For more than a century, the "commerce clause" of the U.S. Constitution -- the part that says the federal government has the power to regulate commerce "among the several States" -- has stood at the center of a legal tug-of-war. Liberals have grabbed it to extend Washington's laws and rules in many new directions; conservatives have pulled back in a struggle to limit its extent.
The commerce clause helped progressives at the turn of the 20th century begin to place limits on the predations of big business. It lay at the center of the debate over Roosevelt's New Deal in the '30s. In the '60s and '70s it got pulled into the fights over civil rights, environmental regulations, and more.
Here we are again. It's looking more and more like the American political and legal system will spend the next several years arguing over just how far the Supreme Court's healthcare decision went in curtailing the power of the national state to impose its will in virtually every area that matters, including energy, transportation, environmental protection, health care, education, and so on.
Yesterday -- while the rest of us were focused on "individual mandates," Obamacare, and the fate of the known universe as determined by nine robed elders -- the fossil-fuel cash machine took a discreet turn of its crankshaft. A little deal went down in D.C., one that David Roberts wrote about here in Grist a few days ago.
In a nutshell: the federal government sold rights to 721 million tons of coal in Wyoming's Powder River Basin -- coal that is the collective property of the American people -- to a private company, Peabody Energy; at a price that is, well, rock-bottom; under terms drawn up by that company; in an auction with only one bidder. (Joe Smyth explains the process here.)
Such a deal! (How good a deal? Roberts broke that down for you last month.) And just the sort of thing that is sadly routine in the realm of federal land management, where the Bureau of Land Management (BLM) presides over a process that's far more about padding energy companies' profit margins than protecting resources, getting a good deal for the American people, or even just plain old "managing" land.
The market understands how good a deal this is for Peabody Energy. Its stock price is up.
Now, maybe you could justify letting coal companies rip us off if there were some public good attached to their activities. The government does and should subsidize all sorts of efforts that we hope will leave our communities more prosperous and cleaner and healthier.
In this case, of course, we're blasting the landscape in order to haul toxic materials around the world so we can burn them, pollute the air, and wreck the climate. So forget that.
Something tells me the folks at Peabody and the folks at BLM were both quite happy to have conducted their business on the day that the punditocracy was otherwise engaged in parsing how many individual mandates can dance on the head of the constitution.
On the bright side, at least we'll have some federal help as we try to pay our medical bills in a climate-changed, coal-dark world.
Let's say, just for fun, that you're in charge of a drilling company. You see a bright future in fracking.
And let's say you know that your state Department of Environmental Conservation is readying some rules around that popular drilling technique, which is upending the national and global markets for natural gas. Oh, about 1500 pages of rules.
You just might want to see those rules a little early. It could help your lobbying efforts; it could help you against the competition; it could just be highly convenient in all sorts of ways.
Turns out you're in luck! Because that's exactly the way things went down in New York late last summer. According to documents released to the Environmental Working Group under the Freedom of Information Act, New York regulators gave up to six weeks' advance peeks at their rules to representatives of drilling companies -- while local officials, landowners, environmental groups, and everyone else had to wait.
That talk by ExxonMobil CEO Rex Tillerson at the Council on Foreign Relations that Gristmill linked to earlier today is a stunning demonstration of how to sow confusion and delay. It's worth deeper analysis. So let's dig in!
It's very long, so we'll summarize some sections and zero in on a couple of key passages. You can read the whole thing here.
Paragraphs 1-6, in short: Energy prices sure go up and down a lot! But we keep finding more fossil fuels when we need to.
Next 3 paragraphs: Boy, there was a lot more natural gas in the shale here in North America than we expected.
Next 6 paragraphs: Let's all say "energy security" rather than "energy independence," OK? Exxon is a multinational, and I want everyone to be friends and not worry about where their oil comes from as long as it keeps coming.
Here's where Tillerson starts to gets interesting. Let's quote his original and then translate:
Ours is an industry that is built on technology, it's built on science, it's built on engineering, and because we have a society that by and large is illiterate in these areas, science, math and engineering, what we do is a mystery to them and they find it scary. And because of that, it creates easy opportunities for opponents of development, activist organizations, to manufacture fear.
Translation: You thought those people out there sounding an alarm about climate change were scientists? Forget it. We here at Exxon, we're the scientists. And all those people with fancy degrees and titles who have been desperately trying to teach the U.S. public about global warming? They're illiterates! We're the clean guys in white coats; they're the dirty "manufacturers" of fear.
It rarely feels this good to write about how wrong I was, but there it is.
As you might have heard in the last nanosecond, the Supreme Court has upheld both the overall Obamacare health package and specifically the "individual mandate" part of the law.
Yesterday I made a (nearly worthless, as I admitted at the time) prediction that the conservatives on the court would go for broke and strike the whole thing down.
I'm very glad they didn't, as Chief Justice Roberts sided with the court's liberal wing. Instead of pursuing a Shermanesque total-war strategy, he apparently opted for a longer-term plan of chipping away at the government's commerce-clause powers in narrowing the scope of the federal ability to control how states spend their Medicare dollars.
Now, nobody's even read this whole decision yet, so there's a lot more analysis to be done. But for the moment, we know that the Obama administration didn't waste the last four years, and the real decision about healthcare reform will be made where it should be, at the polls in November.
So maybe there's some steam left in the old "Americans banding together to solve real problems" engine!
(As you can see from the above image, CNN's editors apparently made the same wrong bet I did -- but they actually went live with the headline, even though it was entirely wrong.)
UPDATE: As today progresses, we'll have reactions to the healthcare decision over in Gristmill from a variety of people who are thinking broadly about sustainability.
Political America waits on tenterhooks for the next 24 hours to learn how the Supreme Court will rule on the Obama healthcare reforms.
Why should we care? It's summer!
But really: There are plenty of pragmatic, historical, and political reasons to care. What happens tomorrow will likely affect whether you and your relatives can get, or afford, health insurance. It may well determine the outcome of the election in November. It will shape the next round of the debate over how Americans pay for the kind of society they want. And it will tell us how far the Supreme Court is willing to go down the road of what James Fallows -- not a rash man -- has called a "long-term coup."
But the biggest reason we should care about tomorrow's ruling is a psychological one. The Obama health plan -- for all its compromises and limitations -- represents an increasingly endangered species. It's a large-scale effort to solve a major social problem with (mostly) smart, (mostly) efficient policies -- a law that leverages the power of the American people, working through the government they elect, to make their world better. This is now such a rarity in American politics that if you're under 40, you've basically never witnessed it.
In other words, the survival of the Obama health reforms isn't only about the particulars of the health insurance debate. It's about whether we have any hope of working together to tackle all the other vast problems that we know we aren't going to solve through individual action alone. That includes pretty much everything we write about here at Grist, from bringing down climate-change-driving carbon emissions; to rethinking our industrial food system; to expanding our transportation options and revamping our energy grid; and on and on.
Because it's Earth Summit week and therefore a dandy time for such things, House Republicans are back to the game of promoting the Keystone XL pipeline.
That, you'll recall, is a project to transport massive amounts of oil from the tar sands of Alberta across the U.S. to the Gulf of Mexico for refining and, mostly, export. After many protests, much gnashing of conservative teeth, and a convoluted game of legislative and regulatory chess, the pipeline is, for the moment, dead.
Cue the resurrection music, maestro. As they have many times before, the GOP firebrands in the House, in an effort to force the Obama administration's hand, set out this week to mandate automatic approval of the pipeline by tacking an amendment onto some other bill. Only this time, there was a small hitch.
A "Twitterstorm" isn't something out of Alfred Hitchcock's The Birds; it's a global campaign to raise a ruckus on Twitter by deliberately spreading a message -- in this case, the call to end fossil fuel subsidies, or #endfossilfuelsubsidies, as the hashtag call will go out.
Organizers are building a smart network of influential Twitter users to seed their storm. On the eve of the Rio+20 Earth Summit, they're aiming to break the record for most tweets of a single hashtag in a 24-hour period. As 350's Jamie Henn writes:
Justin Bieber currently holds the world record with 322,224, over 223 tweets a minute. Organizers are confident that even if they can’t beat the Biebs they’ll be able to generate enough traffic to dominate the online airwaves during the G20 and in the lead up to Rio+20.
Now, I can already hear the skeptic complaint: How can competing with Justin Bieber possibly be a good use of activist time and energy? Can Facebook and Twitter really spark meaningful political change? Using social media as a platform for activism risks opening yet another round of the debate on this topic that has sputtered for most of the past decade, and that recently peaked with the Arab Spring.
When you look closely at what these groups are doing with Twitter, however, you see very quickly that there's nothing simplistic or utopian about it:
Twitter connects world leaders, opinion makers, and regular activists all on one network. If we work together and aim high, we can make sure the right people see and hear this grassroots uprising. We don’t believe the internet will save the world -- we believe that people will. Now let’s use this digital bullhorn to make some noise.
It's not as though 350.org thinks, "If you tweet it, you're done." Remember, this is the same outfit that organized one of the largest civil disobedience campaigns in U.S. history, stopped the Keystone XL pipeline in its tracks, and circled the White House with a human chain of protest. (Full disclosure: 350.org founder Bill McKibben is a longtime member of Grist's board, and also a friend.)
These people understand that online organizing is a means to an end, not a magic wand. But they also understand that Facebook and Twitter are highly effective in their own way both at reaching people, particularly younger people, and at leveraging media attention.
It's been a bumpy road for Lisa Jackson through three and a half years as chief administrator of the Environmental Protection Agency (EPA). But the 50-year-old chemical engineer doesn't look fazed or fed up. A scientist-turned-insider who has learned that the levers of power don't always budge without a fight, she shows a little steel in her eyes as she ticks off achievements and notes setbacks. But she also lets mischief color her laugh as she acknowledges what she calls the "toxic attitude of absolute certainty" that paralyzes progress on climate and other issues.
In 2009, President Obama appointed Jackson to lead the EPA, the agency she'd worked at for 16 years before serving in New Jersey's environmental agency, where she became commissioner in 2006. Jackson took the EPA helm at a moment of high hopes for green advocates in the U.S. They'd spent eight years in George Bush's wilderness; now they felt they were on the verge of passing climate legislation at home and a global carbon accord at the Copenhagen talks.
What could go wrong? Only everything.
Today progress on climate at the federal level seems less likely than ever. Certainly, Jackson can point to a passel of signal achievements: she has reinvigorated the agency, presided over a plan to double automobile fuel-efficiency standards over the next decade, established EPA's right to regulate greenhouse gases like carbon dioxide as pollutants, and placed new controls on mercury and other toxic power-plant emissions.
But Jackson has also watched as the faltering economy and a partisan civil war in Congress have placed environmental issues on a low-simmering back burner -- and placed EPA itself in the crosshairs of an increasingly radical conservative movement that aims to defang, defund, and ultimately destroy it. Even if it dodges that bullet, her EPA must use the narrow statutory authority of a handful of increasingly outdated laws to tackle an endlessly multiplying set of problems. Meanwhile, new laws are out of reach, and old-fashioned regulations get held hostage to competing agendas: Her agency's proposal to tighten ozone standards met sudden death at the hands of the White House that had appointed her.
Jackson has stuck to her post, despite rumors that she might resign in the wake of that ozone reversal. At the end of last week, she visited Seattle to drop in on Boeing, speak at the annual Climate Solutions breakfast, and deliver a commencement address at the University of Washington. She also took time to talk informally at an event with Grist supporters, and sat down with us for an interview.
We knew there was little chance that Jackson would go off message or make unscripted news, and we weren't going to play gotcha with her. But we did get some intriguing glimpses of the mind of the woman who's still trying to push the Obama administration's hope wagon over all those bumps.
Q.Right now U.S. fossil fuel production is ramping up, and a lot of people are enthusiastic about energy independence and jobs in that industry. So national security and employment are set up to be at odds with the environment. Can we get beyond that?
A. First of all there's two sides of the energy discussion: there's production, and there's also use. America as a consumer-oriented country is seeing real choices for the first time in using less energy. That's very good for the American pocketbook. There's simply no reason why American cars can't be efficient and still be cool and be a part of what drives our economy. And if you want proof of that, look at what's happening right now in Detroit. I have conversations all the time with young people, and they're not feeling like they're losing anything by the fact that they'll be able to have choices and much more fuel-efficient cars should they choose to buy them.
Today we pull the curtains back on the latest new feature here at Grist. The paint's still drying. The work isn't finished. But we're ready to invite you in.
Welcome to the new Gristmill -- the spot at Grist to tune in to the latest in the realms of climate and energy, sustainable food, cities, and all the other Grist-y stuff we cover. What just happened? What are people saying about it? What does it mean, and how does it all connect?
As always at Grist, we will hail people and efforts to improve our world -- and make ridiculous faces at people and efforts that deserve to be mocked. And as always, we'll keep using all the internet-y tools at our disposal to get you to join in.
Tending the mill -- by himself for the moment, with reinforcements on the way -- is our latest addition to the Grist team, Philip Bump. Philip has worked in the trenches of political campaigns, software development, green activism, and web journalism. And he's still standing upright! He brings all those experiences to bear in his writing with a sharp eye and a light touch, and we're thrilled to have him join us here.
Scott Rosenberg is Grist's executive editor. He's the author of Say Everything and Dreaming in Code, founder of MediaBugs.org and co-founder of Salon.com. He covered technology for a decade and wrote theater and film reviews for another decade, and has yet to resolve the resulting left-brain/right-brain conflict.