No Nation Was Ever Ruined By Trade

“Canada is a country whose main exports are hockey players and cold fronts.  Our main imports are baseball players and acid rain.”

                                                                                        Pierre Elliott Trudeau

 

One of the accusations frequently leveled at environmentalists is that they are, much like meteorologists, hopelessly fickle.  People remember widespread reports in the 1970’s about the possibility of global cooling and the potential imminent onset of another ice age, when now all the talk is about global warming.  Or they recall something of Paul Ehrlich’s dire predictions that agricultural production would be incapable of supporting the world’s population, which they watched grow by more than a factor of two in concert with the development of an obesity epidemic.  Or they remember how the controversy over acid rain became such an issue between the United States and Canada, so jeopardizing the Canada – U.S. Free Trade Agreement that Prime Minister Brian Mulroney cynically wondered whether it would be necessary to go to war with the United States over the issue. 

No one talks about acid rain these days, at least not the way they used to.  But what changed? 

The impression that many in the public seem to have is that acid rain became an issue in the early 1980’s, when images of dying forests and lakes were widely circulated, and then withered away as climatologists shifted their focus to other issues.  The reality is, of course, very different.  Ever since the dawn of the Industrial Revolution, the effects of acidity in precipitation have been noted, with the term “acid rain” being coined by Robert Angus Smith in 1872.  It is associated with the emission of sulfur-, nitrogen-, and carbon-containing gases as byproducts of industrial processes that produce acidic compounds when they react with water.  And the reason it is not discussed as widely as it once was is not because the issue mysteriously vanished or because climatologists are opportunistically fickle, but because actions were taken to reduce its impact.

It was George H. W. Bush who had pledged to become the “environmental president” and who in 1990 supported what was then an innovative approach to reducing targeted emissions.  The basic idea was one  that had been studied theoretically by economists and which attempted to adapt market mechanisms as an indirect form of regulation.  Rather than dictate through strict regulation how emissions should be reduced, the Clean Air Act was amended to put those market mechanisms in place by establishing what has since become known as a “cap and trade” system.  The basic idea was to limit the aggregate sulfur dioxide emissions from different sources, but to permit allowances to be traded so that the market would be involved in determining which sources were permitted to produce emissions within the limits and at what levels.  There were many criticisms of the approach, most notably from environmentalists who fretted that it allowed large polluters to flex their economic muscle in buying permission to pollute. 

But the program is largely acknowledged to have been a success, not only achieving full compliance in reducing sulfur dioxide emissions but actually resulting in emissions that were 22% lower than mandated levels during the first phase of the program.  This was also achieved at a significantly lower cost than had been estimated, with actual costs now determined to be about 20 – 30% of what had been forecast.  The annual cost of having companies figure out for themselves how to reduce acid-rain emissions has been estimated at about $3 billion, contrasted with an estimated benefit of about $122 billion in avoided death and illness, and healthier forests and lakes.  

The success of the acid-rain program is naturally being considered as a way of addressing carbon emissions that are associated with global climate change.  Thus far, the United States has rejected a national implementation of cap-and-trade for carbon emissions, causing California to decide to implement it itself in accordance with its Assembly Bill 32, a copy of which can be found here.  Signed by Governor Schwarzenegger in 2006, the bill requires California to reduce that state’s carbon emissions by 2020 to levels that existed in 1990.  A copy of California’s plan to do so using an implementation of cap-and-trade can be found here

Part of what California seeks to do is to improve on a generally failed cap-and-trade program in Europe that began in 2005.  One of the more significant problems with the European implementation was that governments began the program with an inadequate understanding of the level of carbon emissions in their countries.  Too many allowances were issued, causing market forces quickly to force the price of carbon to zero by 2007.  In addition, a number of tax-fraud schemes and a recent theft of carbon credits stored in the Czech Republic registry have resulted in justifiable concern about the program that some worry will affect the California program. 

It is no surprise that the California program has been the subject of litigation, and last week a ruling was issued by the Superior Court in San Francisco agreeing that alternatives to a carbon-market program had not been sufficiently analyzed.  A copy of the ruling can be read here and a copy of the (much more informative) earlier Statement of Decision can be read here

There is considerable interest in the California program.  It is decidedly more ambitious than the more limited program implemented by ten states in the northeastern region of the United States and is being considered by some Canadian provinces as well as by some South American countries.  While last week’s decision certainly derails implementation of cap-and-trade in California temporarily, it is difficult to imagine that it will not ultimately be implemented after deficiencies in the studies have been addressed.  There is too much interest in it as a regulatory scheme that can have less adverse economic impact than other forms of regulation even while achieving the same overall objectives.

The Most Noble Ends

“I’ve noticed that everybody that is for abortion has already been born.”

                                                                                           Ronald Reagan, 1980

 

It is no secret that Ronald Reagan took positions that were strongly opposed to abortion, at least at the time of his Presidency.  After he won the 1980 election, the first thing he said at his first press conference was that he would “make abortion illegal,” and he maintained a strong anti-abortion stance during his years as President.  He consistently opposed not only efforts to maintain the legality of abortion procedures in the United States, but also implemented peripheral policies that sought to advance the objectives of the so-called “pro-life” movement:  school authorities were required to notify parents if their children sought contraceptives at school clinics and workers at family-planning clinics who received federal funds were forbidden to present abortion as a medical option to pregnant women.  And, of course, he was opposed to stem-cell research. 

It is thus a particular irony that since her husband’s death, the most poignant of Nancy Reagan’s few comments on policy have been to advocate support for stem-cell research.  It was in 2004, just months after Ronald Reagan’s death, that she publicly responded to President Bush’s decision to limit funding for such research, criticizing his decision and expressing her opinion that too much time had already been wasted discussing the issue.  In 2009, she publicly praised President Obama for his reversal of the Bush policy. 

But Obama’s decision to lift restrictions on federal funding for embryonic stem-cell research has not been without consequences.  I commented several months ago about the case of Sherley v. Sebelius here in which District Court Judge Royce Lamberth held that the Dickey-Wicker Amendment prohibited federal support of such research, a decision that would have had even more impact on the federal funding of stem-cell research than even the Bush restrictions.  In light of the report in Nature last week that induced pluripotent stem cells — which, unlike embryonic stem cells, can be created without the destruction of embryos — might be rejected by a patient’s own immune system, it seems valuable to review what has happened with Sherley since last August.  A copy of the Nature paper can be found here (subscription required). 

The Dickey-Wicker Amendment is one that no Congress or Administration —Democrat or Republican —can credibly criticize since it has been passed by all as part of the Labor, Health and Human Services, and Education appropriations acts every year since 1995.  It has been passed not only with the signature of Republican President Bush, but also with the signatures of Democrat Presidents Clinton and Obama, after being enacted by both Democrat- and Republican-controlled legislatures.  After the District Court found that funding of embryonic stem-cell research violated the Act and refused to issue a stay until the appellate court reviewed the decision, the Court of Appeals for the District of Columbia itself stayed the action pending its review.  On April 29, the appellate court issued its ruling, vacating the preliminary injunction and allowing federal funding of embryonic stem-cell research to continue. 

In my earlier post, I commented that as “much as I personally support investigations into the use of embryonic stem cells because of their tremendous potential in the treatment of disease, I have difficulty faulting the Court’s decision.”  I found the language of the Dickey-Wicker Amendment unambiguous and dismissed attempts to parse it differently as “contrived.”  Two of the three judges on the Court of Appeals disagreed. 

The Dickey-Wicker Amendment states that “[n]one of the funds made available in this Act may be used for … (2) research in which a human embryo or embryos are destroyed, discarded, or knowingly subjected to risk of injury or death greater than that allowed for research on fetuses in utero ….”  The reasoning of the two-judge majority is one that had been rejected in the lower court, namely to parse what the statute means by “research.”  Essentially, investigations into embryonic stem cells require two phases:  a first phase in which embryos are destroyed and the stem cells are derived; and a second phase in which experiments are performed on the already derived stem cells.  The argument accepted by the appellate court is that federal funding of the first phase is prohibited but not federal funding of the second phase since only the first phase constitutes “research in which a human embryo [is] destroyed.” 

To reach this conclusion, the majority notes the use of the present tense in the statute (“are destroyed” instead of “were destroyed”) and consults some online dictionaries for definitions of the word “research.”  I am always wary of these kinds of analysis, which can give the impression of constructing a post-facto rationale for a decision improperly made for other reasons.  Such analysis is too much like relying on the exploitation of loopholes and technicalities instead of principled application of the law as it was written.  I therefore find myself sympathetic with the dissent’s criticism that the judges in the majority have performed “linguistic jujitsu” and “taken a straightforward case of statutory construction and produced a result that would make Rube Goldberg tip his hat.”  A copy of the full opinion and dissent can be read here

Researchers are generally pleased with the ruling, but in many ways that represents a short-sighted view.  The problem with the Dickey-Wicker Amendment is especially apparent when the procedural posture of Sherley as it now stands is considered.  So far, the only issue that has been resolved is whether experiments involving embryonic stem cells are “research in which a human embryo is destroyed.”  The case now returns to the District Court for consideration whether such experiments are “research in which a human embryo … is knowingly subjected to risk of injury or death greater than that allowed for research on fetuses in utero,” a question that potentially raises a host of different arguments.  While it is possible to take other procedural actions at this point — request a rehearing en banc by the full Court of Appeals or petition the Supreme Court to hear the case — those other actions almost certainly represent too much risk to stem-cell researchers. 

As difficult as it may be to do politically, it strikes me as much easier to find a way to avoid the annual ritual of having the Dickey-Wicker Amendment added as a rider to funding bills.

JuriSnippet: Why is it Always the Cows’ Fault?

The Supreme Court heard oral arguments this week in the global-warming case American Electric Power v. Connecticut.  I previously commented on American Power here, noting the unique logic applied by the Second Circuit in holding that the rather inventive nuisance theory relied on by the plaintiffs is not barred by the political-question doctrine.  I will be stunned if the Supreme Court ultimately allows the case to proceed, especially after considering the issues raised during oral argument. 

One difficulty with the case is the arbitrary way it singles out certain power companies that contribute to greenhouse-gas emissions by relying on a theory of contribution.  Justice Scalia amusingly highlighted the point by suggesting a different arbitrary grouping: 

[Y]ou’re lumping them [the power companies] all together.  Suppose you lump together all the cows in the country.  Would … that allow you to sue all those farmers?  I mean, don’t you have to do it defendant by defendant?  … Cow by cow, or at least farm by farm? 

Cows are potential culprits because they release methane as a byproduct of their digestive processes. 

More seriously, the more likely fatal concern for the case — one that was raised by several justices in different ways — is whether a single district-court judge has the power to usurp the regulatory activity of the entire Environmental Protection Agency.  To my mind, litigation is a bizarre way to address the complex issue of climate change where we are all both offenders and victims.  Regulatory processes, which better allow for the contributions of many minds in figuring out how to balance the need to reduce hydrocarbon emissions within the structure of national and global economies, are much better suited to the issue. 

But I still can’t help but wonder:  whatever happened to blaming ducks for acid rain? 

A transcript of the entire oral argument can be found here.

What is the Army Doing with your Baby’s Blood?

Like many, I used to love watching The X-Files. The appeal of the show was not just the intricacy of the plot, which had seemingly endless layers of conspiracy, but was also because of the clever way in which factual information was interleaved with fiction, almost making me “want to believe.” One of the most memorable scenes occurs in the show’s third season in an episode titled “Paper Clip,” an obvious reference to the post- World War II “Operation Paper Clip” program by the Office of Strategic Services to sanitize the histories of Nazi scientists so that they could obtain security clearances in the United States. Mulder and Scully find themselves in an abandoned mine in West Virginia. The cavern is filled with filing cabinets, housing “lots and lots of files,” as Scully so artfully described it. Inside the cabinets are smallpox vaccination records and tissue samples collected as part of the Smallpox Eradication Program, creating a comprehensive genetic database for every man, woman, and child born since the 1950’s.

It was creepy. And it made me think about the scar I have on my left shoulder from my own smallpox vaccination.

It is hard not to be reminded of that X-Files episode when reading the complaint in the case of Jeffrey Higgins v. Texas Department of State Health Services. Filed at the end of 2010, the case relates not to smallpox vaccination but to newborn blood screening. In an effort to aid parents in the identification of genetic disease of their newborn child, every state in the United States operates a newborn screening program, and many other countries have similar programs. Such programs began in the late 1960’s and have been expanded over the decades so that virtually all of the 4,000,000 infants born in the United States each year have their heel pricked to collect a few drops of blood around the second or third day of life. Exceptions are rare.

The screening is valuable and provides parents with important medical information that may allow infants born with genetic conditions to have those conditions addressed right from the beginning of their lives. But it is not much of a stretch to understand why medical researchers might have a broader interest in the collection of these samples. Rather than being concerned with a single infant’s condition, the availability of a comprehensive database of newborn blood samples would allow a wide variety of studies to be conducted, looking at patterns of disease that could have profound implications for addressing public-health objectives.

Indeed, in a report published this week in the journal Pediatrics, a copy of which can be found here (subscription required), the authors note the increasing research interest in newborn blood samples. A contract awarded by the National Institutes of Health in 2009 was specifically to develop a “repository of dried bloodspots that is either virtual or physical and comprised of those stored by state newborn screening programs and other resources.” There are certainly positive objectives that could only be reached with access to such blood databases. But the problem is that, in the same way that I found Mulder and Scully’s discovery creepy, many people are uncomfortable having their children’s blood stored in a government database.

This discomfort is justified. There are currently few laws that limit the type of research that may be conducted and most states have no requirement to notify parents that the blood samples may be retained and used for other purposes than the screening of their newborn children. It’s probably fair to say that most never even considered what happened to the blood after collection.

The Higgins case has its origins in an earlier case filed in 2009 when five families sued the Texas Department of State Health Services for the unauthorized storage and use of newborn blood spots. A settlement was negotiated in which Texas agreed to destroy some 5,000,000 newborn blood samples that had been collected and retained since 2002. The Texas legislature also acted — not to limit retention of samples but to provide express government authorization for future samples to be retained. Higgins was filed when it was later revealed that about 8800 samples had been turned over to an Armed Forces laboratory as part of an effort to build a national mitochondrial DNA registry. The stated purpose of the database is forensic, namely to provide a tool by which missing persons may be identified and to aid in the resolution of other difficult cases.

The complaint in Higgins, a copy of which can be found here, alleges that Texas has acted deceptively: “Defendants have knowingly, deceptively, routinely, unlawfully and without the knowledge or consent of the infants’ parents, sold, traded, bartered, and distributed blood samples … to private research companies, government agencies, and other third parties.” A report published by The Texas Tribune that can be found here seems to confirm that records now released by the state “show an effort to limit the public’s knowledge of aspects of the newborn blood program, and to manage the debate around it.” The Tribune skeptically describes “oversights” in response to its requests for information, a pattern of suppressing disclosure about activities related to the blood program, and efforts to “plant” information with sympathetic lawmakers.

I have no doubt that blood databases such as are envisaged have the potential for enormous public good by allowing researchers access to a body of information that is nowhere else available. But the privacy concerns are obvious. Of course people weigh these countervailing issues differently, but the only way to settle the tension between them is by discussing them openly and candidly. One benefit of cases like the one in Texas (and a similar one that failed in Minnesota in 2009) is that public visibility over blood programs is increasing so that that discussion can take place.

JuriSnippet: Sleepy Teenagers

It is by now well known that human beings are biologically programmed to have shifts in their circadian rhythms during the teen years, resulting in teenagers being most alert during the evenings.  Yet we persist in forcing them to conform to a more adult daily pattern.  Suggestions to start school classes later in the day for that age group have often been ignored, even though the scientific evidence is clear that it would result in improved learning by better accommodating their natural biological patterns.  A study published last week in the Journal of Clinical Sleep Medicine that can be found here (subscription required) now shows that teenaged drivers have higher accident rates earlier in the morning, also attributed to forcing them to adopt a daily pattern that is biologically unnatural.  It is worth highlighting this research yet again:  sleep deprivation in teens has been linked not only to moodiness, irritability, and learning disadvantages but also to behavioral problems that are a consequence of attempting to deal with the deprivation, notably the excessive use of stimulants to stay awake during the day and the use of alcohol to fall asleep at night.  Moving school start times later in at least Minnesota, Massachusetts, and Kentucky have resulted in identifiable improvements in student punctuality and efficiency as well as a reduction in behavioral problems.