Nuclear Power and Preemption under the Atomic Energy Act: Is a New Era Dawning?

Posted on January 23, 2019 by Shane Swindle

The Supreme Court recently heard argument in Virginia Uranium, Inc. v. Warren, a case concerning the scope of preemption under the Atomic Energy Act (AEA).  Based on the questions several justices asked at argument, the Court could be poised to issue a ruling that would allow states to enact new constraints on the generation of nuclear power, even if motivated by nuclear safety concerns that fall squarely within the scope of AEA preemption.

Back in 1983, in Pacific Gas & Electric Co. v. State Energy Resources Conservation & Development Commission, the Supreme Court held that the Atomic Energy Act (“AEA”) “has occupied the entire field of nuclear safety concerns,” and that a state law that is “grounded in [radiological] safety concerns falls squarely within the prohibited field.” And a few years later, in English v. Gen. Elec. Co., the Court held that “the pre-empted field” under the AEA is defined, “in part, by . . .  the motivation behind state law[s],” and specifically whether those laws are animated by concerns regarding radiological safety.

Looking beyond the neutral language of state statutes and beyond the purposes put forward by state legislatures and regulators, lower federal courts have struck down a wide range of state statutes as preempted by the AEA. In Entergy Nuclear Vt. Yankee, LLC v. Shumlin, for example, the Second Circuit struck down a Vermont statute that required state legislative approval to build a nuclear power plant, even though the statute purported to regulate the generation, sale, and transmission of electric power. Noting that courts do not “blindly accept the articulated purpose . . . for preemption purposes,” the court considered “the legislative record” and found “references, almost too numerous to count, [that] reveal legislators’ radiological safety motivations and reflect their wish to empower the legislature to address their constituents’ fear of radiological risk, and belief that the plant was too unsafe to operate.”  Other circuit courts similarly have looked beyond facially-neutral statutory language to find statutes preempted in cases addressing transportation of spent nuclear fuel and storage of radioactive wastes.

This approach to preemption under the AEA may be about to change. The Supreme Court heard argument on November 5, 2018 in Virginia Uranium, Inc. v. Warren and will decide whether Virginia’s ban on uranium mining on private land is preempted by the AEA. As reported on the SCOTUSBlog, multiple justices questioned whether the Court should look beyond the language of the statute at issue to consider the legislature’s motivation.

The nuclear power industry already faces many obstacles to increasing generation of nuclear power. If the Supreme Court holds that courts may not look behind the language and stated purposes of state statutes, the nuclear industry may also face the prospect of non-uniform, checkerboard regulations across the country, as states use their newfound authority to preclude or sharply limit nuclear power production within their borders.

Transnational Environmental Accountability an Elusive Goal

Posted on January 22, 2019 by Robert Percival

Holding multinational companies accountable for environmental degradation resulting from resource extraction in developing countries has proved elusive, despite efforts by the international community. As described below, law students at the University of Maryland are working to address the problem.

At the 1972 UN Conference on Environment and Development the nations of the world pledged to develop “international law regarding liability and compensation for the victims of pollution and other environmental damage caused by activities within the jurisdiction or control of such States to areas beyond their jurisdiction.”  But scant progress was made in achieving this pledge as illustrated when no liability was imposed or compensation paid for widespread transboundary damage caused by the 1986 Chernobyl nuclear accident. Despite a pledge in the 1992 Rio Declaration to "co-operate in an expeditious and more determined manner to develop further international law regarding liability and compensation” for transboundary pollution, effective remedies have not been developed.

Developing countries have struggled to develop their own legal remedies for harm caused to their environment by the resource extraction activities of foreign corporations.This is well illustrated by the decades-long litigation over oil pollution in Ecuador allegedly caused by a U.S. company during the 1970s. In 2011 a court in Ecuador held the U.S. company liable for $9 billion in damages and cleanup costs. While this decision was upheld by the Supreme Court of Ecuador, the plaintiffs have yet to be able to collect on the judgment due to manipulation of corporate structures in countries where the oil company holds assets.

A RICO judgment obtained by the oil company against the plaintiffs’ lawyers has been used to promote a narrative that the litigation was a fraudulent shakedown from the start. But the inconvenient truth undermining this narrative is that the litigation initially was filed in federal court in New York and transferred to the courts of Ecuador only at the urging of the U.S. oil company.

The Ecuador litigation initially was brought in the U.S. under the Alien Tort Statute (ATS), a law enacted by the first U.S. Congress in 1789 that expressly authorizes suits in federal court by foreigners for torts committed “in violation of the law of nations.” But in Kiobel v. Royal Dutch Shell a narrowly divided U.S. Supreme Court in 2013 rejected claims by Nigerian environmentalists by adopting a presumption that the ATS does not apply to conduct occurring outside the U.S.  

Although the UN Human Rights Council has begun negotiations toward drafting “an international legally binding instrument on transnational corporations and other business entities with respect to human rights,” for now prospects for improving accountability depend largely on developing countries improving their own legal remedies.

As multinational corporations have intensified their efforts to exploit natural resources in developing countries, their activities often have caused severe environmental harm and intense conflicts with local populations. Massive infrastructure projects associated with China’s “Belt and Road” initiative have saddled some of the world’s poorest countries with monumental debt obligations that are exacerbating conflicts between the developed and developing worlds. Although the Chinese government has pledged to promote a “green Belt and Road,” Chinese companies operating in the developing world often do not understand or simply disregard local environmental laws and regulations. 

The University of Maryland Carey School of Law’s Environmental Law Program recently launched a Transnational Environmental Accountability (TEA) Project. The project is under the direction of Zhang Jingjing, an award-winning public interest environmental lawyer, who has spent years monitoring the environmental performance of Chinese companies in the developing world.  For nearly a decade before moving to the U.S., Zhang was the litigation director of the Beijing-based Center for Legal Assistance to Pollution Victims (CLAPV) where she won several landmark environmental cases in Chinese courts.

Last July Professor Zhang appeared in court in Cuenca, Ecuador to support the efforts of the Kañari-Kichwa indigenous communities to stop a Chinese company from mining in Ecuador’s Cajas Nature Reserve.  Zhang argued that Chinese law requires companies to abide by both international treaties signed by China and domestic law in the countries in which they operate. In a historic decision in August the court in Cuenca agreed and upheld an order that the Chinese company halt all mining activities. 

Working with Professor Zhang and Professor Seema Kakade, director of Maryland’s Environmental Law Clinic, Maryland law students are helping to assist NGOs in holding multinational corporations accountable for environmental harm they cause in Africa, South America and Southeast Asia.  The Africa team is focusing on Chinese investments in Guinea, including a bauxite mine and a proposed oil refinery. One of the poorest countries in the world, Guinea has one third of the global bauxite reserves and is China’s number one bauxite provider. In June 2019 a team of students from the Maryland’s law school and School of Nursing will travel to Guinea to assist NGOs in documenting the impact of mining on local villages.

In many developing countries bribery is a serious problem undermining enforcement of environmental law.  In July 2017 I took a group of Maryland students to Malawi to assist the University of Malawi’s new Environmental Justice and Sustainability Clinic.  In Blantyre we met with a local NGO whose members complained that officials approving a Chinese company’s construction of a railway arrived at an important hearing in new luxury cars apparently given to them by the company. 

Both the U.S. and China have laws that prohibit companies from bribing officials in foreign countries. To its credit, the Trump administration is beefing up enforcement of the Foreign Corrupt Practices Act (FCPA) and targeting Chinese companies who may run afoul of it.  China has yet to bring any actions to enforce its laws prohibiting bribery of foreign officials, but Chinese environmentalists are hoping eventually to persuade their government to do so.

Maryland students will participate in a conference in China in summer 2020 to help educate Chinese companies on how to comply with the environmental laws in developing countries.  Ultimately transnational accountability will be enhanced when there is greater respect for environmental law and the importance of the rule of law in the developing world.

Ode to Angus: The Macbeth Report

Posted on January 17, 2019 by Scott Fulton

In the Summer of 2017, ELI undertook a special project in memory of our dear departed colleague Angus Macbeth. We did so with support, encouragement, and input from across the ELI and ACOEL communities and in cooperation with the Environmental Council of States (ECOS). Angus was the friend of many, but was also one of the great leaders in environmental law, a former president of the college, and a long-time supporter of ELI. As Angus played no small role in the construction of the system of environmental protection as it exists today, and was also relentlessly committed to the pursuit of new ways to deliver environmental quality, we settled on cooperative federalism as the project topic. The Macbeth Dialogues sought to bring together leading experts to discuss the federal-state relationship in the environmental sphere, in hopes of shining a light on law and policy solutions for optimizing the configuration of governmental roles.

Under this project, we convened a Chatham House Rules gathering of current and former senior state and federal officials, many of whom had worn both state and federal hats. We also convened several dialogues with a broader array of stakeholders and did some rather extensive surveying. The resulting report, The MacBeth Report: Cooperative Federalism in the Modern Era, is, I believe, one of the more thoughtful pieces on cooperative federalism that has been rendered. Let me highlight some of the report’s key contributions.  

As the report reflects, there is considerable support at this juncture for giving states with demonstrated capabilities greater independence and flexibility in running delegated environmental protection programs; but even enthusiasts for greater state primacy consistently agree that EPA must continue its leading role in developing national standards, conducting scientific research, and governing on interstate issues.

The report reveals broad support for flexibility for states in meeting minimum national standards, setting more stringent standards, and in enforcing delegated programs. Experts were more evenly split on state discretion to depart from national technology standards and compliance strategies as well as on primacy for criminal enforcement and environmental justice cases. But over 70 percent of those surveyed felt that the federal government should defer where states can do a better, or as good of a, job, and over 50 percent of respondents felt that EPA intervention in delegated states should be limited to circumstances of documented failure or when the state has provided inadequate resources.

With the traction of sustainability policies in the private sector, driven in part by shareholder and customer demand, the report also explores whether a parallel flexibility in government oversight of high-performing companies might be possible under the rubric of public-private parallelism. The report also considers the role that a citizenry — equipped with unprecedented amounts of environmental information and operating in a socially networked world — can play as a driver of environmental behavior going forward.

In terms of opportunities for adjustment or realignment, The Macbeth Report points to a number of options, including:

· Possible recalibration of compliance expectations under a concept of actionable noncompliance, which could serve to shift the threshold for enforcement intervention from an absolute compliance expectation to one that would allow certain types of exceedances to be timely self-corrected without enforcement implications.

· ECOS has recommended that EPA move to an audit system for oversight in lieu of matter-by-matter reviews. The report advises that auditing be first piloted in a few EPA regions and programs before broader deployment, so that the mechanics can tuned. Permitting decisions may a good place to focus such pilot projects.

· Recognizing the importance of the interstate dimension in defining the federal role, the report recommends that a formal structure be created to give downwind/downstream states a more meaningful voice in implementation decisions.

· The report generally recommends greater use of protocols designed to provide aggrieved states with a time-limited elevation opportunity prior to federal intervention.

· Given technology’s advance toward much more comprehensive, real-time understanding of environmental conditions, the report recommends that EPA and the states experiment with new approaches for framing compliance expectations, for example by using sophisticated fence-line monitoring systems to allow for considerably more within-the-plant flexibility.

This gives you a flavor, but there is considerably more there, so please give The Macbeth Report a look. Be sure to read again Steve Ramsey’s wonderful tribute to Angus, which we have embedded in the report. Many thanks to all who contributed to the thinking in the report, and, of course, a special thanks to you, Angus. 

EPA Calls for Market-Based and Collaborative Approaches to Achieve Nutrient Reductions

Posted on January 10, 2019 by Todd E. Palmer

Last month, the U.S. Environmental Protection Agency (EPA) and Department of Agriculture (USDA) issued a letter to their state counterparts highlighting plans to improve water quality and seek “meaningful reductions” in nutrient loadings to waterways. EPA and USDA leadership note that while progress has been made, national water quality data indicate that nutrient losses from agricultural lands continue to be widespread, especially in the Mississippi River basin. Moving forward, the agencies plan to identify further opportunities to address nutrient loadings from nonpoint sources, including non-regulatory conservation efforts and market-based programs.

The agencies’ recommitment to these topics should come as welcome news to the regulated and environmental community alike. Existing market-based solutions, such as water quality trading, have helped allocate limited resources toward technologies and practices with a lower cost per unit of nutrient reduction. EPA and USDA state that they have heard that additional regulatory flexibility in areas such as TMDL implementation may be useful in facilitating market-based strategies. EPA’s willingness to engage with stakeholders on how it can remove regulatory barriers to such efforts is commendable.

Perhaps even more significantly, the agencies indicated a desire to partner with local stakeholders to develop local solutions to nutrient-loss challenges. State and local partners are well-positioned to develop innovative approaches to reducing nonpoint source pollution that are both effective and responsive to local needs. For example, since Wisconsin adopted more stringent numeric phosphorous water quality criteria in 2010, municipal and industrial wastewater dischargers have improved water quality and realized compliance savings through one of several market-based phosphorous compliance options. Those options include water quality trading, as well as adaptive management and the phosphorous multi-discharger variance, where sources comply with interim limits and fund local efforts to reduce nonpoint source contributions. Strategies to amplify existing market-based solutions, including creation of a “clearinghouse” to facilitate trades and other compliance strategies, are also being discussed around the country.

EPA’s willingness to support and build on these efforts by evaluating regulatory barriers and providing technical and financial support for local efforts should open the door to innovative nutrient control strategies. Federal support for these efforts is also especially critical in the current farm economy, which finds farmers managing through a prolonged period of low commodity prices that may limit the resources available for voluntary environmental enhancements.

Trees have no tongues, but the Lorax has one

Posted on January 8, 2019 by Eileen Millett

Last month, in Cowpasture River Preservation Association v. Forest Service a panel of the 4th Circuit rejected the U.S. Forest Service approval of a pipeline development that would have crossed 21 miles of national forest land, and the Appalachian National Scenic Trial.   In scolding the Forest Service for not adequately protecting the trees, the court cited Dr. Seuss’ classic The Lorax, saying, “We trust the United States Forest Service to ‘speak for the trees,’ for the trees have no tongues.”  More on the case in a moment, but I find that quote to be particularly heartwarming.

Some years ago, when I left the tree lined streets of Ditmas Park, Brooklyn for the state capital, to join the New York State Department of Environmental Conservation, my boss presented me with a welcoming gift, though it was actually for my young son. The book was The Lorax with an inscription that read “Dear Elliott, ask your mommy to read this book to you and you will learn why she goes to work every day.”  The Lorax like Rachel Carson’s Silent Spring, reminds us that our birds, trees and natural resources, air, water had no one to speak for them, and needed to rely on us to protect them. 

Dr. Seuss’s book resonated with me in a huge way, since my house abutted the Albany Pine Bush, the home of the Karner blue butterfly, an endangered species.   I had left one “Park” area for an area even more verdant. The Pine Bush is one of the best remaining examples of an inland pine barrens ecosystem in the world.  It has come to be seen as a historical, cultural, and environmental asset to the Capital District and Hudson Valley regions of New York.  Yet, despite a valiant fight by a local conservation group, the City of Albany allowed the rezoning enabling the Crossgate mall development adjoining the butterfly habitat.

I had chosen to decamp to Guilderland, a town west of Albany, when the feelings about the then newly built Crossgates mall were still raw.   My tree protectionist stance made it impossible for me to ever shop at what is now the 3rd largest mall in NY State.  In gifting me The Lorax, my boss helped a young boy understand what his mom did, why she loved what she did, and made it impossible for me not to connect with the trees in the Pine Bush nearby.  I have always loved the fact that Dr. Seuss’ book had given the trees a mouthpiece, the Lorax.  Like Aaron speaking for Moses, the Lorax spoke for the trees. “I am the Lorax, I speak for the trees.”

So imagine my validation reading Cowpasture when a three judge panel of the 4th Fourth Circuit blocked the Atlantic Coast Pipeline from a critical crossing of the Appalachian National Scenic Trail through the Blue Ridge Mountains near Wintergreen Resort.  The Federal Energy Regulatory Commission had approved the pipeline route for which the Forest Service issued a Special Use Permit.   In rejecting the U.S. Forest Service authorization for the $7 billion Atlantic Coast gas pipeline to cross national forests, the court said the agency's violations of federal environmental and forest management laws would disappoint even the Lorax, and further found that the National Forest Service had abdicated its responsibility in not speaking for the trees.    The court went further saying that “it is nothing short of remarkable that the Forest Service — the federal agency tasked with maintaining and preserving the nation’s forest land — takes the position that . . . a project specific amendment, no matter how large, will rarely, if ever, cause a substantial adverse effect on a national forest.” The panel went on to say that “ . .[i]t is even more remarkable that the agency is unable to say what would constitute a substantial adverse effect on the forest.”   

The pipeline would have stretched 605 miles through three states from West Virginia to North Carolina.  The ruling also found that the Forest Service had acted arbitrarily and capriciously by changing its forest management plans to accommodate the project and by not fully considering alternative routes that would reduce the pipeline’s damage to national forest land, and violated NEPA by “failing to take a hard look at the environmental consequences” to the national forests it would cross.

This decision demonstrates that agencies cannot simply ignore environmental concerns that were previously raised simply because there is a new federal administration that is more supportive of a development than the previous one.  The court said that based on the sequence of events, the decision to grant the permit appeared to be “pre-ordained” rather than subject to a serious environmental review.  So, at least the 4th Fourth circuit has acknowledged that the Lorax is still speaking for the trees.

A Diverse Chorus of Voices Seek to Be Heard in Utah Monuments Cases

Posted on January 7, 2019 by Brenda Mallory

December 4, 2018 was the one-year anniversary of President Trump’s proclamation disaggregating the boundaries and reducing the size of the Bears Ears and Grand Staircase Escalante national monuments, with Bears Ears being reduced by 85% and Grand Staircase by half, a total reduction of nearly two million acres. As we enter the second year of what many believe are illegal reductions, the litigation challenging the President’s actions continues to inspire broad public interest and controversy. 

On October 1, 2018, shortly after the D.C. federal district court refused the federal government’s request to transfer the lawsuits to the Utah federal court, the Department of Justice (DOJ) filed sweeping motions to dismiss the five pending complaints, three associated with Bears Ears and two with Grand Staircase.  Among the plaintiffs were the coalition of Sovereign Tribes that spearheaded the monument designation of Bears Ears, local businesses, scientists, and environmental organizations. On November 15, the plaintiffs filed their briefs in opposition to the DOJ motions to dismiss. 

On or about November 19, amicus briefs were filed by a diverse array of parties in support of the plaintiffs, including state Attorneys General, members of Congress, natural resources law professors, archaeological associations, Tribal organizations, outdoor user groups, and locally elected officials in Utah. The amicus briefs, if accepted by the court, would provide important context about the impact of monument designations on the resources being protected by those designations and on the user communities. On November 27, DOJ asked the court to deny all amicus briefs other than that filed by the Attorneys General, including the brief filed on behalf of 118 members of Congress. At the time this blog was finalized, the court has not yet ruled on the motion. DOJ filed its reply to the plaintiffs’ opposition briefs on December 13.

The core of the litigation is whether the President has the authority under the Antiquities Act to revoke or substantially modify a predecessor President’s monument designation. The Antiquities Act gives the President the authority to “declare” as national monuments landmarks, historic and pre-historic structures, and other objects of historic and scientific interest and to “reserve” parcels that are “confined to the smallest area compatible” with protection of the objects. All five groups of plaintiffs argue that Congress did not delegate the authority to revoke or modify monuments to the President. The federal government’s motion to dismiss is based in part on traditional arguments about the lack of standing and ripeness. DOJ also makes more sweeping arguments that go to the heart of the case, asserting that plaintiffs’ claims fail as a matter of law, with its brief pointing to legislative history, the text of the statute, actions by previous Presidents, and the lack of action by Congress. Plaintiffs argue each factor the other way.

One highly consequential point on which the parties differ starkly is the impact of monument designations and the practical consequences for resource protection that flow from the Presidential act. DOJ asserts that other federal law provides sufficient protection absent such designation, and that any potential harm from President Trumps’ “UN-designation” will only occur if future activities, subject to future process, are authorized. DOJ further argues that the President has an ongoing, affirmative obligation to shrink the designated area if he believes it is not “the smallest area compatible” with protection of the objects, a key statutory term, as noted above.

The plaintiffs offer a compelling view of the weaker legal protections, imminent threats, and uncertainty that monument objects would face if monument boundaries could be redrawn to exclude them. On this point, in particular, amicus supporters offer context and experience to support Plaintiffs’ position. For example, the brief submitted by 118 Democratic members of Congress explains that the authority Congress delegated to the President under the Antiquities Act was intended to be “one-way” and constituted a logical choice since risks to objects require quick protective action while the removal of protections is better suited to the legislative process retained by Congress. The natural resource law professors offer a detailed description of how the Antiquities Act works in combination with other resource management statutes, including the Mining Law of 1872. Absent the monument designation, this law permits a wide range of ground-disturbing activities on public lands with minimal or no notice and generally with no prior approval.

Similarly, the archaeologists’ brief provides detailed examples of recorded historic sites that are no longer subject to the protections offered by a monument designation, with about half (1,910) of the 4,000 documented sites located within the original boundaries of Grand Staircase no longer having monument protection and approximately 73% of documented archaeological sites having been removed from the Bears Ears monument. The brief filed by the National Congress of American Indians, the oldest and largest national organization of American Indian and Alaska Native tribal governments and their citizens, underscores the importance of the original Bears Ears designation to Native American history and culture and the harm associated with eliminating the Commission of Tribal Sovereigns which was established to ensure that the Tribes had enhanced participation opportunities in the long-term management of their heritage.

Communities and users dependent on monument designations, both in Utah and elsewhere, share how they rely on the monuments and have built systems and infrastructure around them based on an understanding of their permanence. The Attorneys General from Washington, California, Oregon, New Mexico, Hawaii, Maine, Maryland, Vermont, Rhode Island, and New York describe how states enter cooperative management agreements, provide investments in infrastructure, change state rules and regulations, conduct state university research and preservation within monuments, and promote economic and health benefits for citizens. The Mayor of Salt Lake City and other affected officials emphasize the importance and economic reliance of gateway communities on monument designations, as well as the failure of the Trump Administration to hear all the local voices in reaching its decision on the monuments. The Outdoor Alliance describes how the monument designation changes the management of these resources and therefore the user experience. The Outdoor Alliance also counters the government’s suggestion that the lands would be similarly protected without monument status.

I find these points and other arguments made by the plaintiffs and amici supporting the plaintiffs very persuasive as they illustrate the complex array of interests harmed by President Trump’s proclamation. The federal government and its supporters from the State of Utah and the Farm Bureau took the opportunity to present their views in the December 13 filing. That may be a topic for discussion in later blogs.

Carrying Coals to Newcastle … and Katowice

Posted on January 3, 2019 by Zach C. Miller

When Newcastle was the largest British exporter of coal, talk of “carrying coals to Newcastle” meant engaging in something senseless, superfluous, or foolish.  The Trump administration’s recent actions on coal use and climate change have taken the expression to new heights – or depths.

In June 2017, the Trump administration isolated the U.S. by making it the only country in the world to announce plans to withdraw from the 2015 Paris Agreement on climate change.  Last month the administration made things worse by its actions at the U.N. climate conference in Katowice, Poland – an historic, heavily polluted coal mining area.  Instead of joining the signatories to the Paris Agreement in negotiating the “rule book” for implementing that Agreement, the U.S. delegation presented a “side-event” (some say “side-show”) promoting the use of coal and fossil fuels.  Use of innovative, cleaner technologies to burn coal and fossil fuels would be laudable if combined with sound strategies to transition to cleaner, sustainable energy sources, but that was not the thrust of the side-show.  The coal “pep rally” in Katowice thus highlighted that the U.S., as represented by the current administration, is tone-deaf and no longer a leader in international climate discussions. 

The Trump administration staged a similar coal-booster event at the 2017 U.N. climate conference in Bonn, but with important differences.  In Bonn, U.S. representatives worked extensively with other countries on the Paris Agreement’s rule book, with an eye towards the U.S. possibly not withdrawing from the Agreement.  But most of the key Trump administration insiders who then favored staying in the Paris Agreement are now gone, including Secretary of State Rex Tillerson, national security advisor H.R. McMaster, energy adviser George Banks, and economic advisor Gary Cohn.  They’ve been replaced by Paris Agreement opponents:  Mike Pompeo, John Bolton, Wells Griffith, and Larry Kudlow.  As a result, the participation and influence of the U.S. in international climate discussions has become increasingly leaner, weaker and less relevant.

Meanwhile, at the G-20 Summit last month in Buenos Aires, countries led by France and China further isolated the U.S. when the Summit’s final communique stated that all 19 other countries “reaffirm that the Paris Agreement is irreversible and commit to its full implementation.”  The U.S. stuck out like a sore thumb by reiterating there its decision to be the sole nation to withdraw from the Paris Agreement, and instead touting “its strong commitment to economic growth and energy access . . . .”

These U.S. actions come directly on the heels of three significant studies, two from the Trump administration itself, that directly refute the administration’s positions.  The October 2018 Report of the U.N. Intergovernmental Panel on Climate Change warned that the world’s use of coal for generating electricity will need to be reduced dramatically by mid-century – from 40% down to 1-7% – to prevent catastrophic droughts, fires, floods, and storms resulting from climate change.  Then the recent report of DOE’s Energy Information Administration concluded that regardless of the climate debate, over 500 plants and 75 gigawatts of coal-fired power have been or soon will be retired and U.S. coal use is expected to continue to decrease (44% less than 2007 use), due mainly to market forces such as cheaper natural gas and renewable energy.  Finally, the November 26, 2018 Fourth National Climate Assessment – issued by 13 federal agencies and the Trump administration’s own White House – unequivocally states that climate change is already occurring, is partly caused by human activity, and must be urgently addressed to prevent catastrophic impacts.  President Trump’s only response to that overwhelming evidence from his own office: “I don’t believe it.” 

Why does this matter?  Two reasons.  First, if climate change is the severe and urgent problem virtually all climate scientists (and the White House’s own report) conclude it is, the failure of the U.S. to respond to it is an enormous and possibly irreversible blunder.  Second, taking such a position has caused the U.S. to cede its leadership role in the international debate on climate change and the design of creative and appropriate responses to it.  Because others – including China and Russia – are stepping into the resulting void and steering the direction of future actions in this and related environmental and economic fields, the U.S. may never recover that leadership role. 

The Trump administration’s Katowice side-show and similar superfluous actions may pander to the administration’s base.  But these senseless acts are merely “carrying coals to Newcastle” and accomplish nothing, while our most critical environmental problem goes unaddressed by the federal government.