Marlo Lewis

Post image for What Every Conservative in Congress Needs to Know about the Paris Agreement

Today, at least 155 governments are expected to sign the Paris Agreement at U.N. headquarters in New York. A visitor to a prominent skeptic blog posted the following comment:

“But Obama’s negotiators in Paris negotiated with the leader of the summit, another socialist, for a non binding deal. Essentially making the whole thing meaningless in order for him to attempt to bypass congress.”

That dismissive comment expresses an opinion held by many conservatives and skeptics. It is incorrect.

Beguiled by Obama’s claims that the agreement is “non-binding,” “unenforceable,” hence “not a treaty,” many conservatives assume it’s harmless, a global feel-good exercise they can safely ignore. Not so.

Bypassing Congress is not meaningless. It undermines and, unless forthrightly opposed, can destroy constitutional checks and balances.

Moreover, the agreement is inherently dangerous to America’s economic future and capacity for self-government. Here’s why.

The guts of the agreement are a detailed collection of reporting, monitoring, and verification requirements which, flagged by the word “shall,” are understood to be legally binding. Those procedural “commitments” are the framework for a global, multi-decadal campaign of political pressure. It’s chief function is to overcome U.S. political resistance to climate alarm, EPA’s power plant rules, cap-and-trade, wealth transfers from the poor in rich countries to the rich in poor countries (a.k.a. “climate finance”), and “keep it in the ground” restrictions on domestic energy production.

Granted, our specific emission reduction and climate finance commitments are non-binding in the sense of self-chosen rather than specified by the agreement itself, but for the United States, that is a distinction without a difference. Americans expect their leaders to keep all solemn promises, whether or not there are legal penalties for breaking them. As a GEICO ad might put it, “When you’re the United States, you keep your promises; it’s what you do.” The way nations honor their non-binding promises under the Paris Agreement is to turn them into legally binding appropriations and regulations.

Some conservatives assume that if President Obama can make America a party to the agreement with the stroke of a pen, a Republican president could withdraw from it just as easily. That too is incorrect.

The agreement “enters into force” when at least 55 countries representing 55 percent of global greenhouse gas emissions ratify it (an outcome expected soon). After the agreement enters into force, a party may not notify its intent to withdraw until three years later, and withdrawal does not become effective until one year after notification.

So by the terms of the agreement, a Republican administration would be bound for four years to participate in the annual climate summits and endless rounds of specialized committee meetings, providing countless media opportunities for foreign leaders, U.N. officials, and green pressure groups to “name and shame” U.S. officials who question climate orthodoxy, fail to pony up billions in climate finance, or oppose EPA’s power plant rules and other greenhouse gas regulations that would be dead on arrival if proposed as legislation in Congress.

Congressional leaders can foil this scheme, but only if they challenge rather than repeat Obama’s core premise that the Paris Agreement is not a treaty, hence does not require Senate approval to enter into force with respect to the United States.

The good news is Sen. Mike Lee (R-Utah) and Rep. Mike Kelly (R-Penn.) completely get it and today issued a statement challenging the constitutional bona fides of Obama’s climate diplomacy. [click to continue…]

Post image for Paris Climate Agreement: What Should a Republican President Do?

What political costs would a Republican president incur should he attempt to “withdraw” the United States from the Paris Agreement? That is a question to which President Obama has given much thought and GOP leaders little.

Writing in yesterday’s Washington Post, environmental reporters Chris Mooney and Juliet Eilperin argue that President Obama’s “rapid move to join the Paris climate agreement could tie up the next president.”  They reason as follows.

The Paris Agreement “enters into force” as soon as 55 countries representing 55% of the world’s greenhouse gas emissions join the agreement (Article 21). A party may not withdraw until three years after the agreement enters into force, and withdrawal does not “take effect” until “expiry of one year from the date of receipt by the Depositary of the notification of withdrawal” (Article 28). Thus if, as expected, the Obama administration signs the agreement on Earth Day (April 22) and deposits the U.S. article of acceptance or approval before Obama leaves office, America will be a party to the agreement for at least the next four years — “the length of a presidential term.”

Yet as Mooney and Eilperin acknowledge, the administration “has said that the Paris agreement is not, in its eyes, a formal, legally binding treaty, which means that it doesn’t have to be ratified by the Senate.” That raises an obvious question. If the agreement is not a formal treaty, if it’s not legally binding, how exactly does it “enter into force” with respect to the United States? How can it bind us to remain a party until 2020 even if the American people elect a president and Congress opposed to the agreement?

Mooney and Eilperin fail to flag the rhetorical sleight of hand by which Obama seeks to have his cake and eat it. Obama wants an agreement that, like a real climate treaty, controls domestic energy policy for decades to come, regardless of domestic politics and the policy preferences of future U.S. leaders.  Yet he also wants an agreement that is somehow not a treaty, so he can adopt it unilaterally, with the stroke of a pen, without engaging the Senate, where the agreement would be dead on arrival.

This game plan should be too clever by half. I say “should be,” because most GOP leaders have not shown they have the wits and courage to unmask and defeat it.

The first step in foiling Obama’s end-run around the Constitution is simply to call the Paris Agreement by its proper name: a treaty. [click to continue…]

Post image for Carbon Capture and Storage: Adequately Demonstrated?

EPA claims carbon capture and storage (CCS) is the “adequately demonstrated” best system of emission reduction (BSER) for new coal-fired power plants. Is it?

“Adequately demonstrated” roughly means commercially viable. In its so-called Carbon Pollution Standards rule for new fossil-fuel power plants, finalized last October, EPA repeatedly sites SaskPower’s Boundary Dam 3 project in Saskatchewan as evidence CCS technology is ready for prime time.

However, the New York Times reports this week, Boundary Dam 3 “has been plagued by multiple shutdowns, has fallen way short of its emissions targets, and faces an unresolved problem with its core technology. The costs, too, have soared, requiring tens of millions of dollars in new equipment and repairs.”

Superficially, Boundary Dam 3 looks like an ideal candidate for CCS technology. “Hundreds of years of coal reserves are buried under the ground nearby, virtually eliminating transportation costs.” The project “received a major Canadian subsidy.” It has a 10-year contract to sell captured CO2 to Cenovus Energy, which injects the gas underground to extract “tertiary” oil from older wells — a process known as enhanced oil recovery (EOR).

Yet recently released confidential internal documents show that instead of capturing 90% of the plant’s CO2 as intended, the system is working at “only 45 percent of capacity.” One document “cited eight major problem areas. Fixing them, it said, could take a year and a half, and the memo warned that it was not immediately apparent how to resolve some problems.”


A chart covering the first year of operation showed that the system often didn’t work at all. When it was turned back on after shutdowns for adjustments and repairs, the amount of carbon captured sometimes even dropped.

One shutdown last year cost the company C$17 million, and repeated shutdowns have forced SaskPower to miss CO2 deliveries to Cenovus. The penalties totaled C$7 million, canceling out most of the C$9 million in sales.

A more permanent challenge is the energy penalty inherent in CCS technology:

On top of that, the carbon system is a voracious consumer of the electricity generated by Boundary Dam, which has 150 megawatts of capacity. [SaskPower CEO] Mr. [Mike] Marsh testified that about 30 megawatts of capacity were consumed by the system, and an additional 15 to 16 megawatts were needed to compress the carbon dioxide.

Tim Boersma, the acting director of the energy security and climate initiative at the Brookings Institution, said that extensive power loss is a significant factor keeping other utilities from following SaskPower’s lead.

“That is exactly the reason this is not going to fly,” Mr. Boersma said. “The plant’s efficiency goes down so dramatically.”

So much for the gory details. Let’s consider the big picture. [click to continue…]

Post image for Renewable Fuel Standard: Fact Checking RFA Chief Bob Dinneen

E&E news reporter Monica Trauzzi yesterday interviewed Bob Dinneen, President and CEO of the Renewable Fuels Association (RFA). They discussed the future of the Renewable Fuel Standard (RFS). Today’s post will examine one of Dinneen’s answers that is dense with misinformation. Before examining it, though, some basic background may be helpful.


The RFS is a central planning scheme requiring specified volumes of biofuels to be sold in the nation’s motor fuel supply over a 17-year period. As incorporated into the Clean Air Act by the so-called Energy Independence and Security Act (EISA) of 2007, the quota for total renewable fuels increase from 4 billion gallons in 2006 to 36 billion gallons in 2022.

The RFS, however, also authorizes the Environmental Protection Agency to make annual adjustments to the quota (known as Renewable Volume Obligations or RVOs) if the administrator determines there is an “inadequate domestic supply.”

Renewable fuel lobbyists have been castigating EPA ever since November 2013 when the agency, for the first time, proposed to reduce the statutory targets based on the “blend wall” — a set of market constraints limiting the supply of biofuels that can actually be sold to consumers.  Although the final RVOs adopted by EPA in November 2015 restored much of the cutbacks proposed in 2013, Dinneen and other renewable fuel lobbyists continue to cry foul and demand that EPA force refiners to buy ethanol at the statutory volumes.

Contrary to popular misconception, the RFS does not expire after 2022. Rather, the Clean Air Act leaves it up to EPA to decide post-2022 targets based on the agency’s assessment of various factors such as the impacts of biofuel production and use on the environment, energy security, and job creation.

Bumper Crop of Misinformation

Monica Trauzzi: So you need the RFS post-2022?

Bob Dinneen: Again, until there is a truly free marketplace. You know, ethanol is not subsidized today. The only liquid transportation fuel that receives a subsidy from the taxpayer is, oh, oil. You know, we’re paying refiners to drill deeper in the Gulf of Mexico and to frack in North Dakota and Texas. We aren’t subsidized. I want to see the renewable fuels industry continue to evolve. I want to see new technologies. I want to see new feedstocks. I want to see us get beyond the 10 percent blend wall. All of that happens if the EPA grows a backbone and implements this program in the way that it was intended to be implemented so that refiners have to invest in the infrastructure to allow E85, to enable E15 to be sold. It’s not that hard.

Dinneen has made those points before, so he’s not speaking off the cuff but presenting a settled position. Time for a fact check. [click to continue…]

Post image for Climate Bullies: Dems Ask S.E.C. to Target Shell

Reps. Ted Lieu (D-Calif.), Peter Welch (D-Vt.), and Matt Cartwright (D-Penn.) are at it again. In October, they asked Securities and Exchange Commission Chair Mary Jo White to “investigate ExxonMobil’s past filings to determine whether security laws were violated by failing to disclose material risks related to climate change.” This week they asked her to investigate Shell Oil’s filings to determine if the company “similarly violated securities laws by not properly disclosing climate-related risks.”

Lieu et al. claim the oil companies have known for decades about the seriousness of climate change risks, yet hid those risks from the public by funding ‘denier’ groups. As evidence, they cite an L.A. Times article titled “Big oil braced for global warming while it fought regulations.” The Times reporters claim both companies made significant investments to protect their facilities from sea-level rise, hence must have known how dangerous climate change is. Let’s see if there is anything to that line of argument. [click to continue…]

Post image for Warren Buffett on Climate Change Risk

In a recently filed shareholder resolution, an activist group called the Nebraska Peace Foundation (NPF) asks Berkshire Hathaway’s insurance division to prepare a report describing the division’s responses to climate change risks. The report “should include specific initiatives and goals relating to each risk issue identified.” In a letter to shareholders dated February 27, 2016, Berkshire Hathaway Chairman and CEO Warren Buffett explains why Board of Directors unanimously opposes the resolution.

Today’s post examines Buffett’s argument, which straddles fences in ways you might not expect. Before diving into it, I should note that NPF owns exactly one share of Berkshire Hathaway stock. That’s enough to entitle NPF to submit a shareholder resolution but nowhere near enough to give those ‘investor activists’ a stake in the company’s financial health.

For years climate campaigners have used shareholder resolutions to demand that companies with fossil-fuel investments or customers confess their unsustainability in the supposedly inevitable carbon-constrained future. The classic case is Campaign ExxonMobil. In the name of protecting shareholder value, the campaigners tried to persuade Exxon to scare away its own investors–a tactic that, if successful, would bankrupt the company and harm shareholders. NPF is part of the same movement, although its goal may simply be to turn Berkshire Hathaway into yet another multi-billion dollar mouthpiece for the so-called climate consensus.

The remainder of this post reproduces the portion of Buffett’s letter that explains why the Board opposes the NPF resolution (pp. 24-25). Buffett’s text is in maroon and preceded by the initials WB. My comments are in standard black and indented.

[click to continue…]

Post image for Exxon Bashing, the AGU, and the Folly of Position Statements

In a joint letter yesterday, more than 100 scientists, including Kerry Emmanuel (MIT), James Hansen (Columbia University), and Michael Mann (Penn State University), urged American Geophysical Union (AGU) President Margaret Leinen to “reconsider” (i.e. terminate) ExxonMobil’s sponsorship of the association’s Fall meetings. Climatewire ($) provides some useful context:

AGU’s meeting is the largest earth science conference in the world. It attracts tens of thousands of scientists and requires a conference space so large that it is used by Apple Inc. and Google Inc. for their yearly developer meetings. There are hundreds of sessions on the science of climate change. Exxon Mobil is a prominent sponsor and recruiter at the meeting and paid AGU $35,000 last year.

Leinen declined to give ExxonMobil the boot. As explained yesterday on her blog (h/t Anthony Watts), AGU’s Board discussed allegations that ExxonMobil is promoting “misinformation about climate change, climate science and the role of human activity in climate change, or actively supporting organizations that do,” and concluded that “ExxonMobil’s current public statements and activities were not inconsistent with AGU’s positions and the scientific consensus.” However, expulsion remains an option if, in the future, the company deviates from AGU’s positions:

As the leaders of AGU, we welcome questions and requests from our members and others in the scientific community, and we assure you that if verifiable information becomes available that proves ExxonMobil is currently engaging in the promotion of misinformation about science or adopting positions that are in conflict with AGU’s own, or supporting groups that do, we will end the relationship, as dictated by our policy–at least until the company is able to demonstrate that such actions have ceased.

Hardly a profile in courage. Indeed, Leinem and the Exxon bashers tacitly agree that AGU’s role is not to facilitate debate of competing scientific viewpoints but to define and enforce a party line. [click to continue…]

Will EPA Abide by the Stay?

by Marlo Lewis on February 16, 2016

in Blog

Post image for Will EPA Abide by the Stay?

Will EPA abide by the stay placed on the agency’s so-called Clean Power Plan last week by the Supreme Court? Or will EPA continue to implement the rule–albeit in the guise of providing assistance to states?

The question is legitimate because the Power Plan itself exposes EPA as a rogue agency. As attorneys David Rivkin and Andrew Grossman explain in the Wall Street Journal:

It’s one thing for a rule to be unlawful—which happens, and rarely merits a stay—but another for it to be lawless. This one was lawless. That is why the court had to act: to reassert the rule of law over an executive who believes himself above it.

EPA administrator Gina McCarthy equivocated when explaining the agency’s policy regarding the stay. As my colleague Myron Ebell noted in the Cooler Heads Digest:

She told the House Agriculture Committee during a three-hour grilling that “Nothing is going to be implemented while the stay is in place. It is clearly on hold until it resolves itself through the courts.” But when McCarthy addressed state air regulators, she said that the EPA would work with any State that wanted to keep working on implementing the rule. Several reporters described her attitude in the speech as defiant. 

Here are McCarthy’s exact words, as reported in The Hill:

“Are we going to respect the decision of the Supreme Court? You bet, of course we are,” she said.

“But it doesn’t mean it’s the only thing we’re working on and it doesn’t mean we won’t continue to support any state that voluntarily wants to move forward.”

That doesn’t cut it. The stay requires EPA to cease implementing the Power Plan until the D.C. Circuit Court of Appeals, or the Supreme Court, renders a final decision on litigation to overturn the rule. That process may take years to complete. If, in the interim, EPA supports state efforts to implement the rule, whether by providing advice, technical assistance, coordination, or mere cheer leading, it will itself participate in implementation. Exactly what the stay prohibits. [click to continue…]

Post image for Peabody Energy: New York Times Blames Victim for Shareholder Losses; Ignores Obama Duplicity

A few weeks ago, the New York Times published an article that not-so-subtly takes the side of 35 Senators and 62 institutional investors who want the Securities and Exchange Commission (S.E.C.) to force fossil-energy companies to confess their unsustainability in a carbon-constrained world.

It’s the old self-fulfilling prophesy trick. Adopt lawless regulations aimed at bankrupting fossil-energy companies, lock in those regulations through a non-ratified treaty that dare not speak its name, then coerce those companies into scaring away shareholders, and presto, many will in fact go bankrupt. As their numbers and resources decline, so will their ability to defend themselves against further regulatory attack.

Translating into Borg-speak: “Freedom is irrelevant. Constitution is irrelevant. Your economy will adapt to service us.”

But resistance is not futile. Fossil fuels remain the world’s most affordable energy source for poverty eradication. What’s truly unsustainable is the green project to put an energy-starved world on an energy diet.

The Supreme Court just handed Obama and the EPA a major setback. And for all we know at this point, the next President and Congress will thwart EPA’s Power Grab and Obama’s attempt to bypass Senate review of the Paris climate treaty.

I wrote a short letter to the Times on the S.E.C. article. The editor did not publish it, so I will post it here. [click to continue…]

The Motion that Won the Stay

by Marlo Lewis on February 11, 2016

in Blog

Post image for The Motion that Won the Stay

The Supreme Court’s decision to put a stay on EPA’s so-called Clean Power Plan took nearly everyone by surprise. The D.C. Circuit Court of Appeals had already scheduled an expedited review of the Power Plan, and, as the New York Times observed, “the Supreme Court had never before granted a request to halt a regulation before review by a federal appeals court.”

The stay is a major setback for the global warming movement. The Power Plan is President Obama’s signature domestic climate policy as well as the sheet anchor of his emission-reduction pledge to the United Nations in the Paris climate treaty negotiations. The stay not only puts the Plan on ice pending final resolution of complex litigation on the merits, a process that could take years, it also indicates that five justices have serious doubts about the Plan’s legality.

The usual suspects were quick to condemn the stay as a partisan decision, a product of coal-fired, oil-fueled Republican politics. A typical Orwellian inversion by rank partisans who would never admit, no matter how overwhelming the evidence, that the Power Plan is an unlawful power grab.

[click to continue…]