The Volokh Conspiracy

Politico is reporting on Majority Leader Harry Reid’s efforts to corral enough votes for a Senate climate bill.  Reid says that “cap-and-trade” is not in his vocabulary, but the whole plan is to enact something that can be conferenced with the House bill (“Waxman-Markey”) and enacted in a post-election lame duck session.  The problem is that it’s difficult to find 60 votes for a bill that imposes limits on carbon.

The latest gambit, according to Politico, is to propose a utilities-only cap-and-trade plan (a plan that looks something like what then-candidate Bush proposed in 2000).  While many utilities like the idea of carbon cap-and-trade – indeed, some utilities helped write key provisions of the House bill – they don’t like being singled out.  In return for their support, utilities are apparently demanding relief from other regulatory programs, including limits on emissions of mercury and sulfur dioxide.  EPA has been clamping down on these emissions, and some utilities see the opportunity to make a deal.

Trading carbon caps for relief from mercury and sulfur dioxide regulations would be a “disaster” according to TNR’s Bradford Plumer.  He’s not exaggerating by much.  Some of the regulatory measures from which utilities would obtain relief have actual near-to-medium-term public health consequences.  A single-industry cap-and-trade proposal does not, nor will it have any meaningful effect on atmospheric greenhouse gas concentrations, let alone projected warming.  The more comprehensive bill that passed the House will not do much of anything to regulate the planet’s thermostat, even if one makes the implausible assumption that it will deliver on its promised emission reductions, but a single-sector bill would do even less.  (More on Waxman-Markey here and here.) Scaling back existing rules for traditional pollutants could well have a meaningful impact on ambient concentrations and exposures. Even if some of these rules are overly rigid and burdensome, they do reduce emissions, and the utilities appear to be asking for direct relief, not reforms to make existing rules more flexible, cost-effective, or efficient.

Last week, the UK Independent Climate Change Email Review (aka the Muir Russell Review) released its report on the alleged scientific misconduct of climate researchers revealed by the disclosure of e-mails from the Climatic Research Unit at East Anglia University.  As the NYT reports, the review rejects the claims that the ClimateGate e-mails disclosed scientific fraud or chicanery in climate science, but also criticized some of the scientists involved for some of their conduct and concluded that a specific graph of past temperatures was “misleading,” even if not fraudulent.  In other words, the “trick” to “hide the decline” did produce a misleading graph, but the underlying scientific case for a human contribution to global climate change remains intact.

There’s lots of commentary out there, including thoughts from Bradford Plumer, Roger Pielke, Jr., and Ronald Bailey.  The Guardian rounds up some scientific reactions here.  I particularly like these comments by Mike Hulme (whose commentary on ClimateGate I’ve highlighted before, e.g., here and here).

I believe the CRU emails have been a game-changer for science – but have done little to alter the policy conundrums raised by climate change.

For climate science and scientists, three lessons must been learned: make sure to the extent possible that your analysis can be fully replicated by anyone who wishes to; as much rigour should be applied to communicating the “unknowns” as the “knowns” of scientific knowledge; and climate scientists need to re-emphasise (and maybe relearn) their public duty role as sceptics, scientific enquirers who, in the words of the Royal Society motto, “take nobody’s word for it”.

And for climate policy, I don’t think anything much has changed. We know humans have a significant role in changing the climate, but also that the future risks of such interventions cannot and will not be precisely described. The politics of climate change therefore remain, and will continue to remain, turbulent.

Meanwhile, the Netherlands Environmental Assessment Agency has also produced a review of the IPCC’s Working Group II report, finding several errors, most of which are rather small, including the overstatement of how much of the Netherlands is below sea-level.  For more on this report, see these items from The Economist, Plumer, and Pielke. Jr.

I presented on a plenary panel discussing the implications of global warming for property law at the AALS Mid-Year meeting earlier this month.  My thesis, in short, was that concerns about global climate change do not justify abandoning or reconceiving traditional property norms.  To the contrary, I suggested, environmental problems generally – and the threat of global warming in particular – should prompt us to place an even greater emphasis on traditional property rights institutions.  A summary of my remarks is below the jump.  Eduardo Peñalver generously responded to my presentation at Prawfsblawg.  I will respond to his comments in an addendum or a follow-up post.

Continue reading ‘Property Rights & Climate Change at AALS’ »

On Saturday I participated in a panel on climate change policy, “Environmental Protection in a Climate of Change,” at the American Constitution Society’s National Convention in Washington, D.C.  In addition to yours truly the panel featured Vicki Arroyo of the Georgetown Climate Center, Interior Department Deputy Solicitor Rachel Jacobson, and Andrew Light of the Center for American Progress.  Georgetown’s Lisa Heinzerling, who is currently serving as Associate Administrator of the Environmental Protection Agency for the Office of Policy, Economics, and Innovation moderated.  Those hoping for fireworks or a fierce debate were likely disappointed, but I think the panel was informative and (I hope) insightful.  The video is available here.  Additional thoughts on the panel are below the jump.

Continue reading ‘Climate Policy Panel at ACS’ »

The stimulus bill included over $2 billion for the development of carbon capture technologies.  The just-introduced Kerry-Lieberman climate bill would authorize $2 billion more.  Will anything result from these investments?  I would hope so, but Robert Bryce argues carbon capture has substantial — perhaps insuperable — economic obstacles to overcome. He writes:

That’s a lot of money for a technology whose adoption faces three potentially insurmountable hurdles: it greatly reduces the output of power plants; pipeline capacity to move the newly captured carbon dioxide is woefully insufficient; and the volume of waste material is staggering. Lawmakers should stop perpetuating the hope that the technology can help make huge cuts in the United States’ carbon dioxide emissions.

He makes a compelling case that drawing carbon out of power plant emissions and then sequestering it will be very costly no matter what.  This is one reason why some hope for technologies that could remove carbon dioxide from the ambient air, potentially reducing the need to pipe carbon dioxide great distances.  In any event, Bryce’s column underscores the reality that there are as yet no cheap and easy ways to reduce atmospheric concentrations of greenhouse gases to any significant degree.

I am a sometime-contributor to the National Journal‘s Energy & Environment Expert Blog.  This week the focus is the Kerry-Lieberman climate change bill, the “American Power Act,” and the EPA’s decision to raise the threshold for stationary sources regulated under the Clean Air Act from emissions to 75,000 tons per year for carbon dioxide, even though the statute contains a far lower numerical threshold.  Here is my comment:

The American Power Act is an agglomeration of complex regulatory measures and corporate subsidies. In an effort to provide something for everyone, the bill provides little for the American people. As it stands, the bill is not in the economic nor environmental interest of the United States. Erecting an ever-more complex cap-and-trade scheme on an industry-by-industry basis invites rent-seeking and corporate gamesmanship at the expense of meaningful reductions. Directed subsidies and grants may reward powerful constituencies, but they won’t encourage the innovation and deployment of transformative environmental technologies. A partial directed rebate of the revenues from carbon allowances is half of a good idea. A far better, and much simpler, approach would be the adoption of an economy-wide carbon tax from which all revenues are directly rebated to American taxpayers, with no strings attached. This is the simplest and fairest way to provide marginal incentvies for increased efficiency and carbon-use reductions without hampering economic growth.

While the bill is bad, the EPA’s plans are not much better. This week the EPA finalized rules purportedly designed to fulfill the agency’s statutory obligation to regulate greenhouse gases as pollutants under the Clean Air Act. The rule EPA issued, however, is patently illegal and a flagrant violation of the plain text of the Act. The statute sets clear numerical thresholds for the imposition of PSD and Title V permitting requirements, and provides EPA with no authority to re-write these thresholds — turning 250 tons-per-year into 75,000 tons-per-year — by administrative fiat. The EPA may believe that the it is not practicable to apply the express terms of the Clean Air Act to GHGs, but that is not the agency’s call to make, especially not after the Supreme Court’s decision in Massachusetts v. EPA, which expressly rejected the argument that the CAA was unworkable for GHGs. If the EPA would like to follow a different course, it must go to Congress — and let’s hope Congress can come up with something better than the APA.

I’ve never been convinced that “cap and trade” is more politically viable than a rebated carbon tax.  I believe a relatively simple, transparent policy of taxing carbon but rebating the revenues to consumers is more appealing than an overly complex regulatory scheme that is difficult to understand, particularly if the latter approach will also increase energy prices but not rebate revenues to consumers.  Dan Farber points to a recent poll that is suggestive on this point.  Among its findings: “A majority of Republicans support this proposal because it is simple, relies very little on government involvement, encourages innovation from the private sector, and provides a tax-cut style refund.” Of course, it’s just one poll — and such findings must always be taken with several teaspoons of salt (FDA willing), but it’s interesting nonetheless.

Earlier this month, with little fanfare, the Obama Administration took a small but significant step toward encouraging greater technological innovation.  On March 8, the Office of Management and Budget issued a guidance to federal agencies on the use of challenges and prizes to spur technological innovation.  This memorandum seeks to “strongly encourage” federal agencies to “utilize prizes and challenges as tools for advancing open government, innovation, and the agency’s mission.”  It further explains that many federal agencies have sufficient statutory authority to create technology inducement prizes with existing funds and spending authority.  More here.

The Obama Administration is to be commended for this initiative.  If the federal government is to encourage greater technological innovation, it needs to move beyond the traditional (and largely ineffective) tools of subsidies and mandates.  This is partiuclarly true in areas, such as climate change policy, where policymakers have embraced policy goals far beyond existing technological capacities.  Interestingly enough, during the 2008 Presidential campaign it was Senator John McCain, not Obama, who proposed using prizes to spur innovation in the energy sector, though this proposal quickly became a footnote in his campaign agenda.

Last fall, I presented a paper on the potential use of technology inducement prizes to spur innovation in the energy sector at a climate change law and policy workshop sponsored by the University of Pennsylvania Law School’s Program on Law, Environment, and Economy.  It’s entitled, “Eyes on a Climate Prize: Rewarding Energy Innovation to Achieve Climate Stabilization.”  I’ve now posted the paper on SSRN, and reproduced the abstract below.

Stabilizing atmospheric concentrations of greenhouse gases at double their pre-industrial levels (or lower) will require emission reductions far in excess of what can be achieved with current or projected levels of technology at a politically acceptable cost. Substantial technological innovation is required if the nations of the world are to come anywhere close to proposed emission reduction targets. Neither traditional federal support for research and development of new technologies nor traditional command-and-control regulations are likely to spur sufficient innovation. Technology inducement prizes, on the other hand, have the potential to incentivize and accelerate the rate of technological innovation in the energy sector. This paper outlines the theory behind the use of inducement prizes to encourage and direct inventive efforts and technological innovation and identifies several comparative advantages inducement prizes have over traditional grants and subsidies for encouraging the invention and development of climate-friendly technologies. While no policy measure guarantees technological innovation, greater reliance on inducement prizes would increase the likelihood of developing and deploying needed technologies in time to alter the world’s climate future. Whatever their faults in other contexts, prizes are particularly well suited to the climate policy challenge.

Substantive comments and critiques are quite welcome.  I plan on making additional revisions to this paper in the weeks ahead.

The NYT reports on various efforts to restore the credibility of climate science and the Intergovernmental Panel on Climate Change in the wake of “ClimateGate” and the discovery of a handful false claims and misrepresentation of scientific research in portions of the IPCC reports.

The unauthorized release last fall of hundreds of e-mail messages from a major climate research center in England, and more recent revelations of a handful of errors in a supposedly authoritative United Nations report on climate change, have created what a number of top scientists say is a major breach of faith in their research. They say the uproar threatens to undermine decades of work and has badly damaged public trust in the scientific enterprise.

The e-mail episode, dubbed “climategate” by critics, revealed arrogance and what one top climate researcher called “tribalism” among some scientists. The correspondence appears to show efforts to limit publication of contrary opinion and to evade Freedom of Information Act requests. The content of the messages opened some well-known scientists to charges of concealing temperature data from rival researchers and manipulating results to conform to precooked conclusions. . . .

A survey conducted in late December by Yale University and George Mason University found that the number of Americans who believed that climate change was a hoax or scientific conspiracy had more than doubled since 2008, to 16 percent of the population from 7 percent. An additional 13 percent of Americans said they thought that even if the planet was warming, it was a result solely of natural factors and was not a significant concern.

Climate scientists have been shaken by the criticism and are beginning to look for ways to recover their reputation. They are learning a little humility and trying to make sure they avoid crossing a line into policy advocacy. . . .

A number of institutions are beginning efforts to improve the quality of their science and to make their work more transparent. The official British climate agency is undertaking a complete review of its temperature data and will make its records and analysis fully public for the first time, allowing outside scrutiny of methods and conclusions. The United Nations panel on climate change will accept external oversight of its research practices, also for the first time.

Two universities are investigating the work of top climate scientists to determine whether they have violated academic standards and undermined faith in science. The National Academy of Sciences is preparing to publish a nontechnical paper outlining what is known — and not known — about changes to the global climate. And a vigorous debate is under way among climate scientists on how to make their work more transparent and regain public confidence.

These are all positive steps, but the problems for climate science are deeper.  As ASU’s Dan Sarewitz explains in Nature, part of the problem has been that participants in the climate policy debate have focuses on climate science, as if some climate consensus could translate into clear policy mandates.  This is fool’s errand, as climate science will not generate the requisite degree of certainty, let alone consensus policy prescriptions in the absence of a broader political consensus.  He writes:

The idea that a mounting weight of scientific evidence would gradually overwhelm ideological opposition to the climate policy regime is not just false but backwards. Science is muchmore pliable and permissive than deeply held beliefs about how the world should work. Scientific understanding of the complex, coupled ocean–atmosphere–society system is always incomplete, and gives the competing sides plenty of support for their pre-existing political preferences — as well as plenty to hide behind in claiming that those preferences are supported by science. Science can decisively support policy only after fundamental political differences have been resolved.

Science may tell us that certain emission projections create a risk of certain climatic changes, but it won’t tell us what (if anything) to do about it, as such policy prescriptions are also dependent upon normative judgments that may be informed, but not dictated, by scientific conclusions.  Sarewitz further argues that conservatives and liberals alike have to stop pretending as if science does — or even can — support only their preferred policy approach.

Speaking of those who pretend as if climate science supports their preferred policy agenda, and no other, Joe Romm of the Center for American Progress has been challenged to debate climate policy with Roger Pielke Jr. to be hosted by Foreign Policy. But it seems this debate won’t take place.  Romm regularly attacks Pielke’s work on his blog, for even though Pielke believes climate change is a serious problem, he disagrees with Romm’s policy prescriptions.  Yet even after several dozen anti-Pielke comments and blog posts, Romm is refusing to go mano-a-mano.

What’s going on?  Some advocates of steep emission reductions refuse to debate those who argue against the existence of an anthropogenic contribution to global warming because they don’t want to “legitimize” such perspectives, but not Romm.  He’s debated Marc Morano of Climate Depot, among other so-called “skeptics.”  Then why not debate a non-skeptic like Pielke?  Perhaps because this would require the admission that there is a greater diversity of mainstream liberal policy views about climate change.  Debating Pielke could force Romm to admit that one can believe climate change is a serious concern, and nonetheless believe there are problems with the IPCC process and conventional emission-reduction proposals.  Perhaps such an admission poses a greater threat to Romm’s narrative (and  “Climate McCarthyism”) than the actual skeptics. More from Ron Bailey here.

Last week, GOP Senator Lindsey Graham (R-SC) declared “Cap-and-trade is dead.” There is no way the Senate will pass the Waxman-Markey climate change bill that passed the House. But Sen. Graham is working with Senators John Kerry (D-MA) and Joseph Lieberman (I-CT) on an alternative proposal to control greenhouse gas emissions and promote the development of alternative energy sources. ClimateWire describes the outlines of their approach:

The Kerry-Graham-Lieberman draft to be circulated this week starts with an overall goal of reducing U.S. greenhouse gases by 2020 in the range of 17 percent below 2005 levels. . . .

Rather than include all major industrial sources of greenhouse gases in one broad economywide cap-and-trade system, the Senate trio will propose different types of limits for different sectors of the economy, beginning with electric utilities and then turning later to manufacturers such as chemical plants and pulp and paper mills.

“The bottom line with utilities is they’ll assume a compliance obligation from day one of the program,” the Senate staffer said, adding that no decisions have been made on how to allocate valuable emission allowances to the power companies except to incorporate an industry recommendation to shuttle revenue toward consumers to help pay for higher energy bills.

Transportation fuels can expect a carbon tax that rises based on the compliance costs faced by the other major emitters. Several major oil companies, including Shell Oil Co., ConocoPhillips and BP America, floated the original idea on Capitol Hill, and the Senate trio has evolved their plan by funneling revenue toward transportation projects, reducing fuel consumption and lowering domestic reliance on foreign oil. The Highway Trust Fund is also a potential recipient of the carbon tax revenue, Senate aides said.

Manufacturers would face a series of greenhouse gas limits after power plants, but talks are still ongoing over when the phase-in begins and what specific industries fall into the suite of restrictions.

The senators plan to present several other energy-related proposals to their colleagues, including ideas to promote the development of nuclear power and carbon capture and sequestration at coal-fired power plants. Agreements are also in sight on how to incorporate agriculture and forestry offsets into the mix, as well as other cost-containment mechanisms to brace industry and consumers from higher prices.

Based on the outlines reported in the press, Ron Bailey thinks the Graham-Kerry-Lieberman approach “may be good politics, but it is bad economics.”  According to Bailey,

The virtue of creating an artificial market applying to all greenhouse gas emissions is that market participants can figure out the most efficient way to cut emissions among themselves. Isolating favored segments means that market participants will not be able to find the least expensive ways to cut carbon emissions, raising the overall price of energy more than it would otherwise be. So the Kerry-Graham-Lieberman bill does not initially appear to be much of an improvement on the Waxman-Markey horror.

I think this is right.  Bailey prefers an alternative proposal.

Assuming that carbon emissions pose a significant danger to the global climate, there is a much better proposal (cheaper) circulating on Capitol Hill: the Carbon Limits and Energy for America’s Renewal (CLEAR) Act. The CLEAR act is a short, sweet bill introduced by Sen. Maria Cantwell (D-Wash.) and Sen. Susan Collins (R-Maine). The CLEAR Act sets a gradually declining cap on carbon dioxide emissions (20 percent below 2005 by 2020). It limits carbon dioxide emissions by requiring producers and importers of coal, natural gas, and oil to buy permits at a monthly auction for each ton of carbon in the fuels they sell in the U.S. The requirement would apply to 2,000 to 3,000 fossil fuel producers and importers.

Unlike Waxman-Markey or the new Kerry-Graham-Lieberman proposal, the CLEAR Act would largely avoid picking winners and losers among technologies, special interest groups, or industries. Seventy-five percent of the proceeds from the auction would be rebated on a per capita basis in equal monthly lump sum payments. Cantwell and Collins estimate that 80 percent of consumers would incur no net costs while the top 20 percent in income would see less than a 0.3 percent decrease in their incomes. The remaining 25 percent of the auction revenues would be used to fund energy research and development, adaptation to climate change, and help workers who lose their jobs because of higher energy prices.

Of course, failing to rebate these auction revenues somewhat undercuts the claim by Cantwell and Collins that they are not picking winners and losers. In addition, it would be more economically efficient (and cheaper) to rebate the entire amount rather than let Congress allocate money to favored projects. . . . But if we must do something—and it seems that Congress and the president believe that we must—the CLEAR Act, clocking in at 39 pages, has more appeal than Waxman-Markey’s 1,200. Sometimes simpler is better.

I largely agree, but believe that a revenue-neutral carbon tax, such as those proposed by Rep. Bob Inglis (R-SC) and Arthur Laffer or NASA’s James Hansen are better still. Such proposals would be more efficient, more transparent, and easier to implement.  The purported policy benefits of cap-and-trade over a carbon tax are illusory — and now it appears cap-and-trade’s purported political advantage is evaporating as well.  Perhaps there’s still hope for a rational climate policy.

[Note: In anticipation of the inevitable comments that the truly rational climate policy is to do nothing, I think there are plenty of independent reasons to prefer taxing consumption over taxing income even if one is unconcerned about carbon dioxide and other emissions.]

My article from the March 2010 Reason on the Environmental Protection Agency’s “endangerment finding” that triggers the regulation of greenhouse gases under the Clean Air Act is now available online.  It begins:

On December 7, as delegates from around the world gathered in Copenhagen for the United Nations climate conference, Environmental Protection Agency Administrator Lisa Jackson announced that her bureaucracy would begin to regulate the emission of carbon dioxide and other gases deemed to be warming the planet. “Today, I’m proud to announce that EPA has finalized its endangerment finding on greenhouse gas pollution,” Jackson proclaimed. As a consequence, the agency “is now authorized and obligated to take reasonable efforts to reduce greenhouse pollutants under the Clean Air Act.”

“Reasonable” here is in the eye of the beholder. The 1990 Clean Air Act was designed for conventional air pollutants such as particulates and ozone smog, not for carbon dioxide. Applying those rules to CO2 will mean imposing costly regulations not just on cars and factories but on commercial buildings, churches, and even residences. All told, more than 1 million entities could become subject to new federal controls on greenhouse emissions.

The EPA power grab was no surprise; indeed, it was inevitable. The regulatory train was set in motion in 2007, when the Supreme Court ruled by a 5-4 vote in Massachusetts v. EPA that the Clean Air Act applied to greenhouse gases. The EPA probably would have made the same move had John McCain been president, by court order if not voluntarily. Now that the train is picking up speed, it will be almost impossible to stop and difficult to control. If you think federal environmental regulation is costly and inefficient, you ain’t seen nothing yet.

You can read the whole thing here.

It’s worth noting that while I am very critical of plans to regulate greenhouse gases under the Clean Air Act, I believe such regulation is effectively compelled by the Supreme Court’s Massachusetts v. EPA decsion, and (as I note briefly at the end of the article) legal challenges to the EPA’s endangerment finding — such as that filed by Texas and others — are almost certain to fail.  I’ll post more on this latter point in the next few days.

What does the “snowpocalypse” tell us about the likelihood of climate change?  Nothing.  As Roger Pielke Jr. explains:

What happens in the weather this week or next tells us absolutely nothing about the role of humans in influencing the climate system. It is unjustifiable to claim that a cold snap or heavy snow disproves or even casts doubts predictions of long-term climate change. It is equally unjustifiable to say that a cold snap or heavy snow in any way offers empirical support for predictions of long-term climate change. This goes for all weather events.

Further, it is professionally irresponsible for scientists to claim that some observed weather is “consistent with” long-term predictions of climate change. Any and all weather fits this criteria. Similarly, any and all weather is also “consistent with” failing predictions of long-term climate change. The “consistent with” canard is purposely misleading.

Knowledge of climate requires long-term records — on the time scale of a decade and longer. Don’t look to the weather to learn about climate, unless you have a long time to watch. Using the weather to score cheap political points in the climate debate appears to be a tactical area of agreement among those who otherwise disagree about climate change.

British news organizations are now combing through the IPCC reports, finding more errors and material sourced to non-peer-reviewed material, including student papers and reports by advocacy organizations.  Most of these errors continue to relate to the more policy-oriented aspects of the IPCC reports — practical consequences of climate change and potential policy responses.  This is further evidence that the more IPCC sought to make its reports relevant to policy-makers, the less reliable the reports became.

UPDATE: According to the Telegraph, former IPCC head Robert Watson believes the IPCC will lose credibility if it does not address its mistakes.

The Washington Legal Foundation has just released an interesting paper by Harvard law professor Laurence Tribe, co-authored with HLS student Joshua D. Branson and Shook, Hardy & Bacon attorney Tristan L. Duncan, arguing that public nuisance lawsuits against utilities for their alleged contributions to climate change should be considered non-justiciable political questions.  They write:

global climate change raises such manifestly insuperable obstacles to principled judicial management that its very identification as a judicially redressable source of injury cries out for the response that the plaintiffs have taken their “petition for redress of grievances” to the wrong institution altogether.

Yet in a pair of recent high-profile cases, two U.S. Courts of Appeal allowed common law claims against carbon emitters and producers to proceed, holding that the nuisance doctrine sufficiently equips courts to redress the injuries caused by global climate change. Their holdings rested on two basic arguments. First, because the plaintiffs’ cause of action—the common law of nuisance—is both familiar and quintessentially judicial in nature, the claims must be justiciable. Second, . . . climate change plaintiffs do not ask for an explicitly wholesale rewriting of national energy policy, so their claims are insufficiently legislative in character to be nonjusticiable. Both of these arguments reflect a deep misunderstanding of the political question doctrine and its foundations.

The paper also argues that lawsuits against gasoline retailers alleging fraud because fuel quantities dispensed at gas stations is affected by temperature involve a non-justiciable political question as well, albeit on different grounds.  In the case of the fuel litigation, the Constitution expressly delegates to Congress the authority to fix weights and measures.

The paper concludes:

Some prognosticators opine that the political question doctrine has fallen into disrepute and that it no longer constitutes a viable basis upon which to combat unconstitutional judicial overreaching. No doubt the standing doctrine could theoretically suffice to prevent some of the most audacious judicial sallies into the political thicket, as it might in the climate change case, where plaintiffs assert only undifferentiated and generalized causal chains from their chosen defendants to their alleged injuries. But when courts lose sight of the important limitations that the political question doctrine independently imposes upon judicial power–even where standing problems are at low ebb, as with the Motor Fuel case–then constitutional governance, and in turn the protection of individual rights and preservation of legal boundaries, suffer. The specter of two leading circuit courts manifestly losing their
way in the equally real thicket of political question doctrine underscores the urgency, perhaps through the intervention of the Supreme Court, of restoring the checks and balances of our constitutional system by reinforcing rather than eroding the doctrine’s bulwark against judicial meddling in disputes either expressly entrusted by the Constitution to the political branches or so plainly immune to coherent judicial management as to be implicitly entrusted to political processes. It is not only the climate of the globe that carries profound implications for our future; it is also the climate of the times and its implications for how we govern ourselves.

This is an interesting paper.  I’ve been unpersuaded that the climate change cases are non-justiciable political quesitons, although I have also been unpersuaded that plaintiffs in the various climate cases (including Massachsuetts v. EPA) satisfied the requirements of Article III standing.

One implication of the argument by Tribe et al. could be that the Court was correct to consider Massachusetts v. EPA insofar as it entailed questions of statutory interpretation and administrative law, but that courts should not hear nuisance and other cases that lack any statutory grounding.  In Mass v. EPA, the Court could look to the text of the Clean Air Act and the EPA’s decision to forego regulation.  In the various nuisance cases, however, there is no equivalent source of a judicially manageable standard for a decision, so courts should stay their hands.

The Guardian‘s George Monbiot is again calling for resignations at the University of East Anglia’s Climate Research Unit.

This is a tough time for climate science. The Guardian’s new revelations about the hacked emails from the Climatic Research Unit (CRU) at the University of East Anglia might help to explain the university’s utter failure to confront its critics. They could also explain why the head of the unit, Phil Jones, blocked freedom of information requests and proposed that material subject to those requests be deleted. . . .

The vast body of climate science still shows that manmade climate change is real and that it presents a massive challenge to human survival. But those of us who seek to explain its implications and call for action must demand the highest possible standards from the people whose work we promote, and condemn any failures to release data or admit and rectify mistakes. We do no one any favours – least of all ourselves – by wasting our time promoting false claims.

Can a call for the resignation of IPCC head Rajendra Pachauri be far behind? [UPDATE: Nope.  Greenpeace UK is calling for him to step down.]

UPDATE: The NYT reports Penn State University climate scientist Michael Mann has been “largely cleared” by an internal university investigation.

The UK Information Commissioner’s Office recently confirmed that the disclosure of e-mails and other documents from the University of East Anglia’s Climate Research Unit revealed that some of the scientists violated the UK’s Freedom of Information law by failing to respond to legitimate document requests from other researchers.  I blogged on this development here.  Initial British news reports indicated that the scientists could not be prosecuted, however, as the legal violations occurred too long ago.  But is this really the case?  As the Telegraph reports, the relevant provisions in British law appear to preclude prosecution more than six months after authorities became aware of the misconduct, not six months after the misconduct occurred.  If this is correct — and I’m not expert on British law — some of the scientists could still be prosecuted for violating England’s Freedom of Information law.

Meanwhile, there are still more (more?!?) revelations of potential scientific misconduct by researchers connected to the University of East Anglia’s Climate Research Unit.  Details here and here.

2010 has not been kind to the Intergovernmental Panel on Climate Change (IPCC).  This U.N. sanctioned body is supposed to issue periodic reports that summarize the state of the science of global climate change based upon a comprehensive review and synthesis of the relevant peer-reviewed scientific literature.  In the past few weeks, however, it has been revealed that the IPCC’s 2007 Working Group II report on “Impacts, Adaptation, and Vulnerability” contains claims about the projected impacts of climate change that are completely unfounded, based upon non-scientific (let alone peer reviewed) sources, or misrepresent the underlying scientific literature.

The first revelation was that there was no scientific basis for the IPCC’s widely-hyped claim that Himalayan glaciers could disappear by 2035.  This projection is off by a few centuries, at best.   When an Indian climate researcher first challenged this claim, suggesting there is no evidence (yet) of warming-induced glacial retreat in the Himalayas, IPCC chief Rajenda Pachauri was dismissive.  Now, however, he’s changed his tune, and the IPCC has acknowledged the error.  This was more than a simple mistake, however, as it appears the IPCC was informed of the error before the report was finalized, but failed to make any changes, nor was Pachauri quick to acknowledge the error once it was brought to his attention.

It has also become clear that the IPCC report systematically misrepresents the peer-reviewed literature on the effect of climate change hurricanes and natural disasters.  Specifically, the report falsely claims there is evidence that human-induced climate change is producing an increase in extreme weather events and associated losses and includes a graph that is not based upon published, peer-reviewed work.  Yet the studies upon which the IPCC purports to base its claim — including one that was not peer-reviewed and should not have been cited at all — say no such thing. Worse, when the IPCC’s erroneous claims were challenged during the review process, an IPCC author fabricated a response to defend the erroneous claim.  In response, the IPCC now claims it “carefully followed” its official procedures. Yet as Roger Pielke Jr., one of the researchers whose work is misrepresented in the report, responds, this claim is simply false as the IPCC “relied on an unpublished, non-peer reviewed source to produce its top line conclusions in this section,” ignored the complaints of reviewers, and fabricated a defense of the claim. Indeed, when the then-unpublished, un-peer-reviewed paper upon which the IPCC purported to rely was eventually published, it rejected the climate-disaster loss link asserted by the IPCC.

But wait, there’s more.It turns out that other claims in the IPCC’s WGII report were also based upon non-scientific sources, including magazine articles and reports by advocacy groups.  For instance, the IPCC’s claim that climate change could endanger up to 40 percent of the Amazonian rain forest is based upon a report issued by an environmental advocacy organization, not a peer-reviewed scientific study, and the advocacy report misrepresented peer-reviewed studies to reach its conclusion.  It also appears other IPCC claims about glaciers in the Andes and Alps were based upon a magazine article and student’s dissertation.

What’ s interesting is that all of these errors are in the WG II report — the report that is supposed to highlight the practical effects of a gradually warming climate — as opposed to the WG I report, which focuses on the underlying scientific evidence that increases in greenhouse gas emissions are contributing to climate change.  For this reason, these revelations do not dissuade me that human activity is likely contributing to atmospheric warming.  But it does provide further evidence that many scientists have adopted an unscientific, advocacy stance in which they seek to convince the public that there is incontrovertable proof of an impending climatic disaster so as to build the case for drastic action.  This problem is actually exacerbated by the IPCC process, which seeks to formulate an “official,” government-approved, scientific “consensus,” as I explained here.

Climate change is a serious concern, even if it does not threaten to eradicate Himalayan glaciers in my lifetime or wipe coastal cities off the map.  If we are to have a serious and honest debate about climate policy, we have to have more honest and responsible conduct by climate scientists.  While ClimateGate and the above-mentioned IPCC errors may have been the work of only a handful of climate scientists, unless the climate science community does a better job of policing its own, and accomodating legitimate dissenting views, it will become increasingly unable to inform and enlighten the policy debate.

UPDATE: In the comment thread to a prior post, some asked why I still believe in anthropogenic global warming, and support certain climate policy measures, after repeated instances of misconduct by climate scientists.  Given the thrust of many comments below, I thought I’d restate my answer here:

My belief that human activity is contributing to climatic warming is based upon my understanding of the accumulated scientific evidence about how our climate works and the effect of increasing contributions of greenhouse gases in the atmosphere that I have reviewed and considered over the past 15-plus years during which I’ve been following and often working on this issue, including the nine years I spent at the Competitive Enterprise Institute, during which time I edited this book on climate change policy and authored a 1998 National Review cover story on how many risks of climate change are overstated. Much of the relevant scientific research is summarized (if occasionally exaggerated) in the IPCC’s Working Group I report on the basic science of warming (which is a separate report from the Working Group II report on impacts, some claims from which are unfounded and/or not properly cited).

Most so-called “skeptics” within the scientific community also accept the basic claims about the likely anticipated effect of anthropogenic emissions of greenhouse gases. The primary areas of disagreement are over the nature and extent of various feedback mechanisms in the climate which could augment or dampen greenhouse warming and the practical effects of climatic warming. So, for instance, noted climate skeptics Patrick Michaels and Robert Balling Jr. write in their recent book for the Cato Institute, Climate of Extremes: The Global Warming Science They Don’t Want You to Know, that there is a warming trend and that human activity shares some of the blame. As they summarize on page 27: “AGW (anthropogenic global warming), yes. But DAGW [dangerous anthropogenic global warming]? We think not!”

I believe that certain policy responses are justified because even if one accepts a fairly “skeptical” view of the science, the best estimate is that human activity will produce some warming that will have deleterious effects in some parts of the globe, particularly in areas that have not done much to contribute to the warming. As I explain in this paper (and in shorter pieces here, here, and here), these effects should be sufficient to justify a policy response, particularly if one believes in the importance of property rights, as I do. I also believe that taxes on consumption, including energy consumption, are preferable to taxes on income, and so would welcome a revenue-neutral carbon tax.

The UK Daily Mail reports:

Scientist at the heart of the ‘Climategate’ email scandal broke the law when they refused to give raw data to the public, the privacy watchdog has ruled.

The Information Commissioner’s office said University of East Anglia researchers breached the Freedom of Information Act when handling requests from climate change sceptics.

But the scientists will escape prosecution because the offences took place more than six months ago.

The London Times has more.

A spokesman for the ICO said: “The legislation prevents us from taking any action but from looking at the emails it’s clear to us a breach has occurred.” Breaches of the act are punishable by an unlimited fine.

The complaint to the ICO was made by David Holland, a retired engineer from Northampton. He had been seeking information to support his theory that the unit broke the IPCC’s rules to discredit sceptic scientists.

In a statement, Graham Smith, Deputy Commissioner at the ICO, said: “The e-mails which are now public reveal that Mr Holland’s requests under the Freedom of Information Act were not dealt with as they should have been under the legislation. Section 77 of the Act makes it an offence for public authorities to act so as to prevent intentionally the disclosure of requested information.”

He added: “The ICO is gathering evidence from this and other time-barred cases to support the case for a change in the law. We will be advising the university about the importance of effective records management and their legal obligations in respect of future requests for information.”

As these stories make clear, several of the scientists whose e-mail and other documents were disclosed engaged in both unethical and illegal conduct.  As I’ve said many times, I do not believe this disproves global warming.  I still believe the balance of evidence supports the theory that human activity is causing the climate to become warmer than it would otherwise be, and I still believe that the threat of warming justifies a policy response.  But the ClimateGate revelations do provide further evidence that many prominent climate scientists have sought to suppress dissent and exaggerate certain warming-related claims.

In related news, new evidence has emerged of breakdowns in the IPCC drafting and review process that resulted in the inclusion of unsubstantiated claims in portions of the IPCC’s latest reports.  More on that later.

The AP reports:

Al-Qaida leader Osama bin Laden has called for the world to boycott American goods and the U.S. dollar, blaming the United States and other industrialized countries for global warming, according to a new audiotape released Friday.In the tape, broadcast in part on Al-Jazeera television, bin Laden warned of the dangers of climate change and says that the way to stop it is to bring “the wheels of the American economy” to a halt.

He blamed Western industrialized nations for hunger, desertification and floods across the globe, and called for “drastic solutions” to global warming, and “not solutions that partially reduce the effect of climate change.”

The Securities and Exchange Commission voted 3-2 to issue an interpretive guidance to publicly traded companies on when they should disclose information to investors on the potential impact of business or legal developments relating to the issue of climate change.  According to the Washington Post, the vote was along party lines, and the Republican commissioners “vehemently” opposed the decision.

Chairman Mary L. Schapiro and the two Democrats on the commission supported the new requirements, while the two Republicans vehemently opposed them.

“I can only conclude that the purpose of this release is to place the imprimatur of the commission on the agenda of the social and environmental policy lobby, an agenda that falls outside of our expertise and beyond our fundamental mission of investor protection,” Republican commissioner Kathleen L. Casey said.

Democratic commissioner Elisse B. Walter said the new requirements are “designed to improve the quality of disclosures filed by U.S. public companies for the benefit of investors.”

Here is how a release on the SEC’s website described the decision:

The interpretive release approved today provides guidance on certain existing disclosure rules that may require a company to disclose the impact that business or legal developments related to climate change may have on its business. The relevant rules cover a company’s risk factors, business description, legal proceedings, and management discussion and analysis. . . .

Specifically, the SEC’s interpretative guidance highlights the following areas as examples of where climate change may trigger disclosure requirements:

• Impact of Legislation and Regulation: When assessing potential disclosure obligations, a company should consider whether the impact of certain existing laws and regulations regarding climate change is material. In certain circumstances, a company should also evaluate the potential impact of pending legislation and regulation related to this topic.
• Impact of International Accords: A company should consider, and disclose when material, the risks or effects on its business of international accords and treaties relating to climate change.
• Indirect Consequences of Regulation or Business Trends: Legal, technological, political and scientific developments regarding climate change may create new opportunities or risks for companies. For instance, a company may face decreased demand for goods that produce significant greenhouse gas emissions or increased demand for goods that result in lower emissions than competing products. As such, a company should consider, for disclosure purposes, the actual or potential indirect consequences it may face due to climate change related regulatory or business trends.
• Physical Impacts of Climate Change: Companies should also evaluate for disclosure purposes the actual and potential material impacts of environmental matters on their business.

The release also quotes SEC Chairman Mary Schapiro on the decision:

“We are not opining on whether the world’s climate is changing, at what pace it might be changing, or due to what causes. Nothing that the Commission does today should be construed as weighing in on those topics,” said SEC Chairman Mary Schapiro. “Today’s guidance will help to ensure that our disclosure rules are consistently applied.”

Her full statement is here.  Megan McArdle comments skeptically here.

The NYT reports on a potential environmental backlash against proposed greenhouse gas regulations designed to reduce the carbon footprint of buildings in the San Francisco Bay area.

some environmentalists and city planners fear that the new set of guidelines being considered by the region’s air quality regulators could have an unintended consequence, making it more difficult and more expensive for developers to construct buildings within already urbanized areas.That would run counter to the notion that builders should be given incentives to shift future population growth from the car-dependent outer suburbs to places where public services are already available and public transit is a more viable option to get people out of their cars.

The recent Copenhagen Conference on global warming has led to renewed claims that we cannot effectively combat global warming without “global governance,” or perhaps even a full-fledged world government. UN Secretary General Ban Ki-Moon recently claimed that “A [climate change] deal must include an equitable global governance structure” and many other political leaders and environmental activists have expressed similar views. Political scientist Campbell Craig summarized the standard argument for global governance to address climate change in this 2008 article:

[O]ne of the most evident failures of the nation-state system in recent years has been its inability to deal successfully with problems that endanger much or most of the world’s population. As the world has become more globalized—economically integrated and culturally interconnected—individual countries have become increasingly averse to dealing with international problems that are not caused by any single state and cannot be fixed even by the focused efforts of individual governments. Political scientists refer to this quandary as the “collective action problem,” by which they mean the dilemma that emerges when several actors have an interest in eradicating a problem that harms all of them, but when each would prefer that someone else do the dirty work of solving it. If everyone benefits more or less equally from the problem’s solution, but only the actor that addresses it pays the costs, then all are likely to want to “free ride” on the other’s efforts. The result is that no one tackles the problem, and everyone suffers.

Several such collective action problems dominate much of international politics today, and scholars of course debate their importance and relevance to world government. Nevertheless, a few obvious ones stand out, notably the imminent danger of climate change….

Essentially, the argument is that global warming is a collective action problem that only an international entity will have incentives to solve. If not a world government, it will have to be a “global governance” structure that is to a large degree independent of individual governments and has the power to compel them to take necessary measures, such as reducing carbon dioxide emissions.

In my view, such global governance is neither necessary nor sufficient to prevent global warming. As co-blogger Eric Posner points out, an effective climate change deal requires the agreement of only about 20 or so major emitting nations, such as the US, China, India, Russia, and several major European states. Obviously, most of these states would suffer serious harm if catastrophic global warming scenarios turn out to be true. They therefore have strong incentives to reach a deal. Collective action problems are not a serious danger when a solution only requires the cooperation of a few major actors, each of whom knows that their participation is essential to the success of the overall project. There is little incentive to free-ride if the potential “free-rider” knows that the problem can’t be solved without his participation. I have spelled this logic and its application to global problems in more detail here. For a more extended treatment, see Todd Sandler’s book Global Collective Action, which, among other things, shows how cooperation between a few big powers was enough to address the problem of ozone layer deterioration in the 1980s.

Of course, big power cooperation isn’t guaranteed to solve the global warming problem. It has several potential flaws. In each case, however, global governance has similar or even worse weaknesses.

One potential problem is that national governments aren’t always representative of the interests of their people and therefore won’t take full account of the dangers that global warming poses to them. However, any global governance structure is likely to be even less democratic and less representative than national governments are, especially those of liberal democracies such as the US. As John McGinnis and explain here and here, the existing international institutions that influence the content of international law are highly undemocratic, and any new global governance structure is likely to be the same. The personnel of any such entity will be chosen either by relatively unaccountable international elites, or by national governments (with a hefty dose of influence by authoritarian states).

A second danger is that one or more important governments will decide that the benefits of preventing global warming aren’t worth the costs. For example, China and India might decide that severe emissions restrictions pose too great a risk to their economies, and Western nations might be unwilling to make large enough payments to them to get them to change their minds. Obviously however, a world government or global governance agency could also decide that the costs of preventing warming outweigh the benefits. Any such structure would have to take Chinese and Indian interests into account. Moreover, we wouldn’t want to foreclose the possibility of such a decision. The costs of greatly reducing emissions are substantial, potentially even catastrophic. Even to those who, like me, believe that global warming is a genuine danger, it’s not obvious that those costs are necessarily worth paying.

Finally, national governments could underestimate the dangers of climate change; for example by buying into flawed scientific analyses. Here too, a global governance structure could make similar mistakes. Moreover, this risk has to be balanced against the danger that either national governments or the global governance decision-makers could err in the opposite direction: buying into an overly pessimistic view of global warming, and therefore enacting costly measures that turn out to be excessive. Overall, I think analytical error is less likely if we allow different nation-states to reach independent conclusions and make a compromise than if the decision is left up to a single global entity that is more likely to fall prey to groupthink. The recent Climategate scandal underlines the dangers of like-minded small groups falsifying evidence and excluding opposing views. A system of global governance over climate change issues would make this danger more severe, not less. If, at the end of the day, governments continue to disagree over the severity of the global warming danger, those with more pessimistic views could potentially offer side payments to convince the doubters to take more aggressive preventive measures.

The movement to institute global governance as a response to climate change wouldn’t be problematic if such governance did not pose any risks of its own. In fact, however, global governance itself would create potentially grave longterm threats to the future of humanity. These risks might be acceptable if there was no other way to prevent worldwide catastrophe. In fact, however, we don’t need global governance to combat global warming.

Among other things, the release of e-mails and documents from the University of East Anglia’s Climate Research Unit has laid bare the efforts of a handful of climate scientists to manipulate how the peer review process handled research that could undermine claims of a climate science “consensus.”  As climate scientists David Douglass and John Christy detail here, the CRU e-mails reveal a concerted effort to sandbag one of their publications, both in the peer-reviewed scientific literature as well as on the purportedly neutral climate science blog RealClimate.  Patrick Michaels and Roger Pielke Jr. have more.

What these and other episodes reveal was that there was a concerted effort to stage-manage the appearance of an ironclad consensus at the expense of the scientific process.  Rather than make an open and honest argument that, despite persistent uncertainties, there is substantial theoretical and empirical evidence to support the hypothesis that human activity is contributing to a gradual warming of the atmosphere, they focused on squelching dissenting scientific views, corrupting science in the process.  As I’ve noted many times on this blog, I believe there is sufficient evidence of human contributions to climate change to justify a meaningful policy response, including measures to accelerate energy sector innovation and a revenue-neutral carbon tax.  But such policies should be advanced on the merits, not scientific subterfuge of the sort engaged in by those at CRU.

[Note: I originally wrote "laid bear" instead of "laid bare," much to the amusement of some commenters below.]

From Wired:

Any number of undiscovered near-Earth objects could one day careen into the Earth, and there is a lot of talk here at the American Geophysical Union meeting about tracking them. So far, though, only one discovered object has seemed even mildly likely to hit our planet.That asteroid is Apophis, a 900-foot asteroid. Calculations released on Christmas Eve 2004 appeared to show that there was a greater than 2 percent chance the asteroid would hit the Earth in 2029. The asteroid appeared ready to give the Earth its closest shave since astronomers began looking for such things. It was judged a 4 on the Torino Impact Hazard Scale for a short time, the highest rating any near-Earth object has received.

As it turned out, more precise observations brought the risk of collision down to just 1 in 250,000, but the scare sparked greater interest and study in the fields of asteroid detection and defense.

While  the risk remains small, this might provide a test of Eric’s hypothesis, though it appears there are distributional consequences (and hence diplomatic obstacles) to asteroid deflection just as there are for climate change.

(Links via Instapundit)

The agreement-to-agree did three things.  It established that a critical mass of developed and highly industrialized developing countries such as China agree that climate change is a significant problem, and that these countries need to reduce their emissions.  It provided that countries will have to submit to a monitoring system.  And it suggested that rich countries will have to make a payoff of some sort to poor countries.  But it did not produce agreement on particular targets or amounts, let alone a treaty.  Indeed, most of the world did not [corrected, 12/20] even formally sign onto the Copenhagen Accord, which contains these quasi-commitments.  You can read the Copenhagen Accord here.

Why the failure?  Here are some hypotheses:

1.  We are far from global democracy: the only workable agreement is one that a small number of states, fewer than twenty probably, can negotiate.  As the number of negotiators increases, the potential for holdout, bickering, and other transaction costs increases exponentially.  After much wasted time, the major emitters appear to have agreed to go forward on their own, over the next months and years.  It is fortunate that fewer than 20 countries account for nearly all carbon emissions, but this probably won’t be true farther in the future, which is an extremely serious problem.

2.  The rich countries took too seriously the demands of the poor countries.  The poor countries have always demanded money from rich countries—the “climate debt” is just the latest rationale.  But the legacy-of-imperialism and globalization-causes-poverty arguments failed to move the rich countries, and the climate debt argument won’t as well.  It is, first of all, a not very good argument, for reasons I have discussed elsewhere.  Beyond that, the rich countries know that their citizens will not countenance a climate pact that requires the transfers of tens or hundreds of billions of dollars to poor countries.  Foreign aid has never been popular; it has never been generous (most foreign aid payments are not motivated by altruism but by particular foreign policy goals).  I suspect that the rich countries offered the money to try to avoid the political cost of failure at Copenhagen, but never intended to pay it.  The poor countries understand this, which is why they refused to cooperate.  (See Ken’s post for more.)  In future, the rich countries will freeze out the poor countries in the negotiations, offering some token amount of money for technical assistance and adaptation.  When the take-it-or-leave-it-ness of the deal becomes clear, poor countries will reluctantly sign on in order to get their scraps.  This should have been anticipated; the political cost of failure at Copenhagen was the price to be paid for failing to be realistic about this problem.

3.  The United States lacked credibility.  The Senate has not passed a climate bill.  Even if a bill does pass, the world understands that the American public has little enthusiasm for a climate treaty—a huge fraction of Americans do not even believe in anthropogenic climate change.  Americans also hate foreign aid (which they stubbornly overestimate) and distrust international institutions—and a climate treaty will probably require a bunch of them.  If the United States cannot credibly promise to reduce emissions by an adequate amount, then other countries have no reason to make politically costly commitments on their own side.  President Obama’s personal commitment to climate mitigation cannot overcome this rational skepticism.

See also Ken’s recent post.