Guest post by William McClenney
This piece is advisory in nature to the many state Attorneys General, Eric Holder and any attorneys that may be involved in joining any of the many suits brought under the Public Trust doctrine beginning in May 2011 through the filings engendered by way of “Our Children’s Trust” (http://www.ourchildrenstrust.org/legal-action/lawsuits).
It remains unknown at this point in time if any of these many suits will be successful, but as it is a shotgun pattern, just one would set a legal precedent. For this reason I thought I would take a moment to do one of the things I do best, technical litigation support. In this case invention of an argument from whole technical cloth, which, if used adeptly, has the potential to be a gamechanger.
The entire concept hinges upon the definition of just what the public trust is. We can rest assured that the plaintiffs have given this matter quite a bit of thought given the litigation history surrounding the use of the public trust doctrine and how it could now be applied to air instead of water and land, it’s traditional application.
So the argument to be progressed here applies to the defense.
We will first build the appropriate question from which can be evolved a fairly strong argument that nimbly avoids getting into the normal “carbon weeds” type of defense:
- What is the public trust?
- What is the public trust climate?
- What is the public trust climate at an end extreme interglacial?
Some of you will instantly recognize where I am going with this as bits and pieces were delivered in my first two essays here. We will be utilizing the simple to understand principle of signal to noise. And you may even recognize some of the quotations as their ultimate relevance may have just come into fine focus right here.
Because we are going to use this to define the Public Trust – Climate. I think of this as the “Big Bang Theory” as opposed to the “Steady State” one it replaced.
Crucial is the understanding that the public trust in this case may be stated as an “affirmative duty to protect and preserve the atmospheric trust”. Any such definition immediately runs afoul of just what constitutes the Public Trust Climate such that its domain may be preserved and protected.
As this derivation is intended primarily for attorneys, the prose will not be so scientifically rigorous however I will be including some choice literature quotations in the spirit of driving the point’s home at the appropriate cusps.
We all live today near what may very well be the end Holocene, the third interglacial considered an extreme interglacial in the literature. Although there are different ways to define an “extreme interglacial”, we will use an oversimplification, it is an interglacial in which either temps or sea levels have at least been found to equal or exceed our own.
It is best that we establish the whole framework for the ensuing discussion with a direct quote from the scientific literature. I have highlighted the relevant bits for the impatient, but I strongly recommend reading this until you understand it. From the conclusions:
“Various lines of scientific evidence over the last decade have led to the conclusion that the last million years of the Quaternary may be viewed as consisting of two disparate halves. The early portion (1.0–0.5 Ma) was a quiescent, stable period when fluctuating sealevels were always below that of the present and this period is marked in many places by massive soil development. This was followed by a turbulent later half (0.5 Ma to present) in which the amplitude of sea-level fluctuations was much greater, resulting in several major interglacial flooding events. The point of transition is MIS 11, which has long been recognized as one of the longer and warmer Quaternary interglacial episodes (Howard, 1997; Droxler and Farrell, 2000; McManus et al., 2003; EPICA, 2004).
“As we have established here and elsewhere, the MIS 11 highstand was in excess of 20 m, making this perhaps the single most important global event of the past million years, and all the more so for its potential heuristic predictive value as being the interglacial most similar to the present interglacial now in progress in terms of Milankovitchian forcing (Loutre and Berger, 2003). It thus becomes essential that the full extent and duration of the MIS 11 event be more widely recognized and acknowledged.”
From Olson and Hearty, 2009, “A sustained +21 m sea-level highstand during MIS 11 (400 ka): Direct fossil and sedimentary evidence from Bermuda”, Quaternary Science Reviews, Volume 28, Issues 3-4, February 2009, Pages 271-285.
This is the most compact text I have found to lay the foundation of “when we live”, the wide-angle lens of just the past million years of which only the last “turbulent half” is relevant to the Public Trust Climate. Allow me to set the stage.
About 2.8 million years ago, as the earth continued to cool down, the first “modern” northern hemisphere glaciations began to occur. We began to experience glacials (ice ages) and interglacials or warm times, such as the most recent one, the Holocene, the one in which all of human civilization has occurred. Ice ages and interglacials occurred in couples every 41,000 years, which matches the obliquity in our orbit around the sun (the wobble on our rotational tilt axis). During the period between 1 million years and 800,000 years ago we transitioned into a 100,000 year ice age/interglacial couple, which matches the eccentricity in our orbit about the sun (as close as it gets to a circle now but cycling towards an ellipse and back to near circular every 100,000 years). But the eccentricity itself varies, a cycle on top of a cycle, such that in two cycles from now (200kyrs) we will achieve the maximum ellipse or eccentricity (a maxima), and in two cycles from then, we will experience near circular conditions like now (a minima).
This is important. Olson and Hearty above refer to MIS-11, technospeak for the Holsteinian interglacial. The latter half of the Holsteinian is considered by many to represent the closest analog to our interglacial. I say the latter half because The Holsteinian appears unique in the last million years of climate in that it may have lasted something like 30,000 years, or 1.5 to 2 precession cycles. Precession is the third orbital variable that paces climate. Five of the last six interglacials have each lasted roughly one half of a precession cycle. The precession cycle itself varies between 19,000 and 23,000 years, and we are presently at the 23,000 year part of the cycle, making the current age of the Holocene exactly half…….
Is the Holocene interglacial, our interglacial, just about kaput? Well, that’s the trillion dollar question, isn’t it? I went deep into the science on this in “The Antithesis”, you may refresh or intimate yourself with the poignant literature there. The present consensus seems to be that we will not have an extended interglacial this time, even though we are also at an eccentricity minima, just like the Holsteinian was 400kyrs ago. All things considered, our interglacial seems to match best the last half of the Holsteinian, the bit where we fall off into an ice age.
If we use the simple definition provided above for an extreme interglacial, then we are the third of three. The other two being the Holsteinian and the Eemian (MIS-5e).
The ends of those two may very well define the Public Trust Climate today. In
other words, the defense.
A recent definition of the timespan involved for the Holsteinian is 428kyrs ago to 397kya. From Olson and Hearty (2009) above we have:
“Four TIMS U/Th ages on flowstone directly overlying (at millimetric scale) beach deposits at +21 m in Dead End Caves yield a weighted mean of 399 ±11 ka (Hearty and Olson, 2008), confirming a correlation
with MIS 11.”
A sea level highstand of +21.3 meters, at least, was achieved right about the very end of the Holsteinian, the very first of the extreme interglaciations! We have our first benchmark of Public Trust Climate. This can happen anyway, whether by carbon or not. And if by carbon, what was the source at the end Holsteinian? What could one do about that if it was carbon, obviously natural carbon?
And it happened again, right at the very end of the second extreme interglacial, the Eemian.
So, in continuing our construction of what might reasonably constitute the “public trust climate” at an end extreme interglacial, we will look to Hearty again, this time as Hearty and Neumann (Quaternary Science Reviews 20 [2001] 1881–1895):
“The geology of the Last Interglaciation (sensu stricto, marine isotope substage (MIS) 5e) in the Bahamas records the nature of sea level and climate change. After a period of quasi-stability for most of the interglaciation, during which reefs grew to +2.5 m, sea level rose rapidly at the end of the period, incising notches in older limestone. After brief stillstands at +6 and perhaps +8.5 m, sea level fell with apparent speed to the MIS 5d lowstand and much cooler climatic conditions. It was during this regression from the MIS 5e highstand that the North Atlantic suffered an oceanographic ‘‘reorganization’’ about 11873 ka ago. During this same interval, massive dune-building greatly enlarged the Bahama Islands. Giant waves reshaped exposed lowlands into chevron-shaped beach ridges, ran up on older coastal ridges, and also broke off and threw megaboulders onto and over 20 m-high cliffs. The oolitic rocks recording these features yield concordant whole-rock amino acid ratios across the archipelago. Whether or not the Last Interglaciation serves as an appropriate analog for our ‘‘greenhouse’’ world, it nonetheless reveals the intricate details of climatic transitions between warm interglaciations and near glacial conditions.”
Boettger, et al (Quaternary International 207 [2009] 137–144) abstract it:
“In terrestrial records from Central and Eastern Europe the end of the Last Interglacial seems to be characterized by evident climatic and environmental instabilities recorded by geochemical and vegetation indicators. The transition (MIS 5e/5d) from the Last Interglacial (Eemian, Mikulino) to the Early Last Glacial (Early Weichselian, Early Valdai) is marked by at least two warming events as observed in geochemical data on the lake sediment profiles of Central (Gro¨bern, Neumark–Nord, Klinge) and of Eastern Europe (Ples). Results of palynological studies of all these sequences indicate simultaneously a strong increase of environmental oscillations during the very end of the Last Interglacial and the beginning of the Last Glaciation. This paper discusses possible correlations of these events between regions in Central and Eastern Europe. The pronounced climate and environment instability during the interglacial/glacial transition could be consistent with the assumption that it is about a natural phenomenon, characteristic for transitional stages. Taking into consideration that currently observed ‘‘human-induced’’ global warming coincides with the natural trend to cooling, the study of such transitional stages is important for understanding the underlying processes of the climate changes.”
So there we have it, end extreme interglacial climate noise laid out for us. Could this be the Pax Climatica of the plaintiffs? Or would this “Pax” be better described as “The pronounced climate and environment instability during the interglacial/glacial transition could be consistent with the assumption that it is about a natural phenomenon, characteristic for transitional stages.” The Holsteinian is four interglacials back, so not must has withstood these erasures, but the Eemian is the most recent interglacial, and we know it far better. In fact Greenland ice cores do not quite make it to the beginning of the Eemian before encountering massive shearing and then bedrock. You know what that means don’t you? The Greenland ice cap may very well have melted away during the early Eemian…….
But even so, the end of the last extreme interglacial was quite the wild climate ride! Two major migrations of plant species, documenting two thermal excursions in Europe, the second one giving rise, literally to a sea level highstand 10 times the IPCC 2007 AR4 worst case estimate of 0.59 meters anthropogenic. And that is if we use just the lower-end estimate of +6 meters for the second thermal pulse.
The basis for establishment of reasonable doubt………
But the Public Trust Climate might be worse than we thought. If we stick with Hearty (Quaternary Science Reviews 26 [2007] 2090–2112) we come of the second order noise, anthropogenic interpretation noise:
A global aggregation of Eemian sea levels from 12 studies. The range is roughly +4 to +40 meters for the end-Eemian highstand. There’s a fair bit of litigative mileage to be had by the appropriately acquisitive attorney.
Follow this logic. From THE PUBLIC TRUST DOCTRINE IN NATURAL RESOURCE LAW: EFFECTIVE JUDICIAL INTERVENTION, Joseph L. Sax (1970) we have the following:
“Three types of restrictions on governmental authority are often thought to be imposed by the public trust: first, the property subject to the trust must not only be used for a public purpose, but it must be held available for use by the general public; second, the property may not be sold, even for a fair cash equivalent; and third, the property must be maintained for particular types of uses. The last claim is expressed in two ways. Either it is urged that the resource must be held available for certain traditional uses, such as navigation, recreation, or fishery, or it is said that the uses which are made of the property must be in some sense related to the natural uses peculiar to that resource.”
Allow me to interpret all of this from the perspective of establishing the “Public Trust Climate” at end extreme interglacials:
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In terms of Pleistocene climate, the Holsteinian establishes the beginning of the “turbulent later half (0.5 Ma to present) in which the amplitude of sea-level fluctuations was much greater, resulting in several major interglacial flooding events.” Meaning that MIS-11, spanning the period from about 428kya to 397kya, was the first extreme interglacial. The latter half of MIS-11 is considered to be the better analogue to the present interglacial in terms of orbital dynamics.
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At 399 ± 11ka, the +21.3 meter lagoonal deposits suggest that the grand highstand also occurred very close to the end of the first extreme interglacial, just as it did at the end of the next extreme interglacial, MIS-5e, the Eemian.
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This establishes that 2 out of the 3 late Pleistocene extreme interglacials suffered their grand highstands just as they were ending, and the third, ours, the Holocene, is at its probable end right now.
This presents a rather wide envelope of natural climate noise as the “public trust climate” at the end extreme interglacials as this would appear to represent the “…natural uses peculiar to that resource.”
There are actually two arguments in favor of the defense to be exploited here. The first is the aforesaid redefinition of the “Public Trust Climate” with respect to its rather wide range of climate noise at the end extreme interglacials from which we must somehow discern the anthropogenic signal as distinct in order to assess what, if any, harm has been done. And second, there is the problem of academic paleoclimate noise, which can be re-stated that even on things which actually have happened, the science is not that particularly well settled, which makes consideration of the science being settled on things which have not yet happened a bit unsettling at best.
In other words two distinct caches of reasonable doubt………
And you don’t even have to get anywhere near the “carbon weeds”………….
William
I think that herein is an example of why lawyers, not laymen, interpret what other lawyers, and not other laymen, conclude about laws set up in principle by laymen but in detail by still other lawyers. At least I think so.
Again, it’s natural. And the desire to ‘clamp’ sea level and climate to some static condition is at most, desperate. Destroy that stasis, and all the arguments collapse.
An excellent essay. It needs a bit tidying up with typos corrected.
Slightly off-topic – if the property subject to public trust cannot be sold, “even for a fair cash equivalent” (whatever that is), then are carbon indulgences allowances legal?
I am often fascinated by the differences between UK and US law both in procedure and implementation although both spring from a common root.
For example in the UK despite attempts to do so in tort there is effectually no such thing as a class action: similarly in UK criminal law there is no equivalent of Miranda: evidence is evidence however it is obtained and it is for the court to decide whether it is admissable.
Indeed in England the powers of the police under the Police and Criminal Evidence Act [PCEA] better known as PACE would amaze US citizens let alone their police forces.
But here I am bemused.
The definition of Public Trust above by the judge’s ruling seems fairly clear given the vasty spaces of the the USA: in the UK these would be , more or less, local actions for nuisance.
But given the atmosphere is global I cannot see how it can be treated on any kind of national scale such as across the USA: which is not to say you could not argue for nuisance on a strictly local matter. The smoke from an industrial plant for example.
To try to extend this to the climate seems even more problematic because there is no way to tell what effect, if there is one, is caused by actions within the USA or by countries outwith the US legal system.
It is an interesting piece of work mind but perhaps too clever for its own good. As are the actions it seeks to defend against.
Which is not say that US lawyers cannot invent imaginary torts and pursue them to their profit, they have done so in the past and no doubt will do so again.
Kindest Regards
One minor nit that irritates me a little. The improper use of the words maxima and minima. Those are plural, not singular. There is no such thing as “a maxima” it is “a maximum”, a series of them over time are maxima. So you can say we are nearing solar maximum and in your life you have probably experienced several solar maxima. Same with minimum and minima. Too bad they no longer teach latin in high school.
Ok, I’ll go back to my reading now 🙂
Heresy!
How dare you suggest there are natural climate cycles and then provide a perfectly reasonable and logical explanation for them.
There are thousands of climate scientists who could lose their jobs if their political masters thought there were natural climate cycles – have you no thought for these honourable people and their families? What will happen to them? Times are hard and there is nothing else they could do with their skills.
Wake up – it’s carbon dioxide levels and nothing else which changes climate! Don’t you understand this – how possibly could great men like Al Gore, James Hansen, Michael Mann, Phil Jones and the brilliant, incorruptible Rajenda Pachauri be wrong?
A pox on your climate record and how dare you use the geological record to prove your point. Only climate scientists understand our planet’s climate history, not geologists, don’t you understand that?
Public trust – what’s that? The public need to be told what to believe, you don’t want to confuse them with the facts. That’s why climate climate scientists don’t like releasing data, as it only confuses people – and if the people are confused, then our political masters might become confused as well and cut off funding for the climate scientists – that would be a terrible trajedy, don’t you understand that?
I recently heard, in a public lecture by an academic expert on ice cores, that were Milankovich to return to Earth today he would disown his eponymous theory. Because when he proposed it early in the 20th century the available data on the Earth’s orbit were, in part, wrong.
So we realy have no idea what causes ice-ages, although Milankovich’s cycles are probably part of the explanation.
Hey ho…..
If I may attempt a layman’s summary: current climate falls well within the “noise” found in recent interglacials, making it impossible to prove a human influence on current climate, therefore the government has no power to regulate or legislate its citizens’ behavior based on any prospective harm they might cause the climate (and therefore any secondary harm the climate might cause, e,g. flooding from sea level rise; you can’t sue the local coal-fired electric plant if a storm washes away your beach house).
Am I even close?
Way to deep in legal stuff for me but they do seem to be a touchy feely bunch!
The Board of Governors is overflowing with scientific knowledge! <sarc
http://www.ourchildrenstrust.org/about/oct-board-members
as are the staff members.
http://www.ourchildrenstrust.org/about-us/staff
I will not even go into who their "Partners" are but what the heck is Child Honouring?
Public trust?… well maybe……. But I don’t trust the Government…… 😉
If a judge concludes that man through industrial society is causing the planet to warm, I think the judge should also place that warming in the context of helping to delay or prevent the imminent glaciation. Watch the climate refugees migrate when that starts happening.
Peter Miller Nice summing up for the plaintiff’s!! The Pandora’s box of litigation!!
Two comments: First, you cite Berger and Loutre, but their paper contains the projected duration for this interglacial at 50,000 years. Why did you reject this in favour of a imminent end to the Holocene?
Second, there was a hypsithermal seal level high stand between 8,000 and 4,000 years ago. Would this not be relevant to your argument?
Warm is good the other option not so good. The only saving grace of an ice age would be a common purpose of mankind to advance in remarkable ways that come forth with inventiveness when confronted with a problem. Our next ice age maybe mankinds next leap forward.
And at the end of all that, is the question to the answer:
‘Is there a legal basis for a class action suit against IPCC, EPA and Barack Obama to sue their asses into the next ice age??’
Could you rephrase this sentence –
“The Holsteinian is four interglacials back, so not must has withstood these erasures, but the Eemian is the most recent interglacial, and we know it far better”
If seas levels rise naturally to their highest levels at the end of interglacials, as stated, then would it not be be a violation of Public Trust to do anything to prevent the sea levels from rising now?
However, ocean circulation patterns were different during the previous interglacials and I do not see that addressed here. So equating the current sea level rises with previous ones may not be accurate.
Do you need to prove there is a mechanism to remedy the issue, i.e, that taxation has a direct impact on climate? That would be fun to watch.
Fascinating. MIS11 had very similar Milankovitch conditions as today. That interglacial (IG) was different, in that the temp curve at the beginning reached quick peak, dropping slowly for ~10k yrs (just like most IGs including the current one), but then going slowly back up to the same high-temps over the next ~20k yrs before rapidly dropping off into the next glacial. That IG lasted over 30k yrs. Over such long times, the Greenland & Antarctic ice sheets’ slow melting added up, resulting in the unusually high sea-levels at the end, compared to other IGs.
It’s entirely plausible that the current IG has bottomed out & will slowly warm up instead of ending in the near (couple thousand yrs) future, just like EIS 11. Lets hope so.
This demonstrates just how much of a shameless charlatan Watts has become.
This dishonest attempt to dismiss the BEST study shows that Watts is a merely a writer of science fiction.
Excellent job of putting things in time perspective. Very clarifying. Are you really a lawyer?
The basic question here is one of the nature of the trust. You can state with some certainty that a river or a piece of land within the confines of the US is part of the US. You cannot state that the atmosphere over the US is part of the US although the airspace is. Here in Boston, we receive the air from Canada early and often during winter. Pictures of the air over China demonstrate that the air there makes its way into other countries rather easily.
Mr. McClenney,
Excellent observations, and thank you from a fellow member of the bar and practioner in the climate arena. This topic, the Atmosphere as a Public Trust, was also the subject of an earlier post on WUWT, see
http://wattsupwiththat.com/2011/05/04/desperate-measures-indeed/
Regarding precedent setting, any successful lawsuit in one state is not a binding precedent on another state. In cases of first impression, a state may look to cases from other states for guidance but is under no obligation to follow those cases. This is one of the principles of Federalism, with each state having the right to establish its own laws, subject to certain Constitutional limitations.
From the comments on my earlier post referenced above, an excellent point was made: since a State would be the defendant in these lawsuits, why would they want to vigorously defend? One could expect the oil-rich states to defend, perhaps Texas, Alaska, Oklahoma, Louisiana, and North Dakota, but the oil-deficient states with pro-AGW mindsets would likely welcome the opportunity to have the court order them to protect the atmosphere and pass laws to do so.
Litigation is a crap shoot. The right side doesn’t always win. IMHO the warmists are taking a stupid gamble here (unless, of course, the fix is already in).
A good lawyer trying to prove a strong case will be crystal clear. She wants the truth to shine through. A bad lawyer with a weak case will resort to bafflegab and try to confuse the judge or jury.