The US “Supreme” Court has just issued an opinion that would overturn Chevron v Natural Resources Defense Council, ensuring more government gridlock and casting activist judges in the place of career scientists to decide specific answers to some of the most crucial questions of the day, such as those related to climate emissions and other environmental issues.
Among many incredibly stupid opinions the court has issued recently, this is among the stupidest, and we’re going to go into why.
The original Chevron case was actually decided in favor of Chevron. Reagan’s EPA, which at the time was administered by Neil Gorsuch’s mother, Anne Gorsuch, had attempted to ease regulations on oil companies, which NRDC sued over. The court decided that the EPA’s interpretation would stand, giving Anne Gorsuch and the oil companies a big win.
The Chevron case created what’s called “Chevron deference,” which means that when a law is unclear in its details, courts should defer to reasonable interpretation of professionals in a government agency as to what those details mean. This doesn’t mean that agencies can make it up as they go along, just that they can fill in the blanks left by Congress.
In the last four decades, this ruling has become the foundation of much of administrative law in this country.
After all, legislators in Congress aren’t scientists, so will often pass a law saying something like “the EPA should regulate harmful air pollutants,” and leave it up to the EPA to decide what pollutants those are and how they should be regulated, and how those regulations should change over time.
Judges also aren’t scientists, so it’s reasonable for judges to defer to interpretation by professionals who have a lot of data and take a lot of time to craft specific regulations when they are told to do so by the legislature. In the course of crafting and updating those regulations, things will come up which were not anticipated by Congress, and someone needs to make that decision.
Agencies like EPA or NOAA, who work with some of the world’s most respected climate scientists, are a great place to go to find up to date recommendations and answers to those questions. And Chevron deference is what has allowed these agencies to work properly for the last several decades, and is what ensures they can continue to work as we confront climate change, the largest problem humanity has ever caused.
This sort of deference is essentially necessary for effective government. And any lawyer or law student can tell you how important it has been in establishing the last several decades of administrative law.
And it has benefitted electric vehicles, for example by allowing the EPA to set emissions rules that will save lives and money, or allowing the IRS to tweak guidance on the EV tax credit to make accessing it easier for consumers.
Without Chevron deference, it would mean that reasonable rules to smooth out implementation of laws can be challenged and reinterpreted by individual judges who are ignorant of the issues involved – and plaintiffs, likely in the form of a big polluting company who wants to skirt regulations to harm you more, can go forum shopping to find a specific judge who they know ahead of time will rule in their favor and against the public interest.
To be clear, Chevron deference only applies to situations where law is ambiguous, and where the agency’s interpretation was reasonable and arrived at through proper government processes – adhering to public comment requirements and the like. If an agency interpretation is arbitrary, it could still be thrown out. This is all covered in the Administrative Procedure Act (APA) and in previous court rulings narrowing Chevron.
Court’s opinion creates more gridlock, is “dictatorship from the bench”
But now, in the court’s opinion, the foundation of administrative law in this country for decades should all be gone. In Raimondo, the court opined on the validity of an NOAA regulation on the fishing industry. Lower courts in fact did not rely fully on Chevron deference in their rulings, finding that the statute was not ambiguous in the first place. But the Court took this opportunity to opine on Chevron anyway, despite its limited applicability to the facts of this case.
Under the Court’s opinion today, rather than unbiased career scientists weighing in on complex issues and helping to fill in the blanks that Congress didn’t anticipate or understand, that responsibility would now lie in the hands of oft-ignorant politically-appointed judges. These judges will be called on to make decisions on the suitability of specific regulations in any number of fields they are not qualified in: air quality, technology, labor regulations, tariff policy, farm subsidies, housing development, privacy, and many more issues that they know nothing about.
In short, it means more gridlock of the type Americans hate, and it means more “activist judges” that everyone claims to dislike. Even in the ideal situation envisioned by defenders of today’s decision, where a non-gridlocked Congress is able to quickly answer any agency question with a new law that the body comes together to agree upon, there will still be ambiguities and inefficiencies from having to consult another non-professional body for ambiguous scientific questions.
If you were tired of government waste and inefficiency, bogged-down court systems that take years to get anything done (in direct violation of the 6th amendment), then boy howdy, guess what’s coming next.
You know that “legislating from the bench” you’ve heard of? This is it, explicitly. The Court has opined that it should have final responsibility for crafting each and every regulation, even if it’s on a topic they know nothing about (or worse, maybe it’s a topic they have a direct personal interest in, and yet will rule on anyway).
It also means less participatory government. Agencies already were not allowed to go off script and make up whatever they wanted. Deference was only given if their interpretations were reasonable, were related to a question not answered explicitly in the law in question, and were arrived at after seeking comment from stakeholders (the public, industry, scientists, and so on). The Court could already throw out unreasonable interpretations or ones that engaged in arbitrary & capricious rulemaking (or the Court could just make up their own nonsense, as they’ve done before).
Now, the Court has officially interposed itself in front of the public and its elected officials in both the executive and legislative branches. Instead of voters, scientists, trade and public interest organizations, unions, and so on having a say, now it’s just an unelected court who will have their way – five of whom were appointed by people who lost their respective presidential elections, by ~500 thousand and ~3 million votes respectively.
Worse than “legislating from the bench,” this is a dictatorship of the bench. The bench has decided that theirs is the entire purview of both the executive and legislative branches.
And it was just waiting for a case where it could do so – because Neil Gorsuch (another illegitimate appointee, who wrote his own concurring opinion today) has wanted to overturn Chevron for a long time. He pre-judged this case long ago, well before the specifics of this case came along, and has just been waiting to implement his judgment. This is generally considered a violation of jurisprudence.
As has often recently been the case, the court shows complete ignorance of not only the legal and governmental issues that their opinion will cause, but ignorance of their own recent actions. Take this choice quote from today’s opinion:
Chevron insists on more than the “respect” historically given to Executive Branch interpretations; it demands that courts mechanically afford binding deference to agency interpretations, including those that have been inconsistent over time, see id., at 863, and even when a pre-existing judicial precedent holds that an ambiguous statute means something else, National Cable & Telecommunications Assn. v. Brand X Internet Services, 545 U. S. 967, 982. That regime is the antithesis of the time honored approach the APA prescribes.
In this passage, John Roberts claims that agency interpretations are deficient because they are “inconsistent over time.” Nevermind that agency interpretations are necessarily inconsistent, given that the world and technology changes (e.g., as technology advances, more efficient vehicles become more practical and therefore tighter emissions limits become possible), but Roberts ignores his own court’s inconsistency on all sorts of matters in this passage.
His opinion would invalidate several decades of administrative law, and has left lawyers today wondering how it will even be possible to do their job with this grenade thrown right into the center of the field.
If a government body should have its toys taken away for inconsistency, then what Roberts is arguing here is that he himself should be ignored.
In that part of the opinion, at least, we agree. Roberts and his illegitimate court are the antithesis of effective government, and are not working in the interest of law and order or in favor of the public. Their opinions should be treated as just that – opinions, from private individuals who are clearly not interested in law or government.
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Even if you’re not knee-deep into electric bikes like many of us, you very likely may have heard of the e-bike brand SUPER73. The company’s motorcycle culture-inspired electric bikes have proven incredibly popular among teens and young adults, but the heyday of fast and questionably (or clearly) illegal e-bike modes seems to be coming to an end for the brand.
SUPER73 didn’t invent the moped-style electric bike, but it is often credited for kickstarting the boom. The name has become so ubiquitous that even other brands of moto-inspired electric bikes are often erroneously referred to as SUPER73 e-bikes.
Technically, SUPER73s were always intended to be perfectly street-legal electric bikes, and they always shipped in what was known as “Class 2 Mode”. That meant the bikes could top out at 20 mph (32 km/h) and largely met most electric bicycle regulations around the US for the last few years.
However, SUPER73 e-bikes could be quickly and easily unlocked via the company’s own smartphone app, letting riders access Class 3 mode of up to 28 mph (45 km/h) on pedal assist, or even an Off-Road Mode that basically removed all restrictions and allowed faster speeds on throttle-only riding as well. Despite the name, Off-Road Mode was largely used for street riding and turned the bike into something of a mini-motorcycle.
But those days of easily unlocking higher performance are officially gone, with SUPER73 now reacting to new California regulations that put stricter interpretations of e-bike classification laws on the books. Those new regulations, which took effect on January 1, 2025, required any e-bike with a functional throttle to limit its motor assist to just 20 mph. If an e-bike was designed to be modified for faster speed or higher power (such as via a setting change on the bike’s display or in the smartphone app), the bike would no longer be considered a street-legal electric bicycle in California.
SUPER73, which has often found itself at the center of the debate around faster e-bikes, reacted quickly. A major change now results in the higher performance modes being removed from SUPER73’s app. According to a notice on the company’s website, “In light of newly implemented regulations, customers who download and pair the SUPER73 app after January 1, 2025, will not have the ability to access modes other than the Class 2 mode in which the product is sold.”
While the bikes still have the mechanical ability to go faster, SUPER73’s new update basically removes the ability to access that higher performance, essentially limiting its e-bikes to 20 mph on both throttle and pedal assist.
Is there a workaround?
No, SUPER73 has developed an ironclad solution to prevent their e-bikes from being operated in illegal ways.
Just kidding. No, of course this isn’t a perfect solution, but not really due to any fault by SUPER73. There are multiple apps already available that can be used instead of the company’s app, which allow riders to re-access that higher performance. I won’t list them here, but it’s not exactly hard for anyone with an e-bike and internet connection to figure it out.
That doesn’t mean that every SUPER73 e-bike out there is going to be back in its former 30 mph form, and a significant number of riders will likely simply be stuck with new 20 mph speed limits. But we shouldn’t pretend like this is a foolproof system that can’t be defeated. As long as the e-bikes are built in a way that they are physically capable of higher performance (like a chunky 2,000W motor that is software-limited to 750W and 20 mph), the possibility remains that they will be somehow unlocked to access that performance.
It should be noted that such unlocking would still fall outside the regulations of California’s new electric bike laws, but at that point the punishment would likely fall upon the riders themselves instead of the e-bike maker, if it did its part to remove performance unlocking from its native app.
Electrek’s Take
I think that a lot of us could see this as an inevitability, though I’m not sure we expected to see companies come around this quickly, or rolling out updates that covered their e-bikes nationwide instead of just in California.
I agree that in the short term, this will likely have a positive effect on the few bad apples who ruin it for everyone – basically the roving gangs of teens on illegally fast e-bikes. People who ride e-bikes in dangerous ways around other cyclists and pedestrians are a danger, plain and simple.
In the long run though, I still don’t think this is the proper route to go. When you can buy a 125 mph car that weighs as much as a military vehicle and yet it is simply the responsibility of each driver to never exceed barely half of its performance, it seems silly to put so much effort into reducing the speed of bicycles from 28 mph to 20 mph. Is this really the major public safety threat to spend our time and legislative resources on?
I still believe that the better solution combines education and enforcement. It’s simply not that hard. If some snot-nosed kid is riding dangerously in the bike lane, street, or sidewalk, confiscate the bike and slap a fine on his or her parents. But don’t tell me that a responsible adult who is simply trying to get to work efficiently is a menace to society on an e-bike that goes 28 mph instead of 20 mph.
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Volkswagen U.S. assembly of all-electric ID.4 flagship in Chattanooga, Tennessee in 2022.
Volkswagen
The new Republican-majority Congress has wasted no time in making its energy priorities clear. Speaker of the House Mike Johnson said from the House floor minutes after his reelection, “We have to stop the attacks on liquefied natural gas, pass legislation to eliminate the Green New Deal. … We’re going to expedite new drilling permits, we’re going to save the jobs of our auto manufacturers, and we’re going to do that by ending the ridiculous E.V. mandates.”
Data from the auto industry shows a more complicated story. There are more investments in EVs and related battery technologies in states under the control of Republican governors than in states run by Democrats. The top 10 states for total investments in EV technology, according to the Alliance for Automotive Innovation, are either solidly red or swing states such as Michigan, Arizona, North Carolina and Nevada. Far from help the fortunes of automakers, Trump confidante Elon Musk is on record as saying that repealing EV incentives would be a pill he could swallow, even as CEO of Tesla, because it would hurt other automakers even more.
Amending or possibly repealing the Inflation Reduction Act, President Joe Biden’s sweeping 2022 law that allocates approximately $369 billion over the next decade to clean-energy and climate-related projects, has been a talking point for President-elect Trump and many members of the GOP. Not a single Republican voted in favor of the bill — saying its subsidies, tax credits, grants and loans are wasteful government overreach — and the party and Trump have since railed against it.
On this year’s campaign trail, Trump said he will “rescind all unspent funds under the misnamed Inflation Reduction Act.”
He and fellow Republicans have also talked about eliminating the IRA’s $7,500 federal personal tax credit for buying a new electric vehicle, as well as various incentives for private companies investing in manufacturing solar panels, wind turbines, EV batteries, heat pumps and other clean-energy products.
But in an interview with CNBC last fall, Speaker Johnson hinted at the potential problem for the GOP now that investments have been made, and job growth continues to climb, across Republican states. He said it would be impossible to “blow up” the IRA, and it would be unwise, since some aspects of the “terrible” legislation had helped the economy. “You’ve got to use a scalpel and not a sledgehammer, because there’s a few provisions in there that have helped overall,” Johnson said.
The economic boost that hundreds of IRA-funded projects have given the country, beyond just the EV industry, are predominantly in red states — and the hundreds of thousands of clean-energy jobs linked to the IRA as well as the bipartisan Infrastructure Investment and Jobs Act and the CHIPS and Science Act. A vast portion of that workforce voted for Republicans in November, and jeopardizing their livelihoods could fuel a balloting backlash.
“The IRA is the quintessential policy that can create jobs, drive economic growth and improve our economy,” said Bob Keefe, executive director of E2, a nonprofit environmental advocacy group comprising about 10,000 business leaders and investors, “while at the same time giving us the tools to reduce greenhouse gas emissions.”
While the clean energy jobs market remains small relative to a total U.S. employment market of roughly 160 million Americans, it has become more than just a blip in the jobs picture. Data for the full year 2024 is not yet available, but according to E2’s Clean Jobs America 2024 report released in September, more than 149,000 clean-energy jobs were created in 2023, accounting for 6.4% of new jobs economy-wide and nearly 60% of total employment across the entire energy sector. Over the past three years, E2 reported, clean-energy jobs increased by 14%, reaching nearly 3.5 million workers nationwide. “Our members and businesses across a lot of sectors are very concerned about the potential of repealing” the IRA, Keefe said.
In the two years since the IRA passed, E2 has tracked private-sector clean-energy projects, including solar, wind, grid electrification, clean vehicles and EV and storage batteries. To date, it has identified 358 major projects in 42 states and investments of nearly $132 billion. More than 60% of the announced projects — representing nearly 80% of the investment and 70% of the jobs — are located in Republican congressional districts.
In November, the Net Zero Policy Lab at Johns Hopkins University released a study focused on the domestic and global impacts of tinkering with Biden’s climate bills, in particular, the IRA. “Our scenario analysis shows that U.S. repeal of the IRA would, in the most likely scenario, harm U.S. manufacturing and trade and create up to $80 billion in investment opportunities for other countries, including major U.S. competitors like China,” the study said. “U.S. harm would come in the form of lost factories, lost jobs, lost tax revenue and up to $50 billion in lost exports.”
The fallout of gutting the IRA has not been lost on GOP lawmakers whose states and counties are benefiting from the law’s largesse. In August, 18 House Republicans sent a letter to Speaker Mike Johnson, urging him not to axe the tax credits that have “created good jobs in many parts of the country — including many districts represented by members of our conference.”
Coincidentally, one of the signees, Rep. Lori Chavez-DeRemer of Oregon, is Trump’s nominee for Secretary of Labor. Another, Rep. Buddy Carter of Georgia, has touted the eight clean-energy projects, totaling $7.8 billion in investments and creating 7,222 jobs, the IRA has brought to his district. And the tiny town of Dalton, Georgia, home of the largest solar panel manufacturing plant in the western hemisphere and source of about 2,000 jobs, is in the district represented by Marjorie Taylor Greene, a vociferous climate-change skeptic who has nonetheless cheered the factory.
The QCells solar panel manufacturing plant in Dalton, Georgia, U.S., on Monday, May 3, 2021.
Bloomberg | Bloomberg | Getty Images
In a survey of nearly 930 business stakeholders conducted in August by E2 and BW Research, more than half (53%) said they would lose business or revenue as a direct result of an IRA repeal and 21% would have to lay off workers.
If Republicans fully repeal the IRA, which would require congressional approval, they “would be shooting themselves in the foot and hurting their own constituents,” said Andrew Reagan, executive director of Clean Energy for America, a nonprofit that advocates for the clean-energy workforce. “You would see not only projects canceled, but job losses,” he said.
West Virginia Republican Sen. Shelley Moore Capito, who will chair of the Environment and Public Works Committee this year, talked in a recent interview with Politico about a focus on rolling back elements of the IRA, including “frivolous” spending, while pushing to keep parts that have created clean-energy jobs. In her state, “some people have taken advantage of this tax relief and are now employing 800 and 1,000 people,” Capito said, “and that’s what this should be all about.”
Union organizing at EV and battery plants
In addition to spurring new job growth, the IRA, Infrastructure Act and CHIPS Act each have provisions ensuring that a significant portion of jobs created go to union members or provide prevailing wages and benefits, apprenticeships and job training to non-union workers. So it’s no surprise that unions are also on the front line in the battle to protect the bills.
Unionization rates in clean energy have surpassed traditional energy employment for the first time, reaching 12.4%, according to a recent Department of Energy report. “That’s a really big deal for us and we want to keep building on that,” said Samantha Smith, strategic advisor for clean energy jobs for the AFL-CIO, which represents more than 12.5 million U.S. workers in manufacturing, construction, mining and other sectors. “We’re going to work to make sure that every job and clean-energy project with this federal funding can be a good union job,” she said. “That is our focus when looking at this legislation and what Congress might do.”
The Laborers’ International Union of North America represents about 530,000 workers in the energy and construction industries. Executive director Brent Booker noted that LIUNA members voted for both Trump and Democratic candidate Kamala Harris, but that “none voted to take their jobs away.” And while “cautiously optimistic that the IRA is going to stay in place,” the union “will hold to account this administration to make sure” it does.
A recent report from the Center for Automotive Research outlines the critical workforce needs to meet the demand for EV batteries, which is expected to grow six-fold in the U.S. by 2030. There are a significant skills gaps in the battery industry, the report stated, which will require increased recruitment and training of workers — especially engineers, technicians and assemblers — for years to come.
This paves the way for unions to organize workers at battery plant factories, many of which are joint ventures located in the so-called “battery belt” that stretches from Michigan down to Georgia. In February of last year, the United Auto Workers committed $40 million through 2026 in funds to support non-union autoworkers and battery workers who are organizing across the country, and particularly in the South.
“In the next few years, the electric vehicle battery industry is slated to add tens of thousands of jobs across the country,” the UAW said in announcing the investment. “These jobs will supplement, and in some cases largely replace, existing powertrain jobs in the auto industry. Through a massive new organizing effort, workers will fight to maintain and raise the standard in the emerging battery industry.”
Indeed, just this week, workers at Ford’s $6-billion BlueOval SK EV battery plant in Glendale, Kentucky, a joint venture with South Korea’s SK On, filed with the National Labor Relations Board to hold a union election.
Clean Energy for America’s Reagan said he assumes that Trump will be true to his America First platform: to strengthen U.S. manufacturing and supply chains, cut consumers’ energy bills in half by increasing domestic energy production and reduce reliance on foreign trade, especially with China. “He can’t do any of those things if he repeals the tax credits or tries to stifle American companies that are creating jobs,” Reagan said. “If he’s going to be successful, he can’t take an adversarial approach to a huge part of our economy.”
Yolo County, California depends on its climate for continued agricultural success. As such, the county’s leaders are taking environmental stewardship seriously by aiming for full carbon neutrality by 2030. To help achieve that goal, they’re putting zero-emission machinery like the Volvo DD25 Electric compactor to work.
We got our first chance to sample the DD25 Electric at Volvo Days last summer, where the all-electric tandem roller’s vibrating drums impressed dealers and end users alike. It was no surprise, then, that when Yolo Country fleet superintendent, Ben Lee, when shopping for a compactor the DD25 Electric was high on his list.
“The DD25 Electric will help us achieve our goals in several ways,” explains Lee. “By reducing emissions, lowering noise levels, being more energy-efficient, improving working conditions and promoting environmentally friendly practices … we’ll use it to compact soil, gravel and other base materials for road and foundation projects, as well as rolling out and leveling asphalt during road construction and resurfacing.”
To help Lee handle those various projects, the Volvo’s drum frequency can be adjusted from 3500 vpm (55 Hz) to 4000 vpm (67 Hz) to cater to different applications and materials.
Getting power to the compactor, too, is something Yolo is considering. “There are some remote areas in the county, so we’re looking into a mobile, self-contained charging unit as well,” explains Lee, apparently referencing the Volvo PU130 mobile battery. “So we wouldn’t have to bring the machine back to the yard each night during a long-term project.”
Yolo County views electric equipment as an essential step in reducing emissions and energy consumption, especially as communities work towards stricter regulations and sustainability goals.
Electrek’s Take
This press release came to us ahead of the devastating wild fires in Southern California that are dominating headlines right now – so much so that I effectively sat on the news for a few days, debating whether or not we should even be talking about a California news story that isn’t about the fires right now.
But I realized: this story is about the fires. Climate change driven by combustion and carbon emissions is driving climate change and that’s making fires like these possible … and I should have run it sooner.