Texas Tribune
Despite Texas’ efforts, a backlog remains in well-plugging
by By Elliott Woods, Capital & Main, The Texas Tribune – 2024-06-04 05:00:00
SUMMARY: The content discusses the issue of unplugged oil and gas wells in the United States, spotlighting Texas, which has the highest number of such wells. According to a 2020 report by Climate Tracker, there are 2.6 million unplugged onshore wells, potentially costing $280 billion to plug. Texas alone has 476,790 documented unplugged wells, with an additional 1.2 million undocumented ones. The Bipartisan Infrastructure Law allocated $4.7 billion to address orphaned wells. However, Texas initially hesitated but later accepted federal funds to bolster its well-plugging program. Challenges remain in estimating and managing the total number of orphan and unplugged wells in the state.
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After a century and a half of oil and gas production in the United States, the nonprofit environmental watchdog Climate Tracker published a sobering report in 2020: Some 2.6 million unplugged onshore wells lay scattered across the country.
Plugging all those derelict holes, from the rocky Appalachian hill country of western Pennsylvania to the dry plains of West Texas and the tundra of Alaska, and countless points between, might cost as much as $280 billion. And that figure from the report did not include undocumented wells — the ones that have vanished from the books, if they were ever recorded in the first place. Carbon Tracker's estimate of the number of undocumented onshore wells was also striking: 1.2 million.
Since 1859, when the first successful American oil well was drilled in Titusville, Pennsylvania, no state has had more holes punched through its bedrock or has sucked more hydrocarbons out of the ground than Texas.
Carbon Tracker uses data from the energy industry analytics company Enverus to identify wells that are inactive or low producing, said Rob Schuwerk, executive director of Carbon Tracker's North America operation. And as of 2024, Carbon Tracker reports there are 476,790 documented wells that have been drilled, but not plugged, in the Lone Star State. The lengthy list includes those that have ceased operation and been added to the state's orphan well program.
For a well to be listed as an orphan by the Texas Railroad Commission — the oil and gas regulator that manages the state's well-plugging program — it must have been inactive for at least 12 months and have an operator whose Organization Report has also been delinquent for at least a year. There are 8,580 wells on the current Texas orphan list, which was last updated in April. The Environmental Defense Fund, a nonprofit environmental advocacy group, uses a simpler definition of orphans: “oil and gas wells that are inactive, unplugged, and have no solvent owner of record.”
Of the nearly half-million unplugged wells Carbon Tracker has identified in Texas, more than a third have either been temporarily abandoned, have not produced in five or more years or have never produced oil or gas, Schuwerk said. Most of the rest are low-producing stripper wells. Only 15% of the unplugged wells in the state produce more than 15 barrels of oil equivalent per day, Schuwerk said. (The most recent figures from the Railroad Commission show that the state's 246,133 active oil and gas wells produced an average of 41 barrels of oil equivalent per day in January.)
Derelict wells are more than a nuisance — they foul the air, pollute the soil, threaten groundwater and make it increasingly likely that we won't meet our carbon reduction goals in the near future. In Texas and other oil and gas producing states, the bill for oilfield cleanup is staggering, but there are signs that state and federal lawmakers are getting serious about paying it.
On the heels of the Carbon Tracker report, the U.S. Congress in 2021 passed the Bipartisan Infrastructure Law, which earmarked $4.7 billion for “orphaned well site plugging, remediation and restoration activities on federal, Tribal, state and private lands,” all to be administered by the Department of Interior. According to the Environmental Defense Fund, some 120,000 wells in the United States would qualify for plugging under the new federal program, including the entire Texas orphan list. Plugging those wells and eliminating the methane they emit would be the equivalent of taking 1.5 million-4.3 million cars in the United States off the road for a year, the Environmental Defense Fund noted in a press release.
The reaction to the Bipartisan Infrastructure Law, which the Department of Interior described as a “historic investment” that would “ reduce methane and other greenhouse gas emissions from orphaned wells, help clean up water contamination, restore native habitat, create good-paying union jobs and benefit disproportionately impacted communities,” was chilly at the Texas Railroad Commission.
“We're going to wait to see what their rules are before we decide if we have the opportunity to accept those dollars,” Commissioner Christi Craddick said in a speech at a Texas Pipeline Association meeting in January 2023. Craddick said she intended to protect Texas from regulatory strings attached to the bill that might be “hostile to energy.”
By the end of 2023, Texas had decided to take the federal money after all, accepting a $25 million grant to step up its state-managed plugging program, with an additional $319 million to follow in subsequent funding rounds. The flood of federal funds augments state dollars — $52.5 million in 2023, according to commission spokesperson Patty Ramon — that have funded a state-managed well-plugging program since 1984.
At the Capitol in Austin, Rep. Brooks Landgraf, an oil and gas attorney who represents the city of Odessa and chairs the Texas House Environmental Regulation Committee, has been driving an effort to boost funding for oilfield cleanup — including plugging orphan wells — as part of a larger effort to rehabilitate areas hit hard by intensive energy industry activity.
For more than a decade, since the start of the fracking boom, Permian Basin cities, towns and rural areas have seen their roads degraded by endless streams of semis hauling water, sand and heavy equipment. One of those roads, Highway 285, has grown so dangerous from oilfield traffic that it is known as “Death Highway.” The boom has also stressed schools, hospitals, law enforcement and health care resources, and caused a deterioration of air and water quality in the region, which is home to about half a million people, according to the Permian Basin Regional Planning Commission.
“This is something that's going to take a lot of time and a lot of money, but it's something we have to do,” Landgraf said in May 2022. “We have to clean up our state.” A bill authored by Landgraf that would have tapped a new severance tax to increase funding for orphan plugging passed the Texas House of Representatives in 2023 with overwhelming support but died in the Senate. Landgraf told Capital & Main that he plans to bring the bill back in the 2025 session.
In a radio interview in April 2023, Craddick said she and the other commissioners on the Texas Railroad Commission believe “it's important that we plug wells” and that Texas has the “most aggressive well-plugging program” in the country. “We have just under 1,000 people who work for this agency. Of that, almost half are inspectors,” Craddick said. (Ramon said the commission actually employs 180 inspectors in the oil and gas division.) “We go and inspect these wells and identify where it is and then put them on a list,” Craddick said. “When they go on a list, we prioritize them. Then, we have a process to determine whether they should be plugged sooner rather than later.”
Ramon said the commission has been “exceeding [plugging] targets set by the Legislature for seven straight years and counting.” But despite plugging in excess of 1,500 wells each year, the backlog of Texas orphans never seems to diminish. Worse, that list does not include an unknown number of unplugged wells that are undocumented, abandoned, or otherwise likely to meet the orphan criteria in the future.
Since July 2020, the number of officially recognized orphans in Texas has never dropped below 6,208, according to monthly versions of the Railroad Commission's orphan list obtained through an open records request. The average number of orphans over 42 months, including the most recent April 2024 list, was 7,907 (no lists were provided for July and August 2021 or December 2023, and the October 2020 list was blank). In March 2024, the number of orphans suddenly surged by nearly 4,000 to 12,205, before dropping back to 8,580 in April. Asked for an explanation, Ramon said the March list “inadvertently included wells that were not orphaned.” Ramon did not respond to a question about what process the commission uses to add and remove orphans from the list, or how such a meteoric leap and crash in orphan numbers could have inadvertently occurred in the span of a single month.
Asked if the commission has an estimate of the number of orphaned or abandoned wells that are not on the list, Ramon said, “All orphaned wells are on the list.” In a follow-up email, Ramon clarified that the state maintains the orphan list, which includes only wells that meet the dual criteria for orphans — inactive for at least a year, with an operator whose organizational paperwork has also been delinquent for at least a year — and a separate list of “Wells Remaining to be Plugged with State Managed Funds,” which is updated monthly and includes a mix of orphans and nonorphan wells that the state intends to plug during the current fiscal year, along with a cost estimate for each job.
As for identifying wells to plug under the program — orphan or not — Ramon said the commission uses a “Well Plugging Priority System” worksheet, with which it determines a well's rating on a scale from Priority 1, the most urgent — leaking wells that need plugging immediately — to Priority 4, the least urgent. Whether a well meets the dual orphan criteria, or whether it is on the commission's official orphan list, does not factor into its priority rating on the worksheet, though there is a line item for wells with operators that have been delinquent for more than five years.
Out of 185 wells approved by the commission for plugging with state funds in March, according to documents obtained by Capital & Main through an open records request, at least three never appeared on the orphan list. The operator of one of those wells, Outline Oil Company LLC, located in Beeville, Texas, has a valid Organization Report and is in good standing with the Texas Comptroller's Office. Ramon declined to explain why the state had committed an estimated $110,000 to plug Outline's well, rather than requiring the operator to plug it.
The remaining wells approved for plugging on the March list, but that were absent from the orphan list, have operators whose Organization Reports have been delinquent for years. The state estimates it will spend $120,000 replugging two gas wells owned by Dallas-based Arriola Operating and Consulting Inc., which has been delinquent since January 2013. The commission's wellbore database lists the wells, which were both originally plugged in 1985, under a different operator. The commission will also spend an estimated $26,500 replugging a well owned by Coleman-based Ringo Rig LLC that records show had spent years on the orphan list before being plugged by the state in August 2023 and subsequently removed from the list. Ringo Rig LLC has been delinquent since July 2019.
“Not only do we plug orphaned wells, we also plug a well if an operator does not take action as directed at a leaking well,” Ramon said in an email. “Bottom line: we do not abdicate our duty to protect the environment; we plug wells, orphan or non-orphan, and eliminate pollution threats.” Ramon did not respond to questions about whether the commission has an estimate of how many nonorphans may eventually become the state's responsibility, finding their way onto the orphan list, the plugging list, or both.
If there is a bottom line, it's that Texas has no solid estimate of the number of unplugged wells within its borders that may one day become wards of the state. Some date back to the earliest years of oil exploration, when few if any records were kept. Others are still producing, but with operators who may not have enough cash when it comes time to end the well's life and plug it — which is their legal responsibility. Others stopped producing a long time ago, and belong to delinquent operators, but for some reason are not included on the orphan list.
“Right now the Railroad Commission estimates that we have almost 8,000 orphan wells that need to be plugged in the state of Texas,” Rep. Landgraf said back in 2022, when he was drumming up support for more orphan funding. “In reality there are probably more than that, because we just don't know where they all are or how many exist.”
Disclosure: Environmental Defense Fund and Texas Pipeline Association have been financial supporters of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune's journalism. Find a complete list of them here.
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Permian Basin truckers protest over restrooms, unpaid hours
by By Carlos Nogueras Ramos, The Texas Tribune – 2024-07-02 05:00:00
SUMMARY: Truck drivers in the Permian Basin are protesting low wages and poor working conditions by blocking sand mine entrances and distributing fliers. They demand better pay for waiting times, more restroom facilities, and negotiable rates based on driving times and cargo weight. Many drivers face long unpaid hours waiting to load and unload, lack amenities, and have to cover repair costs. Protests last year led to some drivers being fired, prompting them to file complaints with the National Labor Relations Board. The trucking industry faces a severe driver shortage, worsened by low wages, poor conditions, and inadequate recruitment incentives.
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MONAHANS — Low wages and working conditions that truck drivers describe as degrading have sparked an organized labor movement in the Permian Basin, a historic first for the nation's busiest oil field.
About a dozen truckers and local environmental activists descended Monday on three West Texas cities — Kermit, Mohanans and Odessa — and blocked entrances to sand mines with a row of cars to hand out fliers listing their demands to other truckers.
Workers said the one-day demonstration, which slowed production in the nation's largest oil supplier, was a sequel to a similar protest last year that was largely ignored and a warning of the steps they'll take to be heard.
The truckers are demanding to be paid for the long hours they spend waiting to load and unload frac sand — or sand used during fracking to separate the rock, prop it open and prevent it from closing — more restroom facilities near loading areas and the ability to negotiate pay rates based on driving times and cargo weight and, said Billy Randel, a lifelong trucker and organizer with the Truckers Movement for Justice.
“There are no bathrooms for the men and women to keep this economy running out here to use while sitting from two to four to 12 to 36 hours at the wellheads,” Randel said. “There's no facility to go to the bathroom. You know how dehumanizing that is for either a man or a woman to have to use a bucket? This is insanity.”
Federal law mandates that drivers take a ten-hour break before beginning their shifts and may not drive for more than 14 hours straight afterward. After driving for eight uninterrupted hours, they must take a 30-minute break. And truckers may only drive for 70 hours within eight consecutive workdays, according to the Federal Motor Carrier Safety Administration. The law says nothing about access to amenities like restrooms.
Members of the Truckers Movement for Justice flag down semi-truck drivers to share educational and promotional material as they protest outside of the Capital Sand mine on Monday, July 1, 2024, in Monahans. The group, led by Billy Randel, protested across the Permian Basin Monday, calling for better wages and working conditions within the trucking industry.
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Eli Hartman/The Texas Tribune
Oscar Lobos flags down a trucker as he hands out informational pamphlets during a protest outside of the Alpine Silica sand mine on Monday, July 1, 2024, in Monahans.
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Eli Hartman/The Texas Tribune
Leticia Salas, a driver, holds a protest sign outside of Halliburton's regional office on Monday, July 1, 2024, in Odessa.
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Eli Hartman/The Texas Tribune
Randel said there are loopholes in the law that can significantly prolong a driver's shift. Truckers have to wait in hours-long lines at drilling sites to collect frac sand, for example, and the time they spend waiting does not count toward their pay.
Drivers deal with similar wait times when delivering their cargo. Drivers can't abandon their place in line, no matter how long the wait is — if they do they could be fined, suspended or fired.
Many truckers also foot repair costs when their contracts do not include insurance.
“I couldn't afford tires or oil changes,” said Luis Ramirez, one of the protesters Monday. “My family's suffering because of this. The money's not enough.”
Drivers made similar grievances last year in August. Approximately 20 truckers held signs outside sand mines in Kermit and refused to fulfill their deliveries for one day to pressure their employers into improving the terms of their contracts. They wanted pay for every hour they spent on the truck and demanded restroom facilities at every well site requiring sand deliveries.
Two days later, about 30 truckers were fired from their jobs, workers told The Texas Tribune. One of them was Cesar Lopez, a 27-year-old truck driver from El Paso.
In 2022, Lopez saved up $3,500 while working as a forklift operator to obtain a commercial driver's license, which is required for anyone who wants to sit behind the wheel of a truck. Through social media, he came across a sand-hauling job paying handsome wages and was hired for it. He called it a stroke of luck for someone with his experience.
The long wait times in and out of the oil fields eventually dampened his enthusiasm. One shift lasted 18 hours, just waiting to unload sand, Lopez said. He and other truckers use buckets or the open fields as restrooms when there are no facilities.
Most contracts only pay for the delivery, meaning truckers aren't paid for the time they spend driving and waiting in lines. The company paid Lopez $120 for that delivery, he said.
Lopez participated in last year's protest and lost his job two days later. Lopez said the company told him at the time he was fired because business was slow but he believes it was related to his participation in the protest.
Lopez eventually found a new job. Nowadays he calls his belly dump truck home. Parked in a gas station in Pecos near the site of a road construction project, he sleeps in a twin-sized bed squished in the space behind the two front seats of his truck.
He and 18 other truckers who were fired last year filed federal complaints to the National Labor Relations Board, the federal agency that investigates labor practices. In the complaints, drivers allege several companies retaliated against them for protesting, including 5F-Superhighway Platform, a digital application that matches truckers to third-party carriers, and transportation firms LoHi Logistics, Boomerang Delivery Services Inc., Cegre Trucking, CSM Navarros, J.C. Logistics, Maessa Transportation, Mister M&K Trucking LLC, Petrus and Amus, RBB Transportation and V&F Logistics.
The board has assigned an investigator to interview the workers and companies. If the board finds wrongful labor practices, the complaints will be heard in court.
A representative for 5F declined to comment.
Brandon Horton, a driver for Allied Eagle Transports, monitors the transfer of a load of salt water, a byproduct of fracking, to a salt water disposal site on Tuesday, June 25, 2024, south of Midland.
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Eli Hartman/The Texas Tribune
Semi-trucks park in a Love's truck stop on Thursday, June 27, 2024 in Odessa.
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Eli Hartman/The Texas Tribune
Trucker Marlon Lawe smokes a cigar at the end of his shift at a Pilot truck stop on Wednesday, June 26, 2024, in Monahans. Lawe feels working in the Permian Basin has been getting tougher as of late. “You're just not making enough right now [to survive],” Lawe said.
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Eli Hartman/The Texas Tribune
The relationship between truckers and the energy industry is largely indirect. Oil and gas companies don't generally contract drivers. Rather, they rely on providers or third-party carriers to hire drivers, establish work schedules and set pay. One provider can contract hundreds, if not thousands, of truckers.
Currently, the number of licensed truckers isn't enough to fill vacant jobs across the country, a trend truckers said is a consequence of the low wages and working conditions.
Chris Spear, president and chief executive officer of the American Trucking Associations, told Congress in 2023 that the trucking industry faces “an alarming driver shortage.” The number of qualified drivers needed nationwide reached 78,000 last year, a record high. He said that number is likely to double by 2031.
In Texas, trucking accounts for 800,000 jobs, according to the American Transportation Research Institute. One in every 14 jobs in Texas is a trucking position. By the end of the decade, the state will need 160,000 more drivers, said John Esparza, president of the Texas Trucking Association.
“We are losing a generation of drivers, and we aren't replacing them with a generation of potential drivers that is large enough in Texas or in the United States,” Esparza said.
Multiple reasons contribute to the shortage. He said lawmakers have failed to create incentives to attract new drivers. Other factors include “underrepresentation of women and lifestyle preferences that preclude many jobseekers from considering long haul trucking,” he said.
James Beauchamp, president of the Midland Odessa Transportation Alliance, said regional efforts to hire more truckers are in play, including more training programs for aspiring drivers. He said the programs have helped but not enough to keep up with the demand.
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The 5th Circuit’s terrible Supreme Court term
by By Eleanor Klibanoff, The Texas Tribune – 2024-07-02 05:00:00
SUMMARY: The 5th U.S. Circuit Court of Appeals, covering Texas, Louisiana, and Mississippi, had a tumultuous term with the U.S. Supreme Court overturning eight of its rulings while upholding three. Known for its conservative stance, the 5th Circuit has faced Supreme Court criticism for its decisions on issues like abortion medication, gun control, and social media. Judges appointed by Trump have further pushed its right-leaning agenda. Despite Supreme Court rejections, the 5th Circuit continues to influence national legal discussions. Experts suggest this trend shapes the judiciary's conservative trajectory, even as these controversial rulings frequently face higher court repudiation.
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If the 5th U.S. Circuit Court of Appeals was a boxer, you'd bet on the other guy.
The 5th Circuit, which hears appeals from Texas, Louisiana and Mississippi, had three rulings upheld by the U.S. Supreme Court, and eight overturned, more than any other court this term. The conservative circuit court saw its rulings on abortion medication, gun control, administrative power and social media moderation all rejected by the Supreme Court.
Justice Brett Kavanaugh cautioned that the 5th Circuit was taking the judiciary down “an uncharted path.” Chief Justice John Roberts said they were “slaying a straw man.” Justice Clarence Thomas, the most conservative member of the court, authored two opinions rejecting the 5th Circuit's interpretation of the law.
The New Orleans-based 5th Circuit leaned to the right even before President Donald Trump appointed six judges to the bench. The new judges, many of whom trained in Texas' conservative legal circles, have attracted a slew of ideologically-aligned cases.
“One of the most conservative Supreme Courts we've ever had is still repudiating right-leaning decisions from the most conservative appeals courts in the country,” said Steve Vladeck, a law professor at Georgetown University. “But even then, it's doing so in cases that should never have gotten to the Supreme Court in the first place.”
Just because these rulings ultimately got knocked down at the Supreme Court doesn't mean the 5th Circuit is toothless, Vladeck said.
“These rulings have the effect of taking legal theories that were off the wall, and putting them on the wall,” he said. “Even when they're losing, the effect is to make these cases of national import and give credibility to those arguments.”
The Texas two-step
The story of how the 5th Circuit comes to rule on so many conservative cases starts far away from the John Minor Wisdom federal courthouse in New Orleans. It starts in a handful of district courts in remote parts of the three-state region, where, due to geography and population distribution, only one federal judge hears all or nearly all of the cases.
In Amarillo, it's U.S. District Judge Matthew Kacsmaryk. In Lubbock, Judge Wesley Hendrix. In Victoria, Judge Drew Tipton. These judges share something beyond professional isolation — they were all appointed by Trump based on their conservative legal bonafides.
When a group of anti-abortion doctors wanted to revoke the Food and Drug Administration's approval of mifepristone, a common abortion-inducing drug, they filed the case in Amarillo.
Kacsmaryk's ruling, in which he referred to doctors as “abortionists” and the process of a medication abortion as “starv[ing] the unborn human until death,” was unprecedented in revoking a medication's long-standing FDA approval. Kacsmaryk overruled the government's argument that the doctors who brought the lawsuit did not have the legal right to sue, known as standing.
“The associations' members have standing because they allege adverse events from chemical abortion drugs can overwhelm the medical system and place ‘enormous pressure and stress' on doctors during emergencies and complications,” Kacmsaryk wrote.
This ruling would have resulted in mifepristone being removed from the market, throwing abortion and miscarriage care into chaos nationwide. But the U.S. Supreme Court intervened, ruling that the medication could remain on the market while the case moved through the system.
The case then went to the 5th Circuit. The three-judge panel, two Trump appointees and one President George W. Bush appointee, agreed that the plaintiffs did have standing to sue. The appeals court ruling would have allowed mifepristone to remain on the market with significant restrictions.
In its first abortion ruling after overturning Roe v. Wade, the Supreme Court unanimously rejected the 5th Circuit's ruling and found the doctors who sued did not have standing. Justice Kavanaugh, a Trump appointee, quoted conservative legal icon Justice Antonin Scalia in authoring the opinion.
“As Justice Scalia memorably said, [standing] requires a plaintiff to first answer a basic question: ‘What's it to you?'” Kavanaugh wrote. “For a plaintiff to get in the federal courthouse door and obtain a judicial determination of what the governing law is, the plaintiff cannot be a mere bystander, but instead must have a ‘personal stake' in the dispute.”
The 5th Circuit was advancing an “unprecedented and limitless approach” to standing, Kavanaugh wrote, which would “seemingly not end until virtually every citizen had standing to challenge virtually every government action that they do not like.”
“Citizens and doctors who object to what the law allows others to do may always take their concerns to the Executive and Legislative Branches and seek greater regulatory or legislative restrictions on certain activities,” Kavanaugh wrote.
Justice Amy Coney Barrett, another Trump appointee, similarly chided the 5th Circuit for its interpretation of standing on a Louisiana case, Murthy v. Missouri. In that case, the attorneys general of Louisiana and Missouri and five individuals accused the Biden administration of pressuring social media companies to censor information during COVID. They filed the lawsuit in Monroe, Louisiana, a city of 47,000 people, where Trump-appointed Judge Terry Doughty hears most cases.
Doughty ruled that the plaintiffs had standing, and the 5th Circuit agreed. Barrett, on behalf of the Supreme Court, did not.
“This theory is startlingly broad, as it would grant all social-media users the right to sue over someone else's censorship — at least so long as they claim an interest in that person's speech,” Barrett wrote. “This Court has never accepted such a boundless theory of standing.”
“These are lawsuits that should never have been lawsuits,” Vladeck said. “By holding that these plaintiffs do have standing, the 5th Circuit is allowing the federal courts to decide cases they have no business deciding.”
It's not just standing. In a case concerning whether domestic abusers can be barred from possessing guns, Chief Justice John Roberts overturned the 5th Circuit and noted that “some courts have misunderstood the methodology of our recent Second Amendment cases.”
Thomas overturned a 5th Circuit ruling that found the funding structure of the federal Consumer Financial Protection Bureau was unconstitutional. And on the last day of the term, the Supreme Court ruled that the 5th Circuit had failed to adequately assess whether a new Texas social media law was constitutional.
Josh Blackman, a professor at South Texas College of Law, said these rulings reflect the simple fact that the 5th Circuit is to the right of the Supreme Court.
“Every judge takes an oath to the Constitution, and I think the judges in the 5th Circuit, and really all the courts, have very strong views on what the Constitution means,” Blackman said. “The Supreme Court disagrees on that. That's their call.”
The Supreme Court did allow the 5th Circuit's rulings to stand in three cases this term, including the overturn of a Trump-era rule that banned bump stocks under the federal machine gun ban. The Supreme Court's conservative majority also upheld the 5th Circuit's ruling in a case involving the U.S. Securities and Exchange Commission.
What does it mean?
By staking out such conservative positions, even ones that get overturned in the end, the 5th Circuit has shifted the nation's jurisprudence to the right.
“Litigants deliberately steer lawsuits that could have been brought anywhere into single judge divisions in the 5th Circuit,” Vladeck said. They get favorable lower court rulings that make for great press. They get fairly favorable 5th Circuit rulings. Maybe they lose in the Supreme Court, but look at how much they've done, look at how much they've accomplished by that point.”
One side effect of this cat-and-mouse game, Vladeck said, is the Supreme Court gaining a reputation as a “profoundly centrist institution” because it blocks the 5th Circuit's most extreme rulings.
This repeated repudiation from the Supreme Court is unlikely to impact how the 5th Circuit rules going forward.
“The judges of the 5th Circuit don't work for the Supreme Court anymore than I work for you,” Blackman said. “It's a myth that the 5th Circuit will say, ‘Oh man, I got reversed. Maybe I should rule differently next time.'”
The job of an appellate judge is not to try to guess what opinions would be upheld by the Supreme Court, Blackman said. But the string of legal losses may still have an impact on how this legal strategy plays out going forward.
“It's not surprising that conservative litigants are getting more aggressive because you have a conservative Supreme Court,” said Blackman “But three years in, there have been a lot of cases that just did not yield success. Do they reevaluate and reassess? Or do they keep bringing these cases even when the Supreme Court keeps saying, ‘Go away. Go away. Go, we don't want these cases.'”
Despite taking a tone in recent rulings, the Supreme Court has not taken steps to more formally express its displeasure with the 5th Circuit.
“There's a sizable cohort of judges on the 5th Circuit whose basic attitude is, you know, ‘damn the torpedoes, full speed ahead,'” Vladeck said. “In prior eras, that kind of behavior from a lower court would have elicited not just reversals from the Supreme Court, but a pretty stern lecture, and we haven't had that yet.”
It may be that, in some cases, conservative justices appreciate the chance to engage on legal issues that otherwise wouldn't come before the court. When the Supreme Court heard the mifepristone case, for example, justices Thomas and Alito both raised the specter of the Comstock Act. These 19th century anti-obscenity laws have been essentially defunct for more than 100 years, but conservative lawyers have been trying to revive them to further restrict access to abortion.
Neither the original case, nor the eventual ruling from the Supreme Court, hinged on the Comstock Act. But the hearing offered an opportunity to bring the issue onto the most significant legal stage the country has.
“The cumulative effect of all of this is to exert a whole lot of pressure on the legal system in one direction,” Vladeck said.
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Texas to double state fund aimed at expanding power grid
by By Kayla Guo, The Texas Tribune – 2024-07-01 17:05:54
SUMMARY: The state of Texas plans to double the Texas Energy Fund from $5 billion to $10 billion to expand the power grid as electricity demand is expected to nearly double by 2030. This follows a forecast by the Electric Reliability Council of Texas, which estimated the state's main grid would need to supply nearly twice its current power. The fund, approved by voters in November 2023, offers low-interest loans for new gas-fueled power plants. The state's grid has faced scrutiny since a 2021 winter storm caused extensive outages. Companies must apply for loans by July 27.
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The state of Texas plans to double a state fund aimed at expanding the power grid as demand for electricity is expected to nearly double over the next six years.
The state will look to boost the Texas Energy Fund from $5 billion to $10 billion, Gov. Greg Abbott and Lt. Gov. Dan Patrick announced on Monday. The fund was approved by voters in November 2023 to offer low-interest loans to incentivize development of new gas-fueled power plants.
The announcement comes soon after a new prediction by the state's main grid operator that said electricity needs will surge in the coming years. The Electric Reliability Council of Texas estimated that the state's main power grid would have to provide nearly double the amount of power it currently supplies by 2030.
The numbers in the new forecast, Abbott and Patrick said in a press release, “call for an immediate review of all policies concerning the grid.”
The state's grid came under intense public and legislative scrutiny after a winter storm in 2021 knocked out its operations, causing dayslong power outages across the state in freezing temperatures that left millions of Texans without lights or heat. Hundreds died.
The Texas Energy Fund set aside $5 billion to fund 3% interest loans to help construct new gas-fueled power plants that are not dependent on the weather and that could power 20,000 homes or more.
The fund was also designed to pay out bonuses to companies that connect new gas-fueled plants to the main grid by June 2029, and to offer grants for modernizing, weatherizing and managing vegetation growth around electricity infrastructure in Texas outside the main electricity market, which meets around 90% of the state's power needs.
The state received notices of intent to apply for $39 billion in loans — almost eight times more than what was initially set aside, Abbott and Patrick said. They added that the average plant will take three to four years to complete, and new transmission lines will take three to six years to complete.
Companies have until July 27 to apply for a loan.
Just in: Former U.S. Rep. Liz Cheney, R-Wyoming; U.S. Sen. John Fetterman, D-Pennsylvania; and Oklahoma Gov. Kevin Stitt will take the stage at The Texas Tribune Festival, Sept. 5–7 in downtown Austin. Buy tickets today!
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