The story starts in the usual eco-group takes on industry way with the NC buying “out area fishing boats and licenses in a fairly extreme deal — forged with the local fishing industry — to protect millions of acres of fish habitat.” But the NC put the fleet back to work using a commons model.

Bringing information technology and better data collection to such an old-world industry is part of [...]]]> Imagine you are a fisherman and haul in a catch with fish that are protected and that would get you in trouble. Quick! Hide it! Deny it! etc., right? Nope. The Times reports that a partnership among fishermen and the Nature Conservancy meant that this fisherman reported the catch so the overall area could thrive.

The story starts in the usual eco-group takes on industry way with the NC buying “out area fishing boats and licenses in a fairly extreme deal — forged with the local fishing industry — to protect millions of acres of fish habitat.” But the NC put the fleet back to work using a commons model.

Bringing information technology and better data collection to such an old-world industry is part of the plan. So is working with the fishermen it licenses to control overfishing by expanding closed areas and converting trawlers — boats that drag weighted nets across the ocean floor — to engage in more gentle and less ecologically damaging techniques like using traps, hooks and line, and seine netting.

The conservancy’s model is designed to take advantage of radical new changes in government regulation that allow fishermen in the region both more control and more responsibility for their operating choices. The new rules have led to better conservation practices across all fleets, government monitors say.

The challenges here were that “There wasn’t scientific information at that level that could match the fisherman knowledge.” Fisherman did not trust the NC, but when the NC bought some of the boats or permits from those who wanted to leave the industry, “The fishermen soon divulged which nurseries and rock formations needed to be protected and which areas where mature fish congregated should be left open. What resulted was a proposal that included large areas of closings — nearly 4 million acres — that most fishermen thought was fair. It was adopted easily by the fishery council in 2006.”

Now let’s look at the data magic. The NC uses a system called eCatch. According to the Times, fisherman were not sure about this reporting requirement “But fishermen have come to believe that the data will show patterns — for example, high catch rates of certain species after full moons along the edge of the shallow water shelf in July — that will help them all predict the danger zones. Independent fisherman have joined the risk pool and eCatch system because they see benefits. By handing out free iPads, the conservancy made the posting of real-time results almost effortless.”

And, it seems other areas are emulating this approach. “In Massachusetts, scallop fishermen, with the help of the University of Massachusetts, have developed a similar reporting program to avoid pulling in endangered yellowtail flounder.” Could lobster fishermen be far off from this method? Afterall at least with other seafood efforts the new method “yields profits and hardly any bycatch” (the term for catching sensitive species which can lead to market problems). And in what looks like another aspect of this commons comedy, in one case a family that sold its permit and leases it back at fair market value as long as the method “continues to use Scottish seining, which is far gentler to the ocean bottom than trawling is.”

Rather than the fight between nature groups and industry the fisherman offered a different picture: “The Nature Conservancy had identified that the small family boats were sustainable, and they wanted to help,” Mr. Fitz said. “We recognized that we needed help negotiating this increasingly confusing path into the future.”

Recent revelations in Japan suggest just how important an understanding of accounting may be.

In a post in late March, I related that many Japanese were willing to give the benefit of the doubt to TEPCO, the operator of the damaged Fukushima Dai-Ichi nuclear plant, in the days following the March 11 earthquake and tsunami. The most common excuse in the language, “Shikata ga nai” (“It can’t be helped”), struck most people as apposite, given the historical rarity of 9.0 earthquakes and 15-meter killer waves.

By now, the situation has almost been integrated into the everyday, at least for those of us far from the reactor. People speculate whether the government nuclear agency’s lead spokesperson is wearing a wig, and a cable news channel has a [...]]]>

Recent revelations in Japan suggest just how important an understanding of accounting may be.

In a post in late March, I related that many Japanese were willing to give the benefit of the doubt to TEPCO, the operator of the damaged Fukushima Dai-Ichi nuclear plant, in the days following the March 11 earthquake and tsunami. The most common excuse in the language, “Shikata ga nai” (“It can’t be helped”), struck most people as apposite, given the historical rarity of 9.0 earthquakes and 15-meter killer waves.

By now, the situation has almost been integrated into the everyday, at least for those of us far from the reactor. People speculate whether the government nuclear agency’s lead spokesperson is wearing a wig, and a cable news channel has a daily segment, “Kyou no genpatsu kiiwaado” – “Today’s nuke reactor keyword”. Any goodwill toward TEPCO has long since evaporated, thanks to its management’s sloth in apologizing, its spokespersons’ frequent misstatements and evasions in daily press conferences, and sympathy for the thousands displaced from the evacuation zone, their livelihoods derailed (and their pets and livestock reluctantly left behind to starve, an aspect of the story that has mobilized many activists here). But it turns out that even the initial goodwill was probably misplaced.

Last week, word came out that when Fukushima Dai-Ichi was being planned in the 1960s, it was originally proposed to be sited 35 meters above sea level. However, TEPCO reckoned that this would result in unduly high recurring costs during the lifetime of the plant. In particular, it would increase the expense of pulling sea water up to the plant for use as a coolant, and would increase the cost and complexity of conveying fuel, equipment and other items to and from the small seaside port built to service the plant.

TEPCO’s planning whizzes hit on the idea of digging away 25 meters of soil – possibly a bigger up-front fixed expense, but many decades’ worth of reduced recurring expense. Only “possibly”, because the plant’s foundation had to be anchored to bedrock, so the dig made this simpler, too. Those top 25 meters were mudstone and clay, which was felt not to be so stable in a quake if the plant were built on top of it. The story quotes Masatoshi Toyoda, then a TEPCO VP for planning and now age 87, as saying it seemed a matter of “cost efficiency”. He also suggests that there may have been a way to have built much of the plant within the mudstone layer, so that it could have been safe against both earthquake and tsunami. But, he admits sorrowfully, tsunami risk wasn’t considered at all.

The decision to dig left the facility at a 10-meter elevation. In 2011, it was hit by a 15-meter tsunami. The rest is history.

Reaction so far has been muted. The announcement of this 40-year-old bit of history came in the middle of this year’s 10-day “Golden Week” period of national holidays, when fewer people than usual are paying attention to the news. Even more artfully, it was released on a “press holiday,” May 5, which meant that no newspapers were published the next day. It seems to have been carried by very few major media outlets – to my knowledge, only TV Asahi and the Tokyo Shimbun website. (You can find a rather daffy machine translation of the Tokyo Shimbun story into English here, but running the Japanese version yourself through Babel Fish will give you a more coherent read.). Both the English-language Daily Yomiuri and its parent, the conservative and influential Yomiuri Shimbun, entirely omitted to mention it when they resumed publishing. You won’t find it in this week’s edition of Nikkei Weekly, either. If my mother-in-law hadn’t been watching the morning show on TV Asahi that morning and complained about it over lunch, I might never have heard about it.

TV Asahi contrasted Fukushima Dai-ichi with another nuclear plant more than 100 kilometers north, within the city of Onagawa, Miyagi Prefecture. At that location, the tsunami reached only 13 meters. The difference is a big one, since the Onagawa plant, run by Tohoku Electric, is situated 15 meters above sea level. According to media reports, it was slightly damaged by the quake per se, but shut down safely. (My wife and I attempted to drive to this plant the next day – its PR center is easy to find on most local road maps – but were prevented by police from getting onto the mountain road that leads to it. What we discovered after our forced U-turn was unforgettable and harrowing; I’ll describe that in a future post.)

In a related development, Prime Minister Kan earned rare praise last week when he ordered the closing of the Hamaoka nuclear power plant, because of its location on a major geological fault. Except that, despite what editors around the world wrote in their headlines, he didn’t order, exactly – he doesn’t have the legal authority to do so. Asked, was more like it.

The plant is located not far from Mount Fuji in Shizuoka Prefecture, west of Tokyo — and considerably closer to Tokyo’s 30 million residents than Fukushima is. It’s run by Chubu Electric Power Co., a/k/a ChuDen, whose board of directors was unable to decide at a meeting Saturday whether to grant the Prime Minister’s request. That there is an estimated 87% likelihood of an 8.0 or greater earthquake near the fault within the next 30 years apparently weighed less in their esteem than the loss of around ¥8.3 billion (roughly, $104 million) that was projected to result from a shut-down — though in a move that would make any American PR flack proud, jobs were also gravely mentioned. ChuDen’s board scheduled another meeting for Monday afternoon, leaving the nation to wonder whether the directors would kindly acquiesce. Eventually, they did.

Tokyo has already begun to sweat under what looks to be an early tsuyu – the hot, muggy, rainy season that makes US East Coast summers seem mild. We’re also being told to expect a repeat of last summer, which set the historical record for number of consecutive days above 30°C (86°F). (This is to some extent self-inflicted: not just global warming, but a heat-island effect made worse by the pell-mell construction of high-rise towers near the Shinagawa harbor-front, cutting off breezes from much of the city.) Thanks to the Fukushima situation, available power this summer is expected to fall at least 20% below usual demand. Businesses all over town have voluntarily dimmed their lights, turned off their escalators and set their air conditioning to 27°C (a bit more than 80°F) – including in crowded rush-hour subways and at the gym where I (occasionally) work out.

Should we also have to sweat out the decisions of boards of private companies on matters of public safety? The Tokyo region’s current predicament suggests that a world with insufficient power to regulate business is much closer to an inferno than to a paradise.

Picture credit: Tokyo Shimbun.

But nature does still pose a few threats to us. Reacting to a recent bear attack in Yellowstone, the American Family Association’s Director of Issues Analysis has stated that “there is no number of live grizzlies worth one dead human being. If it’s a choice between grizzlies and humans, the grizzlies have to go. [...]]]> Recently American thought on ecology has taken a turn in a religious direction. And it’s not toward that boring old talk about a sustainable creation. Rather, a contender for the House Energy and Commerce Committee chair has “maintain[ed] that we do not have to worry about climate change because God promised in the Bible not to destroy the world again after Noah’s flood.” Glad that’s settled.

But nature does still pose a few threats to us. Reacting to a recent bear attack in Yellowstone, the American Family Association’s Director of Issues Analysis has stated that “there is no number of live grizzlies worth one dead human being. If it’s a choice between grizzlies and humans, the grizzlies have to go. And it’s time.” Sharks, rattlesnakes, scorpions, pit bulls, and even golden retrievers had better watch out!

Perhaps Werner Herzog’s film Grizzly Bear shaped Fischer’s imagination. As Herzog stated in the film:

And what haunts me, is that in all the faces of all the bears that [the protagonist of Grizzly Bear] ever filmed, I discover no kinship, no understanding, no mercy. I see only the overwhelming indifference of nature. To me, there is no such thing as a secret world of the bears. And this blank stare speaks only of a half-bored interest in food. . . . I believe the common character of the universe is not harmony, but chaos, hostility, and murder.”

Perhaps Fischer is just throwing back at the universe its nasty tendency to disregard us.

Photo Credit: Joseph Wu Origami.

“Faculty who are not contracting with BP or the government want to do independent research in the Gulf and along the coast,  . . . But they are finding funding and access very hard to come by. … [And BP was] rejected in an attempt to contract with the University of South Alabama’s [...]]]> BP is trying to lock up information about the consequences of the gulf oil spill by enticing oceanographers to enter into consulting contracts complete with NDAs. The researchers, naturally, deny that payments will influence their data collection or conclusions: ““The data are what the data are.” But BP seems to be trying to buy off entire segments of the academy, denying funding to those who won’t agree to keep their results a secret:

“Faculty who are not contracting with BP or the government want to do independent research in the Gulf and along the coast,  . . . But they are finding funding and access very hard to come by. … [And BP was] rejected in an attempt to contract with the University of South Alabama’s entire marine sciences department. But individual faculty still have the freedom to do so, said department chairman Bob Shipp.”

Now I’m not sure that an NDA preventing disclosure of a catastrophic society risk would be enforceable.  So as an initial matter, I wonder whether BP is really getting what it thinks it is buying.  But more generally, isn’t this exactly the kind of low-hanging political fruit that the Obama administration  would do well to pick?  It ought to be easy to force BP to surrender its right to enforce these NDAs as a condition for receiving one of the many other kinds of federal largess that comes its way, or for the state to insist that faculty not enter into agreements like these as a condition of their continued employment.  The argument that academic freedom means that you get to make money on a consulting contract and to sign a nondisclosure agreement that prevents the public from knowing what might be harming it seems to me to be quite weak.

(H/T: Robert Blumberg, TLS ’12)

[Exhibit] text says, “During the period in which humans evolved, Earth’s temperature and the amount of carbon dioxide in the atmosphere fluctuated together.” An interactive game in the exhibit suggests that humans will continue to adapt to climate change in [...]]]> Dan Farber has recently complained that many “Senate candidates are signatories of the Koch Industries’ Americans For Prosperity No Climate Tax pledge.” I must assume that Prof. Farber has not heard about technological fixes for the climate change problem. As Jane Mayer reports, the “David H. Koch Hall of Human Origins, at the Smithsonian’s National Museum of Natural History, is a multimedia exploration of the theory that mankind evolved in response to climate change.” The exhibit proposes practical responses for the future:

[Exhibit] text says, “During the period in which humans evolved, Earth’s temperature and the amount of carbon dioxide in the atmosphere fluctuated together.” An interactive game in the exhibit suggests that humans will continue to adapt to climate change in the future. People may build “underground cities,” developing “short, compact bodies” or “curved spines,” so that “moving around in tight spaces will be no problem.”

In other words, don’t worry, be Eloi! “Short, compact bodies” might also fit the new 23-inch airline seats better. Perhaps critics of Social Security and the Air & Space Museum can develop an exhibition based on Regis Debray’s Modest Proposal: A Plan for the Golden Years.

Regulating From Nowhere is a beautifully written book that would pay dividends even to the casual reader looking for a sharp treatment of the state of environmental regulation in America.  Beneath the surface, though, it is a powerful argument that our environmental law’s “redacted script”—wherein all our legislated texts of the 1970s, ‘80s, and ‘90s lead inexorably to welfare economics and its reigning orthodoxy, cost-benefit analysis—is leading us away from our ideals.  Kysar makes this argument energetically, even passionately at times.  He shows how, time after time, in context after context, cost-benefit analysis as it’s been structured has failed us [...]]]> Regulating From Nowhere: Environmental Law and the Search for Objectivity.  By Douglas A. Kysar.  New Haven, CT: Yale University Press.  2010.  Pp. vii, 314.  $45.00

Regulating From Nowhere is a beautifully written book that would pay dividends even to the casual reader looking for a sharp treatment of the state of environmental regulation in America.  Beneath the surface, though, it is a powerful argument that our environmental law’s “redacted script”—wherein all our legislated texts of the 1970s, ‘80s, and ‘90s lead inexorably to welfare economics and its reigning orthodoxy, cost-benefit analysis—is leading us away from our ideals.  Kysar makes this argument energetically, even passionately at times.  He shows how, time after time, in context after context, cost-benefit analysis as it’s been structured has failed us in our search for any truly objective measurement of our national commitment to environmental quality as against, say, individual autonomy.  The ideologues who keep insisting still today that “willingness to pay” surveys or the other crude tools economists are taught to use as metrics of valuation are all we have to interpret these statutes will find this book disconcerting, I’m sure.  For it makes no apologies in arguing that we among the living and powerful today have deeper obligations—obligations to other cultures, future generations, and to nonhuman life—than our ‘willingness to pay’ will ever reflect.

Still further below the surface is an incipient attack on the “value monism” inherent in any conception of “public welfare” yet devised.  This is easily the boldest aspect of a bold book and I hope it gets a wider audience than, say, the few hundred legal and economics academics who dwell on the use of cost-benefit analysis in regulation today.  A value monist, in Kysar’s view, sees “environmental values” like clean streams, biodiversity, or functioning wetlands, as fungible benefits that can and ought to be liquidated in some way so that they can be allocated to the highest bidder (usually, the highest bidder of money).  Pluralist or “expressivist” versions of value deny that any such translatability can be achieved, in theory or in practice.  Places and times are unique in their valuations of “organic unities” like clean streams, estuaries, or biodiversity, an argument made by philosophers like G.E. Moore and David Ross many, many years ago.  The problem, of course, is that that mode of valuation is essentially inaccessible to the modern administrative agency.  How would an agency like EPA, the legal embodiment of a large, aggregative jurisdiction, sort out the organic unities that are to be valued as wholes from the commodities or commodity storehouses (like coal mines, corn fields, and cows) on which our modern economy rests?  If EPA’s actual record of regulation prior to the onset of its now enveloping cost-benefit neuroses is any measure, administrative agencies like EPA are just not the kind of institution where organic unities go to be properly valued.

Still, it is precisely a monistic mindset, Kysar argues, that leads people like Cass Sunstein, Robert Stavins, and Richard Posner to view “precautionary” approaches to risk regulation as hopelessly confused when, in fact, they are highly practical.  Kysar argues that the precautionary approach to risk regulation, properly understood, is simply the collective control of human conduct prior to the attainment of clear and convincing proof that that conduct is harmful—an approach our early environmental laws (and their interpreters) understood and often took.  Best achievable technology mandates, so common in these laws, were once the tools of just such an approach.  Today they are buried under a mountain of cost-benefit analyses.

What makes this book so worth reading no matter who you are is its dedication to both principle and practice.  Not content only to spar with “public intellectuals” like Sunstein or Posner, Regulating from Nowhere injects its defense of the precautionary approach directly into several recent episodes in which cost-benefit analysis has featured prominently and has failed us.  From cooling water intakes and the billions of organisms they eradicate annually to intergenerational discounting and climate change, Kysar weaves his version of the precautionary approach into contemporary regulatory disputes and raises new questions (no mean feat given how overdone the subject seems to me).  One of its shrewdest moves is the proposal of an “Environmental Possibilities Act,” complete with the bill’s text, which would prohibit any federal agency’s use of monetized cost-benefit balancing to fully satisfy the demands of its environmental, health, or safety statute(s).  It is just the sort of conversation builder that books from legal academics ought to include today.

In the end, Kysar knows we are stuck with cost-benefit balancing by our administrative state.  The only windmills he seems to be tilting at are the ones that aren’t being built today even though better development of wind energy would be both precautionary and cost-justified.  And it probably makes good argumentative sense to show just how incomplete and misleading cost-benefit analysis has grown in the hands of its disciples.  Unfortunately, though, the categorical imperatives here—if there are any—are formless and inchoate.  It seems to me that most Americans do not assign much intrinsic value to clean streams, biodiversity, or farm animals (at least not as much as they assign to their own happiness).  Whether any one of us does or not is, therefore, a matter of little practical political importance.  Much more important is whether decision-making methods acceptable to a majority of citizens can lead to improvements in our social systems or our collective decision-making.  Better conservation is, therefore, every bit as much about improving our human sciences and the political possibilities they illuminate as it is about micrograms per deciliter, parts per trillion, or the like. Kysar’s book is an elegant step in that direction toward a more integrative future.

____________________________________________________________________

Jamison E. Colburn is a professor of law at Pennsylvania State University School of Law.

Sometimes I wonder whether climate change is the modern version of strategic arms talks.  During the Cold War, massive efforts were put into negotiations on limiting increases in nuclear weapons.  That was a real problem, but I think now most people agree that those efforts were largely a waste of time.  They didn’t make the world [...]]]> One thing I’ve been thinking as the Gulf oil leak continues is how that catastrophe should influence our environmental priorities.  A lot more was written and said about climate change over the past ten years than about the risks of deep-water drilling.  That doesn’t mean that climate change isn’t a real problem, but is it the #1 problem that we face?  And is it being addressed in the right way?

Sometimes I wonder whether climate change is the modern version of strategic arms talks.  During the Cold War, massive efforts were put into negotiations on limiting increases in nuclear weapons.  That was a real problem, but I think now most people agree that those efforts were largely a waste of time.  They didn’t make the world safer.  What made the world safer was a political change that defused the underlying tension.  Nobody today cares that Russia has lots of nuclear warheads or whether they have more than we do.

Similarly, it seems to me that the solution to climate change is the development of a new and inexpensive energy source, not a new and complicated regulatory scheme for emissions.  I have confidence that governments can speed up the development of the hydrogen car.  I don’t have confidence in their ability to construct or administer cap-and-trade in an effective way.

After the despairing tone of the last post, I just wanted to highlight GritTV’s excellent clip on the topic, and EarthJustice’s outstanding work to bring polluters to justice. There are also other opportunities for attorneys to make a difference.

Her name is Conchita, a thin, spa-loving, diamond-draped heiress, and she’s at the center of one of America’s nastiest estate battles. She is also a dog—a chihuahua who was the favorite of the late Miami heiress Gail Posner, a daughter of the corporate takeover artist Victor Posner. When Ms. Posner died in March at age 67, Conchita and two other dogs inherited the right to live in her seven-bedroom, $8.3 million Miami Beach mansion, their comfort ensured by a $3 million trust fund.

The story reminded me of the following passage from Korzeniewicz & Moran’s 2009 book, Unveiling Inequality:

The magnitude of global disparities can be illustrated by [...]]]> Today, the WSJ covers a tale of trusts & estates intrigue even more compelling than Leona Helmsley’s:

Her name is Conchita, a thin, spa-loving, diamond-draped heiress, and she’s at the center of one of America’s nastiest estate battles. She is also a dog—a chihuahua who was the favorite of the late Miami heiress Gail Posner, a daughter of the corporate takeover artist Victor Posner. When Ms. Posner died in March at age 67, Conchita and two other dogs inherited the right to live in her seven-bedroom, $8.3 million Miami Beach mansion, their comfort ensured by a $3 million trust fund.

The story reminded me of the following passage from Korzeniewicz & Moran’s 2009 book, Unveiling Inequality:

The magnitude of global disparities can be illustrated by considering the life of dogs in the United States. According to a recent estimate . . . in 2007-2008 the average yearly expenses associated with owning a dog were $1425 . . . For sake of argument, let us pretend that these dogs in the US constitute their own nation, Dogland, with their average maintenance costs representing the average income of this nation of dogs.

By such a standard, their income would place Dogland squarely as a middle-income nation, above countries such as Paraguay and Egypt. In fact, the income of Dogland would place its canine inhabitants above more than 40 percent of the world population. . . . And if we were to focus exclusively on health care expenditures, the gap becomes monumental: the average yearly expenditures in Dogland would be higher than health care expenditures in countries that account for over 80% of the world population. (xv)

It should come as no wonder, then, that pelicans in the Gulf may well be getting more attention than Nigerians subject to the “equivalent of the Exxon Valdez spill every year for 50 years.” As writer Ben Ikari puts it,

If this Gulf accident had happened in Nigeria, neither the government nor the company would have paid much attention . . . This kind of spill happens all the time in the delta. . . . The oil companies just ignore it. The lawmakers do not care and people must live with pollution daily. The situation is now worse than it was 30 years ago. Nothing is changing. When I see the efforts that are being made in the US I feel a great sense of sadness at the double standards. What they do in the US or in Europe is very different.

Fractal inequality has sorted individuals into radically different social worlds. And as J. Paul Getty put it, “The meek shall inherit the earth, but not the mineral rights.” Or the Miami Beach mansion.

Image Credit: Details below.

As Tom Dickinson’s excellent Rolling Stone article describes the issue,

On May 14th, two days after the first video of the gusher was released, the government allowed BP to apply a toxic dispersant [...]]]> I have tried to give the Obama Administration the benefit of the doubt during the Gulf/BP oil disaster. There was a “grand ole party” at Interior for at least eight years. Many Republicans in Congress would have tried to block nominees for Interior who were committed to a major overhaul of the department’s environmental priorities. But the more I read about the controversy, the harder it gets to excuse current players for their actions. Consider just one issue: the use of dispersants in response to the spill.

As Tom Dickinson’s excellent Rolling Stone article describes the issue,

On May 14th, two days after the first video of the gusher was released, the government allowed BP to apply a toxic dispersant that is banned in England at the source of the leak – an unprecedented practice in the deep ocean. “The effort should be in recovering the oil, not making it more difficult to recover by dispersing it,” says Sylvia Earle, a famed oceanographer and former NOAA chief scientist who helped the agency confront the world’s worst-ever oil spill in the Persian Gulf after the first Iraq War. The chemical assault appeared geared, she says, “to improving the appearance of the problem rather than solving the problem.”

Now we are learning that the some of the dispersants had “no toxicity studies” done to support their use, and we cannot even find out what is in them:

[T]he dispersant products, branded Corexit 9527A and Corexit 9500A, were made exclusively by a former Exxon subsidiary now owned by a company called Nalco. Exxon researchers had already acknowledged that they were significantly toxic for aquatic life. But just how toxic was mysterious — particularly for humans. The publicly available data sheets for both products revealed that they have the “potential to bioconcentrate,” but added this stunner: “No toxicity studies have been conducted on this product.”

Information about their precise composition was also vague, clouded by a veil of secrecy based on “proprietary” concerns. I found the information scarcity outrageous. A private company fouls a vast public resource and then dumps hundreds of thousands of gallons of a toxic chemical potion into it. Doesn’t the public have the right to know precisely what’s in that potion?

Even more depressing, the issue of oil company trade secrecy is not a new one. Residents in the vicinity of hydrofracking methods have been worried about their effect on water supplies for some time. Congress has launched an investigation into gas drilling practices. As Abrahm Lustgarten’s pathbreaking article for ProPublica noted, “it is difficult to pinpoint the exact cause of each contamination, or measure its spread across the environment accurately, because the precise nature and concentrations of the chemicals used by industry are considered trade secrets.” According to Lustgarten, “Not even the EPA knows exactly what’s in the drilling fluids. And that, EPA scientists say, makes it impossible to vouch for the safety of the drilling process or precisely track its effects.”

Respect for “property rights” via trade secrecy has put many lives and our environment at risk, as St. John’s law professor Mary Lyndon has been documenting for years. And yet the Obama administration appears unwilling to “go to the mat” to test the strength of this deeply troubling assertion of corporate prerogatives.

Unfortunately, the Obama administration’s attitude here mirrors its eagerness to keep much of Wall Street’s dirty laundry out of public view. Many smart people have been comparing the lessons of the Gulf Oil Spill to those of the financial crisis. For example, Richard Thaler argues that:

As the oil spill in the Gulf of Mexico follows on the heels of the financial crisis, we can discern a toxic recipe for catastrophe. The ingredients include risks that are erroneously thought to be vanishingly small, complex technology that isn’t fully grasped by either top management or regulators, and tricky relationships among companies that are not sure how much they can count on their partners.

But what happens when that lack of understanding of “complex technology” is by design, rather than by accident? What happens when regulators are so indifferent to public safety that they can’t be bothered to demand some disclosure from an “egregious and willful” violator of public standards? We then have to worry that the lesson to be drawn from the Wall St. crisis is not Thaler’s, but Robert Kuttner’s, who calls Obama’s presidency “in peril:”

[Robert] Kuttner soberly — and often chillingly — shows how Wall Street wields [its] power, sometimes brazenly, sometimes subtly. He names names . . . — like Gene Sperling, the Clinton administration’s last National Economic Council chief. . . .

Wall Street realized that Sperling would likely have a prime role in any Democratic administration elected in 2008 and moved to bring him into the high-finance fold. Goldman Sachs “helpfully created a position for Sperling as adviser to its foundation” and paid him $887,727 in 2008.

That sum would be “chump change for Goldman, but a small fortune for a policy wonk,” notes Kuttner . . . “Now Sperling is a senior economic official in the Obama administration. If you were he, would you cross Goldman?”

Books like 13 Bankers put relationships like this at the very center of financial reform efforts. The choices for the future of oil industry regulation are similarly stark. Exactly what types of revolving doors exist between Interior and the industry? What are the potential rewards for lax regulators? And if the bureaucracy is hopelessly captured, what other types of creative solutions can be developed?

Image Credit: Deepwater Horizon Response.

[Y]ou have to be emotionally and spiritually dead not to watch this and not feel some deep qualms about what our civilization is doing to its environment and to itself. The addiction metaphor – even used by George W. Bush by the end of his term – is the only apposite one. We’re like junkies trying to find a new vein. It keeps us alive and growing, but that simply brings into sharper focus the moral and spiritual costs of exploitation of the earth rather than prudent stewardship.

To sharpen the point, I’d say the impending loss of the gulf is a bit reminiscent of the closing scenes in the film “Requiem [...]]]> Responding to the ever-deepening crisis of the BP spill, Andrew Sullivan writes the following:

[Y]ou have to be emotionally and spiritually dead not to watch this and not feel some deep qualms about what our civilization is doing to its environment and to itself. The addiction metaphor – even used by George W. Bush by the end of his term – is the only apposite one. We’re like junkies trying to find a new vein. It keeps us alive and growing, but that simply brings into sharper focus the moral and spiritual costs of exploitation of the earth rather than prudent stewardship.

To sharpen the point, I’d say the impending loss of the gulf is a bit reminiscent of the closing scenes in the film “Requiem for a Dream,” where an addict’s arm is at stake. But another conservative, Jeff Jacoby, takes the following position:

[In 1974,] psychiatrist Thomas Szasz wrote in The New York Times that “oil addiction is equivalent to drug addiction.’’ But it’s not. . . . Americans consume oil not because they are “addicted’’ to it, but because it enriches their lives, making possible prosperity, comfort, and mobility that would have been all but unimaginable just a few generations ago. . . . The United States consumes more than 300 billion gallons of oil per year, nearly two-thirds of it imported. . . . What we have isn’t an addiction, but a blessing.

What I find curious about the professed “conservatism” of Jacoby’s position is that it rests on an attitude of entitlement and self-indulgence that conservatives seem to find repugnant in so many other contexts. As usual, Andrew Bacevich lays out the broader context precisely:

[Mainstream] Democrats agree with Republicans on the “concrete interests” of Americans: preserving what Bacevich calls our “empire of consumption.” ([Bacevich] borrowed the term from Harvard historian Charles Maier.) After WWII, the US was an “empire of production” – “we made the stuff that everybody else wanted.” So the country did not go into debt. “But we have increasingly become a culture that emphasizes consumption – limitless consumption . . . while others, notably China and Japan, have become the source of the goods we consume. There’s something fundamentally out of whack here. This disparity between what we produce and what we consume is simply not sustainable.”

To quantify matters: “Between 1995 and 2005, U.S. consumption grew from 17.7 million barrels a day to 20.7 million barrels a day, a 3 million barrel a day increase. China, by comparison, increased consumption from 3.4 million barrels a day to 7 million barrels a day, an increase of 3.6 million barrels a day, in the same time frame.” In other words, with less than a third of the population of China, the U.S. increased its oil consumption over a decade-long period by nearly the same amount as the entire nation of China began with! We continued building bigger cars, and bigger houses, ever further apart, assuring an ever-deeper environmental footprint.

Given the fungibility of food and fuel, we are effectively starving people to feed cars. The type of lifestyle that Jacoby celebrates may not have been a self-harming addiction as long as the structural violence it fueled was kept far away. Now it’s at the gulf coast. Perhaps Jacoby will “get it” if the loop current feeds tarballs up to the Cape.

Photo Credit: EtienneCoutu.

Everything’s easier with money.  That would have been a good subtitle for this new book by two University of Chicago law professors.  In Climate Change Justice, Posner and Weisbach argue that we have yet to negotiate the “optimal” climate change treaty, that there is still time to do so, that it is imperative that we do so, and that it will remain impossible to do so unless and until we stop commingling what ought to be done about climate change with what ought to be done about past injustices done to other cultures or Nations and/or how much the haves of the world ought to give [...]]]> Climate Change Justice. By Eric A. Posner and David Weisbach. Princeton, NJ: Princeton University Press.  2010.  Pp. viii, 220.  $27.95.

Everything’s easier with money.  That would have been a good subtitle for this new book by two University of Chicago law professors.  In Climate Change Justice, Posner and Weisbach argue that we have yet to negotiate the “optimal” climate change treaty, that there is still time to do so, that it is imperative that we do so, and that it will remain impossible to do so unless and until we stop commingling what ought to be done about climate change with what ought to be done about past injustices done to other cultures or Nations and/or how much the haves of the world ought to give the have-nots.  In this review, I sketch their expertly developed argument, several of the points they make which I think are quite frankly undeniable, and then finally a few quibbles I have with their underlying assumptions.  All in all, this book is a potent attack on an argument that is growing rapidly in popularity yet declining in clarity and focus.

Posner & Weisbach start from an undeniable proposition: moral arguments that make sense for individual people do not always make sense for nation-states.  Poor nations and, particularly, poor nations in the future are likely to suffer the most from climate change.  Who are these nations and why are they poor?  The answers to those questions are bound up with some of the most intractable moral, causal, and historical disagreements we know today—or are likely to know in the future.  What better way to take a cooperation failure and make it impossibly hard than to combine it with these intractable disputes?  Treating a nation as a unitary entity will lead to pronounced distortions if one does so out of a deontological commitment to persons.  Poor nations are often dominated by rich and powerful people just as rich nations often have many, many millions of poor people.  Posner & Weisbach implore us not to fall victim to the fallacies of composition or division here.  Climate change is already hard enough all by itself.

Chapter 1 provides what must be one of the most comprehensive, comprehensible, and yet still succinct accounts of the science of anthropogenic climate change currently in print.  Part of what nurtures climate change denialism/delayism, in my view, is how often the public gets a mere “arial glimpse” of what we know about climate change and how we know it.  These pathetically oversimplified glimpses are then subject to casual pot shots from all directions, including from the downright deceptive.  The resulting “dialogue” is mired in what looks like ambiguity, debate, and doubt.  People naturally discount the risks under discussion and move on to something more “pressing” in their daily lives.  The result is a systemic failure that is shaping up to be one of millenial proportions.

Posner and Wiesbach’s data tables and remorseless explanation paint an arresting picture: “significant human-caused climate change [is] entirely beyond debate” (p. 16) and, if anything, we have been lucky thus far in that we haven’t yet experienced any truly significant feedback effects (which are probably inevitable).  More daunting still is their use of Chapter 1 in an argument that the “pragmatic constraint” on any treaty achievable is that “all states must believe themselves better off by their lights as a result of the climate treaty.” (p. 6)  Their Pareto-like constraint—in view of the massive cost/benefit disparities that will attend any conceivable treaty and of the massive uncertainties in predicting how the harms of climate change will materialize—suggests a choice situation with monumental informational challenges and even bigger political hurdles.  If those challenges must be met with the tools of corrective or distributive justice, they almost certainly compound to unmanageable proportions.

Their sketch in chapter 8 is of a climate change treaty which mostly sets distributive and corrective justice aside, garners the support of “the United States and other major industrial nations, including developing nations such as China and Brazil,” (p. 142) and acknowledges an obligation to future generations by selecting only the right “projects” we undertake now for their benefit.

This last aim is the principal justificatory burden that Posner & Weisbach shoulder: the burden of proving that we ought to discount climate change’s harms/losses to some approximation of their present value, consistent with other normative fundamentals.  While I found their “welfarist” argument persuasive that we normally do and that we normally should discount future harms and losses to some “present value,” they didn’t have much persuading to do with me.  Other readers may well find their arguments doubtful and Posner & Weisbach do little to bridge that gap.  Either you view discount rates as a reflection of what we do about risk (e.g., building hospitals, donating anti-malarial drugs, or educating people about AIDS, etc.) and not what we think about risk (e.g., that it puts a dollar value on a human life), or you don’t.  This book probably won’t move you from one column to the other.

Of course, by most measures we do a poor job of selecting the risks to address and perhaps an even worse job of addressing them.  The problem of future generations has obssessed economists and philosophers for years because, assuming we accept that future generations have the moral standing we afford to human lives in being, properly comparing the actions we could take to reduce future risks to the actions we could also take against risks faced by the poor and vulnerable today is very hard.  And this comparison has lately become mind-numbingly quantitative.  But if these harms are on par, the risks faced by future people will be worth more of our time, treasure, and attention because many more of them will face risks than do people at present.  Unless you assume those future people will be richer.

Climate change has just this structure.  If we invest billions today to lessen climate change risks, those billions can’t be spent on, for example, AIDS prevention here in the present.  And if we actually grow the global economy, there may be millions (or billions) fewer poor people vulnerable to climate change’s harshest effects.  If a dollar today is worth more than a dollar a year from now and risk reduction projects all cost money, the question can only be which discount rate we ought to apply to public welfare enhancements in the future.  Any way you slice it, that’s a hard question.

In one sense, the “Copenhagen Accord” negotiated in December (mentioned in an “afterword,” pp. 193-197) was a step in exactly the direction Posner & Weisbach advocate.  Rich, industrialized nations pledged billions to help poorer nations adopt no-regrets policy changes in the near term, committed to bending the curve on their own emissions, and agreed to keep talking.  I think I agree that this was about the best our nation states can do in anything shorter than the long run.  But it is certainly not the best we can do.  We must all collaborate to create an economy built on clean, renewable energy or else the fossil fuel economy will literally kill us a little more each day.  In the end, Posner & Weisbach neglect almost everything but nation-to-nation realpolitik and their “International Paretianism.”  Climate change justice starts elsewhere because we all must do something about climate change.  Virtually every American: (1) consumes too much energy; (2) is more educated than the median Earthling; (3) has access to much more communicative power today than ever before; and (4) is a node in any number of highly robust networks connecting them to people and places around the world.  “Human energy,” as Chevron euphoniously rebranded their business lately: it is abundant, renewable, cheap, and distributed.  Now we need the institutions that can collect and deliver it.

____________________________________________________________________

Jamison E. Colburn is a professor of law at Pennsylvania State University School of Law.

“As climate change litigation proliferates around the world, an assessment of what its role is and should be in transnational regulatory governance becomes important.  This volume provides such an assessment by exploring representative examples at subnational, national, and supranational levels.”   So opens a broad collection of papers in this book edited by Burns and Osofsky.  In this short review, I describe those papers and assess the claims Burns and Osofsky advance about the role of “climate change adjudication,” at least indirectly, in their selection and editing choices.  In a nutshell, this volume should be of special interest to the growing [...]]]> Adjudicating Climate Change: State, National, and International Approaches, edited by William C.G. Burns & Hari M. Osofsky. Cambridge: Cambridge University Press, 2009. pp. 399.

“As climate change litigation proliferates around the world, an assessment of what its role is and should be in transnational regulatory governance becomes important.  This volume provides such an assessment by exploring representative examples at subnational, national, and supranational levels.”   So opens a broad collection of papers in this book edited by Burns and Osofsky.  In this short review, I describe those papers and assess the claims Burns and Osofsky advance about the role of “climate change adjudication,” at least indirectly, in their selection and editing choices.  In a nutshell, this volume should be of special interest to the growing ranks of public officials (and public intellectuals) venturing into what is quite simply the biggest, hardest “environmental” problem we have ever faced: globally catastrophic climate change.

The single most effective cost-externalizing technology humanity has ever devised is fossil fuel.  Fossil fuels literally exemplify the microeconomic theory of market failure because they allow users to reap often tremendous rewards while spreading the most potent costs planetarily.  This is much of what makes limiting fossil fuel use so hard.  The collectives of people with real authority and power to do so have lopsided incentives against doing so, especially given the fact that their own self-discipline is guaranteed no absolute efficacy—unless and until others commit as well.

As so obviously tilted as all this is, a great deal of reasonable disagreement still remains surrounding who ought to move first, by what normative means, according to what timetables, at what costs, and pursuant to which authorities.  The norms have yet to be authored that establish which uses of fossil fuels are unduly risky, which uses are justifiable, or for whom.  That is what makes “adjudicating climate change” so unique: it is quite literally a matter of applying norms that do not yet exist.  Burns & Osofsky divide the papers of the volume up into “subnational,” “national,” and “supranational” cases, seemingly in an effort to keep things in jurisdictional perspective.

The first few papers—a paper by Stern on Minnesota’s “externality” reporting law, a paper by McAllister on Australia’s cases involving the recent permitting of new coal mines, a particularly suggestive paper by Trisolini & Zasloff on local land use planning, and a paper by Wood on extending the public trust doctrine to protect the atmosphere—provide vivid and repeated testimony to the nestedness of our jurisdictional systems.  Law in the English-speaking world is innately jurisdictional and jurisdictions are, empirically speaking, highly variable.  Trisolini and Zasloff’s paper rightly points out, for example, that local land use law and policy has perhaps the most powerful influence on our energy consumption patterns but that just understanding what motivates cities and other local government to action/inaction is still maddeningly beyond our capacities.

Part II consists of papers by Osofsky on Massachusetts v. EPA, by Cummings & Siegel on the listing pursuant to the U.S. Endangered Species Act of wildlife species imperiled by climate change, by Sinden on the gas flaring litigation in Nigeria, by Grossman on tort-based claims against greenhouse gas emitters, and by Stempel on insurance’s capacity to spread the risk of climate change liability.  Ironically, one has the sense after reading these papers that there really is very little about climate change that is addressed effectively or most naturally by “national” jurisdictions, rightly conceived.

Part III explores certain “supranational” norms—binding norms, that is (at least loosely defined)—touching or concerning climate change.  The loss of heritage sites to climate change is arguably a matter for the World Heritage Convention and Thorson’s paper makes that case.  Osofsky’s paper on the Inter-American Commission on Human Rights begins her consideration of the Inuit petition thereto by repeating a particularly powerful question: “How would you respond if an international assessment prepared by more than 300 scientists from 15 countries concluded that your age-old culture and economy was doomed, and that were to become a footnote to globalization?”  Gleason & Hunter explore some of the administrative mechanisms available to those who would reform the World Bank and the global financial system from the inside out.  Burns sketches theories of liability growing out of the loss of various fish stocks from the degradation of the marine environment.  (Even these claims ultimately run into the same barrier that all claims rooted in corrective justice ultimately must: causation.  And Burns acknowledges just how many destructive forces are bearing down upon most fisheries today.)  Finally, Strauss explores possible routes into the International Court of Justice—as well as many of the mechanisms by which ICJ jurisdiction can be precluded by precisely the parties climate change activists are targeting.

The trouble with supranational norms of this sort, much like the trouble with their more localistic counterparts, is that they are norms designed (or maintained) to effectuate other collective ends than the elimination of fossil fuels.  While those other ends may also be obstructed or imperiled by the continued use of fossil fuels, using them to get leverage against global fossil fuel use is like using a lever to move a skyscraper.  In theory, it certainly should work.  In practice, it almost certainly won’t.  The typical deflection of this pessimism is that “litigation” of the kind can galvanize and radicalize people—it can become its own causal force of change.  And indeed it can.  But the causal forces that litigation of this sort too often generates—even within single jurisdictions with agents who are relatively homogenous and, therefore, more predictable—are nothing like what its catalysts normally envision.   They are multi-directional, unpredictable, and they too often spark equal, opposite forces that galvanize opponents.

In a chapter at the end of the collection surveying the different jurisdictional models, Hunter concludes that

[c]limate litigation is shaping the tone of the debate over climate science.  In journalistic or political approaches to climate, the views of climate skeptics were previously given equal weight to the broad concensus views regarding science.  In climate litigation forums, however, such skeptics may be asked to submit affidavits or even face cross-examination of their views.  This ground-truthing of climate science may screen out and discredit those fringe scientists whose positions may not be able to withstand the scrutiny that comes from adversarial proceedings, particularly in domestic courts.

While I agree that “climate litigation” has certainly shaped the “tone of the debate over climate science,” I have to admit that I’m quite a bit less sanguine about that trend than Hunter.  The emails snatched from CRU last year and published on the eve of COP-15—to say nothing of all the fallout since on everything from the Intergovernmental Panel on Climate Change’s uses of “gray literature” to the various ways in which climate scientists have begun devoting serious energy to debunking or even attacking their critics—are every bit the outgrowth of the litigious gestalt Hunter speaks of as anything more productive might be.  One wonders whether litigation in advance of binding and specific norms isn’t just a really good way to make people into the hyper-strategic agents caricatured in most social science literature today.

Moreover, if climate litigation really were a form of “ground-truthing” with its own deterrent value to denialists or other cranks, then we should certainly be farther along in our evolution toward honest public debate about the norms of climate change and fossil fuels than we are.  There has, by now, been a stunning amount of this litigation.

Has it enhanced or enriched or checked or disciplined our public discussion of fossil fuels?  One would have to have a low opinion of the multi-billion dollar multinational enterprises so vitally dependent on the greenhouse gas status quo to think that.  The indications from our law-making institutions—or, at least from the House and Senate—are all to the contrary.

A final chapter from Osofsky on the potential litigation holds for “rescaling” climate change politics asks whether subnational, national, and supranational “actually have meaning” (pp. 377-78).  I have my doubts about these terms in the face of public problems like climate change.  A status quo that must change is no proof at all that the questions now being litigated improve our chances of correctly “rescaling” our approach to catastrophic global climate change.  And, only in a sort of footnote to the text—the last five paragraphs of a 385 page book—do any of the contributors stop to notice time scales as the counterpart of spatial scales.  That is unfortunate.  For if “we” owe it to future generations to act decisively against fossil fuels in the present, then “we” ought to think more carefully about our definitions of “immediate” and of “action” in choosing our steps against climate change.  Part of that care would be a fuller grasp of how our norms are formed, reformed, specified, and hardened when they originate in litigious processes like adversarial hearings, trials, etc.  A fuller grasp of how our norms form under these contentious pressures might lead us to view our “diagonal” institutions—our institutions linking subnational, national, and supranational officials into common agency, common plans, or at least common cause—as uniquely authoritative in problems like climate change.  These concoctions join public officials into a new organizational matrix—one where a variety of spatial, temporal, and cognitive scales govern perceptions.  Institutions like the Great Lakes Regional Collaboration, the Columbia Basin Fish & Wildlife Authority, the proliferating ranks of our many intergovernmental networks, ad hoc entities like the International Council on Local Environmental Initiatives (which Trisolini and Zasloff consider briefly), and even quasi-governmental networks like NatureServe have defied conventional political thinking and linked people with disparate incentives and imperatives into common agencies.  The challenge today is ensuring that these agencies are given wider relevance and more legal and political authority to effectuate what they devise.  For if we actually do achieve some kind of “transnational regulatory governance” of fossil fuel use and greenhouse gas emissions, it will be neither bottom-up nor top-down: it will be a synthesis of causes from many directions over time.  Burns and Osofsky’s collection of papers sketch some stirrings in that direction.  Real plans of the sort still seem to be on the distant horizon.

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Jamison E. Colburn is a professor of law at Pennsylvania State University School of Law.

Tradeable carbon emissions allowances are an example of the latter.  There’s a lot to like in the cap-and-trade programs proposed under the Waxman-Markey and Kerry-Boxer bills.  I hope some robust version of them passes and becomes law.  But one sticky issue that needs to be resolved is how [...]]]> If the last two years of American economic life have demonstrated anything, it is that property rights are not static.  Sometimes things that were once private property become public property (see, e.g., Motors, General).  Sometimes things that were once public property become private property, then become public property again, before they presumably become private property again (see, e.g., Mae, Fannie).  And sometimes things that were once considered inherently communal and thus inamenable to private property rights at all, become divided and privatized (see,e.g., the air).

Tradeable carbon emissions allowances are an example of the latter.  There’s a lot to like in the cap-and-trade programs proposed under the Waxman-Markey and Kerry-Boxer bills.  I hope some robust version of them passes and becomes law.  But one sticky issue that needs to be resolved is how initial allowances to fill airspace with carbon gases should be allocated.  Options include auctioning off all of the allowances, giving the allowances to existing carbon producers, and, most politically palatable, something  in between – some mixed proportion of free allocations and auctions.

Economist Robert Stavins, in the Coasean tradtion, has insightfully argued that  (with some caveats, including that transaction costs in this cap-and-trade program are similar to the transaction costs in others) the initial allocation of allowances doesn’t matter in most significant ways:  it will have no effect on the distribution of allowances after trading, and will have no effect on the total magnitude of emissions and their attendant social costs.

But there is another factor economists have not addressed, that could effect the total magnitude of emissions and their attendant social costs, and that may well depend in part on the method of initial allocations: compliance.

Law Professor Christine Parker and political scientist Peter May, among others, have demonstrated that compliance with business regulation is highest when the regulated businesses believe that the regulatory regime is fair.  Lower levels of compliance reduce the effectiveness of the regulation in producing the desired outcome, and increase the costs of achieving it.  In the world of carbon emissions, this would mean a higher total magnitude of emissions and a reduced benefit to the public through the higher costs required to achieve them.

My research into Icelandic fisheries suggests that in moving natural resources from communal to private property through cap and trade programs, initial allocations of rights do have an important effect on the perceived fairness of the regulatory regime, and thus on the willingness of the regulated to comply with it.

In Iceland, the government decided to protect fish stocks by freely allocating tradeable fishing rights and implementing catch quotas.  Permits were issued to fishing vessel owners based on their average catches during a three-year test period.  New entrants to the industry must now buy their way in by purchasing or leasing rights from others through the Icelandic Quota Exchange.  Although the system has been successful in reducing the overall catch, the perception that it is unfair has led to open defiance.  In an extraordinary case before the Icelandic Supreme Court, one fishing company did openly what many apparently do quietly — defied the system on the grounds that it was unfair.  

Transactions costs, of course, are inevitable, but it is not transaction costs that have produced resistance to the Icelandic system.  Rather, resistance is itself is a type of transaction cost, broadly construed, produced by the perceived unfairness of the initial allocation of rights.  In other words, the initial allocation of rights does indeed effect the overall effectiveness of a private property system. 

There has been considerable uproar over the potential free allocation rights to current carbon emissions producers.  Whether or not, as a matter of classical economic theory, the initial allocation of rights should effect the overall effectiveness of the program, the perception of fairness or unfairness will probably effect compliance with the system, and that in turn will effect its overall effectiveness.  It is important, therefore, for policy makers to bear in mind that the perceived fairness of initial allocations of property rights does indeed matter.

Suppose that astronomers around the world alerted us that a large asteroid is headed in our direction, and might collide with the earth in the year 2012.  The astronomers cannot give us a precise probability of collision because of many imponderables . . .  To build a defense system—say, rockets that would intercept the asteroid and knock it off course—would cost hundreds of billions of dollars . . . As is always the case, there are a few dissenters . . .   A scandal erupts when emails at the West Anglia Space Research Unit are released, and shows that some scientists tried to arrange a boycott of a journal that published a few articles of the skeptics.  At the same [...]]]> Eric Posner muses about Asteroidgate:

Suppose that astronomers around the world alerted us that a large asteroid is headed in our direction, and might collide with the earth in the year 2012.  The astronomers cannot give us a precise probability of collision because of many imponderables . . .  To build a defense system—say, rockets that would intercept the asteroid and knock it off course—would cost hundreds of billions of dollars . . . As is always the case, there are a few dissenters . . .   A scandal erupts when emails at the West Anglia Space Research Unit are released, and shows that some scientists tried to arrange a boycott of a journal that published a few articles of the skeptics.  At the same time, thousands of astronomers not connected with the West Anglia Unit continue to insist that the risk of a collision is very high . . . A few questions.  In this scenario, would there emerge an industry of non-credentialed “astronomy skeptics” in the press and public comparable to the current batch of “climate skeptics”?  My instinct is that the world would quickly get to work building the rocket system, and disregard the views of the skeptics.  Is this right or wrong?  If it is right, is there some reason to think that climate science and astronomy are different, justifying the skepticism about climate science that does not (yet) exist about astronomy?

This is a clever scenario, and its gives me a launching pad to talk about why climate-change skeptics and believers have reacted so differently to the same set of information: namely the stolen East-Anglia emails.

The Cultural Cognition Project has a perspective on this problem which may be helpful.  Dan Kahan, Don Braman, Paul Slovic, John Gastil, and Geoffrey Cohen wrote a paper called The Second National Risk and Culture Study: Making Sense of – and Making Progress In – The American Culture War of Fact. Using a large random and nationally representative study sample, the paper confirms that Americans are deeply divided over basic questions about the climate, such as “how much risk does global warming pose for people in our society?” Those divisions track the cultural identities that the project has often explored — and which relate back to pioneering work by anthropologist Mary Douglas. That is, group-grid theory.

Of particular interest, Kahan et al. tested the hypothesis that individuals’ perceptions about the same set of facts about the severity of the problem turned on what policy solutions were recommended to deal with it.  When the policy solution was nuclear power, hierarchical and individualist Americans were far less likely to discredit global warming facts than when the solution was an expanded set of anti-pollution measures.  Such individuals find expanded anti-pollution policy threatening to their identities: it suggests restriction of market activities (upsetting to individualists) and it implicitly challenges the legitimacy of the ruling order (upsetting to hierarchs).  Confronted with such a threat, individuals are less likely to credit information about increased risks of warming.  Conversely, egalitarians and communitarians were more likely to see global warming as a severe threat when the solution was anti-pollution control.

What does such research teach us?  Well, for one, it makes reactions to “climate-gate” easier to understand.  We know that people are looking at the benefit/risk calculus in highly polarized ways.  The East Anglia emails, which go to the weight of the evidence about warming, is yet more fodder in that filtered debate.  This  polarization is (notably) neither partisan nor conscious.

More importantly, the research suggest a very concrete strategy for those who worry about climate change and who want to see their position persuade unbelievers: you should be more attentive to finding politically congenial solutions, and spend less energy trying to use data to convince those you disagree with.  Thus, former VP Gore’s approach, which focused on staking out a data-driven position on the scope of the problem, has at best produced a fragile coalition in support of change, which will be undermined quickly when individuals are presented with alternative data, information about imperfect scientists, or threatening policy solutions.

Rounding back to Eric’s post,  the reason that asteroidgate seems like a clear example where an organized opposition would not emerge is that neither the underlying disaster nor the policy solution poses a threat to the identities of large and discrete groups of Americans. Expensive rockets simply aren’t the bogeymen that private-property-destroying pollution controls are.  The case would be different if the solution to our asteroid problem were to unequally burden a minority group.  In that scenario, egalitarians and communitarians would be much less likely to credit the risks of a massive asteroid than would hiearchs and egalitarians.

Depending on where you live, today or tomorrow is “Bike to Work” Day.  Bicycles have been around the US since at least 1866, when Pierre Lallement received patent no. 59,915 for a velocipede.  I’ve been an avid year-round bike commuter for 8 years now (aside from my 2 years in Kinshasa, Congo, when I couldn’t walk around the block without an escort), and, like most zealots, I like to proselytize. Now that I’ve converted to a bike commuter, I extol the economic [...]]]> One of the benefits of being at GW is that I get to talk to Dan Solove in person. When I saw him on Wednesday, he reminded me that blogging doesn’t always have to be about my past books or future projects. Thanks, Dan!

Depending on where you live, today or tomorrow is “Bike to Work” Day.  Bicycles have been around the US since at least 1866, when Pierre Lallement received patent no. 59,915 for a velocipede.  I’ve been an avid year-round bike commuter for 8 years now (aside from my 2 years in Kinshasa, Congo, when I couldn’t walk around the block without an escort), and, like most zealots, I like to proselytize. Now that I’ve converted to a bike commuter, I extol the economic and environmental benefits of riding:  bicycles don’t use any fossil fuels to get you from one place to another; an 8-mile bicycle trip keeps out about 15 pounds of pollutants from the air we are breathing; and somewhere between 6-20 bikes can be parked in one car parking space (mine is parked as a piece of art in my office).  Just as importantly, however, bike commuting is really fun. It is fast: even at my pace on the bike of 10-15 mph, I breeze right past people in cars. And it’s wonderful for my mental health. One of my friends interviewed me for a story she wrote for Good Housekeeping magazine (!) about how people find serenity. I told her I find serenity through writing articles and blog posts, but she wasn’t convinced; not until I told her about my bike commuting did she put pen to paper. So, as one corporate sports giant might say, Just do it!

Instead of joining his protester friends on the snowy sidewalk outside the Bureau of Land Management office in Salt Lake City, Tim DeChristopher took a seat inside. In a room milling with oil and gas men who knew one another by sight, he was the unknown in a red parka, registering as a bidder in an auction for the rights to drill on 149,000 acres of federal land. DeChristopher was handed a red paddle bearing the number 70.

Half an hour later, he was raising it.

“I leaned forward to one of my colleagues and said, ‘This guy behind us is just [...]]]> Tim DeChristopher, a Utah-based environmental activist, has discovered a new tactic in the war on global warming: intentional breach of contract. The Washington Post reports:

Instead of joining his protester friends on the snowy sidewalk outside the Bureau of Land Management office in Salt Lake City, Tim DeChristopher took a seat inside. In a room milling with oil and gas men who knew one another by sight, he was the unknown in a red parka, registering as a bidder in an auction for the rights to drill on 149,000 acres of federal land. DeChristopher was handed a red paddle bearing the number 70.

Half an hour later, he was raising it.

“I leaned forward to one of my colleagues and said, ‘This guy behind us is just running up the prices,’ ” said David Terry, a Salt Lake City oil-land man who routinely attends the BLM auctions. “And my friend said, ‘Yeah, he’s going to get stuck with a tract.’ ”

The University of Utah economics student got stuck with 13. Promising the federal government $1.8 million he does not have, DeChristopher emerged holding leases on 22,000 acres in the scenic southeast corner of Utah.

DeChristopher, of course, is judgment proof. Unlike the strategy of say the Nature Conservancy, which seeks to preserve wilderness through purchase or other contractual arrangements, DeChristopher’s goal seems to have been disruption and the running up of oil lease prices. He’s also apparently under investigation by federal agents. Not being a government contracts geek, I don’t know what federal statutes he may have broken by participating in the auction on a bad-faith basis. As an ordinary matter of contract law, however, his case creates some interesting issues.

Normally, a bid at an auction is construed as an offer that the auctioneer may accept. When he does so, a contract is formed, and even though the obligations on both sides are purely executory — in this case the BLM’s obligation to provide the leases and DeChristopher’s obligation to pay — they are legally enforceable without either reliance or performance on either side. From the perspective of contract law, therefore, DeChristopher, by breaching his contract to the BLM, in effect deprives them of a $1.8 million entitlement. On the other hand, I suspect that for a lot of ordinary people, the intuitions run the other way. Since no one has relied on the contract, what is the big deal if both sides just back out and return to the status quo ante? Of course, the losers in the deal — and this is what DeChristopher really intended — are the gas developers that had to pay more to obtain leases by outbidding him.

It is an interesting question what claims might be made against DeChristopher. Clearly, the BLM could sue him for breach of contract. They also might be able to sue him on a theory of promissory fraud. What about the gas companies? It seems that they would have a difficult time arguing tortious interference with contract, as DeChristopher’s interference happened during the negotiation stage between the BLM and the companies, before there was any contract. He can always point out that if they thought they were paying too much they could have simply refused to bid on the leases. It’s not a bad argument in my opinion. Furthermore, while the BLM’s interests are adverse to DeChristopher as to the 13 leases he personally acquired, it ought to have no objection per se to his running up the price on the other leases. After all, it’s the BLM that gets to pocket the extra cash. Of course, the question of any civil remedies is academic. DeChristopher is not worth suing, except, perhaps, if someone wanted to harass him into bankruptcy in order to make an example of him. Hence, the feds’ investigation of possible criminal charges.

Were DeChristopher bidding with real money, I would actually find his tactics laudable. From an economic standpoint the reason why participation of someone like DeChristopher in the auctions is valuable is that it internalizes some more of the externalities involved in gas leases. On the other hand, if DeChristopher can drive up the price without actually having to pay for anything, then his incentive will be overbid. Another way of putting this is that so long as he is judgment proof, he is massively over-incentivized to breach. Furthermore, unlike the Nature Conservancy, DeChristopher’s actions will not ultimately stop the leases he purportedly purchased from being used. His failure to pay the $1.8 million will be material breach, relieving the BLM of the duty to convey rights to the land. The leases will simply be sold at the next auction.

Currently, DeChristopher is represented by Pat Shea, a local Utah lawyer who headed the BLM under Clinton. He’s trying to forestall prosecution. “I didn’t want to see somebody with that kind of virtue mangled by a Kafkaesque kind of system,” Shea said. “I think responsible civil disobedience has been forgotten since the ’60s and ’70s.” Of course, as originally conceptualized by Thoreau the notion of civil disobedience was that one broke the law and then took one’s punishment. It was a meant as a moral argument that justified ignoring the law, rather than a moral or legal argument against the enforcement of the law.

Indeed, given the inability of the private law to create optimal incentives for some like DeChristopher, a bit of guerilla bidding followed by a moderate jail sentence might not be such a bad solution. The best outcome would not be a sentence that utterly discouraged DeChristopher from participating in bids, but only one that encouraged him to consider the full costs of his actions. Indeed, getting a price that reflected the full costs of action, was what DeChristopher was purportedly aiming at to begin with.

In January 2005, residents near the chlorine plant here discovered that it was the biggest mercury emitter in the state. Environmentalists warned them against eating fish from their beloved Hiwassee River. They appealed to the plant’s owners, Olin Corp., to do what 100 other chlorine producers had done: abandon a 19th-century process that emits tons of the dangerous neurotoxin. Olin refused.

In fall 2005, the Environmental Protection Agency weighed in – but not to take up the cause of residents. [...]]]> Someone should be calling the Pulitzer Committee to nominate the Philadelphia Inquirer’s fantastic series of articles on the Bush administration’s environmental policy, titled “Smoke and Mirrors: The Subversion of the EPA.” Here’s just one part of one story that sets the tone for the series:

In January 2005, residents near the chlorine plant here discovered that it was the biggest mercury emitter in the state. Environmentalists warned them against eating fish from their beloved Hiwassee River. They appealed to the plant’s owners, Olin Corp., to do what 100 other chlorine producers had done: abandon a 19th-century process that emits tons of the dangerous neurotoxin. Olin refused.

In fall 2005, the Environmental Protection Agency weighed in – but not to take up the cause of residents. Instead, EPA called Olin with an offer. Would the Charleston plant like to be enrolled in Performance Track, an elite green club of the nation’s most environmentally progressive companies?

In return, Olin could expect regulatory breaks, such as fewer inspections and loosened requirements on hazardous waste disposal, not to mention positive publicity. Sherry Neidich, who has lived half her life a mile downriver from Olin’s plant, was stunned. “The EPA is a toothless dog,” she said. “What right does someone have to ruin my river? To poison our playground?” . . .

[The Inquirer has found that] the EPA has recruited companies with mixed – even dismal – environmental records to become Performance Track members. Despite offering members regulatory breaks and promoting the program as one that improves environmental performance, the EPA fails to independently verify that Performance Track companies actually reach their goals.

According to the series, there is widespread exasperation in the courts (even among very conservative Republican nominees) about Bush-era extremism. As James R. May, (a Widener University lawprof and chair of the American Bar Association’s annual Environment and Energy Resources conference) puts it, “All across the spectrum, judges are finding that virtually every environmental initiative of the Bush administration is illegal.”

Many of the rules that could be issued over the next few weeks would ease environmental regulations, according to sources familiar with administration deliberations. A rule put forward by the National Marine Fisheries Service and now under final review by the OMB would lift a requirement that environmental impact statements be prepared for certain fisheries-management decisions and would give review authority to regional councils dominated by commercial and recreational fishing interests.

Two other rules nearing completion would ease limits on pollution from power plants, a major [...]]]> There was a good discussion of end-of-term regulations we can expect from the last days of the Bush Administration on the Diane Rehm show. Now the Washington Post has foreshadowed the lasting environmental impact the Bush agencies are planning:

Many of the rules that could be issued over the next few weeks would ease environmental regulations, according to sources familiar with administration deliberations. A rule put forward by the National Marine Fisheries Service and now under final review by the OMB would lift a requirement that environmental impact statements be prepared for certain fisheries-management decisions and would give review authority to regional councils dominated by commercial and recreational fishing interests.

Two other rules nearing completion would ease limits on pollution from power plants, a major energy industry goal for the past eight years that is strenuously opposed by Democratic lawmakers and environmental groups. One rule, being pursued over some opposition within the Environmental Protection Agency, would allow current emissions at a power plant to match the highest levels produced by that plant, overturning a rule that more strictly limits such emission increases. According to the EPA’s estimate, it would allow millions of tons of additional carbon dioxide into the atmosphere annually, worsening global warming. A related regulation would ease limits on emissions from coal-fired power plants near national parks. A third rule would allow increased emissions from oil refineries, chemical factories and other industrial plants with complex manufacturing operations.

Though these moves may be reversed under the terms of the Congressional Review Act, it has not proven to be very effective in the past. Senate holds may permit just one senator to keep in place a particularly retrograde rule–and the notice and comment needed to reverse it within the executive branch may take a long time. If the hold practice remains robust, Sens. Inhofe or Coburn of Oklahoma may simply block Congressional reversal of any of these moves.