generates approximately 33.17 megawatts per acre while an offshore wind farm generates 0.006 megawatts per acre—a difference of 5,500 times—this standard functionally prohibits new wind and solar development on federal lands.[22] The comparison ignores fundamental differences in how these technologies operate: baseload plants run continuously at rated capacity, while variable renewables produce power when wind blows or sun shines.
Burgum’s order also requires his personal approval for all wind and solar projects on federal lands and waters through an “elevated review” process.[23] About 10% of new solar capacity under development sits on federal lands, along with critical transmission infrastructure.[24] Analysts have warned these projects “could be delayed or canceled if Burgum does not issue permits.”[25] The personal approval requirement creates a bottleneck where a single political appointee can effectively veto projects based on ideological preferences.
The constant attacks on offshore wind have the makings of a modern day Don Quixote tale. Even when repelled, the administration doubles down and comes back. On January 20, 2025, President Trump issued an executive order withdrawing all Outer Continental Shelf areas from new offshore wind leasing and imposing a moratorium on federal approvals pending “comprehensive review” with no timeline.[26] The order directs the Interior Secretary to assess “the ecological, economic, and environmental necessity of terminating or amending” of existing leases.[27] The administration has used this authority aggressively. In August 2025, it halted construction on Revolution Wind, an 80% complete project off Rhode Island, citing vague “national security concerns, before a temporary restraining order was issued that allowed construction to proceed.”[28] In November, BOEM received approval to remand a key permit issued to SouthCoast Wind.[29] On December 8th, a Massachusetts federal court judge ruled that the indefinite moratorium on federal approvals, imposed in the January 20th executive order, was arbitrary and capricious.[30] On December 22, 2025, the Department of the Interior issued stop-work orders for all five offshore wind projects currently under construction, citing again “national security concerns” argument that was unsuccessful against Revolution Wind.[31] Some of the paused projects were partially complete and already delivering electricity to the grid while another was expected to connect in the first quarter of 2026.[32]
The Department of Transportation’s withdrawal of $679 million in federal grants for port infrastructure supporting offshore wind construction at twelve different ports from California to Virginia.[33] Humboldt Bay, California lost over $426 million that would have transformed a struggling former timber port into a renewable energy hub.[34] Secretary Sean Duffy justified cancellations claiming “wasteful wind projects are using resources that could otherwise go towards revitalizing America’s maritime industry.”[35]
The cumulative impact is staggering. The Solar Energy Industries Association reports that over 500 solar and storage projects totaling 116 gigawatts—more than half of all power capacity planned through 2030—face political threats including permitting delays, grant cancellations, and regulatory uncertainty.[36] This includes 73 GW of solar and 43 GW of storage without all necessary permits. Eighteen states have over 50% of their planned generation capacity at risk, including Texas (which alone accounts for nearly 40% of at-risk projects), Virginia, Arizona, and Nevada.[37] Three of the top five affected states voted for President Trump in 2024.[38]
The Real Emergency: Meeting Soaring Electricity Demand
The reliability and affordability crises used to justify the emergency declaration crumbles under scrutiny. The administration’s framing blames the windmills for problems caused by aging coal plants reaching end-of-life. The North American Electric Reliability Corporation (NERC) identified regional capacity concerns but pointed to “planned thermal generation retirements” as the “primary contributing factor”—not renewable energy additions.[39] NERC specifically noted risks of “supply shortfalls” during late summer when “solar output diminishes earlier in the day”—a temporal mismatch that energy storage and transmission expansion could address.[40]
Decisions to keep aging coal plants online exacerbate rather than correct the problem. The Trump administration’s Executive Order on “Reinvigorating America’s Beautiful Clean Coal Industry” claims that “clean coal resources will be critical to meeting the rise in electricity demand due to the resurgence of domestic manufacturing.”[41] Yet a DOE emergency order, using its Federal Power Act Section 202(c) authority, keeping Michigan’s Campbell coal plant operating–when it was scheduled to retire 15 years before the end of its planned lifespan because it was uneconomic–encapsulates the disconnect between this rhetoric and reality.[42] The administration is addressing symptoms rather than causes, defend obsolete infrastructure rather than enable new resources. It treats planned retirement of aging fossil fuel plants as an “emergency” while accelerating termination of tax credits supporting technologies that could actually address capacity needs, all in service of “beautiful clean coal.”[43] Keeping the Campbell plant online cost ratepayers an extra $80 million between May 23 and September 30, 2025, more than $600,000/day.[44] If the DOE mandates that all the fossil fuel plants that are scheduled to retire by the end of 2028 remain online, costs to ratepayers could $3 billion per year.[45]
The administration is fighting physics and the passage of time in its efforts to bring back coal. Coal-fired electricity generation is a sector living on borrowed time. Competing technologies have gotten cheaper while coal has gotten more expensive. When the Bureau of Land Management held an auction for coal leases, it got one bid at less than a penny per ton. The BLM suspended two planned coal lease auctions.[46] The chivalrous-minded Don Quixote found similar results in his fight to return to the past. The future has made its decision about coal.
Yet an actual emergency looms: exploding electricity demand. Electricity consumption could grow 15-20% by 2030, driven by data centers, artificial intelligence, electric vehicles, and manufacturing reshoring.[47] Meeting this growth requires deploying new generation capacity at unprecedented speed—precisely when the administration is blocking the only technologies capable of rapid deployment.
The OBBB’s approach is predicated upon a fundamental logical flaw. The only technologies capable of rapid deployment at scale are solar and energy storage. Solar projects can be operational in 18-24 months; storage in 12-18 months. New natural gas combined-cycle plants require 3-4 years to construct, while turbine manufacturers now face wait times of 5-7 years for major equipment.[48] Nuclear plants require a minimum of 7-10 years to build, and that is the most optimistic timeline. Coal plants are not being built. Attacking the fastest-deployable resources while facing unprecedented demand surge exemplifies ideology triumphing over practical necessity.
The economics strongly favor renewables. Utility-scale solar now averages $24-$38 per megawatt-hour; onshore wind costs $24-$50/MWh.[49] New combined-cycle gas plants cost $45-$75/MWh, while maintaining aging coal plants can cost $80-$120/MWh when including environmental compliance.[50] Keeping uneconomic coal plants operational through emergency orders doesn’t make them economically viable—it simply forces ratepayers to subsidize more expensive generation when cheaper alternatives exist.[51]
American Competitiveness in the Global Energy Transition
The world that U.S. energy policy is trying to save exists only in the past. While the administration wages its crusade against wind and solar, the global energy transition accelerates.[52] China controls approximately 80% of global solar manufacturing, 60% of wind turbine production, and 75% of battery cell manufacturing—shares resulting from deliberate industrial policy spanning two decades.[53]
The OBBB’s immediate competitive damage stems from policy whiplash. The Inflation Reduction Act created a framework expected to persist for a decade, providing certainty for multi-billion-dollar capital commitments.[54] Companies made decisions to locate manufacturing facilities in the United States based on that expected stability. International competitors operating with stable policy frameworks gain decisive advantages: they can plan confidently for decades, while U.S. competitors face biennial policy uncertainties tied to election cycles.
Policy uncertainty increases risk-adjusted capital costs, making marginal projects uneconomic. Solar factories cost billions and take years to build; wind turbine manufacturing requires specialized facilities; battery gigafactories represent even larger investments. The Union of Concerned Scientists estimates the OBBB could result in “$150-200 billion in lost manufacturing investment over the next decade.”[55] This represents not just lost economic activity but foregone jobs, diminished technological capabilities, and reduced ability to compete in what will be one of the dominant industries of the 21st century.
The fundamental error in the OBBB’s logic is believing that U.S. policy choices can alter global energy trajectories. The transition will continue—driven by cost competitiveness, technology progress, and strategic positioning—whether or not America participates.[56] Solar and wind are the cheapest forms of new electricity generation in most markets worldwide. Battery costs continue declining on predictable learning curves. Countries pursuing energy independence increasingly choose renewables over imported fossil fuels. The question isn’t “will the energy transition happen?” but “will American workers, companies, and communities benefit from it?” Like Don Quixote inability to accept that the age of chivalry had ended, the OBBB imagines it can resurrect an energy system that market forces have rendered obsolete.
Energy Affordability: Understanding the True Drivers
The persistent claim that renewable energy increases consumer costs does not hold. Lawrence Berkeley National Laboratory’s comprehensive analysis reveals that transmission and distribution infrastructure investments account for roughly 60% of rate growth over the past two decades, while generation costs including renewable integration contributed only 20-25% of rate increases.[57] The expensive components are the poles, wires, transformers, and substations—infrastructure needing upgrading regardless of generation source as equipment ages.
LBNL analysis reveals that in regions with significant renewable additions, wholesale electricity prices have declined due to the near-zero marginal cost of wind and solar generation. This “merit order effect” means renewables push higher-cost fossil fuel generation out of the dispatch order, reducing average wholesale prices.[58]
Understanding electricity costs requires distinguishing between rates and bills. Electricity rates measure price per kilowatt-hour; bills reflect total monthly cost, which equals rates multiplied by consumption. Bills can remain stable as rates increase if consumption decreases through energy efficiency improvements.[59] California has high rates (28 cents/kWh) but average monthly bills of $128, only slightly above the national average of $121, because per-capita consumption is among the nation’s lowest at 550 kWh monthly versus 877 kWh nationally.[60] Conversely, Louisiana has low rates (11 cents/kWh) but bills exceeding $135 due to high consumption from inefficient housing.[61] States with high renewable penetration don’t systematically have higher bills—they have different rate structures reflecting different infrastructure investment choices.
Critical Infrastructure Bottlenecks
Transmission infrastructure represents perhaps the most critical constraint. Building new transmission requires multi-state approvals, faces intense local opposition, involves complex cost allocation disputes, which combine to produce decades-long development timelines. Recent analysis reveals transmission investment runs at only $20-25 billion annually when $50-60 billion is required to support projected load growth and renewable integration.[62] Achieving 80-90% clean electricity by 2035 would require expanding transmission capacity by roughly 60%, representing hundreds of billions in investment.[63]
FERC Order 1920, issued in May 2024 with further clarifications in Orders 1920-A and 1920-B, is the most significant transmission planning reform in over a decade.[64] The order requires regional transmission planning to consider long-term needs over 20-year horizons and near-term reliability.[65] It mandates evaluation of transmission benefits for reliability, economic efficiency, and state public policy requirements.[66] Critically, Order 1920 establishes default cost allocation methodologies that should streamline planning processes by reducing disputes over who pays for new transmission infrastructure.[67] While implementation will take years, the framework could accelerate development of critical transmission projects within regional planning organizations.
A growing bottleneck does exist in getting resources connected to the grid. Over 2,600 gigawatts of generation capacity (95% renewable or storage), representing more than two times the size of the current U.S. generation fleet, sits in interconnection queues, with average wait times exceeding five years.[68] This backlog reflects fundamental dysfunction in how new generation connects to the grid. Projects that should take 2-3 years from application to operation routinely take 5-7 years or longer.
FERC Order 2023 attempts to reform dysfunctional interconnection processes through cluster studies processing multiple projects simultaneously and financial readiness requirements ensuring projects have secured financing before entering queues.[69] However, clearing accumulated backlogs will take years. FERC’s ongoing Notice of Proposed Rulemaking, in response to on DOE’s proposal directing it to standardize large-load interconnection rules. could reduce stress on the grid by clarifying the current, unclear large load interconnection process, including co-location and cost allocation rules.[70] Utilities that have implemented data center tariffs have seen considerable reductions in their interconnection requests as speculative projects have withdrawn.[71] Establishing clear cost allocation frameworks for these large loads will reduce the speculative behavior driving up connection requests and slowing development of generation projects intending to deliver power to the grid.
Meanwhile, Congress advances parallel efforts that could inadvertently undermine the administration’s anti-renewable agenda. The Simplifying Permitting to Enable Energy Development (SPEED) Act, which passed the House on December 18th, would codify key holdings from Seven County Infrastructure Coalition v. Bureau of Land Management.[72] The act would streamline NEPA review timelines and limiting opportunities for litigation delays.[73] Proponents frame the legislation as facilitating fossil fuel development, but the reforms would benefit any infrastructure project—including renewables. Given that solar and wind projects have 2–4-year development timelines compared to 7–10 years for new nuclear or coal plants, accelerated permitting would disproportionately advantage the very technologies the administration seeks to disadvantage. However, the SPEED Act faces a difficult path in the Senate over the Trump Administration’s attacks on offshore wind and renewables on federal lands.[74]
Conclusion: When Markets Won’t Follow Orders
The One Big Beautiful Bill imposes real, measurable costs visible across multiple dimensions. The purported benefits remain stubbornly elusive. The declared emergency was manufactured from mischaracterized data. Consumer electricity bills won’t meaningfully decline—rates are driven primarily by infrastructure investment, not generation costs, and the cheapest new generation, the resource that can reduce costs, is the resource being attacked. Energy security isn’t enhanced by reducing domestic renewable deployment while the U.S. remains a net energy exporter. Grid reliability problems aren’t solved by blocking the fastest-deployable generation capacity when actual emergencies involve surging demand requiring rapid capacity additions.
The OBBB puts a heavy thumb on the scale, explicitly advantaging fossil fuels while disadvantaging renewables through tax policy, administrative action, and regulatory barriers. But thumbs on scales don’t tip the scales of global energy transformation any more than Quixote’s lance could topple windmills. The transition will continue—driven by cost competitiveness, technological progress, and international competition. The markets will not do what the OBBB tells them. Solar and wind keep getting cheaper; batteries keep improving; countries keep choosing energy independence through domestic resources over continued import dependence.
The question facing American policy is whether the United States leads this transition, capturing economic benefits and shaping its direction, or lags while other nations seize opportunities American policy foolishly rejects.
The energy system we had is gone. We cannot resurrect it through policy alone. The economics have fundamentally changed—renewables are now the cheapest new generation in most markets. The physics have changed— technology is getting better and cheaper. The weather has changed – climate impacts are making extreme weather events more frequent, stressing grids designed for historical patterns. The politics have changed—renewable energy deployment creates jobs that cannot be offshored, lowers costs for consumers, and generates tax revenue for rural communities.
The path forward requires addressing the constraints this article has documented: transmission infrastructure that connects resources to demand centers, interconnection reforms that allow projects to reach operation in reasonable timeframes, and permitting streamlining as exemplified by the SPEED Act. There are additional challenges that this analysis has not fully explored—grid modernization enabling integration of distributed resources, market designs that properly value flexibility and resilience, workforce development programs, and mechanisms ensuring that American workers and rural communities benefit from the energy transition rather than being left behind. Changing our energy system is hard enough without having to overcome the pursuit of a system that no longer exists.
Cervantes’ knight-errant eventually recognized his delusions, acknowledging on his deathbed that he had been mad. The question is whether American energy policy will reach a similar recognition before opportunities are irretrievably lost—or whether the administration will persist in its crusade against wind turbines while the rest of the world moves forward. When the administration eventually confronts the actual emergency—meeting surging electricity demand in a climate-constrained world—it will discover that ideology cannot substitute for the resources it spent years attacking. By then, the opportunities squandered, and advantages ceded, may be irretrievable.
Author Bio:
Emily Dwight, a dual J.D. and MERL student at Vermont Law and Graduate School, serves as the Administrative Editor for Vermont Law Review Vol. 50 and Vermont Journal of Environmental Law Vol. 27. Emily is particularly interested in the legal frameworks governing the transmission system and the evolution of energy production. She looks forward to applying her background in energy regulation as an associate in Sidley Austin LLP’s Energy Practice following graduation.
[26] Memorandum on Temporary Withdrawal of All Areas on the Outer Continental Shelf from Offshore Wind Leasing and Review of the Federal Government’s Leasing and Permitting Practices for Wind Projects, 90 Fed. Reg. 6,985 (Jan. 20, 2025).
[45] Michael Goggin, The Cost of Federal Mandates to Retain Fossil-Burning Power Plants, 7, Grid Strategies LLC, On Behalf of Earthjustice, Environmental Defense Fund, Natural Resource Defense Council and Sierra Club (2025).
[52] The European Union pursues carbon neutrality with policy consistency that attracts long-term investment. See European Commission, The European Green Deal, COM(2019) 640 final (Dec. 11, 2019), https://ec.europa.eu/info/strategy/priorities-2019-2024/european-green-deal_en. India, Middle Eastern nations, and Southeast Asian countries increasingly view renewables as paths to energy access and economic development. See International Energy Agency, India Energy Outlook 2024 87 (2024); Joseph S. Nye et al., The New Geopolitics of Energy, Ctr. for Strategic & Int’l Studies 45 (2024).
[64] Building for the Future Through Electric Regional Transmission Planning and Cost Allocation and Generator Interconnection, Order No. 1920, 187 FERC ¶ 61,068 (2024), order on reh’g, Order No. 1920-A, 189 FERC ¶ 61,049 (2024), order on reh’g, Order No. 1920-B FERC ¶ 61,043 (2025).
[68] Joseph Rand et al., Queued Up: Characteristics of Power Plants Seeking Transmission Interconnection as of the End of 2023, Lawrence Berkeley Natl. Lab., LBNL-2001540, at 8-12 (2024).
[69] Improvements to Generator Interconnection Procedures and Agreements, Order No. 2023, 184 FERC ¶ 61,054 (2023).
[70] Letter from Chris Wright, Sec’y of Energy, to David Rosner, Chairman, FERC, Re: Secretary of Energy’s Direction that the Federal Energy Regulatory Commission Initiate Rulemaking Procedures and Proposal Regarding the Interconnection of Large Loads Pursuant to the Secretary’s Authority Under Section 403 of the Department of Energy Organization Act (Oct. 23, 2025), https://www.energy.gov/sites/default/files/2025-10/403%20Large%20Loads%20Letter.pdf.
[72] H.R.4776 – 119th Congress (2025-2026): SPEED Act, H.R.4776, 119th Cong. (2025). See also Seven County Infrastructure Coalition v. Bureau of Land Management, 145 S. Ct. 1497 (2025).
On December 15, 2009, the EPA issued a final ruling on six greenhouse gases (GHGs) that endanger public health and public welfare under Section 202(a) of the Clean Air Act.[1] The EPA also concluded that these combined emissions from motor vehicles contribute to air pollution which endangers public health and welfare under Section 202(a) of the Clean Air Act.[2] This is otherwise known as the Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act (2009 Endangerment Finding).
On August 1, 2025, Administrator Zeldin and the EPA proposed to rescind the 2009 Endangerment Finding.[3] The rescission of the 2009 Endangerment Finding raises two pivotal legal questions that strike at the foundation of EPA’s authority and responsibility on climate regulation. First, the EPA is signaling it may no longer view GHGs as pollutants within the Clean Air Act’s scope. Second, even if the EPA did have authority to regulate GHGs, regulating U.S. emissions has a negligible global impact.
II. Quick Background: Massachusetts v. EPA and the History of the Finding
The EPA promulgated the 2009 Endangerment Finding in response to the landmark decision in Massachusetts v. EPA.[4] In Massachusetts, the Supreme Court held that greenhouse gases are “air pollutants” under the Clean Air Act.[5] Thus, the EPA has authority under the Clean Air Act to regulate these air pollutants, such as motor vehicle emissions.[6] In addition, the Court explicitly stated that once the EPA makes the Endangerment Finding, it must regulate all sources that cause or contribute to the endangerment and cannot refuse to regulate such sources based on policy reasons outside of the statute.[7]
Following Massachusetts, the EPA conducted an extensive scientific and legal review that culminated in the 2009 Endangerment and Cause or Contribute Finding.[8] In that rulemaking, the agency found that six well-mixed GHGs collectively threaten public health and welfare by driving global climate change, and that emissions from new motor vehicles contribute to this pollution.[9] The Endangerment Finding forms the legal foundation for subsequent federal climate regulations. Every major climate rule since, including vehicle emission standards, power plant performance standards, and stationary source permitting, has relied on the 2009 Endangerment Finding as its statutory predicate.[10] Without it, the EPA’s authority to regulate GHGs under the Clean Air Act would effectively collapse.
III. Was Massachusetts v EPA Wrongly Decided? a. Zeldin’s Theory
In the Reconsideration of the 2009 Endangerment Finding and Greenhouse Gas Vehicle Standards (Rescission of the Endangerment Finding), the EPA proposes to rescind all GHG emission standards under Section 202(a), stating that it “no longer believes that we have the statutory authority and record basis required to maintain this novel and transformative regulatory program.”[11] It asserts that the Clean Air Act was designed for local and regional air pollution, not for global phenomena like climate change.[12] This interpretation narrows the statutory definition of “air pollutant” by emphasizing that even if GHGs fit within the Clean Air Act-wide definition, the EPA is not required—or even authorized—to regulate them under Section 202(a) absent a clear causal link to local air pollution harms.
Although the proposal stops short of directly overruling Massachusetts, it frames the 2009 Endangerment Finding as inconsistent with the Supreme Court’s later major-questions doctrine cases.[13] In effect, the EPA is inviting a re-examination of Massachusetts’s holding that GHGs are “air pollutants” under the Clean Air Act.[14] Under Zeldin, the EPA now takes the position that there is a geographical limitation on its authority to regulate pollution coming from outside the United States.[15]
Ultimately, the EPA is stressing the historical context: the Clean Air Act has traditionally addressed localized pollutants that cause direct, measurable harm through regional exposure.[16] This is unlike GHGs, which operate on a global scale. Further, the EPA claims that analyzing global climate effects under Section 202(a) exceeds the intelligible principle required for delegation, suggesting that Congress never meant the statute to encompass GHGs at all.[17]
b. Legal Obstacles
Despite the EPA’s attempt to reinterpret its authority, Massachusetts remains binding precedent. Only the Supreme Court can overturn that ruling, which squarely held that greenhouse gases qualify as “air pollutants” under the Clean Air Act.[18] Therefore, as long as Massachusetts stands, the EPA cannot unilaterally declare that GHGs fall outside the Clean Air Act’s scope.
Furthermore, the Clean Air Act’s text is written in deliberately broad terms. Section 302(g) defines “air pollutant” expansively as “any air pollution agent or combination of such agents,” a definition that comfortably encompasses carbon dioxide and other greenhouse gases.[19] Even if the EPA advances a narrower interpretation of Section 202(a), courts will likely view that reading as inconsistent with both statutory text and controlling precedent.[20]
Under the Supreme Court’s State Farm decision, the EPA’s authority to rescind a prior finding is not unlimited. The agency must acknowledge its change in position, offer a “reasoned explanation,” and demonstrate that the prior interpretation was legally or factually flawed.[21] The current proposal cites “new legal and scientific developments” and shifting policy priorities, but these justifications appear largely ideological rather than evidentiary.[22]
Comments from organizations such as the Natural Resources Defense Council (NRDC) have emphasized that the EPA has not presented robust new scientific evidence to undermine the 2009 Endangerment Finding’s conclusions.[23] Instead, the agency questions the reliability of prior assessments while acknowledging ongoing uncertainties.[24] Without concrete data demonstrating that the earlier record was erroneous or unworkable, a rescission would likely be deemed “arbitrary and capricious” under the Administrative Procedure Act.[25] In short, the EPA faces substantial legal barriers to reversing course without a fresh factual foundation or a change in the governing law.
c. Broader Implications
A rescission of the 2009 Endangerment Finding would constitute a fundamental retraction of federal authority over GHG regulation. By asserting that GHGs fall outside the scope of the Clean Air Act, the EPA would remove the major statutory authority for reducing the emissions that are driving climate change. Such a position would create a regulatory void, displacing federal uniformity with a fragmented system of state-level initiatives and inconsistent standards. If the Supreme Court were to agree with this new interpretation and either reverse or modify Massachusetts it would mean that future administrations could not revive the regulations without congressional action.
Beyond constitutional limits, the reversal would destabilize longstanding reliance interests. Industry actors, states, and environmental organizations have structured regulatory frameworks and investments on the expectation of continued federal oversight. Abrupt withdrawal would erode those expectations and diminish regulatory coherence.
IV. Can EPA Decline to Regulate Emissions it Considers Insignificant on a Global Scale? a. The De Minimis Argument
Even if the EPA were to concede that it retains statutory authority under Massachusetts, Administrator Zeldin’s proposal argues that regulating GHG emissions would have an inconsequential effect on global climate outcomes.[26] Under this theory, U.S. emissions represent too small a fraction of total global output to warrant costly domestic regulation.[27] The agency thus characterizes GHG regulation as de minimis—a trivial exercise unlikely to produce meaningful environmental benefits.
Zeldin frames this rationale as a pragmatic and economically responsible approach. By his account, Congress did not design the Clean Air Act to impose significant costs on American industries for symbolic or negligible global gains.[28] Instead, the EPA claims that effective climate action requires multilateral coordination beyond the Clean Air Act’s jurisdictional reach.[29] In policy terms, the proposal recasts climate regulation as a matter of foreign affairs and international competitiveness, rather than environmental protection per se.
b. The Legal Problem
The Clean Air Act does not contain a de minimis exception to regulation of emissions that “may reasonably be anticipated to endanger public health or welfare.”[30] Once that determination is made, the Clean Air Act obligates the EPA to regulate; it does not permit the agency to weigh other policy considerations or cost-effectiveness of its actions in deciding whether regulation is warranted.[31]
The Supreme Court has repeatedly rejected attempts by agencies to read economic or policy discretion into clear statutory commands. In Whitman v. American Trucking Associations, the Court held that the EPA may not consider cost in setting National Ambient Air Quality Standards, emphasizing that where Congress speaks in mandatory public health terms, policy tradeoffs are foreclosed.[32] The Massachusetts decision further reinforced that the EPA cannot decline to regulate based on a policy judgment “divorced from the statutory text.”[33] The Court explicitly rejected the argument that EPA could consider the need for international cooperation as a reason not to regulate domestic emissions.[34]
By invoking a de minimis rationale, the EPA effectively reintroduces policy discretion that Congress and the courts have explicitly denied. Even if U.S. emissions represent a small portion of global totals, the statute requires regulation once an endangerment finding exists.[35] The Clean Air Act is built on cumulative control: local, sectoral, and incremental actions that collectively reduce overall pollution burdens.[36] To decline regulation on the ground that the problem is global is to nullify the Clean Air Act’s preventive purpose.
The proposal’s factual premise is equally flawed. While U.S. emissions account for roughly 13% of global totals, they remain the second-largest national source of greenhouse gases.[37] Regulatory rollback by such a major emitter undermines international climate cooperation and slows technological progress across industries. Moreover, because atmospheric GHGs are well-mixed globally, emissions reductions in any one country have measurable, albeit distributed, impacts on global concentrations.[38] Dismissing U.S. actions as insignificant ignores this cumulative effect and discounts the leadership role historically played by the U.S. in driving global standards.
The EPA’s reasoning also conflicts with its own prior findings. The 2009 Endangerment Finding, supported by extensive peer-reviewed research, recognized that global climate change is a collective-action problem that requires incremental domestic steps.[39] To now claim that individual contributions are “too small to matter” not only contradicts that scientific consensus but also violates the principle that agencies must provide a reasoned explanation when departing from prior determinations.
c. Paradigm Shift
The de minimis approach represents more than a statutory reinterpretation; it reflects a philosophical shift from prevention to abdication. Congress designed the Clean Air Act as a forward-looking statute—its thresholds are intentionally protective, operating before harm becomes irreversible. Decades ago, the D.C. Circuit Court of Appeals affirmed the EPA’s authority to regulate based on a precautionary standard, holding that the EPA could act when there was a “significant risk of harm” even without absolute scientific certainty.[40] By redefining the statute as ineffectual-by-design, the EPA transforms a preventive framework into a reactive one. This shift signals a retreat from science-based policymaking and an embrace of political convenience disguised as statutory fidelity.
Critics, including environmental organizations and several state attorney generals, argue that the EPA’s reasoning mirrors broader efforts to delegitimize environmental governance under the “major questions” doctrine.[41] This would transform every significant regulatory initiative into a presumptive overreach contrary to the Court’s admonition that the major question doctrine was to be used in “extraordinary cases.”[42] In doing so, the agency risks hollowing out the very administrative capacity Congress created to address emerging environmental harms.
V. Procedural Vulnerabilities
Beyond its substantive weaknesses, the rescission proposal is procedurally vulnerable. Under the State Farm standard, agencies must provide a reasoned explanation for any change in policy and support that shift with evidence showing that the prior determination was either erroneous or unworkable.[43] Here, the EPA offers neither.
The proposal lacks a comprehensive Regulatory Impact Analysis or any comparable peer-reviewed assessment demonstrating that prior findings were invalid. The agency relies instead on vague references to “new legal and scientific developments” without citing any concrete data or authoritative studies that contradict the 2009 record.[44] This omission is critical: because the original finding rested on extensive scientific consensus and interagency review, rescission requires an equally rigorous evidentiary showing.
For its challenge to the robust scientific evidence supporting the 2009 Endangerment Finding the proposal relies on a report produced by the Climate Working Group consisting of five scientists hand-picked by Christopher Wright, the Secretary of Energy, and widely regarded as climate skeptics.[45] In a decision by the US District Court for Massachusetts, Senior Judge Wiliam Young ruled that group was likely formed in violation of the Federal Advisory Committee Act, a ruling that the Department of Justice has chosen not to appeal.[46] Judge Young subsequently ordered the government to produce all of the records relating to the work of the Climate Working Group, and reserved judgment on whether EPA should be prohibited from considering the group’s report.[47]
Moreover, the absence of an independent Science Advisory Board review—customary for major environmental rulemakings—further undermines the rule’s legitimacy.[48] The proposal’s procedural shortcuts signal a foregone policy conclusion rather than a genuine reevaluation.
Legal challenges are inevitable. Under Section 307(b) of the Clean Air Act, all petitions for review of nationally applicable EPA actions are filed directly in the D.C. Circuit.[49] The D.C. Circuit has historically applied State Farm’s “hard look” review with particular rigor in environmental cases.[50] Plaintiffs such as the NRDC, Environmental Defense Fund, and several states (including California and New York) are likely to argue the rescission is both arbitrary and capricious and contrary to law.[51]
If the court agrees, it could vacate the rescission and remand the rule to the agency, which would potentially reinstate the 2009 Endangerment Finding by default. Such a decision would reaffirm the procedural guardrails that prevent agencies from overturning major regulatory frameworks on ideological grounds.
VI. What’s at Stake a. Immediate Regulatory Consequences
Once finalized, the rescission of the 2009 Endangerment Finding would immediately nullify the EPA’s authority to regulate greenhouse gas emissions from motor vehicles—the so-called “tailpipe rules.”[52] Emissions from powerplants and vehicles account for over half of total GHG emissions in the U.S.[53] These rules have driven the largest reductions in GHG emissions of any federal program, providing the legal and policy foundation for both mobile and stationary source controls.[54] Their repeal would also set the stage for invalidating power plant performance standards under Section 111 of the Clean Air Act.[55] Together, vehicle and power plant regulations cover more than half of total U.S. emissions.[56] The collapse of these programs would therefore represent a structural dismantling of the nation’s core climate policy architecture.
The loss of the Endangerment Finding would also unravel the broader regulatory ecosystem built upon it. Agencies, states, and private actors have invested in compliance frameworks, emissions tracking systems, and renewable energy markets on the assumption of ongoing federal oversight.[57] Its rescission would create a legal vacuum by displacing federal uniformity with a patchwork of state-level initiatives and voluntary corporate programs. This fragmentation would undermine predictability and increase litigation risk for industry, while diminishing overall climate progress.
b. Long-Term Legal Ramifications
Should the Supreme Court affirm that the EPA lacks authority to regulate GHGs under the Clean Air Act, the consequences would extend beyond current rulemakings. A future administration could not simply reinstate the Endangerment Finding or adopt analogous regulations without new congressional authorization.[58] Such a ruling would therefore codify a permanent limitation on federal climate authority, reshaping environmental law for decades.
The decision would also reverberate through the expanding field of climate liability litigation. Oil and gas companies currently argue that federal law preempts state-law tort claims under the displacement doctrine recognized in American Electric Power v. Connecticut.[59] If the EPA now disclaims authority to regulate GHGs, those preemption arguments would collapse, potentially reviving federal common law and strengthening state and municipal claims for climate damages. In short, the rescission could simultaneously erode federal regulatory capacity while exposing industry to expanded judicial liability.
c. Broader Constitutional Implications
At a constitutional level, the rescission tests the limits of executive power to reinterpret long-standing statutory mandates.[60] By rejecting the 2009 Finding without a change in law or fact, the EPA would effectively amend the scope of the Clean Air Act through administrative fiat.[61] This raises profound separation-of-powers concerns: whether an agency may nullify judicial precedent and statutory purpose by mere reinterpretation.[62] The outcome of ensuing litigation will thus define the balance between political discretion and legal constraint within the administrative state.
VII. Conclusion
The proposed rescission of the Endangerment Finding is far more than a policy reversal. It is a constitutional and scientific reckoning. It challenges the resilience of statutory interpretation, the legitimacy of evidence-based rulemaking, and the integrity of the administrative process itself. If courts uphold the rescission, the EPA’s capacity to address climate change under existing law will evaporate, leaving regulation to the fragmented discretion of states and private markets. The Clean Air Act’s role as a comprehensive framework for national air quality protection would be irreparably narrowed.
If, however, the courts reject the rescission, the ruling would reaffirm that administrative agencies cannot discard binding precedent or established science to suit transient political agendas. Upholding Massachusetts v. EPA would preserve the principle that evidence, not ideology, governs environmental law. It would confirm that the Clean Air Act’s broad language and preventive purpose remain vital tools for addressing modern environmental crises.
Ultimately, the fate of the 2009 Endangerment Finding will shape not only the trajectory of U.S. climate policy but also the boundaries of lawful governance in an era where global problems demand enduring legal commitments.
Author Bio: Kelli Cigelnik is a dual Juris Doctorate and Masters of Climate and Environmental Policy student at Vermont Law and Graduate School. She serves as Editor-in-Chief for Vermont Law Review Vol. 50 and Vermont Journal of Environmental Law Vol. 27. Kelli went to undergraduate at the University of Illinois at Urbana-Champaign, receiving degrees in Integrative Biology and Political Science, with a minor in Earth, Society, and Environmental Sustainability and a concentration in Civic Engagement. She has always been fascinated with how the biological sciences interacts with law and policy. Kelli spent last summer working at the Office of the Illinois Attorney General in its Environmental Bureau. She hopes to continue this work in the environmental sphere after graduation from VLGS.
[1] Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act, 74 Fed. Reg. 66,496 (Dec. 15, 2009).
[9] Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act, 74 Fed. Reg. 66,496 (Dec. 15, 2009). The six gases are: carbon dioxide, methane, nitrous oxide, hydrofluorocarbons (HFCs), perfluorocarbons (PFCs), and sulfur hexafluoride. The EPA found that these gases are “well mixed” in the atmosphere meaning their concentration is roughly the same everywhere, regardless of where they were emitted, and they collectively contribute to climate change.
[10]Seeid. at 66,538; Reconsideration of the Endangerment Finding and Greenhouse Gas Vehicle Standards, 90 Fed. Reg. 36,299, 36,306 (Aug. 1, 2025).
[11] Reconsideration of 2009 Endangerment Finding and Greenhouse Gas Vehicle Standards, 90 Fed. Reg. 36,288, 36,298 (proposed Aug. 1, 2025).
[13]Id. at 36,305; See, e.g., West Virginia v. EPA, 142 S. Ct. 2587, 2609 (2022) (holding that Congress did not grant the EPA in Section 111(d) of the Clean Air Act the authority to set emission caps based on shifting generation from fossil fuels to renewables); King v. Burwell, 576 U.S. 473, 485-86 (2015) (involving a question of deep “economic and political significance”); Util. Air Regul. Grp. v. EPA, 473 U.S. 302, 324 (2014) (noting that Congress should “speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance’” (quoting FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 160 (2000)).
[14] Massachusetts v. EPA, 549 U.S. 497, 532 (2007).
[15] Reconsideration of 2009 Endangerment Finding and Greenhouse Gas Vehicle Standards, 90 Fed. Reg. 36,288, 36312 (proposed Aug. 1, 2025) (stating that “[t]he CAA does not authorize the EPA to regulate international sources of emissions”).
[21]See Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 57 (1983) (holding that an agency must provide a “reasoned analysis” for changing its decision on a regulation); FCC v. Fox Television Stations, 556 U.S. 502, 515 (2009) (explaining that an agency need only merely prove that its new policy is “permissible” and that there are good reasons for it).
[22] Reconsideration of 2009 Endangerment Finding and Greenhouse Gas Vehicle Standards, 90 Fed. Reg. 36,288, 36,296 (proposed Aug. 1, 2025); see Memorandum from Lee Zeldin, Administrator, Environmental Protection Agency, to Russell Vought, Director, Office of Management and Budget (Feb. 19, 2025).
[23]See NRDC, Comments on Reconsideration of 2009 Endangerment Finding and Greenhouse Gas Vehicle Standards, 90 Fed. Reg. 36,288 (proposed Aug. 1, 2025).
[24] Reconsideration of 2009 Endangerment Finding and Greenhouse Gas Vehicle Standards, 90 Fed. Reg. 36,288, 36,299 (proposed Aug. 1, 2025).
[31]Seeid.; Massachusetts v. EPA, 549 U.S. 497, 533 (2007) (“Under the clear terms of the Clean Air Act, EPA can avoid taking further action only if it determines that greenhouse gases do not contribute to climate change or if it provides some reasonable explanation as to why it cannot or will not exercise its discretion to determine whether they do.”); see also Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 465–71 (2001) (reinforcing the idea that the EPA cannot consider cost when setting standards under the Clean Air Act unless Congress explicitly authorizes it); Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act, 74 Fed. Reg. 66,496, 66,507 (Dec. 15, 2009).
[37]See Pierre Friedlingstein et al., Global Carbon Budget 2023, 15 Earth Sys. Sci. Data 5301, 5304-05 (2023); Hannah Ritchie et al., CO₂ and Greenhouse Gas Emissions: United States: CO2 Country Profile, Our World in Data, https://ourworldindata.org/co2/country/united-states (last visited Dec. 7, 2025).
[39] Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act, 74 Fed. Reg. 66,496, 66, 543 (Dec. 15, 2009).
[41] NRDC, Comments on Reconsideration of 2009 Endangerment Finding and Greenhouse Gas Vehicle Standards, 90 Fed. Reg. 36,288 (proposed Aug. 1, 2025), at 50–51, 61, 74 (arguing the EPA’s invocation of the major questions doctrine distorts the separation of powers and undermines congressional and judicially affirmed environmental authority).
[42]West Virginia v. EPA, 142 S. Ct. 2587, 2608, 2609 (2022).
[43] Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42 (1983) (“[A]n agency changing its course by rescinding a rule is obligated to supply a reasoned analysis for the change beyond that which may be required when an agency does not act in the first instance.”); Id. at 43 (describing the “hard look” doctrine).
[44] Reconsideration of 2009 Endangerment Finding and Greenhouse Gas Vehicle Standards, 90 Fed. Reg. 36,288, 36,310 (proposed Aug. 1, 2025) (claiming “ongoing uncertainties in relevant scientific data and analyses”). The EPA briefly references a “Draft Regulatory Impact Analysis” (EPA-420-D-25-002, July 2025) but provides no substantive discussion or findings from it within the rulemaking record itself. Id. at 36,326. This superficial mention contrasts sharply with the extensive cost-benefit and peer-review documentation that accompanied the 2009 Endangerment Finding. The Draft Regulatory Impact Analysis is a brief, roughly 30-page document, which is far shorter than the hundreds of pages typical of a substantive EPA regulatory impact analysis, such as the 2009 Endangerment Finding’s 200-plus-page Technical Support Document. It includes no quantified estimates of costs or benefits, no sensitivity or uncertainty analysis, and no modeling of the economic, health, or environmental consequences of rescission. Lacking peer-reviewed sources or interagency review, it largely reiterates the policy rationale already presented in the Federal Register notice. In short, the document is procedural and narrative rather than a genuine, data-driven economic or scientific analysis. Compare U.S. Env’t Prot. Agency, Draft Regulatory Impact Analysis for the Reconsideration of the Endangerment Finding (EPA-420-D-25-003, July 2025) with U.S. Env’t Prot. Agency, Technical Support Document for Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act (EPA-HQ-OAR-2009-0171, Dec. 7, 2009). The EPA will have to rely on a final Regulatory Impact Analysis before issuing a final ruling on rescinding the endangerment finding. The final Regulatory Impact Analysis must still contain data-driven economic and scientific analysis.
[45] A Critical Review of Impacts of Greenhouse Gas Emissions on the U.S. Climate, Dep’t of Energy (2025). The National Academy of Scientists issued a scathing critique of this report and concluded that “the evidence for current and future harm to human health and welfare created by human-caused greenhouse gases is beyond scientific dispute.” Effects of Human-Caused Greenhouse Gas Emissions on U.S. Climate, Health, and Welfare, Nat’l Academies of Scis., Eng’g, and Med. (2025).
[46] Env’t Def. Fund, Inc. v. Wright, 1:25-cv-12249-WGY (D. MA. Sep. 17, 2025).
[54]SeeU.S. Env’t Prot. Agency, Inventory of U.S. Greenhouse Gas Emissions and Sinks: 1990–2022, at 2-13, ES-6 (Apr. 2024); see alsoEndangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act, 74 Fed. Reg. 66,496, 66,517 (Dec. 15, 2009); Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units (Clean Power Plan), 80 Fed. Reg. 64,662, 64,672 (Aug. 3, 2015).
[55] Reconsideration of 2009 Endangerment Finding and Greenhouse Gas Vehicle Standards, 90 Fed. Reg. 36,288, 36,298 (proposed Aug. 1, 2025).
[56]SeeU.S. Env’t Prot. Agency, Inventory of U.S. Greenhouse Gas Emissions and Sinks: 1990–2022, at ES-6 (Apr. 2024) (showing that transportation accounted for 37.4% of CO2 emissions from fossil fuel combustion and that industrial CO2 emissions accounted for 26.3% of CO2 emissions from fossil fuel combustion).
[57]See Andrew S. Coghlan, Cong. Rsch. Serv., LSB11320, EPA To Revisit Greenhouse Gas Endangerment Finding 1 (2025).
[60]Motor Vehicle Mfrs. Ass’n v. State Farm, 463 U.S. 29, 42–44 (1983) (explaining that an agency must supply a reasoned explanation for rescinding prior policy); FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515–16 (2009) (acknowledging that changing course requires acknowledging and justifying the change).
[61] Util. Air Regul. Grp. v. EPA, 573 U.S. 302, 324 (2014) (“We expect Congress to speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance.’” (quoting FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 160 (2000)); Massachusetts v. EPA, 549 U.S. 497, 528-35 & n.26 (2007) (rejecting Chevron deference because the statute is clear that GHGs are “air pollutants”).
[62]West Virginia v. EPA, 142 S. Ct. 2587, 2609–11 (2022) (describing how clear-statement rules protects separation of powers where agencies claim transformative authority).
Environmental Destruction Through Deregulation Written by Eric Grimes and Rachel Westrate
In the decades since the first federal environmental statutes were passed, generations of people have worked to prevent and mitigate environmental harms. Yet, the second Trump Administration has prioritized dismantling environmental initiatives. From day one, the Trump Administration began stripping environmental protections by targeting past executive orders, agency officials, regulatory rulemaking, and international agreements.[1] In spite of growing public health and environmental concerns, the President has showed no signs of slowing down.
This article explores the Trump Administration’s environmental deregulatory agenda, which is causing immediate environmental harm and will create long lasting difficulty in the government’s ability to protect the environment. First, this article will give a brief history of pivotal federal environmental protections. Second, it will address some of the key protections the Trump Administration has removed or plans to remove and the tactics the Administration has used for deregulation. Last, we will turn to what this deregulation means for the future of environmental regulation and potential avenues for mitigating further harm.
I. The Brief and (Mostly) Bipartisan History of Environmental Regulation
Starting with federal pollution controls in the late 1940s, environmental legislation has long been the corner stone of environmental protection in the United States.[2] The passage of the Federal Water Pollution Control Act in 1948, which was amended in 1972 and again in 1977 to then become the Clean Water Act (CWA), and the Clean Air Act (CAA) in 1963, marked the beginning of federal regulation for the benefit of environmental health. In the years that followed, many more regulatory acts were passed focused on the protection or control of wilderness, wildlife, emissions, waste disposal, contaminates, and more.[3] Among those acts was the 1964 Wilderness Act, the 1969 National Environmental Policy Act (NEPA), and 1970 act creating the Environmental Protection Agency (EPA), each of which have been instrumental in the protection of key parts of our environment.[4] As the United States environmental movement gained traction, conservation become a priority, leading to the passage of the Endangered Species Act in 1973, the Resource Conservation and Recovery Act (RCRA) in 1976, the National Energy Conservation Policy Act in 1978, and the Fish and Wildlife Conservation Act in 1980.[5] All of these original statutes were passed with bipartisan support – in fact, six of the eleven were signed by Republican Presidents and 10 were passed with at least a 2/3 majority in the House and/or Senate with some being almost unanimous.[6] The Environmental Protection Agency, after all, was created under President Richard Nixon.[7]
As transboundary environmental issues, such as the depletion of the ozone layer and climate change, began to rise in the global consciousness in the late 1980s and 90s, the United States worked with international partners to address these harms. These international initiatives, supported by U.S. involvement, culminated in the Montreal Protocol in 1987, which was key in reversing ozone depletion, and the United Nations Framework Convention on Climate Change in 1992, which has worked to slow and reverse climate change and its resulting harms.[8] United States environmental legislation and regulation shifted to focus on international solutions, with bipartisan support to pass the 1987 Global Climate Protection Act; 1990 Clean Air Amendments to implement the Montreal Protocol; and the 1990 Global Change Research Act.
Due to the complexity of environmental issues and the continually changing science that must inform environmental protection, Congress specifically designed federal environmental statutes to be regulatory in nature and delegate authority to pass environmental regulations to agencies. Agencies are typically made up of experts in the sectors which they are charged with regulating. Additionally, in order to implement new, change old, or remove regulations, the Administrative Procedure Act (APA) requires agencies to receive public comment on their proposed action. This process allows scientists, industries, and the general public to comment on rules, contribute to the research supporting them, and inform the agency on the likely impacts to them. With this information, agency experts are able to make regulatory decisions based on a wide range of information and perspectives. Some of the most notable regulatory successes have been those created under the CAA, which have decreased certain air pollutants by 78 percent since 1970; those create under the CWA, which prevents 700 billion pounds of pollutant from entering our waters each year; and those supporting the Endangered Species Act, which have been credited with saving 99 percent of listed species from extinction.[9] Each of the acts, initiatives, and policies mentioned above has, largely through regulatory action, successfully improved aspects of the environment and contributed to an improved quality of life from the individual to global scale.
However, in the past 20 years, the United States has seen the politicization of the environment and the technical agencies which protect it.[10] A clear manifestation of this shift in environmental perspective is the Paris Climate Agreement, a widely accepted international agreement intended to combat the impacts of climate change on a global scale. In the 10 years since the Paris Agreement was signed, the United States has entered the Agreement under Democratic Administrations and been withdrawn from it under both the first and second Trump Administrations.[11] Another representation of the polarized climate has been the increased use of the Congressional Review Act (CRA) which allows Congress, through a simple majority vote in each chamber and signature from the President, to invalidate agency rules before they go into effect.[12] Since the passage of the CRA in 1996, 16 of the 20 times the Act has been used were during Trump’s first presidency in which the President and the Republican controlled Congress repealed many Obama-era regulations.[13] In order to avoid repeal of major regulations, the Biden Administration passed many of its key regulations at the beginning of Biden’s term, beginning a norm of passing large quantities of regulations early in a presidential term.[14] With this divide being the widest and most hostile it has ever been, the Trump Administration has made anti-environmental policy a key priority of its agenda.
II. Trump’s Deregulatory Tools and Environmental Targets
The second Trump Administration has taken this politicalization of environmental regulations to a new level. Even with President Trump’s short time back in office, the Administration has slashed far too many environmental regulations to cover one article. Several of these actions have captured national attention: the reconsideration of the greenhouse gas “endangerment” finding which allows EPA to regulate climate pollution; the recission of the Roadless Rule which protects our National Forests; and the dismemberment of the Council on Environmental Quality and rescission of all National Environmental Policy Act regulations, just to name a few.[15] While this article will mostly focus on deregulatory action within the EPA, Trump’s deregulatory agenda goes beyond the landmark regulations, and far deeper into the administrative state.
Just over a month after President Trump appointment him, EPA Administrator Lee Zeldin made “the largest deregulatory announcement in U.S. history”.[16] In pursuing his goal of “driving a dagger into the heart of the climate change religion,” Administrator Zeldin announced 31 planned administrative actions.[17] Among those actions is the planned “reconsideration” of many fossil fuel power plant regulations including air pollution standards, toxics standards, wastewater standards, and greenhouse gas reporting requirements; “reconsideration” of the Endangerment Finding and its resulting regulations and actions; redirection of enforcement resources; and the termination of many Biden-Harris programs and policies aimed at supporting clean energy development and environmental justice.[18] Time has shown that “reconsideration” means the rollback and/or removal of all of these regulations.[19] These actions will allow coal, oil, and gas industries to emit levels of pollution not seen for decades, and result in the contamination of the environment and the endangerment of human health.
In support of his deregulatory agenda, President Trump and Administrator Zeldin have expanded their tactics and begun relying on tools outside the normal rescind and revise process mandated by the APA. Below are several of those tools, and how they are being used to weaken environmental regulations.
Traditional Deregulation: Through traditional APA processes, President Trump and Administrator Zeldin have begun deregulatory action on many environmental regulations. One of their primary targets is the Mercury and Air Toxic Standards (MATS) which regulates hazardous air pollutants emitted from coal- and oil-fired power plants.[20] Mercury, a main regulated pollutant in the MATS, exposure can be extremely harmful to the environment and the brain functions and development of people and animals, especially children and pregnant women.[21] The Biden-era regulation, proposed in 2024, would have resulted in an over 65% reduction in toxic metal emissions, over $300 million in public health benefits, and reductions in other harmful air pollutants such as particulate matter and nitrous oxides.[22] Under a new EPA proposed rule, certain portion of the MATS will be repealed or revised to loosen the requirements on coal- and oil-fired power plants and allow them to significantly increased their emission of mercury and other pollutants.[23] The EPA is required to receive, consider, and respond to public comment on proposals; however, the EPA is allowed to weigh all information and its priorities as it sees fit. While a final rule has not been produced yet, any repeal or revisions to the MATS providing power plants greater leniency in their mercury emissions will have a direct impact on public health and the environment.
The Courts: The Trump Administration is using the judicial system to provide justification for deregulatory actions and encouraging courts to allow a bypass of typical administrative procedure. With the U.S. Supreme Court having not only a strong conservative majority, but three Trump appointed Justices, the Administration has been able to take advantage of and encourage further anti-regulation court decisions. Using a recent Supreme Court decision24] as support, the Trump Administration has pushed Administrator Zeldin to revise the definition of what are considered “waters of the United States” (WOTUS) and therefore subject to regulation under the CWA.[25] The new EPA rule will narrow the definition of WOTUS such that the new definition would only protect an estimated 19 percent of currently mapped wetlands.[26] This new rule will leave waters that had historical been protected by the CWA act vulnerable to degradation and pollution for years to come.[27]
The Trump Administration has also worked to weaponize lower federal courts. On September 11, 2025, the EPA filed a motion in the District of Columbia Circuit Court requesting they vacate Biden-era regulatory standards on four per- and polyfluoroalkyl substances (PFAS).[28] PFAS are manufactured chemicals that can be found in drinking water and many other products that can be harmful to reproductive health, developmental health, increase cancer risk, and cause many more harms.[29] Not only is the request to vacate PFAS standards a clear attempt to bypass the rulemaking process, but it would allow many harmful chemicals into our drinking water without regulation.[30] With deregulation coming from the very institution meant to uphold public protections, the harm of deregulatory action is imminent.
Defunding: Another avenue the Administration has used to implement its deregulatory agenda is defunding programs. A key example of this tactic is the freezing and withholding of tax incentives and grant monies provided from the Inflation Reduction Act (IRA).[31] Without access to the incentives provided in the IRA, many projects and programs focused on the bolstering of solar and reduction of greenhouse gases to meet stricter regulations will have to cease work or be abandoned entirely not to mention the impacts of removing benefits to individuals and families.[32]
Administrator Zeldin has also used defunding as a form of deregulation by making significant reductions in staff and budget of programs. Since Trump took office in January 2025, nearly 4,000 employees have either left or been laid-off from the EPA removing up a quarter of its workforce.[33] In July 2025, Administrator Zeldin boasted a “savings” of $748.8 million through staff reductions and budget cuts.[34] The most recent Trump Administration budget proposals clearly indicate the President’s intention to deregulate environmental protections.[35] Among the many funding cuts requested in the budget proposal, the Administration is requesting an appalling 54% reduction in funding to the EPA.[36] If this extreme a reduction in funding were to be approved, the EPA would have no choice but to operate at a fraction of its former capacity. Without sufficient staff, the EPA will have severely limited capacity hindering its ability to adequately regulate and enforce environmental protections. Through Administrator Zeldin’s defunding initiatives, the EPA will have limited resources and personnel to competently conduct its work and protect the environment.
The Administration’s direct deregulation, court supported efforts, and defunding discussed here make up a small portion of the harm the Administration has done in the EPA and an even smaller portion of the Administration’s efforts government-wide. With all these harms to be felt from just a portion of the Trump Administration’s deregulatory agenda in the EPA, the United States wide impacts from President Trump’s deregulatory agenda are likely to be exorbitant.
III. What’s Next
While the impacts of Trump’s environmental deregulation will be seen immediately with more polluted air, water, and land, the effects of this Administration on the ability of regulatory agencies to do their jobs will be long lasting. In the Trump Administration’s efforts to “cut waste,” the Administration has caused numerous agency employees to leave either through termination or encouraging their departure.[37] The New York Times estimates that around 300,000 federal workers will have permanently left the federal government by the end of 2025.[38] With a reduced work force, federal agencies will have a majorly reduced compacity to carry out their work. This leads to reduced research to inform regulation, ability to propose rules and comply with regulatory processes, and ability to enforce the regulations in place thereby minimizing the regulatory power of the agencies.
However, those outside the federal government are still fighting for environmental protection. Many states and environmental groups have filed lawsuits against the Trump Administration or government agencies to challenges regulatory repeals or ensure the federal government is carrying out its duty.[39] Many organizations and individuals have submitted comments on proposed regulatory rules.[40] Others, such as the Environmental & Energy Law Program at Harvard Law School and the Sabin Center for Climate Change Law at Columbia Law School, have made efforts to track the deregulatory efforts.[41] Each of these efforts and others will be essential, especially for the durations of the Trump Administration, to slow and/or block the environmental deregulatory agenda.
Conclusion
The Trump Administration is attacking environmental regulation on all fronts. From emissions and pollution to conservation and preservation to environmental consideration and enforcement, the Trump Administration has made clear its intention to rollback and remove as many environmental protections as it can. Without these regulatory protections, our environment and communities will once again be vulnerable to the harms that environmental regulations have worked to prevent. With the second Trump Administration only just beginning, the danger will only grow and the harms expand. The importance to protect the regulations that have long protected us has never been greater.
Author Bio: Eric Grimes is a third-year law student at Vermont Law and Graduate School. Eric is a Managing Editor for Vermont Law Review Vol. 50 and Vermont Journal of Environmental Law Vol. 27.
[10] E. Keith Smith, M. Julia Bognar & Adam P. Mayer, Polarisation of Climate and Environmental attitudes in the United States, 1973–2022, npj Climate Action 3, 2 (Jan. 10, 2024).
[21] U.S Env’t Prot. Agency, Regulatory Impact Analysis for the Final Mercury and Air Toxics Standards (2011); National Emission Standards for Hazardous Air Pollutants From Coal- and Oil-Fired Electric Utility Steam Generating Units and Standards of Performance for Fossil-Fuel-Fired Electric Utility, Industrial-Commercial-Institutional, and Small Industrial-Commercial-Institutional Steam Generating Units, 77 Fed. Reg. 9304 (Feb. 16, 2012) (to be codified at 40 C.F.R. pts 60, 63).
[22]Biden–Harris Administration Finalizes Suite of Standards to Reduce Pollution from Fossil Fuel–Fired Power Plants, U.S. Env’t Prot. Agency (Apr. 25, 2024), https://perma.cc/EJ2G-UEK6.
[23] National Emission Standards for Hazardous Air Pollutants: Coal- and Oil-Fired Electric Utility Steam Generating Units, 90 Fed. Reg. 25535 (June 17, 2025) (to be codified at 40 C.F.R. pt. 63).
[39] Air Alliance Houston, et al., v. Donald Trump, No. 1:25-cv-01852 (D.D.C. June 12, 2025) (challenging the repeals to Mercury and Air Toxics Standards); Texas Env’t Just. Advoc. Servs., et al. v. Donald Trump, et al., No. 25-03745 (D.D.C. Oct. 22, 2025) (challenging Ethylene Oxide Emissions Standards exemptions granted by the Trump Administration).
[40] Hazardous and Solid Waste Management System: Disposal of Coal Combustion Residuals from Electric Utilities; CCR Management Extension Rule; Withdrawal of Direct Final Rule, 90 Fed. Reg. 42708 (Sep. 4, 2025) (to be codified at 40 C.F.R. pt. 257) (rescinding a EPA regulation due to receipt of adverse comments); Env’t Prot. Agency, Public Comment on Reconsideration of 2009 Endangerment Finding and Greenhouse Gas Vehicle Standards, Regulations.gov (Sep. 22, 2025), https://www.regulations.gov/document/EPA-HQ-OAR-2025-0194-0093/comment.
