Abstract: Countries that receive U.S. foreign aid routinely oppose U.S. diplomatic initiatives and vote against the U.S. in the United Nations. While linking humanitarian and security aid to support of U.S. policy priorities would undermine the purposes and effect of that aid, the effectiveness of development aid in improving economic growth and development among recipients remains dubious. Therefore, the U.S. has no compelling reason preventing it from explicitly linking disbursement of development assistance to support for U.S. policy priorities in the United Nations. The U.S. should also work to strengthen and build coalitions of economically or politically free nations in the U.N. because economically free countries and politically free governments tend to vote with the U.S. more consistently.
Congress has been concerned for decades that countries that receive U.S. foreign assistance often refuse to support U.S. initiatives and priorities in the United Nations. In 1983, Congress instructed the U.S. Department of State to prepare an annual report on the frequency with which other countries vote with the U.S. in the U.N. These reports have revealed that the vast majority of recipients of U.S. foreign assistance routinely oppose U.S. diplomatic initiatives and vote against the U.S. a majority of the time in both overall non-consensus votes in the U.N. General Assembly and votes deemed “important” to the U.S. In fact, since 2000, about 87 percent of recipients of U.S. development aid have voted against the U.S. most of the time on non-consensus votes in the General Assembly. By contrast, economically free countries and politically free governments are more likely than less free countries to vote with the U.S.
With these relationships in mind, the U.S. should reshape U.S. policy to more effectively serve American interests, protect U.S. sovereignty, and increase the U.N.’s ability to fulfill its stated purposes of promoting human rights and fundamental freedoms and maintaining international peace and security.
In parallel with this policy, Washington should communicate U.S. policy priorities at the U.N. directly to foreign ambassadors in Washington, D.C., to ensure that that message is faithfully conveyed to decision makers in their governments and not suppressed in New York. Finally, to bolster international support for U.S. diplomatic initiatives, particularly in the General Assembly, the U.S. should build and strengthen coalitions among economically and politically free nations that share many values and principles with America.
Low Support for the U.S. at the U.N.
The American public has long recognized the difficulty of working through the U.N. to advance U.S. interests and has expressed frustration with the systematic shortcomings that plague the organization. As Gallup recently noted, “Americans have never held the United Nations in particularly high esteem.” In a 2011 Gallup poll, only 31 percent of Americans believed that the U.N. is “doing a good job in trying to solve the problems it has had to face.” The lowest approval rating among Americans that Gallup has ever observed was 26 percent in 2009.
This is not a recent phenomenon. With rare exceptions, over the past 40 years Americans have been far more likely to rate the U.N. as doing a “poor job” than a “good job.” In fact, in the 31 Gallup polls posing this question since 1970, an average of 51 percent of Americans rated the U.N. as doing a poor job versus 39 percent who thought that the U.N. was doing a good job. In 21 of those polls, more Americans said that the U.N. was doing a poor job than said it was doing a good job. In more than half of the polls, a majority rated the U.N. as doing a poor job.
A key reason for the U.N.’s poor reputation is that Americans generally perceive the organization and, more specifically, a majority of the U.N. member states as unfriendly to U.S. policies and priorities. Frustration over the fact that most countries, even large aid recipients, routinely oppose the U.S. at the U.N. is neither new nor restricted to the American public. It has also been a long-standing frustration for America’s diplomats.
This is our circumstance. We are a minority. We are outvoted. This is neither an unprecedented nor an intolerable situation. The question is what do we make of it. So far we have made little—nothing—of what is in fact an opportunity. We go about dazed that the world has changed. We toy with the idea of stopping it and getting off. We rebound with the thought that if only we are more reasonable perhaps “they” will be.… But “they” do not grow reasonable….
It is time, that is, that the American spokesman came to be feared in international forums for the truths he might tell.… As if to compensate for its aggressiveness about what might be termed Security Council affairs, the United States has chosen at the UN to be extraordinarily passive, even compliant, about the endless goings-on.… In Washington, three decades of habit and incentive have created patterns of appeasement so profound as to seem wholly normal. Delegations to international conferences return from devastating defeats proclaiming victory….
It is past time we ceased to apologize for an imperfect democracy. Find its equal. It is time we grew out of our initial—not a little condescending—supersensitivity about the feelings of new nations. It is time we commenced to treat them as equals, a respect to which they are entitled.
Ambassador Jeane Kirkpatrick echoed this frustration in her testimony before a Senate committee in 1983. She stated that the U.N. was not the institution its American founders hoped it would be and argued that advancing American interests in the U.N. would require confronting countries over their opposition to the U.S. in that body. To bolster her case, Kirkpatrick provided voting statistics showing that only 19 of 150 countries voted with the U.S. a majority of the time in the U.N. General Assembly in 1982 and that among the regional groups only the Western European and Others Group voted with the U.S. a majority of the time. She provided examples in which the U.S. was isolated even from its allies on significant issues, such as a vote calling on the “Security Council to take steps to establish an independent Palestinian state in the Israeli occupied territories, to create it by fiat and impose it on Israel.” Only the U.S. and two other nations stood by Israel to oppose the resolution, even though America’s NATO allies knew the resolution would only exacerbate an already tense situation.
Ambassador Kirkpatrick argued that the majority of the U.N. member states had become desensitized to the U.N. voting process and consideration of issues, which they saw as largely meaningless and divorced from the real world outside Turtle Bay. Most countries were willing to let the “few who see a chance to roil the waters” run the agenda, because they were convinced that no one was paying much attention to their votes and would therefore pay no consequences inside or outside the U.N.
Since 1983, the State Department has tracked how individual countries vote in the U.N. and reported the results to Congress each year since 1984 in its Voting Practices in the United Nations report. Each report includes tables listing the percentages with which countries voted with the U.S. on Security Council votes and all votes in the U.N. General Assembly, including overall non-consensus votes and non-consensus votes deemed “important” by the U.S. State Department. The report also tabulates voting coincidence by regional and ideological groups. These reports serve as a unique and valuable source of information for gauging support for U.S. priorities and policy positions in the U.N. and prove that, to the detriment of American interests, the U.S. is often in the minority in U.N. votes.
Security Council votes are generally far more important than General Assembly votes. However, Security Council votes involve only 14 other countries and, therefore, provide limited insight into support for U.S. positions in the U.N. Moreover, because the U.S. and the other permanent members of the Security Council can veto resolutions that they do not support, countries often refrain from offering resolutions that are opposed by the U.S. or the other permanent members. Thus, the voting dynamics are skewed.
Regrettably, many proposals in recent General Assembly sessions, if adopted and enforced, would have damaged both the global economy and U.S. interests. This situation requires the U.S. to pay close attention to General Assembly votes and U.S. diplomats and negotiators to spend much time and effort to prevent such initiatives from gaining international legitimacy through U.N. resolutions.
Most General Assembly resolutions are adopted by consensus, i.e., without a recorded vote or without dissent. For instance, the General Assembly adopted 194 (69 percent) of 281 resolutions by consensus during its 65th session in 2010, which is fairly typical of recent U.N. sessions. For the most part, consensus decisions do not address substantive or divisive issues and provide little insight into whether countries support U.S. positions.
Therefore, non-consensus votes—when actual votes are taken on resolutions—deserve much more attention. In the 2010 session, the General Assembly voted on 87 (31 percent) of 281 resolutions. Analysis reveals that the U.S. has historically voted in the minority. Since the U.S. began tracking the data 28 years ago, voting coincidence with the U.S. in the General Assembly on non-consensus votes has averaged 31.7 percent. The all-time low was 15.4 percent in 1988. Following the Cold War, the U.S. enjoyed a honeymoon during which support for its positions on non-consensus votes grew steadily, peaking at more than 50 percent in 1995.
Since 2000, voting coincidence in the General Assembly has averaged 29.8 percent, although it has improved in recent years. In 2010, voting coincidence with the U.S. was 41.6 percent, compared to 39 percent in 2009 and 25.6 percent in 2008.
As part of the report, Congress instructed the State Department to annually identify “votes on issues which directly affected important United States interests and on which the United States lobbied extensively.” These important votes also offer insight into support for U.S. positions because they are often controversial and subjects of intense U.S. lobbying. Analysis reveals that voting coincidence with the U.S. on important votes is higher than for overall non-consensus votes, averaging 38 percent in the General Assembly since 2000. On important non-consensus votes, voting coincidence with the U.S. was 51.1 percent in 2010, 51.2 percent in 2009, and 27.6 percent in 2008.
This low level of voting coincidence between the U.S. and the broader U.N. membership on contentious issues across multiple administrations is not surprising given that most U.N. member states are neither politically nor economically free. The U.N. practice of “one nation, one vote” allows the many members with repressive economic and political systems and the worst human rights records to “vote together to block not only sensible ideas of economic development, but also proposals for U.N. reform that would loosen their hold on U.N. decision making in areas of budget and economic development.” Nearly 30 years ago, Ambassador Kirkpatrick made the point, which is still relevant today, that repressive governments also exert pressure through regional voting blocs and other political groupings—such as the Group of 77, the Non-Aligned Movement, and the Organization of the Islamic Conference—to dissuade otherwise receptive countries from voting with the U.S.
In my view, we cannot and should not maintain the compartmentalization that traditionally has separated our bilateral and our multilateral diplomacy. We need to communicate to nations that their votes, their attitudes, and their actions inside the U.N. system inevitably must have consequences for their relations with the United States outside the U.N. system. We must communicate that it is not possible to denounce us on Monday, vote against us on important issues of principle on Tuesday and Wednesday, and pick up our assurances of support on Thursday and Friday.
…I do believe that behavior, including voting behavior, in multilateral organizations like the United Nations should also be one of the criteria we employ in deciding whether we will provide assistance, and what type of assistance and in what amount. Most particularly, I am convinced that to make attacks on the United States a risk-free operation can have only the effect of insuring that they will take place.
With this legislation in hand, Ambassador Vernon Walters, Ambassador Kirkpatrick’s successor, tried to influence voting in the U.N. in the mid-1980s. Regrettably, when the original 1983 law was replaced in 1990, the provision prohibiting the use of funds for countries “engaged in a consistent pattern of opposition to the foreign policy of the United States” was excised, eliminating the very lever deemed so vital by Ambassadors Kirkpatrick and Walters. However, the legacy of the linkage resulted in the inclusion of information on U.S. foreign assistance in most subsequent reports, including a table in every report on U.N. voting between 1999 and 2009 that listed U.S. foreign assistance disbursements alongside recipients' voting coincidence with the U.S. However, Voting Practices in the United Nations 2010, the most recent report, was substantially revised from earlier reports and does not include this table.
Nonetheless, over the years, a number of academic studies have used data from the U.N. voting report to determine whether U.N. General Assembly voting behavior actually led to adjustments in aid to countries “engaged in a consistent pattern of opposition to the foreign policy of the United States” and whether tying aid to U.N. voting behavior has affected subsequent voting practices.
Most studies conducted in the 1990s did not find a significant relationship between U.N. voting and U.S. foreign assistance disbursements in the General Assembly. However, studies over the past decade found evidence that the U.S. adjusted its foreign assistance disbursements based on U.N. voting and that this adjustment influenced countries to increase support for the U.S. in the U.N. Relying on disaggregated aid data, one study claimed strong evidence of U.S. “vote buying” through specific forms of aid from 1973–2002. Another study analyzed data for 65 countries from 1984–1993 and concluded that the U.S. had “successfully utilized foreign aid programs to induce foreign policy compliance in the UN, particularly on important votes." A 2011 study examining U.N. voting and aid disbursements between 1985 and 2001 concluded that “that the strategic use of aid disbursements indeed induces strategic voting.” These studies rely on data ending in the early 2000s.
Analysis conducted by The Heritage Foundation on more current data found no significant relationship between U.S. foreign aid and recipient countries’ support for U.S. policy positions in the General Assembly over the past decade. Specifically, for 2000–2010, U.S. development and security assistance disbursements have no statistically significant correlation with the recipient countries’ voting coincidence with the U.S. in the General Assembly on non-consensus overall votes (correlation coefficient of 0.01) or important votes (–0.02). Nor is there a statistically significant correlation (–0.11) when only U.S. development assistance disbursements from 2000 to 2010 are analyzed along with recipient countries’ voting coincidence with the U.S. in the General Assembly on non-consensus overall votes and important votes.
From a different approach, analysis of whether changes in development and security assistance from one year to the next are correlated with changes in voting coincidence also yields no statistically significant relationship: correlation coefficients of –0.004 for overall non-consensus votes and 0.01 for important votes. Analysis of change in voting coincidence with the U.S. and changes in only development assistance from one year to the next similarly also fails to yield a statistically significant correlation: correlation coefficients of 0.002 for non-consensus overall votes and 0.01 for important votes.
The real world actions of foreign aid recipients support this statistical analysis. Most major recipients of U.S. foreign assistance have voted against the U.S. more often than they have voted with the U.S. Indeed, over the past 11 sessions of the U.N. General Assembly, on average, about 87 percent of recipients of U.S. development and security assistance voted against the U.S. in a majority of the non-consensus votes, and more than 72 percent voted against the U.S. in a majority of the important non-consensus votes. These ratios remain consistent when only development assistance is considered.
Of the 30 largest recipients of U.S. development aid (cumulatively over the past 11 sessions), 29 countries voted against the U.S. in a majority of the non-consensus votes, and 28 voted against the U.S. in a majority of the important non-consensus votes. In 2010, voting coincidence with the U.S. among all U.S. development aid recipients was 40.7 percent on non-consensus General Assembly resolutions and 49.5 percent on important non-consensus votes. The 30 largest recipients of U.S. development assistance supported the U.S. even less frequently, voting with the U.S. only 36 percent of the time on non-consensus resolutions and 45.7 percent on important non-consensus votes.
Based on this analysis and voting patterns, if the U.S. has adjusted assistance to reflect support or lack of support for U.S. positions in the U.N. over the past decade, this policy is either not communicated effectively or clearly to recipients or applied with such inconsistency that recipients have failed to incorporate the policy into their decision making.
Early in 1981, as a new U.S. ambassador to the United Nations, I launched a computer tabulation to show the correlation between others’ receipt of U.S. foreign aid and their foreign-policy stances. I wanted to know: Did all that money buy America any love? The Neanderthal-era computer spewed its result: Nope.
Huge recipients of U.S. foreign aid—Egypt, Pakistan, and the like—voted no more in tune with American values than similar countries that received no, or less, U.S. foreign aid. Instead, their votes correlated closely with those of Cuba, which wasn’t a big foreign-aid donor. That finding, surprising at the time, remains true. Four of the largest U.S. foreign-aid recipients today—Egypt, Israel, Pakistan, and Afghanistan—all take contrary positions on issues of critical importance to the White House.
The problems outlined by Kirkpatrick in the 1980s remain just as serious and relevant today and, based on more recent academic studies, her proposed solution to link aid and U.N. voting seems viable even though the U.S. has failed to apply it effectively over the past decade.
The U.S. provides assistance for a variety of purposes, some of which can reasonably be linked to support for U.S. policy priorities in the U.N.
Humanitarian Assistance. Humanitarian assistance is often provided to address sudden major natural disasters, tragedies, or ongoing suffering. Humanitarian assistance is poorly suited to advancing other foreign policy objectives. Such assistance is given for moral and humanitarian reasons and is generally irregular, unpredictable, and of relatively short duration. Thus, the lack of a relationship between humanitarian assistance and support for U.S. positions is understandable.
Security Assistance. Support for U.S. interests is clearly at the forefront of providing security assistance, which is primarily used to provide equipment, training, and other assistance to U.S. allies and other nations deemed vital to America’s security interests. America’s security concerns often involve unstable areas of the world and require cooperation with governments that are less than ideal partners. The U.S. often faces a choice between supporting U.S. interests in the U.N. or supporting U.S. interests around the world. In an ideal world, recipients of security assistance would bolster U.S. interests in both arenas, but securing support in just one of the two is acceptable. If the assistance does not advance U.S. interests in either realm, it should be reallocated. Thus, security assistance can similarly be excused for not being closely associated with support for American priorities in the United Nations.
Development Assistance. Development assistance is intended to reduce poverty and encourage economic growth in recipient countries by funding programs dedicated to improving agriculture, education, health, and democracy and advancing other initiatives. If development assistance demonstrably contributed to development and higher standards of living in poor nations, it would support U.S. interests because wealthier nations are generally more stable, more democratic, and more likely to become economic partners with America. Regrettably, the record of development assistance in facilitating economic growth and development is inconclusive at best and counterproductive at worst.
Between 1980 and 2009, the U.S. disbursed nearly $503.3 billion (in 2009 constant dollars) in official development assistance. Yet in terms of per capita gross domestic product (GDP), the populations in a majority of these recipient countries are little better off today than they were decades ago. In fact, many are poorer.
Grew by nearly 5 percent (or more) annually in only three countries (Bosnia and Herzegovina, Cambodia, and Botswana).
Heritage Foundation analysis found no statistically significant correlation between U.S. foreign assistance and recipient countries’ growth in real GDP per capita. Specifically, for 1980–2009, the analysis demonstrated a negative, albeit statistically insignificant, relationship between U.S. development assistance and growth in real GDP per capita (correlation coefficient of –0.02). This conclusion echoes a number of economic studies that have also concluded that development assistance does not demonstrably contribute to increased economic growth and development. For instance, Professor William Easterly found that “among all low-income countries, there is not a clear relationship between aid and growth.” In a more recent study, he showed that the empirical links between aid and economic growth are fragile, and he questioned whether aid could spur growth even in good policy environments. These conclusions have been validated by subsequent studies by Easterly and other development experts.
This failure to elicit significant economic growth is tragic because strong, reliable, long-term economic growth is critical to development. To reach lower-middle-income status (per capita income of $996), low-income countries such as Togo (per capita income of $247 in 2009) or Nepal (per capita income of $261 in 2009) must achieve real compound growth in per capita GDP of more than 5.5 percent for more than two decades. To reach upper-middle-income status (per capita income of $3,946), they must experience real compound growth of 5.5 percent for more than 50 years. Instead, since 1980, Nepal has experienced real annual compound growth of only 2.1 percent, while Togo has had a negative growth rate of –1.2 percent.
With so many recipients of development assistance experiencing declining or insignificant economic growth, one must conclude that development aid from one government to another is not sufficient to facilitate meaningful economic growth and development in the recipient economies. In fact, all too often over the past decades, U.S. foreign assistance has regrettably been awarded to corrupt and anti-democratic governments that have often undermined U.S. policy priorities at the U.N.
Strengthening U.S. consular and management capabilities.
Just as every business must get the most out of every dollar from its investors, State and USAID have to get the most out of every dollar from the American taxpayers; we also have to look ahead, planning for a changing world. It’s ultimately about delivering results for the American people—protecting our interests and projecting our leadership in the 21st century.
Indeed, as the QDDR points out, development should be “a strategic, economic, and moral imperative—as central to our foreign policy as diplomacy and defense.” Yet neither the joint strategic plan nor the QDDR explicitly states that U.S. development assistance should be directly linked to bolstering support for U.S. political priorities in multilateral organizations, such as the U.N. If development assistance is an investment, the return should be clear evidence of economic growth and development among the recipients or increased support for U.S. interests and policies in multilateral organizations. Regrettably, neither is evident.
On the contrary, as Ambassador Kirkpatrick observed nearly 30 years ago, recipient countries too often view U.S. aid as an entitlement unrelated to U.S. foreign policy priorities. This is particularly true in the U.N., where aid recipients seldom face repercussions for failing to support U.S. priorities. By failing to prioritize an explicit link between economic assistance and support for U.S. polices in the U.N., the U.S. is missing an opportunity to advance its policies.
A country’s level of political and economic freedom is a strong indicator of the likelihood that it will vote with the U.S. on General Assembly resolutions. Specifically, the tendency to side with the U.S. on non-consensus votes increases as political or economic freedom increases, as measured by Freedom in the World 2011 and the 2011 Index of Economic Freedom.
Economically repressed countries, in 33 percent of the votes.
Economically repressed countries, in 39.6 percent of the votes.
Analysis revealed a statistically significant positive correlation between a country’s economic freedom score in the Index of Economic Freedom and its voting coincidence with the U.S. in the General Assembly from 2000–2010. Specifically, the analysis demonstrated a positive and strong relationship between a country’s level of economic freedom and overall non-consensus votes (correlation coefficient of 0.45) and between a country’s level of economic freedom and important non-consensus votes (correlation coefficient of 0.49).
Chart 3 also shows average voting coincidence on non-consensus votes for the 175 countries by category of economic freedom over the past 11 General Assembly sessions. It illustrates the strong positive relationship between a country’s level of economic freedom and its votes with the U.S. in the General Assembly. Economically free and mostly free countries vote with the U.S. twice as often as repressed countries vote with the U.S.
Not free countries, in only 31.3 percent of the votes.
Not free countries, in only 30.9 percent of the votes.
Analysis revealed a statistically significant, positive correlation between a country’s level of political freedom as determined by Freedom House and its voting coincidence with the U.S. in the General Assembly. Specifically, for 2000–2010, the analysis demonstrated a positive and strong relationship between a country’s level of political freedom and overall non-consensus votes (correlation coefficient of 0.61) and between a country’s level of political freedom and important non-consensus votes (correlation coefficient of 0.65).
Chart 3 also illustrates the strong positive relationship between political freedom and voting with the U.S. on non-consensus votes over the past 11 sessions of the General Assembly. Politically free countries voted with the U.S. twice as often as not free countries voted with the U.S.
Of course, expecting every U.N. member to follow America’s lead on every vote is unrealistic. Even America’s strongest allies do not agree with the U.S. on every vote. Yet the U.S. could champion its positions more effectively in the General Assembly. Other countries do this, and the U.S. needs to increase its efforts if it wishes to promote its policy priorities more successfully in the U.N.
General Assembly voting patterns indicate and analysis confirms that the U.S. neither effectively rewards countries that support U.S. priorities in the U.N. nor withholds development assistance from countries that consistently oppose U.S. priorities. Table 1 summarizes voting coincidence with the U.S. for the 30 largest recipients of U.S. development assistance and for economically and politically free countries. Clearly, freer countries are more likely than less free countries to support U.S. positions and far more likely than major recipients of U.S. foreign assistance to vote with the U.S.
Explicitly link disbursement of U.S. development assistance to support for U.S. policy priorities in the U.N. The U.S. provides foreign assistance for a number of reasons from securing increasing economic growth to addressing humanitarian disasters to strengthening the military capabilities of its friends and allies. In allocating U.S. assistance, these priorities generally override whether the U.S. can rely on the recipient nation to support U.S. positions in the U.N. and other international organizations. As a result, many countries consider the U.N. and other international organizations to be penalty-free arenas where they can undermine U.S. initiatives and oppose American policy priorities without fear of retaliation or consequences. Regardless of how they conduct themselves, they remain confident that they will receive U.S. assistance. Similarly, congressional earmarks on foreign assistance often remove executive branch discretion over aid disbursements, thereby limiting its ability to reward nations that support U.S. priorities and penalize those that oppose them. To promote U.S. policy priorities more effectively in the U.N., Congress should reduce its reliance on aid earmarks for specific countries while linking provision of development assistance to support for U.S. policy priorities in the U.N. The State Department and USAID should be instructed to inform aid recipients of this policy and explain that opposing U.S. priorities at the U.N. will result in reduced aid.
Require the State Department to include information on foreign assistance in its annual report to Congress on voting practices in the United Nations. While not required by current law, previous editions of the report included a table listing the amount of U.S. assistance provided to each country alongside its voting coincidence. Providing the information in this format was useful in illustrating the support of American foreign assistance recipients for U.S. priorities in the U.N. However, the Obama Administration modified the most recent report so that it no longer includes data on foreign assistance. Most likely this was done to downplay the fact that the vast majority of recipients of U.S. foreign assistance routinely oppose U.S. diplomatic initiatives and vote in opposition to the U.S. in the General Assembly. Congress should require the State Department to include this table in future Voting Practices in the United Nations reports.
Engage directly with Washington embassies on U.S. priorities in the U.N. Sometimes U.S. priorities at the U.N. and communications in New York from the U.S. officials to the missions of countries to the U.N. are not passed on to national governments and therefore do not have the desired effect of changing votes on key issues. Communicating U.S. priorities through Washington embassies provides an alternative means for messages to reach decision makers in other governments and can help circumvent parochial U.N. politics and relationships that can influence votes by country missions in New York irrespective of the wishes of their governments.
Seek to coordinate voting by politically free governments in the U.N. Numerous U.N. members are considered politically free, but routinely fail to hold repressive governments accountable. Even worse, they frequently permit repressive governments to run roughshod over U.N. bodies and resolutions that are designed to highlight or curb human rights abuse and political repression. The U.S. and its democratic allies should more clearly denounce actions by regional groups that undermine representative government, the rule of law, or basic human rights. The U.S. has sought to organize these nations, coordinate policy positions on relevant issues at the United Nations, and promote democracy among the member states. The U.S. needs to maintain these efforts and seek to create a more cohesive caucus for political freedom and fundamental human rights.
Seek support for an economic freedom coalition within the U.N. Another strategy for strengthening the American cause at the U.N. is to create a caucus to promote economic freedom among nations that have a record of economic freedom. Such a coalition would serve U.S. interests by offering alternative voting relationships beyond regional groupings and would facilitate common principles that both developed and developing countries could champion. While the U.S. has spoken about the need for economic freedom, its efforts to organize other nations around this concept have not been as successful as those focused on democracy have been. The U.S. should seek to emulate its modest successes in coordinating actions and positions of democratic countries by establishing a Global Economic Freedom Forum in addition to an economic freedom caucus to emphasize the need for economic freedom in U.N. discussions on development.
America’s engagement with the United Nations has been multifaceted, and the U.N. is an important venue for discussing many of today’s global challenges. The United States, the largest contributor to the U.N. budget, has steadfastly supported the founding ideals of the U.N. It is clearly in America’s interest to work with the U.N. to advance U.S. diplomatic initiatives related to these values and to facilitate cooperation with other nations to address these common concerns.
In protecting and advancing American interests, the U.S. should seek to strengthen and broaden support for America’s policies in the U.N. The U.S. should focus on changing the U.N. dynamics by explicitly linking U.S. assistance to support for U.S. priorities in the U.N., by forging coalitions with nations that share the American principles of political and economic freedom, and by seeking to expand the membership of those coalitions.
—Brett D. Schaefer is Jay Kingham Fellow in International Regulatory Affairs in the Margaret Thatcher Center for Freedom, a division of the Kathryn and Shelby Cullom Davis Institute for International Studies, at The Heritage Foundation and editor of ConUNdrum: The Limits of the United Nations and the Search for Alternatives (Rowman & Littlefield Publishers, 2009). Anthony B. Kim is a Policy Analyst in the Center for International Trade and Economics at The Heritage Foundation.
Law Requiring Annual Report on Voting Practices at the U.N.
(a) In general: Not later than March 31 of each year, the Secretary of State shall transmit to the Speaker of the House of Representatives and the chairman of the Committee on Foreign Relations of the Senate a full and complete annual report which assesses for the preceding calendar year, with respect to each foreign country member of the United Nations, the voting practices of the governments of such countries at the United Nations, and which evaluates General Assembly and Security Council actions and the responsiveness of those governments to United States policy on issues of special importance to the United States.
(c) Format: Information required pursuant to subsection (b)(3) of this section shall also be submitted, together with an explanation of the statistical methodology, in a format identical to that contained in chapter II of the Report to Congress on Voting Practices in the United Nations, dated March 14, 1988.
(d) Statement by Secretary of State: Each report under subsection (a) of this section shall contain a statement by the Secretary of State discussing the measures which have been taken to inform United States diplomatic missions of United Nations General Assembly and Security Council activities.
Gallup, “Americans’ Rating of United Nations Improved, but Still Low,” February 19, 2010, at http://www.gallup.com/poll/126134/Americans-Rating-United-Nations-Improved-Low.aspx (July 21, 2011).
Gallup, “United Nations,” 2011, at http://www.gallup.com/poll/116347/united-nations.aspx (July 21, 2011).
The exceptions include the early 1990s following U.N. support for the U.S.-led Gulf War in 1991 and the early 2000s immediately after the 9/11 terrorist attacks, when the U.N. passed resolutions expressing solidarity and sympathy with the U.S. and support for the U.S. response to the 9/11 attack.
Daniel P. Moynihan, “The United States in Opposition,” Commentary, March 1975, at http://www.commentarymagazine.com/article/the-united-states-in-opposition (July 28, 2011).
Jeane Kirkpatrick, testimony, in reprint of U.S. Senate, Committee on Foreign Relations, “International Security and Development Cooperation Act of 1983,” 1983, p. 54, at http://www.disam.dsca.mil/pubs/Vol%205-4/Kirkpatrick.pdf (July 21, 2011).
The 1983 report requirement stated: “Not later than January 31 of each year, or at the time of the Report to transmittal by the President to the Congress of the annual presentation materials on foreign assistance, whichever is earlier, the President shall transmit to the Speaker of the House of Representatives and the President of the Senate a full and complete report which assesses, with respect to each foreign country, the degree of support by the government of each such country during the preceding twelve-month period for the foreign policy of the United States. Such report shall include, with respect to each such country which is a member of the United Nations, information to be compiled and supplied by the Permanent Representative of the United States to the United Nations, consisting of a comparison of the overall voting practices in the principal bodies of the United Nations during the preceding twelve-month period of such country and the United States, with special note of the voting and speaking records of such country on issues of major importance to the United States in the General Assembly and the Security Council, and shall also include a report on actions with regard to the United States in important related documents such as the Non-Aligned Communique. A full compilation of the information supplied by the Permanent Representative of the United States to the United Nations for inclusion in such report shall be provided as an addendum to such report. None of the funds appropriated or otherwise made available pursuant to this subsection shall be obligated or expended to finance directly any assistance to a country which the President finds, based on the contents of the report required to be transmitted under this paragraph, is engaged in a consistent pattern of opposition to the foreign policy of the United States.” Public Law 98–151, at http://history.nih.gov/research/downloads/PL98-151.pdf (July 21, 2011).
Foreign Relations Authorization Act, Fiscal Years 1990 and 1991, Public Law 101–246, § 406. The law was later amended by the Consolidated Appropriations Act, 2005 (Public Law 108–447) to require “a separate listing of all plenary votes cast by member countries of the United Nations in the General Assembly on resolutions specifically related to Israel that are opposed by the United States.” 22 U.S. Code § 2414a(b)(4).
Each annual report reports on voting in the session of the previous year.
The U.N. conducts discussions and adopts resolutions on peace and security, terrorism, disarmament, economic and social development, humanitarian relief, human rights, and numerous other issues of importance to the U.S.
Kim R. Holmes, “Promoting Economic Freedom at the United Nations,” Heritage Foundation Lecture No. 823, February 24, 2004, at http://www.heritage.org/Research/Lecture/Promoting-Economic-Freedom-at-the-United-Nations.
See U.S. Department of State, Bureau of International Organization Affairs, Voting Practices in the United Nations, 2010, March 31, 2011, p. 2, at http://www.state.gov/p/io/rls/rpt/c44269.htm (July 21, 2011).
See U.S. Department of State, Bureau of International Organization Affairs, Voting Practices in the United Nations, 1999–2010, at http://www.state.gov/p/io/rls/rpt/ (July 21, 2011).
22 U.S. Code § 2414a(b)(3)(A).
Data on “important” votes for the entire 28-year period of the report were not available online.
Freedom House, Freedom in the World 2011: The Authoritarian Challenge to Democracy, at http://www.freedomhouse.org/template.cfm?page=594 (July 21, 2011).
Terry Miller and Kim R. Holmes, 2011 Index of Economic Freedom (Washington, D.C.: The Heritage Foundation and Dow Jones & Company, Inc., 2011), at http://www.heritage.org/index.
For a more recent discussion, see Brett D. Schaefer, “Who Leads the United Nations?” Heritage Foundation Lecture No. 1054, December 4, 2007, at http://www.heritage.org/Research/Reports/2007/12/Who-Leads-the-United-Nations.
 Ibid. This provision was first enacted in Public Law 98–151 and reiterated in 1985 in Public Law 99–190, which stated, “None of the funds appropriated or otherwise made available pursuant to this Act shall be obligated or expended to finance directly any assistance to a country which the President finds, based on the contents of the report [on voting practices in the United Nations] required to be transmitted under subsection (a), is engaged in a consistent pattern of opposition to the foreign policy of the United States.” Public Law 99–190, § 529(b), at http://www.cq.com/graphics/sal/99/sal99-190.pdf (July 21, 2011). This provision was repealed by Public Law 101–246. The provisions of Public Law 101–246 remain law, as amended by Public Law 108–447.
Associated Press, “U.S. Warns Countries About Votes at U.N.,” The New York Times, May 16, 1986, p. A2.
See Foreign Relations Authorization Act, Fiscal Years 1990 and 1991, Public Law 101–246, § 406. It was later amended by the Consolidated Appropriations Act, 2005 to require “a separate listing of all plenary votes cast by member countries of the United Nations in the General Assembly on resolutions specifically related to Israel that are opposed by the United States.” Consolidated Appropriations Act, 2005, Public Law 108–447, § 534(k).
For instance, see Charles W. Kegley, Jr., and Steven W. Hook, “U.S. Foreign Aid and U.N. Voting: Did Reagan’s Linkage Strategy Buy Deference or Defiance?” International Studies Quarterly, Vol. 35, No. 3 (September 1991), pp. 295–312, at http://www.jstor.org/pss/2600701 (July 21, 2011).
“Using panel data for 143 countries over the period 1973–2002, this paper empirically analyzes the influence of US aid on voting patterns in the UN General Assembly. We use disaggregated aid data to account for the fact that various forms of aid may differ in their ability to induce political support by recipients. We obtain strong evidence that US aid buys voting compliance in the Assembly.” Axel Dreher, Peter Nunnenkamp, and Rainer Thiele, “Does US Aid Buy UN General Assembly Votes? A Disaggregated Analysis,” KOF Konjunkturforschungsstelle Working Paper No. 138, April 2006, at http://kofportal.kof.ethz.ch/publications/download/811/wp_138.pdf (July 21, 2011).
T. Y. Wang, “U.S. Foreign Aid and UN Voting: An Analysis of Important Issues,” International Studies Quarterly, Vol. 43, No. 1 (March 1999), pp. 199–210, at http://www.stanford.edu/class/ips216/Readings/wang_99.pdf (July 21, 2011).
David B. Carter and Randall W. Stone, “Vote Buying in the UN General Assembly,” March 14, 2011, at http://www.personal.psu.edu/dbc10/unvote13.pdf (July 21, 2011).
Iraq, as a non-participating U.N. member, did not vote until 2003.
In accordance with Section 406 of Public Law 101–246, the State Department is required to analyze and discuss “important votes,” which are defined as votes on “issues which directly affected United States interests and on which the United States lobbied extensively.” See U.S. Department of State, Voting Practices in the United Nations, 2010, pp. 15–22.
A notable exception is when countries are elected to the U.N. Security Council. A 2006 study of U.S. aid to countries elected to the Security Council found that aid increased by an average of 59 percent when a country rotates onto the council and than falls when they rotate off. Moreover, aid allocation increases even more when the Security Council is involved in key issues and crises. This practice strongly implies that U.S. aid does positively affect support among rotating Security Council members. See Ilyana Kuziemko and Eric Werker, “How Much Is a Seat on the Security Council Worth? Foreign Aid and Bribery at the United Nations,” Journal of Political Economy, Vol. 114, No. 5 (October 2006), pp. 905–930, at http://www.jstor.org/stable/10.1086/507155 (July 21, 2011).
Ken Adelman, “Not-So-Smart Power,” Foreign Policy, April 18, 2011, at http://www.foreignpolicy.com/articles/2011/04/18/not_so_smart_power (July 21, 2011).
Organisation for Economic Co-operation and Development, International Development Statistics, at http://www.oecd.org/dataoecd/50/17/5037721.htm (July 21, 2011).
While experts may disagree on the impact of an additional dollar of development assistance on economic growth, advocates of development aid generally assert that rapid development requires significant levels of development assistance and commonly blame insufficient assistance for the lack of growth among recipients. For instance, see U.N. Millennium Project, Investing in Development: A Practical Plan to Achieve the Millennium Development Goals (New York: United Nations Development Programme, 2005), at http://www.unmillenniumproject.org/documents/MainReportComplete-lowres.pdf (July 21, 2011). Thus, the analysis in this paper excludes countries that received an insignificant amount of assistance between 1980 and 2009 (cumulative aid over that period totaling less than 1 percent of their 2009 GDP). World Bank, Open Data, at http://www.worldbank.org/data (July 21, 2011), and Organisation for Economic Co-operation and Development, International Development Statistics. Due to the lack of earlier data, per capita GDP figures for the earliest available years were used for 22 countries: Angola, Armenia, Azerbaijan, Bosnia and Herzegovina, Cambodia, Cape Verde, Djibouti, Eritrea, Kazakhstan, Kyrgyz Republic, Laos, Lebanon, Macedonia, Mongolia, Samoa, Tajikistan, Tanzania, Timor-Leste, Tonga, Uganda, Uzbekistan, and Yemen.
William Easterly, “The Cartel of Good Intentions: Bureaucracy Versus Markets in Foreign Aid,” Center for Global Development Working Paper No. 4, March 2002, revised May 2002, at http://www.cgdev.org/files/2786_file_cgd_wp004_rev.pdf (July 21, 2011).
William Easterly, “Can Foreign Aid Buy Growth?” Journal of Economic Perspectives, Vol. 17, No. 3 (Summer 2003), pp. 23–48, at http://faculty.nps.edu/relooney/JEP_61.pdf (July 21, 2011).
See William Easterly, The White Man’s Burden: Why the West’s Efforts to Aid the Rest Have Done So Much Ill and So Little Good (New York: Penguin Press, 2006); Simeon Djankov, Jose G. Montalvo, and Marta Reynal-Querol, “The Curse of Aid,” Journal of Economic Growth, Vol. 13, No. 5 (September 2008), at http://probeinternational.org/library/wp-content/uploads/2010/10/The-curse-of-aid.pdf (July 21, 2011); and Raghuram G. Rajan and Arvind Subramanian, “Aid and Growth: What Does the Cross-Country Evidence Really Show?” The Review of Economics and Statistics, Vol. 90, No. 4 (November 2008), pp. 643–665.
World Bank, “How We Classify Countries,” at http://go.worldbank.org/K2CKM78CC0 (July 21, 2011).
William LaJeunesse, “It’s All Your Money: Foreign Aid to Muslim/Arab Nations,” Fox News, May 27, 2011, at http://politics.blogs.foxnews.com/2011/05/24/its-all-your-money-foreign-aid-muslimarab-nations (July 21, 2011).
U.S. Department of State and U.S. Agency for International Development, “Strategic Plan, Fiscal Years 2007–2012: Transformational Diplomacy,” at http://www.usaid.gov/policy/coordination/stratplan_fy07-12.pdf (July 21, 2011).
U.S. Department of State and U.S. Agency for International Development, Leading Through Civilian Power, The First Quadrennial Diplomacy and Development Review, 2010, pp. i–xix, at http://www.state.gov/documents/organization/153108.pdf (July 21, 2011).
Terry Miller and Anthony B. Kim, “Defining Economic Freedom,” Chap. 2, in Miller and Holmes, 2011 Index of Economic Freedom, pp. 19–27.
Freedom House, Freedom in the World 2011, p. 30.
Kim R. Holmes, Liberty’s Best Hope: American Leadership for the 21st Century (Washington, D.C.: The Heritage Foundation, 2008), p. 53.
For instance, see the U.N. Democracy Fund, “What Is the United Nations Democracy Fund (UNDEF)?” at http://www.un.org/democracyfund/XWhatIsUNDEF.htm (July 21, 2011); U.S. Department of State, “The Community of Democracies,” at http://www.state.gov/s/sacsed/communitydemocracies/index.htm (July 21, 2011); and U.N. Democracy Fund, Web site, at http://www.un.org/democracyfund (July 21, 2011).
Holmes, Liberty’s Best Hope, p. 122.
The U.S. pays 22 percent of the U.N. regular budget, making it by far the U.N.’s largest contributor, but the U.S. has only one of the 193 votes on budgetary matters. The combined assessment of the 129 least-assessed countries—two-thirds of the General Assembly—totals less than 1 percent of the regular budget. These countries, combined with influential voting blocs in the U.N., can and do block attempts to implement reforms and curtail budgets. See Brett Schaefer, “The U.S. Must Maximize Its Influence over U.N. Budgetary Decisions,” Heritage Foundation WebMemo No. 3234, April 25, 2011, at http://www.heritage.org/research/reports/2011/04/the-us-must-maximize-its-influence-over-un-budgetary-decisions.


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1. The right to examine the bankrupt in a bankruptcy proceeding, for the purpose of obtaining possession of property belonging to his estate, rests wholly upon § 21a of the Bankruptcy Act. P. 266 U. S. 39.
2. That section, prescribing no rules for the examination, impliedly adopts the general rules governing admissibility of evidence and competency and compellability of witnesses; it indicates no intention to take from any witness the privilege against self-incrimination, and makes clear the purpose not to differentiate between the bankrupt and other witnesses, nor between examinations relating to property from those relating to his acts or conduct. Id.
it may, in the absence of any statute affording him complete immunity, be asserted by a bankrupt when being examined concerning his estate under § 21a of the Bankruptcy Act. Pp. 266 U. S. 40, 266 U. S. 42.
4. Decisions requiring bankrupts to surrender books and papers, though containing incriminating evidence, rest on the substantive obligation of bankrupts to surrender them as property; the constitutional privilege against self-incrimination relate to the adjective law. P. 266 U. S. 41.
Appeal from a judgment of the district court. in habeas corpus, discharging Arndstein from custody under a commitment for contempt based on his refusal to answer questions propounded on his examination as a bankrupt. The judgment was affirmed in McCarthy v. Arndstein, 262 U. S. 355. The present decision is upon a rehearing.
waived his privilege by complying without objection to the order that he file a schedule of his assets. [Footnote 1] The judgment denying the writ was reversed by this Court, but the mandate required merely that the lower court issue the writ and then proceed as usual. Arndstein v. McCarthy, 254 U. S. 71 and 254 U. S. 379.
Thereupon the district court issued the writ of habeas corpus. The marshal made a return which included a transcript of the entire proceedings. The court held that, despite certain oral answers given, the bankrupt was entitled to cease disclosure. The judgment, which discharged the bankrupt from custody, was affirmed by this Court. McCarthy v. Arndstein, 262 U. S. 355, 262 U. S. 357-358. The case is now before us on rehearing, granted in order to permit argument of the proposition, not presented by counsel before, that the privilege against self-incrimination does not extend to an examination of the bankrupt made for the purpose of obtaining possession of property belonging to his estate. 263 U.S. 676.
"require any designated person, including the bankrupt and his wife, to appear in court . . . to be examined concerning the acts, conduct, or property of a bankrupt whose estate is in process of administration. . . ."
of an intention on the part of Congress to take from any witness the privilege against self-incrimination. Moreover, the section makes clear the purpose not to differentiate between the bankrupt and other witnesses, nor to differentiate examinations which relate to the property from those which relate to the acts or the conduct of the bankrupt. [Footnote 3] This Court has already decided that the privilege was not waived either by the bankrupt's filing the schedule or by his answering orally certain questions. The contention now is that the privilege against self-incrimination ought to have been disallowed because, under the Constitution, it does not extend to the examination of a bankrupt in a bankruptcy proceeding.
The government insists broadly that the constitutional privilege against self-incrimination does not apply in any civil proceeding. The contrary must be accepted as settled. The privilege is not ordinarily dependent upon the nature of the proceeding in which the testimony is sought or is to be used. It applies alike to civil and criminal proceedings, wherever the answer might tend to subject to criminal responsibility him who gives it. The privilege protects a mere witness as fully as it does one who is also a party defendant. It protects likewise the owner of goods which may be forfeited in a penal proceeding. See Counselman v. Hitchcock, 142 U. S. 547, 142 U. S. 563-564.
The cases which hold that a bankrupt must surrender books and papers although they contain incriminating evidence rest upon a principle different from that here involved. Matter of Harris, 221 U. S. 274; Johnson v. United States, 228 U. S. 457; Ex parte Fuller, 262 U. S. 91; Dier v. Banton, 262 U. S. 147. The law requires a bankrupt to surrender his property. The books and papers of a business are a part of the bankrupt estate. Section 70a(1). To permit him to retain possession because surrender might involve disclosure of a crime would destroy a property right. The constitutional privilege relates to the adjective law. It does not relieve one from compliance with the substantive obligation to surrender property.
Section 21a, on the other hand, deals specifically and solely with the adjective law -- with evidence and witnesses. When the bankrupt appears before a commissioner under this section, he comes, like any other person, merely to testify. In that connection, he may, like any other witness, assert the constitutional privilege, because the present statute fails to afford complete immunity from prosecution. If Congress should hereafter conclude that a full disclosure of the bankrupt estate by the witnesses is of greater importance than the possibility of punishing them for some crime in the past, it can, as in other cases, confer the power of unrestricted examination by providing complete immunity. Compare Brown v. Walker, 161 U. S. 591; Glickstein v. United States, 222 U. S. 139, 222 U. S. 142; Ensign v. Pennsylvania, 227 U. S. 592.
In re Tobias, Greenthal & Mendelson, 215 F. 815.
See People's Bank of Buffalo v. Brown, 112 F. 652; In re Pursell, 114 F. 371; In re Josephson, 121 F. 142; Brown v. Person, 122 F. 212; In re Hooks Smelting Co., 138 F. 954, 956; In re Ruos, 159 F. 252.
Substantially the same provision was made in Act April 4, 1800, c.19, §§ 14, 18, 24, 2 Stat. 25, 26, 28; in Act Aug.19, 1841, c. 9, § 4, 5 Stat. 440 (in part); in Act March 2, 1867, c. 176, § 26, 14 Stat. 517, 529. See also Act Feb. 5, 1903, c. 487, § 7, 32 Stat. 797, 798. The purpose may have been, in part, to render the bankrupt and others competent as witnesses. Compare Ex parte Haes,  1 K.B. 98. The bankrupt (and many other witnesses) would, under the rules prevailing in the common law court at the time the earlier bankrupt laws were enacted, have been incompetent as witnesses, on the ground of interest, but for such a provision, and the wife would have been incompetent because of her particular relationship.
See Ex parte Meymot, 1 Atk.196, 198, 200; Ex parte Cossens, Buck's Cases 531, 540; In re Heath, 2 D. & Ch. 214. The requirement under the English practice referred to is perhaps more like the American requirement of the filing of a schedule of assets under § 7a(8) than the submission to examination as a witness provided for in § 21a.
In re Scott, 95 F. 815; In re Rosser, 96 F. 305; In re Franklin Syndicate, 114 F. 205; United States v. Goldstein, 132 F. 789; In re Bendheim, 180 F. 918; In re Tobias, etc., 215 F. 815; In re Naletasky, 280 F. 437. Compare In re Feldstein, 103 F. 269; In re Walsh, 104 F. 518; In re Shera, 114 F. 207; In re Nachman, 114 F. 995; In re Levin, 131 F. 388. But see Mackel v. Rochester, 102 F. 314.


§ 90.403 General operating requirements.
§ 90.411 Civil defense communications.
§ 90.419 Points of communication.
§ 90.421 Operation of mobile station units not under the control of the licensee.
§ 90.423 Operation on board aircraft.
§ 90.427 Precautions against unauthorized operation.
§ 90.429 Control point and dispatch point requirements.
§ 90.437 Posting station licenses.
§ 90.439 Inspection of stations.
§ 90.441 Inspection and maintenance of antenna structure marking and associated control equipment.
§ 90.443 Content of station records.
§ 90.445 Form of station records.
§ 90.447 Retention of station records.


EPA posts technical reviewer comments on methane “white papers” . . . IRS expands eligibility of renewable projects for PTC and ITC . . . Southern Company and Sierra Club reach settlement on Kemper CCS project . . . Dozen states challenge 111(d) Clean Power Plan rule by means of challenge to 2010 EPA legal settlement with environmental groups . . . CEQ says it does not need to revise NEPA regulations in order to address climate change in environmental reviews.
IRS Guidance Expands Scope of Renewables Projects Eligible for Tax Credits. On August 8, the Internal Revenue Service (IRS) issued guidance expanding the eligibility of renewable energy facilities for the production tax credit (PTC) and the energy investment tax credit (ITC). Previously, Congress enacted law providing that a facility could be eligible for such credits if construction of the facility began before January 1, 2014. Prior IRS guidance outlined two methods to determine when construction has begun: (1) a demonstration that a certain amount of “physical work” of a “significant nature” has commenced (also known as the “Physical Work” test); or (2) that five percent or more of the total cost of the facility was paid or incurred before January 1 (also known as the “Safe Harbor” test). The August 8 guidance, Notice 2014-46, further clarifies the application of these tests. The guidance provides examples of the kind of work that is of a “significant nature” and therefore is sufficient to meet the “Physical Work” test. The guidance also further clarifies that even in situations in which the entirety of a project does not meet the five percent safe harbor, the taxpayer could still satisfy the “safe harbor” test for individual facilities comprising the project if the taxpayer has paid or incurred at least three percent of the total cost of the project and the total project cost is not greater than twenty times the amount the taxpayer paid or incurred before January 1, 2014. Finally, the guidance describes how the project’s eligibility can be sustained even if it is transferred to the taxpayer from an unrelated developer. The guidance is available here: http://www.irs.gov/pub/irs-drop/n-14-46.pdf.
EPA Posts Comments on Methane “White Papers.” EPA has posted on the agency’s website comments by technical peer reviewers on a series of “white papers” that EPA issued in April on sources of methane emissions in the oil and natural gas sector. The original five white papers represented the agency’s efforts to capture the state of understanding of particular sources of methane emissions, and available means of controlling those emissions. EPA invited a set of technical reviewers to review the papers and provide comment. The agency also invited general public comments. The white papers cover emissions from compressors, hydraulically fractured oil wells, liquids unloading, leaks, and pneumatic devices. The technical reviewers included some representatives of companies, including XTO Energy, Southwestern Energy, and TransCanada. Representatives from the Environmental Defense Fund also served as technical reviewers. The white papers and technical reviewer responses are available here: http://www.epa.gov/airquality/oilandgas/whitepapers.html. EPA is in the process of loading comments received from the public at the following docket: www.regulations.gov, docket ID # EPA-HQ-OAR-2014-0557.
CEQ: Revisions to NEPA Regulations not Necessary to Address Climate. On August 7, the White House Council on Environmental Quality (CEQ) rejected a 2008 petition from environmental organizations requesting that it revise National Environmental Policy Act (NEPA) regulations to prescribe how federal agencies should evaluate climate change impacts in environmental analyses. In rejecting the petition, the CEQ asserted that such revisions are not necessary because it is already working with federal agencies on such analyses, including under previously-issued draft guidance.
EPA Extends 2013 RFS Compliance Obligations. Again pointing to its delay in finalizing the 2014 Renewable Fuel Standard, EPA has simultaneously issued a direct final rule and a proposed rule to extend the deadline for compliance with the 2013 RFS to 30 days after the issuance of the 2014 RFS final rule. The direct final rule approach allows EPA to change the deadline without requiring notice and comment so long as no party submits significant adverse comments. This is the third extension for the 2013 RFS that EPA has issued. EPA has not indicated when the 2014 RFS final rule is expected. The direct final rule is available at http://www.gpo.gov/fdsys/pkg/FR-2014-08-08/pdf/2014-18568.pdf.
FERC and DOE issue Approvals for LNG Export Projects.
Freeport LNG. On July 30, the Federal Energy Regulatory Commission (FERC)—the agency with responsibility for approving liquefaction facility and LNG terminal siting, construction and operations—has given the go-ahead to the Freeport LNG export terminal in Freeport, Texas. FERC approval includes over 80 conditions to mitigate potential adverse environmental impacts. FERC issued a final Environmental Impact Statement in June. The Commission rejected calls by environmental advocates to consider the upstream environmental impacts of natural gas export, including effects of increased gas production. The Department of Energy (DOE), which has responsibility for authorizing the import and export of natural gas, had already approved the Freeport Facility’s permit to export LNG to countries with which the United States does not a Free Trade Agreement. DOE’s May 2013 export approval was conditioned on FERC approval, and DOE expanded the amount of exports allowed by 29% in November. FERC’s approval decision is available at http://www.ferc.gov/CalendarFiles/20140730193435-CP12-509-000.pdf.
Oregon LNG. The following day, the DOE issued a conditional LNG export permit for up to 1.25 billion cubic feet (bcf) per day over 20 years from the proposed Leucadia National Corp $6 billion Oregon LNG project in Clatsop County Oregon. DOE’s conditional approval is available at http://energy.gov/sites/prod/files/2014/07/f18/ord3465.pdf. For a more in-depth analysis of the natural gas export permitting process, see the March 22, 2013 VNF Alert at http://www.vnf.com/1104.
DOE Funds 13 Carbon Sequestration Projects. The DOE Office of Fossil Energy’s National Energy Technology Laboratory (NETL) announced funding for 13 projects aimed at developing new technologies and approaches for geologic sequestration of industrially generated CO2. In total, DOE will provide $13.8 million of support over 3 years, with non-federal cost sharing adding an additional $3.8 million. Awards were primarily made to research universities across 10 states and focus on “geomechanical research” and “fractured reservoir and seal behavior.” DOE’s funding announcement and project descriptions are available at http://www.netl.doe.gov/newsroom/news-releases/news-details?id=84ea18f9-58d7-4339-b08a-78eaaf71a215.
EPA Allows California to Set GHG Standards for Heavy Duty Truck Trailers. EPA has granted a request by California to issue its own greenhouse gas standards for heavy-duty truck trailers. While the Clean Air Act generally prohibits states from establishing their own vehicle standards, section 209 allows California to apply for a waiver of this rule. EPA evaluates this application and is directed to issue a waiver so long as the California standards will be at least as protective of public health; the waiver is needed to meet “compelling and extraordinary conditions” in the state; and the California standards and enforcement are consistent with certain EPA regulatory authority. Section 177 allows other states to adopt California vehicle standards in lieu of federal standards. California requested a waiver to implement its own standards for certain model year 2011 and later heavy-duty truck trailers in June 2013. While commenters objected that the section 209 waiver authority does not apply to trailers, EPA rejected these arguments and interpreted section 209 to include standards for trailers. EPA’s notice granting California’s waiver request is available at http://www.gpo.gov/fdsys/pkg/FR-2014-08-07/pdf/2014-18742.pdf.
Environmentalists Petition D.C. Circuit to Review EPA’s Final Rule Implementing PM2.5 Standards. On July 31, a group of environmental organizations filed a petition with the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) asking the court to review EPA’s final rule for implementing the 1997 and 2006 National Ambient Air Quality Standards (NAAQS) for fine particulate matter (PM2.5) (79 Fed. Reg. 31,566 (June 2, 2014)). WildEarth Guardians v. EPA, No., 14-01145. EPA released the June 2 final rule after a 2013 D.C. Circuit decision found that EPA incorrectly promulgated the standards under the general (and less stringent) provisions of subpart 1, part D, title I of the CAA, instead of under the provisions specific to particulate matter nonattainment areas found in subpart D. After re-promulgating the standards under the correct CAA provisions, EPA reclassified all areas that do not meet the standards as “moderate” nonattainment areas and gave states six years to comply with the more stringent PM2.5 standards. The states have until December 31 to submit their state implementation plans (SIPs) to bring their nonattainment areas into compliance or revise their existing SIPs to meet the new standards. In the petition filed on July 31, the environmental organizations ask the court to find that EPA erred in resetting the clock for states, arguing that the D.C. Circuit’s 2013 decision did not allow EPA to give states additional time to develop or revise SIPs to address nonattainment areas and as a result, the petition alleges, several states are now late in submitting their PM2.5 implementation plans.
Dozen States Petition D.C. Circuit to Overturn EPA Settlement Agreement on Power Plant Greenhouse Gas Rules. In 2010, EPA entered into a settlement agreement with several states and environmental groups in which the agency agreed to issue carbon dioxide emission standards for existing power plants under section 111(d) of the CAA. The agency released the 111(d) standards in a notice of proposed rulemaking on June 2, 2014. See a VNF Alert here: http://www.vnf.com/2929. On August 1, twelve (different) states filed a petition with the D.C. Circuit asking the court to invalidate the 2010 settlement agreement, arguing that Supreme Court precedent prevents EPA from regulating existing sources under section 111(d) if the agency already regulates them under section 112 of the CAA. West Virginia v. EPA, No., 14-1146. In their petition, the states cite to the 2011 U.S. Supreme Court decision, American Electric Power v. Connecticut, 131 S. Ct. 2527, in which the Court stated in a footnote that “EPA may not employ §7411(d) if existing stationary sources of the pollutant in question are regulated under the national ambient air quality standard program, §§7408-7410, or the ‘hazardous air pollutants' program, §7412.” EPA began regulating existing power plants under section 112 when it promulgated the Mercury and Air Toxics Standards rule on Feb. 16, 2012. Several of the same twelve states also previously filed a lawsuit asking the D.C. Circuit to invalidate the June 2 proposed rule. In re Murray Energy Corp., No. 14-1112 (June 26, 2014).
Power Company Enters Into Settlement Agreement with Sierra Club. On August 4, the Mississippi Power Company, a utility owned by Southern Company, announced that it has entered into a settlement agreement with the Sierra Club in which Mississippi Power will convert several coal units to natural gas; retire, upgrade or convert two natural gas units to non-fossil fuel alternatives by 2018; and provide $15 million for new energy efficiency and renewable projects within the state. In exchange, the Sierra Club has agreed to file motions to dismiss its several legal challenges and regulatory appeals against Mississippi Power’s Kemper coal gasification plant. Sierra Club also agreed not to bring any new legal action against Kemper for three years. The Kemper facility is expected to be operational by mid-2015 and will be the first commercial-scale power plant in the United States to combine carbon capture and combustion technologies with coal gasification processes.
Ninth Circuit Rejects EPA Grandfathering of Permit Requirements for Power Plant. In a decision issued August 12, the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) held that EPA does not have authority under the Clean Air Act to “grandfather” the permitting requirements for an emissions source if the agency has unreasonably delayed acting on the source’s permit application. Sierra Club v. EPA, No. 11-73356 (Aug. 12, 2014). The case concerned the agency’s issuance of a Prevention of Significant Deterioration (PSD) permit for the Avenal Energy Project, a 600 MW natural gas-fired power plant. Avenal had submitted its permit application in 2008. EPA failed to meet a statutory duty under the Clean Air Act to either grant or deny the application within one year. After the deadline passed, EPA tightened the applicable National Ambient Air Quality Standards (NAAQS) and Best Available Control Technology (BACT) requirements, including by adding requirements related to greenhouse gas emissions. Avenal filed suit to compel EPA to act on the permit application. EPA eventually issued the permit in 2011, and required the Avenal plant to meet only those NAAQS and BACT requirements that were in effect during the earlier period in which the agency was required to act on the permit. The agency argued that it possesses inherent “grandfathering” authority in situations in which the statutory mandate to enforce current standards and the statutory mandate to act on permit applications within a year come into conflict. The Ninth Circuit disagreed, holding that “[n]othing in the statute precludes EPA form enforcing current NAAQS and BACT requirements even if it unreasonably delays taking action on a Permit.” The Ninth Circuit vacated the decision to issue the permit and remanded the proceedings to the District Court.
Note that the Update is not covering Legislative Branch developments due to the Congressional recess.