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ACLU sues South Dakota over new pipeline protester law

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Even if you don’t live in South Dakota, you could be held liable for supporting pipeline protesters there, according to a newly signed state bill. While at least nine states have passed legislation this year cracking down on demonstrations against fossil fuel infrastructure, South Dakota’s new rule gives unprecedented power to penalize groups and individuals even indirectly involved in anti-pipeline actions.

The bill, signed by Republican Governor Kristi Noem on Wednesday, allows state and local governments to seek civil damages from activists or groups engaging in “riot boosting,” a term which the state defines as someone who “does not personally participate in any riot but directs, advises, encourages, or solicits other persons participating in the riot to acts of force or violence.”

“My pipeline bills make clear that we will not let rioters control our economic development,” Noem said. “These bills support constitutional rights while also protecting our people, our counties, our environment, and our state.”

State officials in both North and South Dakota have clashed with several activist groups including Native American tribes over the Dakota Access Pipeline and Keystone XL pipeline, but the states are taking slightly different approaches to pipeline penalties.

In North Dakota lawmakers also passed a bill this week that would reinforce penalties for anyone who tries to block pipeline operations and other fossil fuel infrastructure projects. North Dakota Governor Doug Burgum, however, has yet to say whether or not he intends to sign the bill into law. The North Dakota bill is based on one passed in Oklahoma in 2017 that imposed punishments of up to 10 years in prison and $100,000 in fines for individuals who interfere with a pipeline or other “critical infrastructure.” Under the law, organizations could also be made to pay up to $1 million in penalties if they are found to be “co-conspirators.”

So how is a North Dakota “co-conspirator” different than a South Dakota “riot booster?” The term “riot booster” can be applied out-of-state. The definition of “riot booster” is also vaguer, which is a problem, according to Vera Eidelman, an attorney with the American Civil Liberties Union. “I think [South Dakota’s definition of ‘riot booster’] poses a unique threat to speech and appears to be targeted at protests,” she told InsideClimate News. “It uses words like ‘encouraging’ and ‘advising’ that are very broad and refer to a category of protected speech.”

On Thursday, the ACLU of South Dakota filed a federal lawsuit against state officials on behalf of several Native American tribes and environmental advocates.

“No one should have to fear the government coming after them for exercising their First Amendment rights,” said Courtney Bowie, legal director of the ACLU of South Dakota. “That is exactly what the Constitution protects against, and why we’re taking these laws to court. Whatever one’s views on the pipeline, the laws threaten the First Amendment rights of South Dakotans on every side of the issue.”

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ACLU sues South Dakota over new pipeline protester law

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After Supreme Court ruling, Flint residents will finally see officials in court.

On Tuesday, the court will hear arguments about a California law that tries to clarify the facts that women receive about their reproductive rights. The accuracy of that information becomes increasingly important as environmental disasters — which are growing more, uh, disastrous — endanger women more than men. Women can be better prepared by having full control of their reproductive decisions.

Crisis pregnancy centers are organizations, often masquerading as medical clinics, that attempt to dissuade women from seeking abortions. California’s Reproductive FACT Act, passed in 2016, requires reproductive health clinics and CPCs to post notices advising their clients that the state provides free or low-cost family planning, prenatal care, and abortion; and that CPCs publicize that they are not licensed to practice medicine.

Alliance Defending Freedom, the legal organization representing the centers suing the state of California, claims that the requirements of the Reproductive FACT Act are unconstitutional because they require CPCs to “promote messages that violate their convictions,” Bloomberg reports. The state of California argues that information provided by medical professionals is publicly regulated, and that women who depend on public medical care and are unaware of their options should not be provided with confusing information.

Last February, a Gizmodo-Damn Joan investigation found that women seeking abortion clinics on Google — because, let’s be real, that’s how a lot of us find medical care — could be easily led to CPCs instead, as Google Maps does not distinguish them from real medical clinics.

We’ll be watching this case.

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After Supreme Court ruling, Flint residents will finally see officials in court.

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Climate change will have its Scopes Monkey Trial this week

In 1925, a Tennessee substitute teacher was indicted by a grand jury for teaching evolution to his high school class. That case, the Scopes trial, became famous for pitting science against the Bible, and it helped pave the way for educational reform.

On Tuesday, a case in California could do for climate change what the Scopes trial did for evolution. Last September, San Francisco and Oakland filed major lawsuits against five of the world’s largest oil companies — BP, Chevron, ConocoPhillips, Exxon Mobil, and Shell.

All of those companies are constantly being sued for making large and sometimes permanent environmental messes. But the people of California aren’t suing BP and co. for spills, explosions, or other easily traceable disasters. Rather, they’re suing because those companies:

  1. knew about climate change decades ago,
  2. continued doing business as usual, and
  3. engaged in a world-wide public relations campaign to sow confusion over climate science.

California says the companies have been using deception to profit as the planet warms, and they should pay for the infrastructure the state needs to protect itself against rising sea-levels.

The lawsuits join others in a new wave of court cases: the climate suits. Two weeks ago, a climate change lawsuit filed by 21 kid activists against the Trump administration was cleared for trial. A week later, Arnold Schwarzeneggar announced plans to sue Big Oil for committing “first degree murder.” And New York City hit polluters with a double whammy in January: the city decided to divest billions of dollars in pension money from fossil fuels and filed a lawsuit against some of the biggest polluters in the industry.

The cases pit people against industry and government, and, whether or not the people win, the legal battles could mark the beginning of a shift in the way fossil fuel companies are held accountable in court. This particular case is especially novel, thanks to an unorthodox judge named William Alsup.

The judge presiding over the Bay Area cities-vs.-oil companies case isn’t your average federal justice. Alsup’s the guy who blocked the Trump administration’s attempt to end DACA, taught himself how to use a programming script for a Silicon Valley lawsuit, and, as part of another tech battle, asked two ride-sharing services to give him a tutorial on self-driving cars to make a better-informed ruling.

Alsup’s quest for a well-rounded education means that before this trial moves forward, both parties must give him a two-part, first-of-its-kind tutorial in climate science in no more than two hours each. It’s a highly unusual request from a judge, experts say, and it will give Americans the opportunity to follow along as big polluters finally go on record about climate science and climate denialism.

Judge Alsup has submitted 14 questions for each party in the case to answer, including:

What caused the various ice ages?
What are the main sources of CO2 that account for the incremental buildup of CO2 in the atmosphere?
Why hasn’t plant life turned the higher levels of CO2 back into oxygen?

Most of the 14 questions could be answered by a precocious fifth grader. But the hearing, according to Michael Burger, executive director of the Sabin Center for Climate Change Law at Columbia University, will be the first time oil companies defend themselves in court against decades of climate science.

“Up until now, fossil fuel companies have been able to talk about climate science in political and media arenas where there is far less accountability to the truth,” Burger says.

The complaint

In addition to providing answers to Alsup’s questions, the plaintiffs will likely present evidence that oil companies knew about the harmful effects of CO2 on the atmosphere at least since the 1970s. They may also highlight the prize-winning 2015 investigation by InsideClimate News, which revealed that Exxon purposefully misled the public about the risks of fossil fuels in order to protect its business. Despite having long known about the dangers of fossil-fuel consumption, California will charge that the “defendants continue to engage in massive fossil fuel production.”

As CO2 levels spike and global temperatures increase, melting glaciers have caused flooding in California’s coastal cities. The state’s argument rests on the charge that fossil fuel producers have caused a public nuisance. While the accusation sounds like something you’d call a drunk guy making a ruckus in the street, in legalese, it’s dead serious, constituting a crime that jeopardizes the welfare of a community.

The defense

While the oil companies are unlikely to deny climate science, they are expected to highlight areas of uncertainty on its specifics. Even though climate science has made leaps and bounds in the past decade, scientists still readily admit how hard it is to pin down exactly how much sea-level rise we can expect in the next 50 to 100 years. You can be sure Big Oil’s lawyers will question the validity of some climate science’s conclusions in court.

But they won’t stop there. The defendants will probably try to get the case dismissed on the grounds that the complaint “calls into question longstanding decisions by the Federal Government regarding, among other things, national security, national energy policy, environmental protection, development of outer continental shelf lands, the maintenance of a national petroleum reserve, mineral extraction on federal lands.” And the lawyers will rightly point out that their clients have “produced billions of dollars for the federal government.” In other words, they’ll try to argue that, by putting this case on trial, the government is biting some of the hands that feed it.

The defendants have already achieved one victory — they requested that the case be heard in federal instead of state court, where local laws are tough on big polluters. Just Friday, fossil fuel companies suffered a blow when a different set of lawsuits from three Californian counties were successfully moved to state court. But, for this case, Judge Alsup agreed with industry, saying a “patchwork of 50 different answers to the same fundamental global issue would be unworkable.”

What happens if California wins

If San Francisco and Oakland win their respective suits, the five oil giants might have to pay billions of dollars into an “abatement fund,” a reserve that the cities can use to pay for seawalls and other infrastructure to protect their citizens against rising oceans.

But the case might not even make it to trial. California could quite possibly ace the upcoming climate change tutorial and lose the case nevertheless. The tutorial puts climate science in the spotlight, but the oil companies could persuasively argue that California’s sea-level concerns (and the damaging storm surges that accompany sea rise) can’t be pinned on individual companies.

“There are legal obstacles that could prevent this case from ever going to trial,” Burger says. “The science could play a role in some of these preliminary arguments, but the ultimate questions about whether the science equates with legal liability for these plaintiffs, the factual connection between these particular parties’ actions and the particular harm suffered by these cities, may never get heard.”

In other words, California could win the battle but lose the war. The oil companies hope the case will ultimately get dismissed or shunted up to the Supreme Court where legal precedent favors polluters. That doesn’t necessarily spell doom for the future of the climate suit.

If the court ultimately rules in favor of the defendants, there’s a long line of similar lawsuits waiting for their day in court. Buckle up, polluters! You’re in for it now.

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Climate change will have its Scopes Monkey Trial this week

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Coal lobbyist on track to become a top dog at EPA

This story was originally published by HuffPost and is reproduced here as part of the Climate Desk collaboration.

Andrew Wheeler, President Donald Trump’s nominee to be Environmental Protection Agency deputy administrator, appeared poised and polished at his Senate confirmation hearing in November. He couched his objections to widely accepted climate science in ambiguous legalese, and kept his cool when, at the same hearing, Kathleen Hartnett White, the president’s pick for the Council on Environmental Quality, flamed out, stammering over questions of basic science.

On Saturday, the White House announced plans to pull Hartnett White’s nomination amid waning Republican support. But on Wednesday, the Senate Environment and Public Works Committee voted 11 to 10 along party lines to advance Wheeler’s nomination, putting him one step from the EPA’s No. 2 job.

The restraint that steeled Wheeler’s nomination seems likely to clear the way for his confirmation. Unlike other Trump nominees whose outrageous opinions or lack of qualifications put them on the political fringe, Wheeler boasts both the Beltway aesthetic and the experience needed to become a powerful EPA operator. His confirmation, critics fear, will speed the Trump administration’s rollback of environmental and public health protections, and make a lasting, if quieter, impact.

“It’s very alarming and distressing,” Mary Anne Hitt, a campaign director at the Sierra Club, told HuffPost. “He is right up there with the list of the most extreme people that Trump has nominated for any agency.”

Wheeler, a coal lobbyist and former legislative aide to Oklahoma Republican Senator Jim Inhofe, is widely seen as having the relationships and finesse needed to avoid legal potholes while driving the EPA’s deregulatory agenda. He knows how to work the system from within, having spent four years working at the EPA’s Office of Pollution Prevention and Toxics under Presidents George H.W. Bush and Bill Clinton. He said the right things to woo critics at his confirmation hearing, calling EPA staffers “the most dedicated and hard-working employees in the federal government.”

“The mission of the EPA to protect human health and the environment is critical to our country and its citizens and something that I take very seriously and I know you do, too,” Wheeler said.

The EPA did not respond to HuffPost’s request to interview Wheeler, and directed questions about his nomination to the Senate committee. Faegre Baker Daniels, the law firm where Wheeler currently works, directed HuffPost to the EPA.

“Andrew will bring extraordinary credentials to EPA that will greatly assist the Agency as we work to implement our agenda,” EPA Administrator Scott Pruitt said when Wheeler was nominated in October. “He has spent his entire career working to improve environmental outcomes for Americans across the country and understands the importance of providing regularity and certainty for our country.”

Wheeler won approval from the Senate panel last year, but his nomination never came to the full chamber for a final confirmation vote. His nomination was returned to the committee as a matter of procedure when the new legislative session began last month.

If Wheeler has anything stacked against him, it could be a 2016 Facebook post he wrote calling Trump a “bully” who “hasn’t been that successful” in business and who “has more baggage then all the other Republican candidates combined.” The remarks, surfaced in October by The Washington Post, gained new relevance this month after reporters unearthed two 2016 radio interviews in which Pruitt called Trump a “bully” and an “empty vessel” on “the Constitution and rule of law.”

On Wednesday morning, The Intercept published a report detailing fundraisers Wheeler held for Senator John Barrasso, a Wyoming Republican, and Inhofe in May. The Sierra Club called on the Senate panel to delay the vote and open an investigation.

But that didn’t deter Republicans, who held the vote on schedule, even as many federal employees delayed morning activities by two hours because of snow.

“He’ll do a good job and I’m glad he’s going to be confirmed,” Inhofe said after Wednesday’s vote.

Wheeler is likely to be confirmed in the full Senate, where the GOP holds a narrow majority. No Republicans publicly oppose him, and Democrats senators Joe Manchin of West Virginia and Heidi Heitkamp of North Dakota — who generally vote with the GOP on fossil fuel issues — are likely to vote for Wheeler. Neither senator responded to requests for comment on Monday.

To boot, Democrats have already spent political capital to upend more egregious environmental nominations. Those include Hartnett White — who credited coal with abolishing slavery and suggested increased carbon dioxide emissions were good for the planet — and Michael Dourson, whose consultancy was described in 2014 by InsideClimate News as the “one-stop science shop” favored by the chemical and tobacco industries seeking affirmative research. Pruitt picked Dourson to lead the EPA’s chemical safety division, but withdrew the nomination in December after two Republican senators said they would not vote for him.

Democrats seem more at ease with Wheeler’s nomination. No Democrat raised concerns about Wheeler last week during Pruitt’s first Senate hearing since taking office, though no Democrat voted for Wheeler on Wednesday.

The choice of Wheeler is itself a naked gift to the coal industry, which has yielded outsized influence over the Trump White House. Wheeler lobbied on behalf of coal mining giant Murray Energy as recently as last year, disclosure filings show.

“This is the swamp,” Senator Jeff Merkley said at Wednesday’s hearing. “This does not serve the American people. And we should reject this nomination.”

The company’s bombastic chief executive, Bob Murray, has already played a major role in shaping Trump administration energy and environmental policies. Last month, Murray’s so-called “action plan,” became public. The proposals include a federal bailout of coal-fired plants, repeal of the Clean Power Plan, and reopening of the 2009 EPA “endangerment finding” that determined carbon dioxide pollution poses a risk to public health.

The Federal Energy Regulatory Commission, in a break with the White House, rejected the bailout plan. Pruitt announced his repeal of the Clean Power Plan, a suite of rules to reduce emissions from power plants, in October. But the administration’s decision on the so-called endangerment finding is up in the air. Despite calls from ardent climate-change deniers to reopen the finding, overturning the conclusion would require disproving the science behind human-caused climate change in court — an extremely unlikely prospect. Pruitt said last week that he had not yet decided whether to challenge the finding.

Wheeler could be the man to lead that assault. In October, Pruitt railed against the endangerment finding for citing the United Nations’ Intergovernmental Panel on Climate Change. In what appeared to be a dog whistle to nationalists, he claimed the endangerment finding “represents, and this is the first time in history this has ever occurred, this agency took work product of the U.N. Intergovernmental Panel on Climate Change and adopted it, transferred it to this agency and used that as the basis, underpinnings, of the endangerment finding.”

In reality, the technical support document on the endangerment finding references more than 100 published scientific studies and cites peer-reviewed syntheses of climate research by the White House’s Global Change Research Program, the National Research Council of the U.S. National Academy of Sciences, and the U.N.’s IPCC.

But the criticism echoes Wheeler’s own suggestions. In March 2010, he accused the IPCC of blurring “the lines between science and advocacy” and functioning “more as a political body than a scientific body.” He suggested the EPA could “reconsider its endangerment finding without almost exclusively relying upon the IPCC,” according to remarks posted to his website.

“I believe that man has an impact on the climate, but what’s not completely understood is what the impact is,” Wheeler said at his confirmation hearing when aggressively questioned about the findings of the federal government’s latest climate report.

Wheeler’s Senate career gives pause to environmentalists, too. Inhofe, who serves on the Senate panel voting on his nomination, is one of the most ardent climate-change deniers in Congress. In 2015, the Oklahoma Republican brought a snowball to the Senate floor in a comically flamboyant attempt to prove climate change is a hoax. Inhofe is a close ally of Pruitt, who is said to be considering a bid for his seat when the 83-year-old senator retires. Pruitt’s ambitions raise the prospect that Wheeler could, as The New Republic pointed out, become the next EPA administrator.

“Andrew Wheeler’s nomination is very much in keeping with the Trump administration’s agenda of fossil fuel exploitation and climate inaction,” Michael Mann, a climatologist at Penn State University and coauthor of a book on climate change denialism, told HuffPost. “The environmental community’s celebration of the failed nomination of climate-change denier Kathleen Hartnett White to lead the White House Council on Environmental Quality may be short-lived.”

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Coal lobbyist on track to become a top dog at EPA

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A judge lets pipeline protesters mount an unusual defense.

In parts of the United Kingdom Monday morning, people woke up to a blood-red sun — a phenomenon seen around the globe this year.

The color was caused by smoke that blew in from wildfires across Portugal and Spain. Hurricane Ophelia deepened the reddish hue by dragging up dust from the Sahara.

Red skies have haunted the western U.S. recently as wildfires burned in Montana and ash rained down in Seattle. This month in Northern California, 20,000 people evacuated from massive wildfires under a red-orange sky.

Anadolu Agency / Contributor / Getty Images

On the other side of the world, wildfires burned in Siberia all summer long, covering the sun with enormous clouds of smoke and ash.

REUTERS/Ilya Naymushin

To understand why this happens, you need to know a bit of optics. Sun rays contain light from the whole visible spectrum. As the sun’s white light beams into the atmosphere, it collides with molecules that diffuse some of the wavelengths. On a normal day, short wavelength colors, like purple and blue, are filtered out, making the sun look yellow.

But high concentrations of light-scattering molecules in the air (like smoke particles from a wildfire) crowd out more of those short-wavelength colors, leaving behind that hellish red color.

Since climate change makes wildfires worse, we’ll be seeing a lot more of it.

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A judge lets pipeline protesters mount an unusual defense.

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The National Park Service has both a sexual harassment and a discrimination problem.

In parts of the United Kingdom Monday morning, people woke up to a blood-red sun — a phenomenon seen around the globe this year.

The color was caused by smoke that blew in from wildfires across Portugal and Spain. Hurricane Ophelia deepened the reddish hue by dragging up dust from the Sahara.

Red skies have haunted the western U.S. recently as wildfires burned in Montana and ash rained down in Seattle. This month in Northern California, 20,000 people evacuated from massive wildfires under a red-orange sky.

Anadolu Agency / Contributor / Getty Images

On the other side of the world, wildfires burned in Siberia all summer long, covering the sun with enormous clouds of smoke and ash.

REUTERS/Ilya Naymushin

To understand why this happens, you need to know a bit of optics. Sun rays contain light from the whole visible spectrum. As the sun’s white light beams into the atmosphere, it collides with molecules that diffuse some of the wavelengths. On a normal day, short wavelength colors, like purple and blue, are filtered out, making the sun look yellow.

But high concentrations of light-scattering molecules in the air (like smoke particles from a wildfire) crowd out more of those short-wavelength colors, leaving behind that hellish red color.

Since climate change makes wildfires worse, we’ll be seeing a lot more of it.

Credit:

The National Park Service has both a sexual harassment and a discrimination problem.

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Puerto Rico could see ‘significant epidemics,’ health experts warn.

A new report from the International Energy Agency surveys the growth of hydropower, wind, and other forms of renewable energy and finds they’re catching up to coal (still the world’s largest source of electricity). At this rate, renewables are expected to provide 30 percent of power generation by 2022.

Hydropower provides the most renewable energy, but the growth is in solar. One wrinkle, though: It can be misleading to focus on the number of panels installed, because solar only works when, ya know, the sun shines. So keep in mind that, while the graph below shows how much new “capacity” we are adding to the system, only a portion of that gets turned into electricity.

IEA

Denmark is leading the way on clean energy installations (shocking, I know). The Scandinavian country currently generates 44 percent of its electricity from wind and solar, and by 2022 it’s on track to get 77 percent from the same sources. (VRE, used in the graf below, stands for “variable renewable energy” — the term of art for wind and solar plants that we can’t switch on as needed.)

IEA

If renewables keep growing as forecast, we’re going to need bigger electrical grids (to move electricity from places where it’s generated in excess to places where it’s needed) and better ways to store energy.

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Puerto Rico could see ‘significant epidemics,’ health experts warn.

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Here come Tesla’s swanky solar roofs.

“There is such a thing as being too late,” he told an audience at a food summit in Milan, Italy. “When it comes to climate change, the hour is almost upon us.”

The global problems of climate change, poverty, and obesity create an imperative for agricultural innovation, Obama said. This was no small-is-beautiful, back-to-the-land, beauty-of-a-single-carrot speech. Instead, Obama argued for sweeping technological progress.

“The path to the sustainable food future will require unleashing the creative power of our best scientists, and engineers, and entrepreneurs,” he said.

In an onstage conversation with his former food czar, Sam Kass, Obama said people in richer countries should also waste less food and eat less meat. But we can’t rely on getting people to change their habits, Obama said. “No matter what, we are going to see an increase in meat consumption, just by virtue of more Indians, Chinese, Vietnamese, and others moving into middle-income territory,” he said.

The goal, then, is to produce food, including meat, more efficiently.

To put it less Obama-like: Unleash the scientists! Free the entrepreneurs!

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Here come Tesla’s swanky solar roofs.

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Obama is spending another $500 million to fight climate change before Trump can stop him.

On the first day of the state’s legislative session, nine Republican lawmakers filed legislation that would bar utilities from using electricity produced by large-scale renewable energy projects.

The bill, whose sponsors are primarily from the state’s top coal-producing counties, would require utilities to use only approved energy sources like coal, natural gas, nuclear power, hydroelectric, and oil. While individual homeowners and small businesses could still use rooftop solar or backyard wind, utilities would face steep fines if they served up clean energy.

Wyoming is the nation’s largest producer of coal, and gets nearly 90 percent of its electricity from coal, but it also has huge, largely untapped wind potential. Currently, one of the nation’s largest wind farms is under construction there, but most of the energy will be sold outside Wyoming. Under this bill, such out-of-state sales could continue, yet the measure would nonetheless have a dampening effect on the state’s nascent renewable energy industry.

Experts are skeptical that the bill will pass, even in dark-red Wyoming, InsideClimate News reports.

One of the sponsors, Rep. Scott Clem, is a flat-out climate change denier whose website showcases a video arguing that burning fossil fuels has improved the environment.

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Obama is spending another $500 million to fight climate change before Trump can stop him.

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Coal-loving Wyoming legislators are pushing a bill to outlaw wind and solar.

On the first day of the state’s legislative session, nine Republican lawmakers filed legislation that would bar utilities from using electricity produced by large-scale renewable energy projects.

The bill, whose sponsors are primarily from the state’s top coal-producing counties, would require utilities to use only approved energy sources like coal, natural gas, nuclear power, hydroelectric, and oil. While individual homeowners and small businesses could still use rooftop solar or backyard wind, utilities would face steep fines if they served up clean energy.

Wyoming is the nation’s largest producer of coal, and gets nearly 90 percent of its electricity from coal, but it also has huge, largely untapped wind potential. Currently, one of the nation’s largest wind farms is under construction there, but most of the energy will be sold outside Wyoming. Under this bill, such out-of-state sales could continue, yet the measure would nonetheless have a dampening effect on the state’s nascent renewable energy industry.

Experts are skeptical that the bill will pass, even in dark-red Wyoming, InsideClimate News reports.

One of the sponsors, Rep. Scott Clem, is a flat-out climate change denier whose website showcases a video arguing that burning fossil fuels has improved the environment.

Source:  

Coal-loving Wyoming legislators are pushing a bill to outlaw wind and solar.

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