Eliminating Natural Gas Cannot Wait (Even in the Age of COVID-19)

By Elena Itameri, Law and Policy Clerk

 

The Negishi LNG Terminal in Yokohama, Japan.

While the current national conversation is rightly focused on two constantly evolving conflicts involving racial inequities and the global pandemic, safeguards to protect the environment are being bulldozed—including those safeguards in place to regulate natural gas. Naomi Klein has named the strategy being implemented by the fossil fuel industry the “shock doctrine.” According to Klein, times of crisis often spur efforts to push through deregulation while the nation’s focus is elsewhere. The fossil fuel industry is now taking advantage of the public focus on the pandemic and the Black Lives Matter movement to push through policy changes that will expand natural gas development. The industry’s efforts have been quite successful so far, and there are currently actions being taken at the federal, state, and local levels. While we do not know how long the pandemic will last, we do know how quickly we must act to prevent irreversible loss as a result of climate change. The timeline is short. Eliminating natural gas is an essential piece of decarbonization, and we must stay the course even in this tumultuous time.

In Oregon, the Federal Energy Regulatory Commission (FERC) reaffirmed its approval of the Jordan Cove liquefied natural gas terminal and its accompanying pipeline, despite protests from the state. Meanwhile, in a purported effort to increase efficiency, the U.S. Department of Energy (DOE) proposed a rule change in May that would remove NEPA-mandated environmental reviews for natural gas imports and exports. This would eliminate any consideration of environmental impacts resulting from natural gas infrastructure. In Kentucky, a new law has defined natural gas as “key infrastructure,” which now makes it a felony offense to cause more than $1,000 worth of damage to a gas pipeline “in a manner that renders the operations harmful or dangerous.” In a similar vein, Massachusetts designated natural gas construction projects as “essential” under the state’s stay-at-home orders, allowing construction to continue while many other industries came to a halt. And, earlier in June, Louisiana became the latest state to preempt local natural gas bans, following in the footsteps of Arizona, Oklahoma, and Tennessee, by preventing communities from making their own decisions about fossil fuel reliance.

The need to prevent construction of new natural gas lines lies in the longevity of this infrastructure. Natural gas infrastructure is expensive to construct, and in order to maximize profits, companies build natural gas lines and terminals with the intent to operate the infrastructure for many decades. This means that natural gas lines constructed today could reasonably be expected to still be in use in 2070—well past the 2050 deadline that many communities use to set their decarbonization goals. Natural gas lines also produce fugitive methane emissions throughout their installation and distribution processes, which has severe implications for climate change. Over the near-term, methane has a far higher warming potential than other greenhouse gases—between 84 and 87 times that of carbon dioxide over the course of twenty years. On average, methane molecules stay in the atmosphere for approximately twelve years, as compared to carbon dioxide, which stays in the atmosphere for anywhere between 300 and 1,000 years. Reducing methane emissions therefore can produce more immediate reductions in warming, which is beneficial both to combatting the effects of climate change overall as well as increasing momentum in the climate movement. People will be more likely to continue efforts to reduce emissions if they are seeing the fruits of their labor. The long timelines associated with climate change is one of the factors that makes it such a difficult problem for society to tackle— there will always be issues that are more pressing to address because the worst impacts from climate change are expected to occur years in the future. 

On a local scale, transitioning away from natural gas can benefit communities in several ways. All-electric buildings can be constructed more quickly than gas-heated buildings because they do not require the installation of gas lines and meters, which necessitates utility professionals to inspect the construction site. Removing natural gas from homes also boasts health and safety benefits. For example, burners on gas stoves are estimated to add between 25% and 39% more nitrogen dioxide to indoor air and therefore can aggravate respiratory conditions such asthma. Beyond the home, reductions in the development and/or operation of natural gas lines reduces the risk of fatalities associated with gas leaks and explosions. Since 2000,280 people have died in association to natural gas distribution.

Despite industry claims, natural gas is not a necessary “bridge fuel” as we decarbonize our energy sector. Similar to those related to coal, the decisions we make today regarding natural gas will impact our health and climate for decades to come. The United States cannot slow down or compromise on climate action; we simply do not have the time. The fossil fuel industry has seen the nation’s focus fall elsewhere, and they have been quick to take advantage of this opportunity to push through deregulatory actions that threaten the future health and wellbeing of communities across the country. Climate change is continuing to manifest across the globe, and decarbonization efforts must continue as the world grapples with disease, migration, and war in the coming years. At its foundation, climate change is the result of the exploitation of resources, labor, and wealth inequality. If we truly remedy the problem, we will see equity on all these fronts—a transformed world at every level. Let us not allow the COVID-19 pandemic to be a time of shock and stagnation. Rather, let us use the momentum that we have seen ripple through the United States to broaden our perception of what is possible.

The posts published on Charged Debate reflect the writers’ opinions in their individual capacities, and do not necessarily reflect the perspective of the Green Energy Institute at Lewis & Clark Law School, Lewis & Clark Law School, Lewis & Clark College, or the writers’ past, present or future employers or other associations. Any legal information presented on Charged Debate is meant purely for general educational purposes and is not intended to provide legal advice and should not be relied upon in any legal matter. 

Green Energy Transitions: The Curious Cases of Iceland and China

By Dan Polkow, Law & Policy Clerk

Iceland's Krafla geothermal power plant.
Image by Andreas64 from Pixabay

China and Iceland. These two countries are vastly different in size, population, and cultural makeup but they do have one thing in common: these countries have shown the possibilities of green energy technology markets and solutions. Iceland and China transitioned to renewable energy technologies out of necessity. The 1973 oil crisis forced Iceland to find alternative sources of energy and be creative in utilizing their unique landscape, and as of 2020, 100% of the electricity used in the country is renewable.  In contrast, China was forced into the green energy market because of continuing political unrest created by the smog pollution that has plagued the country. China now the leads the world in developing renewable energy technologies, accounting for 29% of all global patents, and shows how green energy companies can compete step for step with their fossil fuel competitors. Though the energy transitions in Iceland and China were each motivated by unique factors and circumstances, both countries help exemplify the benefits of investing in and transitioning to robust green energy economies.  

Iceland’s electricity grid carries 100% renewable energy that is generated exclusively from hydro and geothermal power sources. In addition to generating electricity, Iceland also uses geothermal energy for space heating. Geothermal heating in Iceland decreases dependency on fossil fuels by reducing the demand for electricity consumption for heating purposes. The geothermal energy sector in Iceland produces about 27% of the country’s electricity, while hydropower accounts for the rest. From these two sources alone, Iceland produces more energy than its residents use. In 2017, for example, Iceland generated four times more energy than it consumed. The Icelandic green energy market will grow further once the country invests in wind energy infrastructure, which is currently an underutilized resource in the island nation.  The potential for harnessing wind energy and the existing surplus of energy produced show the vast amount of renewable energy resources available in Iceland, as well as the possibility to export excess green energy.  Although there is no current way to export Iceland’s surplus green energy to other parts of Europe, NorNed, a 580 kilometer submarine power cable connecting Norway and the Netherlands, illustrates the possibilities for Iceland to export renewable energy across Europe.  While Iceland is now a model of clean energy innovation and finance, only fifty years ago the United Nations considered Iceland to be a developing nation. Iceland’s clean energy transition was brought on by the 1973 oil crisis, which forced Iceland to build out energy infrastructure that could take advantage of the country’s available renewable resources. Although Iceland still has a lot of progress to make in implementing renewable transportation solutions, the country illustrates how quickly a nation can transition from being a developing economy to a global clean energy leader.  

In contrast to Iceland, China is an example of how a country may use renewable resources to supply electricity in a more robust energy market. China leads the world in total renewable energy production, specifically in wind and solar energy generation. China now invests more money than any other country in the renewable energy sector and also installs solar power systems at lower cost than comparable fossil fuel-powered facilities. China’s interest in renewable technologies was spurred on by the country’s smog crisis and the costs incurred from air pollution. In 2012, air pollution cost China $535 billion, which represented 6.5% of the country’s GDP at that time.  Pollution also contributed to approximately 1.6 million deaths, representing about 17% of all deaths in the country. Environmental issues were a major driver for mass protests because pollution imposed significant economic and social costs on Chinese citizens. In an effort to maintain domestic stability and to minimize protests, the Chinese government pushed to transition the country to renewable technology. China focused on renewables because by alleviating dependence on fossil fuels, the nation was able to mitigate geopolitical tensions associated with China’s deployment of military forces in securing fossil fuel trade routes. In harnessing their own renewable energy, China has been able to reduce their investments in protecting trade routes. To date, the Chinese government has invested more than $360 billion into renewable energy projects and has created 13 million jobs in the sector, which far outpaces the 800,000 workers in the same sector in the United States. China’s private sector has also embraced the country’s transition to clean energy. China’s continued investment and commitment to green energy technology have sent positive signals to the world that the nation is taking action to address its climate impacts as called for under the 2015 Paris Agreement. Although China has a long way to go in transitioning their energy system and still remains the world’s largest polluter, they are demonstrating how a large industrialized nation can successfully transition to renewable energy.  

Timely implementation of sustainable energy solutions on a global scale requires long term commitment and cooperation from all nations. Governments cannot afford to wait until crises hits befire they implement green energy initiatives, as Iceland and China did. In 2015, there were 1.3 billion people in the world who lacked access to electricity and another 2.6 billion people who relied on energy produced from polluting sources like wood, coal, charcoal and animal waste. As nations expand their electric systems, they must simultaneously incorporate renewable energy solutions into their grids. China is now demonstrating that incorporating renewable energy solutions can be economical on a national scale. The country’s 2019 Frontrunner solar project was the first solar installation in China to not receive government subsidies and still come in at a lower cost than competing fossil fuel resources.  

The subsidization of traditional fossil fuel resources continues to present a major roadblock to deploying renewable energy infrastructure across the globe. The International Monetary Fund (IMF) has suggested that fossil fuel subsidies need to be phased out over time because they primarily benefit upper-income groups and mask spending and economic inefficiencies in the fossil fuel market. To address these issues, the IMF recommends creating long term objectives and plans, increasing transparency and communication about the scale of subsidies across countries, phasing in incremental price increases to fossil fuel energy sources, creating targeted efforts to protect the poorest parts of the global population, and creating reforms to depoliticize energy pricing. These lofty IMF goals show that significant international collaboration is necessary to successfully transition to renewable energy and address the inequitable impacts that the transition may have on the world’s most vulnerable populations. Despite these challenges, the cases of China and Iceland show that creative energy solutions are available and can create domestic benefits beyond simply producing “cleaner” electricity. The transition to renewable energy can produce economic benefits, help increase domestic security, spur the development of new industries, create jobs, save lives, and revitalize national economies. Other countries should not wait until change is necessary, like Iceland and China did. Rather, it is imperative that the nations of the world view those two countries as examples of what is possible and embark on their own energy transitions.

The posts published on Charged Debate reflect the writers’ opinions in their individual capacities, and do not necessarily reflect the perspective of the Green Energy Institute at Lewis & Clark Law School, Lewis & Clark Law School, Lewis & Clark College, or the writers’ past, present or future employers or other associations. Any legal information presented on Charged Debate is meant purely for general educational purposes and is not intended to provide legal advice and should not be relied upon in any legal matter. 

A Sisyphean Struggle: An Account of Oregon’s Struggle to Enact Campaign Finance Reform and its Link to Environmental Protection

By Colin Reynolds, Law and Policy Clerk

Nationally, Oregon is perceived as a leader in environmental protection and regulation. However, The Oregonian's Rob Davis exposed the dark truth in his 2019 series “Polluted by Money” that Oregon is, in fact, a state with relatively lax environmental laws; a state where industry lobbyists frequently leverage lawmakers to kill environmental initiatives and; a state that, overall, has “betrayed its [bipartisan] environmental legacy.” According to Davis, “Oregon’s failure to regulate campaign cash has made it one of the biggest money states in American politics [that] created an easy regulatory climate where industry gets what it wants, again and again.” And what industry got was “weakened or stalled efforts to deal with climate change, wolf recovery, disappearing bird habitat, cancer-causing diesel exhaust, dwindling groundwater, industrial air pollution, oil spill planning and weed killers sprayed from helicopters.”

Overall, Oregon is one of the few states that allow people and corporations to give as much money as they want to political candidates. Consequently, logic dictates, if Oregon enacted and enforced campaign finance restrictions, corporations will have less influence over the legislative process and the legislature will therefore pass more environmental protections into law. However, in order to do so, we must reckon with the state’s long history of failed campaign finance reform. 

1970’s Oregon Post-Watergate Campaign Finance Laws and Deras v. Myers

After Watergate, the Oregon legislature passed two statutes imposing a monetary limit on the total expenditures that a person or political committee can make in support or in opposition to a candidate for public office. In response to these statutes, Warren Deras, a candidate for State Representative, sued the state, arguing the statutes infringed upon his right to free expression and that any limitation on his ability to spend unlimited money on his behalf violated the freedom of speech protections found in Article I, Section 8 of the Oregon Constitution. In 1975, the case Deras v. Myers made its way to the Oregon Supreme Court, where Oregon Attorney General Lee Johnson argued that the free expenditure of funds in political campaigns threatens the integrity of government. The court, however, disagreed and struck down the statutes, holding that the Oregon Constitution’s Article I, Section 8 freedom of expression protections outweighed the public interest in stemming the free expenditure of funds served by statutes.

1994’s Measure 9 and Vannatta v. Keisling

Nearly 20 years later, Oregonians voted overwhelmingly in favor of Measure 9 (72% to 27%), a ballot initiative that limited campaign contribution and spending limits. Fred van Natta, the President of the Center to Protect Free Speech, subsequently sued the state, arguing that the sections in Measure 9 that “limit or ban certain political campaign contributions and coerce political candidates to agree to limit their campaign expenditures” violated Article I, Section 8 of the Oregon Constitution. In 1996, the case made its way to the Oregon Supreme Court as Vannatta v. Keisling, in which the state and other advocates defended the measure, arguing that Measure 9’s restrictions on campaign contributions was designed to prevent a particular harm – “the existence of undue influence in the political process.” However, the Oregon Supreme Court rejected the state’s argument and voided Measure 9, holding that “there is no necessary incompatibility between seeking political office and the giving and accepting of campaign contributions.” According to the court, “those who are elected will put aside personal advantage and vote honestly and in the public interest.” 

2006’s Measure 46 & 47 and Hazell v. Brown

Ten years later, advocates tried to enact campaign finance reforms through two ballot initiatives. The first, Measure 46, would have amended the Oregon Constitution to authorize the adoption of laws regulating election contributions and expenditures, thus nullifying the Vannatta decision. The second, Measure 47, would have revised campaign finance laws to limit or prohibit campaign contributions and expenditures. In contrast to the resounding public support for campaign finance reform in 1994, voters paradoxically rejected Measure 46 while approving Measure 47. This split vote effectively resulted in an enactment of an unconstitutional law, because Measure 47 needed Measure 46’s constitutional amendments to be valid. Consequently, the Oregon Department of State, acting on advice from the Department of Justice, decided the state could not implement Measure 47. 

Despite the constitutional implications, Measure 47 supporters sued the state to compel enforcement of the initiative. In 2012’s Hazell v. Brown, the Oregon Supreme Court ruled that Measure 47 would not become operative until either (1) voters approved a constitutional amendment allowing laws that would otherwise violate “free expression rights” guaranteed by Article I, Section 8 (in other words, essentially approving the constitutional amendments previously proposed by the unsuccessful Measure 46); or (2) the Oregon Supreme Court overturned its holding in Vannatta that campaign finance limitations are unconstitutional.

2016’s Multnomah County Measure 26-184 and Multnomah v. Mehrwein

The present state of Oregon’s campaign finance dynamics began in 2016 when Multnomah County voters approved Measure 26-184, which directed the county to restrict campaign contributions, limit campaign expenditures, and require campaign disclosure rules. After the election, Multnomah County adopted new campaign finance ordinances mirroring those in the voter initiative. In May 2017, the county subsequently sought judicial review of the ordinances’ legality under both the Oregon and U.S. Constitutions. A group of citizens, including Alan Mehrwein of the Portland Business Alliance, intervened in the matter in opposition to the county. By 2019, Multnomah County’s “validation action” made its way to the Oregon Supreme Court. In its Multnomah v. Mehrwein decision issued on April 23, 2020, the court held that the county’s campaign contribution limits did not facially violate the Oregon Constitution, thereby overruling its previous holding in Vannatta. However, the court also held that the county’s campaign expenditure limits were invalid under the state constitution. Before exploring whether the court’s overruling of Vannatta was sufficient to activate Measure 47, it's helpful to examine how the Mehrwein court arrived at its decision. 

Revisiting Vannatta

The court began its Mehrwein analysis with a discussion of the so-called Robertson framework, which the court had developed in a 1982 case involving the constitutionality of a state law that created and defined the crime of “coercion.” The Robertson framework groups laws that restrict speech into three categories. Broadly speaking, the first two categories include laws that expressly restrict speech, and the third category includes laws that as applied may have the effect of prohibiting or limiting speech. An example of a valid third category rule is a prohibition of the overnight use of steps in front of the state capital, even though it might affect protestors conducting a vigil on the steps at night. From a legal standpoint, the difference between category one and three laws is important because a category one law is nearly always unconstitutional, except in specific situations,whereas a category three law is constitutional but subject to as-applied challenges. 

Applying the Robertson Framework to Campaign Contributions  

When the court applied the Robertson framework in its 1997 Vannatta decision, it held that the ballot initiative’s limits on campaign contributions and spending fell into the first Robertson category of laws that expressly violate free speech, and were therefore unconstitutional – except under narrow circumstances. In Mehrwein, however, the court revisited its analysis and concluded that the ballot initiative at issue in Vannatta did not actually fall within the first Robertson category. According to the court in Mehrwein, the Vannatta court’s holding that limits on campaign contributions and spending expressly restrict free speech conflicted with other prior and later court decisions. Consequently, the Mehrwein court rejected Vannatta’s reasoning and concluded that Multnomah County’s campaign contribution limits did not violate the Oregon Constitution. 

Campaign Expenditures vs. Contributions 

While the Mehrwein court held that Multnomah County’s campaign contribution limits were permissible under the Oregon Constitution, the court remanded that issue to the trial court to determine whether the contribution limits were also permissible under the First Amendment of the U.S. Constitution. Additionally, the Mehrwein court also held that while the county’s limits on campaign contributions were valid under the Oregon Constitution, the county’s limits on campaign expenditures “unambiguously” violated the First Amendment and were therefore invalid. Consequently, the court declined to reconsider the Vannatta holding that campaign expenditure limits were unconstitutional. 

Mehrwein’s partial overruling of Vannatta therefore created significant uncertainty around the constitutionality of Measure 47. Specifically, is the court’s overruling of Vannatta’s campaign contributions holding enough to trigger the enactment of Measure 47, even though the contributions issue in Mehrwein was remanded to the lower court and expenditure limits – which are similar to those contained in Measure 47 – were held to be unconstitutional?

“Constitutionality of Campaign Finance Limits Still in Limbo” 

On April 23, 2020, Misha Isaak, Governor Kate Brown’s former general counsel, predicted Measure 47 would remain dormant because Vannatta’s expenditure limits holding still stands. This view implied that adopting Measure 47 is an all or nothing proposition. Isaak’s prediction proved accurate. On May 1, the Oregon Secretary of State issued a statement that Measure 47 was “not made operative by the decision in Multnomah County v. Mehrwein, and as such there is no change in current state election laws.” However, Hillary Borrud reported in TheOregonian that at least one of the Mehrwein appellants is considering whether to seek further clarification on the court’s ruling.

In the 2020 general election, Oregonians will have another opportunity to achieve campaign finance reform through a ballot measure called the “Oregon Campaign Finance Limits Amendment.” If approved, this ballot measure would amend the state constitution to give the Oregon Legislature and local governments the ability to limit political contributions. Put simply, this new ballot measure is a repackaging of Measure 46, but without the expenditure limitations. If the initiative succeeds, it’s unclear if the new constitutional amendment would animate Measure 47. Consequently, any further Mehrwein proceedings may be rendered moot if voters approve this measure.  

However, for the time being, Multnomah County’s campaign contribution laws remain under court review and Oregon’s Measure 47 remains dormant. Meanwhile, Oregon politicians can continue to rake in unlimited campaign contributions from corporate interests, while the inadequacies of Oregon’s environmental laws remain. Consequently, if you accept the logic that more corporate campaign cash leads to weak environmental protections, don’t expect Oregon environmental legacy will change anytime soon. 

The posts published on Charged Debate reflect the writers’ opinions in their individual capacities, and do not necessarily reflect the perspective of the Green Energy Institute at Lewis & Clark Law School, Lewis & Clark Law School, Lewis & Clark College, or the writers’ past, present or future employers or other associations. Any legal information presented on Charged Debate is meant purely for general educational purposes and is not intended to provide legal advice and should not be relied upon in any legal matter.