September 2007

You Win Some and You Lose Some

by Julie Walsh on September 20, 2007

On Wednesday, September 12, Judge Vermont US District Court Judge William Sessions upheld a Vermont law requiring automakers to cut climate-warming vehicle emissions 30 percent by 2016. Fortunately for autoworkers concerned about losing their jobs, the omniscient judge declared that job losses “would be small (pg 89, ruling).” I bet that was comforting.

 That’s the bad news. The good news is that a federal judge in San Francisco ruled on September 17 that auto companies cannot be held liable for future damages in California caused by global warming.  In a decision atypical of the activism that characterizes our courts today, Judge Martin Jenkins dismissed California’s claims against the automakers because, “policy decisions concerning the authority and standards for carbon dioxide emissions lie with the political branches of government, and not with the courts."

 Given the current composition of Congress, who knows what deferring to the political process on global warming will lead to. Judge Jenkins nonetheless deserves plaudits for having the courage to make such an unpopular ruling.

The Bush Administration is hosting a meeting of Major Emitter Nations in Washington on September 27-8.  The oft-stated claim is that this meeting is not meant to compete with the upcoming negotiations for a second round of Kyoto reductions at the annual UN meeting in December, which this year is being held in Bali.  Instead, the major emitters meeting is supposed to contribute to the Kyoto process. 

That’s the official Bush Administration position, but it looks more and more like the major emitters meeting, together with the Asia Pacific Partnership, is a plausible replacement for the Kyoto Protocol when it expires at the end of 2012.  

Kyoto calls for industrialized nations to cut greenhouse gas emissions 6% below 1990 levels by 2008 to 2012.  From the start in 1997, however, Kyoto has been a mess. China, now the world’s #1 emitter, and other rapidly developing nations, such as Brazil and India, ratified Kyoto but did not undertake any commitments to reduce emissions.

Although Kyoto’s targets are supposed to be binding, the European Union, Canada, and Japan are not meeting them.  Emissions are rising and in some countries rising rapidly.  The EU’s performance since 1997 lags that of the U. S.  It’s not clear how a second round can be negotiated under these circumstances.  In this context, the major emitters meeting looks like an alternative path.

A hint of where that path may lead was given by the recent APEC summit in Sydney, where it was agreed that there should be long-term “aspirational” emissions targets.  The purpose of the Washington meeting is reportedly to set this voluntary long-term goal, plus adopt intermediate goals and then create a number of teams to work on specific issues.

The European Union will oppose this approach and try to keep Kyoto going, but it appears that Japan and Canada have already jumped off the Kyoto bandwagon.  China and some of the other big developing nations appear to have a foot in each camp.  On the one hand, China and India support a second Kyoto round if it will result in continuing and increased transfers of wealth from industrialized nations to them.  On the other hand, they remained adamant in refusing to undertake mandatory emissions reductions themselves and have welcomed the idea of aspirational targets.

It may be that Kyoto and Kyoto’s replacement can both limp along for a few years, but at some point it seems almost inescapable that China, India, Brazil, and the other rising economies will have to choose one or the other.  As long as no country can demonstrate that it can cut its emissions without damaging its economy, it seems likely that Kyoto will continue to wither and the major emitters process will become the only game around.  

Misery Loves Company

by Julie Walsh on September 20, 2007

 

Even though the House and Senate anti-energy bills and the various cap-and-trade bills to ration energy are stalled for the moment, the campaign against affordable energy continues in Washington. As reported by Reuters, Rep. Henry Waxman (D-Calif.), Chairman of the House Oversight and Government Reform Committee, has written a letter to the Administrator of the Environmental Protection Agency, Stephen Johnson, claiming that the EPA's recent licensing of construction of a coal-fired power plant in Utah is illegal.

Waxman's letter argues that the Supreme Court's decision in Massachusetts v. EPA defines carbon dioxide as a pollutant and therefore EPA is legally obliged to regulate it. I don't doubt that EPA may eventually decide to regulate CO2 emissions, but Waxman is jumping the gun. EPA is in the process of deciding whether and how to regulate CO2 from autos and trucks, as the Supreme Court ordered it to do. Power plants may indeed be included in that decision. In the meantime, EPA has no regulations in place to regulate carbon dioxide emissions. To deny a permit for a new power plant today on the grounds that greenhouse gases may be regulated in the future would be an audacious as well as most peculiar expansion of regulatory authority.

Waxman is trying to add another weapon to the burgeoning campaign against coal by environmental pressure groups. The fact is that the growing demand for electricity in America cannot possibly be met in the next few years without building scores, perhaps even hundreds, of new coal-fired plants. If Waxman and his allies are successful, the result will be to export California's electricity shortages, blackouts, and high prices to the rest of the country. Misery really does love company.

The High Costs of Ethanol

by William Yeatman on September 19, 2007

Backed by the White House, corn-state governors and solid blocks on both sides of Congress’s partisan divide, the politics of biofuels could hardly look sunnier. The economics of the American drive to increase ethanol in the energy supply are more discouraging.

Ozone: The WHole Truth

by William Yeatman on September 19, 2007

Environmentalists have made many apocalyptic predictions over the last several decades. Virtually none has come to pass. Yet each time, the greens and their political allies proclaim victory, arguing their preventive prescriptions averted disaster.

Such is the case with the 1987 Montreal Protocol On Substances That Deplete The Ozone Layer (Montreal Protocol). The lurid predictions of ozone depletion-induced skin cancer epidemics, ecosystem destruction and others haven't come true, for which Montreal Protocol proponents congratulate themselves.

But in retrospect, the evidence shows ozone depletion was an exaggerated threat in the first place. As the treaty parties return to Montreal for their 20th anniversary meeting it should be cause for reflection, not celebration, especially for those who hope to repeat this "success story" in the context of global warming.

Over six and a half billion dollars were given to environmental groups in 2006, according to the June 28, 2007 issue of “Chronicle of Philanthropy.”  But how many of the good people who donated to these groups know that some of their money is used to thwart mining projects destined to help poverty-stricken people in poverty-stricken nations? The groups don’t publicize this fact.

For example, when you go on the World Wildlife Fund (WWF) website you see lots of pictures of adorable animals and stories of WWF projects to save gorillas and macaws. But they don’t publicize the dirty fact that they are working to bring down a mining project in Madagascar, the world’s third poorest country.

Most U.S. citizens care about the United States’ reputation in the world. Yet we’re turning a blind-eye to the developing world’s increasing resentment towards us caused by First-World environmental groups, who seek to impose their green values on the developing world and bring down much-needed projects. In our arrogance, we use our own land for large office buildings, factories, and shopping malls, but we can’t allow them to use their own land for a desired mining project, consigning the world’s poorer nations to slow—and in some cases no—economic growth.

But as Snezhina Kovacheva states, “(E)nvironmental mitigation is a value-added good. As a country's wealth increases, its citizens recognize that a better environment enhances the quality of life. Accordingly, the population starts investing a larger portion of its greater resources into developing cleaner technologies.” As seen in the area of global warming, the United States was able to reduce its emissions (relative to GDP) further through energy efficiency, than those of the Kyoto-signers.

The EU alliance plans to help developing countries prepare for future disasters, take advantage of the global carbon market, and cut emissions from deforestation.

A September 18, 2007 article by Troy Lennon in the Daily Telegraph, Sydney about the Northwest Passage, “Trip that caused the toughest to tremble,” completely missed the point.

The author says in the third paragraph, “If global warming continues, it may just achieve what thousands of people tried and failed to do — open up a northwest passage from the Atlantic through to the Pacific.”

Then at the end of the article he details those explorers that did transverse it, albeit not for commerce.

In the 20th century someone actually sailed along the route. In 1906 Norwegian Roald Amundsen braved the course aboard the Gjoa, a converted herring boat.

In 1940-42 Canadian Mounted Police officer Henry Larsen sailed the St Roch — a diesel-powered schooner clad in Australian ironbark timber — from Vancouver to Halifax. It was the first to sail the passage from west to east. In 1944 he sailed from Halifax to Vancouver, setting a record of 86 days — the first vessel to sail the passage in a single season. But cost has stopped commerce from following the adventurers.

 The Northwest Passage has been traveled many times before: in 1906, 1942, 1944, 1957, 1969, 1977, and 1984. And the Vikings may have even succeeded earlier. Don’t believe the alarmists that say that the opening of this route portends the end of the world.

Al Gore’s film, An Inconvenient Truth, has initiated something of a backlash as scientists, heretofore absent from the global warming debate, have begun to criticize Mr. Gore, and by extension, much of the underpinnings of the global warming hypothesis.
 
One such critic is Professor Scott Armstrong, a leading expert on forecasting with the Wharton School at the University of Pennsylvania.  Professor Armstrong hasn’t just criticized Mr. Gore; he has put his money where his mouth is by challenging the former VP to a $10,000 bet, based on climate predictions.
 
On September 13, the Center for Science and Public Policy hosted a briefing where Professor Armstrong presented the findings of an audit he and his colleague, Professor Kesten Green with Monash University’s Business and Economic Forecasting Unit in New Zealand, conducted on Chapter 8 of the IPCC’s Working Group I report, The Physical Science Basis. 
 
As noted in the presentation, they found no evidence that the IPCC authors were aware of the primary sources of information on forecasting. Indeed, as Professor Armstrong stated, “We have been unable to find a single scientific forecast to support global warming.”
 
They also found that there was only enough information within the IPCC report to make a judgment on 89 of the total 140 forecasting principles as described in Professor Armstrong’s book, Principles of Forecasting.  Of these 89 principles, the IPCC violated 72.
 
The power point slides and video of the Professor Armstrong's presentation are available here.

On the (more) good news front, yet another court has weighed in to thumb its nose at the ridiculously reasoned SCOTUS opinion in Massachusetts et al v. EPA which strongly suggested that EPA should regulate emissions of carbon dioxide from new automobiles – and presumably all GHGs from all substantial sources, including water vapor – as a pollutant under the Clean Air Act.

In the same context of auto emissions – but with California seeking not regulatory authority but damages in tort from auto emission-caused global warming – the U.S. District Court for the Northern District of California (!) stated the obvious:

“The court is left without guidance in determining what is an unreasonable contribution to the sum of carbon dioxide in the earth's atmosphere, or in determining who should bear the costs associated with global climate change that admittedly result from multiple sources around the globe.”

How much is too much and whose pocket would I pick, how badly?  I admit that this stance is grounded specifically in the plaintiffs relying on a long line of jurisprudence on transboundary nuisance, which the court noted are “distinguishable because none of the pollution-as-public nuisance cases implicates a comparable number of national and international policy issues.”  Still, isn’t it amazing the difference it can make when one dares to shrug off likely political venom and confront the fragile nature of the claims?

This applies to the court here, as well, which actually showed courage when finding that “injecting itself into the global warming thicket at this juncture would require an initial policy determination of the type reserved for the political branches of government … and would potentially undermine the political branches’ strategic choices.”  That is, it also asked, at what cost?

Here the court is invoking the political question doctrine, one of two rationales cited on August 31 by the U.S. District Court for the Southern District of Mississippi which threw out a class action lawsuit essentially blaming 26 energy companies for Hurricane Katrina.

Like the San Francisco court, the court in Biloxi also dismissed Ned Comer, et al. v. Murphy Oil USA Inc., et al., on the grounds that the plaintiffs identified no “standing” to sue (the opposite of what SCOTUS found for parties also lacking in such status, but here the court also articulated a distinction in the nature of their complaints to deny standing; in truth both groups’ claims to unique and actual harm are risible).

It is key to have yet another court saying this on the heels of the Katrina class action, yet completely at odds with the Vermont federal court’s ruling late last week that the California court seemingly had waited on to issue its opinion, indicating it a possible intention to defer to those proceedings. Recall that “In considering a Rule 12(b)(6) motion, the Court accepts the plaintiff’s material allegations in the complaint as true and construes them in the light most favorable to the plaintiff” – that is, this ruling is made while accepting California’s claims that cars have caused part of observed climate changes.

Most surprising is how such commonsense assertions persist in the judicial realm on the heels of Mass v EPA, an absurd opinion cited 13 times by the court in San Francisco but which was only made possible by poor a) strategy and b) oral argument (no one spoke up to support Scalia’s inquiry about a linear relationship between marginal reductions in global CO2 emissions and alleged impact, in response to Breyer's fantastic statement that a 2% reduction would “save 2% of Massachusetts’s coastline”). 

So, all remains on hold as these things wind their respective ways through the courts – hopefully with some support from EPA which now has more reason than ever to inform the Court that they elect not to regulate CO2 because the notion of some exaggerated 20th century warming trend has been debunked.