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The leaders of the National Science Foundation have scrapped a plan to limit pay raises for some staffers after the proposal prompted outrage among employees and calls for the agency’s leadership to resign.

NSF Director Sethuraman Panchanathan and Chief Operating Officer Karen Marrongelle told staff in an email Wednesday afternoon that the agency will “NOT be implementing the proposal that prematurely went to staff last week.”

That message followed a staff revolt over an NSF plan to give some professional scientists at the agency a 1 percent pay increase this year after President Joe Biden authorized a 4.6 percent average pay raise for most federal civilian employees.

E&E News reported earlier Wednesday that furious NSF staff had booed agency leadership and called on managers to resign during a contentious town hall gathering held Tuesday. An NSF union leader called the meeting a “shit show” (Greenwire, Feb. 1).

All eligible agency staff, the Wednesday email said, “will receive the full 4.1% increase plus any appropriate locality pay, which totals 4.6% total for the D.C. area.”

NSF leaders had proposed limiting the raises of 334 staffers who are paid on an “administratively determined” pay scale, putting them outside the “general schedule” pay scale that applies to most of the federal workforce. The affected staff members are not junior staffers, said an agency spokesperson, but rather employees who earn $198,690 or more annually.

The agency is attempting to ensure that there is equity among salaries within the agency, said an NSF spokesperson. General schedule and senior executive service pay is capped under the law, while the “administratively determined” salaries are not subject to a cap.

“As we look to address equity issues agency-wide, an important aspect is the pay differentiation between the AD, SES, and GS pay scales which must be addressed,” the NSF leaders said in their email. “To be clear, we will use a transparent process to develop a strategy to address this equity challenge as well as some of the other topics that were raised at the listening session yesterday.”

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Government scientists at an influential research agency are furious about their Trump-appointed boss’s plans to give some staffers marginal pay increases that fall short of other federal workers’ raises.

Internal meetings and emails have gotten heated, and some employees want the director to resign.

Employees at the National Science Foundation recently learned about management’s plans to give some professional scientists at the agency a 1 percent pay increase this year after President Joe Biden authorized a 4.6 percent average pay raise for most federal civilian employees.

Staff and union leaders are livid about the move, which they view as an insult to the agency’s professional scientists, an assault on morale and a contradiction to Biden’s pay promises. They detailed their complaints in a document circulated by an employee union. Government workers and their allies in Congress had hoped for an even higher across-the-board pay raise in 2023 after an annual inflation rate of 6.5 percent in 2022.

“There’s been a huge uproar” since word spread about the plan to cap some employees’ pay raises, said an NSF employee who was granted anonymity to protect professional relationships. “Tons of reply-all staff email chains.”

Outrage boiled over during an all-staff meeting Tuesday, where some employees urged leaders to resign and staff members booed the NSF human resources director, according to participants.

It was “a shit show,” said David Verardo, president of American Federation of Government Employees Local 3403, which represents NSF workers. About 1,000 staffers gathered in person and online for the town hall with agency management. It was scheduled to last an hour, but stretched to two.

William Malyszka, NSF’s human resources management director, “was literally booed” during the meeting, Verardo said, and staffers were using the chat function to call for the NSF director and other leaders to resign.

Verardo had never seen such a thing in his 23 years as an NSF employee, he said. “Scientists aren’t particularly emotionally expressive,” he said.

“Everyone was furious,” said another NSF staffer who was granted anonymity to protect professional relationships. One employee in the meeting congratulated leadership because the staffer had never seen NSF workers as united behind something as they are now over “how terrible this is.”

Staff are ‘pissed’

Sethuraman Panchanathan. Photo credit: Francis Chung/E&E News
National Science Foundation Director Sethuraman Panchanathan on Capitol Hill April 13, 2021.
| Francis Chung/E&E News

NSF Director Sethuraman Panchanathan, a Trump appointee confirmed in 2020 for a six-year term, didn’t attend the meeting.

Staffers were “pissed off that he wasn’t in attendance and thought he was a coward for not showing up,” Verardo said.

Panchanathan was attending a previously scheduled bilateral meeting with India at the White House, according to an NSF spokesperson.

Panchanathan sent staff an email Tuesday evening saying he had been “debriefed” on the discussion, which he understood to be “difficult but productive.” He added, “I want to let you know that we have heard your comments and that I am adjusting my schedule to meet with you at the soonest opportunity,” he said in the email obtained by E&E News.

Verardo sent a scathing email earlier this week to Panchanathan and NSF’s chief operating officer, Karen Marrongelle. “Sadly, you have broken trust with staff and no one who considers themselves a leader can continue without that trust; a major course correction is required,” Verardo wrote in the Monday email.

Verardo told the leaders they should apologize and offer the affected staffers the full salary increase available to them. If they can’t raise the salaries, Verdadero added, resignation “is your only option.”

Although he’s serving a six-year term, Panchanathan serves at the pleasure of the president. “Unless he gets on board with the Biden administration’s attitude toward labor and the workplace, to me, he needs to be replaced,” said Verardo.

“People are pissed … that this is a continuation of the Trump administration’s attitude toward the workforce,” he said.

The White House did not immediately respond to a request for comment.

The NSF spokesperson said in an email that no final decisions have been made on the pay plans and that “NSF leadership’s current focus is correcting the inaccurate information prematurely shared with staff and to hear from staff potentially impacted by this change if it is made.”

The agency received “some valuable feedback” during Monday’s listening session, the spokesperson added.

Most of the 334 staffers who would receive the lower raise under the proposal are program directors, the spokesperson said. They’re paid on an “administratively determined” pay scale, putting them outside the “general schedule” pay scale that applies to most of the federal workforce.

The affected staff members are not junior staffers, said an agency spokesperson, but rather employees who earn $198,690 or more annually.

Verardo told union members in a Jan. 26 email that the science agency’s leadership expressed a desire to keep the program directors’ salaries lower to create more of a pay gap between them and senior managers at the agency.

The NSF spokesperson said that any extra funds under the pay plan would not go toward other employees. “IF the proposal was implemented those funds would not go to [senior executive service] staff. As previously stated, there is an equity issue that needs to be fixed for the long-term,” the spokesperson wrote, since general schedule and senior executive service employees have salary caps set by law, but the affected “administratively determined” employees do not.

The NSF is an Alexandria, Va.-based independent federal agency that employs about 2,100 people, including 1,400 career employees, scientists on temporary loan from research institutions and contract workers. The agency has an annual budget of $9.5 billion and funds about one-quarter of all federally supported basic research in U.S. colleges and universities.

Everett Kelley, national president of the American Federation of Government Employees, penned a letter to Panchanathan this week berating the pay plan.

“It is stunning that in an era where the federal government is struggling to recruit and retain employees with advanced degrees in STEM fields, you have taken it upon yourself to insult and impoverish the scientists who lead scientific programs mandated by the U.S. Congress,” Kelley wrote.

Panchanathan, Kelley added, is demonstrating “a blatant lack of concern for the welfare of your workforce, the ability of NSF to recruit and retain scientists” and the good of the agency.

“It is not too late to switch course and do the right thing,” Kelley said, by granting the full NSF staff the 4.6 percent salary increase.

Politico reporters Daniel Lippman and Sam Stein contributed. 

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The Biden administration’s clean energy goals may hinge on actions this year at the Department of Energy, the Department of Interior and the Federal Energy Regulatory Commission.

In coming months, officials at DOE are planning to disburse billions of dollars in grants to boost clean energy innovation, while Interior is set to release a new offshore drilling plan and FERC is readying new interstate transmission rules. With 21 months until the next presidential election, agency actions also could influence how Democrats campaign next year in their quest to keep the White House.

But top federal officials are facing challenges in implementing new funding and regulations enacted in the Investment and Jobs Act and the Inflation Reduction Act. Any blunders are sure to spark fierce backlash from newly-empowered House Republicans, who are charging ahead with energy-focused oversight investigations and moving long-shot bills to open public land for oil and gas development.

“Any sort of failure could land like a ton of bricks,” Christine Tezak, a managing director at energy analysis firm ClearView Energy Partners LLC, said earlier this month about challenges facing distribution of DOE funds (Energywire, Jan. 27).

Here are nine federal officials who will play a critical role in determining the direction of clean energy deployment, oil and gas leasing and interstate transmission in 2023. Several await potentially bruising confirmation battles, and all of them are expected to play a part in executing Biden’s unprecedented emission reduction goals.

DOE

Overseeing infrastructure law funds 

As the current head of the Office of Clean Energy Demonstrations, David Crane will guide more than $20 billion authorized in the infrastructure law to help make sure clean energy projects are deployed at commercial scale.

Energy Secretary Jennifer Granholm tapped Crane last year to run the office, which is aiming to support carbon capture, hydrogen, battery storage and advanced nuclear, among other technologies. The OCED is currently accepting applications for hydrogen and long-duration storage grants.

“As Director of OCED, Crane has showcased his keen understanding of the industries and markets that will deliver an equitable clean energy future and a clear vision for DOE implementation of the President’s ambitious agenda,” DOE said in a statement. “We’re hopeful that the Senate will move quickly on the Director’s nomination and look forward to his confirmation.”

Crane is nominated to serve as under secretary for Infrastructure at DOE. Confirmation will put him in charge of OCED as well as the Loan Programs Office, the Grid Deployment Office and other parts of the DOE focused on demonstration and deployment. President Joe Biden renominated Crane for that position this Congress after Republicans blocked confirmation in 2022.

Experts who follow the agency closely say DOE needs to staff up on officials with business acumen, like Crane (Energywire, Jan. 27).

Although he served as president and CEO of the utility NRG Energy Inc. from 2003 to 2015 and took the company from Chapter 11 to Fortune 200 status, Crane is a federal government neophyte. In recent years, he was a top official at sustainability investment-focused Pegasus Capital Advisors LP. Decades ago, Crane was a senior vice president at the now-defunct Lehman Brothers Inc., a poster child for the 2008 financial crisis.

The fate of nuclear

Another relative political novice, Kathryn Huff, is running the Energy Department’s Office of Nuclear Energy after the Senate confirmed her last year. There, she will harness her expertise on small modular reactors (SMRs), which many in the administration are looking to as an emissions-free source that could power homes and businesses in the future without the cost and waste challenges that have dogged traditional plants.

Plans to deploy a small modular reactor in Utah got a boost after NuScale Power struck a deal with municipalities in Western states in January to sell the prospective power (Energywire, Jan. 10). NuScale is an SMR developer headquartered in Oregon.

“Our climate crisis requires terawatts of energy transformation, and so there will be plenty of room for gigawatts of advanced Generation III+ nuclear reactors,” Huff said at a Nuclear Innovation Alliance event this month, referring to a type of SMR.

Both traditional plants and SMRs are dogged by cost overruns and delays. The NuScale deal raises the price the company plans to sell the power for to $89 per megawatt-hour, roughly 50 percent above the previous terms it struck with the utilities. The pro-renewables Institute for Energy Economics and Financial Analysis called new cost estimates for the NuScale SMR “eye-popping.”

This year, Huff is also expected to make controversial decisions on whether to award $6 billion in bailout funds to struggling nuclear plants (Energywire, Jan. 30).

Huff has held several positions at DOE since joining the department in 2021, including principal deputy assistant secretary for nuclear energy and senior adviser in the secretary’s office.

Her nuclear expertise is rooted in the academic world. Prior to joining DOE, Huff was an assistant professor in the Department of Nuclear, Plasma and Radiological Engineering at the University of Illinois, Urbana-Champaign. She received her doctorate in nuclear engineering from the University of Wisconsin, Madison, in 2013.

In the middle of SPR wars

A DOE official with more than two decades of experience at the department, Douglas MacIntyre currently is running the Strategic Petroleum Reserve as deputy director of the Office of Petroleum Reserves.

The SPR, a set of caverns that house crude oil near the Gulf of Mexico, became a political football after Biden released an unprecedented 180 million barrels last year to bring down the price at the pump.

On Friday, the House passed legislation to limit the president’s ability to sell SPR crude unless the administration opens up corresponding public lands for drilling. All Democrats but Rep. Jared Golden (D-Maine) opposed the bill. On Jan. 12, Republicans and Democrats also teamed up to pass legislation in the House to prevent SPR sales to China.

MacIntyre is likely to find himself in the crosshairs of Republicans, who often paint the SPR drawdown as a political decision that weakens national security. The Energy Department also is facing calls to refill the SPR, which is currently about half full at more than 370 million barrels, its lowest level in decades.

“The mission of the Office of Petroleum Reserves is to protect the United States from severe petroleum supply interruptions through the acquisition, storage, distribution, and management of emergency petroleum stocks,” MacIntyre told a Senate committee in December. “In the event of a natural disaster or other national emergency, the U.S. can rely on these emergency stockpiles.”

The department rejected SPR purchase bids in early January because the offers were too high.

FERC

The chair’s adviser

While the names of FERC commissioners appear on decisions and rules, agency staff play a pivotal behind-the-scenes role on everything from environmental reviews to safeguarding energy markets against manipulation.

Those who work for the FERC chair are particularly influential, since the chair sets the agenda of commission meetings and chooses which rulemakings and proposals go up for a vote.

At the center of the agency’s current agenda is Ronan Gulstone, whom acting FERC Chair Willie Phillips appointed this month as his chief of staff. In the new role, Gulstone is expected to work closely with the chair and other commissioners, helping to ensure that rulemakings and proposals from the commissioners stay on schedule, said Neil Chatterjee, a former chair of FERC.

Gulstone’s position will likely touch all aspects of FERC’s authorities, from pipeline permitting to cybersecurity standards.

A former legal adviser to Phillips, Gulstone previously worked for Washington Mayor Muriel Bowser; for Washington, D.C.-based natural gas utility Washington Gas; and for Washington Councilmember Kenyan R. McDuffie. Phillips, a Democrat, also has ties to the city’s local government, having served as a commissioner and chair of the Public Service Commission of the District of Columbia prior to joining FERC in December 2021.

“I’ve gotten to know [Gulstone] a little bit through my relationship with Chairman Phillips. He’s someone the chairman trusts and has a long history with,” Chatterjee said. “I think that’s what Chairman Phillips needs in his chief of staff.”

Transmission for clean energy 

In another recent staff shake-up, Phillips named Karin Herzfeld as senior transmission counsel. She will guide the commission’s ongoing efforts to spur the development of more high-voltage power lines and reduce clean energy bottlenecks.

A 10-year veteran of FERC, Herzfeld began her career at the agency as an attorney-adviser. Her more recent roles include as legal adviser to Chatterjee, a Republican, and to Phillips beginning last year.

While working for Phillips, she advised the then-commissioner on transmission and grid connection issues. Prior to that, she was also the lead attorney overseeing compliance plans for Order 2222, a rule issued in 2020 to remove barriers facing small-scale clean energy resources in electric power markets. 

Given her experience, Herzfeld is a “perfect person” to help guide the commission on its transmission planning and grid interconnection proposals, said Christy Walsh, a senior attorney at the Natural Resources Defense Council’s Sustainable FERC Project.

“Given the urgency of transmission for the energy transition, we need her expertise on the commission now more than ever,” said Walsh, who worked at FERC for 18 years, including on some projects with Herzfeld.

Law and environmental justice

As FERC’s general counsel, Matthew Christiansen is involved in “virtually everything the commission works on,” said Larry Gasteiger, a former chief of staff at FERC. A big part of the job is keeping commissioners and the chair up-to-speed on legal requirements.

The general counsel can act as a liaison among the chair and other commissioners, or among different offices at FERC, added Gasteiger, who is now executive director of the Wires Group, a trade association that advocates for high-voltage transmission development.

Christiansen was a legal adviser to Richard Glick before the former chair promoted him to his current job in 2021. A spokesperson for Phillips’ office said Christiansen “has done an incredible job” and will help maintain consistency on policy issues at FERC with Glick’s departure.

“It provides some level of continuity in the process and that should help smooth things with the transition,” Gasteiger said.

Notably, Christiansen has also been named as a potential contender for an open commission seat at FERC (Energywire, Jan. 17).

One outstanding question is who will lead FERC’s efforts to incorporate environmental justice and equity in its decisions. Montina Cole, FERC’s former senior counsel for environmental justice and equity, joined the agency in 2021 to help lead that effort at FERC, but she stepped down from the job last month.

FERC is currently soliciting nominations to participate in a roundtable discussion on environmental justice and equity issues on March 29. By that time, Phillips hopes to have hired a new senior counsel for environmental justice and equity, according to the spokesperson for his office.

Interior

Second-in-command

The Interior Department’s second-in-command, Tommy Beaudreau, will be a key figure in keeping the department on track this year as it tries to carry out the Biden administration’s energy agenda on everything from offshore drilling to new methane regulations.

Beaudreau could have his eyes on several issues. Interior continues to build back its Bureau of Land Management after losing a significant chunk of employees during the Trump administration’s movement of bureau headquarters to Colorado. The massive public lands agency is also juggling major decisions that could shape the energy sector for years — a five-year offshore oil program, ambitious goals to deploy renewable energy on federal lands, ConocoPhillips’ proposed Willow project in northern Alaska and the fate of the Arctic National Wildlife Refuge, where the Biden administration is required to hold an oil and gas sale under a congressional mandate by next year.

Alaska-raised Beaudreau started his federal career in the Obama administration to reform a then-dispirited offshore energy agency — the Bureau of Ocean Energy Management, Regulation and Enforcement, which would later become the Bureau of Ocean Energy Management with Beaudreau as its first director. He was nominated as Interior deputy secretary by the White House in 2021 as a compromise to GOP lawmakers. Some Republicans said at the time they saw him as less hostile to fossil fuels than a prior Biden pick, though they were not explicit about why he’d won that reputation.

Beaudreau was known to several lawmakers, and prior to rejoining the Interior Department in 2021, Beaudreau was a partner at Latham & Watkins LLP, where he worked with a host of large energy companies, including offshore wind developers, coal firms and oil drillers, according to his financial disclosure documents (E&E Daily, April 23, 2021).

The apparent low level of political hostility towards Beaudreau could prove valuable for the administration with a Republican-controlled House likely to press Biden political appointees on energy issues in the year ahead.

While not always in the spotlight, Beaudreau is also responsible for keeping the sprawling department running behind the scenes for the more public facing Interior Secretary Deb Haaland, a responsibility that traditionally falls to the deputy.

A White House liaison 

Laura Daniel-Davis has been waiting for more than a year for Senate confirmation as assistant secretary of land and minerals management — a role that would give her authority over Interior’s energy-focused bureaus: the Bureau of Land Management, the Bureau of Ocean Energy Management, the Bureau of Safety and Environmental Enforcement and the Office of Surface Mining Reclamation and Enforcement.

But that long delay — sparked by disagreements between the White House and Sen. Joe Manchin (D-W.Va.) over oil and gas leasing on public lands and waters — hasn’t stopped Daniel-Davis from being a significant shaper of policies at those bureaus.

Interior schedules show she is part of an inner circle shaping the Interior Department’s energy decisions with input from the White House. Her fingerprints will be on the final offshore oil and gas leasing plan due out this year — a critical document that will determine how much access the oil industry has to federal stores of fossil fuels beneath the ocean floor.

Earlier this month, the White House renominated Daniel-Davis, who worked for former Interior Secretaries Sally Jewell and Ken Salazar during the Obama administration, for a third time, earning praise from conservation groups (E&E Daily, Jan. 24).

“Her knowledge and experience on America’s public lands are crucial to President Biden’s energy agenda,” said Center for Western Priorities Director Jennifer Rokala in a statement. “This job is simply too important to leave empty for another year.”

Driving the five-year oil plan

As the new director of the Bureau of Ocean Energy Management, Elizabeth Klein has recently taken the reins of one of the White House’s most significant energy policies: a five-year plan for offshore drilling.

The bureau’s five-year program due out this year will determine the pace of oil and gas lease sales off the nation’s coasts.

While it is unlikely to match drilling access compared to historic norms, it could maintain ongoing auctions to satisfy a congressional mandate making offshore wind leasing contingent on offshore oil sales. In any case, the oil plan is expected to draw criticism from both oil and gas supporters and climate activists.

Klein was originally nominated to be Haaland’s deputy, but after a flurry of opposition from GOP lawmakers, she took on an advisory role at the Interior Department in the early days of the Biden administration while the deputy position went to Beaudreau. She became BOEM director last month.

In taking over the bureau at such a pivotal moment for offshore drilling, Klein’s decisions potentially could make her a target for GOP lawmakers on Capitol Hill (E&E Daily, Jan. 12).

Klein will also be overseeing the rapid-fire activity the Biden administration has planned to advance offshore wind. BOEM is developing new lease sales for wind in the Gulf of Mexico and potentially the Gulf of Maine and continues environmental reviews of over a dozen offshore wind farms. The administration is aiming to reach a target to approve 16 wind farms by 2025. BOEM has so far approved two.

Klein is a former lawyer with New York University’s State Energy & Environmental Impact Center and previously worked in several roles at Interior during the Clinton and Obama administrations.

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Forget electric vehicles, wind turbines or pipelines. Congress’ most consequential climate battles this year are more likely to revolve around dirt and cows.

The five-year farm bill is scheduled to expire by Oct. 1, making it one of the few must-pass legislative items under this divided Congress. The Senate Agriculture, Nutrition and Forestry Committee on Wednesday is holding its first hearing on the legislation, with many more to follow in both chambers.

The sprawling bill — likely to encompass roughly a half-trillion dollars in spending — shapes broad swaths of American life, from the crops farmers choose to grow to the kinds of food low-income families can afford. Both advocates and critics increasingly see the farm bill as a potentialclimate bill, too.

That’s thanks in part to the Inflation Reduction Act allocating about $20 billion of climate money to preexisting farm bill programs. Historic drought in the West and other climate-fueled problems also have made the issue more difficult to ignore. Finally, the farm bill presents a rare opportunity for federal officials to get a handle on climate pollution from agriculture, which has been rising for decades and, unlike other sectors, shows few signs of peaking.

“The farm bill is probably going to be the piece of legislation in the next two years with the biggest impact on the climate and the environment,” said Peter Lehner, managing attorney for Earthjustice’s Sustainable Food and Farming Program.

Some Republicans are eyeing the farm bill as a chance to redirect climate money to other agriculture programs, such as crop subsidies, while other conservative lawmakers want across-the-board spending cuts. Those GOP divisions have some observers worried that the latest farm bill could get delayed or derailed in the House, like it was in 2012.

Democrats and climate advocates are more united; they’re trying to defend the climate funding they’ve already passed while building the case for more. That’s a different dynamic from even the recent past. The 2018 farm bill passed while Republicans held full control of government, and though it drew bipartisan support, its climate programs were kept deliberately low-key.

Now, Democratic control of the Senate will empower progressives to fight for climate programs. But it’s not purely partisan. Climate advocates say even some Republicans have grown more willing to consider climate in the farm bill, as long as those programs are voluntary.

“We couldn’t even use the word ‘climate’ five years ago when talking about the farm bill,” said Scott Faber, vice president of government affairs for the Environmental Working Group, who has worked on five previous farm bills.

“So it is a sea change that Democrats and Republicans are both talking about climate,” he continued, saying there’s a bipartisan recognition that farmers bear the costs of climate impacts and they have an important role in cutting emissions. “Where there’s conflict is not about whether USDA should help farmers reduce emissions, but the extent to which [they do] and how we provide the resources.”

Most of the farm bill’s climate policy comes from its conservation title, and the Inflation Reduction Act supersized those programs — though it left considerable discretion on implementing them to the Department of Agriculture. For instance, the biggest of those programs is the Environmental Quality Incentives Program, which pays farmers for planting cover crops and doing other conservation work that sequesters carbon. But the three-decade-old program also subsidizes work that doesn’t affect emissions or could worsen them (Climatewire, Aug. 19, 2022).

Advocates hope the Inflation Reduction Act’s extra climate funding creates a self-reinforcing cycle of support, with climate funding creating demand among farmers to keep those programs going. But in the meantime, some Republicans want to stop that money from going to climate programs at all.

“There is so much money being thrown into climate change,” Rep. Doug LaMalfa (R-Calif.), chair of the Agriculture panel’s Conservation Subcommittee, told POLITICO. “CO2 is not responsible. Especially American-produced CO2, I mean we’re a tiny part of the whole thing.”

Other top Republicans have been more circumspect. Rep. Glenn Thompson (R-Pa.), chair of the House Agriculture Committee, has said farmers already have proven they can boost productivity without polluting more. But he’s also promised to “make sure the Farm Bill doesn’t become the climate bill.”

Climate advocates have their own priorities they’d like to advance through the farm bill, such as expanding the climate practices covered by USDA’s Natural Resources Conservation Service. But that’s secondary to defending the funding boost from the Inflation Reduction Act.

“The IRA funding for conservation and climate change will be the biggest fight in this farm bill,” said Erica Campbell, policy director at Kiss the Ground, a nonprofit that is part of a coalition called Regenerate America that is pushing conservation policy in the farm bill.

At stake, advocates say, is whether agriculture finally begins to catch up to the climate action from other sectors.

Agriculture is responsible for about 11 percent of U.S. climate pollution, according to EPA data, with emissions gradually rising since 1990. Agricultural and waste emissions are likely to remain “effectively flat” through 2035, according to modeling by the Rhodium Group.

By comparison, the power sector is decarbonizing so quickly that, according to Rhodium’s modeling, by 2035 it could emit less greenhouse gas than agriculture.

“There’s historic money invested in this, and there are some people that want to take it away,” Agriculture Secretary Tom Vilsack said at this week’s winter meeting of the National Sustainable Agriculture Coalition.

The farm bill’s crop subsidies and insurance programs have massive long-term impacts on what is grown in the United States and where, Lehner said.

Electricity and other sectors have been working to cut emissions for a generation, he added, whereas agriculture is just beginning to get serious about it.

“EVs are cheaper and better. Solar energy is cheaper than coal energy. There’s been tremendous progress, but it’s taken decades,” he said. “We’re 30 years behind in that same type of effort on agriculture.”

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A top Senate Republican is promising to ramp up oversight of EPA’s Clean Water Act veto power after the agency used its authority to block a contentious gold and copper mine in Alaska’s Bristol Bay, home to a world premier salmon fishery.

Senate Environment and Public Works ranking member Shelley Moore Capito (R-W.Va.) blasted EPA’s final determination that barred waters within the Bristol Bay watershed from receiving dredge and fill. The federal action essentially killed the proposed mine.

Capito accused the agency of circumventing the agency review process and said upcoming talks on permitting reform legislation may address the issue. Capito and 38 other Republicans last year floated a bill called the “Simplify Timelines and Assure Regulatory Transparency (START) Act.”

“The environmental permitting process should have clear rules of the road, both for applicants and for the agencies to follow,” said the senator. “The EPA summarily denying an application before it is submitted sets a dangerous precedent for future economic development and infrastructure projects across the country.”

EPA stated considering vetoing Pebble during the Obama administration, before the mine had entered the permitting process. The Army Corps of Engineers denied a Clean Water Act Section 404 dredge-and-fill permit, but the company behind it appealed. EPA this week used its veto power over such permits to make sure the mine is never built.

Capito, a longtime critic of EPA’s history with vetoes, said her legislation would address retroactive decisions that have “negatively impacted West Virginia in the past” and said she will be “examining the agency’s use of prospective vetoes as well.”

The senator’s comments were a direct nod to EPA’s decision in 2011 to reject permits for the Spruce No. 1 mountaintop-removal coal mine years after the Army Corps initially gave the project its blessing.

Biden officials who handed out the latest veto, including EPA Administrator Michael Regan, emphasized that they have used the authority sparingly — just 14 times throughout the agency’s history — including to block the Pebble and Spruce mines.

EPA and its defenders used that argument in the past when congressional Republicans launched a barrage of investigations and legislation opposing the agency’s veto power and trying to limit its use.

Alannah Hurley, executive director of the United Tribes of Bristol Bay, hailed the Biden EPA’s final determination as a “great step forward” and said that “our tribes and people will continue working to build a sustainable future for Bristol Bay,” adding that “our work will not be done until every inch of our traditional homelands are protected.”

Praise, pushback

Sen. Maria Cantwell (D-Wash.).
Sen. Maria Cantwell (D-Wash.). | Francis Chung/E&E News

Congressional Democrats came out in force Tuesday to endorse EPA’s decision, including Rep. Jared Huffman of California and Sen. Maria Cantwell of Washington, who have spent years pushing the agency to veto Bristol Bay mining.

“No company will ever be able to stick a mine on top of some of the best salmon habitat in the world,” Cantwell said during a Senate floor speech.

Rep. Rick Larsen of Washington, the new top Democrat on the House Transportation and Infrastructure Committee, said “the administration did the right thing by protecting this pristine area that is an important economic driver for Alaska and the entire Pacific Northwest, where salmon is both a historic part of our culture and supports tens of thousands of jobs.”

Transportation and Infrastructure Republicans were silent on EPA’s latest action but will likely take it up once the new Congress gets going.

Capito said EPA must ensure “clear rules of the road” for both applicants and agencies.

Alaska delegation divided

Sens. Lisa Murkowski (R-Alaska) and Dan Sullivan (R-Alaska) and Rep. Mary Peltola (D-Alaska).
Sens. Lisa Murkowski (R-Alaska) and Dan Sullivan (R-Alaska) and Rep. Mary Peltola (D-Alaska) during a delegation meeting on Capitol Hill. | @lisamurkowski/Twitter

Alaska Republican Sens. Lisa Murkowski andDan Sullivan in statements voiced similar concerns and warned that EPA’s approach could have a chilling effect in their state.

“EPA’s final determination should mark the end of Pebble, which was already rejected by the agency in 2020 and does not have the access, permits, financing, public support, or disposal sites needed to proceed,” said Murkowski. “As [former] Senator [Ted] Stevens once said, it is the ‘wrong mine in the wrong place,’ and does not deserve to move forward — for good reason.”

Murkowski said that while she opposes Pebble, she also supports “responsible mining in Alaska, which is a national imperative” and that EPA’s final determination “must not serve as precedent to target any other project in our state and must be the only time EPA ever uses its veto authority under the Clean Water Act in Alaska.”

The Biden administration, she said, has now “further sealed Pebble’s fate” while emphasizing that the federal government has a responsibility to advance other mining projects to help wean the U.S. off foreign dependence and avoid looming shortages.

Lobbying spending

Pebble has leaned on lawmakers in the past to help make its case against an EPA veto. Between 2018 and 2020, Pebble spent more than $1 million a year on lobbying Washington. That went down to $10,000 last year, according to records filed with Congress.

The company now looks like it’s beefing up its lobbying spending. Northern Dynasty Minerals Ltd., Pebble’s parent, hired the firm Steptoe & Johnson LLP last month to lobby for the project’s approval, the firm disclosed this week.

It’s unclear how much Pebble can achieve in a divided Congress, especially when previous lawmaker pressure failed to quash EPA’s action against Bristol Bay mining.

Alaska Attorney General Treg Taylor told E&E News that the state plans to sue the agency, not to protect Pebble but to defend its property rights. Mine developers have also sued EPA several times over the years.

Alaska’s freshman House Democrat Mary Peltola said she supported the veto while acknowledging lingering concerns.

“Protecting Bristol Bay, and the world’s largest sockeye salmon fishery, has been a bipartisan effort from the very beginning. After decades of regulatory uncertainty, I hope that this ruling gives the people who live and work in Bristol Bay the stability and peace of mind they deserve and the confidence that this incredible salmon run will no longer be threatened,” Peltola said in a statement.

“I also understand that some Alaskans might be disappointed by this decision. To all of you, know that I am committed to our state’s development and to helping local communities build robust economies with good-paying jobs.”

Pebble and beyond

Pebble is the administration’s second anti-mining action this month as the White House and lawmakers from both parties look to increase domestic mineral extraction for the clean energy supply chain.

Interior Secretary Deb Haaland withdrew more than 225,000 acres in Minnesota’s Superior National Forest from new mining claims for 20 years to protect the Rainy River watershed, including the Boundary Waters Canoe Area Wilderness (Greenwire, Jan. 26).

Rep. Pete Stauber (R-Minn.), chair of the Natural Resources Subcommittee on Energy and Mineral Development, called it an “attack on our way of life.” “Unfortunately,” he said, “this harm to our country and our future has become the norm, as this President’s goal is to put America last.”

Rep. Betty McCollum (D-Minn.) on Tuesday revived legislation to prohibit mining near the Boundary Waters forever, saying the area’s “irreplaceable values compel permanent protection.”

Even without Pebble, which has generated more than a decade of debate, Congress was going to focus on mining this year. EPA’s veto just gave lawmakers more to consider.

Reporters Manuel Quiñones and Timothy Cama contributed.

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General Motors Co. tossed a financial lifeline Tuesday to a controversial Nevada mining project that would tap the nation’s largest known supply of lithium, a critical mineral for electric vehicle batteries.

GM said it will make a $650 million equity investment in Lithium Americas Corp. and jointly develop the proposed Thacker Pass mine on 5,700 acres of federal land in north Nevada — if the project survives a federal lawsuit challenging the Trump administration’s January 2021 project approval.

The move by GM represents the largest single investment to date by an automaker in a lithium mining project, according to a joint statement from GM and Lithium Americas.

Lithium Americas estimates the Thacker Pass mine could produce enough lithium to support the production of as many as 1 million EVs annually.

GM Chair and CEO Mary Barra hailed the partnership as a major advancement in the company’s stated plan to manufacture up to 1 million EVs a year beginning in 2025. The company is currently assembling EVs at manufacturing plants in Michigan, Tennessee and Ontario.

GM last year pledged to sell only zero-emissions vehicles by 2035 and has committed to invest in domestic battery plants, EV manufacturing and charging stations (Greenwire, Oct. 26, 2021).

Barra said in a statement Tuesday that GM’s plan would require the company to be able to “draw from domestic resources like the site in Nevada we’re developing with Lithium Americas.”

But the construction and operation of the Thacker Pass project are far from certain.

Opponents of the mine in February 2021 filed a federal lawsuit challenging that approval.

A coalition of conservation groups argue in the legal complaint that the Bureau of Land Management rushed its analyses of the mine’s environmental impact and that it would destroy greater sage grouse habitat, as well as habitat for Lahontan cutthroat trout, pronghorn antelope and golden eagles (Greenwire, March 1, 2021).

That lawsuit, filed in the U.S. District Court for the District of Nevada, is ongoing.

With the Biden administration working to promote renewable energy and wean the nation off fossil fuels, the Thacker Pass mine — and the Rhyolite Ridge proposed lithium-boron mine in southwest Nevada — has drawn substantial industry interest, particularly from companies like GM that need lithium to manufacture EVs.

Ford Motor Co. in July announced it had signed an agreement to obtain more than 7,000 metric tons of lithium carbonate over five years from the proposed Rhyolite Ridge mine (Greenwire, July 21, 2022).

Less than a month later, Rhyolite Ridge signed a supply deal with battery manufacturer Prime Planet Energy & Solutions Inc., a joint venture between Toyota Motor Corp. and Panasonic Corp., in which the battery manufacturer would get 4,000 metric tons of lithium carbonate annually from the mine over a five-year period (Greenwire, Aug. 1, 2022).

But as with Thacker Pass, Rhyolite Ridge’s approval is fraught with uncertainty. BLM is evaluating it, but the mine would be located near a rare wildflower the Fish and Wildlife Service listed last year as an endangered species.

Complicating matters for the Thacker Pass mine is a formal petition filed last year by the Western Watersheds Project — one of the plaintiffs in the mine lawsuit — requesting that FWS consider listing the Kings River pyrg, a tiny springsnail species, as endangered or threatened (Greenwire, Sept. 12, 2022).

The Kings River pyrg lives in small springs to the east of Kings River Valley and in the mountainous spot where Thacker Pass would be built, and it’s known to live only in a handful of these springs.

Advocates argue that pumping water during construction and operation of the mine would decimate the snail population by depleting the groundwater that feeds the springs.

The Western Watersheds Project blasted the GM-Lithium Americas partnership and the contention from GM that the plant is needed to help build millions of EVs.

“The claim that this is a ‘sustainable domestic supply of lithium’ is only true if you define ‘sustainable’ as permanently destroying sage grouse habitat, dewatering desert springs, causing unique species to go extinct, and disrespecting the Indigenous people who have ties to this area,” said Greta Anderson, WWP’s deputy director. “Mining Peehee Mu’huh and disregarding the environmental and cultural effects isn’t green. It’s a travesty.”

GM noted in Tuesday’s announcement that the $650 investment will be split into two parts and that the first, expected by the end of this year, is contingent on winning the lawsuit.

The second depends, in part, on Lithium Americas securing the funding needed to develop and support operation of the Thacker Pass mine.

On that note, Lithium Americas President and CEO Jonathan Evans said in a statement that the partnership with GM represents “a major milestone in moving Thacker Pass toward production.”

Evans added, “We are pleased to have GM as our largest investor, and we look forward to working together to accelerate the energy transition while spurring job creation and economic growth in America.”

The announcement states that Lithium Americas estimates production at Thacker Pass could begin by the end of 2026.

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The Biden administration finalized a rare veto to block a massive gold and copper mine in Alaska’s pristine Bristol Bay watershed, but the brawl over the deposit, fueled by global clamor for materials to be used in low-emissions technology, could keep the region in the spotlight.

Developers are already vowing to fight EPA’s final determination in court, calling the move illegal and unprecedented. Others who have spent years fighting the project in one of the world’s premier salmon fisheries are quick to note mining could crop up in other areas around the region (Greenwire, May 27, 2022).

The decision is seen as a major victory for Alaskan tribes that for more than a decade have fought the Pebble project.

Alannah Hurley, executive director of the United Tribes of Bristol Bay, said protections in the final determination are a “great step forward” and that “our tribes and people will continue working to build a sustainable future for Bristol Bay,” adding “our work will not be done until every inch of our traditional homelands are protected.”

John Shively, CEO of Pebble LP, a subsidiary of Canadian mining company Northern Dynasty Minerals, slammed EPA’s decision.

“This preemptive action against Pebble is not supported legally, technically or environmentally,” he said. “As such, the next step will likely be to take legal action to fight this injustice.”

EPA’s Pebble decision is part of a series of moves Biden administration officials have made this week to block areas from development, including cementing protections for the Tongass National Forest in Alaska and restricting mining in Minnesota’s Boundary Waters Canoe Area Wilderness for decades.

The mining restrictions have fueled Republican and industry accusations that Democrats are pushing an aggressive climate agenda while failing to secure domestic mines and supply chains (E&E Daily, March 3, 2022).

EPA’s determination marks just the 14th time that the agency has issued such a veto. In the last 30 years, for example, EPA used the authority just twice — once to kill a World War II flood control project in Mississippi and a second time to halt a sprawling mountaintop-removal project in Appalachia (Greenwire, Jan. 30).

In its final determination for Pebble, EPA concluded the mine, as proposed, would damage the region’s fisheries and backed a finding from the Region 10 office that nearly 100 miles of protected stream habitat and more than 2,000 acres of wetlands and other federally protected waters would be permanently destroyed (Greenwire, Dec. 2, 2022). The decision bars developers or other miners from dumping dredge or fill into three specific watersheds in Bristol Bay, a move seen as critical to protecting fisheries and tribal culture there.

EPA Administrator Michael Regan on a Monday call with reporters acknowledged the decision could be challenged in court and said he could not predict whether a future administration would attempt to overturn the decision. But he also insisted the work is based in “sound science,” a strong record and extensive dialogue with tribal nations.

“There is a very solid record here that we’re very proud of for these two determinations,” said Regan.

Despite Pebble’s vow to fight, experts say the company should expect tough sledding in court, and it’s not clear a future administration would reverse course. Carl Tobias, a professor at the University of Richmond School of Law, said developers won’t likely have much luck given the composition of the district court in Alaska and the 9th U.S. Circuit Court of Appeals — where a lawsuit would likely land — and that litigation would likely be lengthy and costly.

“Who knows what’s going to happen in 2024,” said Tobias. “But I just don’t see that litigation is the path. It seems pretty unlikely they’re going to prevail.”

Restricted to Pebble proposal

The saga around the Pebble mine has been marked with repeated denials and setbacks, as well as intrigue around possible political influence and secret recordings.

The Obama administration in 2014 moved to block Pebble’s use of certain waters and watersheds. Under the Trump administration in 2020, the Army Corps of Engineers rejected Pebble’s permit application, finding the project would likely damage the Bristol Bay ecosystem — a move that the company then appealed.

That same year, covertly recorded videos from an environmental group sting surfaced showing Pebble mine developers touting their relationship with Alaska Gov. Mike Dunleavy (R), as well as their ability to lobby the White House. In the tapes, then-Pebble Partnership executives revealed their goal to extend the copper and gold project from the current 20-year mine proposal to a 180-year mining district at the headwaters of Bristol Bay (Greenwire, Sept. 22, 2020).

And last year, EPA’s Region 10 office published a recommended determination calling for the mine, as proposed, to be vetoed.

Regan told reporters Monday that the decision was specific to the Pebble mine plan of 2020 and does not address other resources in Alaska, where Dunleavy has offered a warm welcome to the mining sector.

“By no means is this meant to send any signals beyond this specific project,” said Regan.

The final determination leaves open the door for future projects that don’t damage the Bristol Bay watershed in the same way.

But Radhika Fox, EPA’s assistant administration, emphasized that the agency’s determination ensures Pebble cannot move forward even if it wins its ongoing administrative appeal before the Army Corps and secures needed permits.

“Army Corps could not approve this project given the 404(c) determination has been made, unless the Pebble company were to somehow amend their proposal and that a future proposal does not have the similar adverse effects of this proposal,” said Fox.

Reactions, warnings

Environmental groups, tribal nations and Democrats celebrated the veto as a historic win, while the decision was met with skepticism and concerns by Alaska Republicans and the mining sector.

“The Environmental Protection Agency’s Final Determination is a landmark conservation decision that will protect Bristol Bay for generations to come,” said Tim Bristol, executive director of SalmonState.

“Today is a great day for Bristol Bay, and one that many thought would never come,” said Bristol Bay Native Corp. CEO Jason Metrokin. “While the immediate threat of Pebble is behind us, BBNC will continue working to protect Bristol Bay’s salmon-based culture and economy and to create new economic opportunities across the region.”

But Republicans and industry groups warned the veto could have a far-reaching chilling effect in Alaska and vowed to ramp up oversight.

The National Mining Association in a statement warned that the Biden administration is pushing an electrification agenda and energy priorities that rely on access to minerals and metals all while blocking domestic mining. “This end-run of the proper permitting process creates significant regulatory uncertainty for the mining industry during a crisis point for minerals demand,” the group wrote.

Republican Sen. Dan Sullivan of Alaska in a statement said that although he opposes the Pebble mine, he’s also against EPA’s pursuit of a “preemptive veto” that raises legal questions and “has the potential to establish a very troubling precedent for resource development” of state land.

“I pressed the EPA administrator to acknowledge that today’s EPA decision does not set a precedent for other major mining and resource projects in Alaska, which he did publicly today,” said Sullivan. “I encourage other Alaska elected leaders to join me in holding the entire Biden administration to this public commitment.”

House Republicans in particular will scrutinize EPA’s decision and propose legislation to undo it. In the past, the GOP has been wary of preemptive Clean Water Act vetoes and has probed the agency’s actions related to Pebble.

In a statement, Dunleavy echoed Sullivan’s concerns.

“EPA’s veto sets a dangerous precedent,” he said. “Alarmingly, it lays the foundation to stop any development project, mining or non-mining, in any area of Alaska with wetlands and fish-bearing streams.”

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HALFWAY BETWEEN ROCK SPRINGS AND RAWLINS, Wyo. — Here, at a critical node in President Joe Biden’s plan for a national electric vehicle charging network, there is nothing.

No parking lot, no service station, no sign that anyone wants to set up shop here. Just some tire tracks in the snow by a barbed wire fence and the whoosh of vehicles speeding by on Interstate 80. This overwhelming vacancy is why Wyoming kicked up a dispute that could sap Americans’ confidence in a future EV charging network. Offered millions of federal dollars to build chargers at locations like this one, the state said no.

“Wyoming has no desire to establish infrastructure that will likely fail,” the state said in its plan for how to spend EV-charging dollars from the 2021 bipartisan infrastructure law.

At the heart of the conflict are the federal government’s strict rules over how frequent high-power stations should be along the nation’s interstate highways. The Biden administration says that to assuage Americans’ doubts, the plugs should be installed every 50 highway miles, no matter how remote the site is.

Wyoming doubts whether EVs will come in sufficient numbers to justify the huge expense of building and maintaining a powerful charging station in the middle of forest or prairie — and it has lots of company among red-leaning Western states.

In comments to the federal government last year, Wyoming was joined by Idaho, Montana, North Dakota and South Dakota in saying the program would be “hard to implement in rural states” if the Biden administration did “not implement the provisions with flexibility.”

“There are concerns in those big rural states,” said Jim McDonnell, who tracks state plans as director of engineering for the American Association of State Highway and Transportation Officials. “How much it’s going to cost, and to get electricity out to these far-flung locations.”

It’s hard to make the case for electric vehicles in any rural area, because people drive long distances and often pull trailers — two habits that drain an EV’s battery especially fast.

Wyoming stands out because it is just about as unsuited to EVs and EV drivers as it is possible to be.

The state endures bitterly cold winters — another battery killer — and has a proud tradition of saying no to federal priorities it doesn’t care for, like Medicaid expansion. It harbors suspicion of green technologies as the nation’s leading producer of coal. And with only about 500 people owning EVs in Wyoming, according to federal data, there aren’t many drivers pleading for charging stations.

And Wyoming’s elected officials are some of the most stalwart EV opponents in Washington, D.C. The state’s senior senator, John Barrasso (R), and its former sole member in the House of Representatives, Liz Cheney (R), were co-sponsors in 2021 of the “Eliminate Lavish Incentives to Electric (ELITE) Vehicles Act,” a failed effort to end the federal government’s consumer EV tax credits.

That said, Wyoming’s response was more interesting than a simple no.

The Cowboy State didn’t reject the federal money, exactly. It said it would build some stations on interstates but not others, and went on to make its own creative suggestion.

It asked the feds to instead fund chargers on the smaller highways that serve its tourist jewels, like Yellowstone National Park and Grand Teton National Park — routes that don’t fit into a formula but see a lot more Tesla traffic than the interstates do. The approach is supported by another arm of Biden’s government, the National Park Service.

In the end, the authorities in charge of the charging dollars said no. And so the perennial struggle between states and the federal government over the limits of federal power around entered the EV era.

What the feds want

At issue is the National Electric Vehicle Infrastructure (NEVI) Formula Program. It comes from a pot of $7.5 billion EV infrastructure funding that Congress created in 2021.

It is starter money, a down payment on the half-million charging stations that Biden promised as a presidential candidate. Transportation is the biggest source of America’s carbon pollution, and Biden argues that the United States can’t zero out its emissions without an economywide move to electric vehicles.

Funds get disbursed by a formula to each state, and each state’s transportation department comes up with a plan for how to spend it. The federal government picks up 80 percent of the infrastructure costs, with the remainder coming from state or private sources.

But there’s a catch: No matter how the state might want to channel its portion, the Biden administration insists it must first build out deluxe charging stations on major highways.

Specifically, it has to build on what are called alternative fuel corridors. Those are routes that states have identified as their priorities for reducing emissions. Most states have chosen federal interstate routes, as they get the most traffic.

The 50-mile proviso is just one rule. The charging plaza must also be no more than a mile from the highway. And it is to be equipped with at least four charging stations, each capable of delivering 150 kilowatts of electricity, which is enough to mostly refill an EV’s battery in 20 to 40 minutes.

The Biden administration’s approach was created by the Joint Office of Energy and Transportation, a unique agency that sits between the federal departments of the same name and was created to deploy charging infrastructure. Its goal has been to instill confidence among new drivers that a charger is always nearby. It is the cornerstone of, as the office says on its website, “a convenient, reliable, affordable, and equitable public charging network.”

Weeds and wind

Wyoming’s partial refusal carries consequences for both road-tripping Americans and Wyomingites.

EV drivers on three major arteries — Interstates 80, 90, and 25 — will in parts of Wyoming have to struggle across charging deserts of 100 miles or more. EV batteries don’t yet provide the range of a gasoline tank, and the gaps could make a long trip harder.

Most of Wyoming’s existing fast chargers are run by Tesla Inc. They’re of limited use to the general public because they only serve Teslas.

“More folks will have to rely on Level 2” — slow — “charging overnight if they’re not going to be near a charging station,” said Leilani Gonzalez, policy director for the Zero Emission Transportation Association, a Washington, D.C., group that advocates for EV policies. “They might have to take alternate routes.’’

For its part, Wyoming could lose control of a jackpot.

The state’s portion of EV-infrastructure funding is $27 million, parceled out over five years. If the highway network isn’t built out first, the feds have warned, other projects that the state might want more might not be funded.

Wyoming officials seem to be at peace with that possibility.

In its plan, Wyoming declared it would spend zero of its own money to build any highway charging stations. It asked the Biden administration for 11 exceptions, or locations where it argued highway stations should not be required. Together, Wyoming’s moves signal the state’s deep skepticism that there’s enough homegrown interest or future EV drivers to turn charging into a viable business.

After looking at “economic, environmental, infrastructure, daily vehicle miles traveled (DVMT) data, and EV market penetration analysis,” the state’s plan said, it concluded that the federal requirements “would not allow any single NEVI-sized station to be profitable in Wyoming until the 2040s.”

Since the government’s funding lasts only five years, the state sees an unbridgeable gap between the end of federal aid and the beginning of profitability — especially at 50-mile intervals where the land is so empty that not even a gas station will venture there.

In some areas, the state’s analysis concluded, there wouldn’t be enough drivers to keep a station in business even if every Wyomingite went electric tomorrow. This lack of local drivers, combined with doubts about whether interstate travelers will use the stations, has local officials foreseeing a federal boondoggle.

As Luke Reiner, the director of the state’s transportation department, put it in an interview, the result of millions of dollars of taxpayer investment could be “a charger with weeds growing up around it and wind blowing through it.”

The big empty

Highway between Rock Springs and Rawlins, Wyo.
Land and sky: 50 miles out of Rock Springs, Wyo., where future electric drivers could use a recharge, there's nothing but barbed wire and a cattle grate. | David Ferris/POLITICO's E&E News

Underlying officials’ thinking, and stretching in every direction, is Wyoming’s extraordinary emptiness.

The U.S. census says the state last year had 581,000 residents, or roughly the population of Baltimore, but dusted over a landmass larger than Michigan. Such underpopulation makes the 50-mile rule difficult. One reason can be found on Interstate 80, the coast-to-coast highway that cuts across Wyoming's south.

Oddly, the few towns to be found along the midsection of this route — Rock Springs, Rawlins, Laramie — are spaced at intervals of about 100 miles. That is twice as far as the 50-mile spacing the Biden administration wants for charging stations.

Why is the drive so long? It’s the legacy of another form of transportation.

Those towns grew up around stops on the Union Pacific railroad line. One hundred or so miles is how far a train could travel in the late 19th century before it needed its own kind of recharge. That is “how far a crew and their locomotive could go before rest and maintenance would be necessary,” said Randolph Ruiz, a senior adjunct professor at the California College of the Arts who is knowledgeable about settlement in the West.

Other states also had these 100-mile intervals and filled in the gaps over time with new cities. Not Wyoming. Today’s Interstate 80 is the same stark parade of bluffs and buttes it has been for centuries, picturesque in its cowboy charm but empty of people.

“The 50-mile rule makes a lot of sense on the Eastern Seaboard or California, where the space between stations is one giant city,” said Jesse Kirchmeier, a special projects manager at the Wyoming Department of Transportation who wrote the state’s plan.

But a charging station plopped 50 miles between the interstate’s towns, Kirchmeier expects, will fail without a commercial host that foresees enough customers and profit to build some amenities. Without them, both EV driver and the station could be forlorn.

“Tough to avoid vandals, graffiti, no bathroom,” he said. “No place to buy food.”

'A weird dichotomy'

The surprising thing is that even in Wyoming, there are pockets of interest in EVs and the prospect of federal help to build plug centers.

“A weird dichotomy” is what Mike Yin calls it. He is one of only two members of the state Legislature who drive an EV. His district — and his blue Tesla Model S — are in Jackson, the skiing and rafting haven south of Grand Teton where nearly all the state’s EVs are registered.

When he drives his Tesla across the state to the capital in Cheyenne, “people joke if I need to have a diesel generator to carry around so I can charge the battery,” he said. “But there’s also interest because it goes very fast, and people wonder what it would be like to have a car like that.”

He added that the Ford F-150 Lightning, the electric version of America’s bestselling vehicle, has some of his fellow Wyomingites wondering if EVs could be for them.

Kirchmeier, the author of the state's EV infrastructure plan, is "not anti-EV at all,” he said.

He thinks the federal government is right to be funding charging infrastructure — but sees the interstate as the wrong place.

The right places, he said, are the routes that serve the national parks. Yellowstone and Grand Teton, along with Devils Tower National Monument, account for the bulk of the state’s $4 billion of tourism revenue, according to the state tourism office. None of Wyoming’s interstates — the focus of federal EV charging funding — go directly to these parks.

The parks are served by a web of smaller U.S. highways that aren’t eligible.

The state’s study estimated that more electric miles are driven getting to the parks — mostly Teslas from states farther west like California, Oregon and Washington — than on all the interstates put together.

So the state recommended that the Joint Office of Energy and Transportation give EV infrastructure funding to “individuals / businesses that wish to host ... stations near the park entrances or inside the parks themselves.”

That plan got an endorsement last summer from Michael Reynolds, the director of the National Park Service’s regional office that serves a big swath of the Intermountain West. “Residents and out-of-state travelers that embrace EV technology will be able to visit our national parks with confidence that the EV infrastructure in Wyoming is supportive,” he wrote.

How could it end?

The Joint Office in September rejected Wyoming's national park plan. It also took a dim view of the state’s desire to avoid building certain stations, turning down eight of the state’s 11 requests.

Elsewhere, the feds and the state found themselves aligned.

For example, the state will gladly build at some interstate locations recommended by the Biden administration, as long as it forecasts EVs traveling there. Seven stations will be installed at an estimated cost of $12 million as part of the Wyoming Department of Transportation’s blueprint. On Interstate 25, between the small cities of Casper and Cheyenne, two stations will rise at Douglas and Wheatland. Another will come to Buffalo, where I-25 terminates at Interstate 90.

Along Interstate 90, the state will add stations at Sheridan, near the Montana state line, and near the South Dakota border at Sundance. And on Interstate 80, it will put in charging plazas at Laramie and at Pine Bluffs.

The reasons that Wyoming doesn’t want to build other stations fall into two buckets. One objection relates to the feds’ no-more-than-a-mile-from-the-highway rule.

On Interstate 80, for example, the state refused to build a station in either Rawlins or Cheyenne. In both cases, there are stations nearby that fit the federal rules — but sit more than a mile from an offramp. Both are run by charging network Electrify America.

The other bucket has to do with the many locations that have nothing but cows and rocks for neighbors.

It is not clear how the standoff between Wyoming and federal funders will end. For now, everyone is being conciliatory.

The Joint Office said in a statement to E&E News that it’s “working closely with Wyoming and all States, Puerto Rico and DC to implement their approved year 1 EV charging plans that will begin the critical task of building our national EV charging network.”

And Reiner, the head of the Wyoming Department of Transportation, said that if the state’s assumptions are wrong, his department “will modify the plan.”

But if they remain at loggerheads, the Biden administration has a last resort.

According to the program’s rules, if a state declines to build charging infrastructure, the money is redirected to local cities and groups that work in the same area.

That approach grew from an Obama-era economic recovery aid package in 2009. Then as now, some states refused to take money to build federal projects, said Transportation Secretary Pete Buttigieg. He spoke on the topic at the Texas Tribune Festival in Austin last September. The 2021 bipartisan infrastructure law, he said, got around the possibility of refusals with some “elegant policy design.”

“If a state decides not to apply, instead of penalizing people who live in that state for their leaders' choices, it’ll just revert to communities, mayors who might have some ideas on how to spend it,” Buttigieg said.

But it is uncertain whether anyone along Wyoming lonely interstates will take up that banner. The Biden administration might be hard pressed to find local allies in regions where almost no one lives. And with Wyoming officials having forsworn spending any state money to support federal goals, the only other candidate is the private sector. What charging network wants to pony up and build its plugs where only the buffalo roam?

“There’s really nothing out there,” said Jerimiah Rieman, the executive director of the Wyoming County Commissioners Association. And because of that, he added, “we know the private sector is not going to make that investment.”

Reporter Mike Lee contributed.

Correction: A previous version of the story misstated the location of the Sundance Film Festival.

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California’s decades-old right to impose its own automobile emissions standards could be on a collision course with a Supreme Court that has recently widened the target for challenges against EPA climate action.

Historically home to some of the nation’s worst air quality, California has for 50 years set pollution requirements stricter than those imposed by the federal government. But 17 Republican-led states have challenged that authority, arguing EPA violated the Constitution and states’ sovereign rights by granting California a Clean Air Act waiver allowing the Golden State to tackle planet-warming emissions on its own (E&E News PM, May 13, 2022).

The U.S. Court of Appeals for the District of Columbia Circuit is scheduled to hear oral arguments on California’s waiver in September. Environmental attorneys say the case could eventually land at the Supreme Court amid a conservative push to challenge the limits of the executive branch.

“A colleague often refers to these types of issues as SCOTUS bait,” said Jonathan Brightbill, a partner at Winston & Strawn LLP, during a recent Federalist Society webinar.

The state sovereignty discussion could serve as the vehicle that grabs the interest of the high court, which rejects most cases that come its way, said Brightbill, who served as principal deputy assistant attorney general of the Justice Department’s environment division during the Trump administration.

California’s waiver was revoked — for the first time ever — under former President Donald Trump, with EPA citing a need for national uniformity. The Biden administration restored the waiver in March, calling it an important part of the broader effort to tackle climate change.

A Supreme Court showdown over California’s Clean Air Act waiver could build on the justices’ blockbuster climate ruling in West Virginia v. EPA.

In the June 2022 decision, the justices applied a legal theory championed by conservatives to find that EPA under former President Barack Obama had overstepped by crafting a rule that required power plants to shift from coal to renewable energy sources. The “major questions” doctrine states that Congress must speak clearly in order to authorize agencies to regulate matters of “vast economic and political significance.”

“In the wake of their success in the Supreme Court in West Virginia and the recognition of the long-simmering, but now recognized, major questions doctrine, the collection of states has returned to see if they can make more law to further restrain the administrative state,” Brightbill said.

He noted Ohio and other states opposing the Clean Air Act waiver had introduced a “parade of horribles” that could result from upholding California’s authority. For example, the red states have said, Congress could allow some states, but not others, to boycott Israel. Or it could pass legislation that allowed one state to enact and enforce immigration laws.

“It does seem to me that they have standing to complain about whether the Congress has in effect disenfranchised them,” Brightbill said.

Robert Percival, director of the environmental law program at the University of Maryland, said challenges to EPA regulations are routine, but “after West Virginia v. EPA, [litigants] are inventing new constitutional doctrines to feed off the major questions doctrine now that the Supreme Court was willing to bite.”

Percival called California’s waiver a “bedrock principle of environmental law” and argued at the Federalist Society webinar that red states may have trouble proving they’ve been injured.

“The red states don’t like what the blue states are doing, so they are challenging it,” he said. “But it’s difficult for red states to say how they’ve been hurt in any way other than their feelings might be hurt because California was authorized to do something really cool and innovative that’s been a dramatic success over the years.”

Ripple effect

Ohio Attorney General Dave Yost, the Republican leading the D.C. Circuit challenge against EPA, argued that California’s waiver upsets parity among the 50 states.

“The equal sovereignty doctrine helps preserve the constitutional balance,” Yost told the court on Nov. 2. “When Congress unequally limits the states’ sovereignty — when it allows some states but not others to exercise some aspect of sovereign authority — it reorders the constitutional division of power among the states.”

He added that “giving one state special power to regulate a major national industry contradicts the notion of a union of sovereign states.”

A ruling against EPA would ripple through the vehicle industry: Eighteen states and the District of Columbia now follow California’s tougher rules, representing nearly 40 percent of the national auto market. California itself is the largest economy in the country and fifth globally.

California’s waiver has allowed the state to enact a package of regulations called the Advanced Clean Cars Program, which was first passed in 2012 and included a mandate for automakers to sell an increasing number of zero-emission vehicles in the state. In August, the California Air Resources Board banned the sale of new gas-fueled passenger vehicles after 2035 in a rule called Advanced Clean Cars II.

EPA has argued that the red states have no standing to bring their case because they’ve shown no harm.

“The relief they seek — lifting the waiver of preemption for California — would only deprive them of the power they presently have to adopt California’s standards into their own laws,” Todd Kim, head of DOJ’s Environment and Natural Resources Division, told the D.C. Circuit on Jan. 13. “As a result, they would have less sovereign power than they have presently.”

Percival said the waiver protects California’s sovereignty because the smog-choked state was the only one that had its own auto emissions standards when the Clean Air Act was enacted.

Beyond issues such as bankruptcy and naturalization, Percival said, the Constitution has few “explicit guarantees of equal treatment among states.”

‘Friends of the court’

Interested parties have been filling the docket to support — or criticize — Ohio’s claims against California’s waiver ahead of the September D.C. Circuit argument.

Fossil fuel industry groups in Texas, Louisiana and Oklahoma wrote in a “friend of the court” brief that the waiver has given California outsize power over the U.S. car market, and oil-producing states are “undeniably dependent on the industry.”

They warned that the program, which they said is part of a Biden administration effort to “drastically reduce or even eliminate” internal combustion engine vehicles, poses a “clear and present danger to the oil and gas industry’s, the states’, and the nation’s prosperity and survival.”

The groups — the Texas Oil & Gas Association, Louisiana Mid-Continent Oil & Gas Association and Petroleum Alliance of Oklahoma — said the rule would decrease demand for gasoline for nearly half of the new vehicle market, imposing a “direct catastrophic impact” on their states, “as well as on the national economy.”

Health groups, including the American Medical Association and the American Academy of Pediatrics, also weighed in, saying that California’s ability to set its own regulations is “essential to protecting the state’s public health, particularly in a warming world.”

Five of the world’s largest automakers also defended EPA’s decision to grant California the right to set strict tailpipe emissions, saying in their amicus brief that upholding the decades-old waiver would “promote stability and regulatory certainty while the industry goes electric.”

And a group of administrative law professors, including George Washington University environmental law professor Robert Glicksman, wrote that the “text, structure, and history of the Clean Air Act show that Congress intended a waiver, once granted, to become settled law on which states and private parties could rely.”

The law professors called the Trump administration’s effort to revoke the waiver “unprecedented” and said the attempt had relied on an “expansive conception of its own ‘inherent authority.’”

They added that it was “doubtful that this doctrine can be reconciled with Supreme Court precedent.”

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