Electricity transmission pylons beside the gas-fired power plant, operated by Uniper SE, in Irsching, Germany, on Wednesday, July 7, 2021.
Michaela Handrek-Rehle | Bloomberg | Getty Images
LONDON — The Energy Charter Treaty is not widely known, yet it’s feared the influence of this international agreement could be enough by itself to derail hopes of capping global heating to 1.5 degrees Celsius.
The ECT contains a highly contentious legal mechanism that allows foreign energy companies to sue governments over climate action that could hurt future profits.
These “corporate court” cases, sometimes referred to as investor-state dispute settlements, are highly secretive, take place outside of the national legal system and can often lead to far larger financial awards than companies might otherwise expect.
Five fossil fuel companies are already known to be seeking over $18 billion in compensation from governments over energy policy changes and most of these have been brought via the ECT.
For example, Germany’s RWE and Uniper are suing the Netherlands over coal phase-out plans and the U.K.’s Rockhopper is suing Italy over a ban on offshore drilling.
Not only do countries have to get out of that treaty, they have to torpedo it on the way out.
Julia Steinberger
Ecological economist and professor from the University of Lausanne
A spokesperson for Uniper told CNBC: “The Dutch government has announced its intention to shut down the last coal-fired power plants by 2030 without compensation.
“Uniper is convinced that shutting down our power plant in Maasvlakte after only 15 years of operation would be unlawful without adequate compensation.”
RWE said it “expressly supports the energy transition in The Netherlands. In principle, it also supports the measures to reduce CO2 associated with the law, but believes compensation is necessary.”
Rockhopper did not respond to a request for comment.
The number of these corporate court tribunals is expected to skyrocket in the coming years, a trend that campaigners fear will act as a handbrake on plans to transition away from fossil fuels.
Governments that are prepared to implement measures to tackle the climate crisis, meanwhile, could be hit with enormous fines.
“The Energy Charter Treaty is a real trap for countries,” Yamina Saheb, an energy expert and former ECT Secretariat employee turned whistleblower, told CNBC via telephone.
Saheb quit her role with the Secretariat in June 2019 after concluding it would be impossible to align the ECT with the goals of the landmark Paris Agreement. She said any attempt to reform or modernize the treaty would ultimately be vetoed since many member states are heavily reliant on fossil fuel revenues.
Thick smoke, cloud of water vapour comes out of the cooling towers of the lignite-fired power plant Weisweiler of RWE Power AG in Germany.
Horst Galuschka | picture alliance | Getty Images
“If we withdraw, we can protect ourselves, we can start implementing the climate neutrality targets and we can end the promotion of the expansion of this treaty to other developing countries,” Saheb said.
“I think the only way forward is to kill this treaty,” she added. “Either we kill this treaty, or the treaty will kill us.”
The ECT Secretariat was not immediately available to respond when contacted by CNBC.
The treaty has said its fundamental aim is “to strengthen the rule of law on energy issues by creating a level playing field of rules” that help to mitigate the risks associated with energy-related investment and trade.
Who’s involved and how does it work?
The ECT is a unique multilateral framework that applies to more than 50 countries — mostly in Europe and central Asia — and includes the European Union, the U.K. and Japan among its signatories. It is currently looking to expand to new signatory states, particularly in Africa, Asia and Latin America.
Signed in 1994, the ECT was primarily intended to help protect western companies investing in former Soviet Union countries in the post-Cold War era. It was also designed to help overcome economic divisions by ensuring a flow of western finance in the east through binding investment protection.
It has since been sharply criticized by more than 200 climate leaders and scientists as a “major obstacle” to averting climate catastrophe.
Dozens of people walk through water due to heavy rains causing flooding in Dhaka, Bangladesh on October 7, 2021.
Sumit Ahmed | Eyepix Group | Barcroft Media | Getty Images
“I think the treaty is probably by itself enough to kill 1.5 [degrees Celsius],” Julia Steinberger, ecological economist and professor from the University of Lausanne, told CNBC.
“I know that 1.5 is a very tight target and there are a lot of things that can blow it, but it is because it basically saves fossil fuel industries … from the financial collapse that they should face for their risky — and honestly criminal — investments in a harmful technology.”
Corporate court hearings brought via the ECT take place in private and investors are not obliged to acknowledge the existence of a case, let alone reveal the compensation they are seeking.
The average cost of investor-state dispute settlement cases is estimated at roughly 110 million euros ($123.9 million), according to an analysis of 130 known claims by think tank OpenExp, and the average cost of arbitration and legal fees is thought to be around 4.5 million euros.
International environmental law experts say that even the threat of legal action is thought to be highly effective in chilling domestic climate action — and fossil fuel companies are acutely aware of this.
That’s because governments may struggle to allocate resources to a single issue when accounting for other priorities. The threat of legal action becomes progressively more powerful as the budget of the country involved becomes smaller.
Notably, a ruling in favor of the state does not lead to zero cost for taxpayers because the defendant state must pay for legal and arbitration fees.
“Not only do countries have to get out of that treaty, they have to torpedo it on the way out,” Steinberger said. “And that’s something a unit the size of the European Union could do.”
A spokesperson for the EU was not immediately available to comment when contacted by CNBC.
The EU completed its eighth round of negotiations to modernize the ECT earlier this month, with the ninth round of talks scheduled for Dec. 13.
France, Spain and Luxembourg have all raised the option of withdrawing if the EU’s modernization efforts fail to conform to the Paris accord.
What happens if countries withdraw?
Italy withdrew from the ECT in 2016, but it is currently being sued because of a 20-year “sunset clause” which means it is subject to the treaty through to 2036.
Around 60% of cases based on the treaty are intra-EU, with Spain and Italy thought to be the most sued countries. Saheb said that given most of these cases are within the bloc itself, a coordinated withdrawal would likely kickstart a domino effect, with states such as Switzerland, Norway and Liechtenstein seen as likely to follow suit.
And if the bloc were to withdraw from the treaty collectively, member states could agree to remove the legal effects of the sunset clause themselves.
“That sunset clause is much longer than many sunset clauses in other treaties but is also completely incompatible with the notion that regulations need to evolve with the changing reality of climate change, to the changing demands of safeguarding the environment and human rights,” Nikki Reisch, director of the Climate & Energy Program at the Center for International Environmental Law, told CNBC.
“There’s a really strong case to make that the application or enforcement of that sunset clause is contrary to other principles of international law,” she added.
A view of open freight wagons full of coal under smog during a day that the level of PM2.5 dust concentration amounted to 198 ug/m3 on February 22, 2021 in Czechowice Dziedzice, Poland. The central eastern European country has the EU’s worst air, according to a report published by the European Environment Agency (EEA).
Omar Marques | Getty Images News | Getty Images
The European Court of Justice ruled in early September that EU energy companies could no longer use the treaty to sue EU governments. The verdict significantly limits the scope of future intra-EU cases and has thrown the legitimacy of a number of ongoing multi-billion-euro lawsuits into question.
“We are not out of the woods yet,” Reisch said. The ruling was an important step to blunting an instrument designed to protect fossil fuel investors, she said, but it does not take arbitration cases by investors domiciled outside of the EU off the table.
“We can’t let our ability to confront the greatest crisis that we have ever faced as humankind, arguably, be held hostage to the interests of investors,” Reisch said.
“I think it is just another reminder of the need to eliminate those legal structures and fictions that we’ve created that really do lock us into a bygone era of fossil fuel dependence.”
Tesla has unveiled its lithium-iron-phosphate (LFP) battery cell factory in Nevada and claims that it is nearly ready to start production.
Like several other automakers using LFP cells, Tesla relies heavily on Chinese manufacturers for its battery cell supply.
Tesla’s cheapest electric vehicles all utilize LFP cells, and its entire range of energy storage products, Megapacks and Powerwalls, also employ the more affordable LFP cell chemistry from Chinese manufacturers.
This reliance on Chinese manufacturers is less than ideal and particularly complicated for US automakers and battery pack manufacturers like Tesla, amid an ongoing trade war between the US and virtually the entire world, including China.
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As of last year, a 25% tariff already applied to battery cells from China, but this increased to more than 80% under Trump before he paused some tariffs on China. It remains unclear where they will end up by the time negotiations are complete and the trade war is resolved, but many expect it to be higher.
The automaker had secured older manufacturing equipment from one of its battery cell suppliers, CATL, and planned to deploy it in the US for small-scale production.
Tesla has now released new images of the factory in Nevada and claimed that it is “nearing completion”:
Here are a few images from inside the factory (via Tesla):
Previous reporting stated that Tesla aims to produce about 10 GWh of LFP battery cells per year at the new factory.
The cells are expected to be used in Tesla’s Megapack, produced in the US. Tesla currently has a capacity to produce 40 GWh of Megapacks annually at its factory in California. The company is also working on a new Megapack factory in Texas.
It’s nice to see this in the US. LFP was a US/Canada invention, with Arumugam Manthiram and John B. Goodenough doing much of the early work, and researchers in Quebec making several contributions to help with commercialization.
But China saw the potential early and invested heavily in volume manufacturing of LFP cells and it now dominates the market.
Tesla is now producing most of its vehicles with LFP cells and all its stationary energy storage products.
It makes sense to invest in your own production. However, Tesla is unlikely to catch up to BYD and CATL, which dominate LFP cell production.
The move will help Tesla avoid tariffs on a small percentage of its Megapacks produced in the US. Ford’s effort is more ambitious.
It’s worth noting that both Ford’s and Tesla’s LFP plants were planned before Trump’s tariffs, which have had limited success in bringing manufacturing back to the US.
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Senate republicans passed their version of the republican tax bill previously passed by the House. The bill retains most of the bad parts of the House bill, and still kills a slew of tax credits to help working families become more energy efficient, improve US air quality, and boost US manufacturing – instead channeling that money to wealthy elites, increasing the deficit by trillions of dollars along the way.
The Senate bill retains much of the language killing off energy efficiency credits and credits responsible for green manufacturing growth in the US.
The credits were largely established under President Biden as part of the Inflation Reduction Act, which raised hundreds of billions of dollars through tax enforcement on wealthy individuals and corporations and channeled that into energy efficiency credits for American families.
We’ve covered how families could save thousands of dollars on upgrades to lower their energy costs through these credits.
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But these credits aren’t just money-saving for Americans, they also work to boost American manufacturing, due to various provisions in the bill, particularly around the $7,500 EV tax credit which was limited to cars that undergo final assembly in North America.
So of course, republicans want to repeal this good thing. The republican tax plan currently working through Congress repeals most of the credits established in the IRA which were responsible for this boom in investment.
Republicans in the House narrowly passed their version of the bill in May, which then went to the Senate and was modified. The Senate mostly kept the job-killing language of the House bill, eliminating consumer and business tax credits that helped to spur investment in US manufacturing – specifically the 30D and 25E credits for new & used clean vehicles, the commercial clean vehicle credit, the EV charger credit, and funding to reduce pollution from heavy duty vehicles. Many of these credits have domestic sourcing provisions which encouraged companies to establish US manufacturing facilities.
It’s estimated that the elimination of these credits will kill 2 million jobs by nipping a nascent US EV manufacturing boom in the bud before it really gets started. Many of those jobs will be lost in states whose Senators voted for the bill, like Tennessee and South Carolina which will lose 140k and 135k jobs respectively. All four Senators from those states – Marsha Blackburn, Bill Hagerty, Lindsey Graham, and Tim Scott – voted to put their constituents out on the street.
All told, every Democrat voted against the job-killing, deficit-increasing measure, and three republicans had even a small amount of good sense and joined to oppose the bill – Susan Collins of Maine, Rand Paul of Kentucky, and Thom Tillis of North Carolina. But it managed to pass with a 50-50 vote with tiebreaker from J.D. Vance, the runningmate of the convicted felon currently squatting in the White House (despite being Constitutionally barred from holding office in the US).
Originally, there were additional measures in the bill that seemed to have been included just out of spite. For example, republicans wanted to sell off USPS’ awesome new EVs for scrap, losing billions of dollars in the process and killing the American jobs building them. And republicans wanted to add a punitive tax on EVs while subsidizing gas vehicles even more, increasing the budget shortfall for highways.
Thankfully, neither the USPS or registration tax measures seem to have made it into the final Senate bill, but the main measures killing American jobs have remained.
The Senate bill is, in some ways, worse than the House bill. For example, it eliminates the consumer EV credit 3 months earlier, thus increasing inflation faster for one of the most costly items that a consumer owns – their car. And that won’t just affect EVs – by making EVs $7,500 more expensive, competing gas vehicles will feel less downward pressure on price from the competition of cleaner, cheaper-to-own EVs, and manufacturers could well increase prices.
Domestic EV sales in China have ballooned in recent years. China got a slower start than some countries, having low EV penetration until around 2020, but has gone exponential in recent years. In 2023, ICE car values began to plummet and these cars became unsellable in China, acting as a canary in the coal mine for what will happen to the global auto industry if other automaking countries don’t take EVs seriously.
It’s estimated that this year, China will sell more EVs than the US sells cars overall.
But China is not just the number one EV maker, it’s also the number one car maker. As of last year, China is the top auto exporter in the world, eclipsing Japan which had been the primary holder of that title for decades.
Japan came to international prominence in automotive manufacturing in the 1970s, led primarily by the adoption of technologies that better confronted the environmental challenges of the day, while Western automakers continued to try to sell unpopular, inefficient gas guzzlers. Western governments failed to recognize the threat of growing overseas competition, and responded fecklessly with tariffs that didn’t work. Sound familiar?
And so, the Senate bill, which would strangle the attempt to catch US EV manufacturing up to China’s long-planned dominance of the field, will only serve to reduce potential international competition to the rise of China. China is taking EVs seriously, and the US could have, if it weren’t for the spiteful actions of the republicans.
They’re trying to kill off these manufacturing investments likely to snub one of President Biden’s biggest wins, and as a giveaway to the fossil fuel industry that bribes them disproportionately. But all this will do is harm US manufacturing and make Americans sicker and poorer – and help the US’ geopolitical rivals step into the vacuum left by America’s abdication of the auto industry.
The bill now moves back to the House, where that body will have its chance to vote on the changes made in the Senate bill. The last vote passed by the narrowest possible majority, so it’s possible that the changes will kill the bill in the House, but given the recent history of republicans as wanting to make literally everything worse out of spite, it might take a miracle.
If you happen to want good things to happen to America, instead of bad things, you could perhaps call your Congressperson and ask them to vote against this job-killing, deficit-increasing, inflation-causing bill.
Another thing republicans want to kill is the rooftop solar credit. That means you could have only until the end of this year to install rooftop solar on your home, before republicans raise the cost of doing so by an average of ~$10,000. So if you want to go solar, get started now, because these things take time and the system needs to be active before you file for the credit.
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Barrick Mining Corp. and Komatsu have formalized a $440 million deal that will see the Japanese construction giant begin delivering electric and electrified mining equipment assets to the company’s Reko Diq copper-gold project in Pakistan.
“The Reko Diq project represents a long-term investment in our future and that of mining in Pakistan, and our partnership with Komatsu is an important part of that vision,” explains Mark Bristow, Barrick president and CEO. “Komatsu equipment has proven its performance and reliability at our operations worldwide, and we are confident in its ability to support our goals at Reko Diq. We look forward to building on this strong relationship as we develop one of the world’s newest greenfield assets.”
Big spending, bigger savings
P&H 4100XPC AC electric rope shovel and haul truck, via Komatsu.
That 50% number? It’s not just a projection – It’s backed by real-world data. Komatsu says customers using the PC4000-11E in pilot programs have already realized 47% savings in total cost of ownership.
The fully automatic cable drum is designed for easier operation of the electrically driven excavator in backhoe configuration. The automatic winding of the cable makes maneuvering in the pit significantly easier and saves time. Simplified electric machine control enables fast troubleshooting and maintenance of the electrical system and contributes significantly to increasing the overall availability of the machine and helping our customers work toward achieving the highest safety standards.
“We see ourselves as partners to our customers, supporting and collaborating with them on their journey toward a more sustainable and efficient mining operation,” explains Peter Buhles, Vice President Sales and Service, Komatsu Germany GmbH – Mining Division. “We are looking forward to meeting everyone in person at our booth and showcasing our latest technical solutions for hydraulic mining excavators.”
Barrick Mining’s order includes an undisclosed mix of assets that includes a number of ultra-class haul trucks, mining excavators, rope shovels, and wheel loaders. Barrick will begin receiving the first examples of its new Komatsu mining machinery at its Pakistani operations in early 2026.
Meanwhile, big electric locomotives like the Fortescue Infinity Train can, in certain use cases with high amounts of regenerative braking, operate without any significant cost to recharge. At that point, the reduced maintenance and downtime of BEVs compared to diesel vehicles becomes icing on the TCO cake.
If you’re considering going solar, it’s always a good idea to get quotes from a few installers. To make sure you find a trusted, reliable solar installer near you that offers competitive pricing, check out EnergySage, a free service that makes it easy for you to go solar. It has hundreds of pre-vetted solar installers competing for your business, ensuring you get high-quality solutions and save 20-30% compared to going it alone. Plus, it’s free to use, and you won’t get sales calls until you select an installer and share your phone number with them.
Your personalized solar quotes are easy to compare online and you’ll get access to unbiased Energy Advisors to help you every step of the way. Get started here.
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