Climate and the Constitution

From Harrison H. Schmitt’s “Climate and the Constitution, Parts 1, 2, 3”

[Note by Dr. Ed Berry: Senator Schmitt wrote three articles that discuss climate and the constitution. To make it easier for you to follow his three articles, I summarize them here. The numbers throughout the text are the references he has cited in his articles.]

A. Political choices

Americans should think long and hard about their children’s future before giving up liberties and incomes to politicians in Washington and at the United Nations in the name of “doing something” about climate change.

Trying to “do something” about the current slow, long-term warming in Earth-surface temperatures will not work against natural climate forces.

In the name of the impossible goal of climate control, Congress is preparing to vote on legislation that would seriously and unconstitutionally harm the American economy and its employment.

Given how little we actually know about climate, as well as great uncertainties in what we do know, the President, regulators, and Congress have chosen an extraordinarily dangerous path of unconstitutional usurpation of the rights of the people and the constitutionally reserved powers of the States.

A long-term federal and commercial agenda to gather power and profit in the name of “environment” at the expense of liberty has no moral or constitutional foundation. A carbon emissions cap and tax on energy production and use jeopardizes the economy and our ability to respond to security threats or to add new jobs.

When Americans realize the liberties we will lose in this unconstitutional power grab, we will vote for those who will prepare us for natural climate change rather than trying to stop the unstoppable.

Efforts to unconstitutionally limit energy production and tax carbon emissions would adversely affect the economy and thereby limit the Nation’s ability to counter potential adversaries or direct attacks.

The constitutional relationship between climate-related taxation and regulation, on the one hand, and national security and economic health, on the other, demands close examination. Meeting the constitutional requirement in the Preamble and Articles I to 2 “provide for the common Defence and the general Welfare” requires a strong economy and ready access to abundant energy.

The President and Congress already have intentionally and aggressively weakened our nation’s economy and undermined the general welfare by focusing recession recovery on deficit spending, a weak dollar, more heavy-handed regulations, and future tax increases.

These continue to be dangerous times for liberty and constitutional protection of that liberty. Election battle lines have formed for November 2010.

B. Constitutional Conflicts

The Environmental Protection Agency has assumed unauthorized, unconstitutional, dictatorial powers to regulate carbon dioxide emissions.

In addition, the Department of Energy, the Securities and Exchange Commission, and other Government agencies persist in over-stepping their regulatory authority to jam climate related requirements into our lives and economy at the expense of liberty, jobs, and incomes.

Our Constitution, by virtue of the Article I, Section 8, Clause 8, gives power to Congress to ”promote the Progress of Science and the useful Arts.” This justifies only research on climate and other aspects of the earth sciences and engineering rather than control.

C. States Rights

Our Constitution has no direct or indirect mention of protecting the environment, the 10th Amendment leaves to the States all governance responsibility for the environment.

Prudent protection of local environments by the States and the people has justification in the 9th Amendment’s protection of natural rights, including “Life, Liberty and the Pursuit of Happiness” as formalized in the Declaration of Independence.

It remains increasingly in the economic and societal interests of the private sector and State governments to stop and reverse the unnatural changes for which they bear constitutional responsibility.

Private sector, State, and Federal control of their contributions to regional local pollution effects, and consumer, shareholder, and voter insistence on prevention and cleanup, form an integral part of the nation’s future. Appropriate and restrained Federal regulation within the Founders’ logically constrained intent of Article I, Section 8, Clause 3, of the Constitution, that is, the Commerce Clause, can contribute greatly to the instigation of this new environmental ethic.

On the other hand, unconstitutional coercion will make matters worse while at the same time eroding essential liberties. The long road back to constitutional protection of the environment begins with the elections of 2010.

D. Climate Politics

Recent international scientific conferences hosted by the Heartland Institute of Chicago, the broad compilation of information contained in “Climate Changed Reconsidered,”9 and an increasing body of published research shows that observational climate science is indeed strong. The results of this observational scientific research and analysis show that natural processes dominate changes in Earth’s climate and that conclusion should drive national policy.

General agreement exists among both climate change alarmists and climate change realists that most of the slow variations over the centuries before 1949 came from natural causes. 28 These natural events include the general warming trend continuing the recovery from the Little Ice Age.

Politics took over when definitive measurements of a steady increase in atmospheric carbon dioxide became available after 1960 29. Since then, “carbon dioxide,” an essential ingredient for life itself, has become a stalking-horse for increased government control of consumers, private business, industry, and the economy.

Assumptions rather than facts about Climate change, and computer modeling rather than real-world observations, underpin the Government’s efforts to restrict American liberties and confiscate trillions of dollars of American income. The scientific rationale behind this proposed massive intrusion into American life requires more than a “consensus” of likeminded climate analysts and bureaucrats. It needs to be right.

Models cannot deal with the realities of weather, that is, evaporation, convection, clouds, rain, wind variations, ocean heat storage and currents, and all the other pathways in which nature inexorably moves heat from warm regions to cold.

Climate forecasts based on computer models have proven to be unsuccessful due to the great number and great complexity of critical variables, some of which, like the effects of water vapor and clouds, so far defy mathematical definition. Little wonder that climate models fail, both in replication of past conditions and in forecasting the future. Computer models of global climate just do not work.

For example, the models’ unanimous predictions do not match actual measurements of temperatures in the troposphere (lower 0-18 miles of the atmosphere, depending on latitude). According to the models, the troposphere should have warmed significantly in response to rising levels of atmospheric carbon dioxide. On the contrary, the troposphere has remained little changed during the last 50 years during which satellite and balloon-borne measurements of temperature and continuous direct measurement of carbon dioxide levels became available.

The last thing policy makers should rely on is guidance based on assumptions put into obviously flawed computer models.

Ten thousand years of natural, post-Ice Age climate variability should give pause to those who maintain that current slow global warming and carbon dioxide increases result largely from human use of fossil fuels. Observational data and interpretations related to global temperature and atmospheric carbon dioxide deserve close examination before taking irrevocable and dangerous regulatory actions.

Recent disclosures and admissions of scientific misconduct by the United Nations and advocates of the human-caused global warming hypothesis shows the fraudulent foundation of this much-ballyhooed, but non-existent scientific consensus about climate.

Public confidence in the government’s climate change position suffers from the exposure of fraudulent academic and bureaucratic behavior aimed at overriding normal processes of skeptical scientific review and debate. In the face of diligent and realistic climate observations by others, believers in human-caused global warming and their tightly bound socialist supporters have circled the wagons.

It is factually, professionally, and absolutely wrong for the former Chairman of the National Science Board to state in congressional testimony that there exist no “specifics, alternate hypotheses, and facts” contrary to the human-caused climate change hypothesis.10

The National Academy of Science, Nature and Science magazines, and the mainstream climate establishment have increased the volume, but not the reasonableness, of their denunciations of disagreeing scientists and their rationalizations for the missteps of other scientists with whom they agree.1

As the NAS report confirms, a socialist political agenda drives government policy and that policy seeks control over all aspects of local as well as national economic activity, particularly energy production and use.

The “human-caused global warming” community continues to talk only to themselves instead of engaging in a reasonable dialog with reputable disagreeing scientists. These latter scientists want objective enquiry to take place before forcing unconstitutional legislative and regulatory decisions on an increasingly skeptical electorate – decisions that will cost both liberty and the American economy dearly.

E. Proper focus

So, what should we do now about climate change, if anything? We must prepare to adapt to inevitable change, however unpredictable it may seem.

Federal control of energy production and use, advocated by special “climate” interests, would have a vanishingly small effect on slowing three and a half centuries of very slow, erratic, but natural global warming.

Our focus should be on producing more, low-cost energy to maintain economic growth, raise worldwide living standards and, where necessary, deal with the actual effects of natural climate change whether warming or cooling.

We should never limit growth in energy use with its associated improvements in human conditions and standards of living.

We should recognize that production and use of our own domestic oil, gas, coal, and nuclear resources buys us time to meet these challenges and, at the same time, preserve our liberty.

The following Government efforts would be constitutional as promoting “Science and the useful Arts,” an enumerated power of Congress under Article I:

  • Support sustained research and development of energy alternatives with clear paths to commercialization. (We should discontinue tax dollar subsidies and loan guarantees for premature or flawed introduction of politically motivated concepts.)
  • Provide investment and business environments that will mature new sources of energy, particularly through reduction of personal and business income tax rates.
  • Remove regulatory and legal restrictions on nuclear power to encourage private investment.
  • Support research to develop nuclear waste reprocessing and/or reuse technology, terminated under the Carter Administration.
  • Support research to use advance fusion processes to transform unusable portions of nuclear waste into stable or short-lived radioisotopes.

F. Science understanding problem

Critical differences in scientific approach exist between scientists who observe weather and climate and those who attempt to model nature’s complexities in computers.

Those who observe the natural, economic, and sociological aspects of climate change are “realists.”

Too many modelers, on the other hand, have become office-bound “tinkerers” who believe complex mathematics and parameter tweaking can accurately forecast long-term changes in climate – Earth’s most complex natural system. Many of tinkerers also have let ideological emotions and advocacy cloud their scientific objectivity.

In this context of natural reality, the recent report, “America’s Climate Choices,” released May 19, 2010, by the National Research Council of the National Academy of Sciences (NAS), illustrates how far that formerly illustrious Academy has strayed from the principles of “science.” Those principles are, simply: observe, hypothesize, test, analyze, retest, and repeat this cycle until plausible, objective conclusions appear to be warranted – conclusions that others or nature can replicate. The Academy, in contrast, has become just another political arm of the governmental establishment, promoting a federal mandate of “major technological and behavioral change” based on flawed as well as selective science.

The report’s conclusions that “climate change is occurring, caused largely by human activities…” and that “the U.S. should act now to reduce greenhouse gas emissions” ignore contradictory tests of such hypotheses that come through objective observations.

Unfortunately, support for the Academy’s political statements also comes from Alan Leshner, CEO of the American Association for the Advancement of Science (AAAS).1 The AAAS, in an Essay Review of books related to the climate change debate in its Science magazine, 2 could not even bring itself to require consideration of books dissenting from the “consensus” that current climate change is human caused 3. In taking these political, non-scientific positions, the Academy has joined another political body, the UN’s International Panel on Climate Change (IPCC) in attacking the heart of free institutions and economic prosperity.

The Academy’s and British Royal Society’s Presidents and membership, in recent reactions to the public disclosure of fraud within the climate science political community, have exacerbated their loss of credibility rather than enhancing it. 4 The Royal Society takes a particularly disappointing and ironic position as its founders’ motto 350 years ago was to “accept nothing on authority.” 5

The National Academy now has embarrassed itself further by using a statistical analysis of publication records as “scientific” justification of the so-called “consensus” that humans cause climate change 6.

If the recent climate science policy scandals show nothing else, they show the existence of political bias. Even the Academy’s study of “America’s Climate Choices” was funded by the leadership of the Congress and the National Oceanic and Atmospheric Administration (NOAA), both of which have huge political and budgetary interests, respectively, in reaching the conclusion that humans cause modern climate change. 85% of the Academy’s future study funding8 depends on concluding what your political customers, the politicians and bureaucrats, want you to conclude.

Unfortunately, bias permeates both the reports and the published work reviewed in reports produced by the Academy and IPCC for the use of “policy makers.” This bias follows from the dependency on government funding of so many climate researchers and bureaucrats as well as from the extra-constitutional political leanings of most academics today 7.

If grant applications from the researchers involved do not propose to show the effects of humans on climate, their proposals risk not being funded. If their conclusions do not allege an effect by humans on climate, however tenuous that effect might be, their career-essential papers probably will not be published by politically committed journals. Not following liberal orthodoxy on climate change thus may create problems of tenure at home institutions.

G. Bad federal policies

The President has proposed loan guarantees, rather than regulatory and legal reform, to add more nuclear power to the 20% currently meeting electrical power demand in the United States. His proposal for the Government to guarantee $8.33 billion in loans, allegedly to encourage a single power company (Southern) to build two nuclear fission plants, reflects cynical manipulation of the facts.

  1. Targeted loan guarantees in general are unconstitutional, violating the equal protection rights of other Americans provided by the 5th and 14th Amendments.
  2. The proposal can always be withdrawn and does not include an elimination of regulations, judicial reviews, and barriers to nuclear waste disposal or reprocessing that make raising private capital for nuclear plants impossible.
  3. The President hopes his proposal, whether or not ever consummated, will garner support for similar loan guarantees to uneconomic wind, solar energy, and biofuel plants and for passage of unworkable and scientifically invalid climate change legislation.
  4. The proposal would give the Government, once again, effective financial control of another segment of the American economy while distorting competition, capital markets, and good business practice.
  5. Government loan guarantees ultimately constitute a liability held by the American taxpayer. Don’t we have enough of such liabilities already?


Harrison H. Schmitt is a former United States Senator from New Mexico as well as a geologist and former Apollo Astronaut. He currently is an aerospace and private enterprise consultant and a member of the new Committee of Correspondence.

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