Climate change policy and the Constitution

IVANPAH, CALIFORNIA, APRIL 05 2013: An aerial view of Tower 1 and its heliostats at the Ivanpah Solar Power Facility, where heliostast installation is nearly completed, and steam blow tests are taking place. Located in the Mojave Desert 40 miles southwest of Las Vegas, The Ivanpah Solar Power Facility is a solar thermal power project, currently under construction, with a planned capacity of 392 megawatts, enough to power approximately 140,000 houses. It will deploy 170,000 heliostat mirrors spread over 4,000 hectares, focusing solar energy on boilers located atop three solar power towers, generating steam to drive specially adapted steam turbines The project, developed by Bechtel, will cost $2.2 billion and be the largest solar farm in the world (photo Gilles Mingasson/Getty Images for Bechtel).

The United States needs a climate change policy grounded in and consistent with the Constitution. We don’t have one.

The incoherence and ineffectiveness of our current climate policies are a consequence of the unconstitutional, extraconstitutional and swamp-weasel approaches practiced by previous presidential administrations. Clinton refused to take Kyoto to the Senate for ratification; Bush refused to “unsign it” or to take it the Senate, and Obama and John Kerry negotiated the Paris “agreement” as a “voluntary” international agreement not requiring Senate approval. Trump withdrew the US from Paris, but making the Senate vote on it would have been the best strategy for achieving a climate change policy grounded in the Constitution – and for dealing with swamp-weasels.

Here are some of the numerous ways that climate change policy is violating, skirting or simply ignoring the Constitution:

  • Article 1, Section 1. Legislative power is vested in the Congress, and Congress hasn’t passed a national climate change policy. In Massachusetts v. EPA, the Supreme Court, at the behest of Democratic State Attorneys General, creatively rewrote the Clean Air Act to include CO2 as a criteria pollutant, and much executive and advocacy mischief has ensued. President Obama took that ruling and quickly made an executive “endangerment” finding justifying aggressive government action to save the planet, including the Clean Power Plan. So the SCOTUS and POTUS have declared a national climate change policy, but the Congress, vested with all legislative powers, has not and repeatedly has declined to do so.
  • Article 2, Section 2, Clause 2. Two international climate change policy agreements have been signed by the United States- Kyoto and Paris, but neither has been ratified, or even voted on, by the Senate. The Treaty power is shared between the President and the Senate, with 2/3 needed for ratification. The Kyoto Protocol was never submitted to the Senate after that body voted 95-0 against the terms of Kyoto in the Byrd-Hagel resolution- but efforts to implement Kyoto continued in blue states and at the EPA. The Obama administration chose to employ a swamp-weasel fiction that the Paris agreement was not a Treaty because it was “voluntary”, and thus did not require Senate ratification. Senate leaders from both Parties went along these extraconstitutional but politically convenient fictions.
  • Article 1, Section 10, Clause 3. Foreign Policy is the province of the President and Congress, and State agreements and compacts with foreign powers and other states require the consent of Congress. That consent has not been given or even asked for in numerous climate change policy agreements between the states and foreign powers. In August 2001, just months after President Bush had rejected (but not unsigned) Kyoto, New England Governors and Eastern Canadian Premiers signed an agreement to reduce GHG emissions. The agreement was an updated version of the Kyoto protocol, and became the basis for the current Regional Greenhouse Gas Initiative (RGGI), an emissions cap and trade program the blue states hoped would be a national model. There are similar interstate regional efforts on the west coast. None of these agreements have Congressional approval. Interestingly, the swamp-weasel “voluntary” argument was initially developed to avoid Congressional approval of interstate agreements, and then expanded to avoid Senate ratification of Paris.
  • The First Amendment, protected speech and Citizens United. SCOTUS has ruled that political speech is protected from government censorship, regardless of the source or content. But a coalition of Democrat State Attorneys general, backed by Tom Steyer and gubernatorial ambitions, have launched an investigation of climate change skeptics and Exxon Mobil, including issuing subpoenas to libertarian and conservative think tanks. The swamp-weasels, inspired by Sen. Sheldon Whitehouse, D-RI, claim it’s a fraud investigation, but it’s a transparent and arrogant attempt to use government power to silence skeptics.
  • Article 6, Clause 3. No religious test shall ever be required as a Qualification to any Office or Public Trust. EPA Administrator Scott Pruitt’s confirmation hearings gave ample evidence that such a religious test is being applied. Both Sen. King and Sen. Collins voted against Mr. Pruitt because he does not share their alarmist beliefs and policy preferences. There is a growing Boycott, Divest and Sanction movement against climate policy skeptics in the US. It certainly looks like a religious test to this non-swamp denizen.

Until our climate change policy is firmly grounded in the Constitution, it will continue to be divisive, ineffective and unsustainable. A good start would be an up or down Congressional vote on the Paris Treaty and the regional agreements, especially as blue states seek to implement Paris despite President Trump’s withdrawal. I have asked both my Senators to do that, with no response. Next stop, Senator Inhofe.


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