The Four Horseman of Cap-and-Trade Defeatism: There's Only One "Certainty"

The Four Horseman of Cap-and-Trade Defeatism: There's Only One "Certainty"

November 04, 2009
Originally published in The Energy Tribune

There's a rumor making the rounds among those whose goose is intended to be cooked by passage of the pending "cap-and-trade" energy rationing legislation. That rumor: "You can't just say 'no.'"

In the infinitesimal chance that this rumor was started by someone other than those pushing cap-and-trade, its author has been in Washington far too long or has a cruel sense of humor. Arsonists in our national parks have done less damage than this prank is set to unleash.

The idea that "you can't just say 'no'" is risible on its face: not only can you say no; sometimes you have no choice. For hydrocarbon producers, and for those among parties combusting hydrocarbons capable of taking a slightly longer view than a period of free emission "allowances," this is one of those times.

Notice, for example, how when cap-and-trade promoters are presented a list of provisions to ameliorate the harm they cause -- preemption of EPA "endangerment" or other authorities, of state mischief, of the Endangered Species Act, NEPA, nuisance, etc. -- they oddly feel bound by no such restriction. "No" is, in fact, the only thing that they can come up with.

The inanity does not stop there. The absurdity of this claim and the slow-witted acceptance of it had led me to give some thought to the phenomenon and to the entire, related rhetorical repertoire. So far as I can tell, they are the strongest proof yet that C.S. Lewis' Wormwood does indeed exist, and he is in our nation's capital, whispering in the ears of "the patient." He tells them, "this is how you sound smart in Washington. And, if 'Well, you can't just say no’ fails to persuade, fall back on ‘but, we have to do something.’”

Fear not that nothing ever proposed would actually do anything in terms of the climate. Facts are surely for losers in this matter. If your opponent persists, Wormwood advises, "dazzle them with your witty -- and, I assure you, insightful, no matter how it sounds -- 'If you're not at the table, you're on the menu.'" Then, "If all else fails, sigh, and say, 'well, we just need "certainty."'

By this point, some readers with in-house or retained advisors may begin to feel slightly warm around the collar. It sounds familiar and, let's face it, upon reflection it’s embarrassingly clear that these talking points were provided by the other team, eagerly lapped up by a lobbying class which is unique in its immunity from the economic harms that such schemes will bring. In fact after the "certainty" of cap-and-trade, those lawyers and lobbyists will be more in demand than ever. Odd, that.

If you are in the hydrocarbon industry and still do not realize that you are the menu, and are being encouraged to cause as little trouble as possible on the way to the sauté pan, then it is quite possible that nothing written here will change this. For the intrepid, however, read on.

It is this certainty canard that most truly irritates, given that the legislation actually allows the administrator to set whatever cap or parts per million target she wishes, upon review every four years (see, e.g., Kerry-Boxer Sec. 705). Full employment for lobbyists and trade association reps? Yes, most certainly. Which also reveals the complete opposite of regulatory or otherwise legal certainty.

Of course, you have been told this by your lobbyists and elected representatives who assured you things were fine because after all, in the words of one recently deposed House subcommittee chair, Waxman-Markey cheerleader hailing from coal-country, "I was at the table for you." Right?

OK. Maybe not. But when the following points are more widely understood, they should inoculate against this virus we confront among some, including though not exclusively utilities whose trade association is most insistent of all that their members take the deal their group cut, allegedly saving the membership but, in truth, not so much.

Let's not waste space at this juncture, pretending that those must-have preemptions are in the offing as a way to rationalize capitulation. It is not possible to overemphasize that the political base to which those pushing this bill must answer will not allow even state preemption, or overall EPA (other) CO2 preemption, let alone ESA, NEPA, public trust doctrine, or any among the entire parade of horribles to be remedied in the bill.

Without these, the bill is plainly a disastrous setback -- forget cap-and-trade for the moment -- as it legislatively establishes causation and harm, from each incremental contribution no less (see, e.g., Kerry-Boxer pp. 423-424). The remedy is therefore soon to follow in the courts, after having tied your hands legally. The proponents refusing to even discuss such relief is not a negotiating posture or basket of bargaining chips being withheld. The only related item that is a bargaining chip is the Senate effort to lure parties into being thankful for a return to a mere six-year delay for EPA "endangerment," passed in the House bill.

That's their bait. OK. Win that one. And discover how endangerment delayed is not endangerment denied. The rest of those critical items are not, will not, and politically can not, be on the table. Here you see that the other team can "just say no," and are laughing themselves silly at having convinced your side to unilaterally disarm on that one.

Again, this simply raises my estimation for "The Screwtape Letters" as putting Nostradamus to shame for predictive capacity. For any on our side to seek to negotiate the terms of the House or Senate bills now, premised on the mythical outcome of "certainty" or otherwise, is to negotiate from a position of weakness (hoping also for the impossible). Sun-tzu and his ilk were not the first to instruct about the wisdom of such things. The time to talk about a framework quite plainly designed to send you the way of the Dodo bird is to be engaged, if ever, only after having achieved some leverage.

That only comes after showing you can stop the present wretchedness. That means kill this bill, now, in the Senate. After that, one may sit down with the rationers, seeking peace, which I maintain is not for sale, and will amount to looking to trade one's fortune for a bag of magic beans. But that's a decision to be made later. For now, job one is to attain some semblance of leverage by killing this “climate” bill, not sitting down hoping to make your own execution a more orderly affair.