Sunday, December 25, 2016

Happy Holidays--No post this week

I'm taking a holiday break and expect to post again on Sunday, January 1.

Sunday, December 18, 2016

The climate trials of the 21st century have begun

We now have underway the first climate trials (or various stages of them) of the 21st century. The overall question in these trials is actually straightforward: Do governments and corporations have an obligation to protect the habitability of the Earth's climate for human populations?

Let's start with government. The first trial (in the United States) was not actually that recent. In 1999 a group of environmental organizations petitioned the U.S. Environmental Protection Agency (EPA) to regulate greenhouse gases. In 2003 the EPA denied the petition. Several states then joined a legal appeal which reached the U.S. Supreme Court. The court decided in 2007 that, in fact, the EPA did have the authority and the obligation to consider seriously how to regulate greenhouse gases.

The agency then offered a regulation plan which was challenged in court. In 2014 the Supreme Court found the EPA plan acceptable with a few minor tweaks.

This kind of legal battle is really a plain vanilla regulatory fight about what a particular government agency can and should do under existing laws. But a more sweeping type of legal battle is now unfolding, one that invokes a much broader obligation of the government to make the climate safe for future generations.

In Washington state a group of young people between the ages of 12 and 16 sued the state to force it to implement a greenhouse gas emissions reduction plan. The state has since come up with a plan that the attorneys for the children say is inadequate. They are in court once again.

Washington isn't the only state feeling the judicial heat. A group called Our Children's Trust is pursuing legal action in several states (including the case cited above) and in federal court. The federal case is proceeding to trial after the government failed to get it dismissed. The aim of the federal plaintiffs is to seek broader protection in policies across the government, not in just one agency.

Some legal experts give the federal case little chance of succeeding even if the plaintiffs win at trial. Appellate courts and the Supreme Court are unlikely to buy the argument that there is a general obligation on the part of the government to regulate greenhouse gases that is judicially enforceable outside of specific legislation. But, there will be an airing of scientific evidence during the trial and an attempt to expand existing legal doctrines to cover the unique challenges posed by climate change. This case is the first of its kind at the federal level related to climate under the so-called public trust doctrine.

Outside the United States in the Netherlands, a court ruled that the government of the Netherlands must make deeper cuts in greenhouse gas emissions. Similar legal efforts are underway in Belgium and Switzerland.

It's worth remembering that when the first lawsuits against tobacco companies were filed in the United States, few believed they would ever succeed. It took time, but ultimately the tobacco companies were made to pay for damage to public health. And, their advertising was restricted as part of a settlement with state and federal governments. Private lawsuits also eventually found success.

Is there room for private climate-related lawsuits seeking damages? Maybe. If there is general obligation to protect the public from the effects of climate change brought about by greenhouse gases, then it seems logical that those emitting the greenhouse gases might be held liable for damages. A case involving a Peruvian farmer suing a large German utility has just gotten underway. A win, even for the modest damages the farmer is seeking (17,000 euros), could open the floodgates for thousands, perhaps millions more plaintiffs like him. That makes this case a serious financial threat to industries that extract and/or burn large amounts of fossil fuel.

There is yet another kind of climate-related case that is emerging, one that involves the fiduciary responsibilities of fossil fuel companies to inform their investors about threats to their businesses. An investigation of ExxonMobil Corp. initiated by New York State Attorney General Eric Schneiderman is trying to determine whether ExxonMobil hid what its own research discovered about climate change as far back as the 1980s and in doing so misled investors about the risks to the oil and gas giant's business.

Many corporate fraud probes begin in New York State because the Martin Act which governs securities fraud there doesn't oblige the attorney general to assert intent to defraud, only that investors were misled by statements issued by a company. In contrast, Federal securities fraud law requires establishing intent--that is, what is going on in the minds of the people making material misstatements--something that is much harder to demonstrate.

Whether ExxonMobil and possibly other large fossil fuel companies end up paying fines for any such fraud, there will now be a thorough airing of what these companies knew about climate change and whether their understanding contradicted the campaigns they funded either to deny the reality of human-induced climate change or to confuse the public and policymakers about the causes and trajectory of climate change.

This development has a remarkable similarity to what happened to tobacco companies. Those companies were forced to divulge what they knew about the dangers of smoking from their own research. Of course, this was kept from the public as the companies continued to insist that smoking wasn't linked to health problems.

It turns out that the Martin Act also allows for criminal sanctions. But it seems unlikely that anyone will go to jail in connection with the current investigation of ExxonMobil.

That does, however, beg a very important question: Can individuals be prosecuted for misleading the public about the dangers of climate change? It seems unlikely that any case of this kind will be mounted in the near future. In the United States the First Amendment problems with such a case are obvious. But I can imagine that if climate change continues at its current accelerating rate, there might be a clamor by, say, 2030 for the prosecution of prominent climate-change-denying businessmen and politicians.

It is doubtful that such prosecutions would get very far in the United States or many other countries under current law. But it seems plausible, even if unlikely, that an international tribunal, perhaps patterned after South Africa's Truth and Reconciliation Commission, might take up the task of investigating individuals who have been egregiously obstructionist toward action on climate change. Such a commission would seek to bring about so-called restorative (rather than retributive) justice.

That would be a healing outcome. I can imagine much worse.


Sunday, December 11, 2016

The post-fact world and the need for a new consensus

In a piece I wrote four years ago I asked whether we were moving toward a fact-free world. Now, I wonder if that world has arrived.

The media is full of opinions and opinions parading as facts and facts that are not facts and sometimes just crazed fantasies posing as facts. We are now having a public discussion about so-called "fake news" and whose news is really fake. I'm thinking of rumors circulated on the internet that a pizza parlor in Washington, D.C.was a cover for a child sex ring run by Hillary Clinton and her campaign manager.

There was, of course, absolutely no basis for this wild and on-its-face ridiculous accusation. And yet, a rifle-wielding man who drove in from North Carolina shot up the place. He came all that way believing the story was fact because, well, he read it on the internet. Luckily, no one was hurt.

The bar for facticity for many people has been lowered to ground level it seems. Anything they want to be a fact magically becomes a fact.

Now this is not to say that it is easy to determine what is or is not a fact. When we say "fact," we usually mean something that is true. But that just begs the question of how we determine whether something is true.

We do this in one of two ways. Either we witness something ourselves or we take something to be true based on the authority of others. We may observe some act or process in society or nature and say that we saw something with our own eyes and therefore know it to be true. There is unfortunately the small problem of eyewitness accounts being frequently mistaken. And, there is the problem of trying to interpret what we saw correctly and explain it to others accurately.

Then there are facts which we accept as facts from others because they are friends who have proven reliable in the past or because we believe the source to be a fair-minded and well-informed expert in a particular field. Climate scientists come to mind.

Climate scientists from around the world have arrived at a consensus that human activities are causing the lion's share of warming on planet Earth. They don't make this claim lightly. They have examined the Earth's temperature for decades and been able to estimate temperatures very far back into the past based on ice cores, tree rings and other indirect evidence. And, they can quantify the things that humans are doing that cause warming. They check and recheck and check again against new information that comes in on an almost daily basis from around the world.

The facts of climate change are the most exhaustively examined scientific facts ever in the history of the world. Thousands upon thousands of scientists from disparate disciplines have compared data and conclusions over decades.

Now, I can know a little something about climate change from observation as I've noticed more hot days in summers and both generally warmer, dryer winters and now also more frequent very deep freezes in the United States due to a meandering jet stream, an effect predicted by climate scientists.

And, here is where simply observing isn't enough. To understand how both could be true, one has to understand the complex movements of so-called polar vortexes in order to place them in the climate change narrative. Not even climate scientists agree on the link. But there is now growing evidence. Such context explains why what may turn out to be the warmest November ever could be followed by a deep freeze in December and still fit the climate change narrative.

Here is where people can go off the rails. Because the society in which we now live has become so complex, we must routinely rely on the specialist knowledge of others. When we flick on a wall switch, we don't need to know how electricity works or the power plant that produces it or the coal mine that supplies the power plant. We can leave that to others and trust that they know how to get electricity to us.

Why do we trust them? Because the electricity rarely fails to arrive and when it doesn't, the outage typically lasts no more than an hour or two. (There are exceptions, of course, during large-scale natural disasters or in some places due to destruction from war or the unreliability of the local electric utility.)

For complex phenomena such as climate change, how can we judge except through information provided by experts? We can check their credentials and the type and amount of their research. We can see what their colleagues say about their work. This is complicated and difficult even in the age of the internet since most of what these experts write will likely be hopelessly incomprehensible to us.

In a era that has become increasingly distrustful of experts--and not just climate experts, but experts in economics, trade policy, foreign policy, banking, medicine, law and many other areas--we are seeing results that we don't like (at least in some areas) when we follow or are forced by law or policy to follow the advice of the experts. We have come to believe that these experts are often merely self-interested profiteers or hired spokespersons for wealthy interests who are trying to deceive us.

Once one starts down this path, it is hard to distinguish between intellectually honest pronouncements, say, from climate scientists, and mere boosterism on practically any topic from a think tank hack who has a PhD but who is merely repeating his or her paymaster's views.

This gets to the core of the problem. It doesn't really pay to be intellectually honest any more. In the hyper-partisan environment we now find ourselves, giving an inch to the other side means to many that they will end up losing the argument. Debate is no longer a means to find the truth by testing ideas against the questions and criticisms of others; it is mostly propaganda designed to win no matter what the truth is.

That has often been the case in the past when it comes to partisan political battles. But we have previously reserved a special place for pronouncements from scientists whom we believed were above the partisan fray and who pursued the truth regardless of where it led.

That faith in science is gone for a significant part of the population. Some of the propagandist think tanks have noticed that scientific investigation has social and political aspects like most pursuits in life. This, in the propagandist's view, moves scientists--the ones the propagandist disagrees with, not the ones he or she agrees with--into the realm of self-interested parties who cannot be intellectually honest.

So debate is now not a process that helps lead to consensus, but rather it is often used with the intent of annihilating the other side. And yet, consensus is how we often come to accept facts we cannot observe or determine for ourselves.

It is this lack of consensus which provides a fertile field for untethered fantasies about what is true. What we can say about consensus positions, however, is that they always turn out to be wrong in some direction and must be adjusted to the times and the current state of our society and knowledge. This does not make them useless. Far from it, consensus positions form the basis for common action.

Here is the nub of the issue. Consensus positions don't have to be 100 percent correct in every detail in order to be useful and even life-saving. We can be approximately correct about climate change and do useful things to address it without being 100 percent certain about its course and severity. We are merely being prudent, and our prudence should match the potential severity we are able to discern based on our current understanding. The vast majority of climate scientists believe that climate change is a severe threat and that we should do a lot right away and on into the future to mitigate it.

Those who oppose action often do so based on the misapprehension that public policy is somehow based on certainty. The fact that public policy is NEVER based on certainty should be burned into the brain of every citizen. We always leap together into a world that is only partially understood. Intellectually honest discussion in which doubt and changes in understanding are actually welcomed are the best way to approach a rapidly evolving world where uncertainty is everywhere.

If some people demand certainty before action, then we should ask them to provide certainty that our current trajectory will lead to the happy destination they describe. Those demanding certainty cannot provide certainty and will not provide a warranty--that is, a promise to pay for damages if they are wrong. This shows you that they are, in fact, quite uncertain.

It turns out that a lot of the facts that we believe are actually the result of the consensus understanding of others, possibly the result of careful and intellectually honest research by experts or possibly the result of a conscious or unconscious self-interested campaign of propaganda designed to look like it is the product of such a consensus.

How does one proceed when we must always live with uncertainty? Here we must understand that the major debates of our age over climate, resource limitations, economic inequality, pluralism, terrorism and war have their roots in the changes we humans have inflicted on the biosphere. Climate change is now implicated in major conflicts such as the one in Syria.

The struggle over finite resources such as oil cannot be separated from the continuous turmoil in the Middle East. People fear there will not be enough for everyone to prosper, and those with power grab as much wealth as they can. And, when the powerful find the rules inconvenient, they use their influence with government to change those rules in order to continue their grab for wealth or to get the government to go to war on their behalf--sometimes with results that are the opposite of what is intended. The Iraq War comes to mind.

How do we move forward in such a poisoned and difficult social and political environment? The answer has to be to bring about a new consensus. It turns out the felicitous functioning of society depends consensus. But there can be no consensus where there are no recognized and agreed upon facts. And, facts themselves very often depend on the consensus of experts whom we do not know. In short, without facts there is no consensus and without consensus society can break down into anarchy and conflict.

I'm not saying that this is our destination. I'm only pointing out that finding a consensus is an important step in avoiding such a destination. There are glimmers in recent elections around the world, however troubling they may be, that the old consensus has broken down.

Globalism--that is to say worldwide economic integration mediated by large corporations--does not enjoy the support it used to. The vast gulf between the rich and the poor is being noticed. The destruction of the middle class is being noticed. Senseless and destructive wars that seem to accomplish little are being noticed. The economic devastation being visited on the rural areas and small towns around the world by the forces of globalism is being noticed.

Forging these inchoate understandings into a coherent narrative that includes something about our connection and dependence on the biosphere is the critical task now before us. I don't have that coherent narrative up my sleeve ready to deliver magically to my readers.

The new narrative we need will not come from a savior or a strongman. I think it will be the work of many who see a part of the narrative and articulate it so that others can understand. I believe that narrative will and must be built organically by all those dedicated to creating a just and livable world for us and for those who come after us.


Sunday, December 04, 2016

Who's afraid of a recount?

Why all the fuss about the recounts which Green Party presidential candidate Jill Stein is asking for in three states, Michigan, Wisconsin and Pennsylvania? After all, every political professional knows that a vote recount almost never changes the outcome.

The professionals in the Green Party know that. The professionals in the Clinton campaign know that and have said they don't expect the recount to change anything. And, the professionals (if there are any) in the Trump campaign know that. I was a consultant to a candidate who sought two recounts in two very close elections. The recounts barely budged the totals.

There is the rare exception, of course. Al Franken became a U.S. senator from Minnesota because of a recount. But, it's hard to name another officeholder off the top of one's head who is in office today because of a recount.

As it turns out, there are two things which are driving the fear and loathing in the two major parties (even though the Clinton campaign has now said it will participate in the recounts).

First, there is envy. Jill Stein and the Green Party have found a way to increase media coverage of the party and its agenda by an order of magnitude. And, that's just so far. Whatever you think of Stein and her party, they have pulled off a masterstroke of publicity. They will now get weeks of free coverage in all the major and minor media and much of the blogosphere.

It's no puzzle why the Trump administration doesn't want a public discussion of Green Party priorities on climate change and renewable energy when the administration is planning to pull out of the Paris climate accord, reduce support for renewable energy and roll back regulation of the fossil fuel industry.

For the Democratic Party establishment, the Green Party's more thoroughgoing devotion to environmental policies and social and economic justice could over time lure dissatisfied Democrats into the Green Party fold.

But there is another reason major parties don't like these recounts. They call attention to the flawed voting infrastructure in the United States. In a country where politicians and other civic leaders constantly tell us that "every vote counts," we are about to see that not every vote does count.

There are problems with the reliability and integrity of the machines that do the tabulating. Some electronic voting machines are easy to hack. There are problems with some election procedures: burdensome ID requirements, lack of same-day registration, and lack of mail-in voting which provides by far the easiest, most convenient and most thoughtful way to vote. (I know because I live in Oregon which has mail-in balloting only). There is the inherent conflict of interest in having partisan officials oversee vote counting. There are attempts to suppress voting through intimidation and disinformation. And, there is the lack of nationwide standards to insure that every vote really will count.

With the two major parties enjoying a duopoly on political power, the current system is largely to their liking. Jill Stein wants to make them uncomfortable.

Another development in the 2016 U.S. elections that has this duopoly concerned is that Maine adopted via referendum what is called ranked voting. It is also known as preference voting and instant-runoff voting. This will allow Maine voters to rank candidates for an office in order of preference. If no candidate for a particular office wins more than 50 percent of the vote as a first preference, then the candidate with the lowest number of votes is dropped. If a voter's first ranked candidate is dropped in the first round, then the voter's second preference is counted in the second round. If no candidate receives more than 50 percent in the second round, then the process continues until one does.

As a practical matter this means that progressive voters could rank a Green Party candidate as their number one choice without splitting the left-leaning vote in a way that allows a right-leaning candidate to win with less than 50 percent of the vote. Right-leaning voters could choose, say, a candidate from the ultra-conservative Constitution Party without splitting the right-leaning vote in a way what would allow a left-leaning candidate to win with less than 50 percent of the vote.

Ranked voting will mean more diversity of parties and candidates and more possibilities for minor party candidates to win office rather than merely play the role of spoilers. Look for ranked voting to spread to other states in 2018 and beyond.

This election has ushered in an era of extreme volatility and fluidity in American politics. The recounts and the adoption of ranked voting in Maine are just two examples. I expect there to be hundreds more examples in the coming years.
