Will America’s Energy Policy Makers Learn the Tragic Lessons of Jewish History From 2000 Years Ago?

Since taking office on January 20, President Joseph Biden has taken direct aim at the fossil fuel industry.  By Executive Order, Biden already has placed a moratorium on issuing new oil and gas drilling permits on federal land, and he has canceled permits needed to complete the Keystone XL Pipeline.  These likely are only first steps. 

The question is how far will the President go in acting against the industry?  Despite repeating endlessly that he would not ban “fracking” during the Presidential election campaign, many believe Biden intends to do just that.  Such a move would have enormous consequences in terms of national energy production, self-sufficiency, and security – both economic and military.

Biden started implementing his “Green” Agenda on his first day in office.  One of his first acts was to rejoin the Paris Climate Accords.  This pleased the Progressive wing of the Democratic Party.  However, the President’s initial moves won’t go nearly far enough for those who insist upon the “Green New Deal.”  

President Biden needs to remember, however, that all of his decisions come with a price.  Winter still has six more weeks to go and the Coronavirus continues to rage out of control – so much so that Biden himself has said nothing can change the trajectory of its spread. Now, we are worried about mutation variants causing yet another wave of illness.  

There is no doubt that it will take enormous amounts of energy just to fight COVID-19.  It’s not an exaggeration to say that President Biden’s energy policies may determine how the United States gets through these next few weeks and months.  Environmental extremists want fossil fuel use eliminated in the short term.  Moderates will accept a phased implementation of “renewable energy” projects, but they also want to see fossil fuel use ended, or at least limited substantially. 

The goals of producing a cleaner world and fighting climate change certainly are vital, but the new President must take care not to make things worse unintentionally.  Taking office during one of the most tumultuous times in the post-World War II era, President Biden must ensure that his decisions strengthen both the country and the environment.  He would be wise to appreciate that, throughout history, those trying to do great things sometimes produce bad results, at times bordering on catastrophic.  

If those who refuse to learn from history are doomed to repeat it, a lesson from Jewish history from shortly after the time of Jesus is instructive.  While the story may be apocryphal, and many respected Jewish historians and academics cast doubt on its authenticity, it illustrateshow good intentions, bereft of political reality, can produce disastrous results.   

The leading actors were two of the greatest Jewish sages of all time, one widely remembered and one largely forgotten.  The first, Rabbi Akiba, remains to this day a towering presence of Jewish scholarship and wisdom.  The second, Rabbi Yochanan Ben Zakkai, is not nearly as remembered.  He should be.  In fact, Yochanan Ben Zakkai may be the most important Jewish figure of the last 2,500 years.  It was his pragmatism and spiritual insight that established the foundation of modern Jewish practice, which in turn enabled the Jewish people to survive nearly 2,000 years in exile. 

Contrarily, for all of Akiba’s brilliant religious scholarship, the story which has been passed down the generations claims that his political recklessness and extremism almost destroyed the Jewish nation.  While President Biden’s energy choices are not so stark, he might study the choices supposedly made by each great sage, as well as their consequences.


Prior to the Holocaust, the greatest tragedy in Jewish history was the Great Revolt against the Romans, which occurred from 66-73 AD.  There are many theories as to what caused the Great Revolt, but whatever the actual reasons the fighting was brutal.  

Roman Emperor Nero ordered his General Vespasian to destroy the rebellion, and dispatched four military Legions to do so.  Systematically, the Romans regained control over most of Judea (roughly modern day Israel).  Near the end of the fighting, they sought the surrender of and laid siege to Jerusalem.  As occurs so often in Jewish history, the nation was riven with factions.  At times the Jewish fighters cared more about preventing other Jews from gaining political advantage than in fighting the besieging Romans. 

This is where the story, known in Jewish parlance as a “Midrash” (roughly a commentary on Jewish scripture and history), begins.  With the Romans at the gates of Jerusalem, Yochanan Ben Zakkai, the leader of one of the groups called the Pharisees, managed to smuggle himself out of the besieged city and meet face to face with Vespasian.  As they met, word came from Rome that Nero had died and that Vespasian would become Emperor.  Remarkably, Vespasian took a liking to Ben Zakkai.  The Roman told the Jew that while it was awfully late for negotiations, he would grant Ben Zakkai whatever the Jewish leader requested, within reason. 

Despite an almost blank check, Ben Zakkai asked for precious little.  Basically, he requested only that following the Roman conquest, Ben Zakkai be allowed to continue to teach Jewish laws, traditions, and practice, and that Ben Zakkai be permitted to establish a center for continued Jewish learning.  Vespasian agreed.  

The aftermath of the Great Revolt was appalling.  Much of the land of Judea was laid to waste.  Jews were captured and disbursed as slaves around the Roman Empire.  The Holy Temple was destroyed.  Ben Zakkai, however, spearheaded the reshaping of the Jewish religion from one centered on the Holy Temple in Jerusalem to one centered on the individual Jewish home, wherever it is.


Two generations after the Great Revolt, the remnants of the Judean Jewish community again rose up against the Romans.  This time they were led by a charismatic figure named Simon Bar Kochba.  He convinced much of the country that he in fact was the Messiah who would lead the Jews and throw out the Romans. 

At this time, sixty years after the Great Revolt, it was Akiba who was considered the religious head of much of the Jewish community.  According to the Midrash, Akiba respected Ben Zakkai for his knowledge but was contemptuous of what Akiba considered to be Ben Zakkai’s timidity, especially when given the opportunity to influence Vespasian.  Akiba could not understand why Ben Zakkai had asked for so little.

Unlike the cautious Ben Zakkai, Akiba did not try to moderate the Jewish factions.  Instead, despite overwhelming Roman military superiority, Akiba threw his enormous prestige behind the rebellion.  The “Bar Kochba Revolt” began in 132 AD.  If anything, this war was even more horrific than its predecessor.  At one point, over half of Rome’s military strength was deployed in Judea.  

Stunningly, Bar Kochba initially succeeded.  He restored Jewish hegemony over much of Judea and proclaimed himself a “Nasi”, or prince.  That success was fleeting.  Roman Emperor Hadrian assembled a military force of six full Legions and six partial Legions and sent them to Judea.  The Romans crushed the rebellion.  It is estimated that over 500,000 Jews died from 132-136 AD.

Enraged by the magnitude of the Bar Kochba Revolt, Hadrian determined to wipe Judea off the map.  He renamed the area “Syria Palestine” and he barred Jews entirely from Jerusalem.  Hadrian banned Jewish Torah law and the use of the Hebrew calendar.  He disbursed much of the remaining Jewish population, burned the sacred scrolls and brutally suppressed Jewish religious identity and practice.  Many Jewish historians consider the aftermath of the Bar Kochba Revolt to be the beginning of the Jewish exile from the land of Israel.  As for Akiba, together with many great Jewish sages he was captured by the Romans, wrapped in the sacred Torah scrolls and burned alive. 

2,000 years later, Akiba’s insights into Torah and other aspects of Jewish life continue to be studied and marveled at.  Every year during the afternoon of Yom Kippur, Jews the world over recite a service known as the “Martyrology,” in which we remember those throughout history who have given their lives in sanctification of God’s holy name.  It is, unfortunately, a very long list. 

Akiba’s story is featured prominently in the Martyrology.  While little discussed, the question that must be asked is if the Midrash is true, for how much of this suffering can Akiba be held responsible?  Despite his towering intellect, Akiba would have used his commanding presence to back a reckless military revolt that produced utter devastation. 

Ben Zakkai’s story is not read during the Martyrology.  His legacy is different.  By acting practically and reorienting Jewish practice in the home, he helped sustain the Jewish people.  

In 2020, the United States faces similar issues of pragmatism versus extremism.  Within the energy context, some pushing President Biden leftward claim that unless nearly all fossil fuel use ends within twelve years, the Earth’s climate will be damaged irreparably. Despite limited scientific support, this school of thought has succeeded in delaying or killing much oil and gas pipeline infrastructure construction, halting oil and gas development on Federal land, and getting building codes passed in cities like San Francisco and Seattle forbidding the use of natural gas in new structures.  

We all desire a cleaner, more sustainable world.  It is widely accepted now that developing “greener” sources of energy and using energy more efficiently is vital for our planet and ourselves.  The question is how do we do this, and according to what calendar?  Ironically, despite the obvious divisions in our nation, there is overwhelming support for the same goal, but according to very different demands, expectations, and time frames.

The context in which this debate should take place, but usually doesn’t, is that despite claims to the contrary, there currently is no scientifically-proven way to generate sufficient “renewable” energy to power our world, store that energy, and transport it to where it needs to go when it needs to get there. Despite this, like Akiba of the Midrash, many today demand we plunge forward into the maelstrom of energy extremism without a clear understanding of the real word ramifications.  

Fortunately, we have a test case.  In 2010, Germany embarked on an ambitious project called “Energiewende” (roughly “energy transformation”).  The basic concept was to cease approving any new energy project in Germany that was not from renewable sources and to otherwise incentivize “Green” energy development.  

A decade after it began, it would be hard to call the German program a success.  Germany’s carbon emissions have decreased in recent years (although much is due to the Coronavirus slowdown and in some cases over the last decade Germany’s carbon emissions actually increased).  However, the program actually made Germany more reliant on natural gas than before.  In so doing it has made Germany more dependent on Russian natural gas, so much so that the two countries are building a controversial pipeline called “Nord Stream 2” in the Baltic Sea.  Aside from the environmental questions about building another gas pipeline in this international waterway, Nord Stream 2 ties Germany more to Russia both economically and politically. It also increases German demand for Russian natural gas. 

Not surprisingly, Russia drills for natural gas in the environmentally-sensitive Arctic region.  Russian gas drilling uses few if any environmental safeguards, thereby further contributing to world environmental damage.  In truth, it can be argued that Germany’s well-intentioned “Energiewende” has produced the opposite of what it intended. 

None of this is to say that we shouldn’t make cleaner energy a priority.  We should.  The United States should ramp up renewable energy programs, improve our energy conveyance and storage infrastructure to help make cleaner energy more efficient and better able to get from the point of generation to the point of consumption, continue research into cleaner types of energy, and retain if not strengthen incentive programs for solar, wind, and other renewable forms of energy (full disclosure, much of my energy law practice centers around solar and wind energy).  We also should search for and encourage other ways to clean our environment.  However, we must clearly evaluate and intelligently plan the steps we take.  We must be mindful that, like “Energiewende”, those actions can have the opposite effect if we are not careful. 

Let’s use the Paris Climate Accords as an example and focus on China.  China is the world’s largest producer of greenhouse gasses.  Its emissions exceed those of the United States and the European Union combined. According to China’s national commitment to the Paris Climate Accords, until 2030 China can continue to increase its CO2 emissions at its current rate..  Thus, not only will the Paris Climate Accords not produce drastic climate improvement within the next twelve years, they will not even prevent the world’s largest emitter of CO2 from increasing its emissions. 

During the recent Presidential campaign, then candidate Biden often said that former President Trump’s “America First” approach was isolating the United States.  President Biden’s termination of the permits needed to finish construction of the Keystone XL pipeline also isolates us.  The Keystone XL Pipeline is owned partially by the government of the Canadian Province of Alberta.  Coming soon after the State of Michigan rejected permits for Enbridge’s Line 5 Pipeline, our relations with our largest trading partner are frayed.  

This attack on infrastructure construction also portends dire consequences.  During the polar vortex in 2018, New York and New England were forced to import natural gas from Russia.  This was the case despite the fact that an immense supply of natural gas was (and still is) available four hours away in Northeastern Pennsylvania.  Due to the fight against natural gas pipelines, gas produced in Pennsylvania has been left with no way to reach New York City.  Astoundingly, New York called on Vladimir Putin’s allies for help importing the very same fossil fuel that it snubbed from neighboring Pennsylvania.

That American natural gas could not be moved only a few hundred miles from Pennsylvania to New York shows we are sacrificing our economic, political and, yes, environmental interests in order to chase an environmental ideal.  This is thoroughly foolish, irrational, and downright dangerous.  It amounts almost to unilateral surrender of our own environmental, political and military security.  But even that may not be the worst of it.

Nearly a full year after this country first felt the scourge of the Coronavirus, we are nowhere near its end.  Almost all of the Personal Protective Equipment used by our front line responders, and much of the equipment in Intensive Care Units, is made with fossil fuels.  Were we to ban the use of fossil fuels​, we would forfeit our front line personnel’s safety and security and make it nearly impossible to fight the virus, all in the name of environmental idealism.   

None of this makes sense.  Much is based on wishful thinking.   The buck stops with President Biden.  Perhaps like the Akiba of the Midrash, he may choose to be remembered for his environmental purity and idealism.  Were he to do so, however, it likely will be within the context of a future “Martyrology” lamenting the unilateral and unnecessary weakening of American resolve and security in the face of assertive foreign entities and a frightening pandemic.  Wiser would be the path of Ben Zakkai, who was disparaged by fellow sages, but who preserved what was available to him and strengthened its foundation to the point – like we hope with the United States – where it would survive and flourish for two millennia.​

Questions? Let me know.

Daniel Markind of Flaster Greenberg

Daniel Markind is a shareholder at Flaster Greenberg PC with over 35 years of experience as a real estate and corporate transactional attorney. He has represented individuals and companies in the energy industry for over 20 years. Dan is a frequent lecturer on Marcellus Shale and other mineral extraction issues and is regularly asked to speak at conferences, in the media and at other venues regarding energy issues and their legal and political implications.

The views expressed in this article are not to be associated with the views of Flaster Greenberg PC.

Will the Power Blackouts in CA Affect PA Voters – And The Election?

See my newest article on Forbes.com about the roving California power blackouts and their potential impacts on the upcoming Presidential election.

Click here to read more.

Questions? Let me know.

Daniel Markind of Flaster Greenberg
Daniel Markind is a shareholder at Flaster Greenberg PC with over 35 years of experience as a real estate and corporate transactional attorney. He has represented individuals and companies in the energy industry for over 20 years. Dan is a frequent lecturer on Marcellus Shale and other mineral extraction issues and is regularly asked to speak at conferences, in the media and at other venues regarding energy issues and their legal and political implications.

Chesapeake Energy Files For Chapter 11 Bankruptcy Protection

To end an incredibly busy month, Chesapeake Energy filed for Chapter 11 Bankruptcy protection.  In my latest article for Forbes.com, I hope that Chesapeake’s filing causes the industry to look inward and to better police itself.

Click here to read the article.

Questions? Let me know.

Daniel Markind of Flaster Greenberg
Daniel Markind is a shareholder at Flaster Greenberg PC with over 35 years of experience as a real estate and corporate transactional attorney. He has represented individuals and companies in the energy industry for over 20 years. Dan is a frequent lecturer on Marcellus Shale and other mineral extraction issues and is regularly asked to speak at conferences, in the media and at other venues regarding energy issues and their legal and political implications.

From the Strait of Hormuz to the Port of Philadelphia – It’s All One World

World Map Isolated on White Background. Vector Illustration

Two attacks on oil tankers in the Strait of Hormuz have set the energy world, and the world at large, on edge. It also shows the folly of the unilateral energy disarmament being practiced on the West Coast and in New England, in the United States.

The Strait is the narrow channel between Iran and the Arab Gulf state of Oman through which 30% of the world’s exported oil flows. As happened during the 1980’s Iran-Iraq war, attacks on oil tankers are used as a political weapon to disrupt the world economy.

The first attack came on the Japanese-owned Kokuka Courageous. It was followed by an attack on the Norwegian-owned Front Altair. Both attacks happened near the Iranian naval base at Jask, both ships sent distress signals, and both crews had to be evacuated.  Iran responded with conflicting accounts. It first said that it had rescued all of the crew of the Kokuka when it had not. Then it claimed that they, the Iranians, are responsible for security in the Strait.

The Trump Administration blamed the Iranians – who denied responsibility – and confusion reigned about whether torpedoes, mines or “flying objects” were responsible for the destruction. In response, the price of oil rose sharply and the Norwegian insurance company DNK, which insured the Front Altair, raised its threat assessment while saying Iran likely is to blame.

Reports since have been measured, with most nations believing Iran is responsible while others urging caution. While this shakes out, however, one name looms large and should be remembered by all – Qasem Soleimani – the Commander of the Iranian Revolutionary Guard Corps..

Soleimani, often considered the mastermind of Iranian military expansionism, has been the key figure in exporting Iranian power overseas. He is behind the drive to surround Israel with a “Ring of Fire” and to challenge Saudi Arabia for control over the Arabian Peninsula.

With Iran’s economy reeling from the Trump Administration’s sanctions, it likely was only a matter of time before Iran sent Soleimani into action. Last week, Iranian backed Houthi Rebels in Yemen fired a missile at the Saudi airport in Abha, wounding 26 and constituting a direct challenge to international aviation. Hamas operatives continued to lob fire balloons and rockets into Israel, bringing that area to the precipice of another military conflagration. Now the ship attacks.

If Iran is responsible, it is because the Mullahs are scared. Demonstrations broke out last year in many Iranian cities, showing the depth of antipathy toward theocratic rule. Unlike Venezuela, where the country’s wealth is being squandered by an incompetent kleptocracy, much of Iran’s natural treasure is being diverted from the people to finance military conflicts about which the average Iranian cares little.

Still, it would be foolish to imagine the regime is in immediate danger. The more likely scenario is a drawn out war of attrition with the potential of violent conflict erupting and spreading throughout the entire Middle East at any time. Under this world situation, the price and availability of energy becomes a weapon and will be even more volatile.

Meanwhile, in the Marcellus region back home, the Delaware River Basin Commission last week approved an LNG export terminal in Gibbstown, New Jersey, across the river from Philadelphia.  In addition, the Philadelphia City Council approved an LNG terminal on abandoned property in South Philadelphia. Neither the DRBC nor the Philadelphia City Council has been friendly toward the gas industry, but both seem to realize the importance of these actions both to the region and to the world at large.

From a geopolitical standpoint, the “keep it in the ground” movement makes this country less secure. Whether it makes the world more secure depends on what the alternatives are.  Until that is clearly shown, we run the risk of making our country more dependent on foreign energy sources at a time of extreme international volatility.  Before we do so, we all should understand the stakes. The issues are decidedly more complex and geopolitical than the locally oriented “keep it in the ground” movement would have us believe.

Questions? Let me know.

Daniel Markind of Flaster Greenberg

Daniel Markind is a shareholder at Flaster Greenberg PC with over 35 years of experience as a real estate and corporate transactional attorney. He has represented individuals and companies in the energy industry for over 20 years. Dan is a frequent lecturer on Marcellus Shale and other mineral extraction issues and is regularly asked to speak at conferences, in the media and at other venues regarding energy issues and their legal and political implications.

 

 

 

Trump v. Cuomo – The Battle of the Pipelines

natural gas pipelines 2.jpg

President Trump joined the pipeline battle last week by issuing two Executive Orders aiming at limiting the power of state officials to determine federal policy. One Order calls on the Environmental Protection Agency to streamline its process for awarding oil and gas permits and to expand the ability of the nation’s railroads to transport liquid natural gas. The other Order limits to the President personally the right to “issue, deny or amend” permits for infrastructure projects that cross international boundaries of the United States. Not surprisingly, the environmental community is appalled, and certain governors have blasted the Executive Orders as being a usurpation of state power by the federal government.

As discussed innumerable times on this blog, the permitting issue in the first Order revolves around something known as a Section 401 State Certification of Water Quality. This is a certification under the Federal Clean Water Act from a state confirming that any interstate pipeline that may result into a “discharge” into “navigable waters” within its boundaries will comply with the Clean Water Act.

Initially after enactment of this legislation, many states did not pay close attention to Section 401. They either did not act on requests for certification for more than a year, in which case the state’s authority to act was deemed waived, or trusted the applicable federal agency. This includes pipeline projects for which FERC, the Federal Energy Regulatory Commission, retains primary jurisdiction.

Enter New York Governor Andrew Cuomo. Cuomo was terrified of the power and influence of the New York State environmental community. Without really raising any specific good faith environmental objections, in 2016 Governor Cuomo ordered his New York Department of Environmental Conservation to deny the issuing of the Section 401 Certification for the Constitution Pipeline. This pipeline is a proposed 165 mile link running from the Marcellus Shale gas fields in Northeastern Pennsylvania to the Southern Tier of New York State. There, the Constitution would connect into another larger pipeline called the Tennessee Pipeline which led into New England.

Without this link, natural gas from the most prolific gas fields in the world now has no way of being transported to New England. Just five hours away from the Marcellus, Boston instead relies on natural gas imported over the ocean from Trinidad and Tobago, and at times from Russia. In effect what Governor Cuomo did was dictate energy policy not just for his own state but for all of New England as well.

Since Cuomo’s action, other governors have emulated his refusal, turning energy policy into a hodge podge of conflicting local policies and chaos. Using Section 401, Massachusetts, Vermont, Michigan and others have blocked the permitting of interstate pipelines coming within their borders, insisting against all evidence that the energy shortfall from denial of pipeline access can be made up with so-called “renewables”. Those on the ground who have to deal with the real world implications of this situation understand its ramifications. Consolidated Edison, the franchise power company in Westchester County New York, already was recently forced to declare a moratorium on new gas hookups as there is no available supply.  The needed gas is just two hours away in Northeast Pennsylvania, but Governor Cuomo won’t let it arrive.

While there are bound to be judicial challenges, President Trump’s Executive Order is the first step in the federal pushback against what actually can be seen as a state usurpation of an inherent federal power. Pipelines cross state boundaries.  Thus, they are classic examples of Interstate Commerce. Constitutionally, that should be a matter of federal and not local concern or jurisdiction.

From a purely legal standpoint, however, the President’s Executive Order may not work. It clearly raises innumerable legal issues about federalism, executive authority, environmental enforcement and numerous other legal concepts – many still untested in the courts. Also, it gives no real explanation for how a mere Order from the Executive Branch can override a federal statute, which clearly refers to the “licensing or permitting agency… from the State.”

Despite all of these uncertainties, however, the Order really had to happen – if for no other reason than to highlight the debate and the substantial energy dilemma that now exists in the Northeast as a result of the absence of rational and cohesive energy laws and policies throughout the nation. Within all of our laws there is an implied element of good faith. Nowhere does the Clean Water Act assume or provide that a state can purposely refuse to issue these types of permits for any reason based on that state’s unilateral policy decision. In reality, without ultimate federal control, the entire system could and likely will collapse. That certainly was never the intent of Congress in enacting Section 401.

While advocates of a “green revolution” intend to fight the President tooth and nail, their objections in the end will defeat their own cause unless they realize that we all are in this together. The Green New Deal talks about eliminating fossil fuels by 2030. However, even if this were scientifically possible (which it really isn’t without massive use of nuclear power that many reject for other reasons), Alexandria Ocasio-Cortez, Ed Markey and their supporters offer no way of constructing the infrastructure needed to move, and especially store, renewable energy given the current system, available technology and the current level of state environmental rejection.

Although it almost doesn’t seem possible, the noise level over national environmental and energy policy will be ramped up following President Trump’s Executive Order. Each side will raise the specter of the apocalypse should the other side prevail. What really matters though, is what kind of system can be restored that retains federal control over interstate energy transmission, respects local concerns about environmental protection, pays due regard to the need to combat climate change, and guards against grandstanding politicians who will use whatever means they can to leverage local platforms as a way to assert control over all of our lives.

Questions? Let Dan know.

Daniel Markind of Flaster Greenberg

Daniel Markind is a shareholder at Flaster Greenberg PC with over 35 years of experience as a real estate and corporate transactional attorney. He has represented individuals and companies in the energy industry for over 20 years. Dan is a frequent lecturer on Marcellus Shale and other mineral extraction issues and is regularly asked to speak at conferences, in the media and at other venues regarding energy issues and their legal and political implications.