Yet whatever his faults, James Hansen’s central climate policy recommendation is a sound one. For years he has called for a simple and straightforward approach: A revenue-neutral carbon tax and an end to fossil energy subsidies. As he writes in today’s NT:

We need to start reducing emissions significantly, not create new ways to increase them. We should impose a gradually rising carbon fee, collected from fossil fuel companies, then distribute 100 percent of the collections to all Americans on a per-capita basis every month. The government would not get a penny. This market-based approach would stimulate innovation, jobs and economic growth, avoid enlarging government or having it pick winners or losers. Most Americans, except the heaviest energy users, would get more back than they paid in increased prices. Not only that, the reduction in oil use resulting from the carbon price would be nearly six times as great as the oil supply from the proposed pipeline from Canada, rendering the pipeline superfluous, according to economic models driven by a slowly rising carbon price.

But instead of placing a rising fee on carbon emissions to make fossil fuels pay their true costs, leveling the energy playing field, the world’s governments are forcing the public to subsidize fossil fuels with hundreds of billions of dollars per year. This encourages a frantic stampede to extract every fossil fuel through mountaintop removal, longwall mining, hydraulic fracturing, tar sands and tar shale extraction, and deep ocean and Arctic drilling.

This is the sort of policy that could reduce greenhouse gas emissions and provide incentives for innovation (particularly if combined with things like prizes) without requiring the erection of a vast new bureaucracy or imposing substantial new burdens on the economy.

Conservatives have called for shifting the tax burden from labor and wealth creation to consumption, and that is precisely what Hansen’s proposal would do. Further, as shown by the experience of other jurisdictions, implementing a carbon tax of this sort is far less complicated than trying to erect a Waxman-Markey-type cap-and-trade scheme. A basic carbon tax would also be less susceptible (on the margin) to special interest rent-seeking than a cap-and-trade scheme, particularly if emissions allowances are to be doled out to reduce the economic impact of the regime. For a variety of reasons, excise taxes tend not to be carved up by interest groups the way income tax schemes are.

I’ve also argued that a revenue-neutral carbon tax would be easier — or at least no less difficult — to enact than a cap-and-trade scheme. Both involve increasing the cost of energy, but the revenue-neutral carbon tax would do so in a simpler, less-regressive, more transparent, and less economically burdensome way, and could not be characterized (a la Waxman-Markey) as implementing expansive government control over the energy sector for the benefit of special interests. Of course, we won’t know whether this is true until political leaders have the guts to push for this sort of policy.

I wish that environmental activists would follow Hansen’s lead (rather than, say, Krugman’s) and embrace this approach as a superior alternative to increased regulation or Waxman-Markey-style cap-and-trade. Alas, many Greens seem more interested in expanding government power than reducing greenhouse gas emissions. I also wish more forward-looking Republican leaders would embrace this sort of policy and recognize how it’s consistent with limited government principles. Alas, few on the right take environmental policy seriously enough to do more than bash bureaucrats. So I guess I’ll be wishing for awhile.

Then, earlier this year, Heartland was the target of directed smear campaign after the Pacific Institute’s Peter Gleick surreptitiously obtained internal Heartland documents by impersonating a board member. Gleick anonymously distributed the purloined documents together with a forged memorandum purporting to provide further evidence of Heartland’s internal dealings. Progressive bloggers trumpeted the materials, and the forged memo in particular, as evidence of Heartland’s sinister machinations. While it seems likely that Gleick himself forged the memo (or knows who did) Heartland may have difficulty seeking legal redress for his actions. I posted on what some call “Fakegate” here and here.

Instead of trying to retain the moral high ground by defending the substance of its views, Heartland took adopted the tactics of its most unhinged critics, purchasing a billboard comparing those who believe in global warming to the Unabomber. According to Heartland, this was to be the first in a series featuring famous “global warming alarmists,” including Osama Bin Laden, Fidel Castro and other “rogues and villians.” Heartland explained the campaign this way:

what these murderers and madmen have said differs very little from what spokespersons for the United Nations, journalists for the “mainstream” media, and liberal politicians say about global warming. They are so similar, in fact, that a Web site has a quiz that asks if you can tell the difference between what Ted Kaczynski, the Unabomber, wrote in his “Manifesto” and what Al Gore wrote in his book, Earth in the Balance.

The point is that believing in global warming is not “mainstream,” smart, or sophisticated. In fact, it is just the opposite of those things. Still believing in man-made global warming – after all the scientific discoveries and revelations that point against this theory – is more than a little nutty. In fact, some really crazy people use it to justify immoral and frightening behavior.

The response to this ad was quite negative from friend and foe alike, prompting Heartland to pull the ad within 24 hours. Heartland now claims the billboard was an “experiment.”

“This provocative billboard was always intended to be an experiment. And after just 24 hours the results are in: It got people’s attention.

“This billboard was deliberately provocative, an attempt to turn the tables on the climate alarmists by using their own tactics but with the opposite message. We found it interesting that the ad seemed to evoke reactions more passionate than when leading alarmists compare climate realists to Nazis or declare they are imposing on our children a mass death sentence. We leave it to others to determine why that is so.

Well lots of folks didn’t get the joke, including many of Heartlands friends and funders. Several speakers have withdrawn from Heartland’s annual climate conference, including Rep. James Sensenbrenner and IPCC critic Donna Laframboise. (More reactions here and here.) E&E News also reports the publicity stunt is costing Heartland financial support, and could prompt staff departures too.

Even if the billboard was initially designed as an “experiment,” it was a stupid idea. The implicit argument of the billboards is completely unjustifiable. So what if some tyrants and whackjobs believe in global warming. This is like arguing someone should eat meat because Hitler was a vegetarian. Lots of evil, crazy, and stupid people believe plenty of sensible things (and lots of brilliant people have embraced nutty ideas). Heartland’s justifiable anger at the vitriol spewed by its most extreme or unhinged opponents does not justify sinking to their level. If the folks at Heartland believe there is a double-standard — and I believe there is, even though I also believe anthropogenic global warming is a real problem — then they should explain why. There’s no need to provoke and offend countless commuters and others by suggesting that a believing in global warming makes one like the Unabomber. It was a know-nothing message, and not just because most so-called “skeptics” actually believe in global warming too, and only reject apocalyptic climate projections. I expect this sort of stunt from extreme animal rights groups, not those who purport to want an open and honest scientific debate. However angry the Heartland folks may be with some of those on the other side, this stunt was unjustified and unwise — and by all accounts it looks like it will cost Heartland dearly.

The proposed rule — years in the making and approved by the White House after months of review — will require any new power plant to emit no more than 1,000 pounds of carbon dioxide per megawatt of electricity produced. The average U.S. natural gas plant, which emits 800 to 850 pounds of CO2 per megawatt, meets that standard; coal plants emit an average of 1,768 pounds of carbon dioxide per megawatt.

Industry officials and environmentalists said in interviews that the rule, which comes on the heels of tough new requirements that the Obama administration imposed on mercury emissions and cross-state pollution from utilities within the past year, dooms any proposal to build a coal-fired plant that does not have costly carbon controls.

“This standard effectively bans new coal plants,” said Joseph Stanko, who heads government relations at the law firm Hunton and Williams and represents several utility companies. “So I don’t see how that is an ‘all of the above’ energy policy.”

The rule provides an exception for coal plants that are already permitted and beginning construction within a year. There are about 20 coal plants now pursuing permits; two of them are federally subsidized and would meet the new standard with advanced pollution controls.

These new regulations are but one piece of the surge in GHG regulations the EPA is adopting under the Clean Air Act as a consequence of Massachusetts v. EPA.

UPDATE: Here is EPA’s release and website on the new standard

The more serious challenge to the EPA comes from the challenges to the so-called “tailoring rule” which is the EPA’s effort to apply some of the Clean Air Act’s stationary source provisions to greenhouse gases.  The reason this challenge is more serious is because the EPA looked at the statutory requirements of these provisions and realized that implementation of the Act, as written, was impossible.  The statutory thresholds that determine what facilities are covered are low enough that, when applied to GHGs, they increase the number of regulated facilities over 140-fold, according to EPA.  The administrative costs of trying to process this many permits threatens to grind the EPA’s air office – and state air permitting authorities — to a halt.  So, the EPA is trying to rewrite the relevant Clean Air Act provisions by administrative fiat.  In the alternative, the EPA has argued, regulatory agencies would have to hire hundreds of thousands of new regulators to handle the permit applications.  The problem for EPA is that the relevant emission thresholds are expressly written into the Clean Air Act, and there is no provision giving the EPA authority to modify these limits. So, what the EPA is asking for authority to do, is rewrite the law by administrative fiat — something no federal agency has the authority to do.  This puts the D.C. Circuit in a tough place: either let EPA rewrite the law, or enforce a statutory provision that threatens to shut down the agency.  Further evidence the Supreme Court was wrong in Mass. v. EPA, particularly when it suggested that applying the Clean Air Act to GHGs would pose no problems.

Here are additional previews of the litigation from Richard Frank and Brad Plumer.

UPDATE: Here’s an additional preview from Greenwire noting the magnitude of this litigation.

The Heartland Institute, for its part, has released two sets of e-mail correspondence (on its new “Fakegate” website) that shed further light on Gleick’s actions.  Early this year, heartland’s James Taylor had an exchange with Gleick on the Forbes website.  More specifically, Taylor lambasted a Gleick essay, and Gleick responded.  Shortly thereafter, Heartland invited Gleick to participate in a debate over climate change at the Institute’s annual dinner.  There was a brief back and forth, but on January 27, Gleick declined the offer, even though Heartland had offered to pay $5,000 to a charity of Gleick’s choice.  Interestingly enough, on the very same day he turned down Heartland’s invitation to debate — citing, among other things, concerns about the organizations lack of transparency and refusal to list all of its donors — Gleick began posing as one of Heartland’s board members in an e-mail exchange that led to his receipt of confidential Heartland documents.  This is quite a coincidence — a coincidence that makes Gleick’s explanation of his actions all the more curious (as if they were not curious enough).  As Steven Hayward quipped, “The only thing missing right now to make Gleick’s story weaker is an old Woodstock typewriter.”

Meanwhile, Heartland has been quite heavy-handed with bloggers and websites who posted the documents distributed by Gleick, suggesting that posting the documents on line could be illegal and demanding that all of the relevant documents, and not just the “Climate Strategy” memo, be taken down.  Debbie Fine, general counsel for the Center for American Progress Action Fund, has responded to Heartland’s threats with a letter noting CAPAF (like many other organizations) has taken down the almost-certainly-faked memo, but explaining why it is under no legal obligation to remove the other documents.  As I understand the law, CAPAF is correct.  Those who  obtained the documents lawfully may disclose their contents.

Last week, another potentially explosive trove of climate-related private documents was released on the web, in this case a set of documents prepared for a board meeting of the Heartland Institute, a libertarian think tank based in Chicago that sponsors the Nongovernmental International Panel on Climate Change and other efforts designed to downplay the threat posed by anthropogentic climate change and discourage the adoption of climate change policies.  Among the documents was a “Climate Strategy” memorandum purporting to outline Heartland’s secret efforts to, among other things, suppress “warmist” views and discourage the teaching of climate science in schools.  Someone calling himself “Heartland Insider” distributed these documents to several progressive bloggers who promptly posted the materials on the web.

Other than the “Climate Strategy” memo, the documents were relatively pedestrian — revealing but not earth-shattering.  If anything, these documents suggested that the Heartland Institute’s efforts — and those of climate skeptics generally — are less well-funded than some suspect (and certainly less well-funded than major environmentalist groups).  Yet almost immediately, questions were raised about the memo’s authenticity.  The content and tone of the memorandum were a bit off, and it contained subtle errors of the sort someone on the inside would have been unlikely to make.  Megan McArdle dissected the memo here and here, while others identified evidence the memo had a different provenance than the other purloined materials.  Heartland, for its part, declared the memo a fake (while also making threats and going on the warpath against anyone who dared post the purloined documents).  Meanwhile, speculation swirled about the memo’s actual author.

Yesterday, a big part of the mystery was solved when a climate scientist, Peter Gleick of the Pacific Institute, came forward as the source of the documents, but not as the author of the suspicious memo.  Wrote Gleick:

At the beginning of 2012, I received an anonymous document in the mail describing what appeared to be details of the Heartland Institute’s climate program strategy. It contained information about their funders and the Institute’s apparent efforts to muddy public understanding about climate science and policy. I do not know the source of that original document but assumed it was sent to me because of my past exchanges with Heartland and because I was named in it.

Given the potential impact however, I attempted to confirm the accuracy of the information in this document. In an effort to do so, and in a serious lapse of my own and professional judgment and ethics, I solicited and received additional materials directly from the Heartland Institute under someone else’s name. The materials the Heartland Institute sent to me confirmed many of the facts in the original document, including especially their 2012 fundraising strategy and budget. I forwarded, anonymously, the documents I had received to a set of journalists and experts working on climate issues. I can explicitly confirm, as can the Heartland Institute, that the documents they emailed to me are identical to the documents that have been made public. I made no changes or alterations of any kind to any of the Heartland Institute documents or to the original anonymous communication.

This is just incredible (and not only because Gleick was chairing a working group on scientific integrity at the time of his actions). McArdle, again, is all over this.

The very, very best thing that one can say about this is that this would be an absolutely astonishing lapse of judgement for someone in their mid-twenties, and is truly flabbergasting coming from a research institute head in his mid-fifties. Let’s walk through the thought process:

You receive an anonymous memo in the mail purporting to be the secret climate strategy of the Heartland Institute. It is not printed on Heartland Institute letterhead, has no information identifying the supposed author or audience, contains weird locutions more typical of Heartland’s opponents than of climate skeptics, and appears to have been written in a somewhat slapdash fashion. Do you:

A. Throw it in the trash

B. Reach out to like-minded friends to see how you might go about confirming its provenance

C. Tell no one, but risk a wire-fraud conviction, the destruction of your career, and a serious PR blow to your movement by impersonating a Heartland board member in order to obtain confidential documents.

As a journalist, I am in fact the semi-frequent recipient of documents promising amazing scoops, and depending on the circumstances, my answer is always “A” or “B”, never “C”.

In this case, however, we are to believe that Gleick was so overcome with his rage at the Heartland Institute that he chose option “C” and, upon receiving additional documents from Heartland, sent the whole package of materials around without ever doing any investigation of his own as to the authenticity of the “Climate Strategy” memo. It’s hard to believe, but it’s also hard to believe that Gleick himself would have forged the document (as many suspected even before he came forward). Is there a third alternative?

In any event, Gleick’s actions will have serious repurcussions. From the NYT‘s Andrew Revkin:

Another question, of course, is who wrote the climate strategy document that Gleick now says was mailed to him. His admitted acts of deception in acquiring the cache of authentic Heartland documents surely will sustain suspicion that he created the summary, which Heartland’s leadership insists is fake.

One way or the other, Gleick’s use of deception in pursuit of his cause after years of calling out climate deception has destroyed his credibility and harmed others. (Some of the released documents contain information about Heartland employees that has no bearing on the climate fight.) That is his personal tragedy and shame (and I’m sure devastating for his colleagues, friends and family).

The broader tragedy is that his decision to go to such extremes in his fight with Heartland has greatly set back any prospects of the country having the “rational public debate” that he wrote — correctly — is so desperately needed.

Others have reached similar conclusions, but the feelings are not universal.

Much of the clmate science community seems unable to condemn Gleick’s conduct (see, e.g. here), just as some environmentalist groups and climate activists have a hard time acknowledging the frequent exaggeration or “sexing up” of climate studies to accentuate the threat posed by climate change. (And I say this as someone who believes climate change is a problem and supports appropriate policies to address the threat.)

McArdle again:

When skeptics complain that global warming activists are apparently willing to go to any lengths–including lying–to advance their worldview, I’d say one of the movement’s top priorities should be not proving them right. And if one rogue member of the community does something crazy that provides such proof, I’d say it is crucial that the other members of the community say “Oh, how horrible, this is so far beyond the pale that I cannot imagine how this ever could have happened!” and not, “Well, he’s apologized and I really think it’s pretty crude and opportunistic to make a fuss about something that’s so unimportant in the grand scheme of things.”

After you have convinced people that you fervently believe your cause to be more important than telling the truth, you’ve lost the power to convince them of anything else.

 

UPDATE: Here is how the NYT initially covered the document release, and here is Heartland’s response. Here is the NYT‘s coverage of Gleick’s confession.  David Appell also has an interview with AGU President Michael McPhaden on the controversy and its likely impact on climate science, and Judith Curry reflects on “Gleick’s ‘Integrity’.”

Heartland’s effort to force bloggers and others to take down the purloined documents seems like bluster to me.  Unless they were to try and assert copyright, I don’t think they have much legal recourse.  They may, however, be able to go after Gleick for his deception.  Gleick seems aware of this possibility, as he has retained a lawyer (and a “crisis manager’) on this matter.

Speculation about the provenance of the faked memo continues, and some are challenging Gleick to provide evidence for his account.  Others are offering coffee mugs.  Are t-shirts next?

The new e-mails appeared remarkably similar to the ones released two years ago just ahead of a similar conference in Copenhagen. They involved the same scientists and many of the same issues, and some of them carried a similar tone: catty remarks by the scientists, often about papers written by others in the field. . . .

In one of the e-mails, Raymond S. Bradley, director of the Climate System Research Center at the University of Massachusetts, Amherst, criticized a paper that Dr. [Michael] Mann wrote with the climate scientist Phil Jones, which used tree rings and similar markers to find that today’s climatic warming had no precedent in recent natural history. Dr. Bradley, who has often collaborated with Dr. Mann, wrote that the 2003 paper “was truly pathetic and should never have been published.”

Dr. Bradley confirmed in an interview that the e-mail was his, but said his comment had no bearing on whether global warming was really happening. “I did not like that paper at all, and I stand by that, and I am sure that I told Mike that” at the time, he said. But he added that a disagreement over a single paper had little to do with the overall validity of climate science. “There is no doubt we have a big problem with human-induced warming,” Dr. Bradley said. “Mike’s paper has no bearing on the fundamental physics of the problem that we are facing.”

Some of the other e-mails involved comments about problems with the computer programs used to forecast future climate, known as climate models. For instance, a cryptic e-mail apparently sent by Dr. Jones, a researcher at East Anglia, said, “Basic problem is that all models are wrong — not got enough middle and low level clouds.”

Gavin A. Schmidt, a climate modeler at NASA, said he found such exchanges unremarkable. He noted that difficulties in modeling were widely acknowledged and disclosed in the literature. Indeed, such problems are often discussed at scientific meetings in front of hundreds of people.

Roger Pielke also comments here, noting that the new e-mails confirm the politicization of decisions about what papers to cite (or omit) from the 2007 IPCC report.

As with the first ClimateGate release, I have yet to see anything in these e-mails that disproves, or even seriously undermines, the basic claim that human emissions of greenhouse gases have contributed to a gradual warming of the climate and will continue to do so in the future. They do, however, further confirm that “mainstream” climate scientists have contributed to the politicization of climate science and allowed political concerns to influence scientific judgments, exaggerating the reliability of climatic projections and downplaying scientific findings that undermine the claim that climate change presents an apocalyptic threat.

Here’s a list of VC posts that mention ClimateGate. For an overview of my views, see here and here.

The emails appear to be genuine, but the University of East Anglia said the “sheer volume of material” meant it was not yet able to confirm that they were. One of the emailers, the climate scientist Prof Michael Mann, has confirmed that he believes they are his messages. The lack of any emails post-dating the 2009 release suggests that they were obtained at the same time, but held back. . . .

One marked difference from the original 2009 release is that the person or persons responsible has included a message headed “background and context” which, for the first time, gives an insight into their motivations. Following some bullet-pointed quotes such as “Over 2.5 billion people live on less than $2 a day” and, “Nations must invest $37 trillion in energy technologies by 2030 to stabilise greenhouse gas emissions at sustainable levels,” the message states:

“Today’s decisions should be based on all the information we can get, not on hiding the decline. This archive contains some 5.000 emails picked from keyword searches. A few remarks and redactions are marked with triple brackets. The rest, some 220.000, are encrypted for various reasons. We are not planning to publicly release the passphrase. We could not read every one, but tried to cover the most relevant topics.”

Excerpts of the e-mails are posted on Watt’s Up With That? and The Air Vent.

This is another example of how technology inducement prizes can spur the development of valuable technologies, and further evidence that such prizes are far more cost-effective than ex ante R&D grants or government investments in speculative ventures like Solyndra.  The latter may be more politically popular, but prizes would be a better use of taxpayer dollars.  As I’ve argued at length, if we’re serious about problems like global climate change, we should invest more in prizes and less in conventional approaches to government-sponsored R&D.

(Thanks to Roger Meiners for the pointer.)

First, the EPA is not asking for additional resources. What the EPA is asking for is permission to ignore the plain text of the Clean Air Act so as to make the task of regulating greenhouse gases more manageable. The brief at issue is quite clear on this point. The specific figures are an illustration of how it is simply unmanageable to try and regulate such emissions, carbon dioxide in particular, under statutory provisions designed for traditional air pollutants that are emitted by far fewer facilities. The obvious answer to this problem would be to recognize that greenhouse gases are not what Congress had in mind when it told the EPA to regulate “pollutants” under the Clean Air Act, but this option is foreclosed by Massachusetts v. EPA.

Second, the EPA’s claim that regulating greenhouse gases under the Clean Air Act would overwhelm the agency’s existing resources and effectively require the hiring of thousands of new employees is not new. I detailed this problem in this Reason essay and HJLPP article. The Obama EPA noted this problem it first proposed the Tailoring Rule in 2009. The Bush EPA (and others) also made this point when arguing that the Act should not be interpreted to apply to greenhouse gases. The Supreme Court was not convinced, however. Indeed, the Massachusetts v. EPA majority briefly considered, and dismissed, the claim that regulating greenhouse gases under the Clean Air Act would be impractical.

Third, the real problem with the EPA’s argument is that the agency is asking to ignore the plain text of the Clean Air Act. Specifically, the statutory provisions at issue require regulating facilities with the potential to admit more than 100 or 250 tons per year of regulated pollutants. As the EPA admits, this is impossible for the agency to do without increasing the agency’s total budget more than ten-fold. But the EPA’s solution is just as much of a problem, because what EPA wants to do is replace the Act’s express numerical thresholds with new thresholds of its own invention, based on the EPA’s judgment of what it wants to do when. Yet there is no precedent for administrative revision of statutory text in this fashion — and for good reason. It is one thing to allow an agency to twist potentially ambiguous language so as to avoid an absurd outcome, but quite another to allow an agency to rewrite clear statutory provisions, such as express numerical thresholds. Interpreting “pollutant” to mean only traditional air pollutants does far less violence to the Act’s text and structure than replacing 100 and 250 with numbers the EPA finds more convenient. But the source of this problem is not EPA overreaching or overzealous regulators within the Obama Administration, but the Supreme Court’s decision in Massachusetts v. EPA. If the Court had not misread the statute, we would not have to worry about bloggers and journalists misreading the EPA’s briefs.

Viewed together, these decisions suggest the Obama Administration is making a conscious effort to moderate its regulatory policy, particularly in the environmental area. If so, why would this be? Could it possibly make political sense for the Obama Administration to acquiesce to GOP attacks on environmental protection? After all, as Ann Carlson noted at Legal Planet, environmental protection remains popular,and polls suggest relatively few Americans believe environmental regulation costs jobs (though it can).

It is inconceivable that the Obama Administration believes that these moves will placate Tea Party opposition or win plaudits from across the aisle. But that’s not the point. Nor is aggregate popular opinion on these questions particularly relevant to the political calculus. Rather, as I noted in comments to Ann Carlson’s post, what matters are the views of marginal voters and, in particular, marginal voters in politically significant states. That is, the opinions of moderates and independents in Ohio, Pennsylvania and West Virginia matter more than the views of environmental activists in San Francisco or Washington, D.C.

Viewed in this light, the political rationale of these decisions is easier to understand. Insofar as these moves are politically inspired, it would appear the aim is to placate those potential constituencies in battleground states most sensitive to the costs of new and impending environmental regulations. Think coal and power company unions, small businesses in what remains of the industrial midwest, and moderate Democrats in state and local governments whose enthusiasm is essential for voter turnout. These sorts of groups are more likely to notice whether the Obama Administration appears to be moderating the EPA’s regulatory zeal or tightening the screws, and such issues may influence their votes.  There’s a reason Joe Manchin (D-WV) ran against environmental regulation, and the White House is certainly understands where proposed environmental rules would have the greatest economic effect.

None of this means that the Obama Administration’s decisions were politically driven — I have no deep inside sources — or that they are politically wise.  The ozone NAAQS decision was almost certainly political, but the latest decision may well have been influenced by other concerns.  But if the Obama Administration is deliberately trimming the EPA’s sails, the political calculus is easy to understand.

Last week, Christie vetoed legislation that would have required New Jersey to remain in the Regional Greenhouse Gas Initiative (RGGI), a multi-state agreement to control greenhouse gas emissions through a regional cap-and-trade program. The bill was an effort to overturn Christie’s decision earlier this year to withdraw from the program. Given conservative opposition to greenhouse gas emission controls, the veto should have been something to cheer, right? Nope.

The problem, according to some conservatives, is that Christie accompanied his veto with a statement acknowledging that human activity is contributing to global climate change. Specifically, Christie explained that his original decision to withdraw from RGGI was not based upon any “quarrel” with the science.

While I acknowledge that the levels of carbon dioxide and other greenhouse gases in our atmosphere are increasing, that climate change is real, that human activity plays a role in these changes and that these changes are impacting our state, I simply disagree that RGGI is an effective mechanism for addressing global warming.

As Christie explained, RGGI is based upon faulty economic assumptions and “does nothing more than impose a tax on electricity” for no real environmental benefit. As he noted, “To be effective, greenhouse gas emissions must be addressed on a national and international scale.”

Although Christie adopted the desired policy — withdrawing from RGGI — some conservatives are aghast that he would acknowledge a human contribution to global warming. According to one, this makes Christie “Part RINO. Part man. Only more RINO than man.” ["RINO" as in "Republican in Name Only."]

Those attacking Christie are suggesting there is only one politically acceptable position on climate science — that one’s ideological bona fides are to be determined by one’s scientific beliefs, and not simply one’s policy preferences. This is a problem on multiple levels. Among other things, it leads conservatives to embrace an anti-scientific know-nothingism whereby scientific claims are to be evaluated not by scientific evidence but their political implications. Thus climate science must be attacked because it provides a too ready justification for government regulation.   This is the same reason some conservatives attack evolution — they fear it undermines religious belief — and it is just as wrong.

Writing at MichelleMalkin.com, Doug Powers warns that ” if some politicians think they can swim in the waters of AGW without getting wet or soaking taxpayers, they should think again.” In other words, once you accept that human activity may be contributing to global warming, embracing costly and ill-advised regulatory measures is inevitable. Yet it is actually Powers, not Christie, who is embracing a dangerous premise. As Christie’s veto shows, he understands that the threat of climate change does not justify any and all proposed policy responses. One can believe the threat is real, and still think cap-and-trade is a bad idea. Christie’s critics, on the other hand, seem to accept that once it can be shown that human activity may be having potentially negative environmental effects, this alone justifies government intervention. Yet the environmental effects of human behavior are ubiquitous. Human civilization necessarily entails remaking the world around it. So if recognizing negative environmental effects leads inevitably to governmental intervention, there is virtually no end to what government needs to do, global warming or no.

How inconvenient, then, that even the vast majority of warming “skeptics” within the scientific community would agree with Governor Christie’s statement that “human activity plays a role” in rising greenhouse gas levels and resulting changes in the climate.   The Cato Institute’s Patrick Michaels, for instance, has written several books acknowledging human contributions to global warming.  In Climate of Extremes: The Global Warming Science They Don’t Want You to Know (co-authored with Robert Balling, another “skeptic”) for example, he explained that there is an observable warming trend and that human activity shares some of the blame.  Michaels and Balling are labeled “skeptics” because they don’t believe the warming is likely to be as severe or as disruptive as most other climate scientists, but they readily accept the reality of anthropogenic global warming.  (See, e.g., p. 27.) Their rejection of a climate apocalypse — and not a denial of human contributions to climate change — is actually the view of most climate “skeptics,” and nothing Christie said is incompatible with that view.

As I’ve written before, it would be convenient if human activity did not contribute to global warming or otherwise create problems that are difficult to reconcile with libertarian preferences. But that’s not the world we live in, and politicians should not be criticized for recognizing that fact.  Further, even if one accepts the “skeptic” perspective on climate change, there are still reasons to believe climate change is a problem, as I explain here. This does not require endorsing massive regulatory interventions or cap-and-trade schemes; there are alternatives.  In the end, politicians should be evaluated on their policy proposals — and commended for the courage to acknowledge politically inconvenient truths.

The authors warn that extraterrestrials may be wary of civilisations that expand very rapidly, as these may be prone to destroy other life as they grow, just as humans have pushed species to extinction on Earth. In the most extreme scenario, aliens might choose to destroy humanity to protect other civilisations.

“A preemptive strike would be particularly likely in the early phases of our expansion because a civilisation may become increasingly difficult to destroy as it continues to expand. Humanity may just now be entering the period in which its rapid civilisational expansion could be detected by an ETI because our expansion is changing the composition of the Earth’s atmosphere, via greenhouse gas emissions,” the report states.

“Green” aliens might object to the environmental damage humans have caused on Earth and wipe us out to save the planet. “These scenarios give us reason to limit our growth and reduce our impact on global ecosystems. It would be particularly important for us to limit our emissions of greenhouse gases, since atmospheric composition can be observed from other planets,” the authors write.

Somehow, I don’t think an alien race capable of interstellar space travel would consider humanity much of a threat — we have yet to put people on Mars — but the authors do characterize these scenarios as “highly speculative.”   If we’re willing to accept the premise that aliens come to earth and care about what we’re doing, why should we assume the alien race embraces contemporary environmental ideology? It seems to me the scientists are engaged in a bit of projection.

We could just as easily speculate about an advanced alien race seeing things quite differently. Perhaps the aliens would come from a planet with a much warmer temperature and see global warming as our invitation for them to colonize the planet. Or maybe they’d see gradual warming as a sign that we are a productive civilization that has been able to conquer and subdue our natural environment and is therefore worth trading and cooperating with. Or maybe this race would follow something like the “Prime Directive” and see our expansion as a reason to just leave us alone. Or maybe they would watch cable television and conclude we are a primitive, debased species not worth their time.

[Note: Extra links added.]

Cold air constringes the extremities of the external fibres of the body; this increases their elasticity, and favours the return of the blood from the extreme parts to the heart. It contracts those very fibres; consequently it increases also their force. On the contrary, warm air relaxes and lengthens the extremes of the fibres; of course it diminishes their force and elasticity.

People are therefore more vigorous in cold climates. Here the action of the heart and the reaction of the extremities of the fibres are better performed, the temperature of the humours is greater, the blood moves more freely towards the heart, and reciprocally the heart has more power. This superiority of strength must produce various effects; for instance, a greater boldness, that is, more courage; a greater sense of superiority, that is, less desire of revenge; a greater opinion of security, that is, more frankness, less suspicion, policy, and cunning. In short, this must be productive of very different tempers. Put a man into a close, warm place, and for the reasons above given he will feel a great faintness. If under this circumstance you propose a bold enterprise to him, I believe you will find him very little disposed towards it; his present weakness will throw him into despondency; he will be afraid of everything, being in a state of total incapacity.

(Hat tip: David Touby)

POST-SCRIPT: So there is no confusion, this was not posted as an endorsement, but rather as something of interest. I find this to be particularly interesting as it was raised at a conference examining human adaptation to climate change at which papers were presented examining, among other things, how populations and industries respond to changes in temperature. In this context, it was interesting and a bit amusing to read Montesquieu’s thoughts on the subject. I don’t subscribe to Montesquieu’s analysis, and I certainly would not endorse Montesquieu’s efforts elsewhere in Spirit of the Laws to connect climate with race.

Greenstone set the stage by observing that there are three possible approaches to the threat of climate change: 1) mitigation – reducing emissions of greenhouse gases; 2) adaptation – responding to climate change by seeking to ameliorate its negative effects, and 3) geoengineering – attempting to modify the climate in some way to offset the effects of increased greenhouse gas concentrations. The first of these is unlikely to happen in the near term, as the United States and other nations have shown themselves to be quite resistant to adopting meaningful mitigation measures. The third, whether or not it is viable or desirable, is generally not considered an acceptable approach geo-politically. As a consequence, he suggested, in all likelihood we will have to engage in some degree of adaptation to climate change.

In Greenstone’s view, the question is not whether or not human civilization will survive. It almost certainly will. Nonetheless, climate change could have substantial negative conseuqences. Rather, the relevant questions are how adaptation will occur over various time frames, the cost of such adaptation, and how effective adaptive responses will be. There is some research that has investigated the costs and potential of near-term response to some degree of climate change, but not nearly enough on longer term responses to climate change and its consequent environmental effects. Insights can be drawn, however, from other research that documents individual responses to changes in environmental conditions. For example, Greenstone co-authored a paper showing that some individuals respond to local air pollution levels by, among other things, purchasing medications that relieve some of the respiratory effects of higher pollution levels. Such adaptation may reduce the negative effects of pollution, but it still comes at a cost.

Adaptation takes many forms. Some adaptation to climate change would involve changes in infrastructure and the like, but much adaptation is likely to occur at the individual level. To take a simple example Greenstone used in his talk (based on this paper): on hotter days, people use more air conditioning. This matters because high temperatures tend to correlate with increased mortality. Therefore, were it not for air conditioning (and other means of adaptation), an increase in temperature would cause a greater increase in mortality. With air conditioning, the mortality increase is less, though energy use is greater.  This illustrates how individuals can alter their behavior to compensate for some of the consequences of higher temperatures, albeit at some cost.

In poorer, less-developed nations, such as India, on the other hand, the results are somewhat different. As Greenstone explained, compared to the United States, India has less adaptive capacity, so the mortality effects of warming would be greater – far greater. There is a lot of adaptive capacity in wealthy, industrialized nations, but not so much in poorer, less-developed nations. Moreover, the United States’ adaptive capacity has improved dramatically over the course of the past century. That is, the relationship between high temperatures and increased mortality in the United States has weakened over time as the nation has become wealthier and more technologically advanced, making it easier for individuals to adapt to temperature changes.

One possible response to Greenstone’s analysis is that if wealthier nations can adapt to climatic changes more readily than poorer nations, as much attention should be paid to making poorer nations wealthier – and improving their adaptive capacity – as to figuring out how to reduce global greenhouse gas emissions so as to mitigate the threat of climate change. From an economic standpoint, the costs of mitigation could be compared to the costs of adaptation, and if the costs of mitigation are greater, this would provide an economic justification for focusing on adaptation instead of mitigation – and some would certainly endorse this view. Indeed, many in developing nations embrace this view. In any event, even if mitigation policies are eventually adopted, there will need to be some degree of adaptation, some of which will be undertaken at the individual level.

The conventional explanation for controversy over climate change emphasizes impediments to public understanding: Limited popular knowledge of science, the inability of ordinary citizens to assess technical information, and the resulting widespread use of unreliable cognitive heuristics to assess risk. A large survey of U.S. adults (N = 1540) found little support for this account. On the whole, the most scientifically literate and numerate subjects were slightly less likely, not more, to see climate change as a serious threat than the least scientifically literate and numerate ones. More importantly, greater scientific literacy and numeracy were associated with greater cultural polarization: Respondents predisposed by their values to dismiss climate change evidence became more dismissive, and those predisposed by their values to credit such evidence more concerned, as science literacy and numeracy increased. We suggest that this evidence reflects a conflict between two levels of rationality: The individual level, which is characterized by citizens’ effective use of their knowledge and reasoning capacities to form risk perceptions that express their cultural commitments; and the collective level, which is characterized by citizens’ failure to converge on the best available scientific evidence on how to promote their common welfare. Dispelling this, “tragedy of the risk-perception commons,” we argue, should be understood as the central aim of the science of science communication.

UPDATE: Steven Hayward comments here.

Holly Doremus analyzes the opinion here. I’ve posted the opening of the 116-page opinion below the fold.

In May 2008, the U.S. Fish and Wildlife Service (“FWS” or “the Service”) issued its final rule listing the polar bear as a “threatened species” under the Endangered Species Act of 1973. See Determination of Threatened Status for the Polar Bear (Ursus maritimus) Throughout Its Range, 73 Fed. Reg. 28,212 (May 15, 2008) (the “Listing Rule”). The Service concluded that the polar bear is likely to become endangered within the foreseeable future because of anticipated impacts to its sea ice habitat from increasing Arctic temperatures, which have been attributed to global greenhouse gas emissions and related atmospheric changes. Numerous plaintiffs have challenged the Listing Rule under the Endangered Species Act (“ESA” or “the Act”), 16 U.S.C. §§ 1531-1544, and the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 551-559, 701-706, claiming that the Service’s decision to list the polar bear as a threatened species was arbitrary and capricious and an abuse of agency discretion. Pending before the Court are the parties’ cross-motions for summary judgment.

As the briefing in this case makes clear, the question of whether, when, and how to list the polar bear under the ESA is a uniquely challenging one. The three-year effort by FWS to resolve this question required agency decision-makers and experts not only to evaluate a body of science that is both exceedingly complex and rapidly developing, but also to apply that science in a way that enabled them to make reasonable predictions about potential impacts over the next century to a species that spans international boundaries. In this process, the Service considered over 160,000 pages of documents and approximately 670,000 comment submissions from state and federal agencies, foreign governments, Alaska Native Tribes and tribal organizations, federal commissions, local governments, commercial and trade organizations, conservation organizations, nongovernmental organizations, and private citizens. In addition to relying on its own experts, the agency also
consulted a number of impartial experts in a variety of fields, including climate scientists and polar bear biologists.

In view of these exhaustive administrative proceedings, the Court is keenly aware that this is exactly the kind of decisionmaking process in which its role is strictly circumscribed. Indeed, it is not this Court’s role to determine, based on its independent assessment of the scientific evidence, whether the agency could have reached a different conclusion with regard to the listing of the polar bear. Rather, as mandated by the
Supreme Court and by this Circuit, the full extent of the Court’s authority in this case is to determine whether the agency’s decision-making process and its ultimate decision to list the polar bear as a threatened species satisfy certain minimal standards of rationality based upon the evidence before the agency at that time.

For the reasons set forth below, the Court is persuaded that the Listing Rule survives this highly deferential standard. After careful consideration of the numerous objections to the Listing Rule, the Court finds that plaintiffs have failed to demonstrate that the agency’s listing determination rises to the level of irrationality. In the Court’s opinion, plaintiffs’ challenges amount to nothing more than competing views about policy and science. Some plaintiffs in this case believe that the Service went too far in protecting the polar bear; others contend that the Service did not go far enough. According to some plaintiffs, mainstream climate science shows that the polar bear is already irretrievably headed toward extinction throughout its range. According to others, climate science is too uncertain to support any reliable predictions about the future of polar bears. However, this Court is not empowered to choose among these competing views. Although plaintiffs have proposed many alternative conclusions that the agency could have
drawn with respect to the status of the polar bear, the Court cannot substitute either the plaintiffs’ or its own judgment for that of the agency. Instead, this Court is bound to uphold the agency’s determination that the polar bear is a threatened species as long as it is reasonable, regardless of whether there may be other reasonable, or even more reasonable, views. That is particularly true where, as here, the agency is operating at the frontiers of science.

In sum, having carefully considered plaintiffs’ motions, the federal defendants’ and defendant-intervenors’ crossmotions, the oppositions and replies thereto, various supplemental briefs, the supplemental explanation prepared by FWS in response to this Court’s November 4, 2010 remand order, arguments of counsel at a motions hearing held on February 23, 2011, the relevant law, the full administrative record, and for the reasons set forth below, the Court finds that the Service’s
decision to list the polar bear as a threatened species under the ESA represents a reasoned exercise of the agency’s discretion based upon the facts and the best available science as of 2008 when the agency made its listing determination. Accordingly, the Court hereby DENIES plaintiffs’ motions for summary judgment and GRANTS the federal defendants’ and defendant-intervenors’ motions for summary judgment.

Justice Ginsburg’s opinion for the Court applies the Court’s displacement precedents in a straightforward fashion. As prior decisions made clear, but the U.S. Court of Appeals for the Second Circuit failed to comprehend, displacement is the result of legislative action. What matters is what Congress did, not the alacrity or stringency of resulting agency action implementing a statutory mandate. And unlike preemption, displacement does not rest on legislative intent. The mere enactment of federal legislation is enough to displace federal common law causes of action.

“[W]hen Congress addresses a question previously governed by a decision rested on federal common law,” the Court has explained, “the need for such an unusual exercise of law-making by federal courts disappears.” Milwaukee II, 451 U. S., at 314 (holding that amendments to the Clean Water Act displaced the nuisance claim recognized in Milwaukee I). Legislative displacement of federal common law does not require the “same sort of evidence of a clear and manifest [congressional] purpose” demanded for preemption of state law. Id., at 317. . . . The test for whether congressional legislation excludes the declaration of fed-eral common law is simply whether the statute “speak[s] directly to [the] question” at issue. Mobil Oil Corp. v. Higginbotham, 436 U. S. 618, 625 (1978) . . .

We hold that the Clean Air Act and the EPA actions it authorizes displace any federal common law right to seek abatement of carbon-dioxide emissions from fossil-fuel fired power plants. Massachusetts made plain that emissions of carbon dioxide qualify as air pollution subject to regulation under the Act. 549 U. S., at 528–529. And we think it equally plain that the Act “speaks directly” to emissions of carbon dioxide from the defendants’ plants.

That the EPA might not regulate as much as plaintiffs would like – and may not regulate enough to mitigate (let alone eliminate) the public nuisance of global warming – is immaterial. In enacting the Clean Air Act, Congress made the scope and stringency of federal greenhouse gas emissions something for the EPA to determine in the first instance, subject to judicial review.

As Milwaukee II made clear, however, the relevant question for purposes of displacement is “whether the field has been occupied, not whether it has been occupied in a particular manner.” Id., at 324. Of necessity, Congress selects different regulatory regimes to address different problems. Congress could hardly preemptively prohibit every discharge of carbon dioxide unless covered by a permit. . . .

The critical point is that Congress delegated to EPA the decision whether and how to regulate carbon-dioxide emissions from power plants; the delegation is what displaces federal common law. Indeed, were EPA to decline to regulate carbon-dioxide emissions altogether at the conclusion of its ongoing §7411 rulemaking, the federal courts would have no warrant to employ the federal common law of nuisance to upset the agency’s expert determination.

While Justice Ginsburg’s opinion expressly left open the question of whether the Clean Air Act preempts public nuisance claims brought under state law, its displacement discussion explained why courts are particularly ill-suited to addressing climate change claims of this sort.

The appropriate amount of regulation in any particular greenhouse gas-producing sector cannot be prescribed in a vacuum: as with other questions of national or international policy, informed assessment of competing interests is required. Along with the environmental benefit potentially achievable, our Nation’s energy needs and the possibility of economic disruption must weigh in the balance. The Clean Air Act entrusts such complex balancing to EPA in the first instance, in combination with state regulators. . . .

It is altogether fitting that Congress designated an expert agency, here, EPA, as best suited to serve as primary regulator of greenhouse gas emissions. The expert agency is surely better equipped to do the job than individual district judges issuing ad hoc, case-by-case injunctions. Federal judges lack the scientific, economic, and technological resources an agency can utilize in coping with issues of this order. See generally Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 865–866 (1984). Judges may not commission scientific studies or convene groups of experts for advice, or issue rules under notice-and-comment procedures inviting input by any interested person, or seek the counsel of regulators in the States where the defendants are located. Rather, judges are confined by a record comprising the evidence the parties present. Moreover, federal district judges, sitting as sole adjudicators, lack authority to render precedential decisions binding other judges, even members of the same court.

Notwithstanding these disabilities, the plaintiffs pro-pose that individual federal judges determine, in the first instance, what amount of carbon-dioxide emissions is “unreasonable,” App. 103, 145, and then decide what level of reduction is “practical, feasible and economically viable,” App. 58, 119. These determinations would be made for the defendants named in the two lawsuits launched by the plaintiffs. Similar suits could be mounted, counsel for the States and New York City estimated, against “thousands or hundreds or tens” of other defendants fitting the description “large contributors” to carbon-dioxide emissions. Tr. of Oral Arg. 57.

While the Court’s holding only reached plaintiffs’ federal common law claims, this discussion may give federal courts pause before approving the plaintiffs’ state-law-based claims. Grounding judicial management of climate policy in state common law does not make it any easier. If anything it would be more difficult insofar as different state-law rules could produce different outcomes. We’ll have to see whether lower courts see it that way.

Another interesting aspect of today’s opinion is that the Court apparently split 4-4 over whether the U.S. Court of Appeals for the Second Circuit had jurisdiction to hear this case in the first place. Justice Alito also wrote a separate concurrence, joined by Justice Thomas, making clear that he agreed with the Court only on the assumption that Massachusetts v. EPA interpreted the Clean Air Act correctly. [Why didn't Justice Scalia and Chief Justice Roberts join this opinion when they also dissented in Massachusetts? Perhaps because principles of stare decisis are strongest for questions of statutory interpretation and they have no interest in suggesting they would reconsider what constitutes a "pollutant" under the Act.]

I’ll have more to say on this opinion later today, once I’ve had time to digest it.

UPDATE: I’ve posted my initial thoughts here.

I received this week a letter from the EPA regarding a letter I’ve written them about some of their rules and they wrote here, quote, “Thus, the agency is prohibited from considering costs in setting these standards.” Now in business we do a cost benefit analysis before we make policy changes. Washington should as well.

Rep. Hartzler is right to be concerned about the consequences of tightening the ozone NAAQS any further, but the EPA can’t be faulted for not considering costs. As EPA Assistant Administrator Gina McCarthy explained in a letter to Rep. Hartzler:

Under the Clean Air Act, decisions regarding the National Ambient Air Quality Standards (NAAQS) must be based solely on an evaluation of the scientific evidence as it pertains to health and environmental effects. Thus, the agency is prohibited from considering costs in setting the NAAQS. But cost can be – and is – considered in developing the control strategies to meet the standards (i.e. during the implementation phase).

McCarthy is correct. The EPA has been prohibited from considering costs when establishing NAAQS for the past three decades. The U.S. Court of Appeals for the D.C. Circuit first interpreted the Clean Air Act to preclude such cost consideration in Lead Industries Association v. EPA in 1980, and the Supreme Court reaffirmed this interpretation of the Act in Whitman v. American Trucking Associations in 2001. As noted regulatory zealot Justice Scalia explained for a nearly unanimous court:

Section 109(b)(1) instructs the EPA to set primary ambient air quality standards “the attainment and maintenance of which … are requisite to protect the public health” with “an adequate margin of safety.” 42 U.S.C. § 7409(b)(1). Were it not for the hundreds of pages of briefing respondents have submitted on the issue, one would have thought it fairly clear that this text does not permit the EPA to consider costs in setting the standards. The language, as one scholar has noted, “is absolute.” D. Currie, Air Pollution: Federal Law and Analysis 4—15 (1981). The EPA, “based on” the information about health effects contained in the technical “criteria” documents compiled under §108(a)(2), 42 U.S.C. § 7408(a)(2), is to identify the maximum airborne concentration of a pollutant that the public health can tolerate, decrease the concentration to provide an “adequate” margin of safety, and set the standard at that level. Nowhere are the costs of achieving such a standard made part of that initial calculation.

One may quarrel with Justice Scalia’s interpretation of the Clean Air Act — I, for one, did some work for parties advocating a different interpretation in this litigation — but it is the law of the land, and the EPA is not to be faulted for following the law. If members of Congress do not like this, they have but one solution: Amending the Act.

This is not an isolated example. The EPA is frequently attacked for doing what they are required to do by existing federal statutes or judicial interpretations thereof. Numerous members of Congress and outside groups have accused the EPA of a “power grab” for proposing to regulate greenhouse gas emissions under the Clean Air Act. The EPA’s GHG regulations will be quite costly and extensive, while producing minimal environmental benefits (as I detail here). Yet such regulation is clearly authorized, if not required, by the Supreme Court’s decision in Massachusetts v. EPA.

Senator Sherrod Brown (D-OH) wrote the EPA in February urging it to “reconsider” the regulation of GHG emissions from utilities and other large stationary sources under the Clean Air Act. Senator Brown may have avoided the inflammatory rhetoric of his Republican colleagues, but his error was the same. Given the EPA’s conclusion that GHG emissions contribute to global warming that may be reasonably anticipated to threaten health or welfare, it has no choice but to impose the regulatory measures to which Senator Brown objects. Here again, there are plenty of reasons to oppose the EPA’s initiatives, but the EPA is not to blame. Rather, the Agency is doing what the Clean Air Act (as interpreted by the courts) requires.

If members of Congress disapprove of the EPA’s emission-control initiatives, they need to take responsibility for the laws on the books, and not scapegoat the EPA. However overzealous the EPA may be sometimes, most of its recent Clean Air Act initiatives are plainly authorized, if not required, under federal law. Indeed if the agency is to be faulted, it is for rewriting the Act to allow for less expansive regulation than the statutory text clearly requires. It was Congress that delegated expansive regulatory authority to the EPA, and Congress that enacted provisions making some regulatory initiatives obligatory. If members of Congress don’t like that, it is up to Congress to fix it.

Contrary to what many environmentalists would have us believe, Americans are increasingly less likely to be killed by severe weather. Moreover, because of modern industrial and technological advances—radar, stronger yet lighter building materials, more reliable electronic warning devices, and longer-lasting packaged foods—we are better protected from nature’s fury today than at any other time in human history. We do adapt.

Research by UCLA economist (and VC guest blogger) Matthew Kahn supports the view that economic development helps insure against the risks of natural disasters.

Past trends may not be indicative of the future, however, and global warming may well increase the intensity of extreme weather events. Nonetheless, Boudreaux is willing to make a bet.

So confident am I that the number of deaths from violent storms will continue to decline that I challenge Mr. McKibben—or Al Gore, Paul Krugman, or any other climate-change doomsayer—to put his wealth where his words are. I’ll bet $10,000 that the average annual number of Americans killed by tornadoes, floods and hurricanes will fall over the next 20 years. Specifically, I’ll bet that the average annual number of Americans killed by these violent weather events from 2011 through 2030 will be lower than it was from 1991 through 2010.

If environmentalists really are convinced that climate change inevitably makes life on Earth more lethal, this bet for them is a no-brainer. They can position themselves to earn a cool 10 grand while demonstrating to a still-skeptical American public the seriousness of their convictions.

But if no one accepts my bet, what would that fact say about how seriously Americans should treat climate-change doomsaying?

You don’t have to be a doomsayer to accept Boudreaux’s bet, however, as it appears he already has a taker in Roger Pielke Jr. Although Pielke has often challenged environmentalist efforts to attribute increases in natural disasters to anthropogenic climate change, he thinks Boudreaux has made a bad bet.

So far 2011 has seen 518 deaths from tornadoes. This means that from today through 2030 the United States could see only 3,500 additional extreme weather deaths, or 180 per year (using the higher baseline that includes Katrina deaths, or 154 per year using the lower number of 3,000). Such numbers would represent an improvement over 1991-2010, and Prof. Boudreax would still lose the bet. We should be so lucky, and it would take a lot of luck, to see so few deaths due to extreme weather.

The fact of the matter is that our vulnerability to extreme weather is increasing, due to a combination of a growing population and especially urbanization in locations prone to extreme weather events. This means that even with the hard work by many professionals in a range of fields that has contributed to the dramatic decrease in the number of deaths over recent decades low death totals are unlikely to continue into the future, as this year’s tragic tornado season tells us. Of course, given expected societal trends a reversal in statistics would not necessarily mean that our disaster policies are failing. What it means is that our responses to extreme weather require constant vigilance, investment and continued hard work.

UPDATE: It appears Boudreaux and Pielke have a bet.

This issue arose in the oral argument when AEP’s attorney, Sidley Austin’s Peter Keisler, was asked whether Mass v. EPA was sufficient to establish Connecticut’s standing. No, Keisler explained, because the Court in Mass was very careful to note that the standing inquiry was different, and easier to satisfy, given the statutory context of the suit, prompting a response from Justice Kagan.

MR. KEISLER: Justice Ginsburg, we believe that Massachusetts was very carefully qualified to focus on the particular regulatory context of that opinion. The Court said that it was addressing standing to challenge the denial of a petition for rulemaking, when the agency would be proceeding incrementally to address a broader problem, and a statute specifically gave the
petitioners the right to seek that kind of incremental protection. The Court was very specific about that. The statutory right was of critical importance, it said, to the standing inquiry.

JUSTICE KAGAN: Mr. Keisler, the Court did say that, but it’s cut off from the Court’s actual analysis in the case. When the Court goes through injury and causation and redressability, the Court never refers to the statutory cause of action.

MR. KEISLER: But it does, Justice Kagan, specifically refer to the regulatory context in which the case is taking place. The Court said that if the EPA’s arguments there about traceability and
redressability were adopted, it would doom most challenges to agency action because agencies proceed incrementally.

Here we have no statute, we have no agency proceeding incrementally, and we believe there is no basis for the plaintiffs to seek that kind of incremental relief when they’ve acknowledged that will
have no material effect on their injury; and they acknowledged that in the State’s complaint when they specifically said that the relief they seek here would only constitute these defendants’ share of the larger overall emissions reductions that would be necessary in order to have any material effect on climate change or the injuries that they assert. That is an acknowledgment that the relief they seek here would not provide them any redress except in connection with other reductions that would be obtained elsewhere, and that we think means that this is a classic case in which the injuries are not the product of the defendants’ conduct but of the collective independent actions of numerous third parties not before the Court.

JUSTICE KAGAN: But the Court clearly understood that in Massachusetts v. EPA and said that it was enough, and I would think under traditional standing principles the standing there was actually harder to find because one had to go through the EPA first. One had to say the EPA should regulate, and then the EPA would regulate, and then the question was would that reduce emissions levels? Here the EPA is out of the picture. The action is much more direct.

MR. KEISLER: But there, Your Honor, they were suing a defendant, the EPA, that had regulatory authority over the entire country. Here they’re suing five separate defendants, each of whom has to be evaluated individually, and there is not a single one of them against whom the relief sought would have any tangible effect on the injuries that the plaintiffs claim here. But we also think that Massachusetts is relevant in a completely different respect, which is the Court was very specific in Massachusetts about what its role was and what it wasn’t. The Court said: We lack the expertise or the authority to second-guess the policy choices of the EPA, but its role there was to compel the agency to adhere to the statute as the Court interpreted it.

In this case, the States are asking the courts to play exactly the role that this Court disclaimed in Massachusetts v. EPA, which is to make those policy choices in the first instance, and they say that the courts can do this because the courts have done this in prior nuisance cases, but this case is nothing like any of the prior nuisance cases this Court has held. It’s nothing like an instance in which one State is complaining that another State has dumped sewage into a body of water that’s crossed the border.

Justice Kagan is correct that, in Mass v. EPA “When the Court goes through injury and causation and redressability, the Court never refers to the statutory cause of action.” But it did not need to, as the Court had already established that Congressional conferral of a procedural right could “give rise to a case or controversy where none existed before.” This is because, as the Court explained in Mass v. EPA (citing Lujan v. Defenders of Wildlife) litigants seeking to vindicate a legislatively conferred procedural right could assert standing “without meeting all the normal standards for redressability and immediacy.” This was relevant in Mass v. EPA because, the Court explained, Congress had accorded states such a right in the Clean Air Act, specifically in 42 U.S.C. § 7607(b)(1).

When the Mass Court went through the various standing requirements, it had already established that the requirements for causation and redressability were relaxed for the state petitioners. Its analysis consisted of applying the more lenient standard it had just described. Although at first blush “traditional standing principles” might suggest that it is more difficult to show redressability when reducing the injury requires a regulatory agency to take action against private parties, as Kagan suggested, the Court’s cases have long made clear that Congress can reduce this hurdle by granting a procedural right, as the Court concluded it had under the Clean Air Act. Perhaps these cases are wrong, but the caselaw is clear on this point.

Keisler’s second point is also significant. Insofar as redressability is dependent upon an actual reduction in greenhouse gas emissions, the plaintiffs in Mass v. EPA had a far stronger claim than do the litigants in AEP v. Connecticut. Imposing economy emission controls will have a far greater (even if still miniscule) effect on overall emissions than court-imposed restrictions on a handful of utilities. So even if one did not believe Court needed to assert the existence of a procedural right to facilitate standing in Mass v. EPA, the case for redressability was still stronger then than now.

My argument here is not that the state plaintiffs don’t have standing (though I certainly subscribe to that view). Rather, the point of this post is the narrower point that standing in Mass. v. EPA does not establish standing here. More is required. The Court must either a) place even greater weight on its newfound “special solicitude” doctrine of state standing, b) further lower the requirements of causation and redressability, c) conclude that in a common law nuisance action the requirements of standing are subsumed into the inquiry as to whether there is a cause of action, or d) do something else to help the state plaintiffs clear the standing bar. However the Court does it, contraMass v. EPA.

UPDATE: Calvin Massey has more thoughts here.

One point of division suggested by the questioning is whether the nuisance suit falls outside of Article III, either on standing or political question doctrine grounds. The SG’s argument that the case should be dismissed on prudential standing grounds did not seem to garner much support from either side. The argument for rejecting standing on this basis would seem to support an Article III holding, and if there is standing, no justice seemed convinced the Court should nonetheless preclude suit on these grounds. Whereas some justices seemed concerned that a broad holding would preclude too much litigation, Justice Scalia seemed to be worried that the Court would not preclude enough, asking AEP’s attorney “what good” an Article III dismissal would do them if the case could just be refiled in state court.

Assuming the case is not dismissed on Article III standing or political question grounds, the oral argument highlighted two more problems for the state parties. First, it is difficult to argue that their claim is not displaced by the Clean Air Act’s authorization of extensive regulation of greenhouse gases post-Massachusetts v. EPA. Given the number of EPA rulemakings governing stationary source GHG emissions, some of which have been finalized and some of which are still pending, the anti-displacement argument is difficult to make.

Insofar as some justices want to reach the underlying merits — as Justice Kennedy seems to want to do — the problems remain. Both Justices Ginsburg and Kagan worried that the states are effectively asking a federal district court to do the EPA’s job, and be a sort of “super EPA,” in Justice Ginsburg’s words. Said Kagan, “just reading that part of your complaint, it sounds like the paradigmatic thing that administrative agencies do rather than courts.” Justice Kennedy also raised the problem that equity disfavors meaningless remedies, and it would be difficult to argue that an injunction against five utilities could have more than an infinitesimal effect on atmospheric concentrations of GHGs.

Of course, oral argument may not be indicative of anything, and may not indicate how the case will come out. I was inclined to think the state parties were in trouble before. If anything, the oral argument cements that view — which is in line what most other commentators think.

For more, see this roundup of news coverage on How Appealing and these additional comments from Richard Frank. Here, too, are my earlier post on the oral argument and my preview of the case.

I’ll have comments of my own once I’ve reviewed the transcript (which will be released later today). My preview of the case from last night is here.

UPDATE: More on Legal Planet from Rhead Enion and Jonathan Zasloff.

I explained my view of the merits when the Court accepted cert last December.

First, I do not think this case presents a non-justiciable political question. Second, I think standing here is distinguishable from Massachusetts v. EPA. The private parties in this case cannot avail themselves of the “special solicitude” for states found in Mass v. EPA, and neither set of parties can claim there is a procedural right to lower the requirements of causation and redressability. I also believe the SG’s prudential standing concerns have merit.

On the nuisance claims, I think the plaintiffs likely have properly stated a public nuisance claim, though I have serious reservations on the remedy side. Such arguments should be moot, however, as I think the argument for displacement is exceedingly strong. I believe the Second Circuit completely muffed this part of its analysis by focusing on whether EPA had regulated greenhouse gases, whereas the relevant cases focus on whether Congress had occupied the field. Given the Court’s holding in Mass v. EPA that the Clean Air Act covers greenhouse gases, I think it indisputable that Congress has occupied the field with a comprehensive regulatory scheme. But even if the Second Circuit’s analysis was correct, its conclusion is no longer operable. At the time of the Second Circuit’s decision the EPA had not yet finalized any of its greenhouse gas regulations. That is no longer the case. The EPA has finalized its endangerment finding and regulations covering both mobile and stationary sources, and more are on the way. So even if the Second Circuit was correct in focusing on the C.F.R. instead of the U.S. Code, its holding has been overtaken by events. This alone should be enough for a remand. Indeed, this argument (made by the SG in its cert brief) has the potential to unify the Court around a narrow opinion.

However the Court decides the case, we will not see a traditional 5-4 split in this case — even if only because only eight justices will hear it. Justice Sotomayor is recused. So if the justices split on ideological grounds, they will divide 4-4 or 5-3. The Solicitor General filed a brief encouraging the Court to accept the case and suggesting two narrow grounds for reversal — prudential standing and displacement — grounds that may have broader appeal.

Laurence Tribe was initially on a brief supporting AEP, but had to remove his name due to his recent Justice Department stint. But that did not preclude him from writing an op-ed urging dismissal on political question grounds — a view he made at greater length before he went to DOJ. Interestingly enough, Tribe’s view is similar to that urged by David Rivkin and Lee Casey in the WSJ.

For more on the case, here is Lyle Denniston’s preview for SCOTUSBlog. I also rounded up some earlier commentary here.

UPDATE: Richard Frank has another preview of the case at Legal Planet. Prof. Frank is one of many environmental law academics from around the country who have flown in to D.C. to see the oral argument, and will post additional thoughts later today. The transcript will be available this afternoon and audio will be released at the end of the week.

The original UNEP claim was ridiculous on its face, and UNEP’s subsequent effort to rewrite history is farcical. Regrettably, we’re unlikely to hear much about this story from the environmentalist community or those who allegedly police the politicization of science. And this is part of the problem. Climate change is real, and the evidence of a human contribution to the gradual warming of the atmosphere is strong. There’s no need to conjure fantastical projections of an impending climate apocalypse. But UNEP and various organizations insist on doing so nonetheless — indeed, UNEP is now claiming there will be 50 million climate refugees by 2020 — and the climate community raises not a peep. In the end, this ends up doing more to discredit legitimate concerns about climate change than to encourage action.

The Climate Fix is most effective when making the case that governments will not sacrifice economic growth for carbon emission reductions, and that atmospheric stabilization of greenhouse gas emissions will not happen without dramatic technological advance. Pielke is more successful in puncturing overinflated ideas and identifying critical challenges than setting forth a positive agenda for climate policy. As he himself admits, he is only providing a “rough outline.”

Nonetheless, his clear-headed and non-ideological analysis is welcome in a field dominated by wild-eyed partisans and fear-mongers of various stripes. If one accepts climate change as a real threat, it is essential to acknowledge the lack of clean and easy answers. However urgent global warming may seem, policies to address it cannot be pursued to the exclusion of other concerns, including economic development and access to affordable energy sources. Understanding the depth of the challenge is not only a good place to start, it is essential for there to be any hope of success.

The project was not created to confirm the reliability of the existing temperature record, but it appears that is what it is doing.  As today’s Los Angeles Times reports:

Muller unexpectedly told a congressional hearing last week that the work of the three principal groups that have analyzed the temperature trends underlying climate science is “excellent…. We see a global warming trend that is very similar to that previously reported by the other groups.”

The hearing was called by GOP leaders of the House Science & Technology committee, who have expressed doubts about the integrity of climate science. It was one of several inquiries in recent weeks as the Environmental Protection Agency’s efforts to curb planet-heating emissions from industrial plants and motor vehicles have come under strenuous attack in Congress.

Muller said his group was surprised by its findings, but he cautioned that the initial assessment is based on only 2% of the 1.6 billion measurements that will eventually be examined.

The preliminary findings, and a link to Muller’s testimony, are here.  It bears repeating that these findings are preliminary, but it is also significant that they are confirming prior claims that the earth has experienced significant warming in recent decades, a conclusion also supported by the satellite record (which goes back to 1979).

The reality of global warming may not justify the expansion of federal regulation under the Clean Air Act and other existing statutes, but it does merit a serious policy response.  Even less-than catastrophic warming projections justify action to address climate change.  Indeed, some of the things that would set the nation on a more climate-friendly course — such as shifting the tax-burden away from income and wealth creation toward consumption — would be a wise thing to do even if climate change were no concern at all.

Regulation of greenhouse gases under the Clean Air Act is a mistake.  This decades-old statute was designed to address a quite different set of problems and is not well-suited to greenhouse gas emission control, let alone regulating the planetary thermostat.  As I explained here (and here), these efforts will produce a regulatory morass — and the Obama Administration recognizes as much, which is why it has sought to rewrite the law through regulatory fiat under it’s so-called “tailoring rule.” And yet this is only the beginning.  Now the the Clean Air Act’s regulatory authority has been triggered, the EPA will be required to do still more.  (I survey some of these efforts in a forthcoming article in the Harvard Journal of Law & Public Policy which I will link as soon as it’s posted on SSRN.)

Stripping the EPA of authority to regulate greenhouse gases under the Clean Air Act is a good idea, but it is not, by itself, a climate change policy.  More is necessary, but Congressional Republicans do not seem likely to even attempt the next step.  As is so often the case in environmental policy, Republicans have a good idea of what to oppose, but no clue about what to support.  The result is a half-baked approach to environmental issues, and measures that, in some cases, are worse than doing nothing at all.

So what should Republicans be doing on climate change?  For years I have been arguing for a combination of policies that would include a) a revenue-neutral carbon tax, like that proposed by James Hansen, offsetting new taxes on carbon with reductions in income or other taxes; b) measures to incentivize and accelerate energy and climate-related innovation, including  technology inducement prizes; c) streamlining of regulatory requirements that hamper the development and deployment of alternative energy technologies, including (but not limited to) offshore wind development; d) policies to facilitate adaptation due to the inevitability of some amount of climate change, and e) elimination of policies that subsidize energy inefficiency and excess greenhouse gas emissions, including ill-conceived ethanol mandates (which, among other things, forestall efforts at reforestation).  Would this be enough?  Maybe not, but it would be a start — and it would be far better than simply stripping EPA of regulatory authority and then hoping the risk of climate change would just go away.

[NOTE: For those who wonder why I think we need to have a climate change policy at all, see this paper, and these posts (1, 2, 3).]