OPINION/COMMENTARY

Taking a Molecule to Court

The Supreme Court, by agreeing to hear a case on whether the Environmental Protection Agency (EPA) must take steps to reduce carbon dioxide emissions, will finally judge on the alleged threat of global warming. The stakes are huge. Should the Court find in favor of the plaintiffs, it would put the EPA in control of the U.S. economy for the foreseeable future. The modern global economy is powered by hydrocarbons—oil, natural gas and coal. Burning these fuels releases the energy we need to light our homes, heat and cool our offices, and get us from place to place. But the process also releases a byproduct called carbon dioxide (CO2). We have known for well over a century that, all other things being equal, more carbon dioxide in the atmosphere will warm the atmosphere as it absorbs energy up to a certain point. In recent years, with the atmosphere warming since the 1970s, scientists have connected the warming trend to the amount of carbon dioxide in the atmosphere. This is the phenomenon of global warming. The case arose when a group of activist state attorneys general (AGs) petitioned the Environmental Protection Agency to make rules to control emissions of carbon dioxide. When the agency determined that it had no power to do so, the AGs and several environmental pressure groups sued, claiming, "The Clean Air Act requires the EPA to take certain actions when it determines that a pollutant may 'cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare.'" The Supreme Court's agreeing to hear the case underscores its importance to the American economy. Regulation would directly affect 70 percent of the electricity sector and 98 percent of the transportation sector—with repercussions throughout the entire economy as those sectors are forced to raise costs to comply with new regulations. Had the Court not agreed to hear the case, the plaintiffs would surely seek out other judicial avenues to force the EPA to regulate. By agreeing to hear the case, the Supreme Court has at least signaled that there will be an end to the uncertainty soon. Businesses around the U.S. will be grateful for that....

Courting Regulatory Disaster - or Clarity

The Supreme Court has agreed to hear a case being brought by a dozen states, several major cities, and environmental groups who want carbon dioxide, widely believed to be contributing to the current global warming trend, to be designated as a pollutant. The plaintiffs are challenging the Environmental Protection Agency's decision in 2003 that carbon dioxide (CO2) is not a pollutant that would come under the regulatory portions of the Clean Air Act. That decision has been upheld by two lower court rulings. Central to the argument that CO2 be regarded as a pollutant subject to regulation under the Clean Air Act is that it "may reasonably be anticipated to endanger public health or welfare." This will be difficult to prove scientifically, since we have no way of proving that current global warmth is due to carbon dioxide emissions. While some theoretical modeling research that has suggested that all of the current global warmth could be explained by the extra CO2 we have produced, there is an element of circularity inherent in this type of science. The computer models built to predict climate fluctuations were based upon knowledge of what the answer was to begin with. Natural climate fluctuations (such as a small change in cloudiness) can also cause temperature changes, but since we don't understand what causes them, we can't model them. But even if the 1 deg. F warming in the last 100 years can be convincingly demonstrated to be due to humans, it will be just as difficult to prove harm to human health and welfare. This is why the D.C. Circuit Court of Appeals ruled against the plaintiffs last year. Proving harm from global warming is confounded by natural climate fluctuations that are so large that the global warming signal becomes lost in the noise. Note that the 1 degree of warming in the last century is much less than what humans routinely endure as part of normal weather variations and the progression of the seasons. And throughout human history, warm has always, on balance, been better than cold....

Fishermen’s Attorney Comments on Ninth Circuit Ruling in Chinook Salmon Case

Today a three-judge panel of the Ninth Circuit Court of Appeals upheld federal regulations that drastically curtailed salmon fishing off the Pacific Coast because of low projected returns of salmon that will spawn naturally in the Klamath River. The court rejected a challenge brought by coastal fishermen and fishing business owners who argued that the National Marine Fisheries Service was wrong not to count all hatchery salmon in determining the salmon population. Russ Brooks, managing attorney for Pacific Legal Foundation’s Northwest Center, represents the fishermen who brought the challenge. In response to today’s ruling, he had this comment: “The Magnuson-Stevens Fisheries Act requires federal regulators to manage all members of a species the same. Hatchery chinook are not only biologically identical to those that will spawn naturally, but many hatchery chinook do return to spawn naturally. So the Fisheries Service is wrong when it doesn’t count all hatchery chinook as part of the returning chinook population. The Service is deliberately lowballing the number of chinook that will return to the Klamath River. If all hatchery chinook were counted as part of the population, the Service would realize there is no need to drastically reduce salmon fishing. “Because the three-judge panel did not recognize the legal requirement that regulators must count all chinook, this decision is ripe for appeal—first to the full Ninth Circuit for rehearing, and, possibly, to the United States Supreme Court.” The case is Oregon Trollers v. Gutierrez. For a copy of the decision click here....

The Extremism Behind The Soundbite

Claiming a shift in consumer demand, Whole Foods Market decided last week to sell only pre-killed lobster meat, around the same time that The Miami Herald ran a story covering developments in "free-range" veal farming. These stories are significant because both developments were met with applause from some national animal-rights groups. What kind of "animal liberation" groups praise business decisions that still result in people eating meat, you ask? Ones that are only telling you half the story. People for the Ethical Treatment of Animals (PETA) had this to say about the lobster decision: "PETA applauds Whole Foods for joining Safeway in making the kind decision to spare lobsters -- complex animals who feel pain and can live to be 100 years old -- from living in filthy, cramped tanks." (Of course, PETA's claims about lobsters and pain are dubious.) Meanwhile, Farm Sanctuary praised a free-range veal farmer as innovating on the cutting edge of "a mini revolution in farming in general to raise animals more humanely." (Likewise with the "humane" claim here, which veterinary scientists dispute.) The fact of the matter is that every "reform" demanded by animal-rights activists is aimed at the goal of taking meat off our plates forever, no matter how nicely they praise each baby step. When the Center for Consumer Freedom debated Farm Sanctuary president Gene Bauston on the BBC in 2004, he had literally nothing to say when asked to describe what "humane" livestock agriculture would look like. PETA's president, Ingrid Newkirk, was much less bashful at the "Animal Rights 2002" convention: "There is no hidden agenda. If anybody wonders about -- what's this with all these reforms -- you can hear us clearly. Our goal is total animal liberation."....

Al Gore and the global warming scare

People are naturally prone to worry about dangers that are invisible: radioactivity, for one spectacular example. The media know this, and are forever trumpeting the discovery of new perils to scare us with. Hardly a week passes without someone announcing that some familiar food or other useful substance has just been discovered to cause cancer (though usually only when administered in huge doses to mice). Dangers associated with weather are special favorites because they are usually so difficult to cope with. In recent decades, we have been treated to alarmist reports about impending disasters to be caused by nuclear winter, acid rain and the ozone hole. But the Big Daddy of all such scare stories is "global warming." Al Gore, who had a dangerous brush with the presidency in 2000, has long been associated with this particular fright syndrome, and I have no doubt that he is perfectly sincere in believing that global warming is a real danger. But recently he has stepped forth with a brand new campaign to sell the American people on the peril. It is spearheaded by a documentary film entitled "An Inconvenient Truth," in which Gore himself presents what he chooses to regard as overwhelming evidence of the reality of the danger. Given his political history, it is perfectly fair to wonder if this maneuver isn't simply, or primarily, a device to promote his own candidacy for the presidency in 2008. But, whether it is or not, it is also a powerful blast in the propaganda war over the issue of global warming -- and must be treated as such. Gore begins by insisting that the scientific argument over the truth of the matter is over; climate scientists, he asserts, are virtually unanimous in endorsing it. Among the thousands of predictions on the subject, moreover, he invariably opts for the worst-case scenarios. The increase in the quantity of carbon dioxide in the atmosphere is caused, to an important extent, by human "pollution," and this is the cause of a dangerous increase in the planet's surface temperature. That, in turn, is causing glaciers, and the great ice caps of Greenland and Antarctica, to melt. This will inevitably result in the disastrous flooding of coastal areas all over the globe, and all sorts of ecological upsets (e.g. the extinction of the polar bear). The trouble is that all of the statements in the last paragraph above are subject to challenge, and in several cases, are almost certainly false. Among the many systematic attacks being waged against the spurious case for global warming, one of the deadliest and most effective is a weekly report available on the Internet, called "The Week That Was" (TWTW). The author is the formidable S. Fred Singer, professor emeritus of Environmental Sciences at the University of Virginia and former director of the U.S. Weather Satellite Service. Each week, Singer summarizes or reprints the most recent studies debunking global warming, with generous references to still more information. In TWTW for June 17, he demolishes Gore's contentions, one by one....

A rationalist crusader does the math on global warming

Bjorn Lomborg is a political scientist by training, but the charismatic, golden-haired Dane is offering me a history lesson. Two hundred years ago, he explains, sitting forward in his chair in this newspaper's Manhattan offices, the left was an "incredibly rational movement." It believed in "encyclopedias," in hard facts, and in the idea that mastery of these basics would help "make a better society." Since then, the world's do-gooders have succumbed to "romanticism; they've become more dreamy." This is a problem in his view, and so this "self-avowed slight lefty" is determined to nudge the whole world back toward "rationalism." Bjorn Lomborg busted--and that is the only word for it--onto the world scene in 2001 with the publication of his book "The Skeptical Environmentalist." A one-time Greenpeace enthusiast, he'd originally planned to disprove those who said the environment was getting better. He failed. And to his credit, his book said so, supplying a damning critique of today's environmental pessimism. Carefully researched, it offered endless statistics--from official sources such as the U.N.--showing that from biodiversity to global warming, there simply were no apocalypses in the offing. "Our history shows that we solve more problems than we create," he tells me. For his efforts, Mr. Lomborg was labeled a heretic by environmental groups--whose fundraising depends on scaring the jeepers out of the public--and became more hated by these alarmists than even (if possible) President Bush. Yet the experience left Mr. Lomborg with a taste for challenging conventional wisdom. In 2004, he invited eight of the world's top economists--including four Nobel Laureates--to Copenhagen, where they were asked to evaluate the world's problems, think of the costs and efficiencies attached to solving each, and then produce a prioritized list of those most deserving of money. The well-publicized results (and let it be said here that Mr. Lomborg is no slouch when it comes to promoting himself and his work) were stunning. While the economists were from varying political stripes, they largely agreed. The numbers were just so compelling: $1 spent preventing HIV/AIDS would result in about $40 of social benefits, so the economists put it at the top of the list (followed by malnutrition, free trade and malaria). In contrast, $1 spent to abate global warming would result in only about two cents to 25 cents worth of good; so that project dropped to the bottom....

Mr. Green Genes

Long time anti-biotech activist Jeremy Rifkin has come out in favor of a biotechnology technique. Should beleaguered biotechnologists break out the champagne and start celebrating? Not hardly. Earlier this week, Rifkin wrote an op/ed in the Washington Post in which he declared his support for marker assisted selection (MAS) for use in plant breeding. So far, so good. MAS is a molecular technique in which researchers identify sections of DNA in a plant or animal located near a gene or genes that confer specific valuable traits. In plants, such traits might increase their resistance to drought or disease, or they might boost their productivity. Once a trait has been identified, researchers can trace it as they crossbreed the plants containing it with commercial varieties. Thus MAS makes it far easier for plant breeders to identify which of the crossbred plants carry the trait. That means that breeders don't have to plant the seedlings and then wait for them to grow up in the field before identifying which ones carry the sought-after new trait. MAS can cut the time to develop new commercial crop varieties in half. Rifkin points to all of these advantages, but then declares that MAS has "made gene splicing and transgenic crops obsolete and a serious impediment to scientific progress." Whoa. Could that be true? Plant geneticists and breeders don't agree. According to Alan McHughen, a plant biotechnologist at the University of California, Riverside, "The problem for Rifkin: MAS is not, as he suggests, an alternative to gene splicing (recombinant DNA or rDNA), but an adjunct. Both are powerful and useful tools that can be used together." McHughen offers a real life example of how MAS and gene-splicing have been used to introduce disease resistance in rice....

Kelo on Kelo: I'll keep my illusions

A YEAR AGO last Friday, the U.S. Supreme Court ruled that my home can be taken by the government and handed over to another private party for its private use. The only requirements are that the city must have some plan in place that says another owner can create more jobs and pay more taxes than I do. There went my property rights -- and yours, too. Hardly a day goes by as I work in my garden or have a cup of coffee in my kitchen, both of which overlook the Thames River and Long Island Sound, that I don't ask myself, "If I had to do it all over again, would I?" Even on my worst days, and there are many, my answer is the same: "Absolutely yes." It was in February 1998 that I first heard that Pfizer Inc. was coming to New London. I remember thinking that this was going to be trouble for us in the Fort Trumbull neighborhood, right next door to where the company was coming. Little did I know just how prophetic that thought was. I immediately phoned Lloyd Beachy, the mayor then, who said he shared my concern and would take the side of the homeowners. He suggested that I call a local activist to see what I could do to defend my home. Since that day, Lloyd and thousands of other people have become my sounding boards, my comrades in arms, and my best friends. Over 500 came to New London from as far away as Kentucky and Texas for a rally last July 5 to protest the notorious Supreme Court decision that carries my name. Without their support and that of the Institute for Justice, my fight would have been over years ago. Where do I stand at this point? I think what I have thought from the very beginning: This is my home, and no one has the right to take it from me, especially for the vague concept of "economic development." I tell you honestly, and from my heart, that nothing will cause me to change my goals or my values. Mark Twain wrote, "Don't part with your illusions. When they are gone, you may still exist, but you have ceased to live." My illusion has been, and will continue to be, that my home is mine....

Lobsters v. Whole Foods

SOON the Supreme Court may be forced to consider a thorny question it has hidden from for too long: Does the Eighth Amendment's prohibition of cruel and unusual punishment protect shellfish? Okay, perhaps not "soon." The issue hasn't gone to appeal. And, it's not--yet--technically the subject of any state or federal litigation. But last month the Bobo supermarket chain Whole Foods announced that it would no longer be selling live lobsters or soft shell crabs from in-store tanks. They concluded that the practice was inhumane. The company's press release was quick to point out that it would still be retailing frozen lobster and crab products (products--as in flesh.) Whole Foods based its decision partly on the dubious conclusion of a 2005 European Union report that found lobsters feel pain and learn. The rest of the equation was their finding (noticing, really) that when sold live, lobsters--natural loners among decapod crustaceans--can be transported and stored one on top of another in cramped tanks for up to six months before final purchase. Earlier this year Whole Foods' Northeast and Atlanta stores briefly installed "condos" in their lobster tanks: short sections of PVC pipe that the lobsters could snuggle up inside of in privacy. But it wasn't a comprehensively humane solution. Dropping live sales, the company switched to a vendor that dispatches the creatures right off the boat, in just seconds, with a pressurized metal tube. Amy Schaefer, a Whole Foods spokesperson, summed up the corporate thinking: "Lobsters are going to be caught and going to be eaten . . . [what we're] trying to do is create a supply chain that treats the animals with respect and minimizes unnecessary pain." This is essentially the same reasoning the Supreme Court has used in interpreting the Eighth Amendment: Capital punishment is not by itself cruel and unusual (and, presuming the synonym, inhumane), but you can do it in certain ways that make it so, and those ways are verboten. Whole Foods, by reasoning that implicitly says lobsters have a right (just like U.S. citizens!) to be treated humanely in this particular way, is extending a parallel, abstract protection against the cruel and unusual to maritime invertebrates....