Tag: global warming

Supreme Court Should Tell Courts to Stay Out of Global Warming Cases

The Supreme Court is finally starting to put some interesting non-First Amendment cases on this term’s docket.

Today, the Court agreed to review American Electric Power Co., Inc. v. Connecticut, in which eight states, some non-profits, and New York City are suing a number of energy companies and utilities for harms they allegedly caused by contributing to global warming.  This is the third major lawsuit to push global warming into the courts (another being Comer v. Murphy Oil USA, in which Cato also filed a brief).  It’s America, after all, where we sue to solve our problems – even apparently, taking to court the proverbial butterfly that caused a tsunami.

Mind you, you can sue your neighbor for leaking toxic water onto your land. Courts are well positioned to adjudicate such disputes because they involve only two parties and have limited (if any) effects on others. But it is a different case when, using the same legal theory by which Jones sues Smith for his toxic dumping (called “nuisance”), plaintiffs selectively sue a few targeted defendants for a (quite literally) global problem.  As I discussed with reference to a previous such case, global warming is the type of issue that should be decided by the political branches. The Second Circuit ruled, however, that this suit could go forward. (Justice Sotomayor was involved in the case at that stage and so will be recused going forward.)  

The Supreme Court has always recognized that not all problems can or should be solved in the courtroom. Thus, the issue in AEP v. Connecticut – which the Court will now decide – is whether the states meet the legal requirements necessary to have their suit heard in court, what lawyers call “standing.” Historically, issues of policy have been decided by the legislative and executive branches while “cases and controversies” have been decided by courts. Therefore, when litigants have asked courts determine matters of broad-ranging policy, the Court has often termed the cases “political questions” and dismissed them. The reasoning is that, not only do unelected courts lack the political authority to determine such questions, they also lack any meaningful standards by which the case could be decided (called “justiciability”).

Indeed, even if the plaintiffs can demonstrate causation, it is unconstitutional for courts to make complex policy decisions — and this is true regardless of the science regarding global warming. Just as it’s unconstitutional for a legislature to pass a statute punishing a particular person (bill of attainder), it’s unconstitutional — under the “political question doctrine” — for courts to determine wide-ranging policies in which numerous considerations must be weighed against each other in anything but a bilateral way.  

We pointed out in our brief supporting the defendants’ request for Supreme Court review – and will again in the brief we plan to file at this next stage – that resolving this case while avoiding those comprehensive and far-reaching implications is impossible and that the Constitution prohibits the judicial usurpation of roles assigned to the other, co-equal branches of government.   After all, global warming is a global problem purportedly caused by innumerable actors, ranging from cows to Camrys. This fact not only underscores the political nature of the question, but it has constitutional significance: In order to sue someone, your injury must be “fairly traceable” to the defendant’s actions. Suits based on “butterfly effect” reasoning should not be allowed to move forward.

Perhaps surprisingly, the federal government –which is involved because one of the defendants is the Tennessee Valley Authority – agrees with Cato . The administration aptly played its role in our constitutional system by asserting that global warming policy was a matter for the executive and legislative branches to resolve, not the judiciary. 

Hmmm, Cato and Obama on the same side in a global warming dispute… but I still won’t be holding my breath awaiting an invite to the White House Christmas party.

On Happiness

The financial crisis and global warming have reinforced an age-old criticism of our traditional ways of measuring wealth, and a number of alternative indexes have been proposed that would instead measure people’s well-being and environmental sustainability.

There are problems with using GDP. It involves an incredible amount of guesswork; and even if it were perfect, it would be bizarre to use production of goods and services as the only yardstick to evaluate our societies. But finding problems is one thing; it is something completely different to find an alternative that is better. Any sort of well-being index would require agreement on what well-being is, and there is a risk that governments would be tempted to find a one-size-fits-all standard and try to make us all wear it.

In a new paper I examine some of the proposed alternatives and they all beg the question about well-being by defining it as the result of the particular kinds of policies that they happen to prefer. Bhutan’s famous National Happiness Index, for example, defines it partly as a strong, traditional culture, and has used it to oppress minorities. And the Commission on the Measurement of Economic Performance and Social Progress, created by French president Nicolas Sarkozy and led by economist Joseph Stiglitz, selectively chooses measures to show that France is richer in relation to the United States than it would otherwise be.

The advantage of GDP is precisely what it has often been criticized for – that it is a narrow and value-free measure. It does not even try to define well-being, and so fits liberal, pluralistic societies in which people have different interests, preferences and attitudes toward well-being. It tells us what we can do, but not what we should do; and since it measures what we can do, it also correlates with most of the things most people want from life: better health, longer lives, less poverty and even happiness. The latest research shows not only that people in rich countries are happier but also that countries grow happier as they become richer.

Read the paper here. Read Will Wilkinson’s Policy Analysis on happiness research here.

The Shocking Truth: The Scientific American Poll on Climate Change

November’s Scientific American features a profile of Georgia Tech atmospheric scientist Judith Curry,  who has committed the mortal sin of  reaching out to other scientists who hypothesize that global warming isn’t the disaster it’s been cracked up to be.  I have personal experience with this, as she invited me to give a research seminar in Tech’s prestigious School of Earth and Atmospheric Sciences in 2008.  My lecture summarizing the reasons for doubting the apocalyptic synthesis of climate change was well-received by an overflow crowd.

Written by Michael Lemonick, who hails from the shrill blog Climate Central, the article isn’t devoid of the usual swipes, calling her a “heretic„ which is hardly at all true.  She’s simply another hardworking scientist who lets the data take her wherever it must, even if that leads her to question some of our more alarmist colleagues. 

But, as a make-up call for calling attention to Curry, Scientific American has run a poll of its readers on climate change.  Remember that SciAm has been shilling for the climate apocalypse for years, publishing a particularly vicious series of attacks on Denmark’s Bjorn Lomborg’s Skeptical Environmentalist.  The magazine also featured NASA’s James Hansen and his outlandish claims on sea-level rise. Hansen has stated, under oath in a deposition, that a twenty foot rise is quite possible within the next 89 years; oddly, he has failed to note that in 1988 he predicted that the West Side Highway in Manhattan would go permanently under water in twenty years.

SciAm probably expected a lot of people would agree with the key statement in their poll that the United Nations’ Intergovernmental Panel on Climate Change (IPCC) is “an effective group of government representatives and other experts.”

Hardly. As of this morning, only 16% of the 6655 respondents agreed.  84%—that is not a typo—described the IPCC as “a corrupt organization, prone to groupthink, with a political agenda.” 

The poll also asks “What should we do about climate change?” 69% say “nothing, we are powerless to stop it.” When asked about policy options, an astonishingly low 7% support cap-and-trade, which passed the U.S. House of Representatives in June, 2009, and cost approximately two dozen congressmen their seats.

The real killer is question “What is causing climate change?” For this one, multiple answers are allowed.  26% said greenhouse gases from human activity, 32% solar variation, and 78% “natural processes.” (In reality all three are causes of climate change.)

And finally, “How much would you be willing to pay to forestall the risk of catastrophic climate change?”  80% of the respondents said “nothing.”

Remember that this comes from what is hardly a random sample.  Scientific American is a reliably statist publication and therefore appeals to a readership that is skewed to the left of the political center.  This poll demonstrates that virtually everyone now acknowledges that the UN has corrupted climate science, that climate change is impossible to stop, and that futile attempts like cap-and-trade do nothing but waste money and burn political capital, things that Cato’s scholars have been saying for years.

The Current Wisdom

NOTE:  This is the first in a series of monthly posts in which Senior Fellow Patrick J. Michaels reviews interesting items on global warming in the scientific literature that may not have received the media attention that they deserved, or have been misinterpreted in the popular press.

The Current Wisdom only comments on science appearing in the refereed, peer-reviewed literature, or that has been peer-screened prior to presentation at a scientific congress.

The Iceman Goeth:  Good News from Greenland and Antarctica

How many of us have heard that global sea level will be about a meter—more than three feet—higher in 2100 than it was in the year 2000?  There are even scarier stories, circulated by NASA’s James E. Hansen, that the rise may approach 6 meters, altering shorelines and inundating major cities and millions of coastal inhabitants worldwide.

Figure 1. Model from a travelling climate change exhibit (currently installed at the Field Museum of natural history in Chicago) of Lower Manhattan showing what 5 meters (16 feet) of sea level rise will look like.

In fact, a major exhibition now at the prestigious Chicago Field Museum includes a 3-D model of Lower Manhattan under 16 feet of water—this despite the general warning from the James Titus, who has been EPA’s sea-level authority for decades:

Researchers and the media need to stop suggesting that Manhattan or even Miami will be lost to a rising sea. That’s not realistic; it promotes denial and panic, not a reasoned consideration of the future.

Titus was commenting upon his 2009 publication on sea-level rise in the journal Environmental Research Letters.

The number one rule of grabbing attention for global warming is to never let the facts stand in the way of a good horror story, so advice like Titus’s is usually ignored.

The catastrophic sea level rise proposition is built upon the idea that large parts of the ice fields that lay atop Greenland and Antarctica will rapidly melt and slip into the sea as temperatures there rise.  Proponents of this idea claim that the United Nations’ Intergovernmental Panel on Climate Change (IPCC), in its most recent (2007) Assessment Report,  was far too conservative in its projections of future sea level rise—the mean value of which is a rise by the year 2100 of about 15 inches.

In fact, contrary to virtually all news coverage, the IPCC actually anticipates that Antarctica will gain ice mass (and lower sea level) as the climate warms, since the temperature there is too low to produce much melting even if it warms up several degrees, while the warmer air holds more moisture and therefore precipitates more snow. The IPCC projects Greenland to contribute a couple of inches of sea level rise as ice melts around its periphery.

Alarmist critics claim that the IPCC’s projections are based only on direct melt estimates rather than “dynamic” responses of the glaciers and ice fields to rising temperatures.

These include Al Gore’s favorite explanation—that melt water from the surface percolates down to the bottom of the glacier and lubricates its base, increasing flow and ultimately ice discharge. Alarmists like Gore and Hansen claim that Greenland and Antarctica’s glaciers will then “surge” into the sea, dumping an ever-increasing volume of ice and raising water levels worldwide.

The IPCC did not include this mechanism because it is very hypothetical and not well understood.  Rather, new science argues that the IPCC’s minuscule projections of sea level rise from these two great ice masses are being confirmed.

About a year ago, several different research teams reported that while glaciers may surge from time to time and increase ice discharge rates, these surges are not long-lived and that basal lubrication is not a major factor in these surges. One research group, led by Faezeh Nick and colleagues reported that “our modeling does not support enhanced basal lubrication as the governing process for the observed changes.” Nick and colleagues go on to find that short-term rapid increases in discharge rates are not stable and that “extreme mass loss cannot be dynamically maintained in the long term” and ultimately concluding that “[o]ur results imply that the recent rates of mass loss in Greenland’s outlet glaciers are transient and should not be extrapolated into the future.”

But this is actually old news. The new news is that the commonly-reported (and commonly hyped) satellite estimates of mass loss from both Greenland and Antarctica were a result of improper calibration, overestimating ice loss by  some 50%.

As with any new technology, it takes a while to get all the kinks worked out. In the case of the Gravity Recovery and Climate Experiment (GRACE) satellite-borne instrumentation, one of the major problems is interpreting just what exactly the satellites are measuring. When trying to ascertain mass changes (for instance, from ice loss) from changes in the earth’s gravity field, you first have to know how the actual land under the ice is vertically moving (in many places it is still slowly adjusting from the removal of the glacial ice load from the last ice age).

The latest research by a team led by Xiaoping Wu from Caltech’s Jet Propulsion Laboratory concludes that the adjustment models that were being used by previous researchers working with the GRACE data didn’t do that great of a job. Wu and colleagues enhanced the existing models by incorporating land movements from a network of GPS sensors, and employing more sophisticated statistics. What they found has been turning heads.

Using the GRACE measurements and the improved model, the new estimates of the rates of ice loss from Greenland and Antarctica  are only about half as much as the old ones.

Instead of Greenland losing ~230 gigatons of ice each year since 2002, the new estimate is 104 Gt/yr. And for Antarctica, the old estimate of ~150 Gt/yr has been modified to be about 87 Gt/yr.

 How does this translate into sea level rise?

 It takes about 37.4 gigatons of ice loss to raise the global sea level 0.1 millimeter—four hundredths of an inch. In other words, ice loss from Greenland is currently contributing just over one-fourth of a millimeter of sea level rise per year, or one one-hundreth of an inch.  Antarctica’s contribution is just under one-fourth of a millimeter per year.  So together, these two regions—which contain 99% of all the land ice on earth—are losing ice at a rate which leads to an annual sea level rise of one half of one millimeter per year. This is equivalent to a bit less than 2 hundredths of an inch per year.  If this continues for the next 90 years, the total sea level rise contributed by Greenland and Antarctica by the year 2100 will amount to less than 2 inches.

 Couple this with maybe 6-8 inches from the fact that the ocean rises with increasing temperature,  temperatures and 2-3 inches from melting of other land-based ice, and you get a sum total of about one foot of additional rise by century’s end.

 This is about 1/3rd of the 1 meter estimates and 1/20th of the 6 meter estimates.

Things had better get cooking in a hurry if the real world is going to approach these popular estimates. And there are no signs that such a move is underway.

So far, the 21st century has been pretty much of a downer for global warming alarmists. Not only has the earth been warming at a rate considerably less than the average rate projected by climate models, but now the sea level rise is suffering a similar fate.

Little wonder that political schemes purporting to save us from these projected (non)calamities are also similarly failing to take hold.

References:

Nick, F. M., et al., 2009. Large-scale changes in Greenland outlet glacier dynamics triggered at the terminus. Nature Geoscience, DOI:10.1038, published on-line January 11, 2009.

Titus, J.G., et al., 2009. State and Local Governments Plan for Development of Most Land Vulnerable to Rising Sea Level along the U.S. Atlantic Coast, Environmental Research Letters 4 044008. (doi: 10.1088/1748-9326/4/4/044008).

Wu, X., et al., 2010. Simultaneous estimation of global present-day water treansport and glacial isostatic adjustment. Nature Geoscience, published on-line August 15, 2010, doi: 10.1038/NGE0938.

Why Are We Paying $100 Million to International Bureaucrats in Paris so They Can Endorse Obama’s Statist Agenda?

There’s a wise old saying about “don’t bite the hand that feeds you.” But perhaps we need a new saying along the lines of “don’t subsidize the foot that kicks you.” Here’s a good example: American taxpayers finance the biggest share of the budget for the Organization for Economic Cooperation and Development, which is an international bureaucracy based in Paris. The OECD is not as costly as the United Nations, but it still soaks up about $100 million of American tax dollars each year. And what do we get in exchange for all this money? Sadly, the answer is lots of bad policy. The bureaucrats (who, by the way, get tax-free salaries) just released their “Economic Survey of the United States, 2010” and it contains a wide range of statist analysis and big-government recommendations.

The Survey endorses Obama’s failed Keynesian spending bill and the Fed’s easy-money policy, stating, “The substantial fiscal and monetary stimulus successfully turned the economy around.” If 9.6 percent unemployment and economic stagnation is the OECD’s idea of success, I’d hate to see what they consider a failure. Then again, the OECD is based in Paris, so even America’s anemic economy may seem vibrant from that perspective.

The Survey also targets some very prominent tax loopholes, asserting that, “The mortgage interest deduction should be reduced or eliminated” and “the government should reduce further this [health care exclusion] tax expenditure.” If the entire tax code was being ripped up and replaced with a simple and fair flat tax, these would be good policies. Unfortunately (but predictably), the OECD supports these policies as a means of increasing the overall tax burden and giving politicians more money to spend.

Speaking of tax increases, the OECD is in love with higher taxes. The Paris-based bureaucrats endorse Obama’s soak-the-rich tax agenda, including higher income tax rates, higher capital gains tax rates, more double taxation of dividends, and a reinstated death tax. Perhaps because they don’t pay tax and are clueless about how the real world operates, the bureaucrats state that “…the Administration’s fiscal plan is ambitious…and should therefore be implemented in full.”

But even that’s not enough. The OECD then puts together a menu of additional taxes and even gives political advice on how to get away with foisting these harsh burdens on innocent American taxpayers. According to the Survey, “A variety of options is available to raise tax revenue, some of which are discussed below. Combined, they have the potential to raise considerably more revenue… The advantage of relying on a package of measures is that the increase in taxation faced by individual groups is more limited than otherwise, reducing incentives to mobilise to oppose the tax increase.”

The biggest kick in the teeth, though, is the OECD’s support for a value-added tax. The bureaucrats wrote that, “Raising consumption taxes, notably by introducing a federal value-added tax (VAT), could therefore be another approach… A national VAT would be easier to enforce than other taxes, as each firm in the production chain pays only a fraction of the tax and must report the sales of other firms.”

But just in case you think the OECD is myopically focused on tax increases, you’ll be happy to know it is a full-service generator of bad ideas. The Paris-based bureaucracy also is a rabid supporter of the global-warming/climate-change/whatever-they’re-calling-it-now agenda. There’s an entire chapter in the survey on the issue, but the key passages is, “The current Administration is endeavouring to establish a comprehensive climate-change policy, the main planks of which are pricing GHG emissions and supporting the development of innovative technologies to reduce GHG emissions. As discussed above and emphasized in the OECD (2009), this is the right approach… Congress should pass comprehensive climate-change legislation.”

You won’t be surprised to learn that the OECD’s reflexive support for higher taxes appears even in this section. The bureaucrats urge that “such regulation should be complemented by increases in gasoline and other fossil-fuel taxes.”

If you’re still not convinced the OECD is a giant waste of money for American taxpayers, I suggest you watch this video released by the Center for Freedom and Prosperity about two months ago. It’s a damning indictment of the OECD’s statist agenda (and this was before the bureaucrats released the horrid new “Economic Survey of the United States”).

Global Warming Plaintiffs Hoisted on Their Own Petard

We have reached a denouement of sorts in the “blame XYZ companies for causing global warming which caused Hurricane Katrina which damaged my property” lawsuit that I’ve previously discussed and in which Cato filed an amicus brief.  When last I blogged about this, the Fifth Circuit had apparently lost its en banc quorum – a late judicial recusal left only 8 of 16 judges available to hear the appeal – and was figuring out what to do. 

Well, on Thursday the court issued an order determining that it lacked a quorum, but that the panel opinion – the one that allowed the tendentious causation claims to proceed – remained vacated.  The money quote: “In sum, a court without a quorum cannot conduct judicial business… .  Because neither this en banc court, nor the panel, can conduct further judicial business in this appeal, the Clerk is directed to dismiss the appeal.”  This means that the district court opinion dismissing the suit stands, though plaintiffs are free to seek Supreme Court review.  Not surprisingly, the three judges on the panel dissented from this order (which means that the order was decided by a 5-3 vote).

The upshot of all this is that the plaintiffs ended up botching their strategy of suing companies whose shares are owned by Fifth Circuit judges.  This clever legerdemain successfully removed seven judges, but that left a quorum of nine.  Of course, had the late-recusing eighth, Jennifer Elrod – who would’ve been expected to rule against the plaintiffs – recused when the first seven did, the court could not have vacated the panel opinion in the first place.  We’ll never know what happened after the court’s prior decision to grant rehearing that caused Judge Elrod to recuse, but at least we’re left with the second-best result: no strong decision from an important federal appellate court, but the reinstatment of the correct decision below.

Big Global Warming Case Hinges on Weird Procedural Technicality

Nearly two weeks ago, I blogged about some strange procedural developments in the big global warming case coming out of the Gulf Coast, Comer v. Murphy Oil USA.  On the eve of final briefing deadlines before the en banc Fifth Circuit, an eighth judge of that court recused from the case (we don’t know the reason, but the previous seven recusals were presumably due to stock ownership) and so the court was faced with an unprecedented situation: losing an en banc quorum after previously having had enough of one to vacate the panel decision and grant en banc rehearing in the first place.  We were all set to file our brief when the Clerk of the Fifth Circuit issued an order notifying the parties of the lost quorum and canceling the scheduled hearing — and nothing more.  Out of an abundance of caution, we decided to go ahead with filing late last week.

Again, here’s the situation: Mississippi homeowners sued 34 energy companies and utilities operating in the Gulf Coast for damage sustained to their property during Hurricane Katrina. The homeowners alleged that the defendants had emitted greenhouse gases, which increased the concentration of greenhouse gases in the atmosphere, which contributed to global warming, which accelerated the melting of glaciers, which raised the global sea level, which increased the frequency and severity of hurricanes, which caused the destructive force of Hurricane Katrina. The district court concluded that it lacked the authority to resolve the public debate over global warming and dismissed the case. A Fifth Circuit panel reversed this dismissal, holding that the homeowners have standing to raise some of their claims and that those claims are appropriate for resolution by the federal courts. The Fifth Circuit then granted rehearing en banc.

Cato filed an amicus brief on the energy companies’ behalf, arguing that homeowners lack standing to bring their suit and that the case raises a nonjusticiable political question. Our brief asserts that the homeowners’ claim does not provide a clear causal connection between the harm suffered and any particular conduct by the energy companies, and that the money damages the homeowners requested would not remedy the environmental harm alleged. More importantly, we maintain that political questions such as those surrounding climate change must be resolved by Congress, not the federal courts. Put simply, the Constitution prohibits federal courts from resolving highly technical social and economic policy debates. Permitting plaintiffs to achieve “regulation by litigation” would not only contradict settled Supreme Court precedent, but would betray the separation of powers principles embodied in the Constitution.

The Clerk has since directed the parties to brief the procedural issues surrounding the apparent lost quorum, which letter-briefs came in this week (as a mere amicus, we did not file on this).  I’ll spare you the technical details, but there are three possible ways in which the Fifth Circuit could now rule: 1) the court actually does have a quorum and thus oral argument is resecheduled; 2) the panel decision is reinstated (with an ensuing cert petition appealing that decision to the Supreme Court); and 3) the district court is affirmed without opinion (the same result as when an appellate court vote is tied).  Stay tuned — this is a truly weird denouement to a hugely important case.