Climate Policy in a Binary World: Uttering and Other High Crimes and Misdemeanors
Under common law, uttering is when a person offers as genuine a forged instrument with the intent to defraud.
The new Republican line in Congress is they accept climate change as real and are on board with efforts to curb harmful emissions and combat Earth’s warming. I don’t mean to be rude, but it’s a lie.
I take no pleasure in saying congressional Republicans—for the most part—are guilty of uttering untruths. Moreover, I recognize that all Republicans are not climate deniers, just as all Democrats are not environmental defenders.
I want to be clear about where I stand on bi-partisan action because what I’m about to say will sound like I’m painting all Republicans with the same brush. It’s not my intention.
I have great respect for Republican members of Congress like Senators Murkowski (R-AK), Collins (R-ME), and Romney (R-UT), as well as Representatives Kinzinger (R-IL), Cheney (R-WY), and Upton (R-MI).
Take note that my respect is not because I agree with all of their policy positions. I don’t. I respect them because of their integrity and understanding of how fragile democracy can be and the need to defend it at all cost.
I readily admit that I’m a liberal in the mode of President Biden. I am of an age and experience that believes government works best when it works collegially—or at least tries to, honorably.
I recoil at the tribalism of today and the intolerance it breeds. I question any culture with so little faith in itself that it is unwilling to broach any subject that might make it uncomfortable.
BUT—I believe there are times and circumstances that call for digging your heels in and saying enough is enough! We—as a nation—are at that point, especially in climate matters.
I’m more than a mite suspicious about the willingness of former climate science deniers like House Minority Leader McCarthy (R-CA) to acknowledge the possibility that Earth’s rising temperature is not a good thing. The truth of it is McCarthy and many others in the Republican House caucus are saying climate change is real as a ploy to keep the nation largely on a fossil fuel standard.
My assessment isn’t based on their being Republicans. It is what they are proposing in response to what climate scientists are saying. Under the rubric The Right Climate Plan for America, they are offering some three dozen bills that in sum will make it easier for the nation to continue on the fossil fuel standard—with some nuclear thrown in for good measure.
I’m in perfect agreement with the website’s sub-heading that climate change shouldn’t be politicized or divide us. When the right policies protect our economy and jobs as well as our environment, America wins in every way. It’s just that I think it rings hollow when what they’re proposing in the 36 or so pieces of legislation has so little to do with either the science of climate change or the marketplace.
Three themes run through the Republican Climate Plan.
Unleash environmental innovation
Legislation under this title includes hamstringing President Biden in the nation’s return to the Paris Climate Accord. The PARIS Act requires the president to report to Congress before taking any action under the accord and allows Congress to block any presidential action. Why something like this is considered environmental innovation is unclear.
Other proposals under the innovation heading have to do with mining minerals, nuclear energy, and carbon sequestration. The group of actions also implies support for basic scientific research and technology development .
Clean energy infrastructure
Here there are several pieces of legislation on nuclear. However, most of the proposals are about making it easier to use natural gas, including through the permitting of pipelines like the Keystone XL and Dakota Access Pipeline.
Proposals also include limiting a president’s ability to ban fracking on federal lands and modernizing the National Environmental Policy Act’s (NEPA)requirements to prepare environmental impact assessments and studies. The Act was put on the books by the Nixon administration—with the full-throated bi-partisan support of a Democratic Congress.
The Act remains one of the cornerstones of the nation’s environmental protection framework. Could NEPA requirements be made more efficient? Yes, they could.
Do the Republican proposals maintain the level of protection in the current Act while streamlining the process? No, they don’t. At the least it’s unlikely.
I say this because the bill’s intent appears to be putting in place the procedural changes proposed by the Trump administration that wouldn’t pass legal muster. Like many other Trump administration proposals, its changes would defeat the Act’s purpose by making it easier for an administration to do shoddy work.
The Trump administration proposed over 100 changes to federal environmental regulations. No administration was sued more. None lost more. The Trump administration lost 80 percent of its cases generally for reasons having to do with the belief that a president has unfettered authority to do as he pleases.
The legislation under both the innovation and infrastructure titles is intended to limit President Biden’s efforts to put the nation squarely on a path to decarbonize the economy. I have to wonder what the sponsors and supporters of the Republican plan would do if Trump were to return to the Oval Office with a Democratic Congress. Would they cry foul if Congress used its powers under this legislation to curb Trump’s enthusiasm to open wide the fossil fuel spigots?
Natural solutions and conservation
The policy area where I think Republicans and Democrats have the best chance of cooperating comes under the Natural Solutions heading. The proposals here focus on reforestation, forest management, soil management, research, and partnership projects between the public and private sectors to assist the economic development of agricultural and mining communities.
I would note, however, that natural solution projects should be as subject to environmental impact assessments and studies as any other project that involves the federal government. Reforestation, utilization of crops and croplands as carbon sinks, adaptation, and resiliency are all actions that impact existing ecosystems. Simply calling something a “natural solution” is not to say that anything goes.
Some years ago, I was living in a rural area on the side of a hill. My neighbor, whose house was above mine, built a pond. He had two objectives: catching runoff to cut down erosion in his front field and attracting wildlife.
In building his pond, he decided to run his overflow pipe in my direction. Predictably when it rained, his water flooded my garden. We almost came to blows over it. His reasoning was water runs downhill, and it wasn’t anything that I didn’t have to deal with before the pond was built.
Except it was different. The water flowing into my garden was now constricted and gushed with abandon. It turned out he never applied for a permit, nor did he submit an environmental assessment as required by the county.
Once I called the county and threatened to sue, he was more amenable to fixing the problem rather than risk having to tear out the pond. The fix was simple. All he had to do was run a longer pipe into his existing drain field.
Natural or not, the best-intentioned projects can cause trouble for the folks further down the mountain. Even Representative Westerman’s (R-AR) trillion tree initiative can’t properly be done without an initial assessment of its environmental impact. For example, reforestation with species not native to the area could turn into a nightmare. Think kudzu vines and pythons. A trillion trees of the same species open the possibility that blight would run like fire through the forest.
It is telling that the Republican Climate Plan doesn’t bring solar or wind into the conversation except perhaps under the mining and mineral proposals or as part of the NEPA streamlining. Lithium and other metals are essential to today’s technologies.
The nation is faced today with a binary world. Grey no longer seems to exist. Things are either this, or they’re that—a Republican or a Democrat, a progressive or a populist.
Ten years ago, it may have been a pipedream to power the nation with clean energy technologies. According to the Energy Information Administration, solar and wind will account for 70 percent of the new electric generating capacity in 2021.
Are solar and wind perfect technologies? No, they’re not. Improving them means new storage and battery technologies. New technologies, including carbon capture and sequestration, will drive the 21st-century economy.
The nation doesn’t need a series of laws to commit it further to fossil fuels. What it needs is a measured and just exit strategy that will replace them with clean alternatives.
It is difficult to believe that the majority of congressional Republicans are serious about seeking bipartisan solutions when Mitch McConnell unabashedly says he is 100 percent focused on stopping the Biden administration.
Stopping it from what? If recent actions are any example from everything—from mask-wearing to protecting the nation’s environment and responding to climate change.
It is hard to believe House Republicans are earnest about their climate concerns and willingness to work across the aisle and introduce legislation called one thing but doing another.
Of all that I find difficult to believe these days are the protestations of the majority of congressional Republicans who swear an oath to the Constitution and continue to question whether the 2020 election of President Biden was legit.
What I do believe in is the necessity of preparing the nation for what lies ahead, knowing what we now know about the causes and consequences of climate change. If that means acting unilaterally, then so be it.
 Note some of the linked legislation under all the headings lacks any detail, e.g., bill text or summary, are given.
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About the author
Joel B. Stronberg is a senior executive and attorney and the founder and principal of The JBS Group, a Washington, DC consulting firm. Joel is currently advising the Legal Pathways to Deep Decarbonization project at Columbia University’s Sabin Center along with his other clients.