Texas May Introduce Bill to Blacklist Anti-Fossil Fuel Companies

Texas Lt. Gov. Dan Patrick said that one of his “legislative priorities” for this year is passing a bill to protect the fossil fuel industry, by blacklisting businesses. In a public policy forum on Thursday sponsored by a business group, Patrick said the potential McCarthy-esque rule could be modeled off a disastrous pro-Israel bill he pushed in 2017.

“I think it will pass easily,” Patrick told the crowd. Energy companies, Patrick said, “are being treated a little bit like the state of Israel…That is what is happening in the oil and gas industry.” (Another thing Patrick has decided needs protecting, apparently, is the national anthem: He’s stated that a piece of legislation called “the Star Spangled Banner Protection Act” is another one of his priorities for this session, in an effort to combat Dallas Mavericks owner Mark Cuban.)

In the wake of Trump’s exit, fossil fuel interests are regrouping to try and defend themselves at the state level, and Texas is enthusiastically leading the charge. In January, Gov. Greg Abbott signed an executive order mobilizing the state to “use all lawful powers and tools” to challenge federal climate action, while this week, the state announced a special Texas Defense Task Force to protect the helpless fossil fuels, we guess. The Task Force “is prepared to aggressively pursue every legal avenue to slow down and stop this alarming onslaught of executive orders and defend the hundreds of thousands of good-paying jobs and our economy at large,” Texas Land Commissioner George P. Bush, son of Jeb!, said in a statement.

The idea of targeting businesses taking climate action didn’t exactly come out of the blue. The Texas Public Policy Foundation, a think tank that has long pushed the most extreme denier views (including the idea that coal was responsible for ending slavery) held a roundtable discussion in January on “how the emerging energy discrimination movement among banks and investment firms threatens both energy businesses and the foundations of capitalism itself.” Alaskan Gov. Mike Dunleavy was a guest speaker, who himself wants to pass legislation similar to the forthcoming Texas bill in his state.

Republicans have increasingly been adopting language painting the industry as victims. That includes describing banks not funding Arctic extraction as “discriminatory.” Even more inflammatorily, the Trump’s secretary of energy invoked redlining, a racist practice of denying loans and investments in Black communities, when talking about how banks are increasingly divesting from fossil fuels.

“We didn’t want banks redlining certain parts of the country,” former Energy Secretary Dan Brouillette told Axios last May. “We don’t want that here. I do not think banks should be redlining our oil and gas investment across the country.”

But even though the theoretical legislation seems like just the next move in Texas’s battle against climate regulation, the move would be “really out of step with modern Texas,” Luke Metzger, the executive director of Environment Texas, said. “It seems like the lieutenant governor is shooting himself in the foot with this. This could be counterproductive and could be a black stain on Texas.”

Metzger pointed out that even as Abbott was railing against the Biden administration’s moves on climate, he made an appearance on CNBC’s Squawk Box in December pitching Texas as a business-friendly environment, and promoted Texas’s strong wind and solar power as potentially being able to help meet businesses’ carbon-neutral goals.

The possible legislation, Patrick said Thursday, would be modeled after HB89, a controversial 2017 law intended to prevent Texas from doing business with entities that support the Boycott, Divestment, Sanctions, or BDS movement for Palestine. While lawmakers insisted that the bill was only intended to impact larger companies, four individuals who lost opportunities because of the ban—two students, a freelance writer, and a teacher—took the state to court. In 2019, a federal judge ruled the ban unconstitutional and temporarily blocked the state from enforcing the law for two years. After the ruling, lawmakers hastily rewrote the legislation to make it apply only to companies with more than 10 employees and contracts with the state worth more than $100,000.

“They took an extremely widely applicable law and made it not apply in as many places, but when it does apply it’s still unconstitutional for sure,” said Thomas Buser-Clancy, a senior staff attorney for the ACLU of Texas, which brought the suit challenging HB89 on behalf of the four individuals impacted. “What you now have is an unconstitutional law on the books that has a more narrow implication.”

Texas blacklisted AirBnB after it announced it would remove listings in the occupied West Bank, though the company backtracked after conservative outrage spun up. The Texas BDS law has only led to 10 companies being blacklisted, but that’s not terribly surprising; there aren’t exactly scores of international banks or high-powered firms racing to make a statement on Palestine. But the forthcoming law may be different because fossil fuel divestment isn’t just moral, it’s also a strong business decision.

“The fact that Dan Patrick is floating this [hypothetical] law and is using BDS as a guidepost really shows the danger of encroaching on free speech,” Buser-Clancy said. “Texas is now saying it wants to limit individuals’ ability to boycott fossil fuels…If this law passes, what other laws might they try to enact under the same guidepost?”

Until we’ve got the text of a possible bill at hand, it’s hard to say how strict a potential law would be in terms of cutting off the potential for a company to do business with Texas or how broad or specific the language would be. Abbott has been trying to make Texas into a tech hub. Would an anti-fossil-fuels boycott bill cut off the state from doing business with Google, which has vowed to use only carbon-free energy by 2030? Would the state cut off every major bank in the U.S. because they have divested from Arctic drilling in the name of the planet? Or would the state take a strict approach, and just not do business with entities that have divested entirely from fossil fuels, like the world’s largest public bank and three of New York City’s pension funds?

“So many of our top corporations, including Fortune 500 companies, are in the process of setting carbon neutrality goals or investing more in clean energy,” Metzger said. “I have to think this is going to send a bad message to the mainstream companies in America making climate commitments and who may now be being told they aren’t going to be able to do business in Texas.”