As Water Inures Its Strokes on the Stone (Part 1)

Anyone who has gone through the painful task of cleaning a deceased parent’s home knows how strongly it resurrects countless emotions.  It is as though every item in the house has been imbued with the power of some memory or other that resurrects feelings thought to have been buried years before.  And sometimes there are surprises, pearls waiting patiently to be discovered within the collected sand of a life.  

When Eve Dray spent her evenings in 1961 going through her deceased father’s effects at his home in Cyprus, she surely did not expect to uncover a cache of field notes from an expedition to what has at times been described as the most remote place on earth.  It is not quite accurate, of course, but it can certainly seem so when standing at Maunga Terevaka, the highest point on Easter Island.  From there, one has a 360° view of the Pacific Ocean, extending endlessly in every direction.  Indeed, the indigenous people of Easter traditionally called the place where they lived Te pito o’ te henua — the navel of the world.  

Katherine Routledge (1866 - 1935)

It is almost easy to imagine the curious expression Eve must have worn as she reached into the cupboard under the large bookcase and pulled out a horde of papers that had been prepared decades before by Katherine Routledge.  Anyone who has done any scientific research regarding Easter Island — and there are so very many things to study there — knows the name of Routledge.  Her expedition to the island in 1914 – 15 with her husband William Scoresby Routledge has been described as being of “historic magnitude” in developing an understanding of the archaeology and ethnography of Easter Island.  She was the first woman archaeologist to work in Polynesia and part of the mystique of her expedition is the remarkable persistence she and her husband showed in making in happen:  unable to find a ship to take them from England to Easter Island, they had one built at their own expense and hired their own crew.  

When Routledge returned to England after her expedition, she published a book for a general readership called The Mystery of Easter Island:  The Story of an Expedition, promising that she would follow it with a “more scientific” account of her explorations.  That later book was never written, even though she would live for another 15 years or so, and there has been some suggestion that part of the reason is that she may have suffered from paranoid schizophrenia.  Thinking her original notes had been lost, researchers relied for decades only on the accounts in her popularized book.  But they evidently followed her husband, who moved to Cyprus after she died and eventually bequeathed his house to Eve Dray’s father.  

Easter Island is a place of considerable scientific interest.  Its massive moai, whose construction occupied virtually all of the island for a period of time, have attracted the interest of archaeologists.  They have sought to understand not only their purpose but also how they were moved into place around the circumference of the island — and why the people of the island ultimately toppled every single one of them.  Its birdman competition, in which the ruler of the island was decided by a race to obtain the first tern egg of spring from one of the rocky islets off its coast, has fascinated ethnologists.  They identify it as an almost unique example in the world where political ascension was determined by an athletic competition.  Frustrated linguists have studied the rongorongo script, inscribed on wooden staffs and tablets in an unusual reverse boustrophedon format, and remain to this day unable to decipher it.  Environmentalists still point to the cautionary example of Easter Island as a lesson for us all, noting how its inhabitants overused its resources - they cut down every tree on the island for access to wood, and thereby precipitated a decimation of their population.  

The Rongorongo script

While almost a scientific playground, Easter Island has also sadly had a history of repeated exploitation by outsiders who were emboldened by the same remoteness that is paradoxically also responsible for much of the island’s unique interest.  There were the slaver raids by Peruvian blackbirders that resulted in the introduction of near-annihilating smallpox.  There was the effective conquest by Jean-Baptiste Dutrou-Bornier, a French thug who swindled the preliterate population by “buying” their land with instruments they did not understand and using his rifle as motivation for those who may have been reluctant.  He would come to rule Easter Island for a time, more as a slaver than as the “governor” he fancied himself to be, being deposed only years later when he began to kidnap prepubescent girls for his personal pleasure and was consequently murdered.  His acquisition of the land in this way has affected its ownership for generations according to the application of the laws of property.  There was also the shocking incarceration – literally – of an entire people when a wall was built to enclose the Easter Island population within their small town, isolating them from their ancestral lands to prevent their interference with development of the island as a sheep ranch. 

All of this history is relevant to understand the events there of the last few months.  Its small size and remote location still to this day limit how much the rest of the world hears of Easter Island.  In 1888, the island was annexed by Chile in a political move that seems mostly motivated by Chilean desires at the time to have a place on the same stage as European nations by copying their imperialism.  Relations between Chileans and the native Rapa Nui of Easter Island have always been uneasy and tha friction came to a recent head in August 2010.  Members of the Hito clan occupied the Hanga Roa hotel, claiming an ancestral property right they claim supersedes that of the private Chilean owners.  In the six months or so since, the conflict has escalated, at times turning violent in confrontations between the squatters and the Chilean military.  

In the next part of this post, to be published in a couple of days, I want to discuss the 2007 U.N. Declaration on the Rights of Indigenous Peoples, of which Chile is a signatory, to discuss the impact of the conflict on this scientifically important island.  A rally and protest are planned in San Francisco on Wednesday, March 16 before the Chilean Consulate.  Those wishing to read more about the conflict (from the perspective of the indigenous Rapa Nui) can do so here.

Nature Cannot Be Fooled

Oh, the trouble that tiny Rhode Island can cause. 

During a period of time in 1841 and 1842, there were two governments vying for legitimacy in Rhode Island, the one that had been in existence from the time of the Declaration of Independence and another led by Thomas Wilson Dorr, who objected to the state’s voting requirements.  Originally, Rhode Island allowed only landowners to vote.  It was an acceptable enough system in a territory where almost all of the citizens were farmers.  But with increased industrialization and the migration of many to cities, the fraction of people eligible to vote became progressively smaller, concentrating power in the hands of a land-owning elite.  No women or blacks were eligible to vote and by the early 19th century only a minority of white men possessed that right. 

Unable to change the structure internally, people took matters into their own hands, prompting the Dorr Rebellion.  Rival constitutional conventions were held, leading to parallel elections, and to the separate election of both Dorr and Samuel Ward King as governor of the state.  On June 24th, 1842, the King government declared the state to be under martial law.  Martin Luther, who sided with Dorr, was alleged to be engaged in traitorous activity and the King government ordered him arrested.  Luther Borden effected the arrest, breaking into and searching Martin Luther’s home, and damaging his property in the process. 

Martin Luther sued, alleging trespass by Luther Borden.  Borden defended himself, claiming he was acting in his official capacity and with the authority of government.  Martin Luther countered, asserting that the King government was illegitimate. 

Who was to decide which government was the legitimate one?  The only possibility was the Supreme Court of the United States, which was confronted with the trespass claim in the famed case of Luther v. Borden.  It was in this case that the Supreme Court first articulated the “political-question doctrine.”  A copy of the Court’s decision can be read here.  Essentially, this doctrine asserts that there are some controversies that are simply not within the legitimate purview of the judiciary to decide.  The doctrine is not firmly defined and it has shifted in application over the years.  But it is not simply that an issue is controversial that can invoke the doctrine — after all, the Court did not hesitate to make rulings on abortion, racial desegregation, affirmative action, the death penalty, and even the infamous counting of Florida votes ten years ago — an issue that at first blush might seem to be the paradigm of a “political question.”  Rather, the federal courts must decline to make decisions in cases particularly where they lack sufficient standards to apply. 

The political-question doctrine is centrally at issue in American Electric Power v. Connecticut, which the Supreme Court agreed to hear last week.  The case is one of four prominent climate-change cases that relies on the legal theory of “public nuisance.”  A “nuisance” results when there is a substantial interference with the right to use and enjoy land that results from the defendant’s activitity, with a “public nuisance” being an unreasonable interference with a right common to the general public.  The interference need not be intentional, but can arise from negligence. 

The American Power case was brought against a number of power companies by several states — including pipsqueak troublemaker Rhode Island — as well as some private land trusts.  Application of the nuisance theory is the same in this case as it has been in the others:  The defendants engage in an activity that releases greenhouse gases into the atmosphere, impacting the climate and resulting in an interference with the public’s use and enjoyment of land. 

The theory is tidy and almost certainly correct in the abstract. 

But even so, every district court that has been presented with this nuisance theory has determined that it is not something the judiciary can rule on because it is a political question.  The reasons for doing so are, to me, compelling.  The devil is indeed in the details. 

Begin by considering the enormous difficulties involved in sorting out causation.  The Earth’s climate system is extremely complex:  it took roughly 100 years since Svante Arrhenius first quantified the relationship between temperature and atmospheric CO2 in 1896 for climate scientists to settle on a consensus that anthropogenic release of greenhouse gases is warming the planet.  And this factor does not operate in isolation, with a number of other natural influences having both warming and cooling impacts.  In addition, at least some of the greenhouse gases generated by humanity are absorbed by the oceans and by vegetation.  Indeed, it was once thought by many climate scientists that the oceans would provide a sufficient sink to accommodate any level of greenhouse-gas emissions that humans could conceivably produce. 

The result is a system in which it is truly impossible to correlate particular acts of generating CO2 or other greenhouse gases with particular climate events.  It is very much like Philip Merilees’ concoction of the “butterfly effect,” in which we recognize that the chaotic nature of weather might allow the beating of a butterfly’s wings in Brazil to set off a tornado in Texas.  But even with such an understanding, it is inconceivable that we could ever identify the butterfly who caused the problem.  Is the answer to condemn every winged insect on the planet? 

Those bringing these nuisance-based lawsuits accordingly rely on a theory of “contribution,” claiming that there must be liability on the part of power companies, petroleum companies, etc. because they contribute to the problem.  There is no question that they do.  But so does almost every single one of the 7 billion people on the planet as they engage in activities that contribute to the generation of greenhouse gases.  It is surely possible to single out power companies and assert that they contribute more than an individual like me.  But it is equally possible to single out any large group of people:  the residents of Los Angeles, Chicago, and Houston, say, or perhaps all people who choose to have children.  These large groups contribute greatly to the warming issue. 

It is, moreover, simplistic to suggest that power companies and petroleum companies should not engage in their business.  They are far too important to maintaining the standards of living that citizens expect and for providing a critically important sector of the world’s economies.  It seems plainly unwise to leave it to a small number of judges to decide how to balance the intricate interconnection of these issues — the risk to the environment, the effects on human health, the socioeconomic impacts, and many others.  It is better left to the policy determinations made by the legislative and executive processes of government, as imperfect as those may also be. 

Currently, the decision of the two judges on the Second Circuit Court of Appeals, who reversed the district court’s determination that the issue is a political question, stand alone in asserting that the judiciary may apply tort nuisance principles to the issue of climate change.  Their reasoning can be found here.  When I commented some months ago on the Comer v. Murphy Oil case in the Fifth Circuit (see here), I suggested that clear guidance from the Supreme Court would soon be needed.  I, for one, am eager to see what they decide.  

Grousing About Politics and Science

When the United States and France completed the Louisiana Purchase in 1803, it was unclear exactly how much land was being exchanged.  President Thomas Jefferson accordingly commissioned the Corps of Discovery to explore the territory, choosing his friend Meriwether Lewis to lead the expedition.  Over a period of some two and half years, Lewis and his partner William Clark were to conduct the first overland expedition of North America to the Pacific coast and back. 

During their travels, they established relationships with some of the native peoples, notably eliciting the aide of the Shoshone woman Sacagawea to act as a guide and interpreter.  They were to provide a significantly improved understanding of the geography of the northwestern United States and to document 122 previously unknown species of animals and 178 new plants and trees. 

It was at the mouth of the Marias River in what is now Chouteau County, Montana that Lewis and Clark encountered the sage grouse on June 6, 1805.  Their native-american companions told them it was a common bird, and indeed their journals record further encounters throughout much of the region.  Estimates are that sage grouse numbered somewhere around 16 million in population around the time of their documentation by Lewis and Clark.  Today, it has only a fraction of that population — somewhere about 250,000 — and efforts to include it on the Endangered Species List have become emblematic of what many scientists see as political encroachment on scientific independence. 

Earlier this year, Secretary of the Interior Ken Salazar announced that the sage grouse “warrants” inclusion on the List but that it was “precluded by the need to address higher priority species first.”  A very different decision was made under the Bush administration in 2005 when Deputy Assistant Secretary Julie MacDonald ruled against its listing.  That decision was one that highlighted some of the most egregious interference with science for political reasons in recent memory.  In Western Watersheds Project v. United States Forest Service, the Idaho District Court described the conduct of the Deputy Assistant Secretary as “inexcusable,” finding that “[h]er tactics included everything from editing scientific conclusions to intimidating [Freedom and Wildlife Service] staffers.”  The court’s ruling, which can be found here, documents repeated and persistent “attempts to improperly alter the ‘best science’ findings” as part of a campaign to achieve “preordained” political objectives.  Similar allegations have been leveled against her by scientists in numerous other cases involving decisions not to list certain species. 

It is perhaps no surprise then that the release of a draft policy on scientific integrity by the Interior Department is being viewed with considerable skepticism by scientists.  Those scientists remember well when President Obama issued his Memorandum on Scientific Integrity on March 9, 2009 calling for the development of “recommendations for Presidential action designed to guarantee scientific integrity throughout the executive branch” within 120 days.  A copy of his Memorandum can be found here.  It was still the honeymoon period for the new administration and at the time, the apparent commitment was heralded by many scientists as a welcome change from perceived attempts by the prior administration to suppress scientific knowledge and conclusions for political purposes.  But that enthusiasm has steadily given way to frustration and disappointment as time still continues to pass more than a year after the President’s deadline without any recommendations or plan being developed. 

The release of the Interior Department’s draft policy a couple of weeks ago is the first real manifestation of the executive branch’s implementation of policy directed to scientific integrity.  Most scientists who have read it believe it falls short.  Of particular concern is language that appears still to allow political appointees to alter scientific documents, exactly what was happening in considering additions to the Endangered Species List by the prior administration:  “During the conduct of Departmental business, decision makers may be involved in editing of documents for clarification of major points to aid decision making.”  But more broadly, the policy is seen as having insufficient provisions for preventing other types of political interference in science.  Another provision, for example, warns that “[p]ublic release of a scientific product without the required level of review or without appropriate disclaimers could be considered misconduct.”  There is concern that the normal circulation of material by scientists among their peers for scientific evaluation could be considered misconduct, particularly since little guidance is given by the policy as to when dissemination is “premature.” 

A copy of the draft policy can be read here

To be fair, the policy has been released in draft form as part of the normal rule-making procedure that is followed by Executive agencies so that comments can be collected from the public and considered prior to its actual implementation; the comment period is set to expire on September 20, 2010.  That procedure is an important part of the process, allowing the public at large to identify and articulate deficiencies in proposed policies or rules.  Proposals can sometimes be modified significantly in light of the comments that are provided, and the hope is that that will happen in this instance.  But even if the major concerns are addressed, scientists will still eagerly await the more broadly applicable recommendations promised by the President in the ambitious early days of his tenure.