A native-led battle for the environment is being waged in Minnesota. On June 7, water protectors from the territories of the Anishinaabe tribes — which include members of the Odawa, Ojibwe, Potawatomi, Oji-Cree, Saulteaux, and Algonquin peoples — and their allies set up blockades to delay the construction of the Line 3 tar sands pipeline currently being built from Alberta, Canada to Superior, Wisconsin.
These protesters are pitted against Enbridge, a multinational Canadian oil company with a long history of building pipelines that have caused environmental destruction with spills. The current pipeline construction cuts through native lands protected by treaties signed in the 1800s.
Enbridge plans to use the pipeline to carry tar sands oil, one of the dirtiest types of fossil fuels.
While meeting with NATO Secretary-General Jens Stoltenberg in Brussels on Tuesday, Secretary of State Antony Blinken reiterated the US’s opposition to the Nord Stream 2 pipeline that will connect Russia to Germany and warned Berlin about possible sanctions over the project.
“President Biden has been very clear in saying that he believes the pipeline is a bad idea; it’s bad for Europe, bad for the United States,” Blinken said. “Ultimately, it’s in contradiction to the EU’s own energy security goals. It has the potential to undermine the interests of Ukraine, Poland, a number of other close partners or allies.”
By Pam Martens and Russ Martens: October 7, 2020 ~ Charles Koch is the billionaire owner of Koch Industries, one of the largest private companies in the world with vast interests in fossil fuels, refineries, chemicals, lumber, paper and glass manufacturing. A subsidiary of Koch Industries is Koch Supply and Trading, which engages in commodities trading on a scale rivaling the largest banks on Wall Street. Charles Koch also heads an operation variously known as the Koch Network or the Kochtopus, because its tentacles are strangling the life out of representative government in the United States. The operation hosts semiannual strategy sessions where obscenely rich Americans get together to jointly commit hundreds of millions of dollars to keep Congress and the Oval Office in the hands of fossil fuel-friendly candidates who have demonstrated an obedience to a deregulatory agenda. Koch Foundation money and two dark money groups, Donor’s Capital Fund … Continue reading →
Suzanne Dhaliwal, in collaboration with Indigenous Climate Action, explains how the struggle to end Canada’s colonial violence is continuing in the face of fossil fuel extractivism.
“While not disputing that pollution occurred, Chevron has alleged the villagers’ lawyer, Steven Donziger, and his associates went too far,” Reuters (1/20/17) reported.
Independent journalist Chris Hedges (ScheerPost, 8/25/20) wrote:
The flagrant corruption and misuse of the legal system to abjectly serve corporate interests in the Donziger case illustrates the deep decay within our judiciary and democratic institutions.
One of those deeply decayed institutions is the corporate media, as a review of several years of Reuterscoverage of the case illustrates.
Attorney Steven Donziger has been under house arrest since August 6 of last year. He is charged with contempt of court for refusing to turn over his cell phone and computer to Chevron as ordered by a federal judge. The order is still being appealed on constitutional grounds, one reason Donziger refused to obey it. Public prosecutors declined to take on this case, so the judge had a private firm (which had Chevron as a client) act as prosecutors. Donziger faces six months in prison, but told me his time under house arrest will not count as time served. He is being denied a jury, and a judge has even ordered Donziger to defend himself with a lawyer he does not want.
How did this case devolve into such a dystopian farce? Which key facts about it have been ignored by Reuters, something it has a habit of doing on numerous topics? (FAIR.org, 6/14/19, 9/18/19, 12/17/19, 8/17/20). To answer, let’s get up to speed on this marathon case.
A lifetime of litigation against Big Oil
In 1993, Donziger, a recent graduate of Harvard Law School who played basketball with Barack Obama as a student, teamed up with other lawyers to file a lawsuit against Texaco in New York on behalf of Ecuadorian victims of pollution: thousands of villagers, largely Indigenous, from the Ecuadorian Amazon. The oil giant (which merged with Chevron in 2001) spent nine years fighting to have the case moved back to Ecuador. In 2002, Chevron prevailed, as it usually has in this case; US courts ruled that the case belonged in Ecuador, but also made Chevron promise to abide by the Ecuadorian jurisdiction it had fought so hard to obtain.
One of the many Chevron legal victories heralded by Reuters (3/4/14).
Why fight for Ecuadorian jurisdiction? Chevron’s annual revenues have ranged from $100 billion to $200 billion since 2006, depending on oil prices—often much higher than Ecuador’s entire GDP.
Chevron obviously believed it was even more likely to get its way in Ecuador than in the US, especially if it had to face a US jury, something it has always managed to avoid in this case. That speaks volumes about the kind of treatment the company expected in Ecuador, given how often US judges have ruled in its favor. Chevron’s many legal wins are documented in Reuters headlines about this case over the years.
From 1964 to 1992, Texaco dumped an estimated 16 billion gallons of toxic waste in the Ecuadorian Amazon. The CIA had played a key role in bringing the dictatorship to power in 1963 that first allowed Texaco to work in Ecuador. (Philip Agee, the great CIA whistleblower of that era, described CIA tactics in Ecuador in his 1975 book Inside the Company: CIA Diary.) In 1992, only a year before Donziger sued the company in the US, Texaco turned over ownership and control of the area to Ecuador’s state oil company.
Economic collapse in 1999 led to massive political upheaval in Ecuador; the country had seven presidents from 1996 until 2006. Under President Rafael Correa (first elected in 2006), Ecuador’s judiciary became far less subservient to multinationals. Chevron was found guilty in a provincial court in 2011. The case held up on appeals all the way to the National Court of Justice—Ecuador’s supreme court—in 2013. The victims were awarded $9 billion in damages.
Remarkably clear bias
Lewis Kaplan went from defending Phillip Morris as a private attorney to defending Chevron as a state judge.
By 2011, Chevron had already come running back to the US, claiming it had been victimized by Donziger in Ecuador. New York Judge Lewis A. Kaplan—as I’ll explain—made his corporate bias remarkably clear as he presided over Chevron’s counterattack on Donziger.
The stakes were higher for Chevron than in 2002, when it finally succeeded in moving the case to Ecuador. The corporation’s unexpected defeats on its originally chosen terrain of battle changed everything. Chevron’s gloves were off—but so, too, was the mask of the whole US judiciary, not just Kaplan (who had represented the tobacco industry before becoming a judge).
Kaplan brushed aside Chevron’s promise to abide by Ecuadorian jurisdiction. In 2014, he ruled that the lower court victory in Ecuador was won by Donziger using “corrupt means.” To dismiss upper court rulings in Ecuador (and to justify telling Chevron that it didn’t have to go back to Ecuador to fight the case), Kaplan also said (on page 418 of the ruling) that he was “obliged” to pass judgment on Ecuador’s entire judiciary, and, unsurprisingly, concluded that it “was not fair or impartial and did not comport with the requirements of due process,” and was “not entitled to recognition.”
Later in the ruling (page 483), Kaplan contradicted himself, saying he did not “disrespect” Ecuador’s legal system. One Reuters article at the time (3/8/14) uncritically reported that Kaplan “carefully” said his order against Donziger does not “disrespect” Ecuador’s legal system. A bit of journalism from Reuters could have “carefully” exposed that claim as nonsense.
Kaplan’s 2014 ruling frequently quotes from a deeply personal notebook Donziger kept that included correspondence with his wife. Kaplan doesn’t quote from the personal diaries of Chevron executives, because he made sure the discovery process was applied ruthlessly to Donziger, but not to Chevron. (See pages 24–29 of this appellate brief.) Meanwhile, Kaplan allowed Chevron to drop a “sham litigation” allegation against Donziger that would have scrutinized Texaco’s environmental record in Ecuador (the essence of the legal battle since 1993) during discovery (page 48 of the appellate brief).
An indispensable liar
Despite rummaging through Donziger’s personal life, Kaplan’s ruling relies very heavily on the testimony of a defrocked Ecuadorian judge named Alberto Guerra. Chevron paid Guerra well over a million dollars worth of benefits for his testimony, but he later admitted to lying to Kaplan about being offered a bribe by Donziger, the substance of the “corruption” Kaplan used to overturn Ecuador’s ruling. In 2018, Kaplan absurdly claimed that Gueraa’s testimony was “far from indispensable” (page 12 of Kaplan’s opinion). Guerra’s name appears 13 times in the table of contents to Kaplan’s 2014 ruling alone, and an average of about once per page in the entire document.
More absurdly, and tellingly, Kaplan (page 43 of the legal brief) said during a hearing on February 8, 2011:
We are dealing here with a company of considerable importance to our economy that employs thousands all over the world, that supplies a group of commodities, gasoline, heating oil, other fuels and lubricants on which every one of us depends every single day. I don’t think there is anybody in this courtroom who wants to pull his car into a gas station to fill up and finds that there isn’t any gas there because these folks [Donziger’s clients] have attached it in Singapore or wherever else.
The first rule for presenting the subject of a story in an unflattering light: Make sure you get a photo of them with their mouth open (Reuters, 8/14/20).
So we are dealing here with a judge who is openly biased in support of large corporate interests, and appears disconnected from reality, if he really thinks he kept US gas stations open by protecting Chevron from Ecuadorian villagers. But he alone ruled on this case because, at the last possible moment, Chevron dropped its demand for monetary damages–thus allowing Kaplan to refuse Donziger a jury.
As for the contempt trial that Donziger now faces, the National Lawyers Guild International Committee and International Association of Democratic Lawyers (in a letter signed by over 75 organizations in May) noted, among other things, that Kaplan “bypassed the random case assignment process and handpicked Judge Loretta Preska” to rule on the contempt charges.
Judge Kaplan (a Bill Clinton appointee) has also been enabled by the wider US judiciary in his persecution of Donziger. The appeals court that upheld his ruling in 2016 also ruled that very same month that UN troops could not be held responsible for killing 10,000 Haitians through negligence. Donziger’s law license was suspended in 2018 based on Kaplan’s ruling. A judicial referee later recommended Donziger be reinstated, but then an appeals court quickly stepped in to disbar Donziger.
If the US judiciary is filled with people who enable Kaplan, and if a jury trial is easily evaded by powerful companies, then it would be nice if one of the world’s largest news agencies would shine a critical light on his case. That never happened.
Bullies can be truth-tellers?
Reuters legal columnist Alison Frankel (5/7/14) suggests that pollution in Ecuador’s Lago Agrio region is entirely coincidental to Texaco (now part of Chevron) drilling for oil there.
Many of the key facts I’ve just outlined above are impossible to learn by relying on Reuters’ extensive coverage—32 articles since November of 2013. None of them explained why there was no jury in the trial Kaplan presided over (because Chevron dropped its demand for monetary damages). None explained how Chevron (with Kapaln’s blessing) was able to go wild with discovery on Donziger while shielding itself from it, and never had to defend Texaco’s environmental record in Ecuador. None mentioned that a Chevron PR consultant declared internally in 2000 that the corporate “strategy is to demonize Donziger” (Intercept, 1/29/20). Only two articles (4/20/15, 12/16/15) vaguely mentioned that Chevron fought to move the case to Ecuador, but the articles did not say that this was a nearly decade-long process, or that Chevron had promised the US court that sent the case back to Ecuador that it would abide by Ecuadorian jurisdiction.
One article by Casey Sullivan (5/13/14) falsely stated that the “case traces back to 2003 when a group of Ecuadorean villagers sued Chevron” in Ecuador. An opinion piece by Reuters legal columnist Alison Frankel (5/7/14) wrote: “I’ve come to believe Donziger couldn’t make a case against the company. Sometimes, bullies are also truth-tellers.” Both Sullivan and Frankel conveniently missed that Donziger spent nearly a decade (1993 to 2002) fighting to bring his case before a US jury. Why would a company fight against that if Donziger’s case was weak?
Bullies are usually served by US judges, lawyers and corporate journalists. That’s the path a Harvard Law graduate like Donziger could easily have taken. He is being brutally punished for not taking it.
ACTION ALERT: You can send a message to Reutershere (or via Twitter: @Reuters). Please remember that respectful communication is the most effective.
Featured Image: Depiction of Steven Donziger in the Intercept (5/20/20).
Once on the margin of the margins, calls for the nationalization of U.S. fossil fuel interests arebgrowing. Before the Covid-19 pandemic, the basic argument was this: nationalization could expedite the phasing out fossil fuels in order to reach climate targets while ensuring a “just transition” for workers in coal, oil, and gas. Nationalization would also remove the toxic political influence of “Big Oil” and other large fossil fuel corporations. The legal architecture for nationalization exists—principally via “eminent domain”—and should be used.
But the case for nationalization has gotten stronger in recent months. The share values of large fossil fuel companies have tanked, so this is a good time for the federal government to buy. In April 2020, one source estimated that a 100 percent government buyout of the entire sector would cost $700 billion, and a 51 percent stake in each of the major companies would, of course, be considerably less. However, in May 2020 stock prices rose by a third or so based on expectations of a fairly rapid restoration of demand.
But fears of a fresh wave of Covid-19 outbreaks sent shares tumbling downward in June. Nationalizing oil and gas would be a radical step, but this alone would not be enough to deliver a comprehensive energy transition that can meet climate goals as well as the social objectives of the Green New Deal. Such a massive task will require full public ownership of refineries, investor-owned utilities (IOUs), and nuclear and renewable energy interests.
Progressives may feel it’s unnecessary to go that far; why not focus on the “bad guys” in fossil fuels and leave the “good guys” in wind, solar, and “clean tech” alone? But this is not an option. The neoliberal “energy for profit” model is facing a full-spectrum breakdown, and the energy revolution that’s required to reach climate targets poses a series of formidable economic and technical challenges that will require careful energy planning and be anchored in a “public goods” approach. If we want a low carbon energy system, full public ownership is absolutely essential.
Mission Impossible?
But would a Biden White House, even with a Democrat controlled House and Senate, ever nationalize U.S. oil and gas? The idea sounds preposterous. It is not. In fact—as will be explained here—nationalization could actually be imminent.
Share values may fluctuate, but the U.S. oil and gas sector is currently mired in a chronic debt crisis. A wave of bankruptcies seems extremely likely. The debt crisis is the result of the combined impact of global oversupply of oil and gas before the pandemic, and a massive slump in demand as a result of the lockdown and its economic fallout. In April 2020, oil industry advisor Art Berman announced it was “game over” for most of the U.S. oil industry. According to Berman, “Large segments . . . will have to be nationalized before the year (2020) is over. The price of oil is too low to justify the cost of extraction even if storage were available.” Oil and gas is not an industry that can be “bailed out” in the same way as the “Big Three” auto companies were in 2008. Extending companies’ “liquidity” so that they can “restructure” and position themselves for the economic recovery will not matter if global oil and gas prices remain below production costs for a protracted period.
But could a Biden administration sit back and watch major companies declare bankruptcy and then live with the consequences of the United States being increasingly dependent on imported fuels? At the end the day, the financial viability of oil and gas is less important than the energy these concerns generate, which reflects just how dependent the entire economy is on fossil fuels. In other words, there may be no choice but to nationalize the sector.
Comet Covid?
Climate movement opinion leaders often get very twitchy when anyone raises the question of nationalization. Many entertain the idea that such “radical” measures are unnecessary. They believe that simple economics will drive the energy transition; our job is simply to speed things along. Along these lines, divestment organizers have been using the pandemic’s effect “to demonstrate just how dire the need to remove pension fund and other investments from the struggling [fossil fuel] sector really is.”
Listening to the liberal buzz around the pandemic might lead one to believe that it will have a similar impact on dirty energy as did the massive space rock that crashed into the Yucatan 66 million years ago. This single event triggered enough “global cooling” to dramatically alter the course of the Earth’s natural history and wiped out the dinosaurs. Similarly, the economic fallout of the pandemic will, some suggest, precipitate the economic ruin of the fossil fuel companies, and allow cheaper and cleaner energy to thrive.
This “Comet Covid” view has been sustained by a string of “good news” stories. Analysts are predicting an annual fall in CO2 emissions that will be larger than the combined impact of the 2008 economic crash and the two world wars. And according to the International Energy Agency (IEA), “Renewables have claimed a greater share of electricity generation as a result of lockdown measures and depressed electricity demand,” which generated headlines like “ . . . Renewables Are Taking over the Grid.” The Rocky Mountain Institute cheerfully reported that U.S. solar had recorded a 22.5 percent increase in market share during the early months of the pandemic. The International Renewable Energy Agency (IRENA) claimed that the plunging cost of renewables would soon mark “a turning point in a global transition to low carbon energy.” In early April, The Guardian reported that the pandemic “will permanently alter the course of the climate crisis . . . pulling forward the date at which demand for oil and gas peaks, never to recover, and allowing the atmosphere to gradually heal.” In other words, Comet COVID has kicked up so much disruption that, when the dust finally settles, a new energy landscape will be clearly visible.
Green Slump
This “watch in wonder” mentality encourages political passivity and complacency. First, the dip in greenhouse gas (GHG) emissions will provide only a temporary respite if energy demand and emissions are allowed to creep back up to pre-pandemic levels. According to the IEA this could happen by late 2021, although predictions such as these are based on the so called “V-shaped recovery” scenario, which could turn out to be wildly off. Divestment movement leaders might also want to reflect on the IEA’s recently released (May 2020) World Investment Outlook. A total of $1.8 trillion was invested in the energy sector in 2019. In 2020, investment is expected to fall by $400 billion—a 20 percent decrease. Investments in fossil fuel exploration and extraction, refinery upgrades, and so on, have taken a 29 percent hit—down $156 billion from 2019. In the United States, analysts predict that shale and “tight oil” investments will fall by 52.2 percent in 2020. So what’s the point of encouraging activists to go to extraordinary and time-consuming lengths in their organizing efforts only to sprinkle lighter fluid on a conflagration?
As for the great leap forward for U.S. solar, the much-celebrated 22.5 percent increase in market share took solar to—wait for it—2.6 percent of U.S. electricity supply. Wind is doing better, but wind and solar combined supplies just 11 percent of U.S. electricity. Currently gas and coal together generate almost 63 percent and nuclear another 20 percent. And due to the sharp fall in demand for electricity, U.S. renewable energy interests reported 600,000 layoffs in March and April. All the job gains in renewables over the last five years have disappeared. Power utilities, already struggling to remain solvent, will also be hit by a major loss in revenues. The IEA estimates that global investment in renewable projects will fall 10 percent in 2020, accompanied by a 16 percent decline in spending on electricity networks over two years. As the IEA notes, “These trends are clearly misaligned with the needs of sustainable and resilient power systems.” In fact, renewables were in big trouble before the pandemic. Investment levels were falling, led by Europe and more recently in China, and annual levels of deployment had flatlined. But why? In the IEA’s words, recently, “Renewables generally do not offer opportunities that investors are looking for in terms of market capitalization, dividends, or overall liquidity . . . Market and policy signals were not leading to a large-scale reallocation of capital to support clean energy transitions.” Activists take note: It is not easy for capitalists to make money from investing in renewable energy. And it just got a lot harder.
Triple Trouble
Meanwhile, U.S. oil and gas today faces a three-sided crisis. First, the sector has become dependent on hydraulic fracturing (fracking). Fracking accounts for about two-thirds of U.S. oil production, and 75 percent of gas production. A decade ago oil prices were above $100 per barrel, and it was those prices that made fracking for shale oil attractive to investors, and marked the start of the U.S. shale boom. However, production costs for frackers are considerably higher than they are for conventional “vertical” drillers. For fracking to be profitable, global oil prices must not fall below $45 per barrel or so. In mid-June 2020, the price was still below $40, and it’s likely to stay at $40 or so at least until the turn of the year.
Second, companies were already in trouble as a result of a massive global oversupply, theresult of a price war between Saudi Arabia and Russia. Oil prices had already slumped almost 50 percent before the pandemic. Gas followed a similar pattern. As a result of overproduction, gas prices dropped by a third in 2019. Cheap gas stimulated a dramatic growth in demand, particularly from China and Europe, for U.S. liquefied natural gas (LNG). And while the production costs of U.S. shale gas amounts to less than $15 per barrel of oil equivalent, other countries are also producing gas at even lower prices.
Many U.S. gas companies have for some years failed to generate enough revenue either to cover the costs of production or to pay the interest on billions of dollars in loans. Investors have therefore moved away from shale gas. In the months before the pandemic more than 40 U.S. fracking companies had filed for bankruptcy. By June 2020 global gas prices hit rock bottom, thus making the situation even more dire. World Oilreported that “the $600 billion global gas market remains extraordinarily oversupplied.” U.S. fracking operations can remain viable when gas prices stay above $3 per million “thermal units” for domestic use, and above $5.50 for exports. As of this writing, both global and domestic prices were hovering around $1.80.
Third, the pandemic has led to a slump in global oil and gas demand—one that is expected to be seven times larger than the 2008 financial crisis. As a response, U.S. oil and gas companies hastily “turned off the valve” and, by late May 2020, the number of active rigs had fallen roughly 65 percent from the year before. According to Berman, “The only option for many producers is to ‘shut in’ their wells. That means no income. Most have considerable debt so bankruptcy is next.” In May, U.S. refineries were handling 25 percent less crude than a year earlier. More than 100,000 oil and gas jobs had disappeared.
Consolidation or Liquidation?
So what will happen next? For U.S. oil and gas, three outcomes seem possible. First, global energy demand might recover quickly, taking us back to “business as usual” marked by higher prices and, of course, higher emissions levels. Second, the supply–demand imbalance will persist, triggering a wave of bankruptcies and industry consolidation. According to one source, as many as 70 percent of the 6,000 shale drillers could go bankrupt if gas prices remain too low to cover costs or service debt. A handful of larger corporations might then buy up the assets of the smaller ones. Third, the global levels of demand will remain depressed for a longer period, forcing some of the larger companies (known as “majors”) into asset sell-offs or bankruptcy.
Significantly, the big players in oil and gas—represented by the American Petroleum Institute (API)—are gambling on the first two outcomes. As of this writing, they are not asking the Federal government to intervene. The API is concerned that this would open the door to government influence and greater control. While tweeting, “The free market is the best arbiter,” the API nevertheless appealed to the Trump administration to pressure China to agree to purchase large volumes of the United States’ surplus fossil-based energy. (Nothing like a bit of diplomatic hard ball when the free market lets you down.) Failing this, the API would be happy if the likes of Exxon end up buying the assets of smaller players. But, according to the accounting firm Deloitte, only 27 percent of shale companies would offer enough value for buyers, and “only large independents or supermajors such as Chevron and ExxonMobil still have the financial strength to make acquisitions.” But the third outcome—protracted losses and widespread bankruptcies—could force the federal government to consider nationalization.
Their Nationalization, and Ours
A Biden-style nationalization might involve the federal government playing a ringmaster role, negotiating purchasing agreements where the government buys gas and oil at above global prices in order to preserve the industry in a way that perpetuates current corporate control. If domestic production is allowed to collapse simply because production costs exceed revenues, then the United States will need to import more gas and oil, while trying to deal with fallout in areas of the country that have become economically dependent on the shale boom. A Biden White House would probably not want to see that happen. In the electricity sector, the federal government could instruct states to support failing IOUs by way of power purchase agreements or capacity payments. Subsidies to renewable energy could also be beefed up.
But none of these measures add up to the kind of nationalization the left can or should support. Our goal is not to preserve the current corporate structure, or to rescue Wall Street lenders and private energy companies. For us, nationalization can provide a platform for the restructuring the entire energy economy, including the renewables sector.
But “our nationalization” will need to be clear about two things. First, what we are witnessing today is not a crisis of fossil fuels, but a crisis of profitability. We are as dependent on fossil fuels as we ever were. Second, the profitability crisis spans the entire energy sector. Without government intervention, many refineries, energy transportation companies, pipeline interests, and so on, may no longer be able to operate as viable businesses. The electricity sector, too, is facing a deluge of red ink, and utilities and subsidies-dependent wind and solar companies are hanging on by their fingernails.
It would therefore be a major mistake to imagine nationalization as a “clean up operation,” a means of winding down the production of domestic shale gas and oil on the basis that,well, they are currently economic basket cases—so what’s the problem? The unfortunate reality is that the U.S. economy will consume large volumes of coal, oil, and gas for the foreseeable future. Until low-carbon energy and energy conservation can be scaled up, an accelerated phase down of gas and oil would simply mean that the United States will import more energy from overseas. And if large parts of U.S. production were to permanently come offline, then global prices will increase, and the winners will not be the climate, or workers; the winners will be the United States’ current competitors.
If nationalization is going to serve both workers and the climate, we will need to accept that a phase out of oil and gas is not a 10-year proposition. The transition to a low or zero-carbon energy system will take considerably longer than a decade. The entire economy has been built around fossil fuels, and it is impossible to change that in such a short amount of time. Nationalization can, however, allow the country to develop pathways to decarbonization that are socially just and also make ecological sense. It will not be quick and easy—but it’s the only way the vision of the Green New Deal can ever become a reality.
Covid-19 was not a comet crashing into planet Earth, but it could be a lightning bolt in terms of its policy implications both domestically and internationally. Both the climate movement and progressive labor should support a comprehensive and transformative nationalization, and without reservations. If the United States—the world’s largest oil and gas producer—nationalizes its energy systems, it could instigate a tectonic shift in the way the world handles the climate emergency. The country’s power as an energy producer and consumer can be leveraged in ways that can remodel and redirect global energy toward a truly sustainable future.
Author Biography
Sean Sweeney is the director of the International Program on Labor, Climate & Environment at the School of Labor and Urban Studies, City University of New York. He also coordinates Trade Unions for Energy Democracy (TUED) a global network of 64 unions from 22 countries. TUED advocates for democratic control and social ownership of energy resources, infrastructure, and options.
On Thursday, the Trump administration rolled back Obama-era rules designed to rein in fugitive methane emissions, a powerful greenhouse gas routinely emitted from leaking oil and gas infrastructure — commonly from unlit flares that, when ignited, are designed to burn off methane as carbon.
Methane emissions, which have 80 times the heat-trapping power of carbon dioxide over 20 years, are so damaging to the planet that even though there is 225 times less methane in the atmosphere than carbon, methane disproportionately contributes about a quarter of all the human-caused planetary warming.
The Environmental Protection Agency’s (EPA) new rules rescind 2016 Obama administration limits on industry emissions of methane and prevent future regulation at sites built before 2015. They also weaken remaining requirements for oil and gas companies to locate and fix venting flares and wells.
The rollback is the latest move in a larger effort to exploit the pandemic to weaken environmental safeguards. That effort has targeted a number of other critical environmental rules, including relaxing controls on releases of pollution from coal-fired plants, tailpipes and industrial soot. Last month, the administration gutted the nation’s landmark conservation law, the National Environmental Policy Act, to expedite permitting processes for federal infrastructure projects like pipelines and power plants.
The new methane rules worsen an already grim situation in one of the world’s largest regional climate emissions bombs in West Texas and southeast New Mexico’s sprawling Permian Shale Basin. After dipping below negative for the first time in April, oil prices have rebounded to around $40 a barrel — still below what most drillers need to break even.
As oil and gas extraction and demand continue to drag, emissions in the Permian are still amassing critical levels as cash-strapped and bankrupt drillers take advantage of unprecedented bailouts, bond buyback schemes, subsidies, tax breaks and regulatory “relief” to enrich executives and cut even more corners, abandoning unprofitable wells altogether or refusing to fix venting tanks or broken flares.
According to the data from the Railroad Commission of Texas, which regulates oil and gas, extraction in the state dropped 13 percent in May 2020 compared to June 2019, while the total volume of gas flared fell about 82 percent during the same timeframe. The problem, though, isn’t the region’s reduced overall extraction and flaring; it’s unignited flares left to blast methane into the atmosphere.
“Picture the worst thing you can think of, and that’s how the Permian was before the crash. Then multiply that by 10.”
In June, environmental watchdog Environmental Defense Fund (EDF) flew specially equipped helicopters above hundreds of Permian drilling sites as part of its Permian Methane Analysis Project, or PermianMAP. Researchers found that more than one in 10 flares in the Permian Basin could be unlit or malfunctioning, accounting for a majority of the 300,000 tons of methane vented from the region every year. The amount of vented methane is three times the annual total the EPA reports.
Claus Zehner of the European Space Agency told The New York Times that Permian methane concentrations measured in March and April suggest a substantial overall increase, despite the region’s decreasing rates of extraction. Now, the Trump administration’s lifting of methane rules is set to amplify those emissions even more — by 370,000 tons through 2025, according to the federal government’s own calculations.
Reeling after more than 100,000 job losses since February, the industry was already enjoying the suspension of some federal and state inspections. Even before the lifting of federal methane rules, the Permian Basin had long been a Wild West for down-and-out drillers, whose incentive to spend money on hunting down and fixing gushing flares was laughable before the crash and has now been all but abandoned.
Wild West Texas
Sharon Wilson, a senior field advocate for the Oil and Gas Accountability Project at the environmental watchdog Earthworks has seen just how much methane is spewing into the air since the onset of the pandemic and subsequent oil crash. Wilson is a certified optical gas imaging thermographer and has extensively documented such pollution over the years by using specialized cameras to record methane pollution normally invisible to the naked eye.
The Oil and Gas Accountability Project has conducted more than 1,000 field investigations revealing the industry and state regulators’ negligence and malfeasance in facilitating massive levels of methane emissions. Additional research published this year confirms what both EDF and Earthworks have found, suggesting methane pollution in the Permian is about 60 percent higher than other shale plays in the nation.
Wilson visited the region in early March and described the situation as dire. “Picture the worst thing you can think of, and that’s how the Permian was before the crash. Then multiply that by 10,” Wilson told Truthout. “It’s hard to comprehend in the face of rapidly accelerating climate change, that this could be going on anywhere. The amount of methane coming out of most of these unlit flares is unimaginable.”
“It’s hard to comprehend in the face of rapidly accelerating climate change, that this could be going on anywhere.”
Wilson noticed an uptick in venting from unlit flares, storage tanks and compressor vent pipes even before the crash. EDF’s surveys have shown, respectively, that 11 and 12 percent of at least 312 active flares measured in the region had issues that could cause abnormally high methane emissions.
“It looks like what [producers] started doing when the price of gas plummeted — it cost them more to transport it in a pipeline to market than what they can get for it, so it looks like they just started dumping it into the air,” Wilson said. “We’ve got just a horrible mess out there.”
Wilson says she has made hundreds of complaints to the Texas Commission on Environmental Quality (TCEQ) over the years documenting venting with thermal imaging, and several since the onset of the price collapse. Even if a driller manages to fix a malfunctioning flare, she says, it doesn’t always stay fixed.
“A month later, [the flare] can be just how it was. So the TCEQ is turning their head. They’re looking the other way,” she says. Leasing laws also complicate matters: Many companies may be unable to shut off flaring rigs or stop extracting even when its uneconomical to do so because they are bound by leases.
Wilson has made several complaints to TCEQ regarding oil and gas firm MDC Energy’s venting at a particular site she says has been blasting methane since November, when the company first filed for bankruptcy. TCEQ’s website shows it has issued six violations against MDC related to harmful emissions at the site.
TCEQ spokesperson Brian McGovern told Truthout that the agency’s Midland Region has received 14 complaints related to sites operated by MDC. The agency has completed three investigations addressing seven of the complaints and is in the process of investigating the other seven.
The agency doesn’t directly regulate methane as an air pollutant in any case, he says, except as required through specific federal programs, such as the Prevention of Significant Deterioration program. Trump’s rollback does not affect that program.
“We’ve got just a horrible mess out there.”
Still, the administration’s rollback highlights a serious flaw in the way flaring was monitored in the first place: State and federal regulators often rely on drillers themselves to monitor and report on their own flares. Now, under federal law, broke and bankrupt drillers won’t even have to. Worse, without TCEQ flagging a violation, there’s no way to ensure companies spend a portion of their court-appointed budget on fixing problems.
More than 50 oil and gas companies have filed for bankruptcy since oil prices crashed in March. Smaller drillers were already filing for Chapter 11 even before the crash. Raul Rodriguez, who is superintendent for MDC Texas Energy, told Truthout in May that a bankruptcy judge establishes the company’s budget every 13 weeks. “Some work has been postponed or pushed back, depending on our budget,” Rodriguez said at the time.
When asked how the company’s budget constraints impact its ability to tamp down methane emissions, Rodriguez simply said, “I can’t talk about that.” Still, he insisted, the company is trying to do everything by the book. “It’s a work in progress. With the coronavirus and the drop in oil prices, it’s a double-edged sword for us.”
The company’s top lender, French investment bank Natixis, later alleged in bankruptcy court that in the months before the MDC filed for bankruptcy, it paid its chief executive $8.5 million in consulting fees. Other Permian drillers have acted similarly, asking bankruptcy judges to authorize millions in bonuses to executives. Many that have lost billions for shareholders are still rewarding CEOs with lavish pay packages.
“With the coronavirus and the drop in oil prices, it’s a double-edged sword for us.”
With billions in CARES Act tax breaks and loans in hand, large oil and gas companies are gambling on a recovery fueled by automation and increased consolidation as large producers engulf cheap assets. The industry is looking to technological fixes not only to address methane emissions but also to speed extraction, hoping new innovations will make for leaner operations.
In May, the Railroad Commission convened a task force of industry insiders wielding new innovations to provide recommendations for combating flaring. During a meeting on August 4, commissioners approved a number of the task force’s recommended changes to state rule that oversees flaring, including providing incentives for companies to deploy new technologies to reduce the practice.
Environmental groups say the commission must do more than simply rely on companies voluntarily reduce their own flaring, especially now that federal requirements for companies to install equipment and technologies to detect methane leaks has been shredded.
Plugging the Permian
A Democratic sweep in November may be the only way to undo Trump’s methane regulatory rollbacks. If Democrats control the Senate, they could reverse the rule changes in the first 60 legislative days under a Senate procedure known as the Congressional Review Act.
While Biden has refused to endorse a Green New Deal, he has championed several far-reaching Sanders-Biden unity task force recommendations on climate. His $2 trillion climate plan includes putting people to work plugging thousands of abandoned oil and gas wells but does not include a national fracking ban.
“We need strong federal rules to protect the rest of the world from Texas.”
Climate activists, who are working to pressure Biden to more aggressively target the industry are increasingly hopeful given this week’s announcement that Sen. Kamala Harris will be joining the presidential ticket. Harris endorsed both a Green New Deal and a fracking ban, and has said she would seek to end the Senate’s filibuster rules to pass a Green New Deal.
“The next president and states individually will need to double down with drastic measures to protect the public and climate,” Wilson says. “We need strong federal rules to protect the rest of the world from Texas.”
Beyond simply reversing the rollbacks and strengthening regulations, calls are growing to nationalize an industry that has been a debt-ridden financial house of cards for more than a decade, as has happened in the U.S. during other national crises. In fact, despite the technological improvements the sector has heralded over the last decade, few drillers have ever been able to turn a profit — even when prices were above $50 a barrel.
Now, nationalization and a managed decline of extraction along a science-based timeline is not only the best way to keep the shale bubble from bursting any further; it’s the best way to keep the methane bubble from bursting the climate.
“The oil and gas industry is in its death throes and this would be a perfect time for renewables to take over.”
At the state level, the crash provides an opportunity to expand the state’s renewable energy sector — something a majority of Texas Republicans have supported in the past. Their passage of Senate Bill 20 in 2005 vastly transformed the state’s wind energy sector into a force that now provides nearly a fifth of the state’s power.
According to the U.S. Department of Energy, Texas could produce more electricity from wind than any other state in the country. Combined with its growing solar industry, a Green New Deal in Texas could make the state a national leader while providing a just transition to thousands of oil and gas workers facing layoffs now or in the future as the industry automates.
“I think the oil and gas industry is in its death throes and this would be a perfect time for renewables to take over,” Wilson says. “But everything is chaotic, and we need it to be more managed.”
Editor’s Note
Substack is dealing with a bad bug that has disrupted our ability to bring on new paid subscribers for over a week. This is unfortunate, as it has undermined the launch of The Dissenter newsletter. Until Substack can fix this, all editions, including exclusive editions, will be sent to everyone.
Fossil fuel companies dramatically understate the risks posed to them by climate change and threaten the global economy, according to the National Whistleblower Center (NWC).
NWC, a whistleblower advocacy organization in Washington, D.C., compiled a report [PDF], “Exposing a Ticking Time Bomb: How Fossil Fuel Industry Fraud is Setting Us Up For A Financial Implosion—and What Whistleblowers Can Do About it.”
It is a call to action for “executives of fossil fuel companies and others with knowledge of improper accounting and disclosure practices, such as external auditors.”
NWC urges such individuals to work with the Securities and Exchange Commission (SEC) to obtain “protected whistleblower status” in order to help government officials root out industry fraud.
“In light of the deceptions we found, the handful of pending fraud cases challenging climate risk disclosures by fossil fuel companies are probably just the tip of the iceberg,” declared John Kostyack, who is the executive director for NWC and lead author of the report.
While calling attention to a looming economic catastrophe, the report educates potential whistleblowers on rewards and protections available. For example, the Dodd-Frank Act offers a route for whistleblowing on climate risk fraud, and more than $500 million in whistleblower rewards have been paid out since the legislation passed in 2010.
The NWC breaks the risks, which they believe the fossil fuel industry is systematically hiding, into two categories: “transition risks” and “physical risks.”
Transition risks are “financial risks associated with the global shift away from fossil fuels as environmental policies change (through court rulings, tax and subsidy changes, etc).” The rise of inexpensive “low-carbon technologies” also threatens the industry.
Physical risks are the “risk of physical damage to property, economic productivity, and household wealth from climate change, including an increase in frequency and severity of catastrophic weather events as well as long-term environmental changes.”
As the report notes, the fossil fuel industry has a “long history of fraud and deception, from systematic underpayment of oil and gas royalties to schemes by mining companies to defeat benefit claims from minors with black lung disease.”
“In a 2016 survey of the oil and gas sector and mining sector (which includes coal), the management consulting firm EY found that 35 percent of respondents would ‘act unethically to help a business survive an economic downturn.’ EY concluded that increased pressure on managers provides ‘a strong incentive to do whatever it takes to make the numbers look good.’”
COVID-19 Intensifies The Rationale For Deception
From National Whistleblower Center’s “Exposing a Ticking Time Bomb” report
The report adds, “Rationalization of cheating appears to be prevalent in the fossil fuel sector. In the same EY survey referenced above, 43 percent of respondents said that ‘potentially unethical action could be justified to meet financial targets.’”
COVID-19 has intensified the compulsion to commit fraud to deceive shareholders and the wider public.
Forbes described, “As Covid-19 spread to other countries and quarantines were implemented, oil prices ultimately fell into negative territory, which had never happened before with a major benchmark. Power demand fell as businesses closed and people stopped traveling or commuting. This created a perfect storm that obliterated fossil fuel demand in April.”
Furthermore, fossil fuel corporations are likely to engage in deception when it comes to “plans for removing carbon from emissions” and their liability for toxic waste, carbon pollution, or other environmental degradation.
“Oil and gas companies are required by law to close wells no longer in use in accordance with environmental standards. As demand for fossil fuels falls below the projections that justified development of wells, companies must accelerate the date of the wells’ retirement,” according to the report.
Fossil fuel corporations have also accumulated “extensive liabilities” for cleaning up toxic waste and environmental damage they caused, and a failure to disclose has previously resulted in securities fraud.
“In 2015, oil & gas company Anadarko Petroleum (now owned by Occidental Petroleum) agreed to a $5.15 billion penalty to settle allegations that Kerr-McGee Corporation (acquired by Anadarko) had fraudulently sold assets in order to avoid substantial environmental liabilities when spinning off a new company,” the report recalls.
One fraudulent technique corporations employ to avoid paying to clean up the messes they create involves offloading liabilities “onto poorly managed companies destined for bankruptcy.
…A 2004 report by the Rose Foundation found that BP, ConocoPhillips, Chevron USA, Oxy USA and Atlantic Richfield had offloaded millions in asset retirement obligations by selling old wells to Panoco, a smaller company that declared bankruptcy after racking up $60 million in costs for decommissioning wells. A 2019 study of coal companies published in the Stanford Law Review found that between 2012 and 2017, four of the largest coal companies in the U.S. managed to evade US$5.2 billion of environmental and retiree liabilities by filing for bankruptcy…
The National Whistleblower Center focuses on Murray Energy, a coal company that filed bankruptcy in 2019 to ensure it did not have to pay $2.7 billion in debts or $8 billion for coal miners’ pension and health care plans.
“Bankruptcy filings show that Murray earmarked nearly $1 million to fund political action committees and groups working to deny climate change and roll back emission reduction laws,” the report notes. “For example, Murray gave $300,000 to Government Accountability & Oversight, a group that describes its efforts as an ‘antidote’ to climate campaigner efforts.”
“Other beneficiaries [included] the Competitive Enterprise Institute, a free-market think tank that denies human activity is the main cause of global warming, and the Heartland Institute, which has worked for years to instill doubt about climate science.”
A Key SEC Lawsuit
Screen shot from National Whistleblower Center report, “Exposing a Ticking Time Bomb”
NWC has a history of challenging industry-wide practices and well-financed opposition in the energy sector. In particular, NWC’s first case challenged a nuclear energy practice that involved coercing employees to sign non-disclosure agreements to prevent them from blowing the whistle on safety concerns.
Their work has centered on expanding laws like Dodd-Frank and the Sarbanes-Oxley Act so that whistleblowers are incentivized to come forward with information and risk their careers and livelihoods.
In addition to lawsuits against corporations, like Exxon Mobil, that states, local governments, and children have filed, NWC recommends potential whistleblowers provide anonymous and confidential tips to the SEC under Dodd-Frank that will root out securities fraud within the fossil fuel industry.
“One group of whistleblowers, led by former Exxon senior accounting analyst Franklin Bennett and including a former partner in a major U.S. accounting firm, has elected to publicize the key allegations of a pending complaint with the SEC challenging Exxon’s asset valuations,” the NWC highlights.
Bennett’s whistleblowing centers on Exxon’s “failure to write down assets to account for the dramatic recent declines in demand for shale gas,” which directly relates to climate change risks.
“It will be important for whistleblowers to pay attention to whether the SEC acts on this complaint and if so, how it approaches Exxon’s obligations with regard to climate risk disclosures.”
