The Shape of Things to Come

Our rulers have recently completed another greendoggle on foreign shores, flying in on their private jets to congratulate one another on their plans to deprive us of liberty and property; life, too, if they’re all up for it. How much easier it would be for them if we all just died.

The primary job of any politician is communication. Communications nowadays are instantaneous and global. No reason exists for this gathering to disgorge thousand of metric tons of GHG to gather to communicate about excess GHG. If our entire $20 trillion economy can work from home and on video-calls for well over a year, these few penny-ante taxpayer-and-corruption-funded millionaires can, too.

If they must get together, if drinking maskless and telling happy lies and sitting around watching the same old PowerPoint presentations they heard last year and the year before (which can be emailed to them) are critical to their well-being, well – again, as comms are global (and if they absolutely refuse to videoconference) they can take the train, or a ship and then a train, all of which emit less GHG per passenger than Gulfstreams and Lears and Cessnas and 85-car motorcades. The longer they are in-transit, the less harm they are to the productive middle classes. If they want to extend these ridiculous and childish meets to 24 x 7 x 365, who are we to complain? As long as they are out of our hair and pocketbooks.

Look who's here.

If Congress wanted to pass a useful bill and work seriously on revitalizing friendships with our European “allies,” and do the world a favor, they could strip the citizenship from Uncle Joe while he’s gone, sell Air Force-1 to the French in exchange for screwing them on the Aussie sub deal, and purchase an abandoned castle somewhere in the U.K. for President Brandon to live out his daze.

But – they seem to think they know best, so let’s take a brief look at some of the scare stories in the media being drummed-up by our betters, and the reality behind them. After all, if we’re going to have our liberty and property taken-away extra-judicially, it’s a good idea to understand the problems causing our unprecedented loss of freedom by those who would rule us without our permission. Normally when people are asked to sacrifice, there’s a good reason for them to comply. Invasion, Global War, stuff like that. So let’s take a quick look at some of the things for which our sacrifice (is it a “sacrifice” when it’s not voluntary?) is demanded.

Arguably the biggest problem of Baby Boomers in government (other than they’re not retiring and just going away to prattle amongst themselves and stop damaging the rest of us) is that they have this childish idea that nothing changes – ever. That everything has been the way it has been over their pampered, safe, wealthy lives enriched by the Industrial Revolution they now demand to reverse;  that the world they see through Disney’s lens is the real world. For the rest of us to listen to them is absurd. Seas rise, mountains slump and volcanoes volcano.

Here in the real world, actual data show none of the “ills” with which our betters were entertaining one another in vodka-fueled stories around the Glasgow campfire at COP26. The Lancet, in fact, (via the WSJ) a journal the elite rely on when it tells stories they like, reports that, no, we’re not all going to die from the heat in 12 years.

The Lancet published what is arguably the largest study ever to examine excess mortality associated with temperature. The study’s authors, 68 scientists representing universities and research institutes in 33 countries spanning all regions of the world, came to two clear conclusions: cold temperatures contribute to far more deaths each year than warmer temperatures, and deaths associated with extreme temperatures, hot or cold, are declining. Referencing data on more than 130 million deaths from 43 countries, located in five continents they found that 5,083,173 deaths were associated with non-optimal temperatures per year, with most of these excess deaths tied to cold temperatures.

Maybe our betters are complaining that we aren’t dying fast enough? Perhaps we’re reading the entire global warming fantasy incorrectly and they want us to get colder so we can die more quickly?

Who needs heat?

It’s also what those searching for extra-terrestrial life are saying by looking for an off-world home that is five degrees C warmer than earth for optimal conditions for human life. And, of course, all food plants thrive at warmer temperatures and increased CO2, thus allowing the poor to be fed. I guess the elites don’t really care about the poor.

I’m with 'em – let’s find a warmer place and ship Davos Man there. Better for them. Better for us. Less hot air, too.

Environmental Activists Resume 'Sue-and-Settle'

As President Biden readies his breathtakingly irresponsible pledge to double the United States’ commitments  under the doomed Paris climate treaty, nineteen public interest groups have sent joint letters to Republican House and Senate leadership calling for an investigation of, and and an all-out effort to block Biden’s end-run around Congress to impose the Green New Deal through a regulatory backdoor.

The move, uncovered by chance in open records requests, contains the worst elements of Washington: bureaucrats cycling in and out of office, collusion with ideological activists and, when democracy slams the front door shut, find a backdoor “sue-and-settle” resolution.

This plan to exclude the people's voice and enable governmental overreach was developed over months between progressive state attorneys general and former career U.S. Environmental Protection Agency  attorneys and other staff now turned environmental activists.

They never stop, they never sleep, they never quit.

Their proposed method to circumvent Congress gets into the weeds -- a secondary National Ambient Air Quality Standard (NAAQS) to reduce greenhouse gas emissions -- but would fundamentally transform the Clean Air Act into an unrecognizable and never intended framework for economy-wide decarbonization.

This has never been authorized by any Congress nor approved by any court. In fact, this plan came about precisely because of past legislative and judicial rejections. It was first revealed in public records obtained by Energy Policy Advocates from state AGs. Emails reflect months of scheming, which scheme quietly became public in a lawsuit filed in the D.C. Circuit federal court the day before Biden’s inauguration, State of New York et al. v. Environmental Protection Agency, et al.

On Energy Policy Advocates’ behalf, I filed a proposed amicus curiae brief in that case, informing the Court of just what is transpiring here. A Wall Street Journal editorial, “Biden’s ‘Backdoor’ Climate Plan,” captured the revelations:

To sum up, Democratic AGs, green groups and a top Biden environmental regulator are colluding on a plan to impose the Green New Deal on states through a back regulatory door because they know they can’t pass it through the front in Congress.

This is because the plan is at best a futile and costly gesture -- Alexandria Ocasio-Cortez's chief of staff was overheard confessing the Green New Deal isn't even about climate. The U.S. could shut down tomorrow, and it would never control global concentrations of carbon dioxide. The EPA likely cannot even impact them. It can only impoverish its citizens and benefit countries such as India and China all for no impact on the climate --  which is supposedly the objective.

When rumors floated early in the Obama-Biden administration that a similar greenhouse gas or “climate” NAAQS was in the offing, Obama’s first EPA Administrator, Lisa Jackson, publicly characterized the idea as not “advisable.” One prominent environmentalist group attorney, also seeking to quell controversy over the prospect early in the Obama administration, said, “hell will freeze over before there's a NAAQS for CO2.”

Ms. Jackson merely recognized the considerable political risk. Which explains such complicated legal maneuvering to sneak an economic transformation into the regulatory shadows.

The agenda has not grown in popularity since recent attempts to impose it through the front door, in the doomed 2009 “cap and trade” legislation which members of Congress made Nancy Pelosi promise in 2019 not to revive. The same fear was shown in 2020 votes on the “Green New Deal” legislation, in which every Senate sponsor cravenly voted “present."

The regulators in the shadows...

While the lesson of these debacles is that the American people know what they do and do not want, and what they did and did not vote for, Democrats instead concluded they needed to find a back door for their agenda.

The coalition letter asks Republican leadership to exercise their legislative and oversight authorities to examine and, if possible, impede what has emerged as a back-door campaign to an unpopular, unwise energy policy. It notes:

Ultimately, this plan seeks to weaken our nation’s ability to extract, transport and use our wealth of affordable, reliable energy resources—resources which are a vital driver of human wellbeing. From electricity for our factories and hospitals to locomotion for the cars, trucks, trains, and ships that move people and goods about the planet, affordable, reliable energy enables the modern standards of wealth and health we enjoy.

President Biden ran on, yet often downplayed, a promise of imposing these same policies. He calls climate an “existential crisis.” Biden, like Congress, surely welcomes the January 19 lawsuit by political allies, sparing him the political exposure of actually proposing the regulatory assault. His new EPA chief just spent two years plotting suing this agenda into existence and now he is in position to roll over and concede it into place.

While politically clever, this betrayal would be economically disastrous. So it had to be kept secret as long as possible. Once Energy Policy Advocates’ public record requests homed in on this scheme, AG offices broadly forced the group to go to court before releasing any further details.

A dramatic reset of the American economy merits scrutiny and, importantly, public consent. It is antithetical to the American system of government to allow parties to collude behind the scenes to transform our economy. This fleeting moment of radical government cannot be allowed to condemn Americans to years of energy rationing and brakes on economic recovery that will only be reversed after needless suffering.

Enemies of the People: China

Trouble in the Land of Enchantment

Throughout the 2020 presidential campaign, candidate Joe Biden was rarely left on his own to articulate his economic plan for recovering the pandemic-wounded economy. He and his surrogates so routinely punted on details of his vision for recovery that one might have mistaken them for the 2020 offensive line of the Dallas Cowboys…or worse, the Chargers. Those who voted for him presumed that any Biden plan would include job creation since jobs are foundational to any economic recovery... but even more so after a summer of BLM building-burning and pandemic-driven lock downs.

Oil and gas industry workers were particularly fretful about how a Biden administration would "Build Back Better" when Democrat hostility has underpinned every reference to their industry. They knew well that their industry would bear the brunt of whatever plan the administration eventually conjured up. After all, Biden had promised to end fracking during the second debate…a moment of inadvertent candor that created a momentary panic within his campaign.

By popular demand!

Within days of taking office, it was not job creation that illuminated his path to recovery. Instead, he presented a plan for cutting jobs…. lots of them. President Biden signed an executive order canceling construction of the XL Pipeline. Almost immediately 11,000 direct jobs are on the chopping block for elimination, with an estimated 60,000 additional indirect jobs that will potentially be eliminated. These are well-paying, blue collar jobs. The kind of jobs that represent real economic impact.

Then, days later, it happened again. The Biden administration announced another executive order that will cause further economic destruction. The order directs the Department of the Interior to suspend new oil and natural gas leasing on public lands and offshore waters, concurrent with a comprehensive review of the federal oil and gas program. According to the press release, the order "will help restore balance on public lands and waters, create jobs, and provide a path to align the management of America’s public lands and waters with our nation’s climate, conservation, and clean energy goals.”

Together these orders portend negative economic implications, reverse positive environmental trends and weaken national security by negatively affecting energy security of the U.S., an achievement of the Trump administration that unquestionably changed the geo-political landscape.

At the state level, the implications are grave. Wells on federal and trust lands account for about 20 percent of the nation’s oil production, and less of its gas output. However, the companies that own these leases pay taxes, based on production. These fees help fund millions of dollars of the budgets of a number of western states and Indian tribes including Wyoming, Utah and New Mexico where the federal lands are located. Of those states perhaps New Mexico and the Ute Indian tribe will be most negatively impacted by the second of these two Executive Orders.

New Mexico hardest hit?

According to the New Mexico Oil and Gas Association and the American Petroleum Institute’s (API) new analysis, there will be profound negative consequences for New Mexico if a ban on federal leasing and public lands takes effect. New Mexico, which accounts for 57 percent of federal onshore oil production and 31 percent of onshore natural gas production, is projected to lose more than 62,000 jobs by 2022 and more thereafter, This represents more than five percent of all the jobs in the state by 2030. With nearly 40 percent of the state’s budget funded by natural gas and oil production, a ban puts at risk more than $1 billion of federal revenue sharing which helps support New Mexico’s entire budget. New Mexico voters chose candidate Biden to be President Biden. If the oil and gas industry were a nose, the voters of New Mexico just cut it off to spite its own face.

Because of the Biden administration’s attack on U.S. energy production, the implications are also environmentally detrimental. Currently, the U.S. is a net exporter of energy. This was achieved by oil and gas extraction from shale. Natural gas has proven the driver of unprecedented lower emission levels. In fact, the levels have been so low, the Americans led emissions reductions when compared to the bloviating bunch of dooms day Paris Climate Accord signatories.

By removing the ability for the U.S. to produce domestic energy, two things occur. First, the use of coal, which had been on the decline in the U.S. will not end up being retired, as is the current plan. Next, coal generation, according to the API’s analysis, will initially increase by 6 percent under a permit ban, and will continue to increase by 15 percent in 2030. As a result, CO2 emissions will increase by an average of 58 MMT and will continue rising, ultimately representing a 5.5 percent increase by 2030.

Finally, there are the national economic impacts of the proposed permit ban. Immediately following implementation of the federal leasing restrictions, U.S. economic growth will slow. Lower U.S. energy production and higher energy prices will reduce GDP by a cumulative $0.7 trillion according to the API analysis.

It is clear that the Biden administration does not value U.S. economic superiority, nor the impact a strong economy has on our citizens. Instead, the administration seeks to weaken the country by undermining the most foundational element to innovation and economic vitality -- inexpensive and abundant energy, delivered by those working in the oil and gas industry.

Whether it's due to the political and financial debts President Biden and his family and many in the administration have to China, the influence of contributors and environmental extremists, or even more sinister motivations, doesn't matter. As an industry, we must defend our country against the madness of unmaking America. We must engage in the arena of ideas, engage in our state legislators to push back against these attacks and ensure it we drive our own narrative. There is not “someone else” who will do it for us. We must do it on behalf of this great country… to save our industry and save our county.

Biden to Execute Keystone Pipeline via E.O.

The Biden campaign's strategy was to hide their candidate in the basement while letting a fawning press make the case for him as president. This case was short on substance and long on impression, particularly the impression that the former V.P. is a moderate, working-class guy and a statesman who would restore America's reputation in the world and restrain the Bernie Sanders/Elizabeth Warren/AOC wing of the party.

Well, with the election over Biden's priorities are starting to become clear. They are anything but moderate and, insofar as they unnecessarily antagonizing one of our closest allies, neither are they statesmanlike.

This past weekend a memo written by incoming chief of staff Ron Klain was released which outlines the executive orders Biden plans to implement immediately upon taking over the White House. Highlights on this list -- which the Associated Press calls "a 10-day blitz of executive actions... to redirect the country in the wake of Donald Trump’s presidency without waiting for Congress" -- include immigration reform; a national face mask mandate (mandating that they be worn on all federal property and "during interstate travel," whatever that means in practice); and an extension of the moratorium on evictions and foreclosures and the "pause" on student loan payments.

Among the memo's most consequential items is the bullet point which reads "Roll back Trump enviro actions via EO (including rescind Keystone XL pipeline permit)." That is, on his first day in office tomorrow Biden plans to employ the "pen and phone" tactic to kill a multimillion dollar international project that employs tens of thousands of people (in two countries!) in the midst of a pandemic-created recession. This is madness.

Canada vs. the Democrats.

Meanwhile, in Canada, the Trudeau government are scrambling to make the case that this move is unnecessary from an environmentalist perspective. Canada’s ambassador to the U.S., Kiersten Hillman, released a statement on Sunday saying "The government of Canada continues to support the Keystone XL project and the benefits that it will bring to both Canada and the United States.” She went on to stress that the Keystone project was more environmentally friendly than the one the Obama administration rejected in 2015:

Not only has the project itself changed significantly since it was first proposed, but Canada’s oilsands production has also changed significantly. Per-barrel oilsands (greenhouse gas) emissions have dropped 31 per cent since 2000, and innovation will continue to drive progress... Keystone XL fits within Canada’s climate plan at a time when our economic recovery is a top priority... there is no better partner for the U.S. on climate action than Canada as we work together for green transition.

Alberta Premier Jason Kenney took a slightly more aggressive tone, saying: "Should the incoming U.S. administration abrogate the Keystone XL permit, Alberta will work with [pipeline owners] TC Energy to use all legal avenues available to protect its interest in the project."

These appeals are unlikely to sway Team Biden, who are riding a wave of anti-Republican sentiment in the wake of the recent disturbance at the Capitol. They believe they have a window of opportunity to make some big, cost-free moves which will garner them goodwill with activists but will be forgotten by voters still focused on the Trump show.

This could well be a miscalculation on their part. The issues which gave rise to Trump in 2016 won't go away when he does. And the most important of those, the alienation of America's working class since the end of the Cold War, will be aggravated by virtue signaling environmentalist moves like the cancelation of Keystone.

Child Soldiers of the Revolution

Despite her best efforts, all's been quiet on the Greta Thunberg front during the Covid-19 pandemic. The problem is that her I'm-sacrificing-my-education-to-travel-around-saving-the-world schtick doesn't go down so well when international travel is restricted and lots of kids are locked out of schools by government order, not to mention selfish teachers unions.

Even so, Greta has pioneered a practice which we can expect to see more of -- using children as human shields in the climate war. The idea is that their emotional appeals will tug at the heart, and fog the mind, until any attempt to engage their arguments is met with horror and reproach.

For just one example of Greta's progeny at work, see this report about a judge in Ontario who defied recent federal court precedent to allow a lawsuit brought against the province by two minors (and five "youths") to go forward. The suit alleges that "the Ontario government’s 2018 reduction in its climate-change target by 15 per cent violates their constitutional rights to life, liberty and security of the person."

Retired litigator Andrew Roman comments,

The exploitation of children to front a lawsuit in this way is ethically troubling. If this case goes to trial and sets this dangerous precedent, why not have children in Calgary sue to set aside the carbon tax or the Clean Fuel Standard or Ottawa’s hyper-regulatory Bill C-69 because they kill any prospect of their employment in the oil industry and thereby infringe their constitutional rights? It does not take a lot of imagination to invent such misuse of children for numerous future cases that are essentially political theatre.

Of course, as the mainstream media has a near monopoly on framing cases like this in the popular mind, you can imagine how they would portray any child who brought forth an anti-Carbon Tax lawsuit on these grounds -- as a poor dupe being cynically manipulated by some adult with an ideological ax to grind. And they might well be right. It's just unfortunate that they promote such cynical manipulation of children when it's their own ideology on the line.

Biden's Deadly Plan for American Energy

It’s perfectly understandable for anyone concerned about energy production in the U.S. to be uneasy that Joe Biden appears to be winning this year’s contest for the White House. Whether he makes it to 1600 Pennsylvania Ave. remains in doubt, but what is not in doubt is that, should that happen, he would have no substantial mandate.

The climate change part of the  platform--like much of his party’s platform--seems to have little purchase among other than the coastal bien pensants and the leftwing corporatists dreaming of yet another boondoggle financed by the taxpayers on the same pie in the sky swindle as was Solyndra and California’s train to nowhere. Of course, my ability to read the future is limited, but let me explain why I think much of what Biden has promised the far left of his party to secure the nomination and their support, is unlikely to take shape.

At the moment the election in six states is still either still being counted, being challenged in court, or subject to recount. Excluding those states, President Trump leads Biden 232 to 227 in the Electoral Vote totals. (270 electoral votes of 538  are needed to win the electoral college vote in January).

It is impossible in this fast changing circumstance to keep track of all the litigation challenging in the various state run elections. So far this compendium by OSU seems the most accurate. I’ve seen some of the complaints filed or about to be in Michigan and Pennsylvania and they include numerous credible affidavits documenting substantial illegality. If the Supreme Court meant it when they said this twenty years ago in Bush v. Gore, 531 U.S. 98, 105 (2000), I have to believe that the counts in both those  states simply to not meet the constitutional standard in Gore.

It must be remembered that "the right of suffrage can be denied by a debasement or dilution of the weight of a citizen's vote just as effectively as by wholly prohibiting the free exercise of the franchise." Reynolds v. Sims, 377 U. S. 533, 555 (1964).

If these recounts and challenges are not resolved by the December 14 cut off dat-, the House of Representatives can choose the interim president and the Senate the interim vice president until they results are certified by the states. In the House, the vote is by state and the Republicans hold the majority there, as they do in the Senate. If the matter is not resolved to the satisfaction of the state legislatures, they may under the constitution select their own slate of electors. Republicans hold the majority in the legislatures of Pennsylvania, Georgia, and Michigan, the three states with the most electoral votes among the still disputed contests.

Given the uncertain outcomes, at this time it is preposterous to call Biden “president-elect.”

I was elected to what?

Nevertheless, there certainly is reason for concern in the Democratic platform Biden ran on. The platform reads like a prose version of the Russian film “Battleship Potemkin” substituting only the film’s motif of all forces of the population joining hands in revolution with everyone joining hands to keep the climate from changing. (It misses only scenes of fracking and gas rigs shooting at wounded veterans and orphans.) Among the specifics are these:

The program specifics are even more sophomoric and fanciful, involving retrofitting buildings, setting even higher emissions standards for cars and trucks, including 500,000 school buses, and more in a program “to ensure racial and socioeconomic equity in federal climate, energy, and infrastructure programs.”

(My guess is this was written somewhere else besides California which the document says should  again be allowed to set its own vehicle emission standards. I say that because rolling blackouts related to a similar set of juvenile energy policies  in that state’s programs would seem to put something of a leash on these overweening goals.)

Biden also has pledged to kill the Keystone pipeline. On that score, Alberta Premier Jason Kennery indicates confidence he can change Biden’s mind, and perhaps he would be successful -- pledges from Biden do seem to have a short life span. He promised during the debates that he would not claim victory until all the state contests were certified. He already has done so  when we are far from that point. 

He’s also promised  to crack down on “climate cheats” whoever they are; push the world on climate change, and invest $1.7 trillion to reduce global warming. At the same time his team is advocating further coronavirus  lockdowns and payouts to those unemployed because of them.

Now I could be wrong. He could have a secret invention to generate trillions of new dollars and is keeping it secret along with a never-revealed way to fuel this economy without fossil fuels, but I’m suspicious of the ability to fund these grandiose plans or carry the platform’s promises  out. 

Even if he were crazy enough to try it, he will do so without a great deal of support. At the moment the Democrats are hanging on to an even thinner majority in the House, having lost a number of seats they expected to win, and jeopardized more who in these weird times are labeled “moderates”.

The party is splintered and recriminations against the left are legion. It seems increasingly likely that the Blue Wave the media promised didn’t materialize and in fact a Red Wave washed a lot of the Democrats out to sea. There will be at least 50 Republican Senators in the Senate with the likely prospect of two more once the Georgia runoffs are complete in January.

Without a majority in the Senate Biden can’t revoke the industry-friendly fuel tax; he can’t restore or expand the federal tax credit for purchases of electric vehicles, he can’t repeal the Halliburton provision permitting fracking in Safe Drinking Water Act  he can’t amend the renewable fuel standard post-2022, he can’t alter the Jones Act, and he can’t change the the carbon price, etc.

Have they called a lid yet? It's past my bed-time.

Some have suggested he can  achieve these goals simply through executive orders, and there are a few things he can achieve via this route, beginning with an area in which he has the freest hand -- rejoining the Paris climate agreement. Some of the others, more troublesome to be sure, are regulatory actions like blocking oil and gas drilling on federal lands, allowing California to set independent standards for auto emissions and fuel economy, restricting access to low-cost capital for the fossil fuel industry, and setting fuel economy standards. For these,  judicial and public resistance are greater checks on his authority. 

Chief Justice Roberts has displayed a penchant for fine-tooth-combing executive orders and rejecting them . The public  -- reeling from the devastation of the lockdowns, pleased with lower gas prices and anticipating a continued v- shaped recovery -- are likely to find Biden's extremism unwanted and make their opposition known.

Biden may squeak out an election victory. If so, it will have been a Pyrrhic one.

We Really Might Always Have Paris

It now appears  possible, should Joe Biden win the upcoming election, that as soon as January the United States will rejoin the 2015 Paris climate agreement, which commits us to adopt the “Green New Deal” agenda (now rebranded for political purposes as “Net Zero”).

This will not be accomplished by Senate ratification, but by the ‘pen and a phone’ approach first used by President Obama to claim U.S. “ratification” of what is on its face and by its history a treaty, needing approval  by a two-thirds Senate vote. President Trump withdrew from Paris — effective on election day, by chance — without subjecting Paris to the death of a Senate vote. As such,  it can be revived this way. 

This poses a grave threat, because claiming to “re-join” the Paris climate treaty will immediately subject U.S. energy policy — and thereby its economy — to a U.N. “climate conciliation commission."

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Already developed nations' courts and politicians are, respectively, invoking the Paris climate treaty to block infrastructure development, and raise taxes.  The United Kingdom’s Court of Appeal ruled earlier this year that Heathrow Airport cannot be expanded because that would violate the U.K.’s ‘net zero’ commitment under Paris. In Ottawa, “The parliamentary budget officer says the federal carbon tax would have to rise over the coming years if the country is to meet emission-reduction targets under the Paris climate accord.”

Now we are reminded that the U.S. can also expect a forum for antagonistic nations to bring their complaints about U.S. policy and claims of non-compliance with Paris’s required “Net Zero” agenda for resolution.

I was misinformed.

Recall first that the Paris agreement as originally circulated contained a climate tribunal, or court. This was dropped after being noticed outside of polite circles. Nonetheless, U.S. compliance with the Curate’s Egg that is Paris — oh, there are some parts that aren’t legally binding — is subject to the terms of the 1992 UN Framework Convention on Climate Change [UNFCCC], ratified by the U.S. Senate on the condition that it was and would remain non-binding (which is stated nowhere in its terms, although it uses “shall” 118 times).

This brings us to a newly released (in part) memo — “Request for Authority to Sign and Join the Paris Agreement, Adopted under the [UNFCCC]” — obtained in Freedom of Information Litigation by the transparency group Energy Policy Advocates. This memo reaffirms that Paris is the result of “a 2011 negotiating mandate (the “Durban Platform”).” The Durban “mandate” was to “adopt… a protocol, another legal instrument or an agreed outcome with legal force at the twenty-first session of the Conference of the Parties and for it to come into effect and be implemented from 2020."

That of course is Paris, the crushing provisions of which are found in Article 4, emission reduction promises. Art. 4.3 requires that the U.S. revisit and tighten its reduction promises every five years. That would cleverly make this the climate treaty... sorry, “accord”… to end all climate treaties. It commits the U.S. to ever greater "climate" policy restrictions, every five years, in perpetuity.

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UNFCCC declares, in Art. 14, “Settlement of Dispute”, that disputes claimed by one party against another, if not resolved, “shall be submitted, at the request of any of the parties to the dispute, to conciliation,” specifically, “[a] conciliation commission shall be created upon the request of one of the parties to the dispute.”

Expect it to play out as follows. Not China, but a proxy will assert it has a dispute with U.S. compliance with its Paris promises, and demand the creation of a conciliation commission. 

It is likely that this will be one of the small island nations that, although building airports like mad (see, e.g., Maldives) are aggressively promoting "climate" transfer payments to help them deal with their fate as a climate-change caused Atlantis.

Of course they would have to squeeze this in between dignified maneuvers like underwater cabinet meetings and hysterical, scolding speeches not to mention managing a construction boom to accommodate Western tourists.

Paris requires, and mandates the U.S. revisit and tighten Green New Deal-style policies every five years. This is among the many reasons why the Paris climate agreement is a treaty, and also why it  would never have been ratified. However, very soon, Americans may nonetheless be subject to its long-envisioned climate court.

Claims that are sure to arise, then, include that the U.S. hasn't adopted sufficiently aggressive policies to meet its first Paris promise, then that the U.S. isn't tightening its promise sufficiently as is required every five years. 

The Germans wore gray, you wore blue.

At any time a conciliation commission might be demanded to oppose the infrastructure binge that the two major party candidates for president have promised. And yes the Heathrow case showed that just one major transport-related project, say a major airport, seeking to expand, would be subjected to seemingly hare-brained — yet ultimately successful — litigation on the claim that it's incompatible with the resumed Paris commitments.

Like Paris itself, we are told, the Climate Conciliation Commission’s rulings are “non-binding” (see Airport, Heathrow). We shall see. For now, it is not open to dispute that any U.S. president who claims to “re-join” the Paris climate treaty will subject American energy and thereby economic policy to a U.N. climate “conciliation commission."

Federalism On Trial in Canada

With all of the focus on the U.S. Supreme Court last week, it’s interesting to note that Canada’s top court found itself at the center of that nation's national drama at exactly the same time. The Supreme Court of Canada held a two-day hearing on the Trudeau Government's federal carbon tax scheme. And the stakes for the nation as a whole, and the nature of Confederation, are potentially quite high.

You’ll recall that Trudeau’s Liberals, appealing to Canada’s Paris Agreement commitments to drastically reduce the nation's carbon emissions, passed a law nearly two years ago which forced a carbon tax on provinces that didn't already have one of their own. The law has been described as a “backstop," which is to say it requires provincial and territorial governments to put a price on carbon that meets minimum standards. Provincial governments can choose how to meet this benchmark, but they have to do something, and if their proposals are deemed insufficient, Ottawa will impose one on them directly.

From the beginning, Canadian conservatives -- especially Brad Wall and Scott Moe of Saskatchewan, and Alberta premier Jason Kenney -- have stood firmly against the law. They've argued, first, that the carbon tax is bad for Canadian consumers and industry, and second, that it is an unconstitutional usurpation of provincial authority.

The first of these points was put before the voters in last year's election, contributing to the Liberal's losing the their majority (along with, for what its worth, the popular vote), while maintaining a minority government. Meanwhile, the second point has been put to the test before three provincial appellate courts thus far, those of Alberta, Ontario, and Saskatchewan. In split decisions from each, the courts of Saskatchewan and Ontario found the law to be constitutional, while that of Alberta held that it was not. The appeals of those decisions is what is now being considered. 

Carbon pricing is not the only available option.

Unlike the American Constitution, whose 10th amendment stipulates that any power not specifically delegated to the federal government automatically falls under the purview of the states, Canada's Constitution Act of 1867 details which "matters" fall under federal jurisdiction (s. 91) and which under provincial jurisdiction (s. 92). Of course, constitutional grey areas arise when the “matter” wasn't an issue at the time of Confederation (carbon taxes, for instance) and is therefore not assigned to federal or provincial power.

Moreover, Canada's constitution does grant the federal government “residual powers” to pass laws for peace, order, and good government, in emergency situations or for matters of national concern. Supporters of Trudeau's carbon tax argue that it falls under the latter.

Consequently, the court must classify this matter as falling under either federal or provincial jurisdiction, and in so doing answer the question of whether the reduction of greenhouse gas emissions qualifies as a matter of national concern such that it justifies the implementation of a federal carbon tax, and in the way the Trudeau government has chosen to implement one.

Interestingly, counsel for both sides admitted that carbon pricing is not the only available option. A suite of pricing and non-pricing policy measures is at the provinces’ disposal to address this issue.  Several provinces have already put their own carbon pricing measures into place, which lends support to the argument that the federal carbon tax intrudes on provincial jurisdiction. In fact, one of the criteria of the national concern doctrine is "provincial inability," which holds that if the provinces don't have the jurisdiction to act in a matter that has extra-provincial effects, then the door is open for the feds to step in.

But the limiting factor of provincial inability is an important part of this debate. Does it refer only to constitutional inability -- that the jurisdiction to act is lacking; or is it a practical inability -- that is, that the political will to act is lacking. My reading of the relevant jurisprudence and Canadian history suggests that it is the former. As you would expect, however, counsel for the government took the opposite position, while arguing that precedent was split between the two. Even so, common sense seems to land on the constitutional side. Not acting on an issue can be an intentional choice. If the federal government can step in and legislate simply because a province has not done so -- in the case of a carbon tax --  this turns our whole understanding of federalism on its ear.

And -- a related point -- the very fact that the law is structured as a backstop, both implies that it is firstly the prerogative of the individual provinces to act, and makes a farce of federalism by penalizing provinces who act contrary to the will of the federal government.

And, listening to the hearing, it is clear that fear of being seen to support climate skeptics weighed on the justices. Justice Russell Brown made it a point to stress the issue is not whether the federal government can regulate greenhouse gas emissions but whether how it has chosen to do so is constitutional. Justice Rosalie Abella noted that the provinces “do not have plexiglass at their borders” to keep out greenhouse gas emissions. Justice Michael Moldaver expressed concern that if one province “goes rogue” and takes no action that would moot the efforts of the others.

At the same time, Justice Malcolm Rowe voiced serious concerns from the other side of the spectrum. Throughout the hearing he reiterated the danger of the law creating “winners and losers," punishing industries that use larger amounts of energy. Counsel for the appellants agreed with this view, suggesting that the law gives undue discretion to the federal cabinet to set sector-by-sector emissions costs, and thereby represents an unprecedented "federal power grab." 

The hearing has now concluded, and we will probably have to wait several months to find out which way the Court will rule. Its decision will likely affect the relationship between federal and provincial governments going forward, and at a time when the tension between them is shakier than its been in decades. I'm hesitant to guess which way they will go, though I often have occasion to think of the wise words of a professor of mine, speaking in an American context: "Never trust the Supreme Court to make the right decision."

But the justices would do well to remember two things. First, that their role is simply to faithfully interpret the constitution, and not to meddle in political questions or ensure particular policy outcomes. And second, that federalism cannot be a fair-weather friend. It is the bedrock of Canada’s constitutional structure and the courts must weather this commitment through any storm. We might not always like the outcome these two require, especially in hard cases. But as the appellants' counsel put it, “That’s federalism and that’s democracy.”

Trudeau Loses Bid for Security Council Seat

I must say that I find this hysterical:

Canada loses bid for seat on UN Security Council

The Liberal government lost a four–year bid for a UN Security Council seat Wednesday, a humbling experience after a high-profile campaign led by the prime minister. Canada finished third, behind Norway and Ireland in the race for two seats on the Security Council. After the vote Justin Trudeau... said it had been a worthwhile exercise. “We listened and learned from other countries, which opened new doors for cooperation to address global challenges, and we created new partnerships that increased Canada’s place in the world,” he said.

Uh-huh. As if, had it gone the other way, we wouldn't all have been subjected to the incessant bleating of "Canada's back!" from the loyal Trudeaupians in the Canadian media, like Rosemary Barton?

Now, as Matt Gurney points out, Canada's losing this contest doesn't really matter. Unless...

Unless you count the millions of public dollars that Trudeau eagerly spent in campaigning for the seat. And the fact that he compromised Canadian principles, breaking a longtime pattern of not supporting anti-Israel resolutions at the UN while sweet-talking some pretty unsavoury world leaders in an attempt to win their votes. Not to mention the vast government resources he marshalled in pursuing his vanity project, even as Canada was dealing with a pandemic crisis of historic proportions.

Which is to say, Trudeau expended a lot of political and actual capital to demonstrate that he's beloved throughout the world and he ended up with egg on his face.

Even funnier, remember last week when we discussed Greta Thunberg's letter encouraging the UN electorate to lean on Canada and Norway for emission reduction concessions in exchange for votes? If it was actually leaned on, Norway has apparently ignored it, as it's just announced that they are full steam ahead on oil production since the price-per-barrel is on the rise.

What's next for Justin? Well, he'll probably get back to kicking the oil and gas industry for a bit, to vent some frustration. And then maybe he'll turn his focus to a snap election in the fall. Hopefully the Conservatives will have an actual leader by then.