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No Nation Was Ever Ruined By Trade

May 24, 2011 By Leave a Comment

“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.

Filed Under: Climate change, Environment, Environmental Law, Legal, Local Regulations

Of Hares and Lions

March 23, 2011 By 1 Comment

Alarmed at sound of fallen fruit
A hare once ran away
The other beasts all followed suit
Moved by that hare’s dismay.

They hastened not to view the scene,
But lent a willing ear
To idle gossip, and were clean
Distraught with foolish fear.

The quotation is a translation from The Jataka, a body of Indian literature that relates to previous births of the Buddha, and dates to somewhere around the third or fourth century BC.  The story is perhaps the origin of the more modern story of Chicken Little, and tells the parable of a hare that lived at the base of a vilva tree.  While idly wondering what would become of him should the earth be destroyed, a vilva fruit made a sound when it fell on a palm leaf, causing the hare to conclude that the earth was collapsing.  He spread his worry to other hares, then to larger mammals, all of them fleeing in panic that the Earth was coming to an end. 

When radiation is discussed in the news, I often think of the story of the hare and vilva tree.  It seems that we are perpetually confronted with calls to overregulate radiation based on irrational fears of its effects on the human body.  Here I mentioned the persistent fears about radiation from cell phones and the passing of legislation in San Francisco last year requiring that retailers display radiation-level information when selling such devices, but there are many others that appear repeatedly in the news:  radiation from power lines, from computer screens, from cell-phone towers, and from any number of common household devices have at times been alleged to be responsible for causing cancer.  All of these allegations have uniformly been discredited in thousands of scientific publications over the last decades because they do not produce radiation at energies sufficient to break chemical bonds, a factor that is critical in the mechanism by which cancer is caused. 

Most recently, of course, there have been widespread reports of radiation being emitted from the damaged Fukushima Dai-ichi power plants.  There have been demands for governments to suspend the use of nuclear reactors in generating power and at least the German government appears to be acceding, with Chancellor Angela Merkel using absurd hyperbole in characterizing what is happening in Fukushima as a “catastrophe of apocalyptic dimensions.” 

There are legitimate concerns about radiation.  It does cause cancer in human beings.  Regulating our exposure to harmful radiation is an important and necessary role for governments.  But at the same time, rationality must surely prevail based on accurate scientific understanding of the mechanisms by which radiation causes cancer. 

There are a number of simple facts relevant to the debate. 

First, human beings have evolved in an environment in which we are continually exposed to radiation  — from cosmic rays, the Sun, and the ground all around us — and our bodies are adapted to exist with certain levels of radiation.  Indeed, the biological mechanisms by which we evolved as human beings are intimately related to that radiation exposure.  A wonderful graphic produced by Randall Munroe at xkcd illustrates different exposure levels and can be seen here.  One amusing fact shown in the chart is that consumption of a banana exposes a person to more radiation than living within fifty miles of a nuclear power plant for a year — and is dramatically less than the exposure from the natural potassium that exists in the human body. 

Second, there are only a limited number of viable options to produce energy at the levels demanded by modern society.  These are basically through the use of coal power generation and the use of nuclear power generation.  Other “clean” technologies that are frequently pointed to, such as wind and solar power generation, are wonderful technologies that are worth pursuing and which may one day be efficient enough to provide adequate levels of energy to replace coal and nuclear methods.  But that day is not here yet.  Those technologies are simply incapable of producing energy at the levels needed to support modern society and, in any event, have their own environmental concerns that need to be considered and addressed.  I commented, for example, on some environmental concerns associated with wind power generation here. 

Third, with the particular safety mechanisms that are in place, nuclear power generation is safer than coal generation, its only realistically viable alternative.  The xkcd chart cited above notes, for instance, that there is greater radiation exposure from living within 50 miles of a coal power plant for a year than living within the same distance from a nuclear power plant for a year.  The Clear Air Task Force, an organization that has been monitoring the health effects of energy sources since 1996, released a report last year finding that pollution from existing coal plants is expected to cause about 13,200 deaths per year, in addition to about 9700 hospitalizations and 20,000 heart attacks.  A copy of the report can be read here.  Nuclear power generation is also more environmentally responsible since it does not release climate-changing greenhouse gases in the way that coal power generation does.  When considering policy to reduce or eliminate the use of nuclear power — driven largely because the smaller number of deaths from nuclear power result from isolated high-profile events instead of the greater number of deaths that result from the persistent low-level effects of coal power generation — it is important to take these comparisons into account. 

I want to offer a final comment about radiation hormesis, which was recently raised most prominently by political commentator Ann Coulter in the context of the Fukushima event, although it has also been raised by other, more scientifically reliable, sources.  For example, Bob Park, a respected physicist who comments regularly on science and government policy, raised it in the context of a recent study that he interprets as showing that “Chernobyl survivors today suffer cancer at about the same rate as others their age [and that t]he same is true of Hiroshima survivors.”  His remarks can be found here.   Radiation hormesis is an effect in which low-level exposure to radiation produces beneficial effects and that has apparently been observed in laboratory settings.  It has not been convincingly confirmed in human beings and the exposure rates to produce the effect are, in any event, low.  My own view is that pointing to radiation hormesis as a positive argument for the use of nuclear power is counterproductive.  The effect is too speculative and there are too many other — stronger — arguments in its favor. 

The Jataka tells us that when the panicked masses led by the timid hare met a lion, it was he who restored their sensibility.  He brought them to their senses by looking coldly at the facts and determining that the earth was not breaking apart; it was only the misunderstood sound of a vilva fruit.  Let’s be lions, not hares. 

Filed Under: Environment, Environmental Law, Federal Regulation, Legal, Physics, Scientific

Nature Cannot Be Fooled

December 14, 2010 By Leave a Comment

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.  

Filed Under: Climate change, Constitutional Law, Environment, Environmental Law, Legal, Scientific

Grousing About Politics and Science

September 14, 2010 By Leave a Comment

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.

Filed Under: Biology, Environment, Environmental Law, Federal Regulation, Legal, Scientific

Who Sows Wind Will Harvest Storm

August 1, 2010 By 1 Comment

Wind Energy.  It’s great for the environment, right?  No greenhouse-gas emissions.  No radioactive waste to dispose of.  Completely renewable so there’s never any risk at all of exhausting its supply.

Even in this era of seemingly endless acrimony among the political parties of the United States, there is actually strong agreement that wind energy is a good thing, for all of the reasons cited above and many others.  In a survey conducted by the American Wind Energy Association in April, 84% of Republicans, 93% of Democrats, and 88% of Independents expressed their belief that increasing the amount of energy the U.S. produces from wind is a good idea.  That kind of agreement is just unheard of these days.

So why have environmental groups taken to filing lawsuits to block the development of wind farms?  That’s what they want, isn’t it?  To promote the use of “green” forms of energy production?  Are they just a bunch of tree huggers who look for an excuse to oppose everything just because they like to be contrary?  Or do they have a point?

The environmental concerns about wind farms arise because the motion of the turbines results in the death of many flying animals, notably birds and bats.  Most of the deaths occur because of collisions with the turbines, but they can also occur from a condition known as barotrauma.  In the same way that human divers can develop the bends when they decompress by returning to the surface from sea depths too quickly, barotrauma occurs when the motion of turbine blades at wind farms create low-pressure zones that can cause the lungs of small animals to hemorrhage.

A legal basis for challenging the development of wind farms from an environmental standpoint arises particularly when the affected animals have a protected status under the Endangered Species Act.  The first such case was Animal Welfare Institute v. Beech Ridge Energy LLC, which concerned the Beech Ridge Wind Energy Project along the Appalachian mountain ridgelines in West Virginia.  The project was budgeted at some $300 million and expected to produce 186 megawatts of power, enough to satisfy the energy needs of 50,000 households in a typical year.

But the site was in the migratory path of the tiny Indiana bat, a species of bat that weighs only a quarter of an ounce.  The Indiana bat has been designated as an endangered species since 1967, and its population has since that time reduced by about 50% despite that designation.

The court, in an order issued December 8, 2009, allowed the completion of 40 turbines whose construction had already begun, but ordered that those turbines could only be operated during the hibernation phase of the Indiana bat, a period of about three and a half months from November to March each year.  If the turbines are to be operated at other times of the year, a permit is required from the Fish and Wildlife Service after it conducts a study on the impact of the wind farm on the bats.  The process for obtaining a permit is currently ongoing; the Fish and Wildlife Service issued a Request for Information last week as one of the first steps in its investigation.

Subsequent to the decision, a settlement was reached between the parties that allows for construction of an additional 27 turbines, provided they are only operated at times of the day and year when Indiana bats are not expected to be flying.

In many ways, this result seems harsh.  There are many calls to develop alternative forms of energy production and wind energy is an important one of these.  And the operation of a large project that would supply energy for tens of thousands of households has been constrained to accommodate the schedule of a tiny animal that is rarely observed.

But this was just the first of what appears to be quickly turning out to be a large number of lawsuits challenging wind farms because of their impact on endangered species.  Last month, a lawsuit was filed to stop the Cape Wind Project, an offshore wind farm planned in Nantucket Sound off Cape Cod in Massachusetts.  This would be the nation’s first offshore wind farm, but the lawsuit alleges that it would endanger piping plovers, a protected species of bird, as well as endanger whales.  Threats have been made to bring a lawsuit to stop the Garrett County wind project in western Maryland because of its impact on both the Indiana bat and the Virginia big-eared bat, another protected species.  The Radar Ridge Wind Project in the State of Washington may be in jeopardy because of concerns about the migration patterns of the protected marbled murrelet.  Wind projects in California are coming under increasing scrutiny because of deaths of whooping cranes at wind farms, one of the first birds to be listed as endangered under the Endangered Species Act.  And there are many other examples gaining attention in the wake of the Beech Ridge decision.

There are other legal concerns related to wind farms and which have resulted in lawsuits, this time because of their impact on human beings.  Noise from turbine motion is a common source of the complaints that lead to lawsuits.  But even more interesting is turbine shadow flicker, an effect caused by the rotation of the turbines that produces a strobe effect when sunlight shines along a path that includes the turbines.  Shadow flicker can cause eyestrain, headaches, nausea, and even induce epileptic seizures in some people.

But I will leave the discussion of this aspect of wind-energy lawsuits for another day.

Filed Under: Biology, Environmental Law, Legal, Scientific
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