New Policy Brief Urges Public Utilities Commissions to Rise to the Clean Energy Challenge

On September 17, the Center for Progressive Reform published a new policy brief, Rising to the Challenge: How State Public Utilities Commissions Can Use the Inflation Reduction Act to Advance Clean Energy. This brief examines the ability of public utilities commissions (PUCs) to incorporate Inflation Reduction Act (IRA) funding into their energy planning processes in order to expand the uptake of renewable energy resources at a lower cost to consumers.

The summer of 2024 will be remembered for many things, but here at the Center for Progressive Reform, what most struck us was that it was the year that the administrative state broke through into public consciousness. From the unexpected virality of, and backlash against, Project 2025 — a massive right-wing legal manifesto as aggressive as it was arcane — to the Supreme Court regulatory rulings that made headlines for weeks, this year’s political news drove home that the work we do to protect the environment, the workforce, and public health matters very much to we, the people when these things are under attack. In this context, we approach the task of inviting new members to join us in our work with seriousness, but also with much excitement. This spring, we reviewed nearly two dozen exceptional candidates from the fields of law and public policy. Today, we are pleased to announce that we have a cohort of three excellent scholars to add to our ranks.

Eastern North Carolina’s landscape is pocked with artificial lagoons holding a noxious liquid that causes suffering both for local residents and the global climate. The liquid? Hog manure, held in giant, open-air pits that are used by large-scale industrial facilities called concentrated animal feeding operations (CAFOs), In CAFOs, operators raise large numbers of animals in confined spaces that allow for easier feeding and waste management — and higher profits.

Building clean energy infrastructure quickly will be critical to avoiding the worst impacts of climate change while bolstering grid resilience and flexibility. Much of the discourse portrays infrastructure deployment as plagued by bureaucratic and legal holdups that should be eliminated or drastically curtailed in service of faster development — with the National Environmental Policy Act (NEPA) often taking sole blame for these delays. But is that really where the problem is? Our analyses suggest that solely blaming NEPA for permitting delays overlooks other contributing factors.

When I think about what makes the Center for Progressive Reform the “Center for Progressive Reform,” one name comes to mind: Rena Steinzor. This year, Rena is officially retiring from her “day job” as Professor of Law at the University of Maryland Francis King Carey School of Law, so it is a fitting occasion to reflect on what her “side hustle” at the Center meant for the organization and for me personally.

Last Friday, the D.C. Circuit issued a two-page opinion refusing to stay a regulation. The D.C. Circuit frequently denies stays, but this ruling was notable for three reasons: It allows an important climate change regulation to go into effect; it clarifies an important legal doctrine; and it has a good chance of being upheld on appeal — even though the U.S. Supreme Court overturned a previous regulation on the same subject.

To cushion the shock of abandoning Chevron, the U.S. Supreme Court created a safe harbor for past judicial decisions. This was well-advised. The Court itself applied Chevron at least 70 times, as did thousands of lower court decisions. The key question will be the scope of the grandfather clause.

Regulations that were upheld by the courts during the Chevron era have some protection, but new regulations will be fully subject to Loper Bright rather than Chevron. The general refrain in the Loper opinion is “Skidmore deference.” What does that mean and when does it apply?

One thing about the Loper Bright decision is obvious: it overruled Chevron. So much for past law. What about the future? How should courts review agency regulations now that Chevron is gone? This post tackles a key paragraph in the Loper opinion where the U.S. Supreme Court discusses congressional delegation of authority to agencies. The Court discusses three types of statutes, and it will be crucial for judges in future cases to identify which type is present.