The Week That Was: October 29, 2016 – Brought to You by www.SEPP.org
By Ken Haapala, President, Science and Environmental Policy Project
Constitutional Tug-of-War: During the turmoil following the Revolutionary War, which ended with the Treaty of Paris in 1783, it became evident to many of the political leaders that the central government under the Articles of Confederation was not working as hoped. A stronger central government was needed. In a 1787 prolonged meeting, later called the Constitutional Convention, many leaders participated to form a new charter to make a more effective central government. Of the many participating, one of the most important was James Madison, a scholar of history and political theorist. During the process from the drafting of the Constitution in May 1787, to its adoption in September, and its implementation in 1789, many ideas emerged. During the period of ratification, Madison, John Jay, and Alexander Hamilton wrote the very influential essays now called the Federalist Papers. Others, opposing ratification of the Constitution, wrote essays now collected and called the Anti-Federalist Papers. Probably, the now best-known of the anti-Federalists was Patrick Henry. These skeptics gave rise to the Bill of Rights, which articulate specific human rights upon which the central government cannot infringe. Madison did not perceive a need for the Bill of Rights because he believed human rights are many, broad, and well-established and that the proposed Constitution clearly restricted the powers of the Federal government so that it could not interfere with those rights.
This history demonstrates the conflicts (or constant tug of war) between the human rights and the need for social order; between powers of the central government and the powers of state governments; and between various parts of the central government. Underlying this, was the desire to create a democratically elected central government but with sufficient protections of human rights so that the government would not degenerate into mob rule, tyrannies, or dictatorships as happened in ancient Greece, later in France in 1789-99, and 20th century Europe. These conflicts, or tugs of war, are ongoing in the US today. No document written by man is perfect.
In the above context, it is interesting to read the constitutional, oral arguments made by the petitioners (opponents) to the administration’s power plan before the US Court of Appeals, District of Columbia Circuit. David Rivkin argued on behalf of state petitioners and Lawrence Tribe argued on behalf of non-state petitioners. They hit upon many of the issues of the tug of war between the powers of the central government and the powers of the several states. This conflict is intensified by the executive officer, President Obama, failing to obtain consent of Congress for his power plan – in fact ignoring Congress. Of particular interest; were the exchanges between Tribe, a legal icon of liberals, and the liberals on the court, chiefly Judge Tatel.
Among key issues discussed was responsibility for the electrical grid. In general, the several states are responsible for insuring the delivery of reliable electricity through the grid, with many interconnections crossing state borders. Although the federal government participates, through several entities such as the Federal Energy Regulatory Commission (FERC), which regulates interstate transmission and wholesale sale of electricity and natural gas, it is not held accountable for failure of delivery to customers. State entities are held accountable.
Several times Judge Tatel, and others, brought up the Americans with Disabilities Act (ADA) as an example of federal laws requiring changes in state and local regulations. Whether the judges believe it or not, there is a considerable difference between ADA and the administration’s power plan.
One, the ADA was an act of Congress, the administration’s power plan is not. Instead, it is an attempt to manipulate the Clean Air Act into justifying the power plan – and the EPA claim that carbon dioxide is a pollutant, which the EPA failed to establish empirically. Some of the judges considered the “Endangerment Finding” of the EPA to be equivalent to an act of Congress.
Two, as stated by the judges, the ADA required establishments to overcome physical barriers to use, usually with physical structures such as concrete ramps. The electrical grid includes multiple physical points of generation from different sources, but it is much more than that. The electrical current is fleeting; it can fail in fractions of a second. For example, South Australia’s Black System experienced some parts tripping within one tenth of a second, six cycles in a sixty cycle per second grid, with the whole system failing in 88 seconds. Electrical stability is fleeting. Wind power adds to instability.
Although the administration and the EPA are claiming authority over the grid, the EPA does not have the resources to take responsibility, or take accountability. See links under The Administration’s Plan – Litigation, Energy Issues – Australia, and last week’s TWTW.
Quote of the Week. “How is it possible that mathematics, a product of human thought that is independent of experience, fits so excellently the objects of physical reality?” – Einstein
Number of the Week: US # 1
Executive Agreements: When President Obama signed the Paris Agreement, his staff argued that there is no reason to present it to the Senate for approval, because it is an Executive Agreement, not a Treaty, which would require approval of two-thirds of the Senate. The claim prompted some examination, not exhaustive, into the scope and nature of Executive Agreements under the Constitution.
Some sources state the first executive agreement was the Jay Treaty, or Treaty of London of 1794, designed to encourage commerce and navigation between Britain and the US. It was signed in 1794, was very controversial, and became effective in February 1796. Also, it called for the withdrawal of British Army forces from pre-Revolutionary War forts in the Northwest Territory (now the upper Mid-West). However, the Jay Treaty was approved by two-thirds of the US Senate in November 1794, and was not an Executive Agreement when it went into force.
Other types of major executive agreements tend to be in times of armed conflict, or before and after armed conflict, or trade agreements. For example, President Wilson agreed to the Treaty of Versailles concluding World War I. This agreement was an extension of the Paris Peace Conference, and called for punitive reparations from Germany, contributing to the hostility leading to World War II. US Senators were not included in the negotiations for the Treaty, and the US Senate rejected it.
War-time executive agreements include President Roosevelt’s lend-lease of destroyers to the United Kingdom. Roosevelt consulted with congressional leaders and Republican candidates for President and VP, which was considered a matter of national security. Also, the war time occupation of Greenland and protection of Iceland came under Executive Agreements. Following World War II, Congressional action called the Bricker Amendment attempted to prevent Executive Agreements, but failed when President Eisenhower rejected it.
Documents reviewed assert that during the 1980s and 1990s the United States completed 6,796 international agreements, of which only 415, or 6.1 percent, were treaties submitted to the Senate for advice and consent. Additionally, the State Department has been lax in reporting executive agreements. The most important trade agreements are completed as congressional-executive agreements, including NAFTA, the General Agreement on Tariffs and Trade, and the Central American Free Trade Agreement. These sources state that congressional-executive agreements require approval by both houses of Congress, but not the more rigid two-thirds approval of the Senate, as required by treaties.
Marlo Lewis, of CEI, explored some of agreements listed by the State Department, and found them to be minor, requiring little commitment by the United States.
As s side note: Human rights agreements are treated as treaties.
For the US, the Paris Agreement is major – requiring significant restructuring of the electricity generation system and, curtailment of various industries and economic activity, to the detriment of the general population. Unless utility scale electricity storage becomes affordable, the Paris Agreement can be hazardous to the general population. Yet, President Obama appears to be ignoring his Constitutional responsibilities and accountability of presenting the Paris Agreement to the US Senate for approval as a treaty. He has not even presented it to Congress as a congressional-executive agreement. See links under The Administration’s Plan – Executive Agreements
Electricity Storage: On his blog, Rational Optimist, Matt Ridley has an easy-to-read overview of the problems of electricity storage – storage that is critical to make wind and solar reliable in most areas. In the clear deserts, with reliable sunshine, industrial solar using molten salt may work, but it is yet to be demonstrated.
Although specific to cloudy UK, Ridley describes the problems and costs in a manner generally understandable to politicians – how massive are the subsidies required for your scheme to work? See links under Alternative, Green (“Clean”) Storage.
The Energy Policy Act of 2005: The 2005 Energy Policy Act has received a great deal of derision from greens because it exempted hydraulic fracturing (fracking) fluids from Federal control under the Clean Air Act, Clean Water Act, Safe Drinking Water Act, and the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA also called Superfund)
Not mentioned by those attacking it is that the Act authorizes innovative technologies to avoid greenhouse gases, expands biofuel programs, clean coal, authorizes tax credits for wind and other electricity producers, such as wave and tidal power, and has other “green” provisions. The bipartisan act received a 249 to 183 vote in the House and a 74 to 26 vote in the Senate.
Since then, after a short lag, oil and gas production on lands not controlled by the federal government has soared, while production on federally controlled lands and waters have stagnated. The growth in oil and gas production is largely due to hydraulic fracturing, and oil imports have been falling since 2006.
For growth in oil and gas production and proven reserves by the EIA see http://www.eia.gov/naturalgas/crudeoilreserves/
For EPA’s Summary and the 2005 Act: https://www.epa.gov/laws-regulations/summary-energy-policy-act
Bizarre Decision? Court of Appeals for the Ninth Circuit reversed a lower court ruling from 2014 and upheld the 2012 decision by the National Marine Fisheries Service (NMFS) to designate the bearded seal as threatened under the Endangered Species Act.
Reports state: “The ruling is an important victory for the Obama administration and could help build a precedent of using climate change forecasts for decisions like species protections.
“’This case turns on one issue: When NMFS determines that a species that is not presently endangered will lose its habitat due to climate change by the end of the century, may NMFS list that species as threatened under the Endangered Species Act’ the appeals court asked in its ruling, answering in the affirmative.
“’The fact that climate projections for 2050 through 2100 may be volatile does not deprive those projections of value in the rulemaking process,’ the court wrote. ‘The ESA does not require NMFS to make listing decisions only if underlying research is ironclad and absolute.’”
Is the court is so engrossed in the mathematical beauty of models, that the judges believe that the mathematics constitutes physical evidence? Perhaps in future cases on oil regulations, the oil industry can introduce government energy models of the 1970s, which forecast the world will run out of oil by the end of last century, as proof that the industry no longer exists and the regulations in question are moot. See links under Litigation Issues.
Number of the Week: US # 1. Of 40 ranked countries, the “Renewable Energy Country Attractive Index (RECAI)” has the United States # 1 and Denmark # 15. The Index is prepared by EY, once known as the international accounting firm Ernst and Young. See links under Energy Issues – Non-US
1. North Korean Coal Windfall Boosts Nuclear Advance
New mineral riches complicate Washington-Beijing talks over how to curb Pyongyang’s nuclear program
By Alastair Gale, WSJ, Oct 25, 2016
[SEPP Comment: An unintended consequence of the Obama – China Agreement (not approved by Congress)?]
Summary: The article states:
“North Korean coal prices have surged by 68% in value recently, boosting funds for Pyongyang’s advancing nuclear program and undermining U.S.-led efforts to force it into talks by choking its finances.
“The rise for North Korea’s biggest export gives fresh significance to talks between the U.S. and China about tightening sanctions on North Korea in response to its nuclear activities. A focus of those talks at the United Nations is how to close a loophole that allows North Korean coal to flow to China largely unhindered.
“China buys most of North Korea’s goods, including coal, which accounts for about a third—or $1 billion—of the value of Pyongyang’s exports, according to Chinese data.
“In recent weeks, the coal trade has become significantly more lucrative for North Korea. The average price of its anthracite coal arriving at major Chinese ports rose to $99 a ton in recent weeks from around $59 in early August, according to financial data provider Wind Information.
“This is swelling North Korea’s coffers as it presses ahead with its nuclear program despite international condemnation. Pyongyang has spent around $200 million on its nuclear and missile program this year, the head of South Korea’s spy agency said last week, including two nuclear detonations and a long-range rocket launch. It has pledged further tests.”
2. Big Oil Companies Reap Windfall From Ethanol Rules
Some refiners stand to rake in $1 billion by selling fuel credits, while others must spend millions to comply
By Bradley Olson, WSJ, Oct 27, 2016
[SEPP Comment: No link to study. The biofuels program is in the Energy Act of 2005, but expanded later. Once adapted, a government program is difficult to eliminate, even when scientifically wrong and worthless.]
Summary: The article states:
“Environmental regulations designed to boost the amount of ethanol blended into the U.S. gasoline supply have inadvertently become a multibillion-dollar windfall for some of the world’s biggest oil companies.
“Companies including Chevron Corp., Royal Dutch Shell PLC, and BP PLC could reap a total of more than $1 billion this year by selling the renewable fuel credits associated with the ethanol program, according to an analysis commissioned by CVR Energy, a refinery operator controlled by billionaire Carl Icahn, a vocal critic of the rules.
“For other companies, especially smaller refiners, the rules have had the opposite effect, forcing them to spend hundreds of millions to buy credits to comply.
“Some large oil companies acknowledge they are reaping revenue from the regulations, but say their advantage stems from large investments they made to comply with it, and stress that not all of the money translates into profit.
“The top 10 U.S. refiners spent $1.1 billion on biofuel credits in the first half of this year, according to Moody’s Investors Service. Some refiners have warned they could be forced to conduct mass layoffs, or file for bankruptcy, because of the soaring costs of compliance.
“But the dispute over how to fix the program has created a rift in the oil industry, pitting some of the world’s biggest oil companies against smaller refiners. BP and the American Petroleum Institute have opposed the change, saying it could introduce significant uncertainty and do little to create incentives to blend ethanol. Exxon Mobil Corp. has argued the best solution would be repealing the entire program.”