This begins a new series of commentaries on the impact the Trump presidency and the current Republican Congressional majorities are having on federal climate change policies. The emphasis of the series is not on executive branch actions to revise and rescind existing environmental regulations nor on Congressional efforts to amend or to abolish current climate-related laws—although these actions will be discussed.
The impacts I particularly wish to address through the series stem from the changing of the judicial guard in the courts established under Article III of the U.S. Constitution[i], which states:
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. (Article III/Section I)
There are three primary levels of Article III courts (see Map for districts/circuits):
Other Article III courts include bankruptcy and those of specific jurisdiction like the United States Tax Court and the United States Foreign Intelligence Surveillance Court (FISA).
Our new Constitution is now established, everything seems to promise it will be durable; but, in this world, nothing is certain except death and taxes.
Franklin, at the height of the French Revolution, wrote the introductory sentence to this article in a letter to his friend and fellow scientist Jean-Baptiste Leroy. Franklin was worried about Leroy's well-being in the face of the populist revolt:
Are you still living? Or has the mob of Paris mistaken the head of a monopolizer of knowledge, for a monopolizer of corn, and paraded it about the streets upon a pole.
Mr. Franklin would be upset to know that in the Age of Trump the durability of the Constitution is as threatened as the future of federal clean energy and climate defense policies and the role of scientists in their development. I will, however, leave the matter of the Constitution for another day and focus instead on renewable energy tax credits.
To paraphrase Franklin nothing is certain in Capital City except death, taxes and the debate over renewable energy investment and production tax credits.
Readers who thought the compromise reached by the Congress in 2015 had ended the debate about the future of investment (ITC) and production tax credits (PTC) for wind, solar and other clean energy technologies should now be having second thoughts. The 2015 agreement (the PATH Act) was intended to provide tax certainty for both credit categories. It is no longer certain it is accomplishing the objective.
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Are these the end days of life on Earth as we have come to know them and wish to envision them for future generations? A time of great earthquakes, warming and rising oceans, famines and floods. When torrential winds and water rain down upon us as storms named Maria and Utor? When nations will soon rise against nation not out of hate but out of hunger?
Within recent weeks several reports have been released each painting a picture of a time not too distant when the worst becomes commonplace. The good news is these are warnings not predictions of inevitability.
Over 15,000 scientists from around the world published A Second Notice to humanity of the danger of continuing to live like there is no tomorrow. The first, signed by just 1700 scientists, was posted 25 years ago.
According to Henry Kendall, a particle physicist and a co-founder of the Union of Concerned Scientists:
If not checked, many of our current practices put at serious risk the future that we wish for human society and the plant and animal kingdoms, and may so alter the living world that it will be unable to sustain life in the manner that we know.
Increasing speculation on the early retirement of Donald Trump from the presidency naturally leads to thoughts of how federal clean energy and climate programs would fare under President Mike Pence. The short answer, based on his history of public service is not well.
Even should Trump serve his full first term and go the distance as a two-timer, a Pence presidency is within the realm of possibility. Fourteen vice-presidents have gone on to become president, only four have been elected in their own right.
The odds of Pence running for the Oval Office are higher than his gaining it. Six vice presidents have run for the top spot since 1960. They are Nixon (twice), Humphrey, Mondale, G.H.W. Bush, Quayle, and Gore. Only one made it, and he resigned.
Pence’s environmental record strongly suggests his trotting the same path as The Donald. His experience as a congressman, governor and vice president, could make him a more formidable foe of Nature than Trump.
Pence is not only a more polished and experienced politician than Trump; he has a rock-solid relationship with the Republican establishment. Of course, these days membership in the establishment cuts two-ways. Untouchable in his current capacity as Donald’s wing-man, running on his own would likely find him at odds with Steve Bannon.
Clean Energy and the Environment: In the Crosshairs
Public Enmity Number 1
(for high crimes and misdemeanors)
It is no secret President Trump has had clean energy and environmental regulations in his sights at least for as long as he has been running for president. As president, Trump has begun to make good on his promises to roll back federal environmental and clean energy policies and programs. These are among the only promises he has kept during his first ten months in office.
The reason he has kept these particular vows is that he can--alone and without interference from Congress. Much of the Obama-era climate legacy rests upon executive orders. The Clean Power Plan (CPP) and the Waters Rule of the United States (WOTUS), for example, are based upon legislation but drafted by directive.
Presidential orders and memoranda have the standing of law for only as long as the executive author is in the Oval Office. They are an effective but vulnerable means for a president to set national policy in the shade of an opposition Congress. It is as true for Trump as it was for Obama.
Trump’s presidency is coming under increasing attack from establishment politicians. To lighten its load, in an attempt to right the ship, he will step up his attacks on clean energy and the environment.
I am not a psychiatrist, so I can’t really speak to why Trump is Trump. As a veteran observer of politics and people, however, I can tell with near certainty he is the type of politician who seeks elective office to validate himself. A President who has no higher calling threatens the nation and the foundation on which it is built.
There is growing speculation President Trump will be leaving office before the end of his four-year term--either voluntarily or with help from his cabinet or the Congress. Before cries of joy and sighs of relief are uttered, consider how the prospect of his leaving office could cause the worsening of an already bad situation.
This article is not as much about the means of his departure, although discussed, as it is about his motives and what it may mean for clean energy technologies and the environment.
Opinions differ as to what will spark his departure. The three most apparent prompts are impeachment, the 25th Amendment to the U.S. Constitution and voluntary retirement. Two Democratic members of the House have already filed impeachment articles, while a third is waiting in the wings.
A collective sigh of relief could be heard over Capital City in late August, after the U.S. Department of Energy released its much anticipated and even more dreaded study on the reliability and resilience of the U.S. electric grid. The report was ordered by Secretary of Energy Rick Perry in April and took just five months to complete.
According to Perry’s order, the findings of the study were to help the federal government formulate sound policies to protect the nation’s electric grid. Perry had earlier commented that he, as the Secretary of Energy, had an obligation to assure the nation of a reliable and resilient electric grid.
Appearing a reasonable request, the renewable energy industry and the environmental community read the order as a thinly veiled threat of some proportion to the growing market share of clean energy technologies like solar and wind. An attack thought consistent with the anti-climate, pro-fossil/pro-nuclear leanings of the Trump administration.
The perceived threat flowed from directive’s focus on baseload power. Translated into everyday terms, baseload power pertains to large-scale central electric generating plants fueled primarily by fossil and nuclear fuels.
The on-again/off-again nature of wind and solar, without storage, has often been identified as the fly in the clean energy elixir. The negative interpretation given Perry’s order was a natural outcome of the frequency Trump and others have referred to wind and solar as unacceptable alternatives to fossil and nuclear.
Natural gas straddles the line. Even the cadre of conservatives in the Trump administration understand the demise of coal and nuclear in recent years has something to do with the abundance of low-priced natural gas—even should they ignore its relatively smaller carbon footprint.
Prior to the August release of the study, organizations like the American Wind Energy Association (AWEA) sought to preemptively challenge the anticipated conclusions and recommendations of the DOE study. A report by the Analysis Group concluded the transition to non-coal, non-nuclear generating sources was being driven by the market—not by federal or state policies.
When the Department’s report was finally released, it admitted the rise of increasingly cheap and available solar and wind were not the culprits condemning coal and nuclear to the slag heap of U.S. power supplies. Still, the report suggested—strongly—the nation needed to prop up the two sectors the market was otherwise turning away from--for reliability and security reasons.
In essence, plaintiffs assert a novel theory somewhere between a civil rights action and National Environmental Policy Act /Clean Air Act/Clean Water Act suit to force the government to take action to reduce harmful pollution.
----- Magistrate Judge Thomas Coffin
Exercising my reasoned judgment, I have no doubt that the right to a climate system capable of sustaining human life is fundamental to a free and ordered society. A great opening line, isn’t it? I'd be sorry I wasn’t the one who wrote it, but for the fact that the Chief Judge of the U.S. District Court for Oregon did.
It was part of Judge Ann Aiken’s opinion granting the plaintiffs in Juliana et. al. v United States et. al. standing to sue the federal government for its fossil fuel policies. The twenty-one plaintiffs in the case were all under the age of 19 when the suit was filed in August 2015.
The youth are claiming the federal government has:
The case is one of the most reported on and spoken of in the history of the environmental movement and for good reason. Should plaintiffs prevail, the federal government will be ordered by the court to regulate greenhouse gas emissions, based upon a preponderance of scientific evidence.
The trial date is set for February 5, 2018. Even before it begins in earnest, the case is creating an extraordinary record that will be debated in law schools for years recounted in speeches and referenced in the pleadings of myriad cases yet to come.
If I had a world of my own, everything would be nonsense. Nothing would be what it is, because everything would be what it isn't.
And contrary wise, what is, it wouldn't be. And what it wouldn't be, it would. You see?
--Alice, while in Wonderland
Climate change is not the biggest problem facing the nation; talking about it is.
Until we learn to do the one, the other may never be sufficiently solved to stave off the worst of its potential impact. The greatest of these may be a functioning federal government.
Actually, talking about anything in today’s partisan charged atmosphere appears to be the problem of paramount prominence. I will focus here only on climate change.
In today’s political environment, civil discourse is an endangered species immediately followed on the list by bi-partisanship. Disagreements over the accuracy of climate science and causality—often as not—have nothing to do with the evidence of either. Rather they are veiled and not so veiled diatribes about one and another’s parentage, politics and humanity.
Climate has been a much mentioned and an even more maligned topic since Donald John Trump swore his oath of office. Almost from the beginning, he has taken both axe and eraser to federal climate policies and programs.
Pulling the U.S. out of the Paris Climate Accord and, with it from the international community, rolling back environmental protections and excising mention of climate change from federal websites are among the few promises he has almost managed to keep. Almost, because federal courts have expressed alternative opinions on some of these matters.
Trump and company may be said to contribute mightily to the dog-whistle discourse on global warming gripping the nation; they have not invented it. As with many of his policy positions, Mr. Trump reflects what his core supporters already believe but enjoy hearing come through a presidential loud-speaker nonetheless.
Trump’s personal brand of marketing-style introduces new sets of alternative facts into the public dialogue. Through twits and turns, The Donald dominates the discussion deepening the divide, often making it impossible for truths to rear their heads.
Efforts by the climate community to communicate the existence, cause and effect of global warming have for decades helped to increase understanding of the problem and to introduce response strategies, e.g. increased reliance on clean energy sources, and opportunities, e.g. investments in new technologies and the build-out of resilient community infrastructures.
There is growing evidence—both analytical and anecdotal—the message of the community may be growing stale and less impactful. It is a sign of these divided times and confirmation that a re-do of traditional messaging strategies is in order.
Significant progress towards a low-carbon economy, from this point forward, will not be made if the climate community cannot more effectively engage a wider swath of voters in constructive dialogue. Effective engagement is defined as: providing the information a reasonable person would need to conclude global warming is real and warrants their doing something about it.
It is the “doing something about it” portion of the objective, in particular, that draws attention and should cause the climate community to raise a collective eyebrow.
The term climate community is meant to include environmental organizations, clean energy developers and manufacturers, governments foreign and domestic, lawyers, doctors, urban planners, architects, scientists, researchers, conservationists, and all manner of individuals and organizations. Anyone, in short, worried about global warming and considering doing something about it.
As I had discussed at length in, Climate Change Polls: A Glass Half Empty or Half Full, the canary in the coal mine is findings like these:
Effective communication of climate change information is difficult and often illusive in today’s divisive cultural context; it should not, however, be thought impossible.
Any useful discussion on how better to communicate with people, who one might have very little in common with but with whom one wants to work collectively to combat global warming, requires a willingness to see things from another’s perspective-not to judge them as individuals on the basis of their affiliations and/or on what others in their affinity group(s) might be saying.
There is, I admit, a certain touchy-feely aspect to honest and open dialogue. A degree of sensitivity and earnestness is involved. Aspects some would pejoratively call political correctnesss, but are more properly matters of common courtesy and respect.
Open and constructive dialogue does not require stepping away from hard topics or concepts that might make someone uncomfortable; but it does involve a willingness to discuss difficult issues—some of which are likely to be taken personally--without getting angry, accusatory or dismissive.
Quite frankly, any discussion of the state of public discourse in the United States may be one of the most difficult challenges facing the climate community—more difficult and divisive even than the global warming discussion itself.
That it often starts out as insulting and incendiary cannot be allowed to prevent it from happening. Failing to step out of the choir box to engage with climate change deniers, doubters and those not yet ready to take a position limits the number of voices ultimately calling for constructive climate action. VOLUME MATTERS.
Communications that cannot cross the divides can only stoke enmity’s fire, while doing very little to increase understanding or to broaden the base of support for constructive collaborative actions. Effective response to global warming will only come about through widespread and stable cultural change.
At the moment, change is more a function of combat between factions than it is conversations across fences. Change by combat rarely lasts; it creates political resentments and “you just wait, we’ll get you” attitudes--similar to the feelings exhibited of late by extremists and hate groups.
I would not go so far as to say slow and steady wins the day. It is most likely time is of the essence and slow is not an option. In truth, neither is steady—at least it shouldn’t be.
Balanced and stable clean energy and environmental policies and programs are needed. The required balance does not occur by spending equal time at the extremes--one administration doing, only to have it undone by the next.
Biennial and quadrennial about-faces are unproductive as matters of public policy; they create and maintain market flux, are a drag on the economy and costly to administer.
The question now becomes what obstacles stand in the way of trans-divisional communication on the part of the climate community?
There are at least three overlapping conditions contributing to the current communications problem:
The last two are the more difficult to solve as they are subsets of larger swirling social patterns. The first is clearly within the climate community’s control and ability to correct.
Assumptions can be insulting
I had occasion the other day to speak with a stranger about global warming. It happened while waiting for the mechanic to finish my 6-month car inspection—something I seem never to have done in a timely manner. Suffering in the last-minute line, however, affords me an opportunity to meet the most interesting people.
I was scribbling notes for an article I had promised for the following day, when the person next to me asked what I was writing.
The question led to my inquiring in return what they thought of the climate change debate. She answered: I don’t think much of it at all, to be honest. Diogenes wouldn’t have been happier—at last a person who'll level with me.
Since she started it and we were at least a full half-hour away from receiving our coveted stickers, I asked a second question: what makes you think global warming isn’t happening?
Her answer brought me up short: I didn’t say I didn’t believe it wasn’t happening; I said I don’t think about it much.
Indeed, an honest person—she hadn’t denied its existence. I apologized for the assumption and moved on to less contentious topics like whether the Cubs would catch fire in the closing months of the season and repeat last year’s World Series victory. She looked at me quizzically, so I told her I was looking for a sign the goat was truly gone—I think she wished the same of me.
Later, I started thinking again about the encounter and wondered if the climate gods weren’t sending me a message—at least asking me a question: why did you assume she was a denier? A question to which I had no good answer.
I had simply assumed it, thereby, giving voice to the erroneous claim of: anyone not with me is against me. This kind of thinking is a problem--for me and many others I know in the climate community.
The assumption reflects a we/they attitude, and, if I were to be honest, infuses what must be an off-putting aggressiveness in my own efforts to engage people outside the delineated defenders circle in an actual dialogue that might lead to changed minds and collaboration.
The with-me/against-me hypothesis is far from the only one lodged in the minds of defenders, as they prepare and present materials intended to inform and motivate. There is, for example, the assumption that goes something like: those who don’t believe in climate change are simply unaware of the facts.
It presumes anyone not believing that climate change is occurring is simply an uninitiated soul needing the information I or a favored environmental organization can offer. Once possessed of it, the soul will experience a Saul on his way to Tarsus catharsis—ever after joining the ranks of the climate cognoscenti.
How should I put this? Bull-puckey! These are faulty and arrogant assumptions and likely to get the assumer tagged as one of those--elitist know-nothing establishment scum researchers looking to live off government grants rather than getting a real job—experts. The type Trump is always whining about and telling his supporters to ignore.
There are many reasons a person denies all or portions of climate change theory—some substantive, some not. These can include:
Belief is not the direct result of having been presented with a sound logical construct or even a series of individually known factual statements. In the minds of many 1+2+3+4 does not always add up to 11.
How many times have you or a friend simply ignored the instructions written on the back of a package? I suspect this is a more male than female trait, but it has likely happened to most of us or to someone we were with when it happened.
Why would anyone assume the manufacturer writing the instructions thought there could be something gained by a customer’s failed experience? I’ve asked myself that very question more than once, without enlightenment.
I remain convinced there must be a reason however. It’s just like the sneaky corporatists to hide it from me--just they wait, I’ll get ‘em. (Oops! Did I say that out loud?)
My point? We humans do not always make logical decisions. We are, after all, emotional creatures. Economists finally figured this out when it dawned on them the market’s invisible hand had been giving them the finger for thinking consumers and investors always made rational decisions.
In the light of that new dawn, the emerging field of behavioral economics was born --offering a radically different view of how people and organizations operate. Climate researchers would do well, I think, to follow a similar path of enlightenment to birth a new field of inquiry called behavioral environmentalism.
This article is an excerpt from my forthcoming book Earth v Trump: The Climate Defenders’ Guide to Today’s Politics. Look for it soon, to read the rest of the chapter.
Teaser photo: Pieter_Bruegel_the_Elder_-_The_Tower_of_Babel_(Vienna)_-_Google_Art_Project.jpg, originally from Google Art Project.
Part 1 of this article ended with the admonition that moderate Republicans are probably the very population cohort climate advocates should be targeting with their appeals for understanding and support. It was, I suggested, the answer to the question of why attitudinal and behavioral surveys suggesting stagnation and decline in support of efforts to combat climate change should be considered a problem by the broad community of climate advocates.
Evidence of the problem offered in Part 1 included specific references to the GMU/Yale survey responses that showed liberal/moderate Republicans in general put global warming near the bottom (21 of 23) of their policy priority lists—only 2 slots ahead of where conservatives listed it.
There was also the report of Assemblyman Mayes’ attempted evisceration by his conservative cohorts in the California Republican Party for having his picture taken with Governor Brown—well, that and having voted to extend the cap-and-trade legislation.
The situation in California was consistent with Davenport and Lipton’s characterization of the situation in Congress:
But in Republican political circles, speaking out on the issue, let alone pushing climate policy, is politically dangerous.
Through their headlines and media reports the Mason and Yale surveys, along with most others, offer more than a modicum of hope that the climate community’s combined messages are getting through to voters. Who isn’t comforted to know that despite Trump’s anti-environmental rhetoric and his administration’s efforts to rollback key protections that voter opinions are holding steady?
Since I was asked—I’m not! Already having outed myself as a glass half empty kinda guy that should come as no surprise. Part 2 continues the thought that the climate community’s message is not nearly as positively impactful as it might appear.
Joel B. Stronberg
Joel Stronberg, Esq., of The JBS Group is a veteran clean energy policy analyst with over 30 years’ experience, based in Washington, DC.