In the important global warming case decided today, American Electric Power Co. v. Connecticut, the Supreme Court unanimously reached the correct result but one that still leaves room for plenty of mischievous litigation.  While it’s clearly true that, as the Court said, the Clean Air Act and the EPA exist to deal with the claims the plaintiffs made here—that the defendants’ carbon dioxide emissions are pollutants that cause global warming—the Court left open the possibility of claims on state common-law grounds such as nuisance.  And it unfortunately said nothing about whether any such disputes, whether challenging EPA action or suing under state law, are properly “cases and controversies” ripe for judicial resolution.

The judiciary was not meant to be the sole method for resolving grievances with the government, even if everything looks like a nail to lawyers who only have a hammer.  This case is the perfect example of a “political question” best left to the political branches: The science and politics of global warming is so complex and nuanced that there simply isn’t a judicial role to be had.

As Cato’s amicus brief argued, the chain of causation between the defendants’ carbon emissions and the alleged harm caused by global warming is so attenuated that it resembles the famed “butterfly effect.” Just as butterflies should not be sued for causing tsunamis, a handful of utility companies in the Northeastern United States should not be sued for the complex (and disputed) harms of global warming. Even if plaintiffs (here or in a future case) can demonstrate causation, it is unconstitutional for courts to make nuanced policy decisions that should be left to the legislature.  Just as it’s improper for a legislature to pass a statute punishing a particular person (bill of attainder), it’s beyond courts’ constitutional authority to determine wide-ranging policies in which numerous considerations must be weighed in anything but an adversarial litigation process.

If a court were to adjudicate claims like those at issue in American Electric Power and issue an order dictating emissions standards, two things will happen: 1) the elected branches will be encouraged to abdicate to the courts their responsibilities for addressing complex and controversial policy issues, and 2) an already difficult situation would become nearly intractable as regulatory agencies and legislative actors butt heads with court orders issued across the country in quickly multiplying global warming cases. These inevitable outcomes are precisely why the standing and political question doctrines exist.

Dissatisfaction with the decisions and pace of government does not give someone the right to sue over anything. Or, as Chief Justice Marshall once said, “If the judicial power extended to every question under the laws of the United States … [t]he division of power [among the branches of government] could exist no longer, and the other departments would be swallowed up by the judiciary.”

In Global Warming Case, Supreme Court Reaches Correct Result But Leaves Room for Mischievous Litigation is a post from Cato @ Liberty - Cato Institute Blog

Today the Washington Post has a big story on efforts by the coal industry to get public schools to teach positive things about — you guessed it — coal. The impetus for the article is no doubt a recent kerfuffle over education mega-publisher Scholastic sending schools free copies of the industry-funded lesson plan “The United States of Energy.” Many parents and environmentalists were upset over businesses putting stealthy moves on kids, and Scholastic eventually promised to cease publication of the plan.

Loaded curricula designed to coerce specific sympathies from children, however, hardly come just from industry, as the Post story notes. Indeed, as I write in the new Cato book Climate Coup: Global Warming’s Invasion of Our Government and Our Lives, much of the curricular material put out at least on climate change is decidedly alarmist in nature, and is funded by you, the taxpayer. In other words, lots of people are trying to use the schools to push their biases on your kids, which is an especially dangerous thing considering how unsettled, uncertain, and multi-sided so many issues are.

In light of the huge question marks that exist in almost all subjects that schools address, the best education system is the one that is most decentralized, in which ideas can compete rather than having one (very likely flawed) conclusion imposed as orthodoxy. And it would be a system in which no level of government — either district, state, or federal — would decide what view is correct, or what should be taught based on the existence of some supposed consensus, as if “consensus” were synonymous with “absolute truth.” What is truth should not be decided by who has the best lobbyists or most political weight, nor should children be forced to learn what government simply deems to be best.

Of course, there are some people who will decide that they are so correct about something that it would be abusive not to have government force children to learn it. If their conclusion is so compelling and obvious, however, no coercion should be necessary to get people to teach it to their children — it should be overwhelmingly clear. More importantly, if there is controversy, efforts to impose a singular view are likely to fail not just with the children of unbelievers, but for many of the children whose parents share the view. As significant anecdotal evidence over the teaching of human origins has stongly suggested — and new empirical work has substantiated — when public schools are confronted with controversial issues, they tend to avoid them altogether rather than teach any side. In other words, efforts at compulsion don’t just fail, they hurt everyone.

Educational freedom, then, is the only solution to the curricular problem. If you want full power to avoid the imposition of unwanted materials on your children, you must be able to choose schools. And if you want to ensure that your kids get the instruction you think every child should have, everyone else must have that ability, too.

Curricula with an Agenda? It Ain’t Just Big Coal is a post from Cato @ Liberty - Cato Institute Blog

Yesterday the U.S. Supreme Court heard oral arguments in American Electric Power v. Connecticut, the massive greenhouse-gas suit. Like the other “big” global warming/climate change suits, this one suffers from a basic and incurable defect: it seeks to undermine the separation of powers established under the U.S. Constitution by inviting the courts to address “political questions” of a sort properly resolved by other branches of government. As Cato’s amicus brief by Ilya Shapiro and Evan Turgeon explained in the case of Comer v. Murphy Oil:

“[W]hile it executes firmly all the judicial powers intrusted to it, the court will carefully abstain from exercising any power that is not strictly judicial in its character, and which is not clearly confided to it by the Constitution.” Muskrat v. United States, 219 U.S. 346, 355 (1911). A dispute is not “judicial in its character” when, among other reasons, the plaintiff does not have “standing” or the claim raises a “political question.” … And the political question doctrine, for which “the appropriateness under our system of government of attributing finality to the action of the political departments and also the lack of satisfactory criteria for a judicial determination are dominant considerations,” Coleman v. Miller, 307 U.S. 433, 454-55 (1939), isolates the judiciary from policy disputes the Constitution assigns to the democratic process.

By its nature, global warming is exactly the sort of policy question traditionally entrusted to the political branches: it is wholly unsuited to individualized justice based on links between particularized emissions and particularized effects, its proposed remedies are much disputed and likely to be the result of inevitably arbitrary compromise, sovereign negotiations with foreign actors play a crucial role, and so forth. As the courts have long recognized, one does not generate a case for judicial action simply by piling atop each other the propositions “something needs to be done” and “the political branches have not done it.” Indeed, the Obama administration itself has more or less invited the Supreme Court to dismiss the action on political-question grounds.

The Cato Institute filed an amicus brief urging the Supreme Court to review the American Electric Power case and then filed another amicus brief on the merits. Anyone interested in how the complexities of the Court’s “political question” doctrine apply in this case should read — in addition to Ilya Shapiro’s blog posts here and here — this new article in the Federalist Society’s publication Engage by Megan L. Brown of Wiley Rein LLP, who has served as Counsel of Record to the Cato Institute in its amicus briefs in this area. Brown provides a thorough explanation of why all three of the major warming suits fail the justiciability test, why Justices Kennedy and Breyer may be worth watching as “swing” votes in AEP, and how the new case affords the court a chance to revisit its problematic pro-regulatory holding in Massachusetts v. EPA (2007). (More from Brown in this Christian Science Monitor op-ed.)

Also worth reading on this subject: Harvard professor Laurence Tribe, by no means known as a general skeptic of environmental regulation, who has assisted the defense side in this litigation and explains some of the reasons in a new Boston Globe op-ed.

AEP v. Connecticut: Global Warming as Political Question is a post from Cato @ Liberty - Cato Institute Blog

• One thing is clear after President Obama’s speech yesterday: He envisions a smaller national debt, but a much bigger government.
• One percent is better than nothing, but it’s still pretty close to nothing.
• One thing is clear about climate change: it’s causing a rising tide of red ink in Washington. See the forthcoming book Climate Coup: Global Warming’s Invasion of Our Government and Our Lives and join us for the accompanying book forum, featuring MIT meteorologist Richard Lindzen and American Meteorological Society fellow Bob Ryan, on Wednesday, May 4 at 4:00 p.m. Eastern. Complimentary registration is required of all attendees by 12:00 p.m. Eastern on Tuesday, May 3. If you cannot join us in person, we hope you’ll watch live online.
• One cannot be serious about reining in reckless spending without putting the Pentagon on the chopping block.
• One need not look very far to see how similar Republicans and Democrats are:

Thursday Links is a post from Cato @ Liberty - Cato Institute Blog

The Current Wisdom is a series of monthly posts in which Senior Fellow Patrick J. Michaels reviews interesting items on global warming in the scientific literature that may not have received the media attention that they deserved, or have been misinterpreted in the popular press.

The Current Wisdom only comments on science appearing in the refereed, peer-reviewed literature, or that has been peer-screened prior to presentation at a scientific congress.

**********

 The recent publication of two articles in Nature magazine proclaiming a link to rainfall extremes (and flooding) to global warming, added to the heat in Russia and the floods in Pakistan in the summer of 2010, and the back-to-back cold and snowy winters in the eastern U.S. and western Europe, have gotten a lot of public attention.  This includes a recent hearing in the House of Representatives, despite its Republican majority.  Tying weather extremes to global warming, or using them as “proof” that warming doesn’t exist (see: snowstorms), is a popular rhetorical flourish by politicos of all stripes.  

The hearing struck many as quite odd, inasmuch as it is much clearer than apocalyptic global warming that the House is going to pass meaningless legislation commanding the EPA to cease and desist from regulating greenhouse gas emissions.  “Meaningless” means that it surely will not become law.  Even on the long-shot probability that it passes the Senate, the President will surely veto, and there are nowhere near enough votes to override such an action.

Perhaps “wolf!” has been cried yet again.  A string of soon-to-be-published papers in the scientific literature finds that despite all hue and cry about global warming and recent extreme weather events, natural climate variability is to blame.

Where to start?  How about last summer’s Russian heat wave?

The Russian heat wave (and to some degree the floods in Pakistan) have been linked to the same large-scale, stationary weather system, called an atmospheric “blocking” pattern. When the atmosphere is “blocked” it means that it stays in the same configuration for period of several weeks (or more) and keeps delivering the same weather to the same area for what can seem like an eternity to people in the way.  Capitalizing on the misery in Russia and Pakistan, atmospheric blocking was added to the list of things that were supposed to be “consistent with” anthropogenically stimulated global warming which already, of course included heat waves and floods. And thus the Great Russian Heat Wave of 2010 became part of global warming lore.

But then a funny thing happened – scientists with a working knowledge of atmospheric dynamics started to review the situation and found scant evidence for global warming.

The first chink in the armor came back in the fall of 2010, when scientists from the Physical Sciences Division (PSD) of the Earth System Research Laboratory (ESRL) of the National Oceanic and Atmospheric Administration (NOAA) presented the results of their preliminary investigation on the web , and concluded that “[d]espite this strong evidence for a warming planet, greenhouse gas forcing fails to explain the 2010 heat wave over western Russia. The natural process of atmospheric blocking, and the climate impacts induced by such blocking, are the principal cause for this heat wave.”

The PSD folks have now followed this up with a new peer-reviewed article in the journal Geophysical Research Letters that rejects the global warming explanation. The paper is titled “Was There a Basis for Anticipating the 2010 Russian Heat Wave?” Turns out that there wasn’t.

To prove this, the research team, led by PSD’s Randall Dole, first reviewed the observed temperature history of the region affected by the heat wave (western Russia, Belarus, the Ukraine, and the Baltic nations). To start, they looked at the recent antecedent conditions: “Despite record warm globally-averaged surface temperatures over the first six months of 2010, Moscow experienced an unusually cold winter and a relatively mild but variable spring, providing no hint of the record heat yet to come.” Nothing there.

Then they looked at the long-term temperature record: “The July surface temperatures for the region impacted by the 2010 Russian heat wave shows no significant warming trend over the prior 130-year period from 1880 to 2009…. A linear trend calculation yields a total temperature change over the 130 years of -0.1°C (with a range of 0 to -0.4°C over the four data sets [they examined]).” There’s not a hint of a build-up to a big heat wave.

And as to the behavior of temperature extremes: “There is also no clear indication of a trend toward increasing warm extremes. The prior 10 warmest Julys are distributed across the entire period and exhibit only modest clustering earlier in this decade, in the 1980s and in the 1930s…. This behavior differs substantially from globally averaged annual temperatures, for which eleven of the last twelve years ending in 2006 rank among the twelve warmest years in the instrumental record since 1850….”

With regard any indication that “global” warming was pushing temperatures higher in Russia and thus helped to fuel the extreme heat last summer, Dole et al. say this: “With no significant long-term trend in western Russia July surface temperatures detected over the period 1880-2009, mean regional temperature changes are thus very unlikely to have contributed substantially to the magnitude of the 2010 Russian heat wave.”

Next the PSD folks looked to see if the existing larger-scale antecedent conditions, fed into climate models would produce the atmospheric circulation patterns (i.e. blocking) that gave rise to the heat wave.  The tested “predictors” included patterns of sea surface temperature and arctic ice coverage, which most people feel have been subject to some human influence.  No relationship: “These findings suggest that the blocking and heat wave were not primarily a forced response to specific boundary conditions during 2010.”

In fact, the climate models exhibited no predilection for projecting increases in the frequency of atmospheric blocking patterns over the region as greenhouse gas concentrations increased. Just the opposite: “Results using very high-resolution climate models suggest that the number of Euro-Atlantic blocking events will decrease by the latter half of the 21st century.”

At this point, Dole and colleagues had about exhausted all lines of inquiry and summed things up:

 Our analysis points to a primarily natural cause for the Russian heat wave. This event appears to be mainly due to internal atmospheric dynamical processes that produced and maintained an intense and long-lived blocking event. Results from prior studies suggest that it is likely that the intensity of the heat wave was further increased by regional land surface feedbacks. The absence of long-term trends in regional mean temperatures and variability together with the model results indicate that it is very unlikely that warming attributable to increasing greenhouse gas concentrations contributed substantially to the magnitude of this heat wave.

Can’t be much clearer than that.

But that was last summer. What about the past two winters? Both were very cold in the eastern U.S. with record snows events and/or totals scattered about the country.

Cold, snow, and global warming? On Christmas Day 2010, the New York Times ran an op-ed by Judah Cohen, a long-range forecaster for the private forecasting firm Atmospheric and Environmental Research, outlining his theory as to how late summer Arctic ice declines lead to more fall snow cover across Siberia which in turn induces atmospheric circulation patterns to favor snowstorms along the East Coast of the U.S. Just last week, the Union of Concerned Scientists held a news conference where they handed out a press release  headlined “Climate Change Makes Major Snowstorms Likely.” In that release, Mark Serreze, director of the National Snow and Ice Data Center, laid out his theory as to how the loss of Arctic sea ice is helping to provide more moisture to fuel winter snowstorms across the U.S. as well as altering atmospheric circulation patterns into a preferred state for big snowstorms. Weather Underground’s Jeff Masters chimed in with “Heavy snowstorms are not inconsistent with a warming planet.”

As is the wont for this Wisdom, let’s go back to the scientific literature.

Another soon-to-be released paper to appear in Geophysical Research Letters describes the results of using the seasonal weather prediction model from the European Center for Medium-Range Weather Forecasts (ECMWF) to help untangle the causes of the unusual atmospheric circulation patterns that gave rise to the harsh winter of 2009-2010 on both sides of the Atlantic. A team of ECMWF scientists led by Thomas Jung went back and did experiments changing initial conditions that were fed into the ECMWF model and then assessed how well the model simulated the known weather patterns of the winter of 2009-2010. The different set of initial conditions was selected so as to test all the pet theories behind the origins of the harsh winter.  Jung et al. describe their investigations this way: “Here, the origin and predictability of the unusual winter of 2009/10 are explored through numerical experimentation with the ECMWF Monthly forecasting system. More specifically, the role of anomalies in sea surface temperature (SST) and sea ice, the tropical atmospheric circulation, the stratospheric polar vortex, solar insolation and near surface temperature (proxy for snow cover) are examined.”

Here is what they found after running their series of experiments.

Arctic sea ice and sea surface temperature anomalies.  These are often associated with global warming caused by people. Finding:  “These results suggest that neither SST nor sea ice anomalies explain the negative phase of the NAO during the 2009/10 winter.”

(NAO are the commonly used initials for the North Atlantic Oscillation – and atmospheric circulation pattern that can act to influence winter weather in the eastern U.S. and western Europe. A negative phase of the NAO is associated with cold and stormy weather and during the winter of 2009-10, the NAO value was the lowest ever observed.)

A global warming-induced weakening stratospheric (upper-atmosphere) jetstream. “Like for the other experiments, these stratospheric relaxation experiments fail to reproduce the magnitude of the observed NAO anomaly.”

Siberian snow cover.  “The resulting [upper air patterns] show little resemblance with the observations…. The implied weak role of snow cover anomalies is consistent with other research….”

Solar variability.  “The experiments carried out in this study suggest that the impact of anomalously low incoming [ultraviolet] radiation on the tropospheric circulation in the North Atlantic region are very small… suggesting that the unusually low solar activity contributed little, if any, to the observed NAO anomaly during the 2009/10 winter.”

Ok then, well what did cause the unusual weather patterns during the 2009-10 winter?

The results of this study, therefore, increase the likelihood that both the development and persistence of negative NAO phase resulted from internal atmospheric dynamical processes.

Translation: Random variability.

To drive this finding home, here’s another soon-to-be-released paper (D’Arrigo et al., 2001) that uses tree ring-based reconstructions of atmospheric circulation patterns and finds a similar set of conditions (including a negative NAO value second only to the 2009-10 winter) was responsible for the historically harsh winter of 1783-84 in the eastern U.S. and western Europe, which  was widely noted by historians. It followed the stupendous eruption of the Icelandic volcano Laki the previous summer. The frigid and snowy winter conditions have been blamed on the volcano. In fact, Benjamin Franklin even commented as much.

But in their new study, Roseanne D’Arrigo and colleagues conclude that the harshness of that winter primarily was the result of anomalous atmospheric circulation patterns that closely resembled those observed during the winter of 2009-10, and that the previous summer’s volcanic eruption played a far less prominent role:

Our results suggest that Franklin and others may have been mistaken in attributing winter conditions in 1783-4 mainly to Laki or another eruption, rather than unforced variability.

Similarly, conditions during the 2009-10 winter likely resulted from natural [atmospheric] variability, not tied to greenhouse gas forcing… Evidence thus suggests that these winters were linked to the rare but natural occurrence of negative NAO and El Niño events.

The point is that natural variability can and does produce extreme events on every time scale, from days (e.g., individual storms), weeks (e.g., the Russian heat wave), months (e.g., the winter of 2009-10), decades (e.g., the lack of global warming since 1998), centuries (e.g., the Little Ice Age), millennia (e.g., the cycle of major Ice Ages), and eons (e.g., snowball earth).

Folks would do well to keep this in mind next time global warming is being posited for the weather disaster du jour. Almost assuredly, it is all hype and little might.

Too bad these results weren’t given a “hearing” in the House!

References:

D’Arrigo, R., et al., 2011. The anomalous winter of 1783-1784: Was the Laki eruption or an analog of the 2009–2010 winter to blame? Geophysical Research Letters, in press.

Dole, R., et al., 2011. Was there a basis for anticipating the 2010 Russian heat wave? Geophysical Research Letters, in press.

Jung et al., 2011. Origin and predictability of the extreme negative NAO winter of 2009/10. Geophysical Research Letters, in press.

Min, S-K., et al., 2011. Human contribution to more-intense precipitation extremes. Nature, 470, 378-381.

Pall, P., et al., 2011. Anthropogenic greenhouse gas contribution to flood risk in England and Wales in autumn 2000. Nature, 470, 382-386.

The Current Wisdom: Overplaying the Human Contribution to Recent Weather Extremes is a post from Cato @ Liberty - Cato Institute Blog

As Congress debates cap-and-trade, new fuel standards, and subsidies for “green” companies, some still feel that political solutions to global warming are not moving fast enough. In the present case, American Electric Power Co. v. Connecticut, eight states and New York City sued several public utilities (including the federal Tennessee Valley Authority), alleging that their carbon dioxide emissions contribute to global warming.

This is the third major lawsuit to push global warming into the courts (another being Comer v. Murphy Oil USA, in which Cato also filed a brief). All of these suits try to use the common law doctrine of nuisance—which, for example, lets you sue your neighbor if his contaminated water flows onto your land and kills your lawn—to attack carbon emitters. None of them had gotten very far until the Second Circuit vacated a lower-court ruling and allowed the claims here to proceed.

But the judiciary was not meant to be the sole method for resolving grievances with the government—even if everything looks like a nail to lawyers who only have a hammer. After all, there are two other co-equal branches, the legislative and executive, which are constitutionally committed to unique roles in our system of separation of powers. The doctrine of “standing” exists in part to ensure that the judiciary is not used to solve issues that properly belong to those other branches. Toward this end, the Constitution allows courts to hear only actual “cases or controversies” that can feasibly be resolved by a court.

Cato thus filed a brief supporting the defendant utilities’ successful request for Supreme Court review, and has now filed another brief supporting their position before the Court. Cato’s latest brief first argues that no judicial solution is possible here because the chain of causation between the defendants’ carbon emissions and the alleged harm caused by global warming is so attenuated that it resembles the famed “butterfly effect.” Just as butterflies should not be sued for causing tsunamis, a handful of utility companies in the Northeastern United States should not be sued for the complex (and disputed) harms of global warming.

Second, we contend that, even if the plaintiffs can demonstrate causation, it is unconstitutional for courts to make nuanced policy decisions that should be left to the legislature—and this is true regardless of the science of global warming. Just as it’s improper for a legislature to pass a statute punishing a particular person (bill of attainder), it’s beyond courts’ constitutional authority—under the “political question doctrine”—to determine wide-ranging policies in which numerous considerations must be weighed in anything but an adversarial litigation process.

If a court were to adjudicate the claims here and issue an order dictating emissions standards, two things will happen: 1) the elected branches will be encouraged to abdicate to the courts their responsibilities for addressing complex and controversial policy issues, and 2) an already difficult situation would become nearly intractable as regulatory agencies and legislative actors butt heads with court orders issued across the country in quickly multiplying global warming cases. These inevitable outcomes are precisely why the standing and political question doctrines exist.

Dissatisfaction with the decisions and pace of government does not give someone the right to sue over anything. Or, as Chief Justice Marshall once said, “If the judicial power extended to every question under the laws of the United States . . . [t]he division of power [among the branches of government] could exist no longer, and the other departments would be swallowed up by the judiciary.”

The Supreme Court will hear arguments in American Electric Power Co. v. Connecticut on April 19.

Special thanks to Trevor Burrus, who contributed to this post.

Supreme Court Takes Up Butterfly Effect is a post from Cato @ Liberty - Cato Institute Blog

While all the hot constitutional action of late, on issues ranging from Obamacare to gay marriage to immigration, has been in the lower courts — or even in Congress! — the Supreme Court still goes about its daily business.  After last year’s blockbuster term, however, this term is pretty low-profile aside from a spate of First Amendment cases (funeral protests, violent video games, school choice tax credits, public financing of election campaigns, etc.).  And so it was yesterday, when Supreme Court arguments over securities law and Western water rights were overshadowed by news of cases on which the Court decided not to rule:

• Without comment, the Court denied an unusual request — a petition for a writ of mandamus — in the Gulf Coast global warming lawsuit, Comer v. Murphy Oil.  This is the case, you may recall, where the Fifth Circuit lost its quorum as it was about to hear the en banc (whole court) appeal of a panel ruling that allowed the suit to proceed, resulting in the odd situation of the appeal being dismissed altogether and the district court decision to dismiss the lawsuit being the law of the case.  Those complicated procedural twists would’ve made for an ungainly case, but the Supreme Court will hear a different global warming–related case, which I also previously discussed and in which Cato filed a brief. 
• The Court declined to review the constitutionality of a federal ban on felons’ possession of body  armor (e.g., a bulletproof vest) — in a challenge arguing that these are issues properly left to the states, there being no interstate commerce connection.  In ruling for the government, the Ninth Circuit (always them!) had applied a precedent that antedated the seminal cases of Lopez (1995) and Morrison (2000), where — as you know if you’ve been paying attention to the Obamacare lawsuits — the Court struck down the federal Gun-Free School Zones and Violence Against Women Acts, respectively, as beyond Congress’s power to regulate interstate commerce.  Notably, Justice Thomas, joined by Justice Scalia in all but one footnote, filed a trenchant dissent from this cert denial (starts on page 33 here), saying that, ” Today the Court tacitly accepts the nullification of our recent Commerce Clause jurisprudence…. [The lower court's] logic threatens the proper limits on Congress’ commerce power and may allow Congress to exercise police powers that our Constitution reserves to the States.”  Perhaps more notably, neither the Chief Justice nor Justice Alito joined Thomas’s dissent.  (H/T Josh Blackman)
• The Court also declined to review the constitutionality of criminal convictions by non-unanimous juries — which are only allowed in Oregon (the place where this case originates) and Louisiana — denying a cert petition filed by UCLA law professor Eugene Volokh.  The interesting angle here is that it’s not at all clear whether (1) all the rights protected by the Bill of Rights — here the Sixth Amendment requirement that jury convictions be unanimous — are “incorporated” against the states and (2) whatever incorporation there is goes through the Due Process Clause or the Privileges or Immunities Clause (which is important for courts’ consideration of the scope of constitutional rights).  Recall that in McDonald v. Chicago, the Court extended the right to keep and bear arms to the states but could not agree on the jurisprudential methodology for doing so — yet still hinted that it would be open to revisiting these issues in a case relating to unanimous jury verdicts… but apparently not yet.
• The Court took off its argument calendar a case regarding the sovereign immunity of Indian tribes, specifically whether that doctrine prevents the enforcement of property taxes against those legally peculiar entities.  This is a huge issue for federalism, state revenues, and a host of other policy matters — and is quite complex legally — but New York’s Oneida tribe, perhaps fearing what would have been an epic loss at the Supreme Court, here decided to waive its immunity claim and thus moot the case.

After all this “active non-action” — which may be how the government next tries to characterize the non-purchase of health insurance in its next attempt to somehow find constitutional authority for the individual mandate — the Court did release one opinion of note today.  The opinion itself, in a technical bankruptcy case regarding the compelling issue of whether a debtor can take a car-ownership deduction if she does not make loan or lease payments, is not particularly noteworthy, but the author — rookie Justice Elena Kagan — is.  And so, with 18 dry pages and over a lone dissent by Justice Scalia, the Kagan era has begun.

Supreme Court Non-Rulings More Important Than Cases It Actually Hears is a post from Cato @ Liberty - Cato Institute Blog

The Current Wisdom is a series of monthly posts in which Senior Fellow Patrick J. Michaels reviews interesting items on global warming in the scientific literature that may not have received the media attention that they deserved, or have been misinterpreted in the popular press.

The Current Wisdom only comments on science appearing in the refereed, peer-reviewed literature, or that has been peer-screened prior to presentation at a scientific congress.

History to Repeat:  Greenland’s Ice to Survive, United Nations to Continue Holiday Party

This year’s installment of the United Nations’ annual climate summit (technically known as the 16th meeting of the Conference of the Parties to the Framework Convention on Climate Change) has come and gone in Cancun. Nothing substantial came of it policy-wise; just the usual attempts by the developing world to shake down our already shaky economy in the name of climate change.   News-wise probably the biggest story was that during the conference, Cancun broke an all time daily low temperature record.  Last year’s confab in Copenhagen was pelted by snowstorms and subsumed in miserable cold.  President Obama attended, failed to forge any meaningful agreement, and fled back to beat a rare Washington blizzard. He lost.

But surely as every holiday season now includes one of these enormous jamborees, dire climate stories appeared daily.  Polar bear cubs are endangered!  Glaciers are melting!!

Or so beat the largely overhyped drums, based upon this or that press release from Greenpeace or the World Wildlife Fund.

And, of course, no one bothered to mention a blockbuster paper appearing in Nature the day before the end of the Cancun confab, which reassures us that Greenland’s ice cap and glaciers are a lot more stable than alarmists would have us believe.  That would include Al Gore, fond of his lurid maps showing the melting all of Greenland’s ice submerging Florida.

Ain’t gonna happen.

The disaster scenario goes like this:  Summer temperatures in Greenland are warming, leading to increased melting and the formation of ephemeral lakes on the ice surface.  This water eventually finds a crevasse and then a way down thousands of feet to the bottom of a glacier, where it lubricates the underlying surface, accelerating the seaward march of the ice.  Increase the temperature even more and massive amounts deposit into the ocean by the year 2100, catastrophically raising sea levels.

According to Christian Schoof of the University of British Columbia (UBC), “The conventional view has been that meltwater permeates the ice from the surface and pools under the base of the ice sheet….This water then serves as a lubricant between the glacier and the earth underneath it….”

And, according to Schoof, that’s just not the way things work. A UBC press release about his Nature article noted that he found that “a steady meltwater supply from gradual warming may in fact slow down the glacier flow, while sudden water input could cause glaciers to speed up and spread.”

Indeed, Schoof finds that sudden water inputs, such as would occur with heavy rain, are responsible for glacial accelerations, but these last only one or a few days.

The bottom line?  A warming climate has very little to do with accelerating ice flow, but weather events do.

How important is this?  According to University of Leeds Professor Andrew Shepherd, who studies glaciers via satellite, “This study provides an elegant solution to one of the two key ice sheet instability problems” noted by the United Nations in their last (2007) climate compendium.  “It turns out that, contrary to popular belief, Greenland ice sheet flow might not be accelerated by increased melting after all,” he added.

I’m not so sure that those who hold the “popular belief” can explain why Greenland’s ice didn’t melt away thousands of years ago.  For millennia, after the end of the last ice age (approximately 11,000 years ago) strong evidence indicates that the Eurasian arctic averaged nearly 13°F warmer in July than it is now.

That’s because there are trees buried and preserved in the acidic Siberian tundra, and they can be carbon dated.  Where there is no forest today—because it’s too cold in summer—there were trees, all the way to the Arctic Ocean and even on some of the remote Arctic islands that are bare today. And, back then, thanks to the remnants of continental ice, the Arctic Ocean was smaller and the North American and Eurasian landmasses extended further north.

That work was by Glen MacDonald, from UCLA’s Geography Department. In his landmark 2000 paper in Quaternary Research, he noted that the only way that the Arctic could become so warm is for there to be a massive incursion of warm water from the Atlantic Ocean.  The only “gate” through which that can flow is the Greenland Strait, between Greenland and Scandinavia.

So, Greenland had to have been warmer for several millennia, too.

Now let’s do a little math to see if the “popular belief” about Greenland ever had any basis in reality.

In 2009 University of Copenhagen’s B. M. Vinther and 13 coauthors published the definitive history of Greenland climate back to the ice age, studying ice cores taken over the entire landmass. An  exceedingly conservative interpretation of  their results is that Greenland was 1.5°C (2.7°F) warmer for the period from 5,000-9000 years ago, which is also the warm period in Eurasia that MacDonald detected.  The integrated warming is given by multiplying the time (4,000 years) by the warming (1.5°), and works out (in Celsius) to 6,000 “degree-years.” 

Now let’s assume that our dreaded emissions of carbon dioxide spike the temperature there some 4°C.  Since we cannot burn fossil fuel forever, let’s put this in over 200 years.  That’s a pretty liberal estimate given that the temperature there still hasn’t exceeded values seen before in the 20^th century.  Anyway, we get 800 (4 x 200) degree-years.

If the ice didn’t come tumbling off Greenland after 6,000 degree-years, how is it going to do so after only 800?  The integrated warming of Greenland in the post-ice-age warming (referred to as the “climatic optimum” in textbooks published prior to global warming hysteria) is over seven times what humans can accomplish in 200 years.  Why do we even worry about this?

So we can all sleep a bit better.  Florida will survive.  And, we can also rest assured that the UN will continue its outrageous holiday parties, accomplishing nothing, but living large.  Next year’s is in Durban, South Africa, yet another remote warm spot hours of Jet-A away.

References:

MacDonald, G. M., et al., 2000.  Holocene treeline history and climatic change across Northern Eurasia.  Quaternary Research 53, 302-311.

Schoof, C., 2010. Ice-sheet acceleration driven by melt supply variability. Nature 468, 803-805.

Vinther, B.M., et al., 2009.  Holocene thinning of the Greenland ice sheet. Nature 461, 385-388.

The Current Wisdom is a post from Cato @ Liberty - Cato Institute Blog

The Supreme Court is finally starting to put some interesting non-First Amendment cases on this term’s docket.

Today, the Court agreed to review American Electric Power Co., Inc. v. Connecticut, in which eight states, some non-profits, and New York City are suing a number of energy companies and utilities for harms they allegedly caused by contributing to global warming.  This is the third major lawsuit to push global warming into the courts (another being Comer v. Murphy Oil USA, in which Cato also filed a brief).  It’s America, after all, where we sue to solve our problems — even apparently, taking to court the proverbial butterfly that caused a tsunami.

Mind you, you can sue your neighbor for leaking toxic water onto your land. Courts are well positioned to adjudicate such disputes because they involve only two parties and have limited (if any) effects on others. But it is a different case when, using the same legal theory by which Jones sues Smith for his toxic dumping (called “nuisance”), plaintiffs selectively sue a few targeted defendants for a (quite literally) global problem.  As I discussed with reference to a previous such case, global warming is the type of issue that should be decided by the political branches. The Second Circuit ruled, however, that this suit could go forward. (Justice Sotomayor was involved in the case at that stage and so will be recused going forward.)  

The Supreme Court has always recognized that not all problems can or should be solved in the courtroom. Thus, the issue in AEP v. Connecticut – which the Court will now decide – is whether the states meet the legal requirements necessary to have their suit heard in court, what lawyers call “standing.” Historically, issues of policy have been decided by the legislative and executive branches while “cases and controversies” have been decided by courts. Therefore, when litigants have asked courts determine matters of broad-ranging policy, the Court has often termed the cases “political questions” and dismissed them. The reasoning is that, not only do unelected courts lack the political authority to determine such questions, they also lack any meaningful standards by which the case could be decided (called “justiciability”).

Indeed, even if the plaintiffs can demonstrate causation, it is unconstitutional for courts to make complex policy decisions — and this is true regardless of the science regarding global warming. Just as it’s unconstitutional for a legislature to pass a statute punishing a particular person (bill of attainder), it’s unconstitutional — under the “political question doctrine” — for courts to determine wide-ranging policies in which numerous considerations must be weighed against each other in anything but a bilateral way.  

We pointed out in our brief supporting the defendants’ request for Supreme Court review — and will again in the brief we plan to file at this next stage — that resolving this case while avoiding those comprehensive and far-reaching implications is impossible and that the Constitution prohibits the judicial usurpation of roles assigned to the other, co-equal branches of government.   After all, global warming is a global problem purportedly caused by innumerable actors, ranging from cows to Camrys. This fact not only underscores the political nature of the question, but it has constitutional significance: In order to sue someone, your injury must be “fairly traceable” to the defendant’s actions. Suits based on “butterfly effect” reasoning should not be allowed to move forward.

Perhaps surprisingly, the federal government –which is involved because one of the defendants is the Tennessee Valley Authority — agrees with Cato . The administration aptly played its role in our constitutional system by asserting that global warming policy was a matter for the executive and legislative branches to resolve, not the judiciary. 

Hmmm, Cato and Obama on the same side in a global warming dispute… but I still won’t be holding my breath awaiting an invite to the White House Christmas party.

Supreme Court Should Tell Courts to Stay Out of Global Warming Cases is a post from Cato @ Liberty - Cato Institute Blog

The financial crisis and global warming have reinforced an age-old criticism of our traditional ways of measuring wealth, and a number of alternative indexes have been proposed that would instead measure people’s well-being and environmental sustainability.

There are problems with using GDP. It involves an incredible amount of guesswork; and even if it were perfect, it would be bizarre to use production of goods and services as the only yardstick to evaluate our societies. But finding problems is one thing; it is something completely different to find an alternative that is better. Any sort of well-being index would require agreement on what well-being is, and there is a risk that governments would be tempted to find a one-size-fits-all standard and try to make us all wear it.

In a new paper I examine some of the proposed alternatives and they all beg the question about well-being by defining it as the result of the particular kinds of policies that they happen to prefer. Bhutan’s famous National Happiness Index, for example, defines it partly as a strong, traditional culture, and has used it to oppress minorities. And the Commission on the Measurement of Economic Performance and Social Progress, created by French president Nicolas Sarkozy and led by economist Joseph Stiglitz, selectively chooses measures to show that France is richer in relation to the United States than it would otherwise be.

The advantage of GDP is precisely what it has often been criticized for — that it is a narrow and value-free measure. It does not even try to define well-being, and so fits liberal, pluralistic societies in which people have different interests, preferences and attitudes toward well-being. It tells us what we can do, but not what we should do; and since it measures what we can do, it also correlates with most of the things most people want from life: better health, longer lives, less poverty and even happiness. The latest research shows not only that people in rich countries are happier but also that countries grow happier as they become richer.

Read the paper here. Read Will Wilkinson’s Policy Analysis on happiness research here.

On Happiness is a post from Cato @ Liberty - Cato Institute Blog

November’s Scientific American features a profile of Georgia Tech atmospheric scientist Judith Curry,  who has committed the mortal sin of  reaching out to other scientists who hypothesize that global warming isn’t the disaster it’s been cracked up to be.  I have personal experience with this, as she invited me to give a research seminar in Tech’s prestigious School of Earth and Atmospheric Sciences in 2008.  My lecture summarizing the reasons for doubting the apocalyptic synthesis of climate change was well-received by an overflow crowd.

Written by Michael Lemonick, who hails from the shrill blog Climate Central, the article isn’t devoid of the usual swipes, calling her a “heretic,, which is hardly at all true.  She’s simply another hardworking scientist who lets the data take her wherever it must, even if that leads her to question some of our more alarmist colleagues. 

But, as a make-up call for calling attention to Curry, Scientific American has run a poll of its readers on climate change.  Remember that SciAm has been shilling for the climate apocalypse for years, publishing a particularly vicious series of attacks on Denmark’s Bjorn Lomborg’s Skeptical Environmentalist.  The magazine also featured NASA’s James Hansen and his outlandish claims on sea-level rise. Hansen has stated, under oath in a deposition, that a twenty foot rise is quite possible within the next 89 years; oddly, he has failed to note that in 1988 he predicted that the West Side Highway in Manhattan would go permanently under water in twenty years.

SciAm probably expected a lot of people would agree with the key statement in their poll that the United Nations’ Intergovernmental Panel on Climate Change (IPCC) is “an effective group of government representatives and other experts.”

Hardly. As of this morning, only 16% of the 6655 respondents agreed.  84%—that is not a typo—described the IPCC as “a corrupt organization, prone to groupthink, with a political agenda.” 

The poll also asks “What should we do about climate change?” 69% say “nothing, we are powerless to stop it.” When asked about policy options, an astonishingly low 7% support cap-and-trade, which passed the U.S. House of Representatives in June, 2009, and cost approximately two dozen congressmen their seats.

The real killer is question “What is causing climate change?” For this one, multiple answers are allowed.  26% said greenhouse gases from human activity, 32% solar variation, and 78% “natural processes.” (In reality all three are causes of climate change.)

And finally, “How much would you be willing to pay to forestall the risk of catastrophic climate change?”  80% of the respondents said “nothing.”

Remember that this comes from what is hardly a random sample.  Scientific American is a reliably statist publication and therefore appeals to a readership that is skewed to the left of the political center.  This poll demonstrates that virtually everyone now acknowledges that the UN has corrupted climate science, that climate change is impossible to stop, and that futile attempts like cap-and-trade do nothing but waste money and burn political capital, things that Cato’s scholars have been saying for years.

The Shocking Truth: The Scientific American Poll on Climate Change is a post from Cato @ Liberty - Cato Institute Blog

NOTE:  This is the first in a series of monthly posts in which Senior Fellow Patrick J. Michaels reviews interesting items on global warming in the scientific literature that may not have received the media attention that they deserved, or have been misinterpreted in the popular press.

The Current Wisdom only comments on science appearing in the refereed, peer-reviewed literature, or that has been peer-screened prior to presentation at a scientific congress.

The Iceman Goeth:  Good News from Greenland and Antarctica

How many of us have heard that global sea level will be about a meter—more than three feet—higher in 2100 than it was in the year 2000?  There are even scarier stories, circulated by NASA’s James E. Hansen, that the rise may approach 6 meters, altering shorelines and inundating major cities and millions of coastal inhabitants worldwide.

Figure 1. Model from a travelling climate change exhibit (currently installed at the Field Museum of natural history in Chicago) of Lower Manhattan showing what 5 meters (16 feet) of sea level rise will look like.

Researchers and the media need to stop suggesting that Manhattan or even Miami will be lost to a rising sea. That’s not realistic; it promotes denial and panic, not a reasoned consideration of the future.

Titus was commenting upon his 2009 publication on sea-level rise in the journal Environmental Research Letters.

The number one rule of grabbing attention for global warming is to never let the facts stand in the way of a good horror story, so advice like Titus’s is usually ignored.

The catastrophic sea level rise proposition is built upon the idea that large parts of the ice fields that lay atop Greenland and Antarctica will rapidly melt and slip into the sea as temperatures there rise.  Proponents of this idea claim that the United Nations’ Intergovernmental Panel on Climate Change (IPCC), in its most recent (2007) Assessment Report,  was far too conservative in its projections of future sea level rise—the mean value of which is a rise by the year 2100 of about 15 inches.

In fact, contrary to virtually all news coverage, the IPCC actually anticipates that Antarctica will gain ice mass (and lower sea level) as the climate warms, since the temperature there is too low to produce much melting even if it warms up several degrees, while the warmer air holds more moisture and therefore precipitates more snow. The IPCC projects Greenland to contribute a couple of inches of sea level rise as ice melts around its periphery.

Alarmist critics claim that the IPCC’s projections are based only on direct melt estimates rather than “dynamic” responses of the glaciers and ice fields to rising temperatures.

These include Al Gore’s favorite explanation—that melt water from the surface percolates down to the bottom of the glacier and lubricates its base, increasing flow and ultimately ice discharge. Alarmists like Gore and Hansen claim that Greenland and Antarctica’s glaciers will then “surge” into the sea, dumping an ever-increasing volume of ice and raising water levels worldwide.

The IPCC did not include this mechanism because it is very hypothetical and not well understood.  Rather, new science argues that the IPCC’s minuscule projections of sea level rise from these two great ice masses are being confirmed.

About a year ago, several different research teams reported that while glaciers may surge from time to time and increase ice discharge rates, these surges are not long-lived and that basal lubrication is not a major factor in these surges. One research group, led by Faezeh Nick and colleagues reported that “our modeling does not support enhanced basal lubrication as the governing process for the observed changes.” Nick and colleagues go on to find that short-term rapid increases in discharge rates are not stable and that “extreme mass loss cannot be dynamically maintained in the long term” and ultimately concluding that “[o]ur results imply that the recent rates of mass loss in Greenland’s outlet glaciers are transient and should not be extrapolated into the future.”

But this is actually old news. The new news is that the commonly-reported (and commonly hyped) satellite estimates of mass loss from both Greenland and Antarctica were a result of improper calibration, overestimating ice loss by  some 50%.

As with any new technology, it takes a while to get all the kinks worked out. In the case of the Gravity Recovery and Climate Experiment (GRACE) satellite-borne instrumentation, one of the major problems is interpreting just what exactly the satellites are measuring. When trying to ascertain mass changes (for instance, from ice loss) from changes in the earth’s gravity field, you first have to know how the actual land under the ice is vertically moving (in many places it is still slowly adjusting from the removal of the glacial ice load from the last ice age).

The latest research by a team led by Xiaoping Wu from Caltech’s Jet Propulsion Laboratory concludes that the adjustment models that were being used by previous researchers working with the GRACE data didn’t do that great of a job. Wu and colleagues enhanced the existing models by incorporating land movements from a network of GPS sensors, and employing more sophisticated statistics. What they found has been turning heads.

Using the GRACE measurements and the improved model, the new estimates of the rates of ice loss from Greenland and Antarctica  are only about half as much as the old ones.

Instead of Greenland losing ~230 gigatons of ice each year since 2002, the new estimate is 104 Gt/yr. And for Antarctica, the old estimate of ~150 Gt/yr has been modified to be about 87 Gt/yr.

 How does this translate into sea level rise?

 It takes about 37.4 gigatons of ice loss to raise the global sea level 0.1 millimeter—four hundredths of an inch. In other words, ice loss from Greenland is currently contributing just over one-fourth of a millimeter of sea level rise per year, or one one-hundreth of an inch.  Antarctica’s contribution is just under one-fourth of a millimeter per year.  So together, these two regions—which contain 99% of all the land ice on earth—are losing ice at a rate which leads to an annual sea level rise of one half of one millimeter per year. This is equivalent to a bit less than 2 hundredths of an inch per year.  If this continues for the next 90 years, the total sea level rise contributed by Greenland and Antarctica by the year 2100 will amount to less than 2 inches.

 Couple this with maybe 6-8 inches from the fact that the ocean rises with increasing temperature,  temperatures and 2-3 inches from melting of other land-based ice, and you get a sum total of about one foot of additional rise by century’s end.

 This is about 1/3^rd of the 1 meter estimates and 1/20^th of the 6 meter estimates.

Things had better get cooking in a hurry if the real world is going to approach these popular estimates. And there are no signs that such a move is underway.

So far, the 21^st century has been pretty much of a downer for global warming alarmists. Not only has the earth been warming at a rate considerably less than the average rate projected by climate models, but now the sea level rise is suffering a similar fate.

Little wonder that political schemes purporting to save us from these projected (non)calamities are also similarly failing to take hold.

References:

Nick, F. M., et al., 2009. Large-scale changes in Greenland outlet glacier dynamics triggered at the terminus. Nature Geoscience, DOI:10.1038, published on-line January 11, 2009.

Titus, J.G., et al., 2009. State and Local Governments Plan for Development of Most Land Vulnerable to Rising Sea Level along the U.S. Atlantic Coast, Environmental Research Letters 4 044008. (doi: 10.1088/1748-9326/4/4/044008).

Wu, X., et al., 2010. Simultaneous estimation of global present-day water treansport and glacial isostatic adjustment. Nature Geoscience, published on-line August 15, 2010, doi: 10.1038/NGE0938.

The Current Wisdom is a post from Cato @ Liberty - Cato Institute Blog

There’s a wise old saying about “don’t bite the hand that feeds you.” But perhaps we need a new saying along the lines of “don’t subsidize the foot that kicks you.” Here’s a good example: American taxpayers finance the biggest share of the budget for the Organization for Economic Cooperation and Development, which is an international bureaucracy based in Paris. The OECD is not as costly as the United Nations, but it still soaks up about $100 million of American tax dollars each year. And what do we get in exchange for all this money? Sadly, the answer is lots of bad policy. The bureaucrats (who, by the way, get tax-free salaries) just released their “Economic Survey of the United States, 2010” and it contains a wide range of statist analysis and big-government recommendations.

The Survey endorses Obama’s failed Keynesian spending bill and the Fed’s easy-money policy, stating, “The substantial fiscal and monetary stimulus successfully turned the economy around.” If 9.6 percent unemployment and economic stagnation is the OECD’s idea of success, I’d hate to see what they consider a failure. Then again, the OECD is based in Paris, so even America’s anemic economy may seem vibrant from that perspective.

The Survey also targets some very prominent tax loopholes, asserting that, “The mortgage interest deduction should be reduced or eliminated” and “the government should reduce further this [health care exclusion] tax expenditure.” If the entire tax code was being ripped up and replaced with a simple and fair flat tax, these would be good policies. Unfortunately (but predictably), the OECD supports these policies as a means of increasing the overall tax burden and giving politicians more money to spend.

Speaking of tax increases, the OECD is in love with higher taxes. The Paris-based bureaucrats endorse Obama’s soak-the-rich tax agenda, including higher income tax rates, higher capital gains tax rates, more double taxation of dividends, and a reinstated death tax. Perhaps because they don’t pay tax and are clueless about how the real world operates, the bureaucrats state that “…the Administration’s fiscal plan is ambitious…and should therefore be implemented in full.”

But even that’s not enough. The OECD then puts together a menu of additional taxes and even gives political advice on how to get away with foisting these harsh burdens on innocent American taxpayers. According to the Survey, “A variety of options is available to raise tax revenue, some of which are discussed below. Combined, they have the potential to raise considerably more revenue… The advantage of relying on a package of measures is that the increase in taxation faced by individual groups is more limited than otherwise, reducing incentives to mobilise to oppose the tax increase.”

The biggest kick in the teeth, though, is the OECD’s support for a value-added tax. The bureaucrats wrote that, “Raising consumption taxes, notably by introducing a federal value-added tax (VAT), could therefore be another approach… A national VAT would be easier to enforce than other taxes, as each firm in the production chain pays only a fraction of the tax and must report the sales of other firms.”

But just in case you think the OECD is myopically focused on tax increases, you’ll be happy to know it is a full-service generator of bad ideas. The Paris-based bureaucracy also is a rabid supporter of the global-warming/climate-change/whatever-they’re-calling-it-now agenda. There’s an entire chapter in the survey on the issue, but the key passages is, “The current Administration is endeavouring to establish a comprehensive climate-change policy, the main planks of which are pricing GHG emissions and supporting the development of innovative technologies to reduce GHG emissions. As discussed above and emphasized in the OECD (2009), this is the right approach… Congress should pass comprehensive climate-change legislation.”

You won’t be surprised to learn that the OECD’s reflexive support for higher taxes appears even in this section. The bureaucrats urge that “such regulation should be complemented by increases in gasoline and other fossil-fuel taxes.”

If you’re still not convinced the OECD is a giant waste of money for American taxpayers, I suggest you watch this video released by the Center for Freedom and Prosperity about two months ago. It’s a damning indictment of the OECD’s statist agenda (and this was before the bureaucrats released the horrid new “Economic Survey of the United States”).

Why Are We Paying $100 Million to International Bureaucrats in Paris so They Can Endorse Obama’s Statist Agenda? is a post from Cato @ Liberty - Cato Institute Blog

We have reached a denouement of sorts in the “blame XYZ companies for causing global warming which caused Hurricane Katrina which damaged my property” lawsuit that I’ve previously discussed and in which Cato filed an amicus brief.  When last I blogged about this, the Fifth Circuit had apparently lost its en banc quorum — a late judicial recusal left only 8 of 16 judges available to hear the appeal — and was figuring out what to do. 

Well, on Thursday the court issued an order determining that it lacked a quorum, but that the panel opinion — the one that allowed the tendentious causation claims to proceed — remained vacated.  The money quote: “In sum, a court without a quorum cannot conduct judicial business. . . .  Because neither this en banc court, nor the panel, can conduct further judicial business in this appeal, the Clerk is directed to dismiss the appeal.”  This means that the district court opinion dismissing the suit stands, though plaintiffs are free to seek Supreme Court review.  Not surprisingly, the three judges on the panel dissented from this order (which means that the order was decided by a 5-3 vote).

The upshot of all this is that the plaintiffs ended up botching their strategy of suing companies whose shares are owned by Fifth Circuit judges.  This clever legerdemain successfully removed seven judges, but that left a quorum of nine.  Of course, had the late-recusing eighth, Jennifer Elrod — who would’ve been expected to rule against the plaintiffs – recused when the first seven did, the court could not have vacated the panel opinion in the first place.  We’ll never know what happened after the court’s prior decision to grant rehearing that caused Judge Elrod to recuse, but at least we’re left with the second-best result: no strong decision from an important federal appellate court, but the reinstatment of the correct decision below.

Global Warming Plaintiffs Hoisted on Their Own Petard is a post from Cato @ Liberty - Cato Institute Blog

Nearly two weeks ago, I blogged about some strange procedural developments in the big global warming case coming out of the Gulf Coast, Comer v. Murphy Oil USA.  On the eve of final briefing deadlines before the en banc Fifth Circuit, an eighth judge of that court recused from the case (we don’t know the reason, but the previous seven recusals were presumably due to stock ownership) and so the court was faced with an unprecedented situation: losing an en banc quorum after previously having had enough of one to vacate the panel decision and grant en banc rehearing in the first place.  We were all set to file our brief when the Clerk of the Fifth Circuit issued an order notifying the parties of the lost quorum and canceling the scheduled hearing — and nothing more.  Out of an abundance of caution, we decided to go ahead with filing late last week.

Again, here’s the situation: Mississippi homeowners sued 34 energy companies and utilities operating in the Gulf Coast for damage sustained to their property during Hurricane Katrina. The homeowners alleged that the defendants had emitted greenhouse gases, which increased the concentration of greenhouse gases in the atmosphere, which contributed to global warming, which accelerated the melting of glaciers, which raised the global sea level, which increased the frequency and severity of hurricanes, which caused the destructive force of Hurricane Katrina. The district court concluded that it lacked the authority to resolve the public debate over global warming and dismissed the case. A Fifth Circuit panel reversed this dismissal, holding that the homeowners have standing to raise some of their claims and that those claims are appropriate for resolution by the federal courts. The Fifth Circuit then granted rehearing en banc.

Cato filed an amicus brief on the energy companies’ behalf, arguing that homeowners lack standing to bring their suit and that the case raises a nonjusticiable political question. Our brief asserts that the homeowners’ claim does not provide a clear causal connection between the harm suffered and any particular conduct by the energy companies, and that the money damages the homeowners requested would not remedy the environmental harm alleged. More importantly, we maintain that political questions such as those surrounding climate change must be resolved by Congress, not the federal courts. Put simply, the Constitution prohibits federal courts from resolving highly technical social and economic policy debates. Permitting plaintiffs to achieve “regulation by litigation” would not only contradict settled Supreme Court precedent, but would betray the separation of powers principles embodied in the Constitution.

The Clerk has since directed the parties to brief the procedural issues surrounding the apparent lost quorum, which letter-briefs came in this week (as a mere amicus, we did not file on this).  I’ll spare you the technical details, but there are three possible ways in which the Fifth Circuit could now rule: 1) the court actually does have a quorum and thus oral argument is resecheduled; 2) the panel decision is reinstated (with an ensuing cert petition appealing that decision to the Supreme Court); and 3) the district court is affirmed without opinion (the same result as when an appellate court vote is tied).  Stay tuned — this is a truly weird denouement to a hugely important case.

Big Global Warming Case Hinges on Weird Procedural Technicality is a post from Cato @ Liberty - Cato Institute Blog

I see that my colleague Sallie James has already blogged on the inherent protectionism in the Senate’s long-awaited cap-and-tax bill.  A summary was leaked last night by The Hill.

Well, we now have the real “discussion draft” of  “The American Power Act” [APA], sponsored by John Kerry (D-NH) and Joe Lieberman (I-CT).  Lindsay Graham (R-SC) used to be on the earlier drafts, but excused himself to have a temper tantrum.

So, while Sallie talked about the trade aspects of the bill, I’d like to blather about the mechanics, costs, and climate effects. If you don’t want to read the excruciating details, stop here and note that it mandates the impossible, will not produce any meaningful reduction of planetary warming, and it will subsidize just about every form of power that is too inefficient to compete today.

APA reduces emissions to the same levels that were in the Waxman-Markey bill passed by the House last June 26.  Remember that one — snuck through on a Friday evening, just so no one would notice?  Well, people did, and it, not health care, started the angry townhall meetings last summer.  No accident, either, that Obama’s approval ratings immediately tanked.

Just like Waxman-Markey, APA will allow the average American the carbon dioxide emissions of the average citizen back in 1867, a mere 39 years from today.  Just like Waxman-Markey, the sponsors have absolutely no idea how to accomplish this.  Instead they wave magic wands for noncompetitive technologies like “Carbon Capture and Sequestration” (“CCS”, aka “clean coal”), solar energy and windmills, and ethanol (“renewable energy”), among many others.

Just like Waxman-Markey, no one knows the (enormous) cost.  How do you put a price on something that doesn’t exist?  We simply don’t know how to reduce emissions by 83%.  Consequently, APA is yet another scheme to make carbon-based energy so expensive that you won’t use it.

This will be popular!  At $4.00 a gallon, Americans reduced their consumption of gasoline by a whopping 4%.  Go figure out how high it has to get to drop by 83%.

Oh, I know. Plug-in hybrid cars will replace gasoline powered ones. Did I mention that the government-produced Chevrolet Volt is, at first, only going to be sold to governments and where it is warm because even the Obama Administration fears that the car will not be very popular where most of us live.  Did I mention that the electric power that charges the battery most likely comes from the combustion of a carbon-based fuel? Getting to that 83% requires getting rid of carbon emissions from power production.  Period.  In 39 years. Got a replacement handy?

Don’t trot out natural gas.  It burns to carbon dioxide and water, just like coal.  True, it’s about 55% of the carbon dioxide that comes from coal per unit energy, but we’ll also use a lot more more electricity over the next forty years.  In other words, switching to natural gas will keep adding emissions to the atmosphere.

Anyway, just for fun, I plugged the APA emissions reduction schedule into the Model for the Assessment of Greenhouse-gas Induced Climate Change (MAGICC — I am not making this up), which is what the United Nations uses to estimate the climatic effects of various greenhouse-gas scenarios.

I’ve included two charts with three scenarios. One is for 2050 and the other for 2100.  They assume that the “sensitivity” of temperature to a doubling of atmospheric carbon dioxide is 2.5°C, a number that many scientists think is too high, given the pokey greenhouse-effect warming of the planet that has occurred as we have effectively gone half way to a doubling already. The charts show prospective warming given by MAGICC.

The first scenario is “business-as-usual”, the perhaps too-optimistic way of saying a nation without APA.  The second assumes that only the US does APA, and the third assumes that each and every nation that has “obligations” under the UN’s Kyoto Protocol on global warming does the same.

As you can plainly see,  APA does nothing, even if all the Kyoto-signatories meet its impossible mandates.  The amount of warming “saved” by 2100 is 7% of the total for Business-as-Usual, or two-tenths of a degree Celsius. That amount will be barely detectable above the year-to-year normal fluctuations.  Put another way, if we believe in MAGICC, APA — if adopted by us, Europe, Canada, and the rest of the Kyotos — will reduce the prospective temperature in 2100 to what it would be in 2093.

That’s a big if.  Of course, we could go it alone. In that case, the temperature reduction would in fact be too small to measure reliably.

I’m hoping these numbers surface in the “debate” over APA.

So there you have it, the new American Power Act, a bill that doesn’t know how to achieve its mandates, has a completely unknown but astronomical cost, and doesn’t do a darned thing about global warming.  Such a deal!

Kerry and Lieberman Unveil Their Climate Bill: Such a Deal! is a post from Cato @ Liberty - Cato Institute Blog

Last October, I blogged about Comer v. Murphy Oil USA, a lawsuit in Mississippi alleging that the defendant oil, coal, utility, and chemical companies emit carbon dioxide, which causes global warming, which exacerbated Hurricane Katrina, which damaged the plaintiffs’ property.  Mass tort litigation specialist Russell Jackson called the case “the litigator’s equivalent to the game ‘Six Degrees of Kevin Bacon.’”  In a brief that Cato was due to file this week, I framed the operative question as, “When a butterfly flaps its wings, can it be sued for the damage any subsequent tsunami causes?”

The plaintiffs asserted a variety of theories under Mississippi common law, but the main issue at this stage was whether the plaintiffs had standing, or whether they could demonstrate that their injuries were “fairly traceable” to the defendants’ actions.  The federal district court dismissed the case but a dream panel (for the plaintiffs) of the Fifth Circuit Court of Appeals held that the plaintiffs could indeed proceed with claims regarding public and private nuisance, trespass, and negligence. 

In my blog post, I predicted that the Fifth Circuit would take up the case en banc (meaning before all the judges on the court, in this case 17) and reverse the panel.  And this was all set to happen — even though eight judges recused themselves, presumably because they owned shares of defendant companies – with en banc argument slated for May 24.  I was planning to head down to New Orleans for it, in part because the judge I clerked for, E. Grady Jolly, was going to preside over the hearing (the only two more senior active judges being recused).

But a funny thing happened on the way to legal sanity.  On Friday, not half an hour after I had finished editing Cato’s brief, the court clerk issued a notice informing the parties that one more judge had recused and, therefore, the en banc court lacked a quorum.  As of this writing, I still don’t know who this judge is and what circumstances had changed since the granting of the en banc rehearing to cause the recusal.  And indeed, by all accounts the Fifth Circuit is still figuring out what to do in this unusual (and, as far as I know, unprecedented) situation where a court loses a quorum it initially had — having already vacated the panel decision.

In short, the court could decide that the vacatur stands and either remand to a (now-confused) district court or rehear the case in a new random panel assignment.  More likely, however, the court will now reinstate the terrible, horrible, no good, very bad panel decision — and we’ll tweak our brief to make into one that supports the defendants’ inevitable cert petition.

All in all, an illustration of the absurdity both of litigating climate change politics in the courts and of forcing judges (including Supreme Court justices) to withdraw from cases for owning a few hundred dollars’ worth of stock.  If that’s all it takes to corrupt federal judges, we have bigger problems than trial lawyers run amok!

Of Butterflies, Tsunamis, and Draconian Recusal Standards is a post from Cato @ Liberty - Cato Institute Blog

• Too bad no one saw this coming: Social Security is now in the red.

• Now that the health care bill is law, you should know exactly how it’s going to affect you, your premiums, and your coverage over the next few years. Here’s a helpful breakdown.

• As the health care overhaul crosses home plate, global warming legislation steps up to bat.

• Appreciate this: Chinese currency rise will have a negligible effect on the trade deficit. For more, read the whole paper.

• Podcast:  “A Plea for Divided Government” featuring John Samples, author of the forthcoming book The Struggle to Limit Government.

Thursday Links is a post from Cato @ Liberty - Cato Institute Blog

• Kids these days…New study shows that most Millennials think “the government should do more to solve problems.” But if you take a closer look at the data there’s also some good news.

• Al Gore’s  latest global warming whopper.

• David Rittgers: Why both the Left and Right are wrong about using drones to counter terrorism worldwide.

• The case for reviving the “Privileges or Immunities” clause.

• Podcast: “Why McDonald Matters” featuring Timothy Sandefur.

UPDATE:

Cato Vice President for Legal Affairs Roger Pilon can scarcely believe it himself: The New York Times got it (mostly) right on the gun case argued today before the Supreme Court, while The Wall Street Journal missed the main point.

In a piece for National Review Online, Pilon discusses a subtle but critical point: Conservatives—including the ones on the Supreme Court—are right on guns, but they’re wrong on rights.

Tuesday Links is a post from Cato @ Liberty - Cato Institute Blog

• How the Tea Party movement can prove its authenticity.

• Why Americans’ first loyalty must be to the Constitution

• “Snowmageddon!” If you’ve been watching the news, recent snow storms both prove and disprove global warming, depending on who you talk to. According to Pat Michaels, both sides are wrong: “The fact of the matter is that global warming simply hasn’t done a darned thing to Washington’s snow. The planet was nearly a degree (Celsius) cooler in 1899, when the previous record was set. If you plot out year-to-year snow around here, you’ll see no trend whatsoever through the entire history.”

• Did last week’s government shutdown actually save American’s billions of dollars?

• Podcast:”Scrap ‘Don’t Ask, Don’t Tell’” featuring Christopher A. Preble.

Tuesday Links is a post from Cato @ Liberty - Cato Institute Blog