RSS Feed MenuWhile former Vice President Al Gore has argued for a full governmental assault on global warming, his own lawyer from Bush v Gore, has emerged as one of the most respected voices opposed to judicial involvement on climate change.
Professor Professor Laurence H. Tribe is a liberal scholar (he was a judicial advisor on President Obama’s campaign). However, he also co-authored a Working Paper entitled Too Hot for Courts to Handle: Fuel Temperatures, Global Warming, and the Political Question Doctrine. After examining three climate-change cases, he came to the conclusion that courts are guilty of “government by injunction” when they rule on climate change and impose penalties.
Tribe argues it is a political question for Congress:
“Global climate change raises such manifestly insuperable obstacles to principled judicial management that its very identification as a judicially redressable source of injury cries out for the response that the plaintiffs have taken their ‘petition for redress of grievances’ to the wrong institution altogether.”
That is a strong statement coming from one of the country’s leading liberal thinkers.
It’s also a more publicly tasteful way for Republicans to handle the issue of climate change. According to a recent Washington Post report, 72 percent of Americans believe in global warming. To deny the science of climate change is perceived as backwards by most Americans. (Especially among the college educated and young Americans.)
Rather than denying the science of climate change, Republicans should protect economic liberty by adopting Professor Tribe’s argument and address climate change in the Congress. Thankfully, climate change legislation (such as cap and trade) tends to die in Congress.
Currently, climate change regulation has been relegated to executive branch agencies such as the EPA. The federal circuit and appellate courts enforce these regulations. If the Republicans remove climate change questions from the hands of judges, rein in executive agencies, and place the debate in Congress, Democrats will be forced to go through a very public front door if they want to impose unreasonable demands on the American people for the sake of climate change.
Professor Tribe’s paper can be found here.
JJWFromME // Feb 23, 2010 at 7:49 pm
” Thankfully, climate change legislation (such as cap and trade) tends to die in Congress.”
So the American people are wrong that this is a problem?
Some simple questions: Is this a problem or not? If so, what is its scope?
One thing I notice is that Republicans always elide evaluation of the problem itself and go straight to criticizing the policy. No sense doing due diligence on the science when you can just avoid all that and generate populist outrage on the policy alone, right?
Think about it. It’s the strangest thing. You read Republican pieces on this issue and they all rant about Democratic policy while *never*, *never* providing details on how they came to their evaluation of the problem. No books referenced to show where they stand on the scientific issues, or what authorities they relied on to come to their conclusions. Often, the whole issue is dismissed with just a sneer.
Often I read these pieces with the thought “where are your footnotes? Give me something… even just a book by a wingnut that shows how you got to your conclusions. It’s like the intellectual accountability is non-existent.
If Republicans did real due diligence and studied the science, I would welcome any solution they offered. Maybe cap and trade is worthy of a rant–but what are you offering in its place?
JJWFromME // Feb 23, 2010 at 7:54 pm
By the way, just reading Bjorn Lomberg and calling that due diligence doesn’t cut it:
http://ase.tufts.edu/gdae/Pubs/rp/Ackerman_CoolIt.pdf
JJWFromME // Feb 23, 2010 at 8:11 pm
Well maybe “never” is a bit of an exaggeration. But it’s rare. I think it’s because it’s a conversation they’d prefer not to have, for good reason.
balconesfault // Feb 23, 2010 at 8:45 pm
This really does seem non-sensical:
Rather than denying the science of climate change, Republicans should protect economic liberty by adopting Professor Tribe’s argument and address climate change in the Congress. Thankfully, climate change legislation (such as cap and trade) tends to die in Congress.
So the idea is that because young voters consider climate change is important, Republicans should kill any climate change legislation very publicly in the Congress?
What are you – a Democratic strategist?
Paleoconservative // Feb 24, 2010 at 6:39 am
Richard Perle, Paul Wolfowitz, Michael Ledeen, Irving Kristol, Charles Krauthammer, Elliot Abrams, David Wurmser, Larry Franklin, Douglas Feith, Albert Wolhstetter, Leo Strauss, John McCain, Joe Lieberman, Ben Bernanke, Sean Hannity, Glenn Beck, William Safire, Dick Cheney, Jeane Kirkpatrick, Patrick Moynihan, Henry Scoop Jackson.
All roads lead to Israel.
“Whose War?” By Pat Buchanan
“Sharon’s War” By Robert Novak
1997: “A Clean Break: A New Strategy For Securing the Realm”
1992: Defense Planning Guidance
Remember the USS Liberty.
AMERICA FIRST
sinz54 // Feb 24, 2010 at 9:45 am
JJWfromME: ” Thankfully, climate change legislation (such as cap and trade) tends to die in Congress.”
So the American people are wrong that this is a problem?
Some simple questions: Is this a problem or not? If so, what is its scope?
Polls show that most Americans still agree that climate change is real–but that percentage has dropped as a) the costs of fixing the problem become clearer and b) the current economic downturn has Americans turning against any more economic burdens being placed on them.
The reason why climate change legislation continues to die in the Senate is the usual one: All states are equal in the Senate, and states with heavy dependence on oil or coal (either as producers or as consumers) fight hard against any restrictions on the use of those fuels.
Republican senators from Red States constitute a powerful bloc against any attempt to fight climate change. The GOP base takes it as an article of faith that global warming is a hoax, and will oppose any Republican candidate in the primaries who asserts that global warming is real. Where they got this idea from, I do not know.
But this issue is so important that President Obama should address the nation on it, and tell the truth for once.
Cap-and-trade is NOT a “jobs bill.” The jobs lost in the coal and oil industries won’t be compensated by huge numbers of jobs for making solar panels and whatnot. High-tech industries like solar are much less labor intensive than coal mining.
Any program to cope with global warming is a kind of insurance policy against a catastrophic future. And as you know from your own personal household budget, insurance premiums are not an investment. The money you pay for premiums is gone forever. Unless you have to file a claim, which usually implies some disaster has hit you.
Cap-and-trade has proven to be a disaster in Europe where they tried it. Companies engage in all kinds of fiddling and finagling when trading carbon credits, while the real cost of compliance is hidden from the public. The result is that Europe has failed to meet their targets for restriction of greenhouse gas emissions.
America should enact a simple, clean, carbon tax. You use fossil fuels, you pay a tax, just like the gasoline tax levied at the pump now.
The tax rate will be visible, and it can be adjusted up or down depending on what the scientists discover about the probability and magnitude of the problem vs. what Americans are willing to pay. Just like any other type of insurance.
sinz54 // Feb 24, 2010 at 9:54 am
JJWfromME:
Of course anthropogenic global warming is real. The science is convincing, though a few scientists disgraced themselves with their arrogance toward skeptics.
balconesfault // Feb 24, 2010 at 10:03 am
High-tech industries like solar are much less labor intensive than coal mining.
I doubt that. There are about 83,000 jobs nationally in coal mining, and another 31,000 in coal transport. I believe that a full on campaign to install solar panels on every optimal rooftop in America would take a decade or more, and require at least that large a workforce.
Stewardship // Feb 24, 2010 at 10:06 am
The new issue of C.E.P. (Conservative Environmental Policy) Quarterly (http://www.rep.org/C.E.P.Quarterly_winter10.pdf) focuses on Ronald Reagan’s conservation accomplishments, including The Montreal Protocol and his administration’s early work on emissions trading.
Our party leadership and the self-anointed leaders of the conservative movement need to first admit that there is a problem–cutting through the “smoke” of hundreds of millions of dollars being spent by coal and oil companies in a tobacco-esque attempt to deny and confuse the public. Then, our leaders need to study Reagan’s leadership and style, and start putting forth productive ideas to solve the inter-related problems (climate change, national security, energy security, foreign trade, dollar flow to OPEC, lack of innovation, etc.)
Playing politics with the solution is fine, as long as you have a solution to compare and contrast to the loyal opposition. In this case, our leaders are operating under the delusion that “liberals are nuts” is a complete policy statement.
kevin47 // Feb 24, 2010 at 3:51 pm
“One thing I notice is that Republicans always elide evaluation of the problem itself and go straight to criticizing the policy.”
I disagree. If anything, Democrats accuse Republicans of being neanderthals who reject settled science and perpetuate false science at the behest of lobbyists (the commenter above does precisely this). In my experience, Democrats are content to establish the fact of the problem, and pretend that the problem merits any and all solutions simply by virtue of being a problem.
The political issue is about policy. Politicians can’t change the science (we’ll leave that to the good people at the University of East Anglia), and so they are left to formulate policy based on the science.
“Maybe cap and trade is worthy of a rant–but what are you offering in its place?”
If nothing we can do will generate a substantial return on investment, then we should offer nothing by way of governmental intervention. The premise of your question presupposes that government must do something.
If I cede your above argument, that Republicans make no effort to understand the science behind global warming, then I can assume that Democrats have looked at the science, and believe Cap and Trade to be the best possible solution. If that is the best possible solution, then we shouldn’t do anything at all.
kevin47 // Feb 24, 2010 at 4:16 pm
“The tax rate will be visible, and it can be adjusted up or down depending on what the scientists discover about the probability and magnitude of the problem vs. what Americans are willing to pay. Just like any other type of insurance.”
The whole purpose of cap and trade is to hide costs. If people are presented with a straightforward tax, they will reject it or, at minimum, they will want to know what they are getting for their money. A trillion bucks for a 2% reduction in carbon emissions while China is allowed a free pass isn’t going to fly.
Plus, the opaque nature of cap and trade will facilitate plenty of giveaways to special interests. $2 billion for lavish new “green” offices for school administrators? Coming your way Sen. Specter.
JJWFromME // Feb 24, 2010 at 7:36 pm
“I disagree. If anything, Democrats accuse Republicans of being neanderthals who reject settled science and perpetuate false science at the behest of lobbyists”
I do think Republicans tend to rely on Fred Singer, Pat Michaels, and the others on the short list of paid-fors (rather than the 1000s of others in the field, consensus statements from practically all scientific organizations, etc.) but that’s not what I’m pointing out here.
Many Republicans don’t even cite *these* scientists when they state their opinions. Instead of leaving an embarrassing paper trail that leads to disreputable scientists, they simply ignore all work done by scientists altogether. They’d rather not have any discussion of the science at all, because it gets in the way of their populist rants on policy, which pretend there is no problem.
“In my experience, Democrats are content to establish the fact of the problem, and pretend that the problem merits any and all solutions simply by virtue of being a problem.”
If you establish that certain economic behavior produces an externality, and that externality has sufficiently serious adverse effects, then it’s common sense that you deal with that problem legally. If I drive 100 MPH on the highway, I could try to argue that that’s my own business. But of course, it’s not, because I endanger innocent parties. So we pass speed limits. We establish traffic laws that work for everybody. Transactions that produce externalies (that demonstrably harm third parties) are regulated. You can find the concept of externalities in Adam Smith. It’s nothing exotic. But how can you evaluate the seriousness of externalities from fossil fuels without doing due diligence on the science? You can’t.
“we’ll leave that to the good people at the University of East Anglia”
…Whose work was likely smeared “at the behest of lobbyists”:
http://www.desmogblog.com/cru-hack-was-highly-sophisticated-spy-job-prominent-british-scientist-says
…And whose work is in the process of being exonerated (although I guarantee this won’t have the PR push that the scandal itself had):
http://www.montrealgazette.com/technology/Climategate+inquiry+shows+scientist+didn+falsify+data/2518522/story.html
“If that is the best possible solution, then we shouldn’t do anything at all.”
If you read what I said above, I said I’m open to cap and trade *not* being the best solution. And if I cede that cap and trade is bad, what if it *is* bad, but climate change is also bad, or worse? You’re saying then that Republicans have absolutely no responsibility for actually having effective policies? If Republicans keep blanking out their brains to the science in favor of populist rants, when *will* you have effective policies? Some day, just trust us? …It reminds me of the Godfather, where Corleone keeps saying that some day he’ll become legit, but it never happens.
kevin47 // Feb 25, 2010 at 12:04 am
“Many Republicans don’t even cite *these* scientists when they state their opinions. ”
And many do. Most of the articles I have read cite other scientists.
“They’d rather not have any discussion of the science at all, because it gets in the way of their populist rants on policy, which pretend there is no problem.”
How does a rant related to policy pretend that there is no problem? You are merely imputing this.
“…And whose work is in the process of being exonerated (although I guarantee this won’t have the PR push that the scandal itself had):”
Two reasons for this
a) A conjecture by an interested party is not as compelling as primary source documents, from a pr perspective.
b) The source of the hacks is not nearly as interesting as the information that was hacked.
“http://www.montrealgazette.com/technology/Climategate+inquiry+shows+scientist+didn+falsify+data/2518522/story.html”
This doesn’t really refute the core contention, which is that the data was presented in a misleading manner. Again, to the PR angle, the evidence of misleading remains.
“If you read what I said above, I said I’m open to cap and trade *not* being the best solution. And if I cede that cap and trade is bad, what if it *is* bad, but climate change is also bad, or worse?”
Then climate change is also bad or, worse. The magnitude of the problem has no impact on the futility of the solution to the problem.
“You’re saying then that Republicans have absolutely no responsibility for actually having effective policies?”
No. I am saying that the most effective policy is not always one that involves action on the part of the federal government. In this case, we are being told, and I see no reason to disagree, that cap and trade is the best governmental solution to the problem.
“If Republicans keep blanking out their brains to the science in favor of populist rants, when *will* you have effective policies?”
I don’t know that there is an effective policy. Isn’t it at least possible that this is so? There are all sorts of problems in this country that the federal government does nothing to address.
“It reminds me of the Godfather, where Corleone keeps saying that some day he’ll become legit, but it never happens.”
That’s a weird analogy.
JJWFromME // Feb 25, 2010 at 8:16 am
“Most of the articles I have read cite other scientists.”
You must read different articles than I do. Also, I’ve read some articles that cite other scientists, but take their remarks out of context, often bringing the scientists to complain.
“How does a rant related to policy pretend that there is no problem?”
As one of the commenters above said, the subtext is “liberals are crazy”, “Al Gore is crazy,” etc. If you use this tone and don’t discuss the science then the implications are that there is no real problem.
“This doesn’t really refute the core contention, which is that the data was presented in a misleading manner.”
Which contention? If you’re talking about the “trick” one, the word “trick” is used colloquially in statistics all the time. Also, statistical graphs by their nature can be persuasive. You can present error bars in one part of the graph and real temperatures in another as long as the two are clearly marked. Persuasion is not the same as misleading people. On the other hand, taking peoples’ quotes out of context from a decade of emails not intended for the public, is likely misleading…
But the public is not likely to get these kinds of nuances. So really what we’re talking about is character assassination over the substance of the science. There’s a reason why the word “Swiftboat” has gained currency and even used by Republicans. It’s because this kind of tactic is slimy. I’ll bet that the East Anglia incident will be seen like this by history.
“The magnitude of the problem has no impact on the futility of the solution to the problem.”
So again, what are you offering as a solution? If you’re arguing for no solution, and know the science, this is a council of despair you’re giving us, yes?
“I don’t know that there is an effective policy. Isn’t it at least possible that this is so? There are all sorts of problems in this country that the federal government does nothing to address.”
If you are making an argument for states’ rights, this is impractical. The federal government signs treaties and deals with foreign governments, not individual states. The federal government can’t wait for each and every coal state to move so that the rest of the world doesn’t impose tariffs on all our carbon-intensive exports. Also, I never bought the argument that states rights are absolute–the federal governments’ intervention to end segregation was the right thing to do. Similarly, the federal government should firmly put coal states on track to change their economies, because they imperil the rights of future generations (and again, how can you know the scope of that problem unless you look at the science?)
“That’s a weird analogy.”
Sorry, that wasn’t exactly clear. My observation is that the GOP tends to run by reassuring us about its character. If it’s a party of good people, then they will protect us from serious problems, even if they use Karl Rove political tactics to gain power. So you could argue the populist stance is just a pose. Eventually, as an allegedly centrist party, the GOP will listen to qualified scientific advisers and do something about climate change, which poses a threat to the country. As good people, they will eventually resist the temptations of base-exciting populism, and pandering to moneyed interests, and do the right thing. But first they have to win the next election.
My argument is that “eventually” will never happen until very serious damage has been done.
JJWFromME // Feb 25, 2010 at 8:45 am
I’ll also note that the Clean Air Act was predicted to be a disaster. It’s interesting that the predictions about cap and trade, which is going to be imposed gradually over time, have a similarly dire tone.
JJWFromME // Feb 25, 2010 at 8:49 am
I think the real fear is that cap and trade will work.
If it doesn’t work, repeal the law and replace it with something that does. That’s all.
kevin47 // Feb 25, 2010 at 4:52 pm
“You must read different articles than I do.”
That is certainly possible.
“As one of the commenters above said, the subtext is “liberals are crazy”, “Al Gore is crazy,” etc. ”
Yeah, we definitely read different articles then.
“Which contention? If you’re talking about the “trick” one, the word “trick” is used colloquially in statistics all the time.”
Moreso the contention that the trick was used to present a result in a light more favorable to a certain viewpoint. It may be a valid method of presenting statistical data, but the fact that a scientist employed it in this case is revealing. If nothing else, it reveals that allegedly impartial scientists have a horse in the game, and that simply appealing to “settled science” is not the trump card some might hope.
“You can present error bars in one part of the graph and real temperatures in another as long as the two are clearly marked.”
Which they were not, at least not in any way recognizable to the public. Did Al Gore refer to “error bars” in his documentary? I ask sincerely. I haven’t seen it.
“But the public is not likely to get these kinds of nuances.”
Because the evidence was provided without nuance. Those who support global warming legislation pitched their argument as a doomsday scenario. Any introduction of nuance is going to be deleterious to such a meme.
“So again, what are you offering as a solution? If you’re arguing for no solution, and know the science, this is a council of despair you’re giving us, yes?”
As it relates to the power of our federal government to change the climate, I despair generally. Honestly, I think the federal government can do about as much to stabilize the climate as it can to bring back Arrested Development.
That said, if we agree that Cap and Trade legislation is the wrong avenue for addressing the problem, then we have established, at minimum, that the Democratic party is inept at solving the problem. And if the choice is between two inept parties, I will choose the one whose plan will not cost me us a trillion dollars.
“If you are making an argument for states’ rights, this is impractical.”
I am not. An appeal to the limits of the federal government is not necessarily a paean to the power of the states.
“Sorry, that wasn’t exactly clear.”
It was clear, but also odd, and not particularly illuminating.
“I’ll also note that the Clean Air Act was predicted to be a disaster.”
Mostly by industry lobbyists, who had much less support from elected officials. That said, it is certainly debatable whether the Clean Air Act had an impact sufficient to justify its costs.
That aside, the CAA was a specific solution to a specific problem, and the impact of the Act was easily measured. Just because people predicted something to be a disaster, only to find out later that it was a success relative to those predictions, it does not follow that each prediction of policy disaster should be ignored.
I could make a similar argument to yours regarding catapulting monkeys into the sun. It won’t work? That’s what they said about the Clean Air Act!
Cap and Trade is much more expensive than the CAA, impacts a vital energy resource, and has been demonstrated to be ineffective in Europe. I don’t see much to recommend the approach. The only better approach would be a direct carbon tax, and you know darn well why we won’t have that.
“If it doesn’t work, repeal the law and replace it with something that does. That’s all.”
How’s that approach going with ethanol? How is it going with farm subsidies? I’d rather get it right the first time, thanks.
JJWFromME // Feb 27, 2010 at 12:05 am
“Moreso the contention that the trick was used to present a result in a light more favorable to a certain viewpoint.”
Well let’s take a look at an example:
http://scienceblogs.com/illconsidered/2006/03/hockey-stick-is-broken.php
Scroll down a bit and you can see the famous “hockey stick”. It’s got error bars–the grey marks around the reconstructed temperature. And it’s got the “trick” mentioned in those emails–it uses only “instrumental data” after mid twentieth century, and it’s marked as such.
It’s “persuasive” in the sense that it illustrates a point. It could have not done that. There are many different ways of presenting statistics. But then, what would be the point of publishing something that doesn’t highlight your point? This is the same with every research paper ever published in every field. You publish the truth, but you don’t fail to highlight what supports your thesis or hypothesis. If you’ve got a different thesis or hypothesis, you present things differently. Duh! This will often have nothing to do with any weakness in the study, it could simply be a convenience to your readers. You don’t want to present a noisy graph that reads like mud. You want to highlight the significant aspects, without presenting anything misleading (of course). If someone thinks there’s a weakness in what you’ve presented, then they can do their own study. This is how science careers are made.
“Which they were not, at least not in any way recognizable to the public. Did Al Gore refer to “error bars” in his documentary? I ask sincerely. I haven’t seen it.”
This is a good example of what I was saying above. You’ve done no due diligence to learn what error bars are, you’re simply going off on a populist rant. Error bars are used in statistics all the time. They’re used to show the level of precision, very different than saying “I’m making all these mistakes.”
Inconvenient Truth is a movie, not a scientific paper. It *references* scientific papers that use statistics. But obviously, you can’t build a documentary going off on tangents describing every technical detail.
“Because the evidence was provided without nuance.”
Mann’s graph is filled with nuance. As was the paper he published.
“It was clear, but also odd, and not particularly illuminating.”
Well I find your prescription to do nothing even in the face of very serious problems is odd. To me it sounds like pathology.
On the other hand, I don’t think what I was saying is odd at all. When people vote for Republicans, they think they are voting for a good person who is going to protect them. They’re not knowingly voting for people who propose to fiddle while civilization burns. But sticking to mindless populism and moneyed interests in order to get elected is very tempting, and may discourage people from doing anything or even looking into certain problems. But they’ll get reelected in many cases.
“How’s that approach going with ethanol? How is it going with farm subsidies? I’d rather get it right the first time, thanks.”
No question that government has excesses. But that’s not an excuse for not dealing with problems. I pay taxes and elect representatives to make sure things are done like respond to hurricanes in a timely manner, or regulate Wall Street so it doesn’t implode and take the rest of the economy with it, etc. That’s not to say that these responses are always going to be perfect, but I think most people think that government should provide some basic services–like make sure companies and products don’t poison the habitable atmosphere with unnatural levels of CO2.
Thinking that government shouldn’t do these basic things, I think, is a minority, non-mainstream view. I get the sense that you’re the type of person who thinks the government should have done little or nothing to respond to the Great Depression.
Thanks for an illuminating discussion.
By the way, here’s a great recent interview with the creator of the graph I linked to above, Michael Mann: http://www.pointofinquiry.org/michael_mann_unprecedented_attacks_on_climate_research/