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Brian Lehrer: Brian Lehrer on WNYC, here's an argument emerging from the political right that apparently you can expect to start hearing a lot more of soon. Policies aimed at reducing greenhouse gas emissions are in fact, discriminatory. My next guest, Kate Aronoff of The New Republic has a new story about how the conservative interest group ALEC, the American Legislative Exchange Council, ALEC, is encouraging states to take up that argument and push anti-climate bills across the country. Some conservatives, it would now appear, are declaring war on what they call, critical energy theory a riff on critical race theory.

ALEC, you may remember, is the right-wing policy group known for drafting model legislation for Republicans, and for being funded by the billionaire Koch brothers, who have fossil fuel interests. Let's hear more now from Kate Aronoff, staff writer at The New Republic and author of Overheated: How Capitalism Broke the Planet - And How We Fight Back. Her new piece in The New Republic is called Conservatives Have a New Bogeyman: Critical Energy Theory. Hi Kate, welcome back to WNYC.

Kate Aronoff: Hi, good to be back.

Brian: Let's see, should we start on critical energy theory as a concept or on this idea that climate protection laws could be seen as discriminatory? How about the discriminatory part?

Kate: Sure. This is part of a long-standing trend on the right, which I think is the important context to place this model legislation within, which is that there's been a real attempt to drag almost everything under the sun into the cultural war space. To frame everything, this is why I coined the phrase, critical energy theory, which to be clear, no one at the conference said nor do I think that anyone ever actually used that phrase. Because climate has long been on the edges of that territory, there's long been a cultural war about energy policy and these sorts of things.

What we're seeing ALEC do with this legislation, this Energy Discrimination Elimination Act, is to frame it in terms that might look very similar to people that have been following some of the debates around critical race theory, which is to say, any outside information which casts any doubt on the idea that fossil fuels should be the energy source that this country uses well into the future, despite the enormous risks that poses, and the dangers that fossil fuels are already posing to people around this country and around the world, that that would constitute a form of discrimination against incumbent energy sources.

Rather than the object of that being these local school boards or individual schools or whatever it may be, this is targeted at these state fiduciaries, state comptrollers, who are tasked with making a list of companies which are seen to be engaging in what they call boycotting energy companies, financial companies in particular.

For instance, if Bank of America were to withdraw support from fossil fuel activities, which they notably have not done, we can get to that a bit later, and the state comptroller, Treasury official or whoever is in charge of making decisions would be required to divest state pension funds from these companies because they've gotten too woke. Those are the words that ALEC is using to describe these sorts of actions.

Brian: Well, how do these free market conservatives like the Koch brothers, reconcile their love for the free market with their cries of discrimination? Doesn't the free market discriminate all the time? Don't they always complain about having their hands tied by government from doing what they want to do even if it does discriminate against actual people?

Kate: Yes, I think this is an important distinction to make because the propaganda coming from the right, for decades now, has been that they want to see a free market, that they just want to take the shackles off of good, hard-working corporations to be able to go forth and serve societal interests. In reality, the push from the likes of the Koch brothers, who of course, had been a major supporter of the American Legislative Exchange Council for a long time, their push has been to really, the historian Quinn Slobodian has said this, "Insulate capitalism against the threat of democracy."

That is not a small state agenda that involves building very intense forms of state protection around markets. We see this from trade agreements, which protect investors' rights to sue sovereign governments in some cases. We see it in the laws like this, which are modeled off of anti-BDS bills that have passed in 33 states since 2015. Very similar language, they're self-consciously mirroring each other.

Brian: BDS, that is those companies that would boycott, or divest, or sanction Israel and states including New York State, have passed bills that bars public contracts with companies that engage in that boycott, right?

Kate: Exactly, exactly. Yes, this is a very self-conscious mirroring of those policies.

Brian: All right. Many will hear this outrage, faux outrage I guess, against clean energy and think, "Hold on, aren't the fossil fuel companies that are allegedly being discriminated against here, still reaping billions upon billions of dollars in actual government subsidies every year?"

Kate: Yes, the fossil fuel industry in the United States alone gets about $20 billion worth of direct and indirect subsidies. If you zoom that out, at the global level, the International Monetary has found that fossil fuel companies, when you account for things like the fact that carbon is not taxed at the level that many argue it should be, those subsidies account for some $5.3 trillion. These companies are still getting an enormous amount of state support. It, I think sheds a little light as you mentioned, on the idea that they're being discriminated against when they're getting billions and billions of dollars worth of subsidies.

Brian: By extension, if any of these bills get passed in state legislatures, is it potentially the beginning of a war on all social investment decisions by state pension funds? We certainly see that around the country. They don't invest in tobacco companies anymore in a lot of places, and some other things. I don't have the list off the top off my head, but yes, this is a rising debate, whether pension funds, public pension funds should divest from fossil fuel companies, but there are other things that predate that, tobacco maybe is the marquee one. Would they be able to turn around now and claim discrimination?

Kate: Yes, this is what activists in the Palestinian Solidarity Movement have been raising alarm bells about for many years, since those anti-BDS bills were first started circulating around 2015. That is really the danger here, that this could really constrain the ability of states to use the full number of tools at their disposal to divest from harmful companies, and have a chilling effect on not just what states themselves are doing, and impose these rules on them, but also, in terms of what individual companies are doing.

Because the object of scorn in these pieces of model legislation are so-called woke financial institutions, which they argue, are unfairly discriminating against hard-working energy companies. When in reality, we know that this has not been the case. We know that since the Paris Agreement was passed, for instance, that 60 major banks, 60 of the biggest banks on earth have finance the equivalent over $3 trillion worth of fossil fuel projects.

It's not as if this boycott is really happening, but there is pressure from movements. There's been pressure on major financial institutions, including banks, but also big asset managers like BlackRock, to withdraw their support from fossil fuels. The right is very scared of that, frankly, and you see it in these sorts of bills that could be circulating very soon within state houses.

Brian: Of course, unlike conventional discrimination, which is usually so one group can hoard all the wealth, and income, and power, and keep it away from other groups of human beings and society, which has no public interest basis, I think it's fair to say, these rules that would affect fossil fuel companies have a huge public interest basis which is to protect people and other species from the catastrophic effects of climate change.

Presumably, that would be part of the defense if these things ever do get passed in state legislatures and get to court. Kate, do I hear you outlining a strange bedfellows political or legal coalition here that would include both fossil fuel companies and Palestinian rights activists?

Kate: Probably a bit too early to say that and to just say, I think there has not been noted pushback right from financial companies themselves against these rules. It's unclear how these sorts of policies would be implemented. State, Treasury and comptrollers' offices are not terribly well-funded. There's a big administrative lift to putting any of these policies in place. This will raise alarm bells for people who are not just in the climate justice movement, not only the people who have been pushing for banks to boycott energy companies more seriously, than they have been in the last few years.

This should raise concerns among a lot of people about the real constraints that the right is attempting to put on, not only state offices and state agencies, but on companies, which as we said, is not new. The right loves to have a strong arm of the state when it comes to protecting particular interests that they are aligned with, but is really concerning and should raise a lot of alarm bells.

Brian: If you're just joining us listeners, we have a few more minutes with Kate Aronoff from The New Republic who has a new story out about how the conservative interest group, ALEC, the American Legislative Exchange Council, ALEC, founded by the billionaire Koch brothers who have fossil fuel interests, are now helping to draft legislation to declare certain policies that promote renewable energy as discriminatory against fossil fuel companies, the old-style energy companies.

You frame this in the context of what you call critical energy theory, the article's called Conservatives Have a New Bogeyman: Critical Energy Theory, which is obviously a riff on critical race theory. To be clear, they're not saying critical energy theory, you're saying it in a sarcastic coinage, right?

Kate: I am saying it. That's partially because, hearing from my source at the conference, that they were very excited about critical race theory within the walls of this conference last weekend in San Diego. We're riding high on what they perceive to be this big win in Virginia, of Glenn Youngkin, really galvanizing voters around "education," but really around the absurd idea that critical race theory is being taught to K-12 students around the country and they're learning US history in effect. There is really a attempt to, as the right has done historically, and as we know fossil fuel interests have done historically, to pick and choose from this much broader playbook of political strategies that they perceive to be working.

The model legislation that we're seeing draws both from this push around anti-BDS legislation, of course, but also from the zeitgeist in the conservative movement right now, which is around this culture war politics.

Brian: Funnily enough, critical race theory is controversial on the right because it does explicitly take discrimination into account in analysis of US history and public policy. They don't want as much of that in every aspect of history and social studies. In this case, they do want more of that, but with the fossil fuel companies considered the discriminated against groups. Do you have any precise language yet to cite from this model legislation, or from any actual bills? Have any actual bills like this been introduced in any states?

Kate: Yes, this model legislation is posted on ALEC's website, you can go find the Energy Discrimination Elimination Act in full and--

Brian: They actually call it that?

Kate: Yes, it's the Energy Discrimination Elimination Act. You can find it and, one thing to know about these model legislation is that it all very copy-paste. If you're a underfunded state legislature, you can just go to the ALEC website and copy-paste. Then there's little bolded brackets that tell you what to sub out. Section one, the bracket name of state finds that for instance, fossil fuels currently supply more than 80%, yada, yada. Then throughout the document, there are these little places where you can Mad Libs style, sub in the particular context for your state. That's very limited and most of it is this real carbon copy, the language that ALEC's team of policy writers have come up with.

Brian: Fascinating, we have one minute left. I wonder if we can digress, because you were last on here as one of our guests during the COP26 Climate Summit. I'm just curious, in brief, very much in brief, how that looks to you, in retrospect. Some people were very disappointed with how non-binding the agreements were. Some people are more encouraged by the kinds of promises that were made and some of President Biden's follow-ups in this country. Where are you at on what COP26 did or didn't do now or a few weeks later? We have 30 seconds.

Kate: Sure, I think long-time watchers are not surprised that the outcome of COP26 was disappointing in some ways. At the same time, I think the strength of movements that were around and persistent calls from climate vulnerable nations produced what could not be described as the worst case outcome. There was some commitment to certain forms of climate finance, or at least the dialogue around them, which is not an ideal situation.

The carbon markets aspect of Article 6 of the Paris Agreement didn't look as scary as it might have otherwise. I think you saw climate vulnerable nations and civil society really mitigate some of the more harmful things that could have come to pass at COP26, if wealthy nations and fossil fuel interests floating around had their way.

Brian: Kate Aronoff, staff writer at The New Republic. Her new article is Conservatives Have a New Bogeyman: Critical Energy Theory, and she's the author of Overheated: How Capitalism Broke the Planet - And How We Fight Back. Kate, thank you so much.

Kate: Thank you.

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