ENVIRONMENTAL LEGAL BLOGS

SURGEON-GENERAL'S REPORT RAISES INTERESTING ISSUES

     As most of you know, this past Tuesday, June 27, 2006, the U.S. Surgeon General issued his sweeping condemnation of second-hand smoke:

U.S. Surgeon General Richard H. Carmona today issued a comprehensive scientific report which concludes that there is no risk-free level of exposure to secondhand smoke. Nonsmokers exposed to secondhand smoke at home or work increase their risk of developing heart disease by 25 to 30 percent and lung cancer by 20 to 30 percent. The finding is of major public health concern due to the fact that nearly half of all nonsmoking Americans are still regularly exposed to secondhand smoke.

The report, The Health Consequences of Involuntary Exposure to Tobacco Smoke, finds that even brief secondhand smoke exposure can cause immediate harm. The report says the only way to protect nonsmokers from the dangerous chemicals in secondhand smoke is to eliminate smoking indoors.

     Fair enough.  However, the Surgeon General's comments provide no macroscopic health-risk perspective for policymakers to utilize.  Is, for example, second-hand smoke statistically more dangerous than drinking alcohol?  Than driving?  Than skydiving?   

     If these items carry as much or more danger than why not ban them, too?  Oh, wait- we tried that by something called Prohibition.  Now that was a real success.

     The fact is that everything in life carries risk (there is a saying, "Life is hazardous to your health").  Second-hand smoke entails risk but, as noted, so does being a passenger in a car. The Surgeon-General's report, when judged in a relative-risk perspective, really does not provide much guidance as to which risks should be the subject of limited public regulatory resources.

FIGHT FAMINE/DISEASE OR WARMING?

     An instructive piece from the June 22, 2006 The Economist:

...over the weekend, Mr [John] Bolton [US Ambassador to the UN] sat down with UN diplomats from seven other countries, including China and India but no Europeans, to rank 40 ways of tackling ten global crises. The problems addressed were climate change, communicable diseases, war, education, financial instability, governance, malnutrition, migration, clean water and trade barriers.

Given a notional $50 billion, how would the ambassadors spend it to make the world a better place? Their conclusions were strikingly similar to the Copenhagen Consensus. After hearing presentations from experts on each problem, they drew up a list of priorities. The top four were basic health care, better water and sanitation, more schools and better nutrition for children. Averting climate change came last.

The ambassadors thought it wiser to spend money on things they knew would work. Promoting breast-feeding, for example, costs very little and is proven to save lives. It also helps infants grow up stronger and more intelligent, which means they will earn more as adults. Vitamin A supplements cost as little as $1, save lives and stop people from going blind. And so on.

     In Posts on this Blog, the last one as recently as yesterday, I pointed out the 4 questions that always should be asked re "global warming"--1.  Is it occurring?  2.  If it is occurring, have humans caused it?  3.  If humans have caused it, can anything at this point be done about it?  4.  If so, at what cost (e.g., to prevent 1 degree of warming over the next 100 years, would you be willing to cut industrial production, etcetera, even if meant an economic depression)?

     The Economist Post is either a useful twist on question 4 or, indeed, an independent question 5. In a world of limited resources, if you had an extra dollar, better to spend it on preventing a 1 degree of warming over the next 100 years or to get a child a meal, or a tetanus shot, now?  Think about it.

GLOBAL WARMING, MICHAEL MANN, NAS AND THE BEGIINING--NOT THE END--OF DEBATE

     The prestigious National Academy of Science has largely endorsed a study asserting that temperatures in North America are now the warmest in 1,000 years and that the rise is caused by human activity.  Per today's The New York Times:

The study, led by Michael E. Mann, a climatologist now at Pennsylvania State University, was the first to estimate widespread climate trends by stitching together a grab bag of evidence, including variations in ancient tree rings and temperatures measured in deep holes in the earth.

     So, does this end the global-warming debate?  Hardly.  First of all, the critics of the study remain.  As the NY Times' article points out:

The main critiques were done by Stephen McIntyre, a statistician and part-time consultant in Toronto to minerals industries, and Ross McKitrick, an economist at the University of Guelph in Ontario.

They contended that Dr. Mann and his colleagues selected particular statistical methods and sets of data, like a record of rings in bristlecone pine trees, that were most apt to produce a picture of unusual recent warming. They also complained that Dr. Mann refused to share his data and techniques.

     Moreover, even the author of the study is less enthusiastic regarding the NAS' conclusion than might be expected:

In an interview, Dr. Mann expressed muted satisfaction with the panel's findings. He said it clearly showed that the 1999 analysis has held up over time.

But he complained that the committee seemed to forget about the many caveats that were in the original paper. "Even the title of the paper on which all this has been based is as much about the caveats and uncertainties as it is about the findings," he said.

     Finally, assuming for the sake of argument that the NAS endorsement states the better view, this fact would only answer the first two of the questions this Blog has repeatedly asked:

     1.  Is global warming occurring?

     2.  If so, is it man-made or rather the natural phenomenon of such things as variations over time in the Sun's brightness?

     This would still leave open for debate:

     1.  Is there anything realistically we can do about global warming?  After all, major man-made factors causing global warming are emanating from places like China and India, rapidly industrializing countries that have repeatedly refused to participate in so-called "climate change" solutions; and

     2.  Would the cure for global warming be worse than the disease?  No doubt we could stop man-made contributions to global warming by all ceasing to drive; by shutting down smokestack industry; and/or by canceling all airline flights.  Alternatively, we could drive the prices of these endeavors sky high so as to lessen demand.  Query whether the depression/severe recession that would follow would be worth attempting to avoid the 1/2 to 1 degree rise in temperatures that global-warming theorists predict may occur by the end of the 21st Century.

MAINSTREAM MEDIA AT IT AGAIN- GLOBAL WARMING SOAP OPERA

     Kudos to The Drudge Report for alerting me to the latest pseudo-informative "discussion" of global warming, this time by ABC News.  The ABC News web site has decided that each of us can make a meaningful contribution to understanding the global warming debate by sharing our personal experiences. From the web site's invitation for us to send in our global-warming stories:

Global Warming Affecting Your Life? E-Mail Us

Send Us Your Stories and Video...Extend the Reach of ABC News' Reporting by Sharing Your Observations

— - Witnessing the impact of global warming in your life?

ABC News wants to hear from you. We're currently producing a report on the increasing changes in our physical environment, and are looking for interesting examples of people coping with the differences in their daily lives. Has your life been directly affected by global warming?

We want to hear and see your stories. Have you noticed changes in your own backyard or hometown? The differences can be large or small — altered blooming schedules, unusual animals that have arrived in your community, higher water levels encroaching on your property.

     This approach makes about as much sense as asking us to share our stories on how other gradual global phenomena affect our daily lives.  What's next: "How have changes in the height of the Sierra Nevadas affected your life?"  or "How have changes in the drift of continental plates affected your life?"

     Look, we can agree or disagree about global warming (is it occurring?  if it's occurring, has man contributed to the phenomenon?  if man has contributed to the phenomenon, is there anything now we can do about it?  if we can do something about it, would the cure be worse than the disease--e.g., if we could prevent a 1 degree rise in temperature by century's end though throwing the world into an industrial depression, should we do so?).  However, for ABC News to believe it can meaningfully contribute to the debate by inviting pop-culture analysis is astonishingly bankrupt in thought and can only be rationalized on the basis that the network believes it can increase its ratings through schtick rather than science.

     We each live on this planet for, what, 80+ years--if we're very lucky.  That is a nonospec of time in the scheme of things such as global warming (or cooling).  The idea that any one of us is going to witness a climate change event that can be linked to global warming (or cooling) is pretentious; actually, the idea is downright dumb.

     Moreover, the inquiry by ABC News presupposes that, even if one could identify a climate-change event occurring in his or her lifetime, the event is evidence of global warming.  So, for example, I noticed that this past winter in the Los Angeles area was colder and wetter than I can remember winters being in the recent past.  Let alone that my observation may have been incorrect (faulty memory, perhaps), does my observation of coldness and rain mean that this observed coldness was caused by global warming?  Why not by global cooling?

     Anecdotal observations made in a nanosecond of the planet's time are just that-anecdotes of that nanosecond.  Such anecdotes may be fascinating (like the dramatic stories of people who live through hurricanes or tornadoes); but these stories belong in adventure series or Reader's Digest and not in a news network's reporting on serious scientific debate.

VICTORY FOR RAPANOS (BUT IT'S NOT OVER)

     Like so much of the legal community, this Blog has followed the history of the federal government's pursuit of John Rapanos, the surly Michigan landowner who has refused to recognize Clean Water Act jurisdiction over his private property.  See Posts of March 12, 22 and 25; October 15, 2005; and December 1, 2005.

     Today was D-Day (or Decision Day), as the United States Supreme Court published its opinion in Rapanos v. United States.  In a narrow victory (both in the vote and in the basis for the ruling), the Supreme Court reversed the lower courts' finding that Mr. Rapanos was liable and sent the case back to those courts for further proceedings.

     The decision was made along predictable ideological fault lines, with Chief Justice Roberts and Justices Scalia, Thomas and Alito attaching limitations to federal jurisdiction and Justices Souter, Ginsberg, Stevens and Breyer in this instance favoring federal authority over property rights.  Predictably, Justice Kennedy came down in the middle, agreeing that the government's case was flawed but refusing to engage in the same analysis of the limits of federal authority than was done by either the group of four Justices to his right or the group of 4 Justices to his left.

     In overturning Rapanos' liability, Justice Scalia (writing for himself and for Roberts, Thomas and Alito) observed:

     The enforcement proceedings against Mr. Rapanos are a small part of the immense expansion of federal regulation of land use that has occurred under the Clean Water Act--without any change in the governing statute--during the past five Presidential administrations. In the last three decades, the Corps and the Environmental Protection Agency (EPA) have interpreted their jurisdiction over "the waters of the United States" to cover 270-to-300 million acres of swampy lands in the United States--including half of Alaska and an area the size of California in the lower 48 States. And that was just the beginning. The Corps has also asserted jurisdiction over virtually any parcel of land containing a channel or conduit--whether man-made or natural, broad or narrow, permanent or ephemeral--through which rainwater or drainage may occasionally or intermittently flow. On this view, the federally regulated "waters of the United States" include storm drains, roadside ditches, ripples of sand in the desert that may contain water once a year, and lands that are covered by floodwaters once every 100 years. Because they include the land containing storm sewers and desert washes, the statutory "waters of the United States" engulf entire cities and immense arid wastelands. In fact, the entire land area of the United States lies in some drainage basin, and an endless network of visible channels furrows the entire surface, containing water ephemerally wherever the rain falls. Any plot of land containing such a channel may potentially be regulated as a "water of the United States."

     Justice Kennedy characterized the Scalia plurality as too narrow in its placing of waters beyond Clean Water Act jurisdiction if the waters either were not routinely flowing or standing or if the waters were not directly connected to such flowing/standing waters.  He criticized the dissent, however, for too little recognition that the word "navigable" is not infinitely elastic so as to fit every crevice of water, however isolated (" the dissent would permit federal regulation whenever wetlands lie alongside a ditch or drain, however remote and insubstantial, that eventually may flow into traditional navigable waters"). He adopted his own test (whether the wetlands at issue have a "significant nexus" with navigable waters) and reversed the lower courts' decision simply because the courts did not consider this question.

     Therefore, Mr. Rapanos faces continuing litigation back in the lower courts on the significant nexus issue.  If such a nexus is established, then Mr. Rapanos' 5-4 victory could turn around to become a 5-4 defeat the next time the case reaches the high court.  Nonetheless, for those of us accustomed over the last 40-50 years to seeing the Supreme Court rarely put brakes of any kind on the federal government's appetite for expansion, today was indeed one for the books.

GORE-PROPHET OR PATHETIC?

     Despite the mainstream media's portrayal of a scientific consensus regarding the reality of global warming, there appear to be plenty of scientists who disagree.  Canada Free Press has an article dated June 12, 2006 that quotes a number of these dissenters:

Professor Bob Carter of the Marine Geophysical Laboratory at James Cook University, in Australia gives what, for many Canadians, is a surprising assessment: "Gore's circumstantial arguments are so weak that they are pathetic. It is simply incredible that they, and his film, are commanding public attention."

***

...Carleton University paleoclimatologist Professor Tim Patterson testified, "There is no meaningful correlation between CO2 levels and Earth's temperature over this [geologic] time frame. In fact, when CO2 levels were over ten times higher than they are now, about 450 million years ago, the planet was in the depths of the absolute coldest period in the last half billion years." Patterson asked the committee, "On the basis of this evidence, how could anyone still believe that the recent relatively small increase in CO2 levels would be the major cause of the past century's modest warming?"

***

Dr. Boris Winterhalter, former marine researcher at the Geological Survey of Finland and professor in marine geology, University of Helsinki, takes apart Gore's dramatic display of Antarctic glaciers collapsing into the sea. "The breaking glacier wall is a normally occurring phenomenon which is due to the normal advance of a glacier," says Winterhalter. "In Antarctica the temperature is low enough to prohibit melting of the ice front, so if the ice is grounded, it has to break off in beautiful ice cascades. If the water is deep enough icebergs will form."

***

Carter does not pull his punches about Gore's activism, "The man is an embarrassment to US science and its many fine practitioners, a lot of whom know (but feel unable to state publicly) that his propaganda crusade is mostly based on junk science."

     Ouch.

GREEN MEETS GREEN

     Here's a novel one- The New York Times reports this week that "Investors Seek Climate Change Information"

Investors worried about the possible financial fallout from greenhouse gas emissions have asked the Securities and Exchange Commission to require that companies disclose their financial vulnerability to changes in climate.

***

"Investors have a right to know if a company's buildings are in the path of hurricanes that might be exacerbated by climate change, or if it will face high costs when greenhouse gas emissions are regulated," said James Coburn, a policy adviser at Ceres, a coalition of investors and environmental groups that sent the letter. "They need that information to reduce their portfolio risk."

     So, green (moneyed interests) meets green (environmentalists), giving new meaning to the Rodney King question, "Can't we all just get along?"

"Work Continues to Restore Iraqi Marshlands"

   This Blog reported on August 24, 2005 (see "Categories-Wetlands" on right-hand side of this page) that true environmentalists should be thrilled Saddam Hussein was gone.  During his reign, he destroyed most of the Biblical marshlands as retaliation for a local uprising against him after the Gulf War.  The new Iraqi government, with the help of the United States, has been working to restore this ancient preserve.

   As the Department of Defense recounts:

BASRA, Iraq, June 7, 2006 — The Iraqi Ministry of Water Resources inherited what it calls one of the world's greatest environmental catastrophes from the former regime - the parched Mesopotamian marshes in southern Iraq.

Marsh Arabs have been living among the southern wetlands for thousands of years, making their homes from abundant reeds and mud. They sell the reeds, catch fish from long wooden boats and herd water-buffalo to sustain themselves.

Fed by the Tigres and Euphrates rivers, the giant wetlands once stretched for more than 6,200 square-miles.

When Saddam Hussein seized power in the early 1970s, he began ordering small sections of the wetland drained to make room for military factories, chemical plants and other industry.

The ancient marshes fell victim to the regime once again during the Iran-Iraq war, beginning in 1980, and were drained even further because of the land's perceived tactical value.

The biggest impact on the marshes came at the conclusion of the Gulf War in 1991. Hussein gave the order to drain the marshes completely in retribution for the Shia uprising against the regime. The huge cost of draining the marshes put a burden on Iraq's economy, and the environmental impact on the marshes' eco-system was disastrous. Certain types of birds, fish and plants normally found in the marshes rapidly disappeared.

   After falling to only 10% of their former size under Saddam, the DOD reports that today the marshes are back up to 40% of that size.  Full restoration will be a long process; but at least, and at last, things are on the right path.

CALABASAS, CALIFORNIA CONSIDERS STYROFOAM BAN

     The City, which recently gained national noteriety for an anti-smoking ordinance, now is considering legislation to ban restaurants and City contractors from dispensing beverages in Styrofoam cups (not biodegradable, etcetera).  You can read the Staff Report (and related documents) regarding the possible legislation at City of Calabasas website (item 3 of tonight's City Council Agenda), referring to Styrofoam by its more arcane name "Polystyrene").

     Of course, in the "grass is always greener" or "you don't really want what you wish for" mode, this Blog points out (another cliche) the law of unintended consequences.  What would substitute for Styrofoam?  Plastic?  Say no more.

     What about good ol' paper?  Well, have you ever noticed that you usually need at least two paper cups to insulate your coffee instead of the single cup of (better insulated) Styrofoam?  There go the forests.  Plus, the poor insulating qualities of paper cups may lead to more personal injuries from consumers spilling the beverage in reaction to the hot liquid inside.

     Stay tuned.

CHINA ADMITS ITS POLLUTION PROBLEMS

     Back on September 2, 2005, this Blog reported the story "Space Sensors Show Massive Surge in Chinese Air Pollution" (see right-hand side of this page under "Categories-Global Warming").  What a shock this must have been to the politically-correct environmentalist community, which of course tends to view the West in general, and the United States in particular, as the font of the world's environmental mischief.

     Now, even the Chinese government admits that the country is a major environmental mischief-maker in its own right.  Today's Los Angeles Times reports that "Despite steady efforts to protect the environment in recent years, China's pollution continues to worsen in the face of relentless industrial growth, the Chinese government acknowledged Monday": 

     According to a [Chinese] State Environmental Protection Administration report released Monday to coincide with World Environment Day, 60% of the country's territory is considered ecologically fragile. About 90% of the country's grasslands are facing degradation and desertification. Vast wetlands are withering and shrinking because of farming and industrialization.