Category: Scholarship

By William C. Rose, Managing Editor at N.Y.U. Environmental Law Journal

This post is part of the Environmental Law Review Syndicate. 

Introduction 

E-bikes[1] were legalized across New York State in April 2020 following a period of unintentional illegality that spawned punitive enforcement measures against the food delivery riders who rely on e-bikes in New York City. In the course of legalizing the bikes, however, the legislature created a special carve-out for the Hudson River Greenway (“the Greenway”)—a major bike path on the west side of Manhattan—banning e-bikes from what is likely the safest north-south route on the island. The ban raises serious equity issues, lacks any rationale beyond use preferences, and is poor public policy for a city attempting to move to a post-car future.

In its first Section, this Article provides an overview of the Greenway and its importance to cycling in New York City, a description of e-bikes and delivery riders, and summarizes the tumultuous history of e-bikes in the city. In Section II, this Article elaborates on the current e-bike ban on the Greenway, the threats posed by its enforcement, the lack of a public safety rationale for it, and the poor public policy it represents. Though enforcement has yet to begin in earnest, this Article concludes that the ban should have no place in the future of New York.

I. Background

A. The Hudson River Greenway in Manhattan

The Hudson River Greenway stretches along the west side of Manhattan, from Battery Park in the south to Fort Tryon park in the north, covering a distance of approximately thirteen miles and essentially the length of the island.[2] True to its name, the Greenway is on or very close to the Hudson River for the entirety of its run, and it enjoys a reputation as the busiest bike path in North America.[3] The path is mixed-use: designed for biking, in-line skating, running, and walking, though its busy southern stretch­—from roughly 59^th Street to the Battery—sees pedestrians directed to fully-separated walking paths in adjacent Hudson River Park.

The Greenway’s management structure is complex. South of 59^th Street, the path is owned by the state as part of Route 9-A, while to the north it is generally owned by New York City. The Greenway is maintained and regulated by New York City’s Department of Transportation or Department of Parks and Recreation, depending on location, with Hudson River Park (a state public benefit corporation) assisting with maintenance south of 59^th Street.[4] The New York City Police Department is primarily responsible for law enforcement on the Greenway, though the city’s Parks Enforcement Patrol shares responsibility, particularly on sections north of 59^th Street, where the Greenway is entirely within park lands.

To the cyclist, however, the Greenway is simple. It is an unbroken green line on the bike map[5]—a rarity in the city—providing safe, car-free north-south travel along the west side of Manhattan. It is the only such route in New York, with no other cycleway able to compare the Greenway’s length and safety. It is prized by recreational cyclists as a scenic ride, by commuters as a safe route, and by delivery riders as a crucial artery allowing fast and safe travel along the west side.[6] The Greenway is in many senses an ideal: a car-free route for a city designed around people, rather than a stretch of painted asphalt on the fringe of a vehicular thoroughfare.

Delivery riders describe the Greenway as “essential” for their work.[7] Workers’ advocates, similarly, describe the Greenway as a way “workers have been able to deliver food from one neighborhood to another one, travel safely and not go through high traffic or dangerous streets.”[8] With twenty-six cyclists having been killed on New York City streets in 2020,[9] and twenty-eight in 2019,[10] the Greenway is more than a mere convenience. It is a safe haven from the many threats cyclists in New York face—the car door that opens unexpectedly, the Uber driver swerving to drop off a fare, the box truck running a red—any one of which could bring a violent and painful death.

B. E-bikes and Delivery Riders

E-bikes have been hailed as a revolutionary development in low-carbon urban transportation, allowing riders to travel significant distances even if age, fitness level, or simple preference to avoid sweating would prevent them from doing so on a conventional bike.[11] New York State employs a tripartite classification scheme for e-bikes, ranging from Class One pedal-assist e-bikes, like those offered by Citi Bike (New York City’s bikeshare operator), to Class Three e-bikes with independent throttles and maximum speeds of twenty-five miles per hour.[12]

According to a 2012 estimate by the city Department of Transportation, there are over fifty thousand delivery cyclists in New York City,[13] and the ever-booming app-based takeout economy has likely led to a significant increase since that study.[14] The job is not an easy one, nor a prestigious one, as the former Village Voice’s Stephen Miller describes:

Delivering meals by bicycle is the type of work that constantly reminds the people who do it that they are squarely at the bottom of New York City’s food chain. Hustling for tips in heat, rain, snow and cold, looked down upon by doormen, despised by pedestrians, these workers, often undocumented immigrants from China or Latin America, are ubiquitous in New York’s streets yet all but voiceless in its power structure.[15]

Delivery riders now mostly work for app services that facilitate transactions between restaurants and consumers, chiefly Grubhub (also doing business as Seamless), which controls roughly 85 percent of the food delivery market in New York City.[16] These “gig economy” workers are treated as private contractors and paid per job, rather than given an hourly wage by the restaurant(s) for which they deliver.[17] Comprehensive data on delivery workers’ hours and wages is nonexistent, though Gothamist (a local news site and part of WNYC, New York’s public radio) reported one rider as having ridden, in ten hours on a single day, sixty miles over the course of thirty-four deliveries, earning “little more than $80” in the process.[18]

Figure 1: A row of Arrow e-bikes, impounded at an NYPD precinct. NYPD 72nd Precinct (@NYPD72ndPct), Twitter (Oct. 6, 2017), https://twitter.com/NYPD72Pct/status/916480629767917569?s=20.

Arrow e-bikes—a ubiquitous sight on New York City streets—are Class Three e-bikes under state law and are widely relied upon for the much-maligned job of food delivery.[19] Many delivery riders consider e-bikes like the Arrow essential to their job. For some, the bikes are a way to deliver food quickly, avoiding complaints and inviting tips while increasing the number of deliveries they can make—and get paid for—in a day.[20] For others, especially older workers for whom the bodily stress of long days on the road is a distinct struggle, the bikes are a lifeline that enables them to do their jobs.[21]

C. The History of E-bikes in New York City

Prior to April 2020, e-bikes were illegal in New York State due to a gap in the state’s laws. E-bikes were considered motor vehicles, but could not be registered with the Department of Motor Vehicles, and were thus treated as “unlicensed motorcycles.”[22] New York City formally—and redundantly—banned e-bikes in 2013 by act of the city council, responding to unfounded beliefs that the bikes posed a danger to pedestrians,[23] though enforcement was lax during the final days of the Bloomberg administration.[24] Council members representing wealthy neighborhoods—particularly the Upper East Side—drove continued efforts against e-bikes.[25]

Mayor de Blasio, beginning his first term in 2014, gradually escalated enforcement against e-bikers, with ticketing targeted at delivery riders. In 2017, responding to continued complaints from wealthy, white neighborhoods in Manhattan, Mayor de Blasio announced a large-scale crackdown on e-bike riders despite admitting that no accident, injury, or fatality data supported the proposition that e-bikes posed a danger to pedestrians.[26] Despite the mayor’s rhetoric fixing blame for the e-bike “problem” on restaurant owners, this “war on e-bikes” was targeted squarely at delivery riders and placed significant financial and legal burdens on a largely-immigrant population of workers.[27] In 2019, for example, the NYPD issued 1,052 summonses (each carrying a $500 fine) against e-bike riders and confiscated 1,575 e-bikes, while only seventy-one summonses were issued to businesses for the e-bike-related infractions of riders carrying their food.[28]

The city’s Department of Transportation legalized pedal-assist e-bikes via rule changes in 2018,[29] clearing the way for Citi Bike’s e-bikes, though doing nothing for delivery riders.[30] Advocates, led by State Senator Jessica Ramos of Queens, began pushing to legalize all e-bikes statewide during this time, passing a bill doing so in 2019 only for it to fall to Governor Andrew Cuomo’s veto.[31] Delivery riders would only receive relief from Mayor de Blasio’s crackdown after the COVID-19 pandemic had taken hold of the city, foregrounding the much-maligned riders as essential workers and prompting the mayor to suspend enforcement in March 2020.[32]

Finally, as part of the New York State Fiscal Year 2021 Budget Agreement, enacted in April 2020, e-bikes were legalized across the state.[33] These e-bike provisions were essentially identical to those of the 2019 bill,[34] and they created the tripartite classifications scheme discussed above.[35] In the same act, however, the legislature banned e-bikes from the Hudson River Greenway and reserved power to regulate e-bikes on the Greenway for itself, promising a continuation of Mayor de Blasio’s “war on e-bikes.”

II. A Problematic E-bike Ban on the Greenway

E-bikes are currently banned on the Hudson River Greenway, an anomalous and ill-publicized restriction on New York City’s bike paths, with significant penalties for violations despite the lack of any public safety rationale behind the ban. Even setting aside the racial and class inequities represented by the ban,  it represents poor public policy for a city attempting to decarbonize transportation and reduce reliance on cars.

A. The Ban

New York State law now allows e-bikes to use all public “highways,” broadly defined to include essentially all streets,[36] but prohibits them on “any greenway running adjacent to or connected with a highway,” specifically including the Hudson River Greenway.[37] This ban extends to all three classes of e-bikes, without distinction.[38] The law further allows state agencies and local governments to regulate e-bike use within their jurisdiction, but it exempts the Greenway from this delegation.[39] Shortly after the state legalized e-bikes, the city council legalized them across the five boroughs—categorizing e-bikes as bicycles, subject to the same rights and responsibilities as conventional bikes.[40] The end result of this legislative activity is that e-bikes are legal across New York State, on every public road, and are legal across New York City, free to be used wherever conventional bicycles are used, except on the city’s busiest bike path.

The Greenway e-bike ban is anomalous and almost entirely unpublicized. Nowhere else in the city are e-bikes banned from a path which conventional bikes may use. The city’s official bike map offers no warning of the ban, despite explaining other laws unique to e-bikes and confusingly asserting that e-bikes are permitted in “the bike lanes,” a term which in both common usage and in the parlance of the bike map includes the Greenway.[41] Neither the city’s “Official Cycling Guide” nor its compilation of cycling laws references e-bikes on the Greenway, though neither appears to have been updated since e-bikes were legalized.[42] Neither Citi Bike’s page advertising its e-bikes nor its page suggesting the Greenway as “one of the most popular places to ride” warns its customers that riding its e-bikes on the Greenway is a violation of state law,[43] though Citi Bike is aware of the illegality and advocated against the ban in 2019.[44] It is likely that the only way a cyclist could become aware of the ban, short of being stopped and ticketed, is through recently-erected signs along the Greenway indicating—in English only—“No Motor Vehicles/E-bikes/E-Scooters.”[45]

B. Threats of Enforcement

E-bikers face substantial fines and even imprisonment for riding on the Greenway. Though penalties for certain e-bike offenses, such as failure to yield to a pedestrian, were fixed at $50 fines in the legalizing statute,[46] riding on the Greenway is an infraction covered by the Vehicle and Traffic law’s general penalty provisions.[47] A first offense can carry a penalty of up to $150 and fifteen days in jail, with punishments escalating to a maximum of $450 and ninety days in jail for third and subsequent offenses within an eighteen month period.[48] Such penalties are significant for any cyclist, though for delivery riders they are potentially ruinous. Full-time riders have reported to the Times making roughly $100 on a good day of work, with others earning as little as $32 for six and a half hours’ work.[49] A fine for a first offense would more than wipe out a good day’s earnings, while the maximum of $450 could easily eliminate a full week’s wages.

These penalties have yet to be levied in any significant numbers, and no plan for enforcement has been publicly discussed, though there appears to be a slow progression towards active ticketing. Hudson River Park Trust’s Advisory Council began calling for enforcement only months after the law took effect, with members specifically calling for NYPD involvement.[50] The signage referenced above—reading “No Motor Vehicles/E-bikes/E-Scooters”—was installed in March 2021.[51]  City Hall, during both the de Blasio administration and the recently-inaugurated administration of Eric Adams, has remained silent on the issue.[52] Police enforcement of the ban began in a minor fashion in November 2021. For two days early in the month, and without any warning, an NYPD SUV parked blocking roughly half the Greenway at around 91^st Street, and officers were seen stopping and ticketing delivery cyclists, but no other e-bikers.[53] Information on the number and character of the tickets issued is not available, and there have been no subsequent statements from NYPD or any other organ of government regarding the November campaign.[54]

The future for enforcement is unclear, but troubling. Mayor Adams has not taken a public stance on e-bikes or the Greenway, adding another element to the “mystery” of what his New York will look like.[55] The mayor is known to support cycling in general,[56] but the only policy his administration has announced (to date) touching on traffic safety relies on increased NYPD enforcement against cyclists.[57] This is especially concerning given the NYPD’s significant racial bias in cycling enforcement, annually issuing about 75% of bike-related infractions to Black and Latinx New Yorkers—who together comprise less than half the city’s population.[58] Moreover, the history of e-bike enforcement in New York suggests that any further enforcement of the Greenway ban will be squarely targeted at delivery riders.[59]

C. The Ban Lacks any Rationale Beyond Use Preferences

Neither the 2020 e-bike legalizing provisions of the budget agreement nor their near-identical 2019 forebears made any statement of purpose regarding the ban, though a public safety justification can be discerned from statements of the ban’s few public supporters.[60] There is no legitimate public safety rationale for banning e-bikes on the Hudson River Greenway, however, nor any discernible rationale beyond use preferences.

By Mayor de Blasio’s own admission in the midst of his “war on e-bikes,” there was no data to support the claim that e-bikes posed a danger to pedestrians,[61] a fact that remains true today. E-bike users do not collide with other road users in any significant numbers, with only thirty-one e-bike-related collisions reported to the NYPD in 2018, for example, out of a total of 45,775 collisions by all types of vehicles in the city.[62] Of those thirty-one collisions, only nine resulted in injuries to pedestrians, and none resulted in pedestrian fatalities.[63] Drivers, by contrast, were responsible for over 10,000 pedestrian injuries and 121 pedestrian fatalities in the same year.[64] In Hudson River Park specifically, officials testifying in favor of the ban in mid-2019 admitted that only two e-bike-related crashes had occurred along the Greenway that year,[65] a remarkably low figure given the Greenway’s heavy use. Even if there were a connection between e-bikes and injuries, the spacious Hudson River Greenway, with its clear separation of pedestrians and cyclists south of 59^th Street, is one of the better-suited bike paths in Manhattan for fast moving traffic, especially compared to the East River Greenway, on which e-bikes are permitted and which, at points, forces cyclists and pedestrians into very narrow confines.

Figures 3 and 4: On left, the tightest point of the East River Greenway, through which pedestrians, conventional cyclists, and e-bikers, all must fit. On right, a typical stretch of the Hudson River Greenway adjacent to Hudson River Park; pedestrians make use of a dedicated path behind the greenery on the right side of the photo. E-bikes are permitted on the path pictured on the left, but banned from the path pictured on the right. Manhattan Waterfront Greenway, Wikipedia, https://en.wikipedia.org/wiki/Manhattan_Waterfront_Greenway (last edited May 4, 2021); John Wachunas, New Year’s Cycling: 17 Bike Rides You Need To Experience in 2017, Spinlister, https://www.spinlister.com/blog/new-years-cycling-17-bike-rides-need-experience-2017/ (last visited May 10, 2021).

Lacking a public safety rationale, one strains to think of a justification for the e-bike ban other than use preferences. The question of whether the Hudson River Greenway should be available to commercial cyclists is a legitimate one touching on larger questions of what the cityscape of a New York defined by multi-modal transportation should look like. Commercial vehicles are banned from parkways in New York without serious controversy, and so, setting aside the implicit race- and class-based objections of e-bike opponents in New York City, perhaps the e-bike ban on the Greenway is simply the first of its kind—an exclusively recreational bikeway. But, given the current state of cycling in New York City, the ban represents poor public policy.

D. The Ban is Poor Public Policy

The e-bike ban on the Hudson River Greenway is poor public policy. It forecloses on safe cycling for e-bikers on Manhattan’s west side and may stifle the growth of low-carbon personal transportation at a time when the city is actively seeking to de-carbonize and de-car its streets.

By banning e-bikes on the Greenway, the state legislature has essentially foreclosed on the possibility of a safe, off-street north-south cycling route on the west side of Manhattan. The principle alternative to the Greenway as it currently exists is to remove the westernmost lane of Route 9-A (the Westside Highway) and either use the space to dramatically widen the Greenway or as a separate thoroughfare for fast moving traffic, options long suggested by transit advocates.[66] North of 59^th Street, where Route 9-A becomes an elevated expressway, similar proposals have been offered to convert part of Riverside Drive into a dedicated cycleway. The state Department of Transportation, however, has consistently rejected any lane reduction for the Westside Highway,[67] and its city counterpart has similarly declined to entertain calls for such changes to Riverside Drive. By banning e-bikes on the Greenway, the state legislature has thus removed the only safe, off-street route available or likely to become available in the near future.

Barring a coastal route, north-south bound cyclists on the west side of Manhattan can only be served by the city’s on-street “protected” bike lanes on Eighth and Ninth Avenues. These avenues suffer from overcrowding, with narrow and heavily trafficked sidewalks near Penn Station and the Port Authority Bus Terminal, in particular, forcing pedestrians into the bike lane, in turn forcing cyclists into vehicle lanes, effectively negating the safety promises of the bike lanes.[68] Even ignoring this issue, these on-street routes expose cyclists to turning traffic, dooring, and frequent use of the lanes for temporary parking by police and delivery vehicles. The promise of the Greenway is in its car-free nature; barring a significant reimagining of the west side’s avenues, they will never suffice as a replacement.

One might argue that e-bikes, more capable than conventional bikes at keeping up with car traffic, should simply use streets instead. But this argument ignores the facts that, first, all e-bikes are banned from the Greenway, not just Class Three bikes capable of reaching the city’s twenty-five mile per hour speed limit for cars, and second, even at equivalent speed to cars, e-bike riders are still placed at significant risk when mixing with traffic. Drivers may have “fender benders” in midtown traffic without serious consequence; cyclists—even e-bikers—risk death for similar collisions, lacking the protection of a steel cage that drivers enjoy.

By banning e-bikes, the state legislature threatens to stifle the growth of low carbon personal transportation at a time when the city—and indeed much of the world—is seeking to promote exactly such technologies.[69] The ban only affects one route in the city, but it is, again, a crucial and visible route. Once enforcement begins, why would a would-be e-bike owner purchase a form of transport that has been uniquely singled out? Where else, a prospective owner might wonder, might one be ticketed for riding? The ban adds a level of uncertainty to a behavior the state should be encouraging, and distinctly marks a technology poised to make personal transit more accessible as officially undesirable. Similar uncertainty is introduced for the would-be Citi Biker, the “undock and go” convenience of the rental bikes undermined by an arbitrary ban on some of the bikes from the city’s busiest bike path.

Conclusion

The legalization of e-bikes in New York State represents a long-overdue legitimation of vital tools relied upon by low-income, immigrant delivery riders and a recognition of what may be the future of personal transportation. The concurrent ban on e-bikes on the Hudson River Greenway, however, threatens both to continue a “war on e-bikes” that imposes significant financial and legal burdens on a vulnerable population of New Yorkers and to stifle the growth of low-carbon personal transport in a city striving to meet the environmental challenges of the twenty-first century. Considerations of equity and the environment both weigh strongly against the e-bike ban, and the ban should be repealed, lest the Greenway stand in the way of a greener New York.

[1] This paper will use the term “e-bikes” to refer to all bicycles featuring both an electric motor and conventional human propulsion. Legal distinctions between e-bikes will be discussed as relevant.

[2] See, e.g., City of New York, Manhattan Waterfront Greenway Map (2003), http://www.nyc.gov/html/edc/pdf/greenway_mapside.pdf.

[3] E.g., Gersh Kuntzman, Public Nervous Announcement: Busiest Bike Path in North America to the Severed for Weeks, Streetsblog NYC (Sept. 22, 2020), https://nyc.streetsblog.org/2020/09/22/public-service-announcement-busiest-bike-path-in-north-america-to-be-severed-for-months/ (describing the Greenway as “the continent’s busiest bike path”). 

[4] E.g., Dave Colon, Stop Ruining the Hudson River Greenway in the Name of Security, Streetsblog NYC (Nov. 3, 2017), https://nyc.streetsblog.org/2017/11/03/stop-ruining-the-west-side-greenway-in-the-name-of-safety/ (“The segment of the greenway below 59th Street is owned by the state, but operated and maintained by the Hudson River Park Trust.”); Dave Colon, ‘Progressive’ Manhattanites Push For Cop Crackdown On E-Bike Riders (Again), Streetsblog NYC (Sept. 16, 2020), https://nyc.streetsblog.org/2020/09/16/progressive-manhattanites-push-for-cop-crackdown-on-e-bike-riders-again/ (describing the “confusing mishmash of bureaucracies” responsible for the Greenway).

[5] See City of New York, NYC Bike Map 2021 (2021), https://www1.nyc.gov/html/dot/downloads/pdf/nyc-bike-map-2021.pdf.

[6] See Dave Colon, City Hall Remains Silent As Hudson River Greenway E-Bike Ban Continues, Streetsblog NYC (Mar. 15, 2021), https://nyc.streetsblog.org/2021/03/15/city-hall-remains-silent-as-hudson-river-greenway-e-bike-ban-continues/.

[7] Colon, supra note 6.

[8] Id.

[9] See Julianne Cuba, POST-MORTEM: Cyclist Victims Killed In 2020 Were Low-Income, Essential Workers, Streetsblog NYC (Jan. 22, 2021), https://nyc.streetsblog.org/2021/01/22/post-mortem-cyclist-victims-killed-in-2020-were-low-income-essential-workers/.

[10] See Emma G. Fitzsimmons, More Pedestrians and Cyclists are Dying in N.Y.C. Drivers are Often to Blame, N.Y. Times (Mar. 10, 2020), https://www.nytimes.com/2020/03/10/nyregion/nyc-deaths-pedestrian-cycling.html.

[11] See, e.g., Lloyd Alter, 3 Things Are Needed for the E-Bike Revolution, Treehugger (Sept. 29, 2019), https://www.treehugger.com/things-are-needed-e-bike-revolution-4855098 (describing needed infrastructure changes to enable the “e-bike revolution”).

[12] N.Y. Veh. & Traf. Law § 102-c (Consol. 2021).

[13] See Stephen Miller, NYC Delivery Cyclists Speak Out About The Toughest Job On Two Wheels, Village Voice (Mar. 23, 2017), https://www.villagevoice.com/2017/03/23/nyc-delivery-cyclists-speak-out-about-the-toughest-job-on-two-wheels/.

[14] See, e.g., Levi Sumagaysay, The pandemic has more than doubled food-delivery apps’ business. Now what?, Market Watch (Nov. 27, 2020), https://www.marketwatch.com/story/the-pandemic-has-more-than-doubled-americans-use-of-food-delivery-apps-but-that-doesnt-mean-the-companies-are-making-money-11606340169 (describing the pandemic-related boom in the app-based food delivery market).

[15] Miller, supra note 13.

[16] See Christopher Robbins & Jeffrey E. Singer, NYC’s War On E-Bikes Takes Toll On Immigrant Delivery Workers, Gothamist (Apr. 26, 2018), https://gothamist.com/news/nycs-war-on-e-bikes-takes-toll-on-immigrant-delivery-workers.

[17] See, e.g., Tanay Warekar, NYC Food Delivery Worker’s Death Amplifies Concerns For Gig Employees, Eater (Apr. 2, 2021), https://ny.eater.com/2021/4/2/22364128/manhattan-delivery-worker-death-third-party-app-doordash.

[18] Robbins & Singer, supra note 16.

[19] See Dave Colon, Justice Delivered: E-Bikes Legalized Statewide In Budget Bill, Streetsblog NYC (Apr. 1, 2020), https://nyc.streetsblog.org/2020/04/01/justice-delivered-e-bikes-legalized-statewide-in-budget-bill/.

[20] See Robbins & Singer, supra note 16 (“In dozens of interviews, delivery cyclists told Gothamist that e-bikes were essential to their jobs….”).

[21] Miller, supra note 13 (“Older delivery cyclists, in particular, rely on e-bikes because they reduce stress on the body and help them reach the far corners of a restaurant’s delivery zone, making them more appealing to hire.”).

[22] E.g., Brad Aaron, Why Are Electric Bikes Illegal, Anyway?, Streetsblog NYC (Apr. 10, 2013), https://nyc.streetsblog.org/2013/04/10/why-are-electric-bikes-illegal-anyway/.  

[23] See discussion infra Section II.C.

[24] See Scott Heins, Is The E-Bike Ban Even Being Enforced?, Gothamist (Dec. 6, 2013), https://gothamist.com/news/is-the-e-bike-ban-even-being-enforced.

[25] See Colon, supra note 19.

[26] See, e.g., David Meyer, De Blasio and NYPD Should Talk to Delivery Workers About E-Bikes, Streetsblog NYC (Oct. 20, 2017), https://nyc.streetsblog.org/2017/10/20/de-blasio-and-nypd-should-talk-to-delivery-workers-about-e-bikes/.

[27] See Robbins & Singer, supra note 16.

[28] Christopher Robbins, De Blasio’s E-Bike Crackdown Mainly Hurts Delivery Workers, Not Employers, Gothamist (Jan. 24, 2020), https://gothamist.com/news/de-blasios-e-bike-crackdown-mainly-hurts-delivery-workers-not-employers.

[29] See, e.g., Press Release, Office of the Mayor, Mayor de Blasio Announces New Framework to Clarify Legality of Pedal-Assist Bicycles (Apr. 3, 2018), https://www1.nyc.gov/office-of-the-mayor/news/165-18/mayor-de-blasio-new-framework-clarify-legality-pedal-assist-bicycles.

[30] See, e.g., Robbins & Singer, supra note 16.

[31] See Senate Bill S5294A, N.Y. State Senate, https://www.nysenate.gov/legislation/bills/2019/s5294/amendment/a (last visited May 10, 2021); Bernadette Hogan, David Meyer, and Aaron Feis, E-bike, e-scooter bill stuck in Albany Cuomo’s spat with sponsor, N.Y. Post (Dec. 8, 2019), https://nypost.com/2019/12/08/e-bike-e-scooter-bill-stuck-in-albany-cuomos-spat-with-sponsor/.

[32] See Jake Offenhartz, De Blasio Pauses Crackdown On E-Bikes, As Delivery Cyclists Become ‘Frontline Workers’ In Coronavirus Crisis, Gothamist (Mar. 16, 2020), https://gothamist.com/news/de-blasio-pauses-crackdown-e-bikes-covid-19.

[33] S. 7508/A. 9508, Part XX, 2019–20 Reg. Sess. (N.Y. 2020).

[34] The major additions to the 2020 version were a helmet requirement for minors riding Class One and Class Two e-bikes, and for anyone riding a Class Three e-bike, as well as a specific criminalization of riding e-bikes when intoxicated. See Dave Colon, supra note 19.

[35] See N.Y. Veh. & Traf. Law § 1242 (Consol. 2021).

[36] See id. § 118.

[37] Id. § 1242(4)(a). This provision also extends the ban to the Niagara River Greenway, and may affect portions of the Hudson River Valley Greenway north of New York City. Id.

[38] See id.

[39] Id. § 1242(4)(b).

[40] See N.Y.C. Local Law No. 73 of 2020, § 2.

[41] See City of New York, supra note 5.

[42] See City of New York, Bike Smart: The Official Guide to Cycling in NYC, http://www.nyc.gov/html/dot/downloads/pdf/dot_bikesmart_brochure.pdf; N.Y.C. Dep’t of Transp., SUMMARY LISTING OF BICYCLE LAWS, RULES & REGULATIONS, https://www1.nyc.gov/html/dot/downloads/pdf/bicyclerules-english.pdf.

[43] See Meet the Citi Bike ebike, Citi Bike, https://www.citibikenyc.com/how-it-works/electric (last visited May 10, 2021); Hudson River Greenway, Citi Bike, https://www.citibikenyc.com/rides/hudson-river-greenway (last visited May 10, 2021), https://www.citibikenyc.com/rides/hudson-river-greenway.

[44] Gersh Kuntzman, Hey, West Side Greenway, Citi Bike Called and It Wants Its Bike Lane Back!, Streetsblog NYC (June 18, 2019), https://nyc.streetsblog.org/2019/06/18/hey-west-side-greenway-citi-bike-called-and-it-wants-its-bike-lane-back/.

[45] See Colon, supra note 6 (describing the signs and their having been installed in March 2021).

[46] N.Y. Veh. & Traf. Law § 1242(12) (Consol. 2021).

[47] See id. § 1800.

[48] Id.

[49] Kimiko de Freytas-Tamura, Food Delivery Apps Are Booming. Their Workers Are Often Struggling, N.Y. Times (Nov. 30, 2020), https://www.nytimes.com/2020/11/30/nyregion/bike-delivery-workers-covid-pandemic.html.

[50] See Colon, supra note 4.

[51] See Colon, supra note 6 (describing the signs and their having been installed in March 2021).

[52] See id.

[53] See Mark Gorton (@MarkGortonNYC), Twitter (Nov. 5, 2021), https://twitter.com/MarkGortonNYC/status/1456721613521629187?ref_src=twsrc%5Etfw%7Ctwcamp%5Etweetembed%7Ctwterm%5E1456721613521629187%7Ctwgr%5E%7Ctwcon%5Es1_&ref_url=https%3A%2F%2Fnyc.streetsblog.org%2F2021%2F11%2F12%2Fthe-parks-departments-e-bike-policy-is-not-consistent-with-state-law%2F (describing and providing photos of NYPD ticketing activity on the Greenway); Mark Gorton (@MarkGortonNYC), Twitter (Nov. 6, 2021), https://twitter.com/MarkGortonNYC/status/1457080465375039502?s=20&t=K6IZNnlhinNM-c1HILC9-g (“The cops are back again today. Blocking the bike path with their SUV. Pedestrians forced into conflicts with bikes.”).

[54] The NYPD’s 24th Precinct did, however, tweet about its officers “providing bicycle safety tips and enforcing bicycle rules” along the Greenway on November 5; the precinct’s photos fail to show any cyclists being stopped, and the tweet makes no mention of ticketing (nor of the officers’ choice to block the Greenway with their SUV). NYPD 24th Precinct (@NYPD24Pct), Twitter (Nov. 5, 2021), https://twitter.com/NYPD24Pct/status/1456749458436366336.

[55] Matt Flegenheimer, Michael Rothfeld, & Jeffery C. Mays, What Kind of Mayor Might Eric Adams Be? No One Seems to Know, N.Y. Times (Oct. 23, 2021), https://www.nytimes.com/2021/10/23/nyregion/eric-adams-mayor-nyc.html.

[56] See, e.g., Sam Raskin, Eric Adams bikes to work on second day in office, N.Y. Post (Jan. 2, 2022), https://nypost.com/2022/01/02/nyc-mayor-eric-adams-bikes-to-work-on-second-day-in-office/.

[57] See Tirhakah Love, The Mayor Is… Mayoring!?!?, Intelligencer (Jan. 19, 2022), https://nymag.com/intelligencer/2022/01/eric-adams-confronts-new-york-city-pedestrian-deaths.html (discussing Mayor Adams’s plan to “double down on enforcement” of certain cycling violations).

[58] See Julianne Cuba, NYPD’s Racial Bias in Ticketing Cyclists Continued Last Year, Streetsblog NYC (Jan. 4, 2022), https://nyc.streetsblog.org/2022/01/04/nypds-racial-bias-in-ticketing-cyclists-continued-last-year/.

[59] See discussion supra Section I.C.

[60] See, e.g., Gersh Kuntzman, Virtually No One Can Understand ‘Fairest City’ Mayor de Blasio’s Crackdown on E-Bikes, Streetsblog NYC (June 7, 2019) (quoting Connie Fishman, executive director of Hudson River Park Friends, as arguing that e-bikes on the Greenway would be dangerous for park visitors).

[61] E.g., David Meyer & Julia Marsh, De Blasio says ‘common sense,’ not data, justifies e-bike crackdown, N.Y. Post (Jan. 6, 2020), https://nypost.com/2020/01/06/de-blasio-says-common-sense-not-data-justifies-e-bike-crackdown/.

[62] Julianne Cuba, Damn Lies and Statistics: The Numbers Don’t Back Up de Blasio’s Reason for E-Bike Crackdown, Streetsblog NYC (Apr. 18, 2019), https://nyc.streetsblog.org/2019/04/18/damn-lies-and-statistics-the-numbers-dont-back-up-de-blasios-reason-for-e-bike-crackdown/.

[63] Id.

[64] See id.

[65] Kuntzman, supra note 60.

[66] See, e.g., Dave Colon, West Village To Cuomo: Take a Lane Away from Drivers on the West Side Highway, Streetsblog NYC (May 27, 2020), https://nyc.streetsblog.org/2020/05/27/village-board-to-cuomo-take-a-lane-away-from-drivers-on-the-west-side-highway/ (discussing recent incarnation of the West Side Highway proposal); Kuntzman, supra note 3 (discussing recent incarnation of the Riverside Drive proposal).

[67] See Dave Colon, State DOT Throws Cold Water on West Side Highway Bike Lane, Streetsblog NYC (Sept. 10, 2020), https://nyc.streetsblog.org/2020/09/10/state-dot-throws-cold-water-on-west-side-highway-bike-lane/.

[68] See, e.g., Cody Lyon, The Chaos on the Eighth Ave. Bike Lane, HuffPost (Jan. 19, 2016), https://www.huffpost.com/entry/the-chaos-on-the-eighth-a_b_9012382.

[69] E.g., Emma G. Fitzsimmons & Winnie Hu, Car Lanes to Become Bike Lanes on 2 Major New York City Bridges, N.Y. Times (Jan. 28, 2021), https://www.nytimes.com/2021/01/28/nyregion/bike-brooklyn-bridge-de-blasio.html (quoting Mayor de Blasio as seeking to “embrace the vision of a future without cars with a radical new plan” for the Brooklyn and Queensboro Bridges and generally describing city transportation official’s desire to “encourage cycling as the city recovers from the pandemic”).

By Lilly Leibu, Digital Editor at N.Y.U. Environmental Law Journal. 

This post is part of the Environmental Law Review Syndicate. 

Introduction   

Former Administrator of the Environmental Protection Agency (EPA) Andrew Wheeler purported to rid EPA of “secret science” and “[empower] the American people to demand future transparency” with a regulation that stakeholders such as Big Tobacco and coal-funded groups have lobbied for since the mid-1990s.[1] Under his directive, EPA published a notice for the proposed rule “Strengthening Transparency in Regulatory Science” in 2018. The agency broadened its scope and published a Supplemental Notice of Proposed Rulemaking (SNPRM) two years later on March 18, 2020.[2] Between the first proposed rule and the second, EPA received pushback in the form of nearly 995,000 comments and garnered attention from scientists who have vocalized the need to dissolve it completely. Yet on January 6, 2021, the “Secret Science” rule was finalized.[3] The lifespan of this midnight regulation was cut short when a United States district court struck it down, but its haphazard construction and questionable purpose provide a host of other grounds on which to argue for its rejection. Without proactive measures, a future administration may attempt something similar—endangering public health and the environment in the process.   

I. Pushback in Court

Arguments made in court opposing this rule have been successful. In Environmental Defense Fund v. EPA, members of the scientific community proved standing by specifying the upstream repercussions of EPA’s new selection process under this Rule—highlighting difficulties in grant proposals, redesign of studies, and adjustments to cohort recruitment.[4] They are not the only ones to call into question the validity of the final rule, as several states, cities, and organizations brought claims almost immediately after its publication.[5] These coalitions challenged the Secret Science rule on the basis of its status as a “procedural rule” and the unlawful application of the Federal Housekeeping Act.[6] In January 2021, the U.S. District Court for the District of Montana agreed that the rule was misclassified as “procedural” and that the agency did not provide good cause to be exempt from the thirty day notice requirement under § 553(d)(3) of the APA.[7] While this is good news, the crux of the issue must be addressed more permanently.

II. Sources Informing EPA’s Use of Science

A. Statutory Basis

Statutory text informs EPA’s obligations to monitor and mitigate environmental and public health threats. The Clean Air Act (CAA), for example, requires EPA to set National Ambient Air Quality Standards (NAAQS) and to review those standards every five years in light of emerging scientific data.[8] EPA carries out its responsibility under the CAA through the use of “periodic review of the latest peer-reviewed studies of each pollutant’s health and environmental effects, with assistance from the Clean Air Scientific Advisory Committee (CASAC).”[9] EPA has received directives from the executive branch as well.   

B. Executive Branch Directives

The Office of Management and Budget (OMB) has required all federal agencies to engage in a peer review process for “influential scientific information” since issuing its memorandum in 2004 (M-05-03), with the exception of urgent health and safety decisions.[10] Agency discretion is given in the formulation of a peer review mechanism; however, this broad leeway is narrowed for assessments considered highly influential.[11] Agencies may adopt or adapt the approach taken by National Academy of Sciences (NAS) when selecting a committee of peer reviewers not employed by the government.[12] OMB’s Final Information Bulletin for Peer Review further outlines general requirements for an agency’s peer review plan so as to provide the public with the transparency needed to gain confidence in the rigor of an agency’s reasoning.[13] Information such as the peer reviewers’ report(s), name(s), credentials, and conflicts of interest are included in these plans and are available for public comment regarding their adequacy.[14]

A 2009 memorandum from the Obama administration on scientific integrity also addresses public trust in the scientific bases for regulatory decision-making. Here, the President designated the Director of the Office of Science and Technology Policy (OSTP) as responsible for the scientific integrity of the executive branch. This includes coordinating with agency and department heads as well as OMB to ensure robust methodology, the selection and retention of highly qualified individuals, and the public availability of information unless otherwise non-disclosable.[15] Executive Order 13563 (EO 13563) expands on the expectations of public participation in the regulatory process and establishes a minimum comment period of sixty days for any proposed regulation.[16] Those who wish may comment on “relevant scientific and technical findings” provided “in an open format that can be easily searched and downloaded” on the internet.[17] Memorandum 13-13: Open Data Policy – Managing Information as an Asset (M-13-13), also a product of the Obama administration, reiterated this principle of transparency by creating a framework through which agencies will ensure that the data they use is available for processing and dissemination. The same year, OSTP directed EPA, among other agencies, to develop and submit a plan elucidating how to increase public access to peer-reviewed, scientific research funded by the agency.[18] The open access plan assures that public access does not infringe on proprietary interests, intellectual property, and personal privacy.[19] Proponents of the Secret Science rule seem less intent on preserving an individual’s confidentiality.

III. Transparency in Science as a Double-Edged Sword

A. A Crisis in the Scientific Community

The emphasis made on encouraging thorough, publicly-available data seemed to increasingly trend upwards; yet the scientific community has what many consider a “reproducibility crisis.”[20] Research practices have fallen prey to several biases, such as hindsight bias, confirmation bias, and they have struggled with high-dimensional dataset resulting in false-positive findings.[21] Clinical data sets are complex, and researchers may need to simplify, or reduce, the data such that the models they employ are not made inefficient by the extra “noise” of unnecessary variables.[22] Environmental health research, for example, must adapt “hundreds of terabytes of inputs” for air pollution predictions, and this “curse of dimensionality” may make it difficult for a researcher to reduce the data to the variables associated with both the exposure and outcome.[23] When used for regulatory policies, flawed data analysis would unavoidably lead to flawed and inefficient decision-making. Scientific publications have proposed collaborative, open science that would expose researchers to evaluations made by a more diverse and thus more meaningful and constructive review of methodology and analyses.[24] M-13-13 and its aforementioned contemporaries echoed this approach as a means of ameliorating the identified issues. However, some politicians have exploited this legitimate weakness in scientific publication to attack the scientific conclusions disadvantageous to their agenda without having to challenge the substance of those publications.[25] Their proposal to “construct explicit procedural hurdles” under the guise of “transparency”[26] would open the door for regulators to reject studies on the basis of their reliance on confidential health information.[27]      

B. The Origin of the Final Rule

Representative Lamar Smith (R-TX), the Science Committee chairman from 2012 to 2018, was one such politician. He attempted to exploit the concerns on the sufficiency of the peer review process and its capacity for identifying quality interpretations of data.[28] He issued a subpoena to EPA for the raw data used in a study considered foundational to CAA regulations.[29] The study in question, known as the Six Cities Study, is the product of Harvard researchers analyzing 8,000 participants for a timespan of 14 to 16 years.[30] After adjusting for cigarette smoking and other individual risk factors, the authors concluded that there was an association between particulate air pollution and daily mortality rates.[31] A 1995 American Cancer Society study comprised of data from 1.2 million people was also targeted by the Science Committee for access to its raw data.[32] By making this information publicly available, Rep. Smith argues that he would then have the capacity to democratize regulations by sharing raw data with the public and “independent scientists for review.”[33] Rep. Smith goes on to say that EPA does not “give the American people what they deserve—the truth about regulations.”[34] The authors of the Harvard study maintained that removing names and addresses from the data values does not eliminate the possibility of someone identifying a particular subject on the basis of their hometown or their date of death, for example.[35] Rep. Smith, however, continued his efforts by introducing a bill informally known as the “Secret Science Reform Act of 2015”[36] where he sought to restrict EPA from promulgating rules that are not transparent or reproducible. The 2015 bill did not reach the Senate.[37]

C. Proposed Rule of 2018

EPA’s 2018 proposed rule on transparency in regulatory science clearly echoes the language of Rep. Smith’s unsuccessful bill. Both documents mention making data publicly available such that an independent validation process may take place, and they reiterate the importance of “the best available science” as the framework for EPA’s decisions. However, where the bill is short and imprecise, the proposed rule elucidates with greater detail the desired “change[s to] agency culture and practices regarding data access.”[38] EPA categorizes the need for this proposed rule as double-pronged: increasing the transparency of the regulatory process and strengthening the scientific integrity of the agency’s regulatory decision-making. The background begins by claiming that the public itself would bear the burden of compliance costs and, as such, ensuring public availability of the data and models “pivotal to the regulatory action” is an appropriate measure to tackle the former prong.[39] The agency asserts that providing information such that “the public [may] understand, assess, and replicate findings” would better inform them and provide them with greater transparency.[40] Further, EPA erroneously quotes the “replication crisis” as a partial justification for taking this action.[41]

D. Supplemental Notice of Proposed Rulemaking of 2020

When the SNPRM was published, it addressed seven modifications to the original proposed rule. The most notable of these changes were the last three. The agency proposed using only pivotal regulatory or pivotal science if the data and models are publicly available for independent validation. Models or data that use confidential business information (CBI), proprietary data, or Personally Identifiable Information (PII) are considered “publicly available” only under the condition that they have tiered access “sufficient for independent validation.”[42] The agency, when “promulgating regulatory decisions or finalizing influential scientific information,” would grant greater weight to these studies.[43] EPA proposed this approach in order to “[increase] access to data and models [such that] stakeholders [may] reanalyze the data and models and explore the sensitivity of the conclusion to alternative assumptions while accessing only the data and aspects of the models that they need.” [44] In addition, the Administrator, who is politically appointed, would have the discretion to grant an exemption for this public availability requirement. The administrator may then exercise this discretion when, say, they find it “impracticable” to impose the public availability requirement on an industry’s study.[45] Lastly, EPA toyed with the idea of using the Federal Housekeeping Statute as its sole source of authority in promulgating the rule.[46]

E. Final Rule in 2021

EPA, despite heavy criticism, pushed forward in finalizing Strengthening Transparency in Pivotal Science Underlying Significant Regulatory Actions and Influential Scientific Information. It acknowledged the dissenting comments but maintains that “transparency assumes no political ideology.”[47] In supporting this statement, EPA mischaracterizes the literature referenced discussing the importance of reproducibility and transparency in science for the sake of public trust and the quality of the scientific conclusions.[48] Scientists have responded to this strategy with continued disapproval as “the strength of . . . scientific evidence” is more appropriately ascertained from “data collection and analysis methods” as opposed to reproducibility.[49] The final rule instructs EPA to give “greater consideration to pivotal science whose underlying dose-response data are publicly available or available through restricted access.”[50] EPA removed the requirement that models be independently validated, acquiescing slightly to the concerned commenters and reducing the scope of the regulation back to the initial 2018 parameters.[51] The rule also finalized the use of the Federal Housekeeping Statute as its source of authority and was set to take effect immediately,[52] citing APA § 553(a)(2), (b)(A), and (d) to justify circumventing the 30-day notice requirement.[53] In doing so, the agency created its own weak spot when challenged in court.

The housekeeping statute reads as follows:

The head of an Executive department or military department may prescribe regulations for the government of his department, the conduct of its employees, the distribution and performance of its business, and the custody, use, and preservation of its records, papers, and property. This section does not authorize withholding information from the public or limiting the availability of records to the public.[54]

Essentially, if EPA can establish the Secret Science rule as one of procedure and establish itself as an executive department, it can derive authority from the Federal Housekeeping Statute. Precedent suggests, however, that neither of those requirements are met.

IV. Federal Housekeeping Statute as a Source of Authority

In the 2018 proposal, EPA listed the provisions of eight separate statutes, such as the Clean Water Act, as the basis for providing general authority to take this action, an act akin to blindly throwing darts at a board and hoping at least one of them sticks. Past case law and direct statutory text from those same environmental statutes would seem to preclude EPA from utilizing this technique. In Global Van Lines, Inc. v. Interstate Commerce Commission, the Fifth Circuit held that “agencies may not rely on general statutory grants of rulemaking authority to promulgate regulations that are otherwise inconsistent with more specific statutory directives.”[55] 

A. EPA is Not an Executive Department for the Purposes of the Federal Housekeeping Statute

EPA is not considered an executive department or military department under the Federal Housekeeping Statute.[56] EPA anticipated this argument by citing a 1970 reorganization plan that created the agency and transferred various responsibilities from other agencies to EPA.[57] Functions of the Department of Agriculture and the Department of the Interior, both executive departments under 5 U.S.C 101, were absorbed by the new agency in Reorganization Plan No. 3.[58] Thus, EPA contends, it has “full section 301 or equivalent authority” and congressional intent supports this conclusion.[59] Notably, DHS was also the product of a transfer of authorities from other agencies like the Department of Agriculture and the Department of Energy and Congress, interestingly, formally established the Department of Homeland Security (DHS) as an executive department in 2002.[60] Congress likely would have made EPA an executive department by now if that were its intention.

B. The Secret Science Rule Does Not Qualify as a Procedure

Moreover, EPA’s shoehorning of this rule into the narrow interpretation of “procedure” does not follow precedent. EPA is adamant in characterizing the Secret Science rule as merely “modify[ing] the EPA’s internal procedures regarding the transparency of science underlying regulatory decisions” and, in doing so, attempts to insulate it from judicial review in subsequent agency actions.[61] Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council held that “absent extraordinary circumstances,” it is inappropriate for a reviewing court to “prescribe the procedural format an agency must follow.”[62] The Supreme Court also held in F.C.C. v. Schreiber that an agency’s “adoption of [a] procedural rule favoring public disclosure” may not necessarily be considered arbitrary or capricious.[63] These principles are generally sound in light of the specialization and control an agency would need over its own processes. EPA’s allegedly procedural rule, however, does not “provide guidelines or procedures for [implementation]” one would expect to see.[64] By insisting on its classification as such, the agency is carving an opening for the beneficiaries of lax regulations.

In reviewing the Secret Science rule, The U.S. District Court for the District of Montana found that the “critical factor” a court must use in distinguishing between a procedural and substantive rule is whether the rule allows the agency to freely exercise discretion on a case-by-case basis.[65] When a rule “narrowly limits” this discretion or “establishes a binding norm,” it is considered substantive.[66] Here, EPA, in attempting to convince the court of the rule’s nature, repeated the phrases “purely procedural” and “only applies internally” ad nauseam.[67] The court saw through this, however, and held that it does not distract from the “clear language of requirement” demonstrated by “shall” as opposed to “may.”[68] EPA did not have the authority it sought to vest under the Federal Housekeeping Statute and thus could not evade greater accountability for its actions.

V. The Rule Does Not Achieve the Purposes It Asserts

A. The Rule Does Not Serve the Public

The Secret Science rule acts as a Trojan horse for politicizing what should be an apolitical, open process.[69] The controversy surrounding the widely-used insecticide chlorpyrifos, for example, illustrates the vulnerabilities when selecting the “best available science.” Columbia University’s Center for Children’s Environmental Health (CCCEH) released a study in 2006 linking attention problems and developmental delays in children born to women exposed to the insecticide during their pregnancies.[70] Additional studies have also observed “structural abnormalities in children’s brains, diminished IQ scores and Parkinson’s disease in adults.”[71] EPA proposed a ban on chlorpyrifos under the Obama administration; however, in 2017, then-Administrator Scott Pruitt reversed the action.[72] The agency cites pushback from Columbia to release private information on the children and mothers of the study as a justification for reverting from their original stance.[73] It further stated that the quality of the university’s study “is hard to assess when raw analytical data have not been made available, and the study has not been reproduced.”[74] The agency admitted it “[did] not have a specific reason to believe that CCCEH have inappropriately handled the data or statistical analysis.”[75] Researchers at Columbia offered to explore the possibility of viewing the private datasets in a secured location; however, EPA was not interested.[76] Without being able to make sensitive information publicly available, EPA rejected moving forward with a chlorpyrifos ban. The Secret Science rule would effectively ban the use of these studies.[77] While the rule claims to “strengthen . . . [EPA’s] obligation to ensure the Agency is not arbitrary in its conclusions,”[78] it is unclear how, after the scant reasoning provided, the agency could confidently claim it upheld its obligations to protect public health. 

B. The Rule Does Not Demand Higher Quality Studies

If the final rule does not primarily serve the public, then would it at least satisfy the second prong of improving data analyses to counter the reproducibility crisis? According to the American Association for the Advancement of Science (AAAS) and other professionals, no.[79] Environmental epidemiological studies function differently than the clinical studies used in, for example, the Department of Health and Human Services.[80] Scientists monitor the participants because of where they are located and other identifying characteristics. Anonymizing this information—that is, detaching a name from the data—would not completely protect these individuals for the reasons offered by the Harvard scientists in the Six Cities Study.[81] More so, researchers warned that the rule would affect the consideration of past and future studies. Environmental epidemiology “often [looks] retrospectively at previous exposures based on residential location” and serves as a vital source in detecting a particular contaminant’s adverse effects.[82] In the future, individuals may not want to participate in such studies if their data will be non-anonymized, effectively restricting access to key information.[83] Scientific organizations have also wondered what may happen to “situationally unique research” where reproducibility is extraordinarily unethical and infeasible.[84] Observations made on the Deepwater Horizon oil spill, for instance, account for some of the Seattle Aquarium’s water quality and pollution research.[85] EPA, after publishing the SNPRM, addressed this particular concern rather vaguely in an email to the aquarium’s president and CEO, saying that they would not reject situational research on the basis of its non-replicability.[86] However, the agency spokesperson did not expand on how these studies would be incorporated. This emphasis on reanalysis of data could easily lend itself to becoming a means through which industry stakeholders assess data in a light favorable to their objectives.[87] This rule increasingly looks like a Trojan horse.

Limiting or “exclud[ing] inconvenient scientific evidence without acknowledging that it has been excluded” seems like a far cry from strengthening transparency and improving public confidence.[88] In fact, even former President Trump’s EPA Science Advisory Board (SAB) seemed shocked by the proposed rule when it was published in 2018.[89] The field, according to them, has already been moving towards greater transparency while maintaining the confidentiality required of public health studies.[90] SAB had also stated in their memo that the rule’s design received no input from scientists, and it did not seem to consider implementation costs.[91] According to the Congressional Budget Office, the 2018 proposed rule was estimated to cost $250 million initially and then around $1 million to $100 million per year.[92] This led to uncertainty regarding how EPA may conduct its benefit-cost analyses (BCA) and threatened to cut the number of studies relied on by EPA in half.[93] One can imagine that between the costs of having to redact data, make it publicly available, and the time it would take to do so, relevant or innovative studies would be tossed out early on in the data evaluation stage. This method would fail to “examine evidence in its totality” such that, in EPA’s determination of cost-effective regulatory policy, the “best available science” is conflated to mean whichever study is most convenient according to non-scientific parameters. When confronted with high quality studies, EPA will give greater attention to the study with publicly available data—that therefore can be independently verified—than those that include PII, CBI, or other non-anonymized confidential information that cannot be shared with the agency.[94] Scientists may then resort to “becoming politically entrenched dogmatic advocates” as they struggle with the upstream repercussions of the rule highlighted by members of the community in Environmental Defense Fund v. EPA.[95]

Conclusion

The New Administration and Beyond

The selection of quality scientific studies for informing regulations has been plaguing EPA for decades now. This narrowing and broadening and reinterpretation of “best available science” does a disservice to the purpose of the agency, scientific integrity, and, ultimately, the American people. Those who would benefit most from “Strengthening Transparency in Regulatory Science” would be those who want to be regulated the least. For all its emphasis on achieving transparency, the final rule is quite duplicitous in claiming a benevolent goal—wanting to improve the general public’s ability to comment on regulations and address issues in the scientific community—while on the other hand constraining the use of updated, relevant scientific data. It does not employ any of the open science or collaboration suggestions generously provided by many scientific journals, nor does it explicitly provide solutions to ameliorate the privacy concerns echoed in thousands of comments. It is fascinatingly hypocritical and ironically ambiguous.

On January 20, 2021, President Biden released an executive order reaffirming the administration’s position on science-based regulations and the prioritization of environmental and public health.[96] The new rule will undergo review in order to consider “suspending, revising, or rescinding the agency action” as soon as possible.[97] But this puts the verification of quality scientific studies in regulatory policies back where it started––as a pawn subject to political whims. Biden’s team could provide a solution through constructing its own regulation so as to “[overwrite] the Trump rule” and “formally wipe [it] out… for future administrations.”[98] The Congressional Review Act (CRA) could also serve as a more longstanding alternative.[99] A successful resolution under the CRA could eliminate the opportunity for any future president to limit EPA’s use of science in its regulations.[100]

[1] Augusta Wilson, Big Tobacco’s Smoke and Mirrors Revived by Pruitt’s Science Transparency Policy, The Hill (June 4, 2018, 5:00 PM), https://thehill.com/opinion/energy-environment/390638-big-tobaccos-smoke-and-mirrors-revived-by-pruitts-science?rl=1.

[2] Strengthening Transparency in Regulatory Science, 83 Fed. Reg. 18,768 (Apr. 30, 2018).

[3] Strengthening Transparency in Pivotal Science Underlying Significant Regulatory Actions and Influential Scientific Information, 86 Fed. Reg. 469 (Jan. 6, 2021).

[4] Envtl. Defense Fund v. EPA, No. 4:21-cv-00003, 2021 WL 270246 at *7 (D. Mont. Jan. 27, 2021).

[5] Stephen Lee, EPA’s ‘Secret Science’ Rule Taken to Court by States, Cities, Bloomberg Law (Jan. 19, 2021, 3:38 PM), https://news.bloomberglaw.com/environment-and-energy/epas-secret-science-rule-taken-to-court-by-states-cities.

[6] Id.

[7] Id.

[8] Shouse et al., Cong. Rsch. Serv., RL30853, Clean Air Act: A Summary of the Act and Its Major Requirements (2020).

[9] The Clean Air Act: Solving Air Pollution Problems with Science and Technology, Env’t Prot. Agency https://www.epa.gov/clean-air-act-overview/clean-air-act-solving-air-pollution-problems-science-and-technology (last visited Apr. 12, 2021).

[10]  Off. Mgmt. & Budget, Memorandum on Issuance of OMB’s “Final Information Quality Bulletin for Peer Review” M-05-03, (Dec. 16, 2004).

[11] Id.

[12] Id.

[13] Id.

[14] Id. at 26.

[15] Exec. Off. of the President, Office of the Press Sec’y, Memorandum on Scientific Integrity (Mar. 9, 2009).

[16] Exec. Order No. 13,563, 76 Fed. Reg. 3,821 at 3,822 (Jan. 21, 2011).

[17] Id.

[18] Exec. Off. of the President, Office of Sci. & Tech. Policy, Memorandum on Increasing Access to the Results of Federally Funded Scientific Research (Feb. 22, 2013). 

[19] Id.

[20] Marcus R. Munafò et al., A Manifesto for Reproducible Science, Nature Human Behavior, Jan. 10 2017 at 1, https://www.nature.com/articles/s41562-016-0021. 

[21] Id. (Hindsight bias refers to one’s tendency “to see an event as having been predictable only after it has occurred” while confirmation bias references the tendency to direct one’s attention only to the evidence that supports one’s “expectations or favored explanation.”).

[22] Min Zhu, et al., Dimensionality Reduction in Complex Medical Data: Improved Self-Adaptive Niche Genetic Algorithm, Computational and Mathematical Methods in Medicine, Nov. 16, 2015 at 1, https://doi.org/10.1155/2015/794586.   

[23] Christine Choirat, et al., Data Science in Environmental Health Research, 6 Current Epidemiology Reports 291 (2019), https://doi.org/10.1007/s40471-019-00205-5.

[24] Wilson, supra note 1.

[25] Email from Christopher C. Horner, Counsel, Bracewell & Patterson LLP to Timothy N. Hyde, Senior Dir. of Pub. Issues, R.J. Reynolds Tobacco Co. and Randy Tompson, Dir. of Pub. Issues, R.J. Reynolds Tobacco Co. (Dec. 23, 1996, 1:56:01 PM) (proposing a strategy to counteract EPA’s re-examination of environmental tobacco smoke), https://www.industrydocuments.ucsf.edu/tobacco/docs/#id=jfww0019.

[26] Id.

[27] Wilson, supra note 1.

[28] Geoffrey Kabat, What Is Really at Stake in the House Committee on Science, Space, and Technology Subpoena of EPA Data, Forbes (Sep. 23, 2013, 8:00 AM), https://www.forbes.com/sites/geoffreykabat/2013/09/23/what-is-really-at-stake-in-the-republican-partys-subpoena-of-epa-data/?sh=16cd9c861ebc.

[29] Kelly Servick, House Panel Subpoenas EPA for Air Pollution Data, Sci. (Aug. 2, 2013, 6:15 PM), https://www.sciencemag.org/news/2013/08/house-panel-subpoenas-epa-air-pollution-data. 

[30] Id.

[31] Douglas W. Dockery et al., An Association Between Air Pollution and Mortality in Six U.S. Cities, 329 New Eng. J. Med 1753 (1993).

[32] Christopher Rowland, House GOP Demands Harvard Study Data, Boston Globe (Sept. 6, 2013, 8:57 PM), https://www.bostonglobe.com/news/nation/2013/09/06/landmark-harvard-study-health-effects-air-pollution-target-house-gop-subpoena/2K0jhfbJsZcfXqcQHc4jzL/story.html.

[33] Servick, supra note 29.

[34] Press Release, Comm. on Sci., Space, & Tech., Smith Subpoenas EPA’s Secret Science (Aug. 1, 2013), https://republicans-science.house.gov/news/press-releases/smith-subpoenas-epa-s-secret-science.

[35] Rowland, supra note 32. 

[36] H.R. 1030, 114^th Cong. (2015).

[37] Id.

[38] Strengthening Transparency in Regulatory Science, 83 Fed. Reg. 18,768 at 18,770.

[39] Id. at 18,772.

[40] Id. at 18,774.

[41] Id. at 18,770.

[42] Strengthening Transparency in Regulatory Science, 83 Fed. Reg. 15,396 at 15,399.

[43] Id.

[44] Id.

[45] Id. at 15,403.

[46] Id. at 15,397. The significance of this will be discussed in the following sections.

[47] Strengthening Transparency in Pivotal Science, 86 Fed. Reg. 469, at 475.

[48] Id.; Memorandum from The Office of the Press on Scientific Integrity, supra note 15.

[49] Juliet Eilperin & Brady Dennis, EPA Finalizes Rule to Limit Science Behind Public Health Safeguards, Wash. Post (Jan. 5, 2021, 10:51 am), https://www.washingtonpost.com/climate-environment/2021/01/04/epa-scientific-transparency/.

[50] Strengthening Transparency in Pivotal Science, 86 Fed. Reg. 469, at 483.

[51] Models are of great importance in environmental health studies. See Marie-Abèle Bind, Causal Modeling in Environmental Health, 40 Annual Rev. of Pub. Health 23 (Jan. 11, 2019), https://doi.org/10.1146/annurev-publhealth-040218-044048.

[52] Strengthening Transparency in Pivotal Science, 86 Fed. Reg. 469.

[53] Id. at 472.

[54] 5 U.S.C. § 301 (2011).

[55] N.Y. Attorneys General et al., Comment Letter on Proposed Rule Strengthening Transparency in Regulatory Science, Supplemental Rule (Aug. 16, 2020) (citing Global Van Lines, Inc. v. Interstate Commerce Comm’n, 714 F.2d 1290, 1293-97 (5^th Cir. 1983)), https://www.law.nyu.edu/sites/default/files/multistate_comments.pdf.

[56] 5 U.S.C. § 101 (2011) (listing all agencies considered as Executive or military departments).

[57] 83 Fed. Reg. 15,396 at 15,397.

[58] Id.

[59] Id at 15,398.

[60] James Goodwin, The EPA’s ‘Censored Science’ Rule Isn’t Just Bad Policy, It’s Also Illegal, Union of Concerned Scientists (Nov. 22, 2019), https://blog.ucsusa.org/guest-commentary/the-epas-censored-science-rule-isnt-just-bad-policy-its-also-illegal.

[61] 83 Fed. Reg. 15,396 at 15,397.

[62] 435 U.S. 519, 541 (1978).

[63] 381 U.S. 279, 294 (1965).

[64] Env’t. Defense Fund v. EPA, No. 4:21-cv-00003, 2021 WL 270246 (D. Mont. Jan. 27, 2021).

[65] Id. at *20.

[66] Id.

[67] Strengthening Transparency in Pivotal Science, 86 Fed. Reg. 469, at 472.

[68] John. P.A. Ioannidis, All Science Should Inform Policy and Regulation, Pub. Library of Sci. (May 13, 2018), https://journals.plos.org/plosmedicine/article?id=10.1371/journal.pmed.1002576.

[69] Union of Concerned Scientists, Comment Letter on Proposed Rule Strengthening Transparency in Regulatory Science, Supplemental Rule (May 15, 2020), https://ucs-documents.s3.amazonaws.com/science-and-democracy/ucs-csd-strengthening-transparency-in-regulatory-science-suppl-comment.pdf.

[70] Corin Hiar, In Battle over Pesticide Ban, Trump’s EPA Aims to Undermine the Science, Sci. (Aug. 23, 2018, 2:15P PM), https://www.sciencemag.org/news/2018/08/battle-over-pesticide-ban-trump-s-epa-aims-undermine-science.

[71] Id.

[72] Id.

[73] Id.

[74] Chlorpyrifos: EPA’s Request for Columbia’s Raw Data, EPA, (last accessed Dec. 9, 2020) (emphasis added), https://www.epa.gov/ingredients-used-pesticide-products/chlorpyrifos-epas-request-columbias-raw-data.

[75] Geena Reed, We Told OMB Why EPA’s So-Called Transparency Rule Is a Trap, Union of Concerned Scientists (Oct. 2, 2020), https://blog.ucsusa.org/genna-reed/we-told-omb-why-epas-so-called-transparency-rule-is-a-trap.

[76] Lisa Friedman, E.P.A Rejects Its Own Findings That a Pesticide Harms Children’s Brains, N.Y. Times (Sept. 23, 2020), https://www.nytimes.com/2020/09/23/climate/epa-pesticide-chlorpyrifos-children.html.

[77] Sharon Lerner, Republicans Are Using Big Tobacco’s Secret Science Playbook to Gut Health Rules, The Intercept (Feb. 5, 2017, 9:03 AM), https://theintercept.com/2017/02/05/republicans-want-to-make-the-epa-great-again-by-gutting-health-regulations/.

[78] 83 Fed. Reg. 18,768 at 18,769.

[79] Marianne Lavelle, EPA’s ‘Secret Science’ Rule Meets with an Outpouring of Protest on Last Day for Public Comment, Inside Climate News (May 19, 2020), https://insideclimatenews.org/news/19052020/secret-science-epa-transparency-rule-wheeler-pollution-environment/.

[80] Douglas W. Dockery & C. Arden Pope, The Threat to Air Pollution Health Studies Behind the Environmental Protection Agency’s Cloak of Science Transparency, 110 Am. J. Pub. Health 286 (Mar. 2020), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7002955/.

[81] Id.

[82] Id.

[83] Id.

[84] Lavelle, supra note 82.

[85] Id.

[86] Id.

[87] Reed, supra note 78.

[88] Scott Waldman, Scientists Favor Transparency, but Say EPA Plan Will Limit It, Sci. Am. (Apr. 25, 2018), https://www.scientificamerican.com/article/scientists-favor-transparency-but-say-epa-plan-will-limit-it/.

[89] Scott Waldman, EPA’s Own Advisory Board Questions ‘Secret Science’ Plan, Sci. Am. (May 16, 2018), https://www.scientificamerican.com/article/epas-own-advisory-board-questions-secret-science-plan/.

[90] Id.

[91] Id.

[92] Juliet Eilperin & Brady Dennis, Pruitt Unveils Controversial ‘Transparency’ Rule Limiting What Research EPA Can Use, Wash. Post (Apr. 24, 2018), https://www.washingtonpost.com/news/energy-environment/wp/2018/04/24/pruitt-to-unveil-controversial-transparency-rule-limiting-what-research-epa-can-use/. 

[93] Id.

[94] 83 Fed. Reg. 15,396 at 15,399.

[95] Ioannidis, supra note 71; Lee, supra note 5.

[96] Exec. Order No. 13,990, 86 Fed. Reg. 7,037 (Jan. 25, 2021).

[97] Id.

[98] Stephen Lee & Jennifer Hijazi, Biden Team in a Bind over Reversing EPA’s ‘Secret Science’ Rule, Bloomberg Law (Jan. 6, 2021, 2:57 PM), https://news.bloomberglaw.com/environment-and-energy/biden-team-in-a-bind-over-reversing-epas-secret-science-rule.

[99] Id.

[100] Id.

By Cole Jermyn, Editor-in-Chief at Harvard Environmental Law Review. 

This post is part of the Environmental Law Review Syndicate. Read the original here and leave a comment. 

Introduction

The offshore wind power industry in the United States is at an inflection point. Only two projects have been constructed up to this point: the Block Island wind farm off Rhode Island, and the Coastal Virginia Offshore Wind pilot project off Virginia.^[1] Together, these projects consist of seven turbines with a combined maximum capacity of only forty-two megawatts (“MW”) of electricity.^[2] But all signs point to an explosion in the construction of offshore wind projects in the next few decades, with multiple states setting targets of gigawatts (“GW”) of offshore wind power, and projections showing that more than eighteen GW of offshore wind capacity could be built just in the next decade.^[3]

The potential for offshore wind power in the United States is enormous. In 2016, the Department of Energy and Department of the Interior published a report entitled “National Offshore Wind Strategy.”^[4] Updating a 2011 report on the same topic, the 2016 report was intended to highlight the potential of offshore wind development, and the largest hurdles that must be overcome to achieve that potential.^[5] The report concluded that using only technology available at the time of publication, the total potential offshore wind power capacity in U.S. waters was roughly double the total electricity consumption of the country in 2015.^[6] And, under a realistic development scenario, 86 GW of offshore wind turbines could be installed by 2050, producing 14% of projected electricity demand in the United States.^[7] The value of offshore wind, and floating turbines in particular, is that the technology provides the carbon-free electricity that fossil fuel–fired electricity sources cannot, while providing more consistent electricity than other renewable sources such as utility-scale solar and land-based wind power.^[8]

Significant offshore wind development, however, is not inevitable. Further technology and infrastructure development is essential, as the ability to efficiently produce and transport electricity from turbines to consumers will determine how far developers will stray beyond the optimal sites to install turbines. Competing interests—including fishermen who work in or transit the areas where wind farms are planned, environmental groups focused on protecting vulnerable species, and landowners seeking to avoid visual impacts—can use various methods to delay or block wind projects. Regulatory requirements at the federal, state, and local levels can increase costs, limit alternatives, and hamper any wind power development. This Article focuses on one area of offshore wind development that is still in the early stages of development globally but carries significant environmental and economic upsides: floating offshore wind. I begin by looking at the advantages of floating turbines over their fixed-bottom counterparts and the status of floating turbine installations today. I then discuss two areas in which federal policymakers should focus their attention to encourage the development and deployment of floating turbines. First, I recommend a significant increase in research, development, demonstration, and commercialization (“RDD&C”) funding, particularly for full-scale demonstration projects, an area where the United States lags far behind European nations. Second, I recommend the development of a federally managed floating turbine testbed that would facilitate the testing of floating turbines by private turbine developers. The combined goal of these proposals is to make the United States a global hub of floating turbine development, thereby lowering barriers to entry for competitors and sparking the development of supply chains that are prerequisites for commercial-scale deployment of floating turbines both in the United States and abroad.

I. Why Floating Turbines

Most offshore wind farms use fixed-bottom turbines, where the turbine is built on a foundation attached to the seabed.^[9] Fixed-bottom turbines are challenging to build in water deeper than fifty meters, and the advanced designs and materials needed at these depths make most turbines prohibitively expensive outside of shallower waters.^[10] Floating turbines, where the turbine sits atop a floating base anchored to the seabed by long cables, could make turbines economical in water deep as one thousand meters or more.^[11] Accessing these deepwater areas is crucial because they contain approximately 58% of the offshore wind energy in U.S. waters that could be captured by turbines, and closer to 95% along the Pacific Coast.^[12] Floating turbines, therefore, are a necessity for fully exploiting offshore wind power’s potential in areas like the Northeast and for having any commercial-scale offshore wind off California and Hawaii.

On top of increasing the total energy potential of offshore wind, floating turbines offer multiple potential benefits over fixed-bottom turbines. Because the winds further from land are often stronger and more consistent, floating turbines can provide more reliable energy production.^[13] Floating turbines can also have lower construction costs, as some floating turbines can be fully built in port and towed to their final location, rather built on-site with specialized ships.^[14] Floating turbines could have smaller environmental impacts at the installation site, since the cables used to hold the turbine in place spare nearby fish and marine mammals any harm from the pile driving that fixed-bottom turbines require.^[15] Finally, there may be fewer conflicts with fishermen, who are less likely to fish in these deeper waters, as well as property owners on the coast, who are less likely to see the turbines from shore.^[16] All of these potential benefits are contingent on policymakers and developers recognizing that floating turbines are a viable technology that deserves investment and regulatory focus.

The main goal of policymakers concerning floating turbines should be to quickly drive down their cost. A rapid decrease in the cost of fixed-bottom turbines has helped offshore wind development explode in Europe in the past few years. Estimates from the U.K. government of the expected levelized cost of electricity (“LCOE”)^[17] for offshore wind in the country in 2025 have dropped from £140/MWh in 2013, to £107/MWh in 2016, to £57/MWh in 2020.^[18] This major cost reduction allowed the U.K. to set the ambitious goal of 40 GW of offshore wind by 2030, a 300% increase over current levels and enough to power every home in the U.K.^[19] Because it remains a nascent technology, however, the cost reductions seen for fixed-bottom turbines have not yet materialized for floating turbines. Of the 29.1 GW of offshore wind that have been installed globally through 2019, floating turbines contributed only 65.7 MW, or 0.2% of all offshore wind capacity.^[20]

This lack of floating turbine development is beginning to change as private developers—with significant support from national governments and the EU—are continuing to scale up their floating turbine demonstration projects throughout Europe. One developer, Equinor, went from a single floating turbine deployed for testing in 2009, to a five-turbine pilot project in 2017, to beginning construction on an eleven-turbine project in the fall of 2020.^[21] Another example is the WindFloat Atlantic project off the coast of Portugal, which began operating in 2020 and is made up of three floating turbines with a combined capacity of 25 MW.^[22] These projects alone outmatch the entire U.S. offshore wind industry, fixed-bottom and floating, which today counts only seven turbines.^[23] Nonetheless, the projects remain expensive, with WindFloat Atlantic having an estimated LCOE of €200/MWh.^[24] The National Renewable Energy Lab (“NREL”) estimated in 2020 that the LCOE of the average commercial-scale floating offshore wind project was between $110 and $175/MWh, well above other energy sources such as onshore wind, utility-scale solar, and natural gas.^[25]

Cost reductions could come quickly, however, if the right steps are taken. NREL estimates that the LCOE of commercial-scale floating offshore wind projects could fall to around $60/MWh by 2032,^[26] and floating turbine projects could become cheaper than fixed-bottom projects before 2030.^[27] The following two sections outline steps the U.S. government should take to make these cost reductions a reality.

II. Investing in Floating Turbine Development

Because floating turbine technology is still young, federal investment in RDD&C can yield high returns on investment. Congress, through the Department of Energy (“DOE”), should fund programs that invest in offshore wind technology development more, particularly demonstration and commercialization projects, to reflect offshore wind’s significant potential and to match European investments.

A. Jumpstarting Research and Development

Research and development funding for offshore wind technology in the United States typically comes from the DOE and the Advanced Research Projects Agency-Energy (“ARPA-E”). ARPA-E is a subagency of the DOE that funds research and development of energy projects deemed too experimental for private-sector investment.^[28] ARPA-E funds in two ways: open funding, where researchers can submit proposals based on any energy technology; and specific programs, where the agency focuses funding around a specific energy source.^[29] In 2019, ARPA-E funded twelve projects specifically focused on floating wind turbines with a total of around $28 million through its ATLANTIS program.^[30] This grant funding, however, was a one-time award, and ARPA-E generally does not provide regular, annual funding for specific projects or research areas.^[31] The agency’s open funding opportunities typically happen every three years, with the last one occurring in 2018.^[32] Of the seventy-nine projects funded by the OPEN 2018 funding, only five were related to wind turbines and none focused on offshore wind.^[33]

The solution is not for Congress to shift all of ARPA-E’s funding to offshore wind research, but to increase appropriations for this underfunded agency. The original proposal to create ARPA-E in 2005 suggested the agency should have a $1 billion annual budget,^[34] but in reality the agency has never had more than $427 million in a single year.^[35] The DOE spends nearly twice as much on research and development for fossil energy and thirty times as much on maintaining the U.S. nuclear weapons stockpile.^[36] The Energy Act of 2020 authorized ARPA-E’s funding to increase from $435 million in  fiscal year 2021 to $761 million by fiscal year 2025.^[37] Congress did appropriate $427 million for fiscal year 2021,^[38] nearly the full authorized amount, but it remains to be seen whether Congress will continue to increase appropriations in line with the larger budget authorizations in upcoming years. Matching appropriations to what Congress authorized for ARPA-E would nearly double the funding the agency could distribute to renewable technology research such as floating wind turbines and is a realistic short-term goal. Long-term, Congress should go further and increase ARPA-E’s funding to at least $3 billion annually to approach that of the Defense Advanced Research Projects Agency (“DARPA”), the Defense Department’s equivalent of ARPA-E, as was recommended by the House Select Committee on the Climate Crisis.^[39]

B. Using the DOE to Bridge the “Valley of Death”

While ARPA-E focuses on cutting-edge technologies, the DOE provides grants and loans to renewable energy projects from preliminary research all the way to the commercialization stage. This funding could be particularly useful in moving projects from laboratory-scale demonstrations to commercial viability, a gap that is often referred to as the “valley of death.”^[40] The first full-scale projects for a technology like offshore wind turbines can be prohibitively expensive for all but the largest companies due to the high capital costs of turbines and the low expected returns from small-scale initial projects. Government funding can help demonstrate commercial viability, build and develop markets, and prove to investors that a technology is worth their capital.^[41] The WindFloat project in Portugal demonstrates the necessity of government funding for the first full-scale projects using a particular technology. The project cost around €120 million, €90 million of which came in the form of grants and loans from the European Investment Bank, an agency of the European Union.^[42] This funding is essential for building a bridge over the “valley of death” by supporting wind developers in solving the problems that inevitably come when building the first full-scale versions of a technology. The WindFloat turbines, for example, were delayed by challenges in fine-tuning the computer system that balances the turbine’s floating platform.^[43] With that done, the next turbines will not face the same delays, and floating turbines can be installed faster and less expensively.

For comparison, the DOE’s funding for wind projects is far smaller than investment by the European Union and European countries. The DOE has allocated $200 million since 2011 for offshore wind project grants for a variety of projects, from research to demonstration projects.^[44] Meanwhile, just since 2014 the EU has approved €314 million in grant funding for offshore wind demonstration and commercialization projects, including over €120 million for floating wind projects, through its NER300 program.^[45] Two projects funded by the DOE’s Offshore Wind Advanced Technology Demonstration program, the Icebreaker Project in Lake Erie, and the Aqua Ventus project off Maine, have both received approximately $14 million in funding and are eligible for up to $37 million more if they achieve specific milestones as outlined by the DOE.^[46] Compare this with the Veja Mate offshore wind project in Germany, which was awarded €112.6 million by the European Commission in 2015,^[47] and the Hywind Tampen pilot project, the eleven-turbine floating wind farm discussed above,^[48] which was awarded 2.3 billion Norwegian kroner (about $273 million) by the Norwegian government in 2019.^[49] Overall, Europe is far outspending the United States for offshore wind projects.

C. The Opportunity of Renewable Energy Loans

The disparity between U.S. and EU green energy funding is even starker in renewable energy loans. The European Investment Bank (“EIB”) provided €53 billion in energy efficiency, renewable energy, and grid infrastructure loans between 2015 and 2019, including €4 billion in loans for innovative renewable energy projects in 2019 alone.^[50] Under the EU’s InnovFin Energy loan program that WindFloat benefited from, up to 50% of a project’s costs can come from these loans, which can support experimental projects that would otherwise struggle to get funding.^[51] And, these loans are not just for new renewable technologies; they also help expand renewable energy to new locations. The Lake Turkana wind farm in Kenya, for example, received €200 million in loans—30% of the total project cost—from the EIB.^[52]

The DOE, meanwhile, has provided a total of $13.6 billion in loans and loan guarantees for low-carbon energy projects since 2010 through its Loan Programs Office.^[53] The loan program was critical in launching utility-scale solar energy projects, with the DOE loan guarantees backing the first five such projects in the United States. But only one project, the Vogtle nuclear plant, has received a loan since 2011.^[54] Only four wind projects, all funded in 2010 or 2011, have received any loans or loan guarantees from the agency, and these were all onshore wind farms.^[55] The limited use of the DOE’s loan program can be attributed to the restrictive nature of its authorizing statute. The program was split between two main sections, section 1703[56] and section 1705.^[57] Section 1703 is still operating,^[58] and has $3 billion left for loan guarantees for clean energy projects,^[59] but projects funded with this money must use “new or significantly improved technologies.”^[60] Section 1705 was a temporary program created as part of the 2009 stimulus bill that allowed for loan guarantees for renewable energy projects and did not require the technology to be innovative.^[61] Unlike most onshore and fixed-bottom offshore wind projects, the first handful of full-scale floating turbine projects may still be able to take advantage of the section 1703 loan guarantees due to their use of new-to-the–United States technology, but it is unlikely any floating turbine developers are close enough to full-scale turbine deployment in the United States to pursue this option.

In the long term, Congress should reauthorize the section 1705 program to support a broader array of offshore wind projects without the need to employ innovative technology and raise the current $3 billion limit on how much the DOE can provide in loan guarantees for renewable energy projects. As with ARPA-E, Congress should also increase the DOE’s funding for grants for wind energy research and demonstration projects, with a particular focus on technologies seeking to bridge the valley of death, such as floating turbines. Floating turbine technology continues to rapidly advance, but increased funding to jumpstart the industry is needed to help the United States catch up with Europe’s larger offshore wind sector and to achieve the cost reduction expectations discussed above.^[62]

III. Floating Turbine Testbed

In addition to increased funding for experimental offshore wind projects, the DOE and Bureau of Ocean Energy Management (“BOEM”) could take more proactive steps with congressional support to advance technological developments in floating turbines. One such option would be to create a federally managed floating turbine testing site where universities, agencies like NREL, and private developers can all test new floating turbine technology without having to go through the hurdles of leasing and multi-year environmental review for each project.^[63] This would create a form of a regulatory sandbox,^[64] where developers can save money by being able to sell their electricity onshore without having to install the transmission infrastructure, all while testing innovative floating turbine designs for later use in commercial-scale wind farms.

Granting research leases is already within BOEM’s regulatory power. The agency can grant research leases and rights-of-way to federal agencies and states for projects that “support the future production, transportation, or transmission of renewable energy.”^[65] In granting a research lease, BOEM must still consult states, tribes, and other agencies and find there is no competitive interest in the lease,^[66] but the necessary environmental review under the National Environmental Policy Act (“NEPA”) can be much simpler and quicker than a commercial-scale offshore wind project. As a comparison, BOEM announced its intent to draft an environmental impact statement for the Vineyard Wind project—a 800MW offshore wind farm off Massachusetts—in March of 2018, and the process has yet to conclude three years later.^[67] Meanwhile, the Coastal Virginia Offshore Wind (“CVOW”) project—a small two-turbine pilot project operating under BOEM’s research grant authority—only required an environmental assessment that took only fifteen months from announcement to completion and permit approval.^[68]

In addition to the CVOW project, three projects that could inform the development of such a floating turbine testbed are NREL’s controllable grid interface (“CGI”), the PacWave project, and the University of Maine’s Deepwater Offshore Wind Test Site. The CGI is a microgrid at the National Wind Technology Center in Colorado that NREL uses to mimic real electric grid conditions and test commercial-scale renewable energy technology.^[69] In addition to photovoltaic solar and battery storage systems, the CGI has five wind turbines from four different manufacturers connected to the system.^[70] The CGI is unique in that it is directly managed by a federal agency, and it is valuable both for testing wind turbines and other renewable energy technologies independently and studying how these technologies would interact with each other and the larger grid.^[71]

The PacWave project, developed by Oregon State University and permitted by BOEM and the Federal Energy Regulatory Commission (“FERC”), proposes to test wave energy technology in federal waters off the Oregon coast.^[72] Operating under the same research lease authority as the CVOW project, the PacWave project will consist of four “berths” where different developers can install experimental wave energy generators.^[73] Oregon State will install and manage a dedicated electrical transmission cable for each berth to allow developers to sell the power they generate and monitor their installations from shore.^[74] The permitting process differs between wave energy projects like this and offshore wind.^[75] But BOEM should replicate  this general structure of a testing site with permitting and infrastructure handled by one party (like the DOE or a university like Oregon State) that facilitates testing by other groups for floating turbines.

The Deepwater Offshore Wind Test Site, created through state legislation in 2009,^[76] is in state waters near Monhegan Island, more than twelve miles off the coast of Maine.^[77] The site is meant to be used for offshore wind demonstration projects pursued by private developers in association with the University of Maine,^[78] and the state legislature appears to have designed it specifically for the Aqua Ventus project.^[79] A joint venture with the University of Maine and multiple private offshore wind developers, the Aqua Ventus project began by deploying a sixty-five-foot tall floating turbine in 2013 nearer to the Maine coast for preliminary tests.^[80] After receiving approval in 2019, the group is moving forward with plans to install one 10MW floating turbine at the Deepwater Offshore Wind Test Site by 2022.^[81] The test site was selected based on its deep waters, strong winds, minimal conflicts with fishermen, and proximity to both the mainland and an island with high energy costs.^[82] The developers have also signed a twenty-year power purchase agreement with the Maine Public Utilities Commission.^[83] Aqua Ventus will be able to test its innovative floating turbine while also providing clean energy to Maine, helping offset the project’s cost.

Congress could learn from these four projects to create a unique, multi-turbine, floating offshore wind testbed. This would start with Congress directing the DOE and BOEM to identify an appropriate area in federal waters with strong, consistent winds, appropriate depths, and sufficient distance from shore to avoid complaints from coastal landowners.^[84] Congress should also direct and fund the DOE to install electrical infrastructure to both monitor and test the turbines, as with the CGI facility, and to transmit generated electricity to shore for sale.^[85] The majority of the NEPA review process could be completed upfront to include both the infrastructure built and managed by the DOE and expected turbines.^[86] Once this preliminary review and infrastructure development is completed, individual turbines could likely be installed after just a categorical exclusion[87] is issued, or at most an environmental assessment is completed.

An accessible test site like this would be in high demand if set up right. Floating turbine technology, unlike fixed-bottom turbines, has yet to become commercially economical, but the existence of numerous pilot projects such as Aqua Ventus, WindFloat Atlantic, and Hywind Tampen demonstrates that developers are eager to test full-scale floating turbine designs. Developers would be attracted to using the testbed due to the low barriers to entry (i.e., not needing to obtain their own lease or install most of the transmission infrastructure and a simplified permitting process), and the ability to sell their electricity. Development of the testbed could also encourage existing turbine designers like Siemens Gamesa,^[88] MHI Vestas,^[89] and GE Renewable Energy,^[90] who are all developing their own floating turbines, to increase their presence in the United States. It could also help new groups, such as the consortium developing the Aqua Ventus project, to become market competitors, accelerating turbine development and driving down costs. Technological developments supported by the testbed would help wind farm developers expand and improve their installations not just in the United States, but worldwide. Overall, it would be a cost-effective way to spur innovation in floating turbine technology, encourage offshore wind development in the United States, and drive down costs globally.

Conclusion

Floating wind turbines represent one part of the larger offshore wind industry. While fixed-bottom turbine technology—supported by European investment and installations—is already economically viable and supported by private development, floating turbines need investment, research, and testing. Although largely absent from participation in the development of the first generation of offshore wind turbines, the United States can still be a champion in the development and deployment of floating turbines. This would require increased investments in everything from preliminary research supported by ARPA-E, to loan guarantees from the DOE’s Loan Program Office. The federal government should also go beyond simply funding research by others to actively supporting testing through the creation of a floating turbine testbed in federal waters. Such a project could make the United States a hub for floating turbine development, allowing for wind farms in previously inaccessible waters and providing significant amounts of renewable energy in the United States and other nations.

[1] See Our Offshore Wind Projects in the U.S., Ørsted, https://perma.cc/D6BQ-KHS9.

[2] Id. For comparison, the average natural gas–powered electric generating unit installed in 2017 had a capacity of 820 MW. Power Blocks in Natural Gas–Fired Combined-Cycle Plants Are Getting Bigger, Energy Info. Admin. (Feb. 12, 2019), https://perma.cc/4XP6-UHLL.

[3] John Fialka, U.S. Has 7 Ocean Turbines. Companies See Hundreds Soon, Climatewire (July 30, 2020), https://perma.cc/BJS2-AUQV. One gigawatt equals one thousand megawatts.

[4] Patrick Gilman et al., U.S. Dep’t of Energy, & Fred Beck, U.S. Dep’t of the Interior, National Offshore Wind Strategy (2016) [hereinafter National Offshore Wind Strategy].

[5] Id. at vii.

[6] Id. at viii.

[7] Id.

[8] Compare Capacity Factors for Utility Scale Generators Primarily Using Non-Fossil Fuels, Energy Info. Admin., https://perma.cc/JY3B-RCPF (listing the average capacity factors for utility-scale solar and land-based wind in 2020 as 24.9% and 35.4%, respectively), with UK Offshore Wind Capacity Factors, Energy Nos., https://perma.cc/69FB-H8E6 (listing the lifetime capacity factor for the floating turbine Hywind Scotland project as 53.6%). Capacity factor is the percentage of total energy actually produced by a source as compared to the total energy that could be produced if the source operated continuously at full capacity.

[9] Walt Musial et al., Nat’l Offshore Wind Rsch. & Dev. Consortium, Research and Development Roadmap Version 2.0, at 8 (2019), https://perma.cc/VM8B-C64B.

[10] Garrett E. Barter et al., A Systems Engineering Vision for Floating Offshore Wind Cost Optimization, Renewable Energy Focus, Sept. 2020, at 1.

[11] Musial et al., supra note 9, at 8.

[12] Barter et al., supra note 10, at 1.

[13] See supra note 8 and accompanying text.

[14] See Barter et al., supra note 10, at 2.

[15] See Arthur N. Popper et al., Bureau of Ocean Energy Mgmt., Effects of Pile Driving Sounds on Nonauditory Tissues of Fish, at x–xi (2013), https://perma.cc/XKJ6-X3P2.

[16] Barter et al., supra note 10, at 7.

[17] Levelized cost of energy estimates the total cost of all aspects of an energy source spread over the lifespan of that source. A developer would need to charge the LCOE for all energy produced over the lifespan of the project to break even on that project. See Laura Malaguzzi Valeri, Not All Electricity Is Equal—Uses and Misuses of Levelized Cost of Electricity (LCOE), World Res. Inst. (Aug. 1, 2020), https://perma.cc/U2ZD-PQ4B.

[18] Simon Evans, Wind and Solar Are 30–50% Cheaper than Thought, Admits U.K. Government, CarbonBrief (Aug. 27, 2020), https://perma.cc/4YMB-QXR5. The report found that increased size of wind farms resulted in economies of scale savings, while higher than expected capacity factors resulted in higher energy production. Dep’t of Bus., Energy & Indus. Strategy, Electricity Generation Costs 2020, at 23 (2020), https://perma.cc/GL29-B42G. The report does not distinguish between fixed-bottom and floating turbines, but the one example project given is for a fixed-bottom turbine project. See id. At the time of publication, these costs are equivalent to approximately $192/MWh, $147/MWh, and $78/MWh, respectively.

[19] John Parnell, Already the World’s Leading Market, U.K. Doubles Support for Offshore Wind, Green Tech Media (Oct. 6, 2020), https://perma.cc/QK8X-4U4J.

[20] Joyce Lee et al., Glob. Wind Energy Council, Global Offshore Wind Report 2020, at 11–12 (2020), https://perma.cc/E5QV-Z6G3.

[21] The Future of Offshore Wind Is Afloat, Equinor, https://perma.cc/23YA-QGGW (follow three tabs under the heading, “Our Floating Offshore Wind Projects”). The turbine size also grew between each project, with the first turbine being 2.3MW, the pilot project using 6MW turbines, and the most recent project using 8MW turbines. Id.

[22] See Craig Richards, WindFloat Atlantic Fully Operational, Windpower Monthly (July 27, 2020), https://perma.cc/W85D-KUGQ (discussing the completion of the WindFloat Atlantic project).

[23] See Our Offshore Wind Projects in the U.S., supra note 1 (discussing the Block Island Wind Farm and Coastal Virginia Offshore Wind project); Fialka, supra note 3 (discussing the total number of offshore wind turbines operating in the United States).

[24] Stanley Reed, A New Weapon Against Climate Change May Float, N.Y. Times (June 10, 2020), https://perma.cc/2VWC-MVT6. At the time of publication, this is equivalent to approximately $237/MWh.

[25] Walter Musial et al., Nat’l Renewable Energy Lab’y, 2019 Offshore Wind Technology Data Update 68 (2020), https://perma.cc/2X4F-DUK4 (estimating the LCOE for offshore wind to be between $100 and $175/MWh); Int’l Energy Agency, Projected Costs of Generating Electricity 2020 (2020), https://perma.cc/7EJH-E9CL (estimating the average LCOE for onshore wind to be $50/MWh, for utility-scale solar to be $56/MWh, and for natural gas to be $71/MWh).

[26] Musial et al., supra note 25, at 68.

[27] Philipp Beiter et al., Nat’l Renewable Energy Lab’y, A Spatial-Economic Cost-Reduction Pathway Analysis for U.S. Offshore Wind Energy Development from 2015–2030, at xiii (2016), https://perma.cc/9VTV-U8QZ.

[28] See About, Advanced Rsch. Projects Agency-Energy, https://perma.cc/C37A-5MBA.

[29] See OPEN Programs, Advanced Rsch. Projects Agency-Energy, https://perma.cc/Q8WM-QGL3.

[30] See Atlantis, Advanced Rsch. Projects Agency-Energy, https://perma.cc/N8DQ-PCMZ. ATLANTIS stands for Aerodynamic Turbines Lighter and Afloat with Nautical Technologies and Integrated Servo-control. Id. Unless the DOE allocates additional money to the program, $28 million appears to be its full appropriation. See Department of Energy Announces $28 million for Offshore Wind Energy, U.S. Dep’t of Energy (Feb. 1, 2019), https://perma.cc/4MK9-K8GU.

[31] See U.S. Dep’t of Energy, Advanced Research Projects Agency-Energy Annual Report for FY2018, at 6 n.4 (2019), https://perma.cc/9UNL-K94V.

[32] See OPEN 2021, Advanced Rsch. Projects Agency-Energy, https://perma.cc/G9AS-UHUA.

[33] See OPEN 2018 Projects, Advanced Rsch. Projects Agency-Energy, https://perma.cc/XCJ3-LAE2.

[34] Norman R. Augustine et al., Nat’l Acads. of Scis., Eng’g, & Med., Rising Above the Gathering Storm 154 (2007), https://perma.cc/FK53-N2XU.

[35] Budget Requests, Advanced Rsch. Projects Agency-Energy, https://perma.cc/97FM-AZQK.

[36] Advanced Rsch. Projects Agency-Energy, FY2020 Budget Request 1 (2019), https://perma.cc/G7US-GUN7; see also U.S. Dep’t of Energy, FY 2021 Congressional Budget Request 1 (2020), https://perma.cc/R3DL-8WX2.

[37] Consolidated Appropriations Act of 2021, Pub. L. No. 116-260, tit. X, § 10001(g) (2020), https://perma.cc/2DE6-TCPE.

[38] Id. tit. III, https://perma.cc/2DE6-TCPE.

[39] See House Select Committee on the Climate Crisis, Solving the Climate Crisis 220 (2020), https://perma.cc/V4N3-MJ42.

[40] See generally L.M. Murphy, Nat’l Renewable Energy Lab’y, & P.L. Edwards, Altria Group LLC, Bridging the Valley of Death: Transitioning from Public to Private Sector Financing (2003), https://perma.cc/3BFK-2NRZ.

[41] See id. at 32.

[42] €30 million came from a renewable energy development grant, and €60 million came from a loan for renewable technologies. EU Loan Helps Kick-Start Construction of Floating Wind Farm Off the Coast of Portugal, Eur. Comm’n (Oct. 19, 2018), https://perma.cc/2KF6-4JF6.

[43] See Reed, supra note 24.

[44] Offshore Wind Research and Development, U.S. Dep’t of Energy, https://perma.cc/Z8RJ-PA27.

[45] NER300 – Documentation, Eur. Comm’n, https://perma.cc/KR28-BD3W. The NER300 program’s funding comes from the money raised by the EU’s Emissions Trading System, NER 300 Programme, Eur. Comm’n, https://perma.cc/BQC6-GTQK, and the DOE has no comparable funding source.

[46] See Offshore Wind Advanced Technology Demonstration Projects, U.S. Dep’t of Energy, https://perma.cc/TT9T-QNQL. The Aqua Ventus project is the only floating turbine project of these two; the Icebreaker Project is focused on fixed-bottom turbine technology for the Great Lakes. Id.

[47] Veja Mate, Eur. Comm’n, https://perma.cc/PRT9-BQN8.

[48] See supra note 21 and accompanying text.

[49] Hywind Tampen Floating Offshore Wind Farm Secures £210m Funding from Enova, NS Energy (Aug. 23, 2019), https://perma.cc/4SAM-G2JC.

[50] Eur. Inv. Bank, Energy Overview 2020, at 2–3 (2020), https://perma.cc/H8EK-7HTA.

[51] Eur. Inv. Bank, InnovFin Energy Demo Projects 1 (2017), https://perma.cc/Y379-7RTQ.

[52] EIB and Lake Turkana Wind Power, Eur. Inv. Bank (Apr. 3, 2019), https://perma.cc/8AB8-YRC7.

[53] Portfolio Projects, U.S. Dep’t of Energy, https://perma.cc/6DPA-HNH5.

[54] Jacqueline Toth, DOE Program’s $3.7 Billion Loan Highlights Lack of Action on Other $40 Billion It Holds, Morning Consult (Apr. 8, 2019), https://perma.cc/N2G6-6PPV.

[55] Wind Energy Projects, U.S. Dep’t of Energy, https://perma.cc/P6CQ-KLCW.

[56] Energy Policy Act of 2005, Pub. L. 109–58, tit. XVII, § 1703, 119 Stat. 1120, 1453–55 (2005) (codified at 42 U.S.C. § 16513).

[57]  American Recovery and Reinvestment Act of 2009, Pub. L. No. 111-5, tit. XVII, § 1705, 123 Stat. 115, 145–48 (2009) (codified at 42 U.S.C. § 16516); see also Phillip Brown et al., Cong. Rsch. Serv., IN11432, Department of Energy Loan Programs: Title XVII Innovative Technology Loan Guarantees 1 (2020).

[58] Brown et al., supra note 57, at 1.

[59] Loan Program Off., Annual Portfolio Status Report Fiscal Year 2019 3 (2019), https://perma.cc/4K3H-55UH.

[60] 42 U.S.C. § 16513(a)(2).

[61] Brown et al., supra note 57, at 2.

[62] The DOE would also benefit from a dedicated funding source for renewable energy grants, like the EU’s Emissions Trading System funding the NER 300 program, although the potential and characteristics of a carbon tax or cap-and-trade system in the United States are far outside the focus of this Article.

[63] The challenges and delays for commercial offshore wind leasing in the United States are outside the scope of this Article, but the disparity in offshore wind development between Europe and the United States suggests this is more than just a problem of technology development.

[64] A regulatory sandbox is a controlled environment where new ideas and technologies can be tested without having to go through what can often be long permitting processes. See Brien J. Sheahan & Jimmie Zhang, Experiment Without Penalty: Can Regulatory ‘Sandboxes’ Foster Utility Innovation?, UtilityDive (Mar. 21, 2019), https://perma.cc/TB84-3363.

[65] 30 C.F.R. § 585.238(a) (2019).

[66] Id. § 585.238(b), (c).

[67] See Vineyard Wind, Bureau of Ocean Energy Mgmt., https://perma.cc/5WDQ-R69U.

[68] See Coastal Virginia Offshore Wind Project (CVOW), Bureau of Ocean Energy Mgmt., https://perma.cc/THW3-G9YW. The lease is actually held by the Commonwealth of Virginia’s Department of Mines, Minerals and Energy, which then gave Dominion Energy, the state’s regulated utility, the authority to construct the project. Id.

[69] Grid Integration Facilities at the National Wind Technology Center, Nat’l Renewable Energy Lab’y, https://perma.cc/5DC6-VJWA.

[70] Id.

[71] Controllable Grid Interface, Nat’l Renewable Energy Lab’y, https://perma.cc/S2AL-9NQR.

[72] PacWave South Project, Bureau of Ocean Energy Mgmt., https://perma.cc/95ZL-2JES.

[73] South Test Site, PacWave, https://perma.cc/43NK-6ERL.

[74] Id.

[75] PacWave South Project, supra note 72 (discussing FERC’s authority to permit construction of wave energy projects).

[76] Me. Rev. Stat. Ann. tit. 38, § 480-HH (2021).

[77] UMaine Deepwater Offshore Wind Test Site at Monhegan Island, Univ. of Me., https://perma.cc/T7N4-2856.

[78] Using the Test Site, Univ. of Me. (Oct. 29, 2020), https://perma.cc/8HFM-CGGP.

[79] The Aqua Ventus project has been one of the largest recipients of DOE funding for offshore wind. See supra note 44.

[80] Kristoffer Tigue, Can America’s First Floating Wind Farm Help Open Deeper Water to Clean Energy?, Inside Climate News (Nov. 20, 2019), https://perma.cc/84TR-PEWB.

[81] Id.

[82] The Project, Aqua Ventus, https://perma.cc/964H-RYA9.

[83] Id.; see also Site Selection, Univ. of Me., https://perma.cc/KCE9-5JHV.

[84] Federal waters refers to the area of the ocean beyond state-controlled waters, typically three nautical miles from shore, out to twelve nautical miles. Outer Continental Shelf, Bureau of Ocean Energy Mgmt., https://perma.cc/B76J-KYJE.

[85] The Aqua Ventus project is currently demonstrating the challenges of this siting and permitting process, as it is considering multiple landfall sites for its cable after consulting with fishermen, and the group does not appear to have requested the federal right-of-way that will be needed from BOEM, as the cable crosses federal waters. Proposed Cable Landings in St. George and East Boothbay, Aqua Ventus, https://perma.cc/UL98-RDR4.

[86] Whether this would require an environmental assessment, like the CVOW project, or a full environmental impact statement, like Vineyard Wind, would likely depend on the number of turbines the site is planned for.

[87] A categorical exclusion is a predetermined type of action found by an agency to not have significant effects on the environment, which therefore does not require an environmental assessment or environmental impact statement under the National Environmental Policy Act. Categorical Exclusions, Council on Env’t Quality, https://perma.cc/WAY9-KJDT.

[88] Press Release, Siemens Gamesa, Giant Leap Forward in Floating Wind: Siemens Gamesa Lands the World’s Largest Project, the First to Power Oil and Gas Offshore (Oct. 31, 2019), https://perma.cc/YGP6-JMGS.

[89] First Ever V164-9.5 MW Turbine Installed on a Floating Wind Project, MHI Vestas Offshore Wind (Nov. 11, 2020), https://perma.cc/4T3A-PNWU.

[90] Ship Shape: This Floating Offshore Wind Farm Could Be the Future of Renewable Energy, Gen. Electric (Aug. 30, 2016), https://perma.cc/YJQ8-TYN3.

By Grace Weatherall, Managing Editor at the Harvard Environmental Law Review.

This post is part of the Environmental Law Review Syndicate. Read the original here and leave a comment.

Introduction

Bostock v. Clayton County was marked for a place among landmark Supreme Court jurisprudence as soon as it arrived.¹. The decision protected LGBTQ+ employees from discrimination based on their sexual orientation or gender identity,² and LGBT activists and allies rightly celebrated it as an affirmation of basic human rights and dignity. But amidst this celebration, excitement arose from a different, surprising, quarter: climate change activists.

Before the ink had dried on Bostock—or, more accurately, before many readers had managed to battle through the download delay that Justice Alito’s unwieldy dissent caused the Court’s servers³—various climate scholars were already arguing that the language and reasoning that Justice Gorsuch employed in his majority decision could have major implications for climate regulation under the federal Clean Air Act (CAA).⁴ Specifically, scholars posited that Gorsuch’s use of progressive textualism, and his specific acknowledgment that old statutes may be used to address new problems,⁵ bodes well for the durability of future climate change policymaking under CAA authority.⁶ Following the Bostock framework, climate litigants could, in theory, argue that the text of the CAA must allow for broad regulation of greenhouse gas as a pollutant, despite Congress’s failure to address greenhouse gases or climate change directly.

Climate advocates and policymakers are certainly justified in searching for a silver bullet of legal theory to convince the Supreme Court to uphold a major CAA climate rulemaking. Climate scientists across the globe are warning policymakers that time is running out to save the world from climate disaster,⁷ and lacking climate-specific legislation, it seems more important than ever that the Environmental Protection Agency (EPA) undertake significant action under its existing authority. I have suggested elsewhere that EPA should institute National Ambient Air Quality Standards (NAAQS) for greenhouse gases (GHGs) under CAA sections 108–10, in order to activate broad federal power over state implementation plans (SIPs) for emissions reduction.⁸ Similarly, several scholars have argued stridently for the implementation of a GHG SIPs program under section 115.⁹ Either way, regulating GHGs through SIPs represents the broadest possible approach to GHG regulation under the existing CAA,¹⁰ but represents a difficult legal argument to make to the Supreme Court. Moreover, the Court has already demonstrated wariness of EPA attempts to address climate change under the CAA,¹¹ and climate litigants can expect this wariness to increase as the conservative wing of the Court grows.¹² Since a successful EPA climate rule must survive judicial review, in this article I examine whether Justice Gorsuch’s Bostock framework could indeed aid EPA in future climate rulemaking and advocacy before the Court.

Ultimately, I conclude that Bostock is not the legal silver bullet that climate activists seek.¹³ As attractive as the Bostock framework is, it cannot save climate change policymaking under the CAA from a textualist standpoint because interpretation of the word “pollutant” in the  CAA, unlike “sex” in the Civil Rights Act, involves deference to an agency head. Thus, the battle for CAA GHG regulation must be fought on the fields of reasonability analysis, not textualism. And this raises a second problem for EPA. In a future climate case, the Court may reject Chevron deference entirely and instead utilize either the deregulatory “major questions” doctrine, or the Schechter-era nondelegation doctrine—and in either case, Bostock offers no useful tool to climate litigants. I do not argue that EPA has no chance of enacting climate policy under the CAA, nor that the agency should not attempt to do so. On the contrary, I feel strongly that EPA is morally obligated to make every effort possible to enact significant GHG regulation. I conclude, however, that future climate jurisprudence will be governed not by precise textualism, but by broad judicial and political philosophy—and that realistically, climate advocates’ best bet is to pursue the appointment of as many liberal justices to the Supreme Court as possible.

DISCUSSION

I. Overview of Bostock v. Clayton County and Its Potential Relevance to Climate Litigation

A. Bostock v. Clayton County

Bostock v. Clayton County began in its life in Clayton County, Georgia, when Gerald Bostock, a county employee with an excellent work performance record,¹⁴ joined a gay softball league and was promptly fired for “conduct unbecoming a county employee.”¹⁵ Bostock sued, alleging that the county had violated Title VII of the Civil Rights Act of 1964.¹⁶ The district court ruled against Bostock,¹⁷ and the Eleventh Circuit agreed, holding that Title VII’s prohibition of discrimination “on the basis of sex” did not apply to sexual orientation.¹⁸ The Supreme Court reversed.¹⁹

Justice Gorsuch, writing for a six-three majority, announced in the first paragraph of his seventeen-page opinion that the phrase “discrimination . . . on the basis of . . . sex” included discrimination on the basis of sexual orientation because sexual orientation itself depends on sex.²⁰ “An employer who fires an individual for being homosexual or transgender,” Justice Gorsuch explained, “fires that person for traits or actions it would not have questioned in members of a different sex,”²¹ and thus “[s]ex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”²² In the following pages, Justice Gorsuch also rejected protests that Title VII cannot be used to protect LGBT employees because such a result is at odds with the “expected applications” of the law.²³ Such an application of purposivism, Gorsuch insisted, has no place in Supreme Court jurisprudence today.²⁴ Instead, he reasoned, the ordinary public meaning of the word “sex,” and its use in the statute,²⁵ requires the Court to recognize protections for gay and transgender individuals—and it has always done so.²⁶ Ultimately, Gorsuch declared, the fact that the framers of the statute may not have realized that such protections existed was no reason to deny these protections now, because “the limits of the drafters’ imagination supply no reason to ignore the law’s demands.”²⁷

Moreover, Justice Gorsuch specifically forestalled potential objections on “elephants in mouseholes” grounds.²⁸ While Gorsuch acknowledged the late Justice Scalia’s adage that Congress “does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions,”²⁹ Gorsuch insisted that this canon “ha[d] no relevance” in the Bostock case, because while the policy implications of Gorsuch’s interpretation are sweeping—an indisputable “elephant”—Title VII’s prohibition against sex discrimination is hardly a “mousehole.”³⁰ Instead, Gorsuch wrote, the prohibition is “written in starkly broad terms,” which necessarily, according to the ordinary public meaning of the word “sex,” include sexual orientation discrimination.³¹

B. Parallels to Climate Rulemaking and Litigation

The implications of Bostock to future climate litigation and jurisprudence are complex, but a series of parallels can be identified as follows. First, it can be argued that a prohibition against “discrimination on the basis of sex” is to LGBT employee protections under the Civil Rights Act—a statute that never mentions sexual orientation—as “air pollutant” is to GHGs under the Clean Air Act—a statute that never mentions climate change, but which empowers EPA to broadly regulate “air pollutants”³² for the protection of the “public health and welfare.”³³ In other words, both phrases explicitly identify a general issue that their statute is designed to address, and thus both should implicitly include specific aspects of that broader issue in the same way: sexual orientation discrimination is a type of sex-based discrimination (and civil rights violation), as climate change-causing GHG is a type of air pollutant (and a threat to public health and welfare). Second, climate change and sexual orientation discrimination are both issues that have been neglected by most national politicians until relatively recently,³⁴ despite decades of advocates’ efforts, and both seem ripe for regulation under an old statute that was designed to address a general issue but that did not directly acknowledge this specific problem. Third, Gorsuch’s choice in Bostock to brush aside “elephants in mouseholes” concerns, despite the broad policy implications of his holding, is encouraging to climate activists because the Supreme Court has made clear in past climate cases that it considers broad GHG regulation programs to constitute an elephantine effect on national industry.³⁵

C. Overview of Relevant Climate Jurisprudence

For those hoping for a friendly judicial reception to climate change regulation, Justice Gorsuch’s Bostock arguments are tantalizing. I am convinced, however, that the series of parallels outlined above will not, alone, be enough to ensure the protection of an ambitious Clean Air Act GHG regulation scheme. In order to understand why not, we must first understand the history of the three Supreme Court cases that have addressed GHG regulation under the CAA thus far: Massachusetts v. EPA (Mass. v. EPA),³⁶ American Electric Power Co. v. Connecticut (AEP v. Connecticut),³⁷ and Utility Air Regulatory Group v. EPA (UARG v. EPA).³⁸

1. Massachusetts v. EPA and the Origins of Greenhouse Gas Regulation Under the Clean Air Act

 The Supreme Court first addressed GHG regulation under the CAA in 2007, in Mass. v. EPA. Today, this case represents the basis for EPA regulation of GHGs as pollutants. Mass. v. EPA began in 2003 when EPA made an official determination declaring that it lacked authority under the CAA to regulate GHGs as pollutants in the context of climate change.³⁹ A coalition of states, cities, and environmental organizations brought suit, arguing that section 202 of the CAA—requiring EPA to set emissions standards for “any air pollutant” produced by vehicles—included GHGs.⁴⁰ The Supreme Court agreed, finding that GHGs “fit well within the Clean Air Act’s capacious definition of ‘air pollutant.’”⁴¹ Accordingly, in 2009, EPA under the newly-elected President Obama made an “endangerment finding” officially establishing that the six primary “well-mixed” greenhouse gases together constituted a singular “air pollutant” under section 202.⁴²

2. AEP v. Connecticut, Stationary Source Regulation, and the Potential for Future Rulemaking

 AEP v. Connecticut, decided in 2011, subsequently expanded EPA’s ability to regulate GHGs as an air pollutant beyond section 202 (vehicle regulation) to include subsections 111(b) and (d) (stationary source regulation). AEP v. Connecticut began when an alliance of states and environmental interests sued a group of energy companies, attempting to use federal common law authority to force the companies to reduce GHG emissions from their power plants.⁴³ The Supreme Court dismissed the case.⁴⁴ Writing for a 6-0 majority,⁴⁵ Justice Ginsburg held that the CAA had foreclosed common law litigation on matters of interstate air pollution, because the Act “speaks directly” on this issue⁴⁶—and after Mass. v. EPA, it was “plain that emissions of carbon dioxide qualify as air pollution subject to regulation under the Act.”⁴⁷ Significantly, in addition to confirming EPA GHG regulatory authority under sections 202 and 111, Justice Ginsburg also left the door open for GHG rulemaking under other sections of the CAA, including the NAAQS program.⁴⁸ “The Act,” she wrote, “provides multiple avenues for enforcement, [and i]f EPA does not set emissions limits for a particular pollutant or source of pollution, States and private parties may petition for a rulemaking on the matter.”⁴⁹

3. UARG v. EPA and the GHG Regulation – Textualism Mismatch

 Mass. v. EPA and AEP together constitute an essential foundation to federal GHG regulation, but UARG v. EPA, decided in 2014, provides the most relevant precedent for future attempts at ambitious GHG regulatory policy. UARG began in 2010, when EPA, reacting to Mass. v. EPA, determined that it must regulate GHG emissions under the “prevention of significant deterioration”⁵⁰ (PSD) and Title V programs, which require emissions permits for “major sources.”⁵¹ Per the statute, a “major source” is any source emitting 250 tons of “any air pollutant” each year⁵²––but many sources emit GHGs in such vast amounts that millions of nontraditional sources, including residences, would count as “major sources” if GHGs were considered “air pollutants” under these programs.⁵³ Seeking to avoid unmanageable permitting responsibilities, EPA designed the “Tailoring Rule,” which specified that sources would be considered “major” due to their GHG emissions alone only if they emitted at least 100,000 tons of GHGs each year.⁵⁴

Energy interests challenged the Tailoring Rule in the D.C. Circuit, and the Supreme Court struck it down.⁵⁵ Writing for a deeply divided plurality which only Chief Justice Roberts and Justice Kennedy joined in full,⁵⁶ Justice Scalia held that EPA had been wrong to “tailor” a statutory provision this way.⁵⁷ In writing a rule that purported to recognize GHG sources as “major” for purposes of regulation only if they emitted at least 100,000 tons per year, Scalia wrote, EPA had illegally “revise[d] statutory terms.”⁵⁸ The only solution to the legal and practical problem at hand, Scalia held, was to read an implicit exemption into the phrase “any air pollutant” in the context of the PSD and Title V programs.⁵⁹ Thus, according to Justice Scalia, GHGs are officially not “air pollutants” under sections 165, 169, or 171–73 of the CAA.⁶⁰

Justice Breyer, meanwhile, argued in a partial concurrence that the Court had misplaced its implicit exemption. While Scalia had decided that the term “any air pollutant” must be read to exclude “non-traditional” pollutants like GHGs, Breyer argued that it would instead be possible to read the term “any major source” to exclude those sources, like private residences, which are unsuited to Title V permitting.⁶¹

Finally, Justice Alito argued in a separate partial concurrence that EPA should not be allowed to regulate GHGs under the CAA at all.⁶² Alito argued that GHGs are fundamentally unsuited to regulation under the CAA and that while EPA had attempted to gloss over the problems of GHG regulation under the CAA by arguing that the Act grants the agency “a great deal of discretion,” ultimately “[t]hat is not what the Clean Air Act contemplates.”⁶³

This, then, is the state of Supreme Court climate jurisprudence after ten years of EPA GHG regulation and climate cases before the Court. After UARG, the Court’s conservative wing has made its suspicion of ambitious GHG regulation clear––but the door is not closed to climate rulemaking entirely. Would-be climate policymakers and litigants, anticipating a possible Biden presidency, will keep all this in mind as they seek a successful legal framework for ambitious policy.

II. Textualism, Deference, and the Nondelegation Doctrine: What Bostock Does and Does Not Mean for the Future of Climate Jurisprudence

Based on the precedent outlined above, it appears that the Bostock textualist approach cannot be used as a template for climate litigation. This is true both because the Court has already held that “any air pollutant” does not actually mean “any,” and because interpretation of the term “pollutant” in the context of the CAA fundamentally involves relative deference to the EPA administrator. In theory, litigants could argue that the plain text of the CAA mandates full deference to the EPA Administrator in identifying those pollutants that endanger public health or welfare and are thus subject to CAA regulation. Realistically, however, the battle for climate regulation will depend not on textualism, but on the broader questions of reasonability and deference. And unfortunately for EPA, this Court is likely to forego Chevron altogether and dismiss a climate rule either on major questions grounds, or, in a worst-case-scenario situation, through the revival of the nondelegation doctrine. This unfortunate possibility is now more likely than ever in light of Justice Ginsburg’s death and likely replacement with conservative judge Amy Coney Barrett.⁶⁴

A. The Textualist Mismatch Between Title VII’s “on the Basis of Sex” and the Clean Air Act’s “Any Air Pollutant”

Despite Bostock’s progressive textualist appeal, it is unlikely that the Bostock framework will aid a future EPA in establishing GHGs as “any air pollutant” throughout the Clean Air Act. As noted above, Justice Gorsuch in Bostock put forth a compelling argument for the inclusion of an implicit, specific issue within an explicit, general statutory term and mandate. The Civil Rights Act’s prohibition against “discrimination on the basis of sex”, Gorsuch insisted, must include a prohibition against sexual orientation discrimination.⁶⁵ It is tempting to conclude by the same logic that the CAA’s reference to “any air pollutant” must include GHGs––but this does not necessarily follow from likely Supreme Court reasoning, for two reasons.

First, it is important to note that Bostock itself overturned no Supreme Court precedent—instead, it announced the existence of a previously unrecognized inherent meaning in the phrase “discrimination…on the basis of sex.”⁶⁶ By contrast, the Supreme Court has already addressed the question of whether the term “air pollutant” could include GHGs, and purports to have settled the matter under more than one section of the CAA. According to Mass. v. EPA and AEP v. Connecticut, GHGs are air pollutants under sections 202 and 111.⁶⁷ But according to UARG, GHGs are not air pollutants under section 169.⁶⁸ It is already clear, then, that the Court does not believe that the phrase “any air pollutant” must always include GHGs.

Second, both sides of the ideological spectrum have already exhibited an aversion to a plain text approach in the context of climate change. In UARG, Justice Scalia and Justice Breyer’s majority and dissenting opinions are opposite in function but identical in form: both engage in a textualist approach of a sort, yet explicitly reject the bounds of plain meaning. Each Justice notes that the term “any” need not mean “any in the universe,”⁶⁹ and each acknowledges the need to read an implicit exemption into the text—accordingly, Scalia proposes to read the relevant line as “any air pollutant except greenhouse gases,”⁷⁰ and Breyer proposes “any major source except non-traditional sources.”⁷¹ In advancing a plain text approach to support GHG regulation throughout the CAA, litigants would need to convince the Supreme Court to both overturn decided precedent and abandon longstanding methods of interpretation. Neither proposition is likely to succeed.

B. A Textualist Obligation to Afford Deference?

Certainly, the status of greenhouse gases as air pollutants remains unsettled under several thus-far unlitigated sections of the Clean Air Act—including, notably, the NAAQS program. The NAAQS program empowers the EPA Administrator to identify a list of ambient air pollutants which she feels may “endanger public health or welfare”⁷² and develop national standards for these pollutants, and it provides an excellent example of why the Supreme Court has good reason to eschew a plain text approach in interpreting “any air pollutant” under the CAA. Despite Justice Alito’s protestations, the CAA does indeed grant EPA “a great deal of discretion”⁷³—in particular, regarding which substances to regulate as pollutants. The Administrator’s choice of pollutant under the NAAQS program is of course reviewable in theory, but thus far the Court has essentially granted EPA free reign in identifying criteria pollutants⁷⁴—cabined by the traditional “reasonableness” metric for evaluating agency discretion.⁷⁵

Arguably, this means that despite the clear failure of a plain text approach to defining the term “any air pollutant,” there may still be hope for a plain text argument in support of deference to the EPA Administrator. The NAAQS program demands that the Administrator be allowed to exercise her “judgment” in identifying and listing criteria pollutants.⁷⁶ Thus climate advocates could adopt a sort of Bostock framework and argue that the CAA has always given EPA the ability to regulate any substance which can reasonably be said to endanger health or welfare, regardless of cost or regulatory reach.⁷⁷ I have argued elsewhere that under the NAAQS program at least, EPA is clearly authorized to regulate GHGs as an air pollutant, in part because of the broad discretion granted to the Administrator in the stark language of the CAA.⁷⁸ Under this theory, the Court would be required to accept EPA’s identification of GHGs as a pollutant, and subsequently engage in the traditional reasonability and arbitrary and capriciousness analysis of whatever the resulting rule may be.

C. Major Questions, New Tricks, and the Court’s Evolution Away from Deference

As noted above, while an intellectually honest textualist approach may in theory require the Court to grant EPA the discretion to regulate GHGs as a pollutant throughout the CAA, in practice it is unlikely that defending a massive GHG regulatory program will be as simple as a text-based argument for EPA discretion. Furthermore, this Court is likely to forego a Chevron reasonability analysis altogether, and instead either invoke its “major questions” doctrine to bar EPA’s regulatory authority over GHGs for lack of a “clear statement,”⁷⁹ or use a major climate rule as a vehicle to revisit the Schechter-era nondelegation doctrine.⁸⁰

First, the Supreme Court could invoke its “major questions” jurisprudence, used to great effect in UARG,⁸¹ and declare that EPA cannot, for example, regulate GHGs as a pollutant under the NAAQS program without a “clear statement” from Congress authorizing it to do so—because GHGs are not “conventional” pollutants,⁸² and because any major climate rule would surely have a transformative effect on industry. Justice Scalia, of course, is no longer on the Court, but other justices seem eager to pick up his mantle on this point.⁸³ Justice Kavanaugh, for instance, has already demonstrated his fondness for the major questions principle on environmental and administrative law issues in particular.⁸⁴ In oral argument for West Virginia v. EPA, the 2016 D.C. Circuit case regarding the legality of the Obama EPA’s ambitious Clean Power Plan, then-Judge Kavanaugh pressed government counsel on major questions grounds.⁸⁵ It is not difficult to imagine that Kavanaugh and like-minded justices would be swift to invoke the “major questions” rule in a major climate case to bar EPA from regulating GHGs as a pollutant under major sections of the CAA.

More troubling still, the Court’s conservative wing has recently been sending signals that it is eager to move away from the Chevron tradition altogether in favor of the nondelegation doctrine of the Schechter era, which could require Congress to outline a highly specific “intelligible principle” before agencies may develop regulatory schemes.⁸⁶ This shift was most recently demonstrated in Gundy v. United States,⁸⁷ a case addressing whether the Sex Offender Registration and Notification Act, in stating that the Attorney General has “the authority to specify the applicability of the requirements of [the Act] to sex offenders convicted before [its] enactment,” fails to establish an intelligible principle cabining the Attorney General’s authority and thus violates the nondelegation doctrine.⁸⁸ Although Justice Kagan’s plurality opinion did not alter Supreme Court precedent on the matter, the conservatives in dissent made their displeasure with this result clear.⁸⁹ Indeed, those heralding the Bostock decision as a harbinger of friendly climate jurisprudence may find reason to be concerned with the fact that Justice Gorsuch himself wrote a dissenting Gundy opinion, joined by the Chief Justice, Justice Kavanaugh, and Justice Thomas. Specifically, Gorsuch argued that Gundy would have been an opportunity to revisit the nondelegation doctrine because the statute in question inappropriately “hand[ed] off to the nation’s chief prosecutor the power to write his own criminal code.”⁹⁰ It is not difficult to imagine that Justice Gorsuch might feel the same way about the argument that the CAA grants EPA the power to identify and regulate any pollutants that endanger health or welfare in any way. And Justice Gorsuch would likely find particular reason to be concerned if EPA applied this reasoning to the regulation of GHGs because GHGs are well-mixed, globally dispersed, dangerous only on an international scale, and impossible to effectively control without a significant shift in the American energy industry.⁹¹

In response to this concern, climate advocates may cite the second significant Bostock finding: the idea that old statutes can perform new tricks, regardless of their framers’ intent.⁹² Certainly, this holding may help to defeat an “elephants in mouseholes” challenge, following Justice Gorsuch’s Bostock reasoning, because while deference to EPA in regulating GHGs as pollutants is certainly an elephant, the text of the Clean Air Act grants EPA the authority to identify and regulate pollutants that endanger public health and welfare—and thus no “mousehole” exists.⁹³ Ultimately, however, I fear that in light of the Court’s shift toward the major questions and nondelegation doctrines,⁹⁴ this is but a hollow victory.

CONCLUSION

Having considered the future of climate jurisprudence in light of Bostock, relevant climate cases, and the Court’s current trend toward nondelegation, I conclude that the problem with climate advocates’ search for a silver bullet may not be that no such bullet exists, but rather that the Court is unlikely to acknowledge one. It may be true, in theory, that the text of the Clean Air Act demands deference to the EPA Administrator in identifying pollutants for regulation, but the Court may refuse to acknowledge this, either by citing major questions or by announcing a revival of the intelligible principle requirement. Ultimately, I do not suggest that climate advocates and a theoretical Biden EPA should cease regulatory attempts under the Clean Air Act. For one thing, I believe that the Act provides a clear mandate for EPA action in identifying pollutants that endanger public health or welfare and regulating emissions of those pollutants. And despite the challenges, I do not think it is impossible that Justice Roberts or Gorsuch could be persuaded to support a new significant climate rulemaking. In the end, however, it is clear that climate advocates’ best bet is not to craft a brilliantly reasoned rulemaking to impress this Court, but instead to elect a President who will appoint one or two climate-friendly justices—and perhaps, given recent events on the Court, even to initiate a Court-packing plan. Time, after all, is running out.