FIRST LOOK: 

Mining And Tribal Protections, Wilderness Conflict: The Biden administration on Thursday took action effectively blocking a proposed copper mine near the Boundary Waters Canoe Area Wilderness in northeastern Minnesota. The order signed by Interior Sec. Deb Haaland blocks mining and geothermal leasing in more than 225,000 acres of Superior National Forest for 20 years and is the second action in as many days by the administration to protect largely untouched wilderness areas. It also illustrates the need for minerals necessary for clean energy development as well as the perpetuation of extractivist and colonial legacies — a conflict even more pointed in what is now Arizona, where the San Carlos Apache Tribe is fighting the proposed Oak Flats copper mine in canyons the tribe regards as a corridor to God inhabited by holy spirits. Wendsler Nosie, a former tribal chair, visited the sacred area with his grandfather as a child and has vowed to take his fight to defend the Apache's right to practice their religion to the U.S. Supreme Court. “Would anyone destroy Mount Sinai to drill for oil?" he asked. “Both the president and the secretary have been clear that this administration supports responsible mining to develop critical minerals where those projects don't pose unacceptable impacts to communities or the environment," an unnamed Biden administration official told the Duluth News-Tribune. (Boundary Waters: AP, E&E News, Star Tribune $, MinnPost, Duluth News-Tribune, MPR, Minnesota Reformer, Washington Post $, HuffPost, CBS, Roll Call, New York Times $; Oak Flats: New York Times $)

Clean Energy Investments Match Fossils For First Time: Clean energy investments hit $1.1 trillion in 2022, roughly matching fossil fuels investment for the first time ever, according to a BloombergNEF analysis released Thursday. Clean energy investments, which include investments in nuclear, biofuels, hydrogen, and energy storage technologies, jumped 31% over 2021 levels to top $1 trillion for the first time. Renewable energy and electrified transport benefitted from most of the investment, with passenger electric vehicles selling over 10 million units globally. The record will need to be tripled annually if the world is to sufficiently slash fossil fuel use, and climate pollution generally, to limit global warming to the 1.5°C (2.7°F) goal set out in the Paris Agreement. (Bloomberg $, E&E $, OilPrice, Bloomberg $)

Traffic Pollution Could Disrupt Brain Function: Sitting in traffic can feel like it's breaking your brain, but a recent study indicates exposure to traffic pollution is actually changing the way brains function. The research, published in Environmental Health by scientists at the University of British Columbia and the University of Victoria, found exposure to just two hours of diesel exhaust altered how the parts of the brain linked to memory and attention interacted with each other, as well as internal thought and symptoms of depression. While the study's sample size was small, its striking results highlight the need for further research — and not just for vehicle pollution — its authors say. The study's findings could have implications not just for vehicle occupants, but for those who live near major thoroughfares, which are frequently, and often intentionally, routed through communities of color. Diesel exhaust also has similar particulate characteristics to wildfire smoke. "From a wider community standpoint, we need to get more cars off the road," Melissa Lem, president of the Canadian Association of Physicians for the Environment, told the CBC. "We're facing a climate crisis and an air pollution crisis at the same time, both driven by fossil fuel combustion. By getting more people out of cars and onto bikes and sidewalks, we can tackle both simultaneously." (CBC, Global News Canada, The Hill)

COP CITY: The deepening divide over Atlanta’s ‘Cop City’ is drawing national attention (Capital B Atlanta), In Atlanta, a deadly forest protest sparks debate over ‘domestic terrorism’ (Washington Post $), Cop City: Forest defender killed by police in forest raid (On the Media)

TYRE NICHOLS: DA: 5 Memphis cops ‘all responsible’ for Tyre Nichols’ death (AP, Memphis Commercial Appeal, New York Times $, Slate, The Guardian), What we know about the death of Tyre Nichols (Memphis Commercial Appeal, CNN, CNN), Attorneys liken Tyre Nichols’ arrest to Rodney King beating (AP), Independent autopsy finds Tyre Nichols suffered "excessive bleeding" after encounter with police, family lawyers say (CBS, ABC), Tyre Nichols' death spurs internal investigation, review of specialized units, says Memphis police chief (Memphis Commercial Appeal)

• VIDEO RELEASE: Memphis police set to release video showing fatal beating of Tyre Nichols (NBC), ‘You’re going to see acts that defy humanity,’ police chief says, as officials urge calm when Tyre Nichols arrest videos are released publicly tonight (CNN)

COP28: Climate groups decry selection of oil chief to oversee COP28 (AP)

CLIMATE DIPLOMACY: Africa objects to US chairing UN climate fund, citing unpaid $2bn (Climate Home)

GOP vs. ESG: BlackRock retains Florida’s billions as DeSantis wages ESG fight (Bloomberg $), 25 red states sue Biden over 'woke' ESG rule (E&E $), One Republican stands between the far right and ESG (E&E News)

JFK MICROGRID: JFK airport's new terminal will be powered by a microgrid and the largest rooftop solar array in New York City (Business Insider, Bloomberg $, The Hill, PV Magazine, Canary Media), Carlyle, Schneider joint venture AlphaStruxure plans 11.4-MW microgrid at JFK airport terminal (Utility Dive)

UTILITIES: ‘We got lucky.’ A stronger 2022 storm season could have threatened grid recovery: EEI (Utility Dive), Utilities use customer dollars to pay for their lobbying. Here’s how lawmakers can stop it (Grist)

INFLATION REDUCTION ACT: How Biden’s climate law is charging US green spending and provoking Europe (FT $), Looking for Inflation Reduction Act rebates to go green? Get ready to wait (Bloomberg $)

SCOTUS: Oil industry takes offshore fracking case to Supreme Court (E&E News)

AGENCIES: 5 Biden admin officials to watch on agriculture and forestry (E&E $), Tongass takes center stage in Biden's forest, climate agenda (E&E $)

EPA: A green bank? EPA panel points to other options. (E&E $), Coal ash crackdown continues as EPA denies extensions for six power plants (Energy News Network), EPA proposes rejecting DTE, SRP and other generator requests to keep using coal ash basins (Utility Dive), Outdated EPA standards allow oil refineries to pollute waterways (Inside Climate News), Water sector, local officials blast EPA cybersecurity plan (E&E $)

DOE: New England states join forces to vie for DOE transmission funding (Politico Pro $), US Energy Department to allocate $118 mln to biofuels projects (Reuters)

TREASURY: Yellen says Africa to shape world economy as US reengages (AP), Yellen welcomes South Africa's energy transition, steers clear of Russia mention (Reuters)

THE HILL: Democrats launch caucus to 'play defense' on ESG (E&E $), US lawmakers seek repeal of Biden solar tariff waiver (Reuters), Bipartisan coalition moves to override Biden's solar tariff pause (Politico Pro $), Western Caucus seeks to use sway on energy, environment (E&E $)

HOUSE: McCarthy voted against bills tackling drought. Hear constituent’s message (CNN), Meet the top House recipients of oil and gas money (E&E News), E&C Republicans elevate climate in subcommittee shakeup (E&E News), House prepares votes on drilling, public lands, oil reserve (E&E $), Natural Resources Republicans put agencies on notice (E&E $), House GOP seeks new restrictions on use of US oil stockpile (AP), This Republican wants to make NOAA an independent agency (Washington Post $)

SENATE: A top Senate Republican promotes climate conspiracy theory (E&E News), McConnell rips into Manchin over EV bill (Politico Pro $)

POLITICS: The cost of US going over fiscal cliff is trauma then unending pain (Bloomberg $)

NOMINEES & CONFIRMATIONS: Two years in, Biden has prioritized nominating women of color as judges (The 19th* News)

TRIBES: Tired of being told to ‘adapt,’ an Indigenous community wrote its own climate action plan (Grist), First woman elected Speaker of the Navajo Nation (Indian Country Today), Much-needed moisture creates hardship for rural areas across Nation (Navajo Times)

CITIES AND STATES AND DISENFRANCHISED COLONIAL TERRITORIES: Why your electricity and gas bill is skyrocketing in Colorado (Axios), With an eye on 2024, some states consider new protections for election workers (The 19th* News)

• CALIFORNIA: Calif. cities plan gas phaseouts to tackle air pollution (E&E $), How California’s ambitious new climate plan could help speed energy transformation around the world (The Conversation), California approves local plans to phase out gas appliances (E&E $)
• PUERTO RICO: Puerto Rico hands control of its power plants to a natural gas company (Inside Climate News, E&E $)

IMPACTS: Church helps mining community evolve in dark, warming Arctic (AP), Four possible consequences of El Niño returning in 2023 (The Conversation), From China to Japan, deadly cold is gripping East Asia. Experts say it’s the ‘new norm’ (CNN), If a megaflood strikes California, these dams might be at risk (Yale Climate Connections), In North America’s snowiest place, residents dig out as tourists flow in (New York Times $), You call that snow?! See how this winter stacks up (New York Times $), Storm Cheneso picks up in Madagascar, more flooding to come (AP), DC's lack of snow is nearing a record amid very mild winter so far (Washington Post $)

WILDFIRES: Colorado lawmakers look to AI to detect wildfires earlier (AP)

DEFORESTATION: Human activity and drought ‘degrading more than a third of Amazon rainforest’ (The Guardian), The best way to save forests? Legally recognize Indigenous lands. (Grist)

COLORADO RIVER: The Colorado River is overused and shrinking. Inside the crisis transforming the Southwest (LA Times $), A river guide’s view of Lake Powell’s decline and the depths of the Colorado River crisis (LA Times $), Inside the water crisis: A journey across the Colorado River Basin (LA Times $), The Colorado River: Where the west quenches its thirst (LA Times $), As the Colorado River shrinks, Washington prepares to spread the pain (New York Times $)

RENEWABLES: Proactive transmission planning for offshore wind buildout could save up to $20B, experts say (Utility Dive), Solar for Good: Arrays keep rolling out in Wisconsin, thanks to innovative program (Energy News Network) 

PEAK FOSSILS? When will we hit peak fossil fuels? Maybe we already have (Inside Climate News)

BATTERIES: Here’s a plan for cutting US demand for lithium by up to 90% (Canary Media), Xcel Energy plans to install battery in Becker to store electricity (Star Tribune $)

BUILDINGS: This Maine home can stay 70 degrees without a furnace, even when it's freezing outside (Maine Public Radio)

STORAGE: Demand for Tesla storage products exceeds supply as Q4 deployments rise 152% to 2.5 GWh (Utility Dive)

LNG: Freeport gets US OK to begin steps to restart LNG plant in Texas (Reuters, OilPrice)

METHANE: Methane leaks on public land worth $500M a year, report says (E&E $)

OIL & GAS: Chevron pledges $75 bln for share buybacks as cash grows (Reuters), How just 25 oil companies are set to blow the world’s 1.5°C carbon budget (Energy Monitor), Qatar in talks to join TotalEnergies' $27 bln Iraqi energy project -sources (Reuters), Shell launches strategic review of home energy retail unit (Bloomberg $), US natural gas falls below $3 for first time since may 2021 (Bloomberg $)

PIPELINES: This company is suing the US over the Keystone pipeline cancellation. Taxpayers are footing the bill. (New Republic)

HYDROGEN: Hydrogen firm HH2E announces second major plant in Germany (Reuters), World’s largest renewables developer eyes hydrogen push (E&E $), Germany hopes to get ‘green hydrogen’ from Australia by 2030 (AP)

EVs: Climate adviser: EV sales tripled under Biden (E&E $), Elon Musk rebuts doubts about Tesla profits, Twitter (E&E $), Hyundai unveils $8.5 billion spending plan amid EV push (Bloomberg $), Toyota names new CEO as Tesla-led EV shift threatens its dominance (Bloomberg $)

ACTIVISM: This scientist was fired for her activism. She says it’s not going to stop her (Gizmodo)

AGRICULTURE: Food, feed and fuel: global seaweed industry could reduce land needed for farming by 110m hectares, study finds (The Guardian)

BOOKS: Lessons of lost worlds (FT $)

BUT MAKE IT FASHION: ‘Vegan,’ ‘sustainable’: How to spot misleading fashion claims (Washington Post $)

INDIVIDUAL ACTION: A fridge too far? Living sustainably in NYC by unplugging (AP)

FOOD: Climatarian? Regenivore? New diets take aim at climate change (Axios)

NEWS YOU CAN USE: Simple energy-saving tips for winter (Yale Climate Connections)

FINANCE: Big banks see opportunity in unlisted emerging market ESG companies (OilPrice)

INTERNATIONAL: Africa has become ‘less safe, secure and democratic’ in past decade, report finds (The Guardian), English farms to get post-Brexit subsidies for going greener (Bloomberg $), Norway sees oil and gas tax revenue triple to record $89 billion (OilPrice), Power surge crashes Pakistan grid, plunging millions into darkness (Reuters), Tanzania squeezes Maasai by seizing livestock, report says (AP), UK climate minister received donations from fuel and aviation companies (The Guardian)

• The Guardian view on carbon offsetting: a model with dangerous flaws (The Guardian Editorial Board)
• We are all playing Covid roulette. Without clean air, the next infection could permanently disable you (The Guardian, George Monbiot column)
• A green transition for UK steel can tackle regional inequality (Context, Brendan Curran op-ed)
• Gas stoves and the problematic politics of sacrifice (Vox, Kelsey Piper commentary)
• Musk’s big Tesla growth target is a problem (Bloomberg, Liam Denning column $)
• What’s stopping small businesses going green? Cash (Context, Oliver Greenfield op-ed)
• Europe cannot afford to engage in tit-for-tat with the US (FT, Valdis Dombrovskis, Frans Timmermans, and Margrethe Vestager op-ed $)
• The value of nature and the nature of value (The Hill, Paul Sutton op-ed)
• US can’t afford to dawdle on investing in space-based solar power (The Hill, Richard Harrison op-ed)
• Can anything be done to assuage rural rage? (New York Times, Paul Krugman column $)
• Reasons for scepticism over Swedish rare earths find (FT, Richard Milne op-ed $)
• As carbon offsets, tree planting can be shady (The Hill, William Becker op-ed)

False Advertising Isn't First Amendment-Protected Free Speech, Lawyer Explains in New Paper

Whenever anyone dares to suggest that disinformation is bad, one of the most common knee-jerk reactions is to cry, 'The First Amendment protects freedom of speech!' 

But the fossil fuel industry's false advertising isn't protected by the First Amendment, and you don't have to take our word for it. 

"Corporations should not be able to use the First Amendment as a get-out-of-jail-free card," Katherine Horner, New York County Supreme Court attorney, told ExxonKnews. Horner recently published a paper in the Environmental Law Reporter (hosted free on Horner's LinkedIn) that examines Big Oil's free speech defense, and she did not find it convincing!

Horner explains that, just like the tobacco companies before them, who "were made to account for their actions following the disclosure of internal documents chronicling the scheme to deceive the public," fossil fuel companies "have followed suit, arguing their public statements are protected by the First Amendment's freedom of speech and right to petition clauses." 

Horner’s richly cited, 35-page paper "seeks to determine whether their argument holds any water" and finds that for the most part, it does not.

It's not just that incorrect statements aren't protected speech, though. To justify government intervention, the Supreme Court precedent is that the speech must also present a "legally cognizable harm," like in cases of fraud or defamation. Clearly, climate disinformation rises to that level of harm. 

Horner traces the history of the Supreme Court's commercial speech decisions, outlining the various legal tests for whether or not commercial speech is protected by the First Amendment, and applies these tests to the fossil fuel industry's communications. 

She ultimately determines that most of Big Oil's public communications on climate consist of false advertisements that aren't protected by the First Amendment. (The exception is "speech specifically directed to legislative or executive action," because companies are still allowed to petition the government.)

But corporate advertisements "should be classified as false and misleading commercial speech that does not warrant First Amendment protection" and they "should not be rewarded for the skill with which they distort the truth and disguise their deceit." 

We couldn't have said it better ourselves (and over the years, we've certainly tried)!

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