Reflections on Reform of the Impeachment Process

By Bob Bauer, Lawfare Blog

20 February 21

he first impeachment of an American president took place 79 years after George Washington’s election. Then another 106 years passed before the next major congressional move toward impeachment, the House Judiciary Committee vote to impeach Richard Nixon in 1974 and then three more impeachments followed in relatively quick succession: Clinton’s 22 years later and then, after another 20 years, Trump’s first and second impeachments. Trump’s presidency is, of course, distinctive in this history: two impeachments within the same term, in two consecutive years, both concerned with abuse of power—the first such abuse in his quest for reelection and the second in his attempt to reverse his loss. At any rate, the pace of impeachment has picked up. It is possible that this history is of limited significance, largely a function of Trump’s demagogic presidency, but it is just as possible that the late 20th and early 21st century experiences should set our expectations about how often impeachments will occur in the future.

If this is the case, the time has arrived for Congress to examine and reform the impeachment process, especially in the conduct of Senate trials. It is faring poorly, or headed in the wrong direction, on two measures. It is shortchanging fact-finding, and, more particularly, the Senate tends to leave to the House the requisite factual development. In addition, it is failing to establish in clear terms that this is a constitutional, not—in the narrowest sense—a legal, process. Both these problems became evident over the course of the second Trump trial.

Neither of these failings accounts for Trump’s acquittal, which was ensured by Republican iron-clad unwillingness, clear from the beginning, to vote for conviction. But both contributed to a muddled, incomplete trial record and helped set a dangerous course for future impeachment processes to follow. The Senate rules that govern impeachment, largely unchanged for 150 years, are in need of reform.

The Role of the Senate in Finding Facts

The Nixon impeachment played out over months of both House and Senate investigations, and in the House, these included both closed-door investigative activity and public hearings. The House Judiciary Committee conducted its part of this inquiry for three months, and the public hearings that followed consumed more than two months. The Select Committee on Presidential Campaign Activities, the “Watergate Committee,” launched an inquiry in February 1973 that spanned 16 months.

The Clinton impeachment marked the first step away from congressional responsibility for fact-finding. It relied almost entirely on fact-finding by an executive branch officer, Ken Starr, who was involved in impeachment as independent counsel operating pursuant to a statute that Congress on a bipartisan basis, following the Starr and other unhappy experiences, allowed to lapse. The Senate voted for only three depositions as part of that trial. No witnesses gave testimony or underwent cross-examination on the Senate floor.

The first Trump impeachment did benefit from fact-finding conducted by the House and from related Senate inquiries, but under a trial procedure imposed by the then-Republican majority on a party-line vote, the Senate dispensed with any formal factual inquiry during the impeachment process and concluded the trial in just under two weeks. The second Trump impeachment, voted under extraordinary circumstances, at least proceeded under a bipartisan resolution adopted on a vote of 89-11 but consumed only a matter of days. The Senate trial wrapped up in less than a week, even though Trump had left office and the need to move quickly to remove him had passed.

The House appears to have become the principal fact-finder in impeachment, to the extent that it discharges this function. The Senate rules governing impeachment trials permit the Senate to call witnesses and subpoena evidence, but it rarely does much of the former or any of the latter. The Senate had the occasion to pass judgment on the demagogic presidency, and in the end, relying primarily on a jurisdictional objection, it did not do so. Some of the senators voting to acquit denounced Trump’s conduct on Jan. 6, and while this is better than nothing, it served to muddy the outcome—particularly when the Senate was addressing misconduct as egregious as Trump’s. Even if, as is highly unlikely, additional fact-finding would not have changed the outcome, it might have at least stirred the senators who stood by Trump to a greater level of public embarrassment or discomfort. At the urging of the House managers, the Senate briefly considered calling witnesses and then settled for a written statement by one witness to be read into the record.

It might seem sufficient to have the House carry the burden of investigation, and all things considered, including the value of a timely disposition, limit the Senate’s role in fact-finding. But the House cannot be certain to have developed a complete record for impeachment, and the Senate has an independent responsibility to “try” a case, which will normally imply enough fact-finding to test the House records and fill in any gaps. There may be cases where the House could not reach agreement on calling a witness, but the Senate could. And it is possible, too, that the argument for calling the witnesses in a particular case would be strengthened by developments after the House vote, such as where the press exposes new information that could (and reasonably should) affect the Senate’s judgment about the need for direct testimony. There is also the matter of the differences in the support required for impeachment and conviction. The House may well explore just the facts required to support impeachment by majority vote. The Senate vote to acquit, or to convict with supermajority support, may warrant additional fact-finding. In fact, it might seem to require some independent attention to the facts.

One additional effect of the short shrift now given to the development of the trial record may be an undue advantage to the impeached president. It’s hard to imagine any president facing impeachment or conviction relishing an extensive process that involves serious factual inquiry. A rushed process with curtailed fact-finding also lends substance to the vacuous calls to respect a president’s “due process” rights—setting aside the point that presidents have no such specific rights, except those that the Senate concludes it should provide for. (There may be examples at the extremes where a “due process” claim would have judicially enforceable merit, such as if, as Justice David Souter suggested in a case involving a judicial impeachment, the Senate were to act in a manner seriously threatening the integrity of its results, convicting, say, upon a coin-toss, or upon a summary determination that an officer of the United States was simply “a bad guy.”)

Of course, in any reform that would invite prolonged proceedings, the Congress must always contend with the costs of partisan uproar over impeachment and of the demands it places on its regular calendar at the expense of other, pressing business. In the recent Trump impeachment trial, senators were reasonably worried about a Senate tied up in impeachment and not attending to the public health emergency and the associated economic and social stresses. Referral to a trial committee for investigation would have partly addressed this legitimate consideration by clearing the floor for other business.

Even now, there are calls for Congress to engage in continued fact-finding, and this is all for the good. There is more to be learned about the weeks leading to Jan. 6 and about the events of that day, such as Trump’s indifference to the violence and his intention that it disrupt the congressional tally of electoral votes. But this fact-finding will be divorced from the impeachment process, and whatever emerges from any such inquiry will fall outside the formal record of this impeachment. We will not know what difference it would have made, if any, to the outcome. In the end, while the House managers staged a brilliant presentation of the public record, key questions remained to be answered and were not before the trial concluded.

For all these reasons, the Senate could amend its standing rules to provide that upon receipt of the House articles, unless the Senate votes otherwise, the charges would be referred to a committee for investigation. The Senate impeachment rules specifically permit the appointment of a trial committee to perform this function, and the Senate has used such committees successfully in investigating and adjudicating judicial impeachments. Under reformed rules, referral to a trial committee would be the routine, default choice, not the exception. It would enable the fact-finding to occur without “tying up” the Senate floor and making other business impossible.

A Senate reform of its rules to require a full factual inquiry into articles of impeachment blocks at least this one path of escape for senators fearful of bucking the president of their own party. It is also one defense against the demagogue that neither the election nor the Senate trial provided. The demagogue thrives on lies. Rules providing for committee investigations in the ordinary course send the message that the lies will not go too easily unexposed. A committee process is necessarily, or at least relatively, a more intensive fact-gathering exercise: It has only this focused mission, and this focus is not likely to be affected to the same degree by the full Senate’s concern with clearing the floor and “turning to other business.”

An additional reform of the rules could aid in this reinvigoration of fact-finding and checking. Senators who ask questions of counsel are now compelled to have their questions written and then read aloud by the chief justice (or Senate officials) for a response. The senator posing the question may not follow up. This allows counsel to control the exchange; the lawyers can go on at length, and nothing they say is subject to check, even for obvious evasion or plain misstatement of fact. In the recent trial, Sen. Bernie Sanders asked Trump counsel Michael van der Veen if he accepted his client’s denial that he lost the election. Van der Veen dodged the question and testily lectured Sanders on relevancy. When Sanders attempted to respond, the presiding officer reminded him that “[s]enators, under the rules, cannot challenge the content of the response.” The truncated response to van der Veen that Sanders managed to utter—“You represent the president of the United States!”—does not appear in the Congressional Record. The rules, if amended to provide senators with more leeway, need not open up the avenue for unlimited senatorial speechmaking, but they can do more than current rules to make the time for questioning more meaningful and pressure responsive answers from counsel.

The “Legalization” of the Process

While the House and Senate have each had occasions in the past to affirm the proposition that impeachable offenses need not involve prosecutable violations of law, there was too much in the Trump trial record this time around that moves dangerously in the other direction. Michael McConnell has suggested that the House overreacted to the criticism of the first impeachment—for Trump’s pressure on the Ukraine government to fabricate an investigation of his chief political opponent—by framing the second on “incitement” in narrowly “legalistic” terms. As a result, it wound up “unnecessarily shoulder[ing] the burden of proving the elements” of the crime of incitement when there is no question that Trump’s actions on leading up to and including January constituted a fully impeachable dereliction of constitutional duties.

Whether this is the correct assessment of the House’s motives in drafting the article as it did, it may have had the effect of over-legalizing the process. And this over-legalization could be seen in other ways during the Senate trial. One notable example is Senator Mitch McConnell‘s speech following Trump’s acquittal. M McConnell argued the case against “late impeachment,” finding that it was a close constitutional call but concluding that the former president is not subject to conviction once he or she no longer holds office. There’s little point in rehashing the argument to the contrary, which I believe to be the far stronger one. But McConnell also characterized the impeachment process as a “forum for American justice” and argued that, because it was not the only or “final” one, it should be understood that the acquittal did not save Trump from a full accounting for his actions: “He didn’t get away with anything yet.” McConnell emphasized that Trump faces potential criminal and civil legal consequences for his actions.

But the prosecution of a crime is not the same as, and cannot compensate for, the redress of a serious constitutional offense. McConnell repeatedly acknowledged that Trump committed such an offense. “Practically and morally responsible” for the events of Jan. 6, Trump had been “determined to either overturn the voters’ decision or else trash our institutions on the way out.” And yet, on the theory that he is now a private citizen, McConnell suggested that we can be fully satisfied that any remedy lies with the justice system. But it doesn’t. The justice system does not serve as a vehicle for rendering constitutional judgment on official conduct, much less for disqualification from future office-holding. It cannot answer directly, as the Constitution requires, a president’s attempt to “either overturn the voters’ decision or else trash our institutions on the way out.” And one further consequence of treating the impeachment process as only a “forum for justice” may be the generation of pressure for prosecutions—for expanded criminal theories of liability or extensive investigations—when the Senate is unwilling to render constitutional judgment.

This misplaced legalization of the impeachment process emerged also, almost comically, when van der Veen, who seemed to have taken over as lead lawyer from. Bruce Castor, lectured the Senate about the federal rules of civil procedure. “I don’t know how many civil lawyers are here,” van der Veen asked sarcastically, but, he said, senators without the required legal training should know that Trump’s lawyers were entitled to call witnesses. And not by Zoom, but “in person, in my office, in Philadelphia.” Senators needed to appreciate that this is “civil process. That is the way lawyers do it.”

It was at this point that one yearned for a senator to lodge a formal objection with the presiding officer. What van der Veen suggested was nonsense, which fully merited the laughter that it elicited. But nothing more, for the record, was said about the flatly erroneous statement about the application to an impeachment trial of the rules of civil litigation. During the Clinton impeachment, in similar circumstances, Senator Tom Harkin objected successfully to repeated references to senators as “jurors,” and Chief Justice William Rehnquist sustained the objection and directed senators to “refrain” from the misleading statements about their constitutional role. The Harkin objection helped to set the record straight about the Senate’s function in impeachment—a court sitting in judgment of alleged constitutional offenses, not simply resolving questions framed by others in legal terms—and it was unfortunate that van der Veen’s ludicrous assertion was not also decisively rejected.

Amended Senate rules could affirm that the Senate decides the rules of procedure and that it is not in order for counsel to suggest that the body is bound by the requirements for the conduct of civil process, or “due process” as understood in that context. It could also cite as grounds for objection statements flatly inconsistent with the Constitution and applicable precedent, such as claims that the charges must satisfy the elements of any analogous crimes. For example, a charge that a president “lied” about matters of consequence does not require strict adherence to the requirements for establishing “perjury.”

These amended rules would encourage members to lodge the appropriate objections. They would help clarify the distinction between a legitimate and an illegitimate defense—just as much in the interests of the viewing public as in the service of a trial conducted on sound constitutional grounds.

Conclusion

To argue for reformed rules for impeachment is not to contend that impeachments should become the new constitutional “normal.” Nor is it an embrace of unscrupulously politicized impeachment, untethered to rigorously framed constitutional argument, to affirm that an impeachable offense need not be a crime. The Constitution does, however, provide for impeachment of presidents, vice presidents and civil officers, and in the periodic struggles over the “imperial presidency” and the risk that we will see more of the demagogic model the Trump presidency represents, there may be more rather than less resort to the process than in the first 185 years of the history of the presidency. If so, there is every reason to refine the process in light of experience and assure that the standing rules better serve the goal of a thorough, efficient, constitutionally grounded and credible trial.

In the last impeachments, the Senate has adopted framework resolutions, even by slim majority vote, to adopt procedures for impeachment, and this raises the question: Would it matter if the Senate amended its rules, if it could simply displace them by resolution for any particular impeachment? One answer is that by amending the rules, the Senate would raise the bar for simply ignoring them on critical issues. It would have acted to make extensive changes for the first time in over a century. This action would affect the debate in any particular impeachment over a deviation from the key changes effected by the reforms; it would put the burden on proponents of the deviation to justify them. And it would not mean that the Senate could not by resolution address other, more routine procedural issues, such as the time allotted for presentations and closing arguments, or for Senators’ questions.

This is a key benefit of the amended rules: establishing consistency of core process and obviating the need for negotiations from scratch over baseline process. And the particular requirements it should address, as proposed here—a committee charged with fact-finding and protections against the “legalization” of both the process and standards for impeachment—are not the only ones that reformed rules could cover. It could clarify, for example, the motions, objections and points of order that would be permitted, and who would be authorized to make them. The more clarity, the better. But by committing itself to a fact-finding process and defending itself against creeping “legalization,” the Senate would be signaling that it was taking seriously into account recent experience and the likelihood of having to meet this constitutional responsibility again, in the not-too-distant future.

The Enormous Risk of Atmospheric Hacking

By Bill McKibben, The New Yorker

19 February 21

ometime in the next two weeks, an independent advisory committee is expected to issue a recommendation on a request from a team of Harvard scientists to fly a balloon from Kiruna, in Sweden’s Lapland region. The team would test a flight platform that might someday be used to inject a sample of aerosols into the stratosphere. Though this initial request is only for a test of a flight platform, a successful run would likely mean more tests, with aerosols of calcium carbonate and sulfates. These particles could hack the planet’s climate, by reflecting some of the sun’s light back out to space before it can reach the ground. It’s an ominous moment in the planet’s history—and one we should back away from for now.

This so-called solar geoengineering is the ultimate, break-the-glass response to the climate crisis. It’s been in the air, so to speak, for a long time (I wrote about it in 1989, in “The End of Nature”), but the fullest account yet comes in my colleague Elizabeth Kolbert’s marvellous new book, “Under a White Sky.” The title acknowledges the fact that this atmospheric hack could change the blue dome above our heads to a milky gray—which should give you some sense of the scale of the intervention. The argument in its favor is that humanity has done so little to address the climate crisis, despite thirty years of scientific warning, that we might have no choice but to follow our injection of CO₂ with an injection of sulfate aerosols. Think of it as Narcan, on a global scale. “Geoengineering is not something to do lightly,” Harvard’s Daniel Schrag told Kolbert. “The reason we’re thinking about it is because the real world has dealt us a shitty hand.”

Indeed, it’s possible to imagine how this happens—possible to imagine some moment in the future when it’s in the survival interest of both, say, the Marshall Islands and ExxonMobil, and they possess enough moral and financial clout to send us down this path, one fraught not just with metaphysical danger (a white sky?!) but with enormous practical risk. This man-made equivalent of a permanent cloud of volcanic ash might disrupt the monsoons over Asia; it will definitely allow the oceans to continue acidifying; and, as the climate scientist and geophysicist Raymond Pierrehumbert points out, it gets us ever farther out on a limb, because, if we’re masking increasing carbon with sulfur, we’ll never be able to stop without triggering a period of accelerated warming. “The disastrous consequences of termination shock would grow as we cower year after year under the flimsy stratospheric sunshade,” he wrote, “hoping that technology to suck carbon dioxide out of the atmosphere on a massive scale becomes practical before disaster strikes.” It’s also worth imagining how whoever does engineer the sky will be blamed for every weather disaster henceforth—it’s bad enough trying to deal with the cascade of nonsense about green energy causing the Texas power outages.

It would be stupid to say that we will never need to consider a step this horrible: Kim Stanley Robinson, in his masterly new novel “The Ministry for the Future,” makes it a plot point. After an epic Indian heat wave claims millions of lives, Delhi launches a fleet of aerosol-spewing aircraft to cool the planet. But right now, in the real world, progressing with this kind of work takes the heat off our political systems at precisely the moment—to the month—when they’re finally beginning to get into gear. The United States, the world’s largest economy, has finally assembled the will to tackle global warming: last week’s initial meeting of the federal climate team under Gina McCarthy was a Zoom screenshot of what concentrated power in service of the future might look like. Engineers have provided us with cheap solar and wind power, and with affordable batteries to store that power. This means that, if we want to, as a civilization, we can devote the next decade to an all-out effort to transform our energy system. And the Intergovernmental Panel on Climate Change has said that, if we do—if we cut our emissions forty-five per cent from 2010 levels by 2030—then we have a shot at limiting the temperature rise to the 1.5-degrees-Celsius target set in the Paris accord. Our attention—all our attention—should be on that goal. If we don’t meet it by 2030, then we need to have a serious talk as a species and start assessing our options. That’s the moment for beginning these kinds of tests, not now, when they will become a rallying point for the people and the interests that want to slow the pace in this decade of transformation.

It is especially ironic, for a couple of reasons, that Harvard will do this in Sweden. For one thing, it’s a Swede, Greta Thunberg, who is as responsible as anyone for bringing us to the moment when we might actually pursue a serious course forward to limit emissions. For another, in the face of the climate crisis, Harvard has refused (despite huge support from students, faculty, and alumni) even to join its peers, such as Oxford, Cambridge, and Berkeley, in divesting from fossil-fuel companies. The Harvard Corporation and its Board of Overseers even changed the rules of election to the board, preventing insurgent, climate-defending alumni from electing a majority of the seats.

It seems clear that the thing we need to test first is not aerosol-spewing balloons but our ability as a species to rein ourselves in, and it also seems clear that the next decade is the time for that test. If we fail, then perhaps we deserve to stare pathetically at a white sky.

Passing the Mic

Letitia James is the attorney general of New York, and has emerged as one of the key public officials trying to hold the climate line. In her previous job, as New York City’s public advocate, she helped spur the city’s commitment to divestment. She was a constant thorn in President Trump’s side, challenging his environmental-protections rollbacks in court, and she pursued a civil lawsuit filed by the state alleging that Exxon had hidden the costs of climate change from its investors. A judge ruled against New York in December of 2019, but, given the state’s clout, she will be crucial in the continuing fight to hold the oil companies accountable for climate damage. (Our conversation has been edited for length.)

From your days as public advocate, you’ve been a powerful voice for climate action—one of the first and loudest, for instance, to call for divestment of the city’s pension funds. Where did that passion come from?

I led the charge to divest from fossil fuels because there is nothing prudent about investing in companies that cause so much harm to our people and our planet. After many years, I’m proud to see this finally become reality.

That passion and understanding came from my personal experiences growing up in Brooklyn and then representing my district in public office. I learned early on that the health of our planet is inextricably tied to the health and safety of our communities. But I also learned that the negative impacts of an unhealthy planet are not shared equally—there is a disproportionate impact on communities of color and on our most vulnerable. When I was a City Council member, I met far too many young Black children in my neighborhood who struggled with severe asthma, and this was not the case in predominantly white neighborhoods in New York.

And the science affirms this—predominantly Black and Hispanic communities, especially in New York, are exposed to much more polluted air than white communities are. It’s in these communities where we find the sanitation disposal centers and where we have greater vehicle traffic and pollution.

Protecting the environment and our resources should be a priority for everyone. But the truth is, it’s not just a matter of insuring the next generation inherits a healthy and safe planet—this is about equality and justice, too.

You fought hard in the case against Exxon. Are these companies, which, by every account, knew about and lied about climate change for decades, really going to escape paying a price for that conduct? What are the next steps for holding them accountable?

From Day One, I have maintained that the American public is entitled to the truth, and through our efforts in court, that’s exactly what they got. For the first time, ExxonMobil was compelled to answer publicly for their internal decisions that misled investors. The oil giant never took seriously the severe economic impact that climate-change regulations would have on the company, contrary to what they were telling the public.

Throughout this case, we laid out how Exxon made materially false, misleading, and confusing representations to the American people about the company’s response to climate-change regulations. Exxon’s inability to tell the truth further underscores the lies that have been sold to the American public for decades. Despite the court’s decision, my office is continuing the fight to insure companies are held responsible for actions that undermine and jeopardize the financial health and safety of Americans across our country, and we will continue to fight to end climate change.

The iron law of climate change—domestically and globally—is that those who did the least to cause it suffer first and worst. How can the justice system reflect that fact here, and is there any discussion among your colleagues around the world about ways to reflect that fact in cross-boundary legal action?

Throughout my career, I have taken countless legal and legislative actions to protect the environment for this very reason: our most vulnerable feel the brunt of the impact. Climate change is not just an issue of science; it’s an issue of fairness and justice.

Since the Trump Administration began, New York has taken more than two hundred and thirty significant regulatory and legal actions to stop its disastrous and relentless attacks on the environment. These harmful regulations allowed powerful corporations to continue to maximize their bottom line with zero regard for their impacts on the planet and its people.

In many of these lawsuits, I led or joined coalitions of state attorneys general because we share these natural resources, and any attack on the environment impacts all of our states. Protecting the environment demands collective action, and I will continue to prioritize these efforts and my work with other states to insure that the full global impact of climate change is addressed.

Climate School

As long as we’re thinking about Sweden, it’s true that, in many ways, the country has been a model for green excellence, ranked as one of the “most sustainable” countries on the planet. But, of course, it was frustration with Swedish inaction that initially drove Greta Thunberg to sit on the steps of its Parliament. Marcus Westberg and Staffan Widstrand, both nature and conservation photographers, have been chronicling the country’s destruction of its original forests and their replacement with less-diverse plantation stands. Their images are remarkable.

Here’s a new video from Grandmothers 4 a Green New Deal. The message that environmentalism must go well beyond its traditional concerns and grapple with racial and economic inequality seems to be sinking in!

Public-lands policy will continue to be de-facto energy policy—the federal government’s vast holdings, especially in the West, are where much of the country’s drilling and mining take place. Nick Bowlin offers a fascinating take on the matter in the new issue of The Drift. In 2016, he writes, one of Ronald Reagan’s “former advisors called public lands ‘a huge socialist anomaly in America’s capitalist system.’ But under federal oversight, the lands are often treated as public in name only. The history of public lands, meanwhile, is one of broken treaties, colonial domination, and suppressed sovereignty.’ ” Solving this puzzle will soon be up to the new Secretary of the Interior, Deb Haaland, the first indigenous Cabinet minister in American history—provided she gets past a G.O.P. effort in the Senate to block her nomination. Here’s Steve Daines, of Montana: “I’m not convinced the Congresswoman can divorce her radical views and represent what’s best for Montana and all stakeholders in the West. Unless my concerns are addressed, I will block her confirmation.”

Arm in Arm is a new group formed by former members of the U.S. Climate Action Network, who “reached the conclusion that nothing we were doing felt powerful enough.” Now they’re aiming to build toward “massive decentralized escalated action through 2023, including calling for mass work stoppages and boycotts when the moment is ripe.”

Divestment campaigns in the Ivy League have led to more fundamental examinations of university governance—the latest, by Princeton students and alums, shows, among other things, how Exxon has been using research dollars there to “greenwash” its record.

The Intercept’s Sharon Lerner has a new account of the practice of newspapers like the Times and the Washington Post providing “branded content” to the oil industry—that is, producing “reports” that look kind of like actual news stories, but instead are glorified press releases. As Lerner points out, “the five largest publicly traded oil and gas companies have spent some $1 billion on ‘narrative capture’ and lobbying since the Paris Agreement was struck in 2016, according to a report published this month by Influence Map. That spending includes $195 million on ‘often misleading branding campaigns.’ ”

Scoreboard

New York’s governor, Andrew Cuomo, in a move that delights New York City real-estate developers, is trying to undercut the city’s remarkable new law demanding building retrofits for energy efficiency. “It’s puzzling given the governor’s recent raft of climate proposals,” the N.Y.C. Environmental Justice Alliance’s executive director, Eddie Bautista, told Politico. “We find it deeply troubling because the expected emission and job generation projections that the law envisions can get whittled away.”

Officials in Charleston, South Carolina, are planning to spend two billion dollars on a wall to block rising seas resulting from storm surges, a plan that many scientists think won’t ultimately work. Perhaps, as Robert S. Young, the director of the Program for the Study of Developed Shorelines at Western Carolina University, told Yale Environment 360 last year, the real problem is that “we have yet to come to terms with the fact that climate change tells us there are some places where growth is no longer possible. In a way, we need to come up with a new definition of what success means beyond simple growth.”

As the Alaska energy journalist Nat Herz reports, a two-judge panel from the Ninth Circuit Court of Appeals has blocked Conoco from work on a big new oil field on Alaska’s North Slope. Since it’s only possible to build ice roads in the region during the winter, this means that progress on the project may halt till next year, giving the Biden Administration time to reëvaluate it.

Last August, the Colonial Pipeline in North Carolina spilled what the company said was sixty-three thousand gallons of gasoline. That’s a lot (two back-yard swimming pools’ worth), but nothing compared with the 1.2 million gallons that it turned out had actually leaked. It may be the largest gasoline spill in the U.S. since at least 2000, and most of it apparently ended up in a nature preserve.

Warming Up

If you want to keep the “early days of a new Administration” vibe alive, Gregory Porter has a new gospel-tinged song, “Revival,” just out. “You lift me higher, / Out of the fire, / Out of the flames.”