Environmental Law Prof Blog

Report on Climate Change Impacts in the US

On June 16, the U.S. Global Change Research Program released the NOAA-led study, "Global Climate Change Impacts in the United States" - which it describes as a "state of knowledge" report about current and project impacts of global warming on the US.  Climate-impacts-report  full copy PDF  The report is based on the accumulated body of scientific information from 21 US synthesis and assessment reports as well as the IPCC assessments.Executive-summary of climate impacts report   The report includes separate assessments of various US regions (regional analyses) as well as various aspects of society such as human health, transportation, energy supply and use, water resources, agriculture and ecosystems (sector analyses).

The key findings of the report as described by the government are:

1. Global warming is unequivocal and primarily human-induced.

Global temperature has increased over the past 50 years. This observed increase is due primarily to human-induced emissions of heat-trapping gases. (p. 13) 

2. Climate changes are underway in the United States and are projected to grow.

Climate-related changes are already observed in the United States and its coastal waters. These include increases in heavy downpours, rising temperature and sea level, rapidly retreating glaciers, thawing permafrost, lengthening growing seasons, lengthening ice-free seasons in the ocean and on lakes and rivers, earlier snowmelt, and alterations in river flows. These changes are projected to grow. (p. 27)

3. Widespread climate-related impacts are occurring now and are expected to increase. Climate changes are already affecting water, energy, transportation, agriculture, ecosystems, and health. These impacts are different from region to region and will grow under projected climate change. (p. 41-106, 107-152)

4. Climate change will stress water resources.

Water is an issue in every region, but the nature of the potential impacts varies. Drought, related to reduced precipitation, increased evaporation, and increased water loss from plants, is an important issue in many regions, especially in the West. Floods and water quality problems are likely to be amplified by climate change in most regions. Declines in mountain snowpack are important in the West and Alaska where snowpack provides vital natural water storage. (p. 41, 129, 135, 139)

 

5. Crop and livestock production will be increasingly challenged.

Agriculture is considered one of the sectors most adaptable to changes in climate. However, increased heat, pests, water stress, diseases, and weather extremes will pose adaptation challenges for crop and livestock production. (p. 71)

6. Coastal areas are at increasing risk from sea-level rise and storm surge.

Sea-level rise and storm surge place many U.S. coastal areas at increasing risk of erosion and flooding, especially along the Atlantic and Gulf Coasts, Pacific Islands, and parts of Alaska. Energy and transportation infrastructure and other property in coastal areas are very likely to be adversely affected. (p. 111, 139, 145, 149)

 7. Threats to human health will increase.

Health impacts of climate change are related to heat stress, waterborne diseases, poor air quality, extreme weather events, and diseases transmitted by insects and rodents. Robust public health infrastructure can reduce the potential for negative impacts. (p. 89)

 

8. Climate change will interact with many social and environmental stresses.

Climate change will combine with pollution, population growth, overuse of resources, urbanization, and other social, economic, and environmental stresses to create larger impacts than from any of these factors alone. (p. 99) 

9. Thresholds will be crossed, leading to large changes in climate and ecosystems.

There are a variety of thresholds in the climate system and ecosystems. These thresholds determine, for example, the presence of sea ice and permafrost, and the survival of species, from fish to insect pests, with implications for society. With further climate change, the crossing of additional thresholds is expected. (p. 76, 82, 115, 137, 142)

 

10. Future climate change and its impacts depend on choices made today.

The amount and rate of future climate change depend primarily on current and future human-caused emissions of heat-trapping gases and airborne particles. Responses involve reducing emissions to limit future warming, and adapting to the changes that are unavoidable. (p. 25, 29)

Haiti and the environment

The first thing that anyone learns about Haiti and the environment is that Haiti is the most deforested country in the world, having shifted from 60% forest cover to less than 2% forest cover.  And the immediate image in one's mind is that of desert.

Well, that's not exactly true.  At least not in a lot of the country.  Here are a few of my Haiti picutres:                                                                                                                                              Farmers plowing land by hand in Zabriko, Haiti (Susan L Smith)

This is a remote mountain area called Zabriko or Z'briko in Creole.  The name is roughly derived from the French words meaning  place of the apricots (i.e. oranges).  Its name on the map is " Apricot."  You will read alot in the next few months about Zabriko because that's the location of the first new water, sanitation, and hygiene education project of Haiti's indigenous farmer collective organization, the Peasant Movement of Papay (MPP).  I've worked with several groups here in the States to raise money for that project -- and its first phase is scheduled to be completed before Christmas.  It will capture and pipe a pure spring down to community taps at two schools in the center of the Zabriko area.  Those taps will provide clean drinking water for roughly 2,000 people -- at a cost under $ 13,000.  More on that later....

The part of Haiti I saw was between the capital of Port au Prince, pronounced "Praprin, " and the eastern interior of the Central Plateau.  Most of the Central Plateau is separated from the capital by two sizable mountain ranges with the Artibonite Valley in between.  That is the valley that was changed forever by construction of the Peligre dam and Peligre Lake some 35 or 40 years ago.                                                                       
Early summer in the Artibonite Valley, Haiti (Susan L Smith)

At least at this time of year, the beginning of the rainy season, most of the territory I saw is green.  The land is mostly covered with crops of various types such as maize, pastures for many goats and a few cattle, hedgerows of "rackets," a particularly nasty type of cactus used to prevent livestock from wandering, and occasional fruit trees (bananas, coconut, and mango) as well as fuelwood trees.

However, as the picture below attests, there are certainly areas closer to the capital that have been totally denuded.  And, in much of the country, the deforestation combined with primitive farming techniques has led to a dramatic loss of top soil, damaging crop productivity, seriously impairing water quality in both streams and the ocean, and leading to devastating floods and mudslides.  So, although the pictures are prettier than I expected, the environmental catastrophe caused by massive deforestation is no less.
.

View coming into the coastal plain adjoining Port au Prince (Susan L Smith)

Over the last 40 years, about 60 million trees were planted in Haiti.  Many were planted as part of international aid projects by the Pan American Development Foundation and other non-govermental organizations (NGOs), designed to produce fruit or fuelwood.  However, I am not aware of any serious, large-scale attempt to reforest Haiti with indigenous trees to produce sustainable forests or, as my friend the agronmist Mark Hare would say, to let God reforest Haiti.  Land is scarce in Haiti.  With a population approaching 8 million in an area the size of Maryland that is largely dependent on subsistence farming, using land for sustainable forests may be a difficult proposition.  But it can be sold with a well-designed effort that incorporated selectively harvested hardwoods (available within a generation to pay for annual school tuition, medical expenses, or retirement), immediately productive fruit trees for domestic consumption and export revenue, and some limited conservation reserves, all financed by carbon offset payments that can be used to improve agricultural practices, provide irrigation, and increase crop productivity.  I am currently exploring that possibility with Chavannes Jean-Baptiste, the founder of MPP, who received the 2005 Goldman Environmental Prize for MPP's reforestation efforts, and MPP.  I'll keep you posted. 

And to repeat what I said at Chico, I encourage all of my colleagues to advocate on behalf of carbon neutrality at their universities and law schools by 2012-2015, even though neutrality for a decade or two will require real carbon offsets.  Those offsets must be acquired by real, verifiable, and sustained reforestation or afforestation in order to be meaningful.  We at the universities who understand the dimensions of the global warming crisis must lead our governments  and show that carbon neutrality is not just necessary to prevent catastrophic climate change; it is achievable in the not very distant future.

I'm back

My last post was from before my early summer travels.  Since then, I spent 10 days going to and from the Rocky Mountain Mineral Law Foundation's Natural Resources Law Teacher's conference in Chico Hot Springs, Montana.  But perhaps more importantly, I took my first 10 day trip to Haiti.

I'm going to start with notes from the last trip first....because its fresher in my mind.  Then I'll cover the Chico conference.  Then I'll try to reintegrate into the everyday life of a law professor.  I'm not promising much, but here goes.....

The Washington Post reported today on the Iqbal case alleging that former attorney general John Ash croft and FBI Director Robert Mueller knew that the prison guards holding Arab Muslims swept up after the September 11 attacks were torturing them because they were Arabs and/or Muslims.

The Supreme Court ruled today that former attorney general John Ashcroft and FBI Director Robert Mueller may not be sued by Arab Muslims who were seized in this country after the 2001 terrorist attacks and allege harsh treatment because of their religion and ethnicity.  The court ruled 5 to 4 that the top officials are not liable for the actions of their subordinates absent evidence that they ordered the allegedly discriminatory activity. The decision followed the court's ideological split between conservatives and liberals, with Justice Anthony M. Kennedy siding with the conservatives and writing the opinion.

The suit against Ashcroft and Mueller was brought by a Pakistani citizen living legally in the country when he was arrested in the months after the Sept. 11, 2001, terrorist attacks on the World Trade Center and Pentagon.  Javaid Iqbal was held in solitary confinement in a section of a Brooklyn prison known as Admax-Shu, for "administrative maximum special housing unit," where he said he was subjected to numerous beatings and strip searches. He was convicted of document fraud and deported to Pakistan but cleared of any involvement in terrorism. An Egyptian Muslim who was also part of the suit, Ehad Elmaghraby, settled with the government for $300,000. Similar suits are pending.

Iqbal's case names prison guards, FBI agents, the warden of the prison -- who was the subject of a critical report from the Justice Department inspector general -- up to Ashcroft, who was attorney general at the time of the attack. Iqbal says policies formulated by Ashcroft and Mueller singled him out as a suspect of "high interest" solely because of his nationality and religion.

The U.S. Court of Appeals of the 2nd Circuit in New York acknowledged that top government officials carry immunity but decided it was at least "plausible" that Ashcroft and Mueller were responsible for, or knew about, the discriminatory actions Iqbal alleges. It said the suit could go forward with evidence-gathering from the lower-level officials in the case, and then a judge could decide whether there was reason to keep the two top officials in the suit.

But Kennedy said that decision was wrong, and Iqbal had no plausible claims that Ashcroft and Mueller knew of or put in place a discriminatory policy. His claims "amount to nothing more than a formulaic recitation of the elements of a constitutional discrimination claim," Kennedy wrote.  Kennedy said it was logical that the largest law enforcement investigation in the nation's history focused on Arab Muslims because of the identities of the Sept. 11 attackers.  "It should come as no surprise that a legitimate policy directing law enforcement to arrest and detain individuals because of their suspected link to the attacks would produce a disparate, incidental impact on Arab Muslims, even though the purpose of the policy was to target neither Arabs nor Muslims," he wrote.Similarly, it was not discriminatory that Iqbal and others were detained in a maximum security prison, Kennedy said. "All it plausibly suggests is that the nation's top law enforcement officers, in the aftermath of a devastating terrorist attack, sought to keep suspected terrorists in the most secure conditions available until the suspects could be cleared of terrorist activity."

Justice David H. Souter wrote for the dissenters. He said the conservative majority went further to insulate public officials from civil liability than Ashcroft and Mueller had even asked for. "The court denied Iqbal a fair chance to be heard," Souter wrote.

Download Immunity decision

This case may not seem important from an environmental standpoint.  But I think it is. The United States has long been the biggest polluter in the United States.  We primarily depend on internal discipline and the prospect of federal criminal prosecution to prevent federal officials from feeling wholly immune from state and federal environmental laws. These remedies rely on the diligence of the federal government in self-policing itself and its officers to assure that the federal government does not injury citizens through pollution.  Citizen suits, judicial review actions, and state enforcement actions are directed at the government, but do not provide federal officers with personal exposure to penalties.  Federal officers also enjoy immunity from ordinary state tort actions, with the U.S. being substituted for the individual officer in such cases.  Thus, Bivens actions can be the remedy of last resort where federal officers endanger individual citizens through their misconduct.

The Iqbal decision prevents the use of supervisory liability ala Dotterweich and Park in the Bivens tort context.  Even if the supervisor is standing by and watching the misconduct of subordinates, the supervisor is not liable for the acts of those subordinates.  This is an extremely dangerous incursion on federal supervisors being held responsible for the conduct they condone by their subordinates -- when federal supervisors, knowing that their subordinates are systematically violate the constitutional rights of others, stand silence, they condone and tacitly consent to that conduct.  Iqbal is bad law and bad policy.

How Green is Our Recovery?

The economic recovery packages put forward by many countries spend lots of money, but a key question is whether the packages will have a beneficial impact on greening the global economy. Although few contain adequate detail for full assessment, some are likely beneficial and some are actually counterproductive in moving the world toward a low carbon economy. A study commissioned byE3G and WWF and prepared by Germanwatch and Ecofys on the climate friendliness of recovery packages provides a detailed and comprehensive analysis of the proposed ’stimulus’ packages of five key countries - France, Germany, Italy, the UK and the US - as well as examining the package agreed by the European Union as a whole. The economic/climate recovery score cards created as part of the study are available on the following websites:

E3G: http://www.e3g.org/index.php/programmes/climate-articles/new-e3g-wwf-report-economic-climate-recovery-scorecards/

WWF: http://www.panda.org/wwf_news/?161202/High-carbon-stimulus-not-G20s-way-to-a-sustainable-financial-future

Germanwatch: www.germanwatch.org/klima/score09.pdf

Ecofys: http://ecofys.com/com/publications/reports_books.asp (supplementary material available on Ecofys website)

 

New Method to Address Corruption in Developing Countries?

Corruption and poor governance are generally recognized as a key obstacle to achieving the Millennium Development Goals, ecological sustainability, social equity, and economic development as well as realizing human rights in many developing countries.  The problem has been that the weapons that the United States and other governments have used against corrupt leaders who plunder their countries' resources and violate their citizens'  human rights were relatively blunt: military invasion, assassination, promotion of coup d'etat, suspension of trade and aid, etc.  But yesterday a French judge opened a judicial investigation about corruption of three African leaders.  So another, more nuanced weapon has been added to our collective arsenal. 

Meanwhile, the Europeans aren't just taking African leaders to task.  Spain is also investigating lawyers and others from the Bush administration regarding their roles in approving torture tactics against alleged terrorist suspects.  Certainly we all know that the leaders of developing countries have no monopoly on corruption or human rights violations!

As posted in Intl Law Girls,

A French NGO has caught an investigator's attention with its complaint about excessive spending by 3 African leaders -- all 3 of whom, it should be noted, hail from countries whose people are said to suffer from human rights violations.

Reuters reports from Paris that a French juge d'instruction has opened an investigation into whether assets held by the Presidents of 3 oil-rich African countries came to them by way of public corruption.

Proceedings could extend to many posh holdings; specifically, in the case of:
► Teodoro Obiang Nguema, Equatorial Guinea's President since 1979, and family: At least 1 property, 1 bank account, and more than 4 million euros worth of luxury vehicles. Among them is the Rolls-Royce Phantom limousine depicted above, said to have been bought by Obiang's son. (photo credit) Obiang has been dubbed among the few "African despots who make Robert Mugabe seem stable and benign" by The Independent of London.

► Omar Bongo, President of Gabon since 1967, and family: 39 properties, 70 bank accounts, and nearly 1.5 million euros worth of luxury vehicles. In January Bongo, the world's longest-serving ruler, was publicly criticized by members of the U.S. Congress for having arrested and otherwise harassed members of civil society who campaign against public corruption.
► Denis Sassou-Nguesso, since 1979 the President of the Republic of Congo (commonly called Congo-Brazzaville to distinguish it from the neighboring state whose capital is Kinshasa, the Democratic Republic of Congo): 24 properties, 112 bank accounts, and more than 172,000 euros worth of luxury vehicles. In Sassou-Nguesso's country, slavery of 1 ethnic group by another is reported to persist.

Judge Françoise Desset decided to open the criminal-finance investigation in what's known in France as l'affaire BMA -- for "biens mal acquis," or "ill-gotten goods" -- based on a partie civile complaint filed in December by a Gabon citizen and Transparence International France, the French chapter of the global nongovernmental organization devoted to fighting public corruption, Transparency International (prior post). Judge Desset made her decision against the advice of the public prosecutor's office. The prosecution, which had declined to act on a inventory of the assets made by French police in 2007, may appeal her decision.

Despite the risk of upset on appeal, the attorney representing the parties civiles, William Bourdon, lauded Desset's initiative:

'This is a decision without precedent, because it is the first time that a judicial investigation has been opened concerning the alleged misappropriation of public funds by incumbent heads of state. From now on it is possible to identify and pursue those who, repeatedly and deceitfully, impoverish their own countries.'

It also suggests a Capone-precedent path to pursuit of leaders who fail to protect the human rights of their own people.

Total emisions approach - accurate but not novel and a flawed basis for policy

As this report on the new studies published in Nature indicates, the global warming problem is and always has been understood to be a matter of the total loadings of GHG emissions in the atmosphere, not a matter of timing.  The timing of the GHG emissions only matters over the course of centuries because eventually greenhouse gases emitted into the atmosphere decompose.  I don't think that anyone familiar with climate policy has ever believed otherwise.  So, on that score the new studies are not new, but they may alter how the problem is conceptualized for policy purposes.

Policy cannot simply divide the total allowable emissions among nations and be done with it.  First, absent intermediate goals tied to deadlines, countries cannot monitor each others compliance with reduction targets.  Second, it creates a tendency for nations to believe that they can just wait until 2050 or whatever when technology will save them and voila they will become carbon neutral.  Our experience in the Clean Air Act attainment with NAAQS was that, faced with a deadline and no requirement for annual progress, states just planned to do something at the last moment and when their plans didn't work, they threw up their hands and said, "OH well." 

We cannot afford to use that model of regulation with respect to climate.  Instead, we need to use technology-forcing technology based standards (e.g. no new coal plants without CSS; CSS retrofit for existing fossil-fuel plants by 2020) along with streamlining the ability of renewables to come online and planning ala the 1990 Clean Air Act amendments with annual progress requirements and contingency measures built into the plan.  Those approaches would be far more successful than the "consume up to the last moment" strategy that may be encouraged by the total emissions approach.

Lawyers have to leave science to the scientists and use extreme care when they are working on a cross-disciplinary basis.  But scientists need to be just as wary of providing policy concepts unencumbered by an understanding of past performance of various regulatory approaches.

From: Naomi Antony, Science and Development Network
Published April 30, 2009 10:40 AM
Scientists put carbon ceiling at a trillion tonnes

Scientists hope a new approach to assessing carbon build-up in the atmosphere will simplify issues
for policymakers and economists. Two papers published in Nature today (29 April) show that the
timings of carbon emissions are not relevant to the debate — it is the total amount of carbon dioxide
emitted over hundreds of years that is the key issue.

Rather than basing negotiations on short-term goals such as emission rates by a given year,
the researchers say the atmosphere can be regarded as a tank of finite size which we must not
overfill if we want to avoid a dangerous temperature rise.

Climate policy has traditionally concentrated on cutting emission rates by a given year, such as
2020 or 2050, without placing these goals within the overall context of needing to limit cumulative
emissions.

Both papers analyse how the world can keep the rise in average surface temperatures
down to no more than two degrees Celsius above pre-industrial levels. This figure is
widely regarded as the threshold beyond which the risk of dangerous climate change
rapidly increases. Policymakers around the world have adopted this limit as a goal.

The first study, led by Myles Allen from the University of Oxford, UK, found that
releasing a total of one trillion tonnes of carbon dioxide into the atmosphere
between 1750 and 2500 would cause a "most likely" peak warming of two degrees
Celsius. Emissions to 2008 have already released half of this. Allen said in a
press briefing this week (27 April): "It took 250 years to burn the
first half trillion tonnes and, on current predictions, we'll burn the next half
trillion in less than 40 years."

The second study, led by Malte Meinshausen at the Potsdam Institute for Climate
Impacts Research, Germany, used a computer model to demonstrate that to avoid
exceeding two degrees Celsius by 2100, cumulative carbon emissions must not exceed
0.9 trillion tonnes. "We have already emitted a third of a trillion in just the past nine years,"
Meinshausen says.

David Frame, a co-author of the Allen paper and researcher at the University of
Oxford, said that these findings make the problem "simpler" than it's often
portrayed. "[The findings] treat these emissions ... as an exhaustible resource. For
economists, this way of looking at the problem will be a huge simplification," Frame
said. "Basically, if you burn a tonne of carbon today, then you can't burn it tomorrow
" you've got a finite stock. It's like a tank that's emptying far too fast
for comfort. If country A burns it, country B can't. It forces everyone to consider
the problem as a whole."

In a separate essay, Stephen Schneider of the Woods Institute for the Environment at
Stanford University in the United States, discusses what a world with 1,000 parts
per million of carbon dioxide in its atmosphere might look like.

This article is reproduced with kind permission of the
Science and Development Network (SciDev.Net).
For more news and articles, visit www.scidev.net.

Nature Abstract of Allen letter:

WHO update May 3

May 3

Confirmed cases
Austria: 1
Canada: 70
Costa Rica: 1
Denmark: 1
France: 2
Germany: 6
Hong Kong: 1
Ireland: 1
Israel: 3
Mexico: 506 and 19 deaths
Netherlands: 1
New Zealand: 4
South Korea: 1
Spain: 13
Switzerland: 1
U.K.: 15
U.S.: 226 and 1 death

Jurist Op-Ed by Ed Richards about Adequacy of Existing Public Health Laws

Fighting H1N1: Why Laws are Not the Answer    Jurist link

JURIST Guest Columnist Ed Richards of Louisiana State University Law Center says that in the midst of current concerns about the spread of the H1N1 virus (popularly known as "swine flu"), passing more and stricter public health laws will neither strengthen the public health system nor effectively contain the spread of disease...

---

As this is being written, H1N1 is not a major threat, but this could change as the epidemic evolves. I want to look past the H1N1 outbreak and focus attention on what we will carry away from it, however it evolves. I am concerned because crisis-driven policy is easy to hijack, resulting in laws with horrible unintended consequences. Over the past four decades, public health crises have generated more than their share of bad laws. Some only create false expectations, but others have lead to great suffering and even death. I hope forewarned is forearmed for H1N1.

Do We Need More Law?

It is not law per se that I worry about. I am quite supportive of public health law as expressed through administrative regulations and the broad exercise of the police powers. While public health depends primarily on voluntary cooperation, state public health agencies and the federal government have tremendous powers to deal with a public health crisis. The United States entered the 1970s with a public health system that had nearly tripled life expectancy over the past 100 years through sanitation, which had nearly wiped out the worst of the communicable diseases in the U.S., and which was immunizing a sizable part of the population against seasonal flu. All this, including the quarantine of individuals and whole regions, had been managed through general grants of legislative power and administrative regulations. This framework has not been declared unconstitutional and as classic administrative law, there is no reason to think the United States Supreme Court would stop deferring to agency action in public health when it supports agency deference in all other areas of administrative law.

The Interest Groups

What I worry about are statutes, i.e., specific public health policies passed into statutes to please interest groups. From quarantining people who are coughing to taxing fat people, pushing for public health statutes has become the rage at the CDC, federal and state legislatures, and private foundations. These are driven by traditional interest groups, such as employers worried about health care costs, drug companies, military contractors who want to sell bioterrorism monitors, and federal officials in recent administrations who wanted to extend the national security state.

The last decade has seen a new interest group arise: contract researchers operating out of universities who live on grant funds to write new laws. No matter the problem, their solution is a new law, because they make no money if they admit that the problem is just that public health agencies do not have the staff to do a job because they are broke, or that there is no problem at all. Expect to see these groups calling for massive new public health powers to deal with H1N1, claiming that public health agencies and the federal government lack key powers. As noted below, public health emergencies are fully integrated into our national security laws, allowing the federal government essentially unlimited powers if it chooses to use them. Perhaps the only real limit is that since President Obama repudiated the torture memos, the torture of potential disease carriers is now off limits.

Untended Consequences - The Road to Hell

Concerns with the public health consequences of illegal drug use in the 1960s led to Nixon's war on drugs and Rockefeller's draconian drug laws, which spread across the United States. These laws have had profound unintended consequences and seem to slip the mind of public health law scholars who tout the value of new public health statutes. In the 1980s, civil libertarians lobbied state legislatures and Congress to protect persons with AIDS. The result was to make it nearly impossible to do public health screening and case finding for HIV infection. This exacerbated the AIDS epidemic and was only reversed as a matter of federal policy in 2006. Many states still have laws in place that limit disease control efforts for HIV. (In several states, the entire disease control code was revised, undermining the control of tuberculosis and other diseases. These laws had to be revised again as tuberculosis surged in the 1990s.)

Post 9/11 and the anthrax letters, fears of bioterrorism lead the CDC to develop the Model State Emergency Health Powers Act and push states to adopt it. This was criticized by many public law scholars for being a dangerous intrusion into civil liberties and probably also unworkable. More fundamentally, if you are versed in national security law, you know that the push for public health emergency powers laws at the state and federal level were derived from the Bush/Cheney vision of the seamless national security state. Taken with the Patriot Act and other national security laws, public health and safety emergencies have been recharacterized as national security threats, which creates paths for the use of the military in domestic policing and the overruling of state public health authority by the federal government.

The real problem with all of these laws is that the problems they address are not problems of legal authority. They do nothing to address the loss of resources and expertise from health departments, and the weakness of political leaders when facing difficult choices. We have created a system of Potemkin laws whose real purpose is to allow legislatures to claim to have done something about public health emergencies without spending the money or political capital to address the weakness in the public health and medical care system. Look how well these laws worked for Hurricane Katrina. Louisiana had passed stacks of emergency powers laws after 9/11, had done all the federal planning exercises, yet was completely unprepared for Hurricane Katrina because that would have required spending money and admitting that New Orleans could flood. Yet Katrina spawned another deluge of federal and state emergency powers laws, passed as states continued to cut their already inadequate health department budgets.

What We Did Not Learn From SARS

The most recent failure, and the one most on point with H1N1, was the reaction to the 2003 SARS outbreak. Canada appointed a royal commission to study and make recommendations about the lessons learned from SARS. The commission published an excellent set of reports on all aspects of the SARS epidemic and the government's response. The commission was clear: strategies such as social distancing, not going to work sick, and voluntary isolation can work only if the affected individuals are supported by the employers and the government. Individuals must have paid sick leave, worker's compensation must cover workplace acquired infection, there must be health insurance coverage for personally acquired illness, and employers and others institutions must workout the details of mandatory immunization programs with unions and workers before there is an outbreak.

The Canadians found little or no role for coercion, but a critical role for the government and employers to provide support to allow individuals to stay home without loss of income and with adequate medical care and food. The response in the United States was to pass even more quarantine laws, to provide bench books to judges on how to enforce those laws, and to encourage local law enforcement to think about their rules of engagement when enforcing quarantine - do you shoot the soccer mom fleeing with the minivan full of children?

There have been no provisions for the nearly half of workers without paid sick leave, for workers with infected family members who will lose pay if they stay home, for health care for the uninsured. The huge population of undocumented aliens and the legal and illegal underground economy have been ignored, yet we know those who participate in the underground economy are not likely to honor snow days and other social distancing strategies because they do not eat if they do not work.

What Will We Not Learn From H1N1?

The best outcome for H1N1 is that we have relatively few cases and deaths, we will develop a vaccine over the summer, we will conduct an orderly vaccination program in the fall, and H1N1 will become just one virus on the list we consider for each seasonal flu vaccine. (For perspective, remember that yearly flu outbreak results in a few million cases and 10-20,000 deaths, with no great disruption in life and the economy.) We will look back and realize that it would have been nice to have more epidemiologists in the states with cases, and the states and the federal government will increase funding and job protections for expert staff at health departments.

More likely, whatever the outcome of H1N1, the result will be more laws benefiting more interest groups and politicians' reelection campaigns, and no long-term support for the public health system.


Edward P. Richards III is Harvey A. Peltier Professor of Law at the Louisiana State University and Director of the Program in Law, Science, and Public Health.

May 02, 2009

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Comments:

I find a good deal to agree with in Prof. Richards' column, but I fear that he paints with too broad a brush.

Prof. Richards is of course correct that crises, and associated panic (of the sort promoted by the nonstop cable news outlets competing for viewers, properly lambasted on the Daily Show), tend to result in ill-considered emergency legislation (think PATRIOT Act in another context), often with unforeseen negative consequences (or carefully plotted ones for which the emergency provides a pretext: think PATRIOT Act). Often proper enforcement of pre-existing laws and regulations, coupled with adequate resources, would be far more effective in preventing or mitigating crises than emergency legislation will do in reacting to them (think banking and securities laws and regulations in our current financial meltdown).
Finally,sensitive facilitation of desirable private actions can constitute far sounder public policy than punitive and coercive measures, as Prof. Richards' comparison of Canadian and American responses nicely illustrates. So far, so good.

But I am not so convinced by other aspects of Professor Richards' catalog. Did our punitive and self-defeating war on drugs really result from, and remain in place because of, classical public health concerns--or does this reflect certain puritanical tendencies deep in American culture (think Prohibition) and the interests of the law enforcement-prison-industrial state? For many years, public health authorities have promoted a harm minimization strategy that has thus far had minimal impact on deconstructing the war on drugs (even recreational drugs posing relatively minor risks to public health)--although perhaps a moment of at least minor reform may be approaching. To be sure, the picture is not entirely uniform; the hysteria in the early days of crack cocaine, and the rush to impose severe penalties disproportinate to penalties on powder, did result in part from public health concerns, and did result in starkly different law enforcement responses on users in minority communities than for the economic elites able to afford their drugs of choice.

The AIDS example is also more complex, involving challenging conflicting approaches and priorities between medical confidentiality and protection of civil rights for those known to be afflicted. From this distance, one can reasonably argue that we did not get the balance right in real time, and that a different balance might have don e a better job of reconciling civil rights with disease prevention. But the fact that laws were eventually modified is not in itself conclusive; as scientific knowledge improved, hysteria diminished, civil rights protections were solidified (at least in some respects), the disease became more treatable, and HIV-infected individuals became less isolated and stigmatized, circumstances changed and the appropriate legal adjustments could follow--not least because the problems sought to be addressed had changed.

This highlights what I hope may be another area of potential agreement. Crises makes it easier to rush legislative changes through--including those that are ill-considered. It is often--certainly sometimes-- the case that thoughtful and well-considered legislative or regulatory approaches have been prepared in calmer times, but cannot achieve the political support or momentum necessary for enactment in the absence of a crisis. Not all law is bad, although we can probably identify some of the circumstances conducive to better, or less well considered, legislative or regulatory proposals. We need to do better in that dimension, although I am not convinced we have figured out just how to accomplish that.

We have become in increasingly aware of the global nature of many emerging health threats, and of marked disparities in the capacities of different societies to respond in open, timely, and appropriately resourced fashion. For all the difficulties in the American system of federalism and divided control over health matters, the problems at the international level are far more formidable. Whether law is the best instrument here is yet to be determined. Perhaps Professor Richards will address that aspect of the issue in a future posting; I look forward to hearing his thoughts.

Alan Jay Weisbard
Associate Professor (retired) of Law and of Medical History and Bioethics, University of Wisconsin Schools of Law and of Medicine and Public Health, and former Executive Director, NJ Bioethics Commission

May 02, 2009

Oregon H1N1 flu update - May 2nd

H1N1 influenza 4 p.m. update
__________________________________________________________________________
Cases: As of late Saturday, Oregon had identified eleven probable cases of
H1N1 influenza virus with additional specimens being tested at the Oregon State
Public Health Laboratory in Hillsboro. State public health officials expect to know
in the next few days whether any of the cases are confirmed as H1N1.
The county breakdown of the eleven probable cases is listed below:
• Lane (2)
• Marion (1)
• Multnomah (2)
• Polk (2)
• Umatilla (1)
• Wallowa (1)
• Washington (2)
“None of these 11 individuals has been hospitalized,” Mel Kohn, M.D., state
public health officer in the Oregon Department of Human Services, said today.
“However, the fact that this is a new strain of flu means we still need to be
concerned and be preparing for what may come.”

CDC Swine Flu Report - May 3rd - 226 confirmed cases, just 1 death, in 30 states

H1N1 Flu (Swine Flu)

Site last updated May 3, 2009, 11:00 AM ET

U.S. Human Cases of H1N1 Flu Infection
(As of May 3, 2009, 11:00 AM ET)

States	# of laboratory confirmed cases	Deaths
Alabama	1
Arizona	18
California	26
Colorado	4
Connecticut	2
Delaware	10
Florida	3
Illinois	3
Indiana	3
Iowa	1
Kansas	2
Kentucky*	1
Massachusetts	7
Michigan	2
Minnesota	1
Missouri	1
Nebraska	1
Nevada	1
New Hampshire	1
New Jersey	7
New Mexico	1
New York	63
Ohio	3
Rhode Island	1
South Carolina	15
Tennessee	1
Texas	40	1
Utah	1
Virginia	3
Wisconsin	3
TOTAL (30)	226 cases	1 death
International Human Cases of Swine Flu Infection See: World Health Organization *Case is resident of KY but currently hospitalized in GA.

CDC continues to take aggressive action to respond to an expanding outbreak caused by novel H1N1 flu.

CDC’s response goals are to:

1. Reduce transmission and illness severity, and
2. Provide information to help health care providers, public health officials and the public address the challenges posed by this emergency.

CDC continues to issue and update interim guidance daily in response to the rapidly evolving situation. CDC will issue updated interim guidance for clinicians on how to identify and care for people who are sick with novel H1N1 flu illness. This guidance will provide priorities for testing and treatment for novel H1N1 flu infection. The priority use for influenza antiviral drugs during this outbreak will be to treat people with severe flu illness.

On May 3, CDC is scheduled to complete deployment of 25 percent of the supplies in the Strategic National Stockpile (SNS) to all states in the continental United States. These supplies and medicines will help states and U.S. territories respond to the outbreak. In addition, the Federal Government and manufacturers have begun the process of developing a vaccine against the novel H1N1 flu virus.

Response actions are aggressive, but they may vary across states and communities depending on local circumstances. Communities, businesses, places of worship, schools and individuals can all take action to slow the spread of this outbreak. People who are sick are urged to stay home from work or school and to avoid contact with others, except to seek medical care. This action can avoid spreading illness furth

Good News! Officials waffle "maybe," but the report that Mexico's reported deaths were too high by an order of magnitude provides a partial explanation for the difference in lethality between Mexico's flu and the flu as experienced elsewhere

This just in from the NY Times: NYT link

---

May 2, 2009

Outbreak in Mexico May Be Smaller Than Feared

By LIZ ROBBINS and DENISE GRADY

The swine flu outbreak in Mexico may be considerably smaller than originally feared, test results released there on Friday indicate.

Of 908 suspected cases that were tested, only 397 people turned out to have the virus, officially known as influenza A(H1N1), Mexican health officials reported at a news conference. Of those, 16 people have died.

Mexico had reported about 2,500 suspected cases as of Friday, but the number of real cases could turn out to be less than half the suspected number if further testing follows the same pattern as the original round. Officials said that the tests were being done quickly, and that 500 more would be completed Friday.

José Ángel Córdova, Mexico’s health minister, said, “This is a new epidemic, and we can’t predict exactly” what it will do. “We need more days to see how it behaves,” he said.

“Apparently the rate of infection is not as widespread as we might have thought,” he added. The materials needed for the test were provided to Mexico by the United States Centers for Disease Control and Prevention.

Officials at the centers declined to say what the new numbers might mean.

“We are continuously assessing new information, but it is still too early to draw conclusions about the extent of the spread of this new virus in Mexico or the severity of disease caused by it,” Dr. Nancy Cox, chief of the influenza section, said by e-mail, when asked to comment on the test results.

Dr. Javier Torres, the head of the infectious disease research unit at the Mexican Social Security Institute, Mexico’s main public health care system, said that he had been analyzing the past week’s influenza statistics.

“The number of those exposed and infected has gone up, and the number of fatal cases has gone down,” he said. “We can be comfortable with those facts.”

Officials at the World Health Organization, which has declared that a pandemic is imminent, declined to comment beyond saying that the investigation into the outbreak was continuing.

But a public health and infectious disease expert from Vanderbilt University, Dr. William Schaffner, said the test results were “going to change, I think in a substantial way, the image of this outbreak in Mexico.”

If the outbreak is much smaller than initially thought, Dr. Schaffner said, “It would, I think, enable the world’s public health community to take a deep breath and continue to track the outbreak and reduce the tendency, as the W.H.O. has been doing, to notch up on its pandemic scale.”

If the testing also shows that the disease has caused fewer deaths than the 170 or so suspected, Dr. Schaffner said, it might resolve a question that has been puzzling health experts since the outbreak began: why did the disease appear to be so much more severe in Mexico than in the United States? In the United States, cases have been mild and there has been only one death, that of a 23-month-old child from Mexico. Meanwhile, the disease continued to spread to other countries and was confirmed in more American states on Friday. The disease is expected to drop off during the summer, because flu viruses do not thrive in heat and humidity, but it could rebound in the fall and winter. The World Health Organization said that the flu vaccine given to millions of people for the most recent flu season appeared ineffective against the A(H1N1) strain, but that health officials were talking to manufacturers about creating a new swine-flu vaccine, which would take four to six months to produce.

Dr. Marie-Paule Kieny, director of the Initiative for Vaccine Research at the World Health Organization, said that unless the numbers of cases decreased significantly, “it seems mostly likely that the manufacturers will proceed and we will certainly support them.”

Officials at the Centers for Disease Control said a decision had not yet been made about whether to manufacture a vaccine, but President Obama said that the government would support it.

New cases were reported in Denmark, France, Russia, Hong Kong and South Korea on Friday, but they were not confirmed by the health organization. The United States reported 141 confirmed cases in 19 states, up from 109 cases in 11 states on Thursday.

Concerns about the disease are having an increasing impact. On Friday, a United Airlines flight with 245 passengers heading from Munich to Dulles Airport in Washington landed in Boston instead because a female passenger had flu symptoms and the airline thought she needed prompt attention, a United Airlines spokesman said.

In New York, the school with the nation’s largest cluster of swine flu to date — St. Francis Preparatory School in Fresh Meadows, Queens — was set to reopen Monday after being closed for a week.

Researchers say that some genetic features of the virus may help explain why many cases tend to be mild.

“We do not see the markers for virulence that were seen in the 1918 virus,” said Dr. Cox, of the Centers for Disease Control. “However, we know there is a great deal we don’t understand about the virulence of 1918 or other viruses that have a more severe clinical picture in humans.”

It is too early to know what economic impact, if any, the flu outbreak might have on the United States economy. The Congressional Budget Office estimates that the recession will push this year’s national economic output 7.5 percent below its potential level. A true flu pandemic could shave off an additional 1 to 4.25 percent and could have a similar effect on the world’s output, too, some economists say.

Denise Grady and Liz Robbins reported from New York. Reporting was contributed by Larry Rohter and Elisabeth Malkin from Mexico City, Keith Bradsher from Hong Kong, and Anemona Hartocollis and Catherine Rampell from New York.

Pan American Health Organization - May 2 PM update

PAHO link 

PAHO Confirmed case interactive map

PAHO May 1 Incidence map

*Emergency Operations Center (EOC) – PAHOPage 1
For public distribution
Saturday, May 02, 2009 6pm EST
EOC SITUATION REPORT #9
Influenza A/H1N1

Summary

• The situation continues to evolve, 16 countries have officially reported 677 confirmed cases
of the new Influenza A/H1N1.

• Outside the Americas, the following countries have reported laboratory confirmed cases
with no deaths: Austria (1), China, Hong Kong Special Administrative Region (1), Denmark
(1), France (2), Germany (6), Israel (3), Netherlands (1), New Zealand (4), Republic of
Korea (1), Spain (13), Switzerland (1) and the United Kingdom (15).

• Sustained human-to-human transmission has remained only in Mexico and USA, therefore
phase 5 continues to be in effect.

• The World Health Assembly (WHA) is scheduled in Geneva as planned (18-27 May 2009).

• As of today, WHO has decided to refer to the virus as Influenza A/H1N1.

Status of the Region

• Mexico: 397 confirmed cases, including 16 deaths. There has been an increase in total
confirmed cases in Mexico mostly due to testing of backlogged cases. At the same time, the
number of probable cases appears to be decreasing in the Mexico City area.

• The United States: 160 confirmed cases, including 1 death.

• Canada: 70 confirmed cases; some with recent travel history to Mexico.

• Costa Rica: 1 confirmed case with recent travel history to Mexico.

• A daily epidemiological report is posted on the PAHO website1; updated epidemiological
reports from Mexico can be found on the Dirección General de Epidemiología2.

Confirmed cases - May 2nd am

*Deaths: 168 deaths in Mexico, 12 confirmed as swine flu. One confirmed in U.S., a nearly 2-year-old boy from Mexico who died in Texas.

**Confirmed sickened worldwide: 504; 300 confirmed as having swine flu in Mexico; 133 in U.S.; 35 in Canada; 13 in Spain; eight in Britain; four each in Germany and New Zealand; two in Israel; one each in Switzerland, Austria, China, Denmark and the Netherlands. Mexico is no longer releasing "suspected" numbers; the number of suspected cases was 2,498 before the tally was halted.

**U.S. confirmed sickened, by state: 50 in New York; 26 in Texas; 18 in California; 10 in South Carolina; five in New Jersey; four each in Arizona and Delaware; two each in Kansas, Colorado, Virginia, Michigan and Massachusetts; and one each in Indiana, Ohio, Georgia, Minnesota, Nebraska and Nevada.

Kill ratio worldwide = 13/504 = 2.6 % deaths = greater than 1918 flu = PSI 5

Kill ration without Mexico = 1/490 = .02% = PSI 1

We still need to figure out: what happened in Mexico.

US officials continue to close schools

On Thursday, the swine flu outbreak caused schools in 14 states to shut their doors on more than 160,000 schoolchildren, and additional closures could affect as many as 223,700 students in 17 states.In total, more than 100 school systems have closed at least one school as the nation tries to stifle the spread of the disease. In Texas Wednesday night, officials announced that the entire Fort Worth school system would be closed through at least May 8 as a precaution, idling 80,000 children in 140 schools.ABC News link