Energy Partisanship

• Publication year: 2016

Energy Partisanship

Hari M. Osofsky

ENERGY PARTISANSHIP

Hari M. Osofsky^* Jacqueline Peel^**

Whether the topic is the Paris Agreement on climate change, greenhouse gas emissions from power plants, the Keystone XL pipeline, hydraulic fracturing, offshore drilling, or renewable energy, much of the U.S. policy dialogue about energy and climate change is deeply partisan. Republicans and Democrats debate individual issues in vitriolic sound bites that indicate minimal common ground. For example, officials favoring robust action on climate change are charged with engaging in a "War on Coal." Those opposed are labeled "members of the Flat Earth Society." Set against these dysfunctional climate and energy politics, how can progress be made? For people who accept the science of climate change, this has become a critical question. An emerging body of psychological research indicates that strategies attempting to persuade those with opposing views with additional scientific evidence have limited effectiveness. Providing more information does not change minds because (1) it does not take moral and cultural worldview differences into account, or (2) it is presented in ways that do not adequately acknowledge how people's perceptions of the relatability and trustworthiness of communicators shape their acceptance of that information.

Professor, University of Minnesota Law School; Faculty Director, Energy Transition Lab; Director, Joint Degree Program in Law, Science & Technology; Faculty Member, Conservation Biology Graduate Program; Adjunct Professor, Department of Geography, Environment and Society; and Fellow, Institute on the Environment. This Article has been significantly improved by feedback during presentations at the 2015 AALS Annual Meeting, 2015 Association for Law, Property & Society Annual Meeting, 2015 Association of American Geographers Annual Meeting, Florida State University College of Law, University of Denver Law School, University of Minnesota Law School, University of San Diego School of Law, and University of Tulsa College of Law. We also appreciate the insightful suggestions of June Carbone, Jessica Clarke, Claire Hill, Neha Jain, and Brett McDonnell. Maya Batres, Thomas Burman, Sarah Schenck, Nicholas Boyd-Caine, and Justin Moor provided invaluable research assistance. The Law Library at the University of Minnesota Law School, and particularly Suzanne Thorpe, was extremely helpful. This project has received support through the 2013-14 Fesler-Lampert Chair in Urban and Regional Affairs, particularly regarding its local government analysis; a grant from the Australian Research Council (Discovery Project 130100500, "Transition to a Clean Energy Future: the Role of Climate Change Litigation in Shaping our Regulatory Path," 2013-2015); and the University of Minnesota Law School's summer research support. As always, I am grateful for the love, support, and patience of Josh, Oz, and Scarlet Gitelson.

Professor, University of Melbourne, School of Law, Australia; Associate Director of the Centre for Resources, Energy and Environmental Law, Melbourne Law School. During 2014-2015, Professor Peel was a Visiting Scholar at Woods Institute for the Environment, Stanford University.

[Page 696]

This Article provides a novel analysis of how to make progress on energy and climate change issues by translating this emerging psychological research into a framework for action. It proposes two interconnected strategies—substantive and structural—for moving past imbedded partisanship and political dysfunction. Substantively, the Article argues for refocusing regulatory efforts on areas where a greater degree of consensus may be possible, such as economic development and disaster resilience. Structurally, it proposes a shift to arenas that are less gridlocked by energy partisanship than the legislative branch of the federal government, such as other branches of the federal government, state and local levels, and corporate and private sector actors. By drawing on case studies and empirical data, including interviews with key stakeholders, the Article illustrates possibilities for progress under this framework.

Introduction

In January 2015, during the lengthy debate over the Keystone XL pipeline legislation that President Obama had promised to and ultimately did veto, the U.S. Senate passed a "landmark" resolution¹ : the Senators agreed, with only one "no" vote, that "climate change is real and is not a hoax."² However, Republican senators then proceeded to block two other measures linking climate change to human activity.³ Senator James Inhofe (R-Okla.) explained his contrasting votes by stating that "[c]limate is changing, . . . has always changed, and always will. . . . The hoax is that there are some people that are so arrogant to think that they are so powerful that they can change climate. Man can't change climate."⁴

[Page 697]

Apparently to prove his point, a few weeks later Senator Inhofe tossed a large snowball on the Senate floor: "You know what this is? It's a snowball . . . just from outside here so it's very, very cold out. Very unseasonal. So, Mr. President, catch this."⁵ Media reaction was divided. Fox News provided a platform for Senator Inhofe to discuss his "snowballing" of President Obama, while other media outlets labeled it an "embarrassment" for the nation and the Republican Party.⁶ Jon Stewart lampooned the incident on the Daily Show in a segment headlined Grumpy Cold Men.⁷ "You think global warming's a hoax because you—in February—were able to collect one ball's worth of snow?" Stewart asked. "Clearly, if global warming was a problem," Stewart said, mocking the Senator's voice, "I would only be able to grab lava balls."⁸

Senator Inhofe's snowball stunt may provide plenty of fodder for comedians, but it only underlines a far more serious problem. Whether the topic is the Paris Agreement on climate change,⁹ greenhouse gas emissions from power plants, the Keystone XL pipeline, hydraulic fracturing, offshore drilling, or renewable energy, much of the U.S. policy dialogue about energy and climate change is deeply partisan.¹⁰ Republicans and Democrats debate

[Page 698]

individual issues in vitriolic sound bites that indicate minimal common ground.¹¹ For instance, when the Obama Administration announced its Clean Power Plan for cutting carbon pollution from the power sector in June 2014, Republicans were quick to condemn the new standards as a "war on coal."¹² Senator Chris Murphy (D-Conn.) responded that "[t]his is not a war on coal. This is a war on ignorance and negligence."¹³ Secretary of State John Kerry went a step further, mocking "the critics and the naysayers and the members of the flat earth society."¹⁴

[Page 699]

Numerous polls and studies reinforce that these exchanges form part of a broader pattern: the country has become more split along partisan lines in recent years, particularly with respect to environmental protection and climate action.¹⁵ The "persistent gap" in views of Republicans and Democrats on the issue of climate change suggests that it "has joined a short list of issues like gun control or taxes that define what it means to be a Republican or Democrat."¹⁶

These partisan disagreements constrain possibilities not only for U.S. legislative efforts¹⁷ but also for international ones. At the December 2015 climate change negotiations, for example, the groundbreaking Paris Agreement limited what clauses were binding in order to allow the United States to participate without Senate ratification; a last minute crisis erupted when one "should" turned into a "shall," which would have crossed that line.¹⁸ In addition, as the Obama Administration joined the "high ambition coalition" pushing for an international agreement (with Secretary Kerry using the "flat earth" rhetoric again as he made that announcement),¹⁹ congressional Republicans at home worked to undermine the U.S. position through

[Page 700]

legislative proposals and public statements; presidential candidate and Senator Ted Cruz (R-Tex.) even held a hearing questioning climate change science.²⁰

These political constraints pose a major problem if one accepts consensus climate change science on the urgent need for action.²¹ A significant gap still exists between the national commitments made in the lead up to the Paris Agreement and what it would take to limit warming to even 2 degrees Celsius, not to mention the more ambitious 1.5 degree goal that many view as critical for the most climate vulnerable.²² Moreover, an emerging body of psychological research indicates that these differences cannot be overcome simply by presenting politicians and the public with more and better scientific data; strongly divided partisan views are difficult to shift and not responsive to change in the face of expert opinion.²³

[Page 701]

This Article is the first to draw from this psychological research to provide a systematic plan for advancing energy and climate change policy despite partisan divides.²⁴ The Article uses our original empirical research, including interviews we have conducted with key participants in energy and climate change policy,²⁵ and case studies to propose substantive and structural strategies for progress. Its innovative conceptual framing and new empirical work make important and timely contributions to scholarship on energy, climate change, and partisanship.

The Article argues that maximizing constructive action in this context requires approaches that either allow for bipartisan agreement ("going together" strategies) or circumvent partisan divides ("going around" strategies). As illustrated by the opening example, media and public attention often focuses on conflict and "going around" strategies. However, both social science research and case examples indicate that Republicans and Democrats actually agree on some issues critical to addressing climate change and energy

[Page 702]

transition.²⁶ By reframing problems around areas...