Topic: Energy and Environment

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.

Krugman and Libertarianism and Political Power

Paul Krugman has a post today titled “Why Libertarianism Doesn’t Work, Part N.” Maybe parts A-M were compelling, but it seems like there’s a big flaw in his logic today. Here’s the entire item:

Thinking about BP and the Gulf: in this old interview, Milton Friedman says that there’s no need for product safety regulation, because corporations know that if they do harm they’ll be sued.

Interviewer: So tort law takes care of a lot of this ..

Friedman: Absolutely, absolutely.

Meanwhile, in the real world:

In the wake of last month’s catastrophic Gulf Coast oil spill, Sen. Lisa Murkowski blocked a bill that would have raised the maximum liability for oil companies after a spill from a paltry $75 million to $10 billion. The Republican lawmaker said the bill, introduced by Sen. Robert Menendez (D-NJ), would have unfairly hurt smaller oil companies by raising the costs of oil production. The legislation is “not where we need to be right now” she said.

And don’t say that we just need better politicians. If libertarianism requires incorruptible politicians to work, it’s not serious.

Well, he’s got a point. Politicians do interfere in the tort system — by placing caps on liability, by stripping defendants of traditional legal defenses, and in other ways. As my colleague Aaron Powell notes, the problem here is that politicians have power that libertarians wouldn’t grant them. And:

Second, and more troubling for Krugman, is his admission that all politicians are corruptible. If that’s true (and it almost certainly is), then what does it say about Krugman’s constant calls for granting those same corruptible folks more power over our lives? Surely if Murkowski is corrupt enough to protect BP from tort damages, she’s corrupt enough to rig safety regulations in BP’s favor.

The libertarian system of markets and property rights is impeded when politicians interfere in it. But Krugman’s ideal system is that politicians should decide all questions — monetary policy, health care policy, product safety, environmental tradeoffs, you name it. Whose system is more likely to produce corrupt politicians, and more likely to fail because of them?

Kerry and Lieberman Unveil Their Climate Bill: Such a Deal!

I see that my colleague Sallie James has already blogged on the inherent protectionism in the Senate’s long-awaited cap-and-tax bill.  A summary was leaked last night by The Hill.

Well, we now have the real “discussion draft” of  “The American Power Act” [APA], sponsored by John Kerry (D-NH) and Joe Lieberman (I-CT).  Lindsay Graham (R-SC) used to be on the earlier drafts, but excused himself to have a temper tantrum.

So, while Sallie talked about the trade aspects of the bill, I’d like to blather about the mechanics, costs, and climate effects. If you don’t want to read the excruciating details, stop here and note that it mandates the impossible, will not produce any meaningful reduction of planetary warming, and it will subsidize just about every form of power that is too inefficient to compete today.

APA reduces emissions to the same levels that were in the Waxman-Markey bill passed by the House last June 26.  Remember that one – snuck through on a Friday evening, just so no one would notice?  Well, people did, and it, not health care, started the angry townhall meetings last summer.  No accident, either, that Obama’s approval ratings immediately tanked.

Just like Waxman-Markey, APA will allow the average American the carbon dioxide emissions of the average citizen back in 1867, a mere 39 years from today.  Just like Waxman-Markey, the sponsors have absolutely no idea how to accomplish this.  Instead they wave magic wands for noncompetitive technologies like “Carbon Capture and Sequestration” (“CCS”, aka “clean coal”), solar energy and windmills, and ethanol (“renewable energy”), among many others.

Just like Waxman-Markey, no one knows the (enormous) cost.  How do you put a price on something that doesn’t exist?  We simply don’t know how to reduce emissions by 83%.  Consequently, APA is yet another scheme to make carbon-based energy so expensive that you won’t use it.

This will be popular!  At $4.00 a gallon, Americans reduced their consumption of gasoline by a whopping 4%.  Go figure out how high it has to get to drop by 83%.

Oh, I know. Plug-in hybrid cars will replace gasoline powered ones. Did I mention that the government-produced Chevrolet Volt is, at first, only going to be sold to governments and where it is warm because even the Obama Administration fears that the car will not be very popular where most of us live.  Did I mention that the electric power that charges the battery most likely comes from the combustion of a carbon-based fuel? Getting to that 83% requires getting rid of carbon emissions from power production.  Period.  In 39 years. Got a replacement handy?

Don’t trot out natural gas.  It burns to carbon dioxide and water, just like coal.  True, it’s about 55% of the carbon dioxide that comes from coal per unit energy, but we’ll also use a lot more more electricity over the next forty years.  In other words, switching to natural gas will keep adding emissions to the atmosphere.

Anyway, just for fun, I plugged the APA emissions reduction schedule into the Model for the Assessment of Greenhouse-gas Induced Climate Change (MAGICC – I am not making this up), which is what the United Nations uses to estimate the climatic effects of various greenhouse-gas scenarios.

I’ve included two charts with three scenarios. One is for 2050 and the other for 2100.  They assume that the “sensitivity” of temperature to a doubling of atmospheric carbon dioxide is 2.5°C, a number that many scientists think is too high, given the pokey greenhouse-effect warming of the planet that has occurred as we have effectively gone half way to a doubling already. The charts show prospective warming given by MAGICC.

The first scenario is “business-as-usual”, the perhaps too-optimistic way of saying a nation without APA.  The second assumes that only the US does APA, and the third assumes that each and every nation that has “obligations” under the UN’s Kyoto Protocol on global warming does the same.

As you can plainly see,  APA does nothing, even if all the Kyoto-signatories meet its impossible mandates.  The amount of warming “saved” by 2100 is 7% of the total for Business-as-Usual, or two-tenths of a degree Celsius. That amount will be barely detectable above the year-to-year normal fluctuations.  Put another way, if we believe in MAGICC, APA – if adopted by us, Europe, Canada, and the rest of the Kyotos – will reduce the prospective temperature in 2100 to what it would be in 2093.

That’s a big if.  Of course, we could go it alone. In that case, the temperature reduction would in fact be too small to measure reliably.

I’m hoping these numbers surface in the “debate” over APA.

So there you have it, the new American Power Act, a bill that doesn’t know how to achieve its mandates, has a completely unknown but astronomical cost, and doesn’t do a darned thing about global warming.  Such a deal!

Senate Climate Bill Trade FAIL

The Kerry-Lieberman-Graham (is he still part of these efforts?) climate bill summary has been leaked. I’m sure my colleague Pat Michaels will weigh in on its contents soon, but in the meantime I thought I would comment on the trade-related aspects of the bill, or at least the summary that is now in the public domain.

As Scott Lincicome points out, the drafters have gone to great pains to emphasize that this bill is, like, totally about saving the environment.  (Which, by the way, is a bit of a turnaround). I’ve blogged before about why advocates of “border adjustment measures” need to be careful about the justification they offer.  In short, the World Trade Organization does not look too kindly upon disguised protectionism, and any legal challengers would probably use things like, say, press releases touting the (traditional) protective benefits of carbon tariffs as evidence of U.S. wrongdoing. The House bill fell short in that regard, with lots of talk about equalizing costs etc, and apparently the sponsors of the Senate bill have learned from warnings from trade experts. Not completely, though. Here’s Scott on their efforts to be more careful, and why they fall short:

The bill’s short summary (available here) also follows [a] new “green” road-map…:

In order to protect the environmental goals of the bill, we phase in a WTO-consistent border adjustment mechanism. In the event that no global agreement on climate change is reached, the bill requires imports from countries that have not taken action to limit emissions to pay a comparable amount at the border to avoid carbon leakage and ensure we are able to achieve our environmental objectives.

You couldn’t shoehorn more “environmental” references into this summary if you tried.  Only one small problem: this strictly “environmental” summary falls clearly under the main heading “Expanding America’s Manufacturing Base,” and the long summary of Sections 775-777 above comes under the main heading “Subtitle A - Protecting American Manufacturing Jobs and Preventing Carbon Leakage.”  So did the Senate drafters really just take all that time purging all of the scary “competitiveness” language from their new bill’s carbon tariffs provisions, only to keep them under a legislative subtitle that expressly denotes provisions dealing with domestic industrial competitiveness?

Scott’s right, but I found the heading in the bill’s long summary even more blatant: Title IV, under which the international provisions are explained, is called “Job Protection and Growth”. Call me overly cautious, but I don’t think having the phrase “job protection” as the first words in the title on border measures is a good way to hide your intent from the WTO or, for that matter, your increasingly-fractious trade partners.

Of Butterflies, Tsunamis, and Draconian Recusal Standards

Last October, I blogged about Comer v. Murphy Oil USA, a lawsuit in Mississippi alleging that the defendant oil, coal, utility, and chemical companies emit carbon dioxide, which causes global warming, which exacerbated Hurricane Katrina, which damaged the plaintiffs’ property.  Mass tort litigation specialist Russell Jackson called the case “the litigator’s equivalent to the game ‘Six Degrees of Kevin Bacon.’”  In a brief that Cato was due to file this week, I framed the operative question as, “When a butterfly flaps its wings, can it be sued for the damage any subsequent tsunami causes?”

The plaintiffs asserted a variety of theories under Mississippi common law, but the main issue at this stage was whether the plaintiffs had standing, or whether they could demonstrate that their injuries were “fairly traceable” to the defendants’ actions.  The federal district court dismissed the case but a dream panel (for the plaintiffs) of the Fifth Circuit Court of Appeals held that the plaintiffs could indeed proceed with claims regarding public and private nuisance, trespass, and negligence. 

In my blog post, I predicted that the Fifth Circuit would take up the case en banc (meaning before all the judges on the court, in this case 17) and reverse the panel.  And this was all set to happen – even though eight judges recused themselves, presumably because they owned shares of defendant companies – with en banc argument slated for May 24.  I was planning to head down to New Orleans for it, in part because the judge I clerked for, E. Grady Jolly, was going to preside over the hearing (the only two more senior active judges being recused).

But a funny thing happened on the way to legal sanity.  On Friday, not half an hour after I had finished editing Cato’s brief, the court clerk issued a notice informing the parties that one more judge had recused and, therefore, the en banc court lacked a quorum.  As of this writing, I still don’t know who this judge is and what circumstances had changed since the granting of the en banc rehearing to cause the recusal.  And indeed, by all accounts the Fifth Circuit is still figuring out what to do in this unusual (and, as far as I know, unprecedented) situation where a court loses a quorum it initially had – having already vacated the panel decision.

In short, the court could decide that the vacatur stands and either remand to a (now-confused) district court or rehear the case in a new random panel assignment.  More likely, however, the court will now reinstate the terrible, horrible, no good, very bad panel decision – and we’ll tweak our brief to make into one that supports the defendants’ inevitable cert petition.

All in all, an illustration of the absurdity both of litigating climate change politics in the courts and of forcing judges (including Supreme Court justices) to withdraw from cases for owning a few hundred dollars’ worth of stock.  If that’s all it takes to corrupt federal judges, we have bigger problems than trial lawyers run amok!

Why the Neo-Malthusian Worldview Fails the Reality Check

Why does the Neo-Malthusians’ dystopian worldview — that human and environmental well-being will suffer with increases in population, affluence and technological change — fail the reality check? Why has human well-being improved in the Age of Industrialization despite order-of-magnitude increases in the consumption of materials, fossil fuel energy and chemicals?

I offer some reasons in the last of a series of posts (1, 2, 3, 4) at MasterResource.

I note that although population, affluence and technology can create some problems for humanity and the planet, they are also the agents for solving those problems. In particular, human capital and greater affluence have helped the development and adoption of new and improved technologies, which empirical data show have reduced risks faster than the new risks that may have been created — hence the continual improvement in human well-being in the era of modern economic growth.

A corollary to this is that projections of future impacts spanning a few decades, but that do not account for technological change as a function of time and affluence, more likely than not will overestimate impacts, perhaps by orders of magnitude. In fact, this is one reason why many estimates of the future impacts of climate change are suspect, because most do not account for changes in adaptive capacity either due to secular technological change or increases in economic development.

Yogi Berra is supposed to have said, “It’s tough to make predictions, especially about the future.” Most analysts recognize this. They know that just because one can explain and hindcast the past, it does not guarantee that one can forecast the future. Neo-Malthusians, by contrast, cannot hindcast the past but are confident they can forecast the future.

Finally, had the solutions that Neo-Malthusians espouse been put into effect a couple of centuries ago, most of us alive today would be dead and those who were not would be living poorer, shorter, and unhealthier lives, constantly subject to the vagaries of nature, surviving from harvest to harvest, spending more of our time in darkness because lighting would be a luxury, and spending more of our days in the drudgery of menial tasks because, under their skewed application of the precautionary principle (see here, here and here), fossil fuel consumption would be severely curtailed, if not banned.

Nor would the rest of nature necessarily be better off.  First, lower reliance on fossil fuels would mean greater demand for fuelwood, and the forests would be denuded.  Second, less fossil fuels also means less fertilizer and pesticides and, therefore, lower agricultural productivity. To compensate for lost productivity, more habitat would need to be converted to agricultural uses. But habitat conversion (including deforestation) — not climate change — is already the greatest threat to biodiversity!

Read the whole post here.

U.S. Well-Being in the Age of Fossil Fuels

Elsewhere, I have shown data that, notwithstanding the Neo-Malthusian worldview, human well-being has advanced globally since the start of industrialization more than two centuries ago, despite massive increases in population, consumption, affluence, and carbon dioxide emissions. Here I will focus on long-term trends in U.S. well-being, as measured by the average life expectancy at birth, in the age of fossil fuels.

Since 1900, the U.S. population has quadrupled, affluence has septupled, GDP has increased 30-fold, synthetic organic chemical use has increased 85-fold, metals use 14-fold, material use 25-fold, and CO2 emissions 8-fold.  Yet life expectancy advanced from 47 to 78 years.

During the same period, emissions of air pollution waxed and waned. Food and water got safer, as indicated by the virtual elimination of deaths from gastrointestinal (GI) diseases between 1900 and 1970. Cropland, a measure of habitat converted to human uses — the single most important pressure on species, ecosystems, and biodiversity — was more or less unchanged from 1910 onward despite the increase in food demand.

For the most part, life expectancy grew more or less steadily for the United States, except for a brief plunge at the end of the World War I, accentuated by the 1918–1920 Spanish flu epidemic. As in the rest of the world, today’s U.S. population not only lives longer, it is also healthier. The disability rate for seniors declined 28 percent between 1982 and 2004/2005 and, despite quantum improvements in diagnostic tools, major diseases (e.g., cancer, and heart and respiratory diseases) now occur 8–11 years later than a century ago.

The reductions in rates of deaths and diseases since at least 1900 in the United States, despite increased population, energy, and material and chemical use, belie the Neo-Malthusian worldview.  The improvements in the human condition can be ascribed to broad dissemination (through education, public health systems, trade and commerce) of numerous new and improved technologies in agriculture, health and medicine supplemented through various ingenious advances in communications, information technology and other energy powered technologies (see here for additional details). The continual increase in life expectancy accompanied by the decline in disease indicates that new technologies reduced risks by a greater amount than any risks that they may have created or exacerbated due to pollutants associated with greater consumption of materials, chemicals and  energy,

And this is one reason why the Neo-Malthusian vision comes up short. It dwells on the increases in risk that new technologies may create or aggravate but overlooks the larger — and usually more certain — risks that they would also eliminate or reduce. In other words, it focuses on the pixels, but misses the larger picture, despite pretensions to a holistic worldview.

It was this mindset — legitimized as the “precautionary principle” — that led, for instance, to the premature reduction in DDT usage even in areas where malaria was endemic and could be reduced through its use.

Read the more detailed post, with figures, here.