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Judge grants motion by state of Michigan to appeal key decision in Line 5 dispute

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By James McCarten in Washington

The U.S. judge presiding over Michigan’s bid to shut down the Line 5 pipeline has given her blessing to the state to appeal one of her key findings, breathing new life into a strategy that hinges on getting the dispute heard by a lower court.

Back in August, District Court Judge Janet Neff rejected a motion from Michigan Attorney General Dana Nessel to send the case back to state court, where Nessel has acknowledged they have a better chance of winning.

But earlier this week, Neff granted Nessel’s request to certify that August decision, clearing the way for what’s known as an interlocutory appeal — formally asking an appeals court to reverse a judge’s order before a final decision in the case has been made.

Such certifications, rare in U.S. law, must meet certain conditions, Neff wrote in a decision Tuesday: that they involve a “controlling question of law” that’s likely to generate a difference of opinion, and that an appeal could expedite a resolution.

“Having reviewed the record, the court concludes that this dispute is one of the exceptional situations that compels certification,” the order reads.

“Each of the three issues identified by (the) plaintiff involve a controlling question of law, there is substantial ground for difference of opinion, and an immediate appeal will materially advance the ultimate termination of the litigation.”

Neff has also ordered that the current case — just one of several open files involving Enbridge Inc., Line 5 and the state of Michigan — remain stayed and administratively closed until the appeal is resolved.

Michigan has been in court for years with Calgary-based Enbridge in an effort to shut down Line 5, fearing a disaster in the Straits of Mackinac, the ecologically sensitive region where the pipeline crosses the Great Lakes.

Enbridge and its allies, which include the federal Liberal government in Ottawa, insist the pipeline is safe, that planned upgrades will make it even safer, and that a shutdown would impart too great a cost for the North American economy to bear.

The legal saga, however, has been dominated almost from the start by arcane procedural questions about jurisdiction and precedent, with Tuesday’s decision likely to deepen that morass even more.

Nessel has made three central arguments: that Enbridge flouted a 30-day window to move the case to district court; that Neff relied too heavily on her own earlier decision to reject Nessel’s motion in a separate but nearly identical Line 5 case; and that the question of jurisdiction has not been properly settled.

“The attorney general believes that the federal trial court clearly erred when it refused to send the case back to state court,” Nessel’s office said in a statement. “The order allows (Nessel) to ask the federal court of appeals to step in and right this wrong.”

Environmental groups in Michigan that back the state’s efforts against Line 5 also cheered the decision.

“This ruling is good news for the Great Lakes. Enbridge’s use of the federal courts to delay the state’s ability to protect the Great Lakes is unconscionable,” National Wildlife Federation counsel Andy Buchsbaum said in a statement.

“We hope that this will get the case back on track quickly so the Great Lakes doesn’t suffer from a massive oil spill.”

Enbridge, for its part, sees things differently.

A statement from the company cited Neff’s own words from the August 2022 decision in which she accused Nessel of seeking “a race to judgment and a collision course between the state and federal forum.”

“The attorney general seeks to undermine these considerations and promote gamesmanship and forum shopping,” Enbridge said, “while ignoring the substantial federal issues that are properly decided in federal court and not state court.”

This report by The Canadian Press was first published Feb. 23, 2023.

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Two major banks leave UN Net Zero Banking Alliance in two weeks

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From The Center Square

Under Texas law, financial institutions that boycott the oil and natural gas industry are prohibited from entering into contracts with state governmental entities. State law also requires state entities to divest from financial companies that boycott the oil and natural gas industry by implementing ESG policies.

Not soon after the general election, and within two weeks of each other, two major financial institutions have left a United Nations Net Zero Banking Alliance (NZBA).

This is after they joined three years ago, pledging to require environmental social governance standards (ESG) across their platforms, products and systems.

According to the “bank-led and UN-convened” NZBA, global banks joined the alliance, pledging to align their lending, investment, and capital markets activities with a net-zero greenhouse gas emissions by 2050, NZBA explains.

Since April 2021, 145 banks in 44 countries with more than $73 trillion in assets have joined NZBA, tripling membership in three years.

“In April 2021 when NZBA launched, no bank had set a science-based sectoral 2030 target for its financed emissions using 1.5°C scenarios,” it says. “Today, over half of NZBA banks have set such targets.”

There are two less on the list.

Goldman Sachs was the first to withdraw from the alliance this month, ESG Today reported. Wells Fargo was the second, announcing its departure Friday.

The banks withdrew two years after 19 state attorneys general launched an investigation into them and four other institutions, Bank of America, Citigroup, JP Morgan Chase and Morgan Stanley, for alleged deceptive trade practices connected to ESG.

Four states led the investigation: Arizona, Kentucky, Missouri and Texas. Others involved include Arkansas, Indiana, Kansas, Louisiana, Mississippi, Montana, Nebraska, Oklahoma, Tennessee and Virginia. Five state investigations aren’t public for confidentiality reasons.

The investigation was the third launched by Texas AG Ken Paxton into deceptive trade practices connected to ESG, which he argues were designed to negatively impact the Texas oil and natural gas industry. The industry is the lifeblood of the Texas economy and major economic engine for the country and world, The Center Square has reported.

The Texas oil and natural gas industry accounts for nearly one-third of Texas’s GDP and funds more than 10% of the state’s budget.

It generates over 43% of the electricity in the U.S. and 51% in Texas, according to 2023 data from the Energy Information Administration.

It continues to break production records, emissions reduction records and job creation records, leading the nation in all three categories, The Center Square reported. Last year, the industry paid the largest amount in tax revenue in state history of more than $26.3 billion. This translated to $72 million a day to fund public schools, universities, roads, first responders and other services.

“The radical climate change movement has been waging an all-out war against American energy for years, and the last thing Americans need right now are corporate activists helping the left bankrupt our fossil fuel industry,” Paxton said in 2022 when launching Texas’ investigation. “If the largest banks in the world think they can get away with lying to consumers or taking any other illegal action designed to target a vital American industry like energy, they’re dead wrong. This investigation is just getting started, and we won’t stop until we get to the truth.”‘

Paxton praised Wells Fargo’s move to withdraw from “an anti-energy activist organization that requires its members to prioritize a radical climate agenda over consumer and investor interests.”

Under Texas law, financial institutions that boycott the oil and natural gas industry are prohibited from entering into contracts with state governmental entities. State law also requires state entities to divest from financial companies that boycott the oil and natural gas industry by implementing ESG policies. To date, 17 companies and 353 publicly traded investment funds are on Texas’ ESG divestment list.

After financial institutions withdraw from the NZBA, they are permitted to do business with Texas, Paxton said. He also urged other financial institutions to follow suit and “end ESG policies that are hostile to our critical oil and gas industries.”

Texas Comptroller Glenn Hegar has expressed skepticism about companies claiming to withdraw from ESG commitments noting there is often doublespeak in their announcements, The Center Square reported.

Notably, when leaving the alliance, a Goldman Sachs spokesperson said the company was still committed to the NZBA goals and has “the capabilities to achieve our goals and to support the sustainability objectives of our clients,” ESG Today reported. The company also said it was “very focused on the increasingly elevated sustainability standards and reporting requirements imposed by regulators around the world.”

“Goldman Sachs also confirmed that its goal to align its financing activities with net zero by 2050, and its interim sector-specific targets remained in place,” ESG Today reported.

Five Goldman Sachs funds are listed in Texas’ ESG divestment list.

The Comptroller’s office remains committed to “enforcing the laws of our state as passed by the Texas Legislature,” Hegar said. “Texas tax dollars should not be invested in a manner that undermines our state’s economy or threatens key Texas industries and jobs.”

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Guilbeault’s Emissions Obsession: Ten Reasons to Call Time Out on Canada’s CO2 Crusade

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From the Frontier Centre for Public Policy

By Pierre Gilbert

Before we collectively devastate our economies, further reduce our birth rates in a misguided attempt to save the planet, squander trillions of dollars, and halt human progress by making energy both scarce and exorbitantly expensive, it’s crucial to remember that human-induced climate change is not a settled fact, but rather a hypothesis largely unsupported by the history of the climate but supported by climate models that have considerable error built into them.

Canadian Environment Minister Steven Guilbeault recently announced a plan requiring the oil and gas industry to cut CO2 emissions by more than one-third from 2019 levels by 2030. This deadline might seem far off, but it also stipulates that at least 20 percent of light-duty vehicle sales must be zero-emission by 2026, a deadline that’s just around the corner. This is all part of Guilbeault’s strategy to achieve the ambitious net-zero emissions target by 2050.

There are at least ten reasons suggesting that this plan is absurd.

  1. CO2 is Not a Pollutant.

Carbon dioxide is, in fact, a fertilizer crucial for the growth of all vegetation. Higher concentrations of CO2 result in increased crop yields and more productive forests. Healthier forests, in turn, absorb more CO2, providing oxygen in exchange which is essential for the survival of all living organisms including humans.

  1. CO2 is a Trace Gas

During my extensive career as a university professor, I encountered numerous students eager to support policies that might devastate the livelihoods of thousands of men and women who depend on the oil and gas industry, believing these sacrifices would save the planet. Their near-religious zeal was only matched by their stunning ignorance of basic CO2 facts.

Class surveys I conducted showed that almost one hundred percent of my students were unaware that CO2 is a trace gas, with its atmospheric concentration having varied significantly over centuries and even seasonally. Currently, CO2 represents about 0.04% of the atmospheric gases, or approximately 420 parts per million (ppm). By comparison, nitrogen makes up about 78%, and oxygen around 21%.

The best estimates suggest that human activities contribute roughly 4% of the total annual CO2 emissions (16 ppm). Canada’s share of global emissions is approximately 1.5% (0.24 ppm), essentially a rounding error in the total calculation.

  1. Why Alberta and Not China?

It is no secret that Guilbeault harbours a special animosity towards Alberta. His energy regulations appear designed to severely impact Alberta’s economy despite the province being a relatively minor player on the global stage. In contrast, China, by far the largest contributor to global CO2 emissions, builds two new coal-powered (dirty) power plants every week and is the primary beneficiary of Canada’s coal exports. Why doesn’t Guilbeault turn his scornful gaze towards the People’s Republic? Even during his visit to China in August 2023 for climate talks, not only did he overlook that country’s appalling environmental track record, to add insult to injury, while there he critiqued Suncor for recommitting to oil sands development, highlighting a troubling policy double standard.

  1. Watch What They Do, not What They Say

The economic and cultural elites, who incessantly warn of an impending climate catastrophe, seem to contradict their own claims by their extravagant lifestyles. Their opulent residences, frequent use of private jets, and other extravagances reveal a significant disconnect between their rhetoric and their behaviour, suggesting either hypocrisy or a lack of belief in the very crisis they promote.

  1. Magical Thinking

When they purport to compel the oil and gas industry to adopt new technologies, politicians and policymakers indulge in a particularly delusional form of magical thinking. First, the industry is already one of the most innovative sectors in the economy. Second, these individuals demonstrate a profound ignorance of both climate change and the complex challenges of energy production. As is typical of low-information politicians, they seem to believe that all they need to do to enact change in line with their utopian ideals is to snap their fingers or twitch their collective nose.

  1. A Multiplier of Human Misery

All the regulations that politicians like Guilbeault introduce with a regularity that rivals the proverbial cuckoo clock have nothing to do with creating new sources of energy or making energy more accessible and affordable. If they were genuinely concerned about their constituents’ welfare, these politicians would incentivize nuclear energy. But they conspicuously do not. These incessant regulations, taxes, and oppressive energy policies serve one purpose: to inflate energy prices so high that middle-class individuals are forced to drive less, reduce their energy use for heating and cooling their homes, and drastically curbing manufacturing. To the extent that such policies persist, they will impose an increasingly devastating economic burden on the poor and the working class.

  1. Extreme Weather Events

A radical reduction in CO2 emissions will not only lead to a weaker economy and increased poverty, but it will also diminish our capacity to respond to extreme weather conditions, which will occur regardless of the taxation governments impose on human activities.

  1. The Used-Car Salesman Syndrome

You know you’re being conned when a used car salesperson fails to mention the downsides of the vehicle being considered. The same skepticism and caution should be applied to politicians who tout only the benefits of their proposed policies without discussing the costs. Either they are blissfully unaware of these costs, or they believe they will be insulated from the real-world repercussions of their harmful policies due to their status, wealth, or connections.

  1. Anti-Human Perspective

While it’s unwise to gratuitously attribute malicious intent to anyone, the evidence suggests that proponents of radical climate change policies operate from what can only be described as an anti-human perspective. They view human beings as liabilities and parasites rather than, as the Judeo-Christian tradition asserts, the valuable assets they truly are.

  1. A Matter of Debate

Before we collectively devastate our economies, further reduce our birth rates in a misguided attempt to save the planet, squander trillions of dollars, and halt human progress by making energy both scarce and exorbitantly expensive, it’s crucial to remember that human-induced climate change is not a settled fact, but rather a hypothesis largely unsupported by the history of the climate but supported by climate models that have considerable error built into them.

In conclusion, Bjorn Lomborg, the Danish political scientist and founder of the prestigious Copenhagen Consensus Center—an organization renowned for producing some of the most authoritative studies on environmental issues—wisely reminds us that while there are environmental concerns needing attention, it’s questionable whether climate change constitutes an existential crisis that warrants dedicating all our resources at the expense of human life and flourishing.

Pierre Gilbert is Associate Professor Emeritus at Canadian Mennonite University. He writes here for the Frontier Centre for Public Policy.

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