Making the Most of a New Era of American Energy

This year, the United States emerged from history’s biggest oil boom—this boom was more than an order of magnitude bigger than previous U.S. commodity booms and seven times bigger than the world’s biggest previous oil boom, which occurred in Saudi Arabia in the 1970s.

As a result, even with the 2020 oil bust, the U.S. produces more oil than any other nation. In 2019, America produced 65% more oil than #2 Saudi Arabia. And the U.S. is also the world’s biggest producer of natural gas and may soon be the world’s biggest exporter of liquefied natural gas. America is at the dawn of a new era as the world’s #1 energy producer.

My new line of research shows that, to maximize the benefit from this new bounty, oil & gas regulators should slightly slow production. Counterintuitively, slower production will benefit oil & gas companies by marginally increasing their cash flow and significantly increasing the long-term expected value of their assets. And slower production will also limit the environmental downsides of oil & gas and maximize the environmental benefits of natural gas.

Slower production counterintuitively helps oil & gas companies for two reasons.

First, although no individual company wants its production slowed, if companies were allowed to freely negotiate with each other, they would agree to cut back production simultaneously because slower production means higher prices and higher profits. As Adam Smith put it, “People of the same trade seldom meet together, even for merriment and diversion, but the conversation ends in some contrivance to raise prices.” Antitrust law forbids them to negotiate a production slow down, because we usually prefer lower consumer prices. But oil & gas prices have been so low following the boom, sometimes even negative, that gas is just being wasted—flared off at thousands of wells across Texas and North Dakota. Regulators can stop this waste, which just harms consumers, by cutting back oil production. Modest production limits would also raise prices enough to increase overall cash flow to oil & gas companies immediately.

Second, oil and gas is a long-term asset, oil and gas that is wasted today could be worth a lot in the future. American oil & gas law pushes companies to drill and pump oil more rapidly than they would like—the rule of capture, common lease terms, and covenants implied into leases by the courts all make companies drill for oil when they would rather wait. But it makes no sense to rush to produce natural gas that will simply be flared, or to flood the market with oil at rock-bottom prices, when companies could simply wait to drill until prices recover. Modest production limits would somewhat mitigate the common law’s tendency to push more oil production than a truly free market would provide.

I explain these theoretical reasons for oil & gas production limits in my forthcoming Cardozo Law Review article, State Energy Cartels. I show how oil & gas production limits are actually an idea that came from the United States, and its oil producing states, during the Great Depression. And I show that production limits also have potentially massive environmental benefits: slowing carbon emissions, boosting renewable energy, and creating a counter-intuitive coalition of oil producing countries with a powerful interest in slowing fossil fuel production.

My own state of Texas will have to be a leader in negotiating any new coalition of oil producers to impose production limits. Because of the new oil boom, Texas now produces more oil than 12 of the 13 nations that comprise the Organization of Petroleum Exporting Countries (OPEC).

The Railroad Commission, Texas’s oil and gas regulator, has coordinated oil production limits before, as I explain in this EnergyTradeoffs.com podcast. In the years before and after World War II, Texas alone produced one quarter of the world’s oil and the United States together produced two-thirds. During these years, American oil powered recovery from economic catastrophe, victory in World War II, and the post-war global economic expansion. Texas played a leading role in limiting year-by-year oil production—so much so that when Middle Eastern countries moved to the forefront of oil production and formed OPEC, they described it as “a kind of international Texas Railroad Commission.”

My newest article, published in the Oil, Gas, & Energy Law Journal, shows how the Texas Railroad Commission can reclaim its mantle as the world’s leading oil & gas regulator and take initial steps toward cooperation on restraining production. I propose that it start by phasing in modest cuts in natural gas production to stop economic flaring and marginally raise oil and gas prices.

As I explain in this new Houston Chronicle op-ed, the Commission can improve its data collection to fine-tune its phase-in of new gas limits to ensure they boost industry cash-flow. I explain the economic and environmental benefits of this proposal at greater length in this recent video presentation on why it is the best method of stopping flaring, which is also embedded below.

The United States and Texas find themselves again at the center of global energy production. It is high time for them to carefully consider how they will maximize the economic and environmental benefits of this new bounty.

Comparing Candidates’ Climate Plans

Tonight, CNN will air seven hours of back-to-back townhalls from the ten top Democratic candidates on their climate plans. So far coverage of these plans has focused on initiatives that would require Congress to pass new laws, such as various versions of the “The Green New Deal,” proposals to take over or clean up the power sector, and plans to spend trillions fighting climate change. None of these proposals would pass the Senate in anything like their proposed form.

If you want to understand what the candidates would actually do on climate, you should focus on three things:

  • How they would change federal permitting of oil and gas extraction and transport;
  • How much they hope to spend on climate change; and
  • How they approach tradeoffs between climate regulation and the economy.

Here’s a guide to what the candidates have said on these issues and the key questions that should be asked of their plans in coming months.

  • How Candidates Would Change Federal Oil & Gas Permitting

By far the most important question for the candidates on climate change is how they would use existing presidential authority—particularly through executive orders. The candidates can be held to these promises because they don’t require any action from Congress.

By contrast, all the candidates’ proposals for legislation would need to be passed by the Senate, which currently has a Republican majority. Even if the Democrats somehow gained a Senate majority next year, they would still need to win over moderate Democrats such as Joe Manchin who famously won his seat by shooting President Obama’s cap-and-trade bill to advertise his opposition to climate regulation. There are no such obstacles to executive authority so the most important question for candidates is how they’d use it.

The most important executive action proposed to date is Vice President Biden’s plan to ban “new oil and gas permitting on public land and water” by executive order on his first day in office. This would have three dramatic effects:

  1. It would ban new oil and gas leases across all federal land, including centers of the energy industry such as the Gulf of Mexico.
  2. It would ban new drilling on existing leases, because every new oil and gas well needs a permit.
  3. It would ban new oil and gas pipelines from Canada and to Mexico, because these require a federal permit. It would ban new liquefied natural gas exports to Europe and Asia. And it could even ban new domestic pipelines, because even intra-state pipelines typically cross federal streams and rivers, which a fully comprehensive permitting ban would forbid.

So Biden’s ban would entirely shut down the oil and gas industry on public lands. And it would choke off the private energy industry by cutting off the new pipelines and gas export facilities that it needs to get its products to market.

The argument for this ban is that the world needs to leave oil and gas in the ground to meet its goals of limiting climate change to 2 degrees Celsius. No major oil producer has ever considered shutting in an economic resource of this size—the United States is the world’s largest producer of oil and gas and is in the middle of history’s biggest oil boom—so this would be a truly dramatic commitment to climate action.

The argument against Biden’s ban is that there are far less economically damaging ways to cut U.S. carbon emissions. As I explain in this new op-ed, this ban would cause serious economic pain to Americans. And a ban on new fossil fuel transport would cut off U.S. gas more than oil—oil can easily be shipped by rail, truck, barge, or tanker but gas can only be shipped on pipelines or as liquefied natural gas. And U.S. gas exports are bringing huge environmental benefits to the world by replacing dirtier fuel sources in places with air quality problems, so Biden’s ban could damage the global environment.

Here’s a chart of the Democratic candidates climate policies, ordered by their current standing in national polls. (This is drawn from the candidates websites and their responses to questions here and here.) As you can see, many of the top candidates also support a ban on federal oil and gas leasing, but many have not said whether, like Biden, they would ban all new permitting—including new wells on old leases and new international and domestic pipelines. This is the single most important issue for the candidates to discuss in tonight’s town halls and it should be the focus of savvy reporters’ questions moving forward.

I am keeping this chart updated as candidates and climate plans evolve. (Last Update 3/1/2020)

  • How Much Candidates Would Spend on Climate Change

Although new spending requires congressional action, Congress must regularly reach agreement with the President to fund the federal government, which gives a new President some leverage to spend money on his or her priorities. The Democratic candidates have widely varying goals on climate spending, from Mayor Buttigieg’s plan to spend $25 Billion per year on green research & development to Senator Sanders plan to spend $16.3 Trillion to transform the energy economy.

To understand those massive numbers, let’s put them in context. There are 128 million American households. So Mayor Buttigieg is planning to spend $219 per household per year and Senator Sanders is planning to spend $127,344 per household. Vice President Biden’s plan to spend $1.7 trillion would be $13,281 per household.

Another way to put those numbers in context would be to look at the magnitude of the climate harm they are trying to avoid. There are many estimates of the harm from climate change, but last year’s Nobel Prize winner said the present value of that harm is about $25 trillion and that optimal climate regulation could lower that cost by about $10 trillion. The U.S. estimates that it will experience 7-23% of the cost of climate change, so very, very roughly speaking, optimal climate regulation could save the U.S. a couple trillion dollars.

It would be helpful to hear more about how the candidates will prioritize their climate and environmental spending. If Congress will only give them so much money, would they prioritize spending it on research & development, on climate change projects abroad, or would they consider other environmental issues such as improving air quality and removing lead from the water and soil? This should be a secondary focus of reporters’ questions.

  • How Candidates Would Balance Climate Regulation and the Economy

So far, the candidates have said little about how they would balance their climate and economic goals, in part because media coverage has focused on the Green New Deal, which asserts that there is no tradeoff between environmental and economic goals. But a new president would make countless decisions on how much to cut greenhouse gas emissions from cars, from power plants, and from industrial sources using existing regulatory authority. So we need to know what the candidates will do when their economic and environmental goals come into conflict.

As I explain in this podcast with UCLA’s Ann Carlson, the fundamental innovation of the Green New Deal is that it promises to achieve environmental and economic goals simultaneously. It will remove 100% of greenhouse gas emissions from the power sector in ten years. And it will “guarantee[] a job with a family-sustaining wage, adequate family and medical leave, paid vacations, and retirement security to all people of the United States.” What it doesn’t say is what it will do when those goals come into conflict.

There are many possible ways to manage tradeoffs between the environment and the economy. Historically, environmental laws have often mandated the cleanest technology that is “available” or “demonstrated.” And government regulators have interpreted those standards as requiring that industry cut emissions as much as it can without risking plant closures or job losses.

Another way to manage environmental and economic tradeoffs is with carbon pricing: a carbon tax or a cap-and-trade system. These systems make polluters pay for their greenhouse gas emissions. But if a product is so valuable to society that consumers are willing to pay the cost of manufacturing it plus its environmental cost, then they can still purchase it.

Almost all the candidates have said they support the Green New Deal, but they should be asked how they will balance their climate and economic goals. Will they use traditional standards that asks the fossil fuel industry to clean up but doesn’t shut it down? Or do they think that industries should only survive if they can pay the price of their carbon emissions? Or, like Vice President Biden, do they think that some industries should be shut down regardless of the cost? These questions arise every day for climate regulators so reporters should ask the candidates how they will manage these energy tradeoffs.

Energy Tradeoffs Podcast #2 – Alexandra Klass

Our next EnergyTradeoffs.com podcast features David Spence interviewing the University of Minnesota’s Alexandra Klass about her research on “Network Infrastructure: Permitting & Eminent Domain.”

They discuss permits for interstate power-lines, liquefied natural gas (LNG), and oil pipelines, focusing on two recent articles from Professor Klass: “Future Proofing Energy Transport Law” and  “Reconstituting the Federalism Battle in Energy Transportation.” Near the end of the podcast, they discuss energy & eminent domain, the subject of my forthcoming Minnesota Law Review article with Professor Klass.

The Energy Tradeoffs Podcast can be found at the following links.

Lifting the Jones Act Ban on U.S. LNG Shipments

The Regulatory Transparency Project has just posted a new video in which I debate George Landrith, President of the Frontiers of Freedom Institute, about the need to reform The Merchant Marine Act of 1920, colloquially known as the Jones Act. The video is below.

The Jones Act bans shipments between U.S. ports unless they’re made on a U.S.-built, U.S.-manned, U.S.-flagged, and U.S.-owned vessel. This protects American shipyards and American sailors from foreign competition, but it raises prices for U.S. producers and consumers.

The Jones Act is particularly bad for the United States’ red-hot liquefied natural gas (LNG) markets because the U.S. doesn’t build LNG carriers so the Jones Act effectively prohibits shipment of U.S. LNG to U.S. ports. The U.S. is exporting more and more LNG to Europe and Asia and will become the world’s number one LNG exporter in the next five years, according to the International Energy Agency.

U.S. consumers in New England and elsewhere often want LNG; in times of great need, they have even skirted U.S. sanctions to import it from Russia. But as long as the Jones Act applies to LNG shipments, no U.S. consumer will ever benefit from the massive U.S. LNG boom.

I have explained how I think the Jones Act should be reformed in a piece published by the Cato Institute & a piece published by the Regulatory Transparency Project.

As I explain in the video, there are many regulations that have high costs and high benefits, but the Jones Act ban on LNG transport is an example of a regulation with high costs and no benefits. It’s a great candidate for reform.