September 07, 2011
The Tea Party, the Dunning-Kruger Effect, and Climate Change - Too Sure of Themselves?
As Cara Horowitz posted about earlier on Legal Planet, some recent polling data emerged today regarding politics and global warming, looking at the views of Democrats, Republicans, Independents and the Tea Party. The report was put together by the Yale Project on Climate Change Communication and the George Mason Center for Climate Change Communication. The data contained lots of interesting information, but the most interesting tidbit to me was that:
"Tea Party members are much more likely to say that they are 'very well informed' about global warming than the other groups. Likewise, they are also much more likely to say they 'do not need any more information' about global warming to make up their mind."
Certainly being a specialist in an area does not always make one correct, but reading reports and keeping up with the science of climate change is part of what many of us do for a living. For me personally that is a task separate and apart from my politics, as there is plenty on both sides of the political spectrum with which I both agree and do not agree. So while I have to rely on the understanding and processes of the scientists engaged in the research, due to my woeful scientific incompetence (I am not, after all, a climate scientist), I can still be somewhat sure from my review of the materials that 95% of scientists truly do maintain a consensus position on the human contribution to climate change, ocean acidification, etc. Yet I have seen the mindset reflected in the poll when discussing the science of climate change, where I can throw paper after paper and report after report at someone and within minutes they are responding that it just cannot be true, that the debate is still open, etc. Speed readers? I don't think so.
It reminds me of the Dunning-Kruger effect, but before I get into that let me make very clear that what I am discussing is a derivation of the actual effect. The actual effect is seen across all segments of society regardless of political affiliation, and involves less capable people overestimating their abilities while those more capable underestimate their own abilities relative to others. But I wonder how this combines with political affiliation to cause people to purposefully put themselves in a position of being "less capable." By that I mean is there a bias toward not believing in climate change that is ideological, but that causes those people to exhibit some Dunning-Kruger-esque view that they are "very well informed" about global warming - more-so than folks who actually trust the science - and that they "do not need any more information"? This is certainly not an argument on my part that members of the Tea Party are less "capable" from an intellectual perspective. I have many, many extremely capable acquaintances who sympathize with the concerns of the Tea Party, but who simply aren't interested in digging deeper than Fox News to find the facts about climate change. Rather, it is that Tea Partiers seem to choose to put themselves into a position where their capability to understand and accept the science is compromised by their political views - they don't even want to track down the data and study it closely because if they do it might demonstrate something incongruous with their political viewpoints. Until one reads the reports and makes an effort to understand the science, that person is "unskilled" in the sense that Dunning-Kruger posits, and is prone to overestimate his or her skill in assessing the "truth" of climate change - just as unskilled as I am at performing surgery or engineering the construction of a building.
John Cook actually posted about Dunning-Kruger over on Skeptical Science last year. The site is widely regarded as a respectable source that addresses the arguments for and against the human contribution to climate change. Cook states:
There are many with a cursory understanding who believe they're discovered fundamental flaws in climate science that have somehow been overlooked or ignored by climate scientists. Some take this a step further and believe they're being deceived . . .
Cook provides the following example:
In the discussion on whether CO2 is a pollutant, a graph was included to show CO2 levels over the last 10,000 years. The graph includes ice core data for CO2 levels before 1950. For values after 1950, direct measurements from Mauna Loa, Hawaii were used.
A comment was posted querying the data in this graph. Here is the comment in full:
"Whoa, hold on a minute here. CO2 readings from ONE LOCATION prove we have an enormous GLOBAL spike in CO2 levels? You've got to be kidding me. This is science? That would be like me taking hydrological readings at the bottom of Lake Superior and then declaring that the entire surface of the earth must be covered with water based on my readings.
By the way, isn't Mauna Loa an active shield volcano? (http://en.wikipedia.org/wiki/Mauna_Loa) Hmmmm, you don't suppose that's where all that extra CO2 came from, do you? C'mon, people, wake up. I find it shameful that this obvious manipulation is allowed to pass as "proof". This is certainly NOT an unbiased scientific conclusion."
The commenter is asking whether it's appropriate to take CO2 readings from one location. Particularly when situated near a volcano which are known to emit CO2. Surely a better metric would be a global average of CO2 levels? These are legitimate questions. However, I deleted this comment as our Comments Policy allows no accusations of deception, whether the attack is directed towards skeptics, scientists or myself. This restriction is necessary to keep discussion constructive and restricted to science. Unfortunately, the comment began with a commendable question and ended with a not-so-commendable personal attack.
If the comment had stayed on methods and not strayed into motive, I would have posted the following response. Mauna Loa was used is because its the longest, continuous series of directly measured atmospheric CO2. The reason why it's acceptable to use Mauna Loa as a proxy for global CO2 levels is because CO2 mixes well throughout the atmosphere. Consequently, the trend in Mauna Loa CO2 (1.64 ppm per year) is statistically indistinguishable from the trend in global CO2 levels (1.66 ppm per year). If I used global CO2 in Figure 1 above, the result "hockey stick" shape would be identical.
Unfortunately, this type of presumptive misunderstanding is seen all too often. Someone doesn't understand a certain aspect of climate science which is understandable considering the complexities of our climate. Rather than investigate further, they assume a flaw in the climate science or worse, an act of deception. This response is often more a reflection of the gap in their own understanding than any flaw in the climate science.
Perhaps most interesting when considering the Dunning-Kruger effect is that cross-cultural comparisons have demonstrated that Americans may be more prone to the effect than other cultures. If so, perhaps it is not surprising that American acknowledgement of the threat of climate change trails almost the entire rest of the world: "People nearly everywhere, including majorities in developed Asia and Latin America, are more likely to attribute global warming to human activities rather than natural causes. The U.S. is the exception, with nearly half (47%) -- and the largest percentage in the world -- attributing global warming to natural causes. Americans are also among the least likely to link global warming to human causes, setting them apart from the rest of the developed world."
Ultimately, I wonder if the Tea Party suffers from a politics-induced version of the Dunning-Kruger effect, and simply does not want to dig deeper. Actually, maybe they do want to dig deeper, but only so they can continue to bury their head in the sand.
- Blake Hudson
September 02, 2011
Obama EPA Backs Off Smog Regs
If you haven't seen it yet, the Obama administration announced today that it will not implement the more aggressive ozone regulations that EPA had proposed. In his statement on the matter, President Obama alluded to the economy and then cited the fact that the proposed standards would be revisited in two years as the reason for his decision:
I have continued to underscore the importance of reducing regulatory burdens and regulatory uncertainty, particularly as our economy continues to recover. With that in mind, and after careful consideration, I have requested that Administrator Jackson withdraw the draft Ozone National Ambient Air Quality Standards at this time. Work is already underway to update a 2006 review of the science that will result in the reconsideration of the ozone standard in 2013. Ultimately, I did not support asking state and local governments to begin implementing a new standard that will soon be reconsidered.
This decision is interesting for a number of reasons. Politically, it shows both how dominant the economy continues to be and also how much the country has shifted to the right since 2008. Whether one sides with them or not, the Tea Party's anti-regulation message clearly has resonance. Many already see this decision as bowing to oil and other interests who had blasted the proposed regulations.
The decision also shows Obama's cold calculus about who will and will not be on his side in the next election. Environmentalists already have decried this move. But will they vote for him anyway in 2012? The President appears willing to make that gamble, despite continued disappointment within the community over the administration's failure to make many of the environmental achievements the campaign promised.
And, interesting indeed, the decision may reflect a shift in the way the administration is messaging environmental concerns. In the last election, Obama -- wisely, many would contend -- was careful to link job growth with environmental protection. The two go hand in hand. This decision, however, falls into the old trap of seeing the economy and the environment as binary choices, when ultimately the two are intrinsically interlinked on a long-term basis. True sustainability requires both. Is this change a permanent shift or a temporary slide? Only time will tell.
August 29, 2011
Hurricanes/Heat = Global Warming, but Cold/Snow = Lunacy? How to Handle Isolated Weather Events When Discussing Climate Change?
As this is an issue that I have struggled with for some time now, I write this blog post to ask for advice, guidance, and the perspective of others - so please chime in with comments.
It seems to be the bane of existence for those familiar with climate change science - the person who posts on Facebook or Twitter, or who boldly asserts in the classroom or office, "it was a record low in X city, Y state today - suuuurrreeee global warming is real. And there's been record snowfall to boot!" These types of misunderstandings of climate change science have resulted in a shift from "global warming" terminology to "global weirding" or "climate change" - a recognition that though the earth's overall temperature will increase over time, climatic conditions will be quite variable in any given location.
Stephen Colbert has parodied this thought process quite well in the following video:
When people make comments that cold weather days must disprove global warming, Colbert quips, "Folks, that is simple observational research: whatever just happened is the only thing that is happening . . . [Currently] it is dark outside. Now based on this latest data, we can only assume that the sun has been destroyed. The world has plunged into total darkness. Soon all our crops will die and it's only a matter of time before the mole people emerge from the center of the earth to enslave us in forever night....thanks a lot Al Gore."
Even though I agree with the silliness of such arguments, I cannot help but wonder what our responsibility is as educators, scientists, and other professionals in the field when it comes to isolated weather events that appear to support "our" position. Over the course of this summer I have seen numerous posts on Twitter and various news articles and blog posts from both environmental groups and professionals asserting what essentially sounds a lot like "See! Record heat! Climate change is real!" Also, I saw even more posts, and some articles, during recent Hurricane Irene that seemed to highlight this one hurricane event as proof of climate change. Don't get me wrong - I certainly trust the statistics on warming trends and increased hurricane frequency and intensity over the last few decades. There is little doubt that those trends reinforce and form part of the foundation of climate change science. But my question is more about framing the issue. It is really hard for me to criticize someone for arguing that cold weather events disprove global warming, and then turn around and say that a single hurricane or a hot month of July support my "position." This is despite the fact that some may say "well sure, of course it is ok to do just that, because we are right. The data is on our side. So of course it is ok to point to these events as proof." That may very well be true, but something about that approach just doesn't feel right. I think it may be one of those arguments we should consider dropping so as not to allow the delivery of the message to disrupt or confuse the message itself.
In the end, I believe that if those pointing out the reality of climate change do not want to sound exactly like those they criticize, it might be in our best interest to not use hyperbolic sounding arguments based upon isolated weather events. And trust me, this is hard for me - I like hyperbole. But maybe we should stick to the whole story, and not just parts of it? What are your thoughts?
- Blake Hudson
August 19, 2011
Nuclear in the News
In the months since the disaster at Fukushima Daiichi, it seems that nuclear energy increasingly has been in the news. This week was no exception. If anything, it was a particularly busy few days for news on nuclear energy. A few highlights:
- A U.S. envoy to Japan severely criticized that nation's government for their response to the Fukushima disaster. According to an AP story, Kevin Maher, head of the envoy and the former diplomat to Japan, said: "“There was nobody in charge. Nobody in the Japanese political system was willing to say, ‘I’m going to take responsibility and make decisions.’”
- Meanwhile, Japanese citizens are still dealing with the radioactive aftermath of Fukushima.
- In New York, residents are split over Governor Cuomo's plan to shutter Entergy's Indian Point nuclear generating station. According to a recent poll, 49 percent of those living near the plant oppose shutdown, while 40 percent favor it.
- The Tennessee Valley Authority unanimously approved a proposal to complete construction of the Bellefonte nuclear power plant in Hollywood, Alabama. Prior construction ended in the late 1980s.
- At the same time, Exelon's CEO John Rowe spoke out on the difficulty of building new nuclear plants in the U.S. "The country needs nuclear power if it is going to tackle the problem of climate change," he said. "But we must keep our hopes for new generation harnessed to facts. Nuclear needs to be looked at in the Age of Reason and not the Age of Faith. It is a business and not a religion."
- And the NRC approved a license for a uranium milling operation in Wyoming.
August 07, 2011
In Case You Missed It -- The Week of August 1-7
* The famine in Somalia continues to worsen.
* Shell received conditional approval from the U.S. Bureau of Ocean Energy Management, Enforcement and Regulation to drill in the arctic Beaufort Sea, off the coast of Alaska.
* EPA proposed a rule that would exempt carbon dioxide streams from hazardous waste regulations under certain conditions. The hope is to spur greater use of carbon capture and sequestration technology.
* A new PAC has formed to promote energy efficiency legislation.
* If you haven't seen it yet, Science has out an impressive set of materials on population trends, their environmental impacts, and prognostications about what it all means for the future of the planet.
* The leopards are not happy.
August 7, 2011 in Africa, Biodiversity, Climate Change, Current Affairs, Energy, Land Use, Law, Legislation, North America, Science, Sustainability, Toxic and Hazardous Substances, US, Water Resources | Permalink | TrackBack
July 17, 2011
Into the Wild
Every summer, it seems, I am reminded of something I always think I will never forget.
For the past several years, I have made a point every summer of visiting a national park. Living in Utah, which is blessed with five of these most beautiful and amazing places, this is a relatively easy task.
Last year, I spent several days with my sons hiking and camping in what has become one of my favorite parks: Capitol Reef. Not only does Capitol Reef sport some of the most breathtaking canyons I have ever seen, but it is, at least from my perspective, a relatively less used park. Sometimes solitude is nice. In Capitol Reef, I have found myself on many hikes, for hours, with no one but those in my party. Add to this the chance to see ancient rock art, find desert creatures like snakes and lizards, and partake of a searing summer heat, and I can think of few places that make a nicer getaway for a few days from the city. (It also doesn't hurt that the nearby town of Torrey also features some amazing food.)
This past week, I camped with my sons as part of my wife's family reunion in Yellowstone. It has been almost two decades since I was there last, in a frigid winter to snowmobile. Two things immediately overtook me as we drove in through West Yellowstone in a misting rain turning to dusk. I was reminded of just how gorgeous the place is; there is a reason why it was the first national park. And I realized how each of these parks has their own personality, their own story to tell. Capitol Reef and Yellowstone could not be much more different, but I love them both.
Toward the end of the trip, as I looked into the brilliant turquoise and coral pools at Mammoth Hot Springs, I contemplated this. I recalled Prof. Daniels' comment from earlier this year about why he got into environmental law in the first place, and how each of us has our own back-story about why we did too. For me, I realized, much of it is bound up in my childhood, and part of that was a trip I took when I was about the age of one of my sons to this same park. I recall standing face to face with a bison; I remember hiking into the aspen with my father; I see clearly in my mind the awe I felt then, that I feel now.
As we drove out of the park, having just hiked Geyser Hill near Old Faithful, we came into a valley. We were on our way out, and on its way in was a lone gray wolf, undisturbed, traversing the greens, following the Gibbon River to the trees.
Once again, I was reminded. I was so glad I was.
June 13, 2011
Agent Smith on Humans as a Virus
In the spirit of my colleagues posting on environmental films, and following on the Evil Animals post from last week and Professor McAllister's May 24 post on consumption, I thought I would highlight one of the most profound environmental insights in cinema (sci-fi cinema at least!). The movie "The Matrix" came out in 1999. At that time, the thought of my being involved in legal academics had never even crossed my mind, and had it done so I wouldn't even have known what that meant. Yet one clip in the movie had a deep impact on how I viewed our place in the world - and provided a theoretical framework for pushing me further along the path of environmental concern. The clip involves an interrogation of Morpheus by Agent Smith....
...The day after watching "The Matrix" I went to the Galleria Mall in Birmingham, Alabama. I stood at the top of the escalators above the food court and watched the people swarm. Hundreds of people scurried across each others' paths. Shopping bags filled with plastic and metal goodies were draped across arms, backs, and strollers. Hundreds more people sat in the food court stuffing their faces with hamburgers, chicken, pizza, cotton candy, cookies, ice cream and every other American delight you can imagine (a time release camera from 1995-2000 would have demonstrated these people getting larger as well, as the number of obese people worldwide increased by 100 million during that five year period). I couldn't help but feel the pall of depression come over me as I thought "Agent Smith was right!" And worse still I am sure I had just washed down an endorphin rush to the frontal lobe from eating an over-sized burger with an endorphin rush from purchasing some copious quantity of plastic play-things.
If everyone on earth consumed as much per capita as Americans do, we would need at least 5 earths to sustain us. I say "at least" because the number of earths we would need is increasing as our consumption increases. Stating the obvious, something needs to change.
The great thing about humans though, as the robots found out at the end of the Matrix Trilogy, is that we can think and do not always perform according to expected and established protocol. We have the ability to adapt and change and learn from past mistakes and previous destructive behaviors. Though we certainly can operate like a virus, and currently are operating like one at the rate at which we are consuming the earth, we have a chance and ability to change course.
The World Wildlife Fund's Jason Clay, in his talk "How big brands can help save biodiversity," provides some interesting insights into how we can actually harness components of our consumptive culture to protect the environment. His thoughts can be seen here:
- Blake Hudson
May 26, 2011
Administrative Law, Politics, and Energy
On the Administrative Law Prof Blog, Ted McClure (Phoenix) recently made an argument in response to one of my earlier posts about the political nature of Yucca Mountain. I had noted that "everything in administrative law is political" -- one of seven "aphorisms of administrative law" I use to try to convey the full extent of the field to my students. McClure contends that my assertion is both too broad and too disconnected from what administrative law practitioners do on a daily basis:
I suggest that Prof. Davies is talking about political science rather than law. Had he said "Everything in administrative law can be political." I would have agreed. . . . But [politics] often [do not intrude in decisionmaking], especially at the level of involvement at which most of our alumni will be engaged. . . . It is good for people, especially lawyers, to understand the politics and policies of government. But that's not what we have to teach in law school, because that's not what the clients of our alumni are going to need.
McClure has a point. It would be more precise to say that everything in administrative law "can be" political, because there are certainly some things that are not. By the same token, it would be even more accurate to say that everything in "the practice of administrative law" can be political, because, as McClure rightly notes, administrative law practice more often than not deals with agency procedures, and procedure tends to be less political than substantive policy decisions. We lawyers parse words for a living. We need to be careful how we do so. Here, the truth is buried in the context; it matters what kind of administrative law we are talking about: the practice, the procedure, the substance adopted.
Most administrative law classes, including mine, focus on procedure, and rightly so. Substantive "administrative law" is left to other doctrinal courses: employment law, environmental law, health law, immigration law, tax law, and so on. Still, procedure and substance are intertwined in life, so just as it would be inappropriate to excise the procedure entirely from doctrinal courses, some substance must come into procedure.
This is the chief point of my aphorism. One cannot comprehend administrative law without understanding the politics that underlie it. This is just as true for the pragmatic practicing administrative lawyer as it is for the suppositional administrative law student. Does the average administrative lawyer help craft agency policy on a daily basis? No. But can the same lawyer effectively advise her client without grasping the current administration's agenda, what policies that administration is sympathetic to and which it is not, and who holds power within the agency's four walls? Also no. The necessity of a legal brief one day may be the need for bureaucratic gear greasing the next.
- Democrats' emphasis on high gas prices as a way to zero in on tax credits for oil companies, when the two are not linked
- Republicans' "drill, baby, drill" counter-punch of claiming a need for increased domestic crude production due to today's nearly $4/gallon gas prices when, again, the two are unrelated
- Standing congressional calls for national energy security, yet a failure for over a decade to adopt a national renewable energy standard, which would by definition enhance U.S. independence
- The tussle in Congress over the provision in the Energy Independence and Security Act of 2007 that phases out production of inefficient (but not more efficient) incandescent light bulbs, despite industry's support for keeping the provision in place
These examples all come from the legislative, rather than executive, branch, but one need not look hard to find them in all three segments of our government.
Any serious student of energy law -- or administrative law -- would do well to note that. They would also do well, as Ted McClure aptly observes, to understand that any policy Congress puts in place ultimately will be implemented by an agency, and the agency will be bound by numerous laws and procedures.
Politics matter. Procedure does too.
May 19, 2011
Yucca Mountain: Episode II - Attack of the Clones?
This week, news outlets are reporting that Nuclear Regulatory Commission Chairman Gregory B. Jaczko has been out-voted by other commission members. The issue du jour is whether to release an unredacted preliminary safety report to Congress -- formally, draft "Volume III of the Safety Evaluation Report ('SER')" for the Department of Energy's now-withdrawn Yucca Mountain license application.
According to an April 28, 2011 letter released this week by Congressman Ralph M. Hall (R-Tx.), a majority of commissioners disagreed with Jaczko and sent an unredacted version of the technical report to Congress. "I have reiterated my belief that public release of preliminary staff findings and conclusions establishes a dangerous agency precedent," Jaczko wrote in the letter. "Notwithstanding my reservations, a majority of the Commission is willing to provide unredacted copies in response to Congressional Committee requests provided that they are held in confidence."
At multiple turns, Chairman Jaczko's letter emphasizes the tentative nature of the Commission staff's evaluation:
- "[T]he findings and conclusions in the document are preliminary."
- "The staff's preliminary findings may turn out to be incorrect or incomplete. As such, they can mislead or confuse the public."
- "The redacted portions represent the predecisional findings and conclusions we normally protect from public release consistent with the Freedom of Information Act. Even my colleagues and I have not had access to the redacted portions of SER Volume III. As the appellate body for the agency, the Commission does not have access to predecisional, non-public information regarding the staff's substantive review of the Yucca Mountain application."
Perhaps more than anything, the Commission's release of this report exposes the increased politicization of energy policy in the nation's capital this year. Yucca mountain long has been a political battleground. Now, despite the Obama administration's express support for the nuclear industry, the current Congress is using the president's decision to shutter Yucca as political ammunition.
Add to this the ongoing debate over tax credits utilized by the oil industry, the increasing spotlight on natural gas fracking, and continuing malaise in D.C. on climate change policy, and the political nature of energy policy in the United States is laid bare. It resurrects the persistent question of American energy law and policy: Will we let markets decide our fate, or will we affirmatively choose the energy path we desire?
Once again, the answer seems to be "neither." Like the few Jedi scattered in an army of so many Republic clones, the real debate gets lost in the politics.
May 18, 2011
Feeling Lonely in a Climate Change Crowd
Over the past several years almost all of the Republican candidates vying for their party's nomination to run for President have tried to walk back past positions taken on climate change. Governor Tim Pawlenty, for example, was a supporter of addressing climate change when he was governor of Minnesota, but when addressing CPAC earlier this year, he not only backed off, he said of his prior position, "it was a mistake, it was stupid, it was wrong." Last week, Ann Carlson wrote an informative post for Legal Planet documenting the many flip flops on this issue.
However, a few of the candidates have stayed true to their past positions on climate change. Of these only Ambassador/Governor Jon Huntsman has stuck to his guns with a former position that acknowledged that climate change is a real problem that is worth addressing. In an interview Time published earlier this week, he said,
This is an issue that ought to be answered by the scientific community; I’m not a meteorologist. All I know is 90 percent of the scientists say climate change is occurring. If 90 percent of the oncological community said something was causing cancer we’d listen to them. I respect science and the professionals behind the science so I tend to think it’s better left to the science community—though we can debate what that means for the energy and transportation sectors.
Given the political realities of the Republican nominating convention, this is a courageous position for a candidate to take. Despite the fact that he stands with the National Academies of Science, the InterAcademy Council, the International Council of Academies of Engineering and Technological Sciences, the National Research Council, the American Association for the Advancement of Science, the American Meteorological Society, and even the Bush Administration’s Environmental Protection Agency, it is still awkward company to also stand alongside President Obama and the Sierra Club.
Obviously, both Democrats and Republicans have their blind spots and almost every politician flip flops on an issue at some time or another. (President Obama, for example, is currently struggling with explaining how he could have voted against raising the debt limit when he was a Senator but why it is vital for Congress to raise the debt ceiling now.) To me, it is a distressing commentary of our time that so many politicians are willing to walk away from their better judgment when it serves their political interests. Particularly when it comes to issues as massive as climate change, it seems that we would be best served by politicians willing to tell us what we need to hear instead of what we just want to hear.
-- Brigham Daniels
May 02, 2011
New Supreme Court Opinion on Water Law
Today the Supreme Court released its opinion in the case Montana v. Wyoming. This water law case presented the issue of whether, under the Yellowstone River Compact, an appropriator can use more efficient methods to disseminate water, so long as the appropriator uses the water to irrigate the same amount of acreage. The Supreme Court held that it could even if changing watering methods would reduce the amount of return flow.
The Court upheld the decision of the Court appointed Special Master--Buzz Thompson--and the decision cites among others David Getches and Mark Squillace, and the great textbook by Sax, Thompson, Leshy and Abrams.
The Court's majority was made up of seven Justices, with Justice Scalia dissenting and Justice Kagan not taking part in the decision. While I enjoyed seeing the names of law professors I respect in the opinion and enjoyed reading an opinion about water law, for me, the most memorable part of the opinion came from Justice Scalia's dissent when he refused to call the people of Wyoming Wyomingites and instead called them Wyomans. He did this, because, as he put it, "the people of Wyoming deserve better."
A more detailed summary of the opinion can be found here on SCOTUSblog.
-- Brigham Daniels
April 20, 2011
If the Clean Air Act Displaces Public Nusiance Claims, What Happens if Congress Displaces the Clean Air Act?
During yesterday’s oral argument of AEP v. Connecticut, it seems that things did not go so well for the states attempting to address climate change through public nuisance litigation, see for example here, here, here, and here as representative of typical prognostications of the argument. Because those reading the tea leaves seem to agree the states will lose, the main question up for grabs is how they will go down.
Earlier today, Richard Frank posted a very thoughtful post on this subject. According to Professor Frank, the states will likely lose on the grounds that the Clean Air Act displaces the ability of litigants to bring public nuisance suits arising from greenhouse gas emissions because they are covered by the Act. This is certainly the gist, for example, of the now familiar Justice Ginsburg barb: “Congress told EPA to set the standards [in the Clean Air Act]. You are setting up a District judge as a kind of ‘super EPA.’”
I agree with Prfoessor Frank. However, if this is how the case is resolved, it is interesting to speculate whether or not congressional attempts to strip EPA of its power to regulate greenhouse gases under the Clean Air Act, if indeed successful, would reopen the door for public nuisance claims. In other words, by displacing the Clean Air Act’s ability to regulate greenhouse gases would Congress also displace a litigant’s ability to argue that the Clean Air Act displaces such public nuisance claims?
Indeed, as the attorneys and the Justices have prepped for AEP’s oral argument over the past few weeks, the news has been filled with the unfolding saga of many of those in Congress attempting to eliminate or cutback the Clean Air Act’s reach to regulate greenhouse gases.
Additionally, as the Justices work into the summer attempting to hammer out an opinion in this case, it also seems likely that further efforts to eliminate or cut back the EPA’s power in this area will continue. In fact, on the heels of the most recent attempt to make EPA’s regulation the ransom necessary to avoid a shutdown of the federal government, Speaker Boehner told us this will not be the last attempt to go after EPA’s regulatory powers. Looking forward, it seems that the question of raising the country’s debt ceiling, which is probably going to be debated within the next few weeks, is a very likely flashpoint in this ongoing congressional battle.
As disturbing as it might be if litigants like those in AEP v. Connecticut ask a district court to act like a Super EPA, one has to question what happens if EPA is forced to act as a Miniature EPA or stripped of its power to act like EPA at all.
-- Brigham Daniels
April 18, 2011
Sarah Krakoff on "Planetarian Identity Formation and the Relocalization of Environmental Law"
Sarah Krakoff, Colorado Law School, has posted an intriguing article titled "Planetarian Identity Formation and the Relocalization of Environmental Law" on SSRN. The article is forthcoming in the Florida Law Review and can be downloaded here. The abstract can be read at the bottom of this post.
In a time of rapid globalization, Krakoff provides refreshing insights into the resurgence of localism regarding environmental issues, specifically in the context of climate change. Krakoff assesses a model in which society prepares itself to mitigate and adapt to climate change, regardless of whether the state is or is not successful in "prodding" individuals to act. She also clearly describes what we, and the state, can learn from local initiatives to tackle climate change.
In doing so, she grapples with the realistic concern that despite important local action on climate, communities very well may fall short in their efforts if steps are not taken by other levels of government, especially since climate change is the "mother of all collective action problems." Krakoff further assesses the political and psychological barriers to breaking through to the world citizenry regarding the urgency of the climate change problem.
Despite localism not being a silver bullet solution, Krakoff provides analysis often overlooked by scholars. She provides a unique level of detail regarding just how much local action occurs at levels more local than even municipalities - which is beyond what conventional scholarship often considers meaningful local action. Krakoff details first-hand interviews with formal local groups aimed at tackling climate change - called "Carbon Rationing Action Groups" - as well as more informal groups called "Neighborhood Climate Action and Sustainability Groups."
Ultimately, Krakoff's article is an engaging critique that manages to weave in the philosophical perspectives of the likes of Aldo Leopold, Wendell Berry, and Elinor Ostrom while at the same time providing an extremely practical guide to the role of localism in climate change mitigation and adaptation. Krakoff's thesis rings true in her statements that "there will be no solution to the world's environmental problems if we fail to focus on the livelihood and well-being of local communities throughout the world" and that "if we overemphasize the state's role at the expense of the role of the local law of climate change, we come away bored, despairing, apathetic, or all three."
"Planetarian Identity Formation and the Relocalization of Environmental Law"
Local food, local work, local energy production – all are hallmarks of a resurgence of localism throughout contemporary environmental thought and action. The renaissance of localism might be seen as a retreat from the world’s global environmental problems. This paper maintains, however, that some forms of localism are actually expressions, and appropriate ones, of a planetary environmental consciousness. The paper’s centerpiece is an in-depth evaluation of local climate action initiatives, including interviews with participants as well as other data and observations about their ethics, attitudes, behaviors, and motivations. The values and identities being forged in these initiatives form the basis for timely conceptions of the human relationship with the planet, which in turn provide grist for environmental law and policy design. One overarching conclusion is that environmental laws, even those aimed at solving problems of planetary scale, should include elements that foster localism. The reasons to do so are two-fold, and strangely complementary. First, in an instrumentalist vein, sustained attitude and behavior changes are most likely to be accomplished through the positive feedbacks between personal and community norms. Second, if we fail to reign in carbon emissions as a global matter, at least some communities will have nurtured the attitudes, behaviors, and patterns of living that might be most adaptive to the vicissitudes of a post-climate changed world. By fostering the planetarian identity, localism therefore has the potential to redeem environmental law, even in the face of its potential failure.
- Blake Hudson
April 11, 2011
Roy Gardner on "Lawyers, Swamps, and Money - U.S. Wetland Law, Policy, and Politics" (New Book)
Wetlands expert Roy Gardner, Stetson University College of Law, has recently published a fascinating book on U.S. wetland law and policy. The book, Lawyers, Swamps, and Money, U.S. Wetland Law, Policy, and Politics has recently become available for purchase (Island Press), and you may purchase a copy here. You can read the press release for the book below.
Professor Gardner is one of the nation's leading experts on wetland law and policy. His book reflects not only his expertise, but also his special ability to make the details of wetland law and policy accessible to all - even despite the complex web of constitutional, administrative, and environmental questions raised. I recommend this book to anyone interested in wetlands, and think it would be great supplementary reading for Natural Resources Law and Policy or related courses.
Professor Gardner is the director of Stetson's Institute for Biodiversity Law and Policy, and was instrumental in Stetson University College of Law becoming the first school in the country to gain membership to the US National Ramsar Committee, which supports the Ramsar Convention on Wetlands in the United States. Stetson students worked with the site manager of Audubon’s Corkscrew Swamp Sanctuary to seek its designation as a Wetland of International Importance under the Ramsar Convention, and it was successfully designated as such in the spring of 2010.
Lawyers, Swamps, and Money
U.S. Wetland Law, Policy, and Politics
By Royal C. Gardner
Washington, D.C. (April 2011) — A leading expert on wetlands law and policy has written an engaging guide to the complex set of laws governing these critical natural areas.
Lawyers, Swamps, and Money explains the importance of America’s wetlands and the threats they face, and examines the evolution of federal law, principally the Clean Water Act, designed to protect them. Royal Gardner’s writing is simultaneously substantive and accessible to a wide audience — from policy makers to students to citizen activists.
Readers will first learn the basics of administrative law: how agencies receive and exercise their authority, how they actually make laws, and how stakeholders can influence their behavior through the Executive Branch, Congress, the courts, and the media. These core concepts provide a base of knowledge for successive discussions of:
• the geographic scope and activities covered by the Clean Water Act
• the curious relationship between the U.S. Army Corps of Engineers and the Environmental Protection Agency
• the goal of no net loss of wetlands
• the role of entrepreneurial wetland mitigation banking
• the tension between wetland mitigation bankers and in-lieu fee mitigation programs
• wetland regulation and private property rights.The book concludes with insightful policy recommendations to make wetlands law less ambiguous and more effective.
The book concludes with insightful policy recommendations to make wetlands law less ambiguous and more effective.
- Blake Hudson
April 11, 2011 in Biodiversity, Constitutional Law, Environmental Assessment, Governance/Management, International, Land Use, Law, Physical Science, Science, US, Water Quality, Water Resources | Permalink | Comments (0) | TrackBack
April 06, 2011
EPA Dodges Major Bullet... But it Won't Be the Last Time Congress Fires its Gun
In a 50-50 vote, the Senate today rejected the Energy Tax Prevention Act. (A tiebreaking vote was not cast because the vote that took place related to cloture—which requires 60 votes.) As a comic side note, it is worth knowing that House member Rep. Gerry Connolly (D-VA) suggested that the bill be renamed the “Koch Brothers Appreciation Act” or “Protecting Americans from Polar Bears Act.” Regardless of what one calls the bill, however, had it become law, the bill would have stripped away a substantial chunk of the EPA’s power to use the Clean Air Act to address climate change. While the bill would have preserved the more stringent mobile emission standards put in place to address greenhouse gases, it would have put an end to other regulations under the Act, particularly the regulations associated with major stationary sources. While the House is almost certain to pass the bill later today and while President Obama would have been likely to veto the bill had it made it to his desk, all of this doesn’t matter much given its death in the Senate.
(For those following the legislative process closely, note that the Senate also decisively rejected a number of other amendments, including amendment 215 proposed by Senator Rockefeller, amendment 236 by Senator Baucus, and amendment 265 by Debbie Stabenow.)
Despite the fact that that the Senate rejected the bill, it should not come as a surprise to anybody that Congress is rethinking EPA regulations. And, this is not just because many in Congress oppose addressing climate change (though that is true). In fact, it was not all that long ago that many of the present defenders of the EPA’s greenhouse gas regulations assumed that Congress would and should preempt these regulations. The major difference being that at the time, these same advocates assumed that we would not only dump these regulations but also replace them with some other form of regulation, most likely a cap-and-trade. For example, consider the following response to a question that Administrator Lisa Jackson received at a press conference held at the White House on the day that the Obama administration announced its intention to regulate light-duty vehicles many months ago:
Q: If Congress doesn't come through, though, on some sort of climate legislation, would you be ready to pull the trigger using the Clean Air Act with some of the work that you’re doing right now?
ADMINISTRATOR JACKSON: I have said before that I actually hope that doesn’t come to pass. I believe very strongly that legislation is the preferable route. It allows for a comprehensive economy-wide discussion of the issues that are going to make for a successful program. That being said, the Clean Air Act is a strong and extraordinarily successful piece of legislation. It has made huge differences in air quality in our country.
And we have an obligation under the law, based on the Supreme Court ruling, to continue to do our job. And that is what we will do. I have also said that I believe strongly that that job can be done in a way that's, step one, that's reasonable, that complies with all administrative processes.
It is uncertain whether, as some have argued, the EPA actually used the Clean Air Act to force Congress into addressing climate change back in the days when Democrats controlled both chambers. Regardless, the EPA is living with the reality that its endangerment finding and regulation of greenhouse gases under the Clean Air Act have come at a political cost. While the EPA is not likely to have its statutory authority clipped by our present Congress, the EPA is not out of the woods. It seems quite likely that it will still face a substantial budget cut or—at the very least—have to live with the burdens that go along with a mobilized opposition both inside and outside the halls of Congress.
-- Brigham Daniels
Update: The House indeeded passed the Energy Tax Prevention Act passed by a 255-172 vote. However, because the same bill died in the Senate, it is largely a symbolic gesture at this point.
March 28, 2011
Hari Osofsky on Diagonal Federalism and Climate Change
Hari Osofsky, Minnesota Law School, has posted a thoughtful and engaging article titled "Diagonal Federalism and Climate Change: Implications for the Obama Administration" on SSRN. The article is forthcoming in the Alabama Law Review and can be downloaded here. The abstract can be read at the bottom of this post.
Osofsky provides a clear view of the complexity of crafting climate change solutions, specifically noting that:
"The complex interactions between and among governments around the world at an international level, other branches of government at a national level, and multiple governmental entities at subnational levels—all of which also interact with nongovernmental organizations, corporations, international organizations, and private individuals—pose an ongoing governance challenge for the Obama Administration."
Osofsky describes how these complexities in the U.S. manifest through a "diagonal federalism" framework, which incorporates public and private actors vertically at all levels of government (local, state, national and international) and horizontally within specific levels of government. Her article targets how the Obama administration can approach diagonal federalism in a way that "leads to the most effective climate policy," and how to structure the above-described complex interactions in a way that most effectively addresses climate change.
All too often, discussions of climate change response are focused on forging political will for regulatory action on climate or fleshing out what types of climate change responses would be most effective to curb carbon emissions (regulatory v. market-based, top-down v. bottom-up, e.g.). Osofsky's article highlights an often overlooked aspect of climate change response; that is, how to navigate complex domestic legal structures to effectively implement climate change policy if and when it is forged. It is easy to say that "nations should enter into an international agreement on climate" or "nations should establish markets to foster unilateral nation-state initiatives to reduce carbon emissions." It is another thing altogether to assess the much more difficult questions of how to achieve those policy goals on the ground. Osofsky's article takes an important and much-needed step toward tackling the latter, and often more difficult, question.
"Diagonal Federalism and Climate Change: Implications for the Obama Administration"
The Obama Administration’s efforts on climate change continue to face daunting challenges domestically and internationally. This Article makes a novel contribution by exploring how the Obama Administration can meet these challenges more effectively though systematically addressing the multiscalar character of climate change in the areas where it has greater regulatory control. Mitigating and adapting to climate change pose complex choices at individual, community, local, state, national, and international levels. The Article argues that these choices lead to many diagonal regulatory interactions: that is, dynamics among a wide range of public and private actors which simultaneously cut across levels of government (vertical) and involve multiple actors at each level of government that it includes (horizontal). After assessing the Obama Administration’s progress on climate change and energy issues, this Article develops a theory of diagonal federalism to explore how the Obama Administration might engage in more effective crosscutting regulatory approaches. It proposes a taxonomy for understanding how these diagonal interactions vary across multiple dimensions over time. Specifically, the taxonomy includes four dimensions: (1) scale (large v. small); (2) axis (vertical v. horizontal); (3) hierarchy (top-down v. bottom-up); and (4) cooperativeness (cooperation v. conflict). The Article then applies this taxonomy to the case example of the Obama Administration’s efforts at reducing motor vehicle greenhouse gas emissions to demonstrate how it can be used as a tool in policymaking. The Article argues that existing diagonal efforts to regulate what cars we drive tend to be predominantly large-scale, vertical, and top-down, in line with their direct impact on automobile companies. In contrast, approaches targeting how we drive those cars, which affect those companies less directly and are grounded in land use planning, are more likely to be small-scale, horizontal, and bottom-up. This divergence creates an opportunity for normative reflection. The Article argues that the Obama Administration should consider whether these skews are appropriate by taking into account the benefits and limitations of such skews in particular contexts. It then proposes ways in which the Administration could create more balance in the dimensions and argues for the value of that balance. Specifically, the Obama Administration could explore additional opportunities for (1) greater smaller-scale governmental involvement in technology-oriented financial incentives programs; (2) federal-level, top-down, vertical initiatives connecting federal approaches to highways, railroads, and gas prices with smaller-scale efforts to have people drive less in their communities; and (3) litigation, which often has a rescaling effect, by interested individuals, nongovermental organizations, corporations, and government.
- Blake Hudson
March 21, 2011
Hunting, Fishing, Survival, Guns, Gear....and Environmental Protection?
You might expect an article titled "How the Budget Bill Will Decimate Conservation" to be found on the Environmental Defense, Greenpeace or a variety of other environmentalist websites. In fact, the article was posted at fieldandstream.com. When you search for "Field and Stream" on Google, the search heading reads "Hunting, Fishing, Survival, Guns, Gear." This is not the place conventional wisdom would suggest that you find an article criticizing recent Congressional proposals to slash the budget. The beginning of the article, however, sums up quite well the sentiment among conservationists who might also often be characterized as conservative:
"Unlike their counterparts at hard-line environmental groups, leaders of sportsmen's conservation organizations tend to measure their words. They avoid hyperbole, don't hyperventilate, and never hint that the sky is falling. That changed when they got a look at the budget priorities unveiled recently by the House of Representatives. Now they’re all looking nervously at the sky and using words like disaster, eviscerate, and destroy."
Last week I posted about Preserving Environmental Protection in a Down Economy, and how the current fiscal crisis creates difficult choices over the balance of government spending and environmental protection. The Field and Stream article is yet another example of how fiscal conservatism can often be at odds with conservation - even conservation supported by people who might under ordinary circumstances be categorized as fiscal conservatives.
The article highlights a point made last week that fiscal crises can sometimes cause the evisceration of needed environmental protections under the guise of fiscal necessity, noting that much of the budget bill's cuts "will not lower the deficit but simply take aim at environmental laws that polluting industries have opposed for years—laws that sportsmen's groups support because of their ultimate impact on fish and wildlife habitat."
Sporting groups have long been friends of the environment, often putting aside partisan politics when it comes to environmental protection - think President Teddy Roosevelt. Sporting groups are also a boon to the economy. As the article notes, "the federal government spends about $5 billion a year in conservation programs that are essential to the habitat that supports hunting and fishing, but it gets back about $14 billion in direct tax payments from people who make their livings in those industries--and that's a conservative estimate."
Ultimately, it would serve fiscal conservatives well to look to sporting groups' supported use of a scalpel instead of a sledgehammer when it comes to environmental protection. Professor Daniels' recent post about "Junk Politics" is nowhere more apparent as here, where fiscal conservatives demonstrate a lack of discernment over which government funded projects are waste and which ones serve a vital role in the continuance of our society. Sporting groups, with all their hunting, fishing, guns, gear and - perhaps most importantly - survival instincts, seem to discern the differences quite well.
- Blake Hudson
March 16, 2011
Currently the United States House of Representatives’ Energy and Commerce Committee is considering legislation that would strip the EPA of its power to use the Clean Air Act to regulate greenhouse gases. Earlier this week, Rep. Henry Waxman (D-Calif.) offered an amendment to that proposal. Regardless of how Congress decided to deal with the EPA’s regulation under the Clean Air Act, Waxman wanted to put Congress on record in accepting the scientific finding that “warming of the climate system is unequivocal.” The Committee voted down the amendment by a vote of 20-31. No Republicans on the Committee voted for the amendment.
While it seems there are many reasons to worry about the EPA regulating greenhouse gases, particularly through the Clean Air Act, the Committee’s rejection of climate science is disturbing. While certainly, there is a lot of disagreement among Americans about the science behind climate change, there is little dispute among scientists. With its vote, the Committee not only parted ways with the EPA and the Intergovernmental Panel on Climate Change but also with the National Academies of Science, the InterAcademy Council, and the American Association for the Advancement of Science, just to name a few among many.
Certainly, the Committee’s vote did not go unchallenged (see the video posted below as an example). Still, while there is a lot of banter in politics about junk science, it seems the larger problem is junk politics.
-- Brigham Daniels
March 14, 2011
A Scalpel or a Sledgehammer? Preserving Environmental Protection in a Down Economy
A recent slate of reports have highlighted Congressional efforts to curb spending on environmental matters in order to prevent further deterioration of the economy. A House subcommittee recently voted to block EPA authority to regulate greenhouse gas emissions, asserting that such authority would drive up energy costs and ship jobs overseas. Leadership in the House recently proposed cutting $1.2 billion (21 percent) out of the National Oceanic and Atmospheric Administration's satellite program budget - a program used for hurricane and weather tracking. NOAA head Jane Lubchenco recently stated that this action would cause NOAA to "inevitably have a gap" in storm tracking and warning capacity. Paper and chemical industries have called on Congress to assess the cost of regulatory oversight, claiming that duplicative and burdensome regulation should be eliminated to avoid a loss of competitive advantage and preserve jobs in those industries. Congress has even taken aim at light bulbs, calling for a repeal of legislation mandating the use of more efficient bulbs. These are just a few of the many legislative proposals coming out of Congress that cut funding for environmental protection (for others, see "Losing the Future: House Republican Budget Cuts Would Strangle Innovation").
Current levels of Congressional spending are unprecedented and unsustainable. For environmentalists, who focus on sustainability of natural resources, it would seem quite consistent to express similar concern over the sustainability of the economic system that gives us the luxury to protect the environment in the first instance. Yet when high government spending and economic downturn overlap, difficult choices arise over which environmental protections to maintain. Spending on environmental protection may very well be duplicative and inefficient in some cases, such as when special interests procure wasteful subsidies - money that would be better allocated elsewhere. And often the parties complaining about environmental protection expenditures actually add to those expenditures, by increasing administrative costs through continual judicial challenges to environmental regulations. Perhaps of greater concern is the fact that an economic downturn allows the evisceration of appropriately allocated environmental protection resources under the guise of legitimate concerns over government spending. So, how can we use a scalpel instead of a sledgehammer? How can we preserve legitimate environmental protection interests while recognizing the need to move toward an economic policy that acts in a more fiscally responsible manner? Is it too much spending or rather too much inefficient spending? Where do environmental priorities rank when deciding where to tighten the belt?
- Blake Hudson
March 09, 2011
Earlier this week, Tim DeChristopher was found guilty by a Utah jury for unlawfully interfering with a public auction for oil and gas leases on federal lands near national parks in southern Utah. In many ways, the result was not surprising because there is little dispute that DeChristopher posed as an oil man and made and won bids on leases with no intention of paying for them.
Despite the clear cut nature of his case, this trial attracted national and even international media attention, including the New York Times, the Los Angeles Times, and the Guardian, to name a few. The reason for all the attention boils down to DeChristopher’s purpose in participating in the auction—for him it was a form of environmental protest mainly relating to climate change. Particularly from environmental quarters, DeChristopher’s trial is a story of an environmentalist so committed to combating climate change that he was willing to serve federal prison time if that is what it took to make a difference, see Time's Eco Centric Blog, Bill McKibben on Grist, and Robert Redford on the Huffingtonpost as examples. This line of thinking paints DeChristopher's actions as heroic—transforming him into something of a Gandhi for the planet.
To me the narrative of DeChristopher as noble activist misses the point. While certainly there is little dispute that DeChristopher’s actions will land him in prison and that he is willing to go there due to his beliefs, his actions are something to bemoan rather than celebrate.
First, while I respect his ideals, it is hard to see his actions as anything other than misguided. Even in the most generous light, how does posing to be an oil man and making fake bids on gas leases amount to anything but an empty symbolic gesture? There is little doubt that these oil and gas reserves are very modest and perhaps worthless. Why did he pick that fight? When it comes to climate change, aren’t there a bazillion more pressing problems than these gas leases?
Second and more importantly, even if these oil and gas leases should warrant our attention, there are plenty of ways to oppose them that are not only legal but also much more likely to prove successful than the route DeChristopher took. The leases were vulnerable to a number of significant political and legal challenges. Interestingly, these alternative tools—not DeChristopher’s actions—have at least stalled and in many cases stopped most of the leases at issue (and many others as well). DeChistopher threw himself on the road when he could have just helped to build a much more effective road block. Sure he wouldn’t have gotten all the press, but he would have been more likely to make a difference and done this without risking prison time. DeChirstopher’s methods do not amount to heroism. Instead, they are silliness.
Third, he did not need to break the law to make his point. Why did he have to pose to be someone he wasn’t and lie to the federal government during the auction? Even if all he wanted to do was protest, aren’t there many other ways to protest that would not have left him legally vulnerable?
DeChistopher made some mistakes. His empty gesture, his backwards strategy, his lies, and entanglement with the law were all mistakes. Yet, instead of trying to find a quiet way out, he held press conferences. Instead of owning up, he embraced the celebrity of the moment.
Certainly, DeChristopher’s actions have lessons for activists. Unfortunately, in the rush to praise his good intentions, the real lesson has been lost. As admirable as we might find his ideals, we need to understand his actions are not admirable. They are far from it. After his trial, DeChristopher invited others who were true to the cause to join him in prison. I hope activists see this invitation to join him for what it is: an invitation to join the ranks of the misguided who have squandered their potential.
- Brigham Daniels