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the law and global warming

By Obi

global warming has disrupted the lives of dozens of types of animals, birds and insects in the united states and will soon make the arctic nearly unrecognizable, according to two reports released this week.

the reports document sweeping "you-can-see-them-with-your-own-eyes" ecological changes underway and offer dire predictions of massive species extinctions, an elevation of sea level by 3 feet and widespread disruptions to earth's life-support systems.

this from wired.

i would counsel you not to take too seriously any information you get about weather science from any magazine or newspaper of general circulation.  science magazine is a good source, in my experience, but you'll have to join up in order to get at the articles. 

you know, of course that global warming is caused by the increase in the presence of greenhouse gases in the earth's atmosphere due to human activity, and you know that this "greenhouse effect" will lead to stress on and extinction of animal and plant species, cause long-term flooding of low-lying coastal areas and make parts of the earth uninhabitably hot.  you know these things because that is the standard dogma.  also, perhaps, because it makes sense that burning of fossil fuels would increase the proportion of greenhouse gases over what it would be if we were burning no fossil fuels at all.  and finally because you feel personally guilty over the fact that you drive an s.u.v., mini-van or other gas-guzzling vehicle despite knowing and sensing these things.

this internalization of standard dogma and common sense make it easy for us to create syllogisms.   global warming is undesirable.  human activity is causing global warming.  therefore human activity is undesirable.  beautiful!  now we're talking about a problem for the lawyers.  what is law about if not for curbing undesirable human activity?

fortunately or unfortunately, we have no world government.  if we did, we wouldn't need the kyoto protocol.  the world government would simply render unlawful enough human activity to bring the "anthropogenic" portion of the earth's production of greenhous gases down to a "sustainable" level.  (I love that word, "sustainable".  It says so much, and means so little.  if you think otherwise, post your definition.)

without a world government, it's up to the world's people to band together in a unified program to reduce greenhouse gases that results in local conforming legislation.  that, of course, is what the kyoto protocol is supposed to do.  in line with the standard dogma, you are likely to think that the u.s. should have ratified the k.p. by now.   after all, even the russians have ratified it.  (of course, putin was strong-armed into ratifying kyoto by the e.u. nations, who refused to support russia's entry into the world trade organization unless russia was similarly burdened by kyoto.  in addition, russia's emissions of greenouse gases today are only 70% of what the soviet union's emissions were in the base year, 1990, and countries conforming to the k.p. need only reduce their emissions to 5% below their 1990 figure within the next 7 years, which means in the interim russia can sell its "emission credits" to other signatory nations, making money and still being in compliance.)

the u.s. hasn't ratified kyoto and has no internal implementing legislation conforming to kyoto.  it does, however, have numerous programs aimed at reducing greenhouse gases.  are these sufficient?

sufficient to do what?  in order to have laws that make sense, we need to understand what needs to be accomplished.

here are some relevant facts:

the greenhouse effect is not a bad thing.  if it weren't for the greenhouse effect, the world would be a frigid place.  the  greenhouse effect is mother nature's way of keeping the surface of our beautiful planet habitable.  when energy from the sun (our largest nuclear power plant) strikes the earth's atmosphere, about a quarter of it is reflected back into space by clouds.   another fifth is absorbed by clouds, gases  (including greenhouse gases) and particles in the atmosphere.  about 4% is reflected back into space after striking the surface of the earth.

the portion of the sun's earthbound energy that actual reaches the surface heats the surface.  the surface emits that heat into the atmosphere, but most of it doesn't make its way into space.  most of it is absorbed by greenhouse gases, and we should be grateful that it is, because that energy heats the atmosphere.  despite this phenomenon, of course, there have been repeated "ice ages" on our planet, suggesting that periodically the greenhouse effect is insufficient to keep the earth from freezing up.

natural greenhouse gases include water vapor (rarely considered in policy discussions of global warming, though it is responsible for most of the greenhouse effect), carbon dioxide (which is said to account for over half the change in intensity of the grenhouse effect), methane and nitrous oxide.

believe it or not, the k.p. says nothing about reducing the amount of water vapor in the air.   nada.  niente.  kotonashi.   

so let's start with carbon dioxide.  it's a by-product of a number of natural processes: warm tropical water, volcanoes, forest fires, and respiration of living things.  in other words, when you exhale, you're contributing to global warming.  the average person exhales about 500 wine bottles full of co2 in a given day.  multiply by 6 billion people, that's 3 trillion wine bottles each day or over a quadrillion wine bottles per year from human breathing alone, never mind the rest of the animal world.  does this suggest we should mandate family planning  in order to avoid global warming?

carbon dioxide comprises 39/100000ths of the atmosphere, up from an estimated 28/100000ths before industrialization.  what concerns those folks who are concerned about this change of 1/10000th in the comoposition of the atmosphere is that co2 can absorb far more energy than the major components of the atmosphere (nitrogen and oxygen atoms).  they say that it is the trace greenhouse gases like co2 and water vapor that are responsible for the greenhouse effect.

the accumulation of co2 is ameliorated by natural "sinks", large-scale gaian processes that take co2 out of the air:

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trees inhale co2. and are a major factor in removing it from the atmosphere, as are other wild plants and crops.  (indeed, it some estimate that rising temperatures and co2 levels within the current estimates for global warming are quite good for crop yields, and for plants generally.  mother nature seems to agree.  in her yearning for homeostasis, as the percent of co2 in the air increases she magically increases the number and size of trees.  most trees are in the northern hemisphere, and in the spring, when leaves emerge and plants begin to photosynthesize, the co2 content of the air in that hemisphere decreases.  the process reverses in the fall when leaves decay, releasing co2 into the atmosphere again. 

plant more trees, remove more co2.  so should we legislate the planting of trees?  maybe, but it appears that an extremely energetic, worldwide planting program would solve no more than 10% of the problem.  and of course, u.s. law can't reach brazil and other countries in which forests are being cut down.  the kyoto protocol, by the way, allows nations to meet their emissions targets by planting forests.http://csmonitor.com/cgi-bin/durableRedirect.pl?/durable/1999/12/02/fp17s1-csm.shtml

, which may or may not be a good idea; but tree-planting is a practice deeply ingrained in the human psyche.

the ocean is also a "sink" for co2, absorbing about 2 billion tons net per year.  there are 50 times as many carbon atoms in the ocean as in the atmosphere.  there have been proposals to "sequester" atmospheric carbon dioxide at the bottom of the ocean where, at low temperature and high pressure, it would solidify into a blob denser than the surrounding sea water, never (in theory) to rise again.  norway is already pumping 1 million tons of liquid co2 into depleted natural gas aquifers in the north sea.  as with any solution to global warming, this one has encountered objections.

now let's turn to water vapor.  production of water vapor from human activity is a tiny portion of the earth's production of water by evaporation.  given the profound effect that water vapor has on the greeenhuse effect, it would be fair to ask whether by human intervention we could decrease humidity caused by natural forces, and whether if we could do so, we should do so.  but the question is not asked. 

the basic premise of the global warming theorists is that as the earth's temperature warms, there'll be more evaporation, resulting in more water vapor in the atmosphere, resulting in more warming, and an out-of-control spiral.  however, water vapor is the source of cloud cover, which can cut against the global warming theory, as we will see momentarily.

i won't bore you with a discussion of the lesser greenhouse gases.  they don't matter much at all.

of all the factors that determine the earth's climate, the ocean is probably the most prominent.  predictions of global warming and its potential effects are based on computer modeling, sensors, core samples and assumptions.  though there is no lack of assumptions in climate forecasts, there is a decided lack of sensors, and probably core samples as well.  without data, the models are essentially left to run amok.  only within the past 15 years have climate models been able to produce viable simulations of ocean/atmosphere interactions, but the extent to which those models rely on assumptions rather than data renders their result highly speculative.  without a better understanding of those interactions, climate models are living example of the computer maxim, 'garbage in, garbage out'.

net net:  those who propogate the dogma really don't know any better than you or i whether global warming will affect ocean dynamics such as the thermohaline conveyor belt, or the el nino oscillator or the aleutian low (which dominates weather in the u.s.), or, if they were affected, how the climate would react.

nor do the computer models deal well with cloud cover.  global warming might increase cloud cover, or it might not.  more cloud cover might trap heat and increase global warming, or it might block sunlight and decrease global warming.  we can't produce models that take proper account of cloud cover because we can't predict either the effect of global warming on cloud cover or the effect of cloud cover on global warming.

how can we legislate in the face of that degree of uncertainty?  what, you say we do it all the time?  maybe so, but for example are the kyoto emission restrictions necessary?  helpful?  harmful (e.g., by reducing crop yields when hunger is still a major problem in the world)?  should the restrictions be cut even further?  or loosened?  should china and india (over a third of the world's population and rapidly industrializing) benefit from a long-term exclusion from the restrictions? 

there's no doubt that without much more research, we won't have a sound basis for legislating.  in that respect, president bush is quite right.  but the situation is far worse than the general pubic realizes.  there is substantial disagreement in the scientific community as to whether we are experiencing global warming today or not; less so about whether human activity will some day cause it or not. 

finally, we are living in an ice age.  it's easy not to notice, if you live in temperate, tropical or equatorial zones, but it seems to be true.  we are enjoying an 'interglacial", a thaw in which glaciers have receded and continue to recede.  at some point, glaciation wiil assert itself again (it is a cycle characteristic of the earth's climate), and the ice sheets will move toward the equator again.  that point may come soon:

global warming will simply delay the inevitable, clark said, because it actually should be about time for earth to enter its next ice age.  there's a fairly well-defined pattern of about 10,000-year-long interglacial periods followed by 90,000-year-long ice ages, and the current interglacial period is already more than 10,000 years old.

would global warming delay that advance, as the quote suggestsd, or (e.g. by melting ice caps, and lowering the temperature of the oceans or ) would it accelerate the  advance?  nobody knows

the scientific study on which the kyoto protocol is based is the second assessment report: climate change 1995, prepared by the  intergovernmental panel on climate change ("ipcc)".  that study was not met with universal acclaim. one of the most prominent critics, dr. frederick seitz, president emeritus of rockefeller university and past president of the national academy of sciences, has publicly denounced the ipcc report, writing "I have never witnessed a more disturbing corruption of the peer-review process than the events that led to this ipcc report".  undaunted by this and much other criticism, the ipcc went on to publish a third assessment in 2001.  in that document the ipcc admitted that "no systematic analysis has been published on the relation between mitigation and baseline scenarios"; in other words, there is no assurance that mitigating the presence of greenhouse gases is a better idea than doing nothing.

in the u.s., the national academy of sciences published  a report on global warming that emphasized the inadequacy of our understanding of climate dynamics and urged the funding of programs that would improve that understanding.       

what can we conclude about law and global warming from this fairly confused situation?  one thing we can safely conclude is that the standard dogma is a misleading shorthand that does not in and of itself provide a sound basis for policy-making at a national or international level.  (a corollary to that conclusion is that the kyoto protocol can't be proved to be a good idea.)  we can certainly conclude that legislating and funding more rigorous study of climate prediction is desirable.  we can conclude that glaciation is likely to recur, and just as we spend money trying to figure out how humans can live on the moon or on Mars, it would probably be a good idea to spend money trying to figure out how humans can live on a glaciated earth.

ultimately -- and it would be fair to disagree with me on this -- it would be reasonable to conclude that human activity can change to some extent some of the factors that seem to effect climate dynamics (and may already have done so at least regionally, e.g. increased humidity in phoenix, arizona), and that legislation or treaties that encourage treading lightly on the planet would be prudent, even if their climatological consequences are unknown, so long as legislative or treaty strictutres do not  impose undue or inequitable burdens on some or all of the world's peoples. 

 

 

 

Full post as published by TechLawyer on November 11, 2004 (boomark / email).