Gifts to Special Interests Should Not Be Included in Energy Bill
by Peyton Knight
For those who use and depend on affordable energy, there is plenty to dislike about the energy proposals currently being negotiated in Congress. Should Title VI of the House-passed energy bill (H.R. 3221) become law, however, trial lawyers and environmental profiteers would have reason to celebrate. This provision resembles a gift to them more than it does a responsible energy policy.
A Boon to Environmental Opportunists
Title VI requires federal agencies to gradually reduce their greenhouse gas emissions to "achieve zero net annual greenhouse gas emissions" by FY 2050.1
In order to achieve this so-called "carbon neutrality," agencies would be permitted to purchase carbon "offsets,"2 which rightly have been pilloried as carbon "indulgences." Any agency struggling to meet its required greenhouse gas emissions reduction target could simply pay a carbon offset provider3 to absolve the agency of its environmental sins by planting trees, building windmills or investing in other renewable energy projects on the agency's behalf.
This environmental soul-cleansing could cost federal agencies and American taxpayers dearly. For example, in 2006 the Defense Department emitted roughly 341 million tons of CO2 by burning jet fuel.4 The CarbonNeutral Company, which is just one of many companies cashing in on the carbon indulgence craze, is charging as much as $13.51 to "offset" one ton of CO2. Therefore, the Department of Defense's jet fuel indulgence bill alone could cost over $4.6 billion.
Some might argue that our defense budget would be better spent supplying our troops with the armor, artillery and equipment they need as opposed to padding the coffers of carbon offset companies.
A Boon to Trial Lawyers
Environmental opportunists are not the only beneficiaries under Title VI of the House energy bill. Trial lawyers could benefit as well. If a federal agency fails to meet its required emissions reductions targets, under the title, the agency can be sued by any "aggrieved" American who claims to have been harmed as a result.5 "Harm," as it is defined in the bill, means "any effect of global warming, currently occurring or at risk of occurring, and the incremental exacerbation of any such effort or risk that is associated with relatively small increments of greenhouse gas emissions, even if the risk is widely shared."6
The bill makes clear that a court may award attorney fees and the costs of litigation to a prevailing plaintiff.7 Trial lawyers won't pass up an opportunity to mine the deep pockets of the federal government merely by arguing that an agency's failure to cut back on energy use might, someday, somehow cause their client "harm."
This provision also paves the way for environmental groups to achieve in court what they have not yet achieved legislatively. In fact, such groups have already had limited success suing federal agencies they claim are liable for causing global warming.
For example, in 2005, a federal judge in San Francisco approved a lawsuit filed by several environmental groups against two federal agencies that the plaintiffs claimed are funding overseas projects that contribute to global warming.8 An attorney for Friends of the Earth proclaimed this is "the first decision in the country to say that climate change causes sufficient injury to give a plaintiff standing, to open the courthouse door."9 If Title VI of the House energy bill becomes law, such decisions could become more common. The floodgates to more frivolous global warming lawsuits would be open.
The Energy Information Administration projects that primary energy use in the U.S. will increase 31 percent by 2030.10 Rather than spur the creation of the efficient, abundant energy we need, Title VI of the House energy bill creates opportunities for trial lawyers and environmental profiteers. Not only is this irresponsible, it is not an "energy" policy.
Peyton Knight is director of environmental and regulatory affairs for the National Center for Public Policy Research
1 H.R. 3221, "Renewable Energy and Energy Conservation Tax Act of 2007," Section 6102(b)(2), which reads: "to reduce such greenhouse gas emissions as rapidly as possible, but at a minimum by a quantity equal to 2 percent of projected fiscal year 2010 emissions each fiscal year, so as to achieve zero net annual greenhouse gas emissions from the agencies by fiscal year 2050."
2 H.R. 3221, "Renewable Energy and Energy Conservation Tax Act of 2007," Section 6102(e)(3)(A), which reads: "If no national mandatory economy-wide cap-and-trade program for greenhouse gases has been enacted by fiscal year 2010, the Administrator shall develop and submit to the Congress by 2011 a proposal to allow agencies to meet the annual reduction targets applicable to such agencies under this section in part through emissions offsets, beginning in fiscal year 2015."
3 H.R. 3221, "Renewable Energy and Energy Conservation Tax Act of 2007," Section 6103(b), which reads: "Executive agencies and legislative branch offices may purchase qualified greenhouse gas offsets and qualified renewable energy certificates in any open market transaction that complies with all applicable procurement rules and regulations."
4 Energy Information Administration, "Annual Energy Review 2006," Table 1.13, page 29, available for download at http://tonto.eia.doe.gov/bookshelf/SearchResults.asp?title=&product=0384&submit1=Search as of November 30, 2007.
5 H.R. 3221, "Renewable Energy and Energy Conservation Tax Act of 2007," Section 6212(f)(2), which reads: "In any civil action alleging a violation of this title, if the court finds that an agency has significantly violated this title in its failure to perform any nondiscretionary act or duty under this title or any amendment made by this title, the court may award a payment, payable by the United States Treasury, to be used for a beneficial mitigation project recommended by the plaintiff or to compensate the plaintiff for any impact from global warming suffered by the plaintiff."
6 H.R. 3221, "Renewable Energy and Energy Conservation Tax Act of 2007," Section 6212(e)(2).
7 H.R. 3221, "Renewable Energy and Energy Conservation Tax Act of 2007," Section 6212(f)(3), which reads: "A court may award costs of litigation to any substantially prevailing plaintiff or to any other plaintiff whenever the court determines such an award is appropriate. Such an award is appropriate when such litigation contributes to the Federal agency's compliance with this title or any amendment made by this title. Costs of litigation include reasonable attorney fees and expert fees."
8 David Kravets, "Federal Judge OKs Global Warming Lawsuit," The Associated Press, August 24, 2005, available at http://www.breitbart.com/article.php?id=D8C6HGLO0&show_article=1 as of November 30, 2007.
10 Energy Information Administration, "Annual Energy Outlook 2007 with Projections to 2030," February 2007, available at http://www.eia.doe.gov/oiaf/aeo/demand.html as of November 30, 2007.
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