The Public Trust – Climate

 

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:

image

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:

  1. 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.

  2. 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.

  3. 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

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Doug Proctor

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.

Mike Bromley the Kurd

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.

Steeptown

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?

a jones

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

crosspatch

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 🙂

Peter Miller

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?

TFN JOHNSON

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…..

Gary Hladik

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?

Pete H

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?

J.H.

Public trust?… well maybe……. But I don’t trust the Government…… 😉

Peter Dunford

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.

KenB

Peter Miller Nice summing up for the plaintiff’s!! The Pandora’s box of litigation!!

Frank White

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?

wayne Job

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.

Rhys Jaggar

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??’

Darren Parker

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”

Tom in Florida

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.

naturalclimate

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.

beng

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.

Eric Tremblay

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.

Mike McMillan

Excellent job of putting things in time perspective. Very clarifying. Are you really a lawyer?

ShrNfr

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.

commieBob

KenB says:
October 22, 2011 at 3:41 am
Peter Miller Nice summing up for the plaintiff’s!! The Pandora’s box of litigation!!

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).

Mike McMillan says:
October 22, 2011 at 7:12 am
Excellent job of putting things in time perspective. Very clarifying. Are you really a lawyer?

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.

Thanks, Gary Hladik! I read the whole thing but couldn’t begin to discern what the author was trying to accomplish or say. You seem to have found the core of the matter.

ChE

All well and good, but the offense … err … plaintiff can and will bring carbon into the picture. And also “consensus”. I’m no lawyer, but I have to believe that courts will be disinclined to try the science, and instead will defer to expert witnesses.
Let the circus begin.

Doug in Seattle

Is it just me or is this piece an interesting, but weak argument wrapped up in confused jargon. Even a lawyer would have difficulty following this.
The problem with McClenney’s argument is that the other side will have “eminent climate scientists” from the IPCC and the NSF supporting their interpretation of the role of government in controlling climate, while this side will have some obscure unknown quaternary geologists and palynologists.
It won’t matter who is right. All that matters in court is who is believable (to lawyers and judges).

ferdberple

“Drave Robber says:
October 22, 2011 at 1:45 am
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?”
That seems to me an excellent questions. Can the government or anyone else for example, sell permits to pollute lakes or rivers?
If CO2 is a dangerous pollutant, harmful to the public, then how can it be legal for the government or anyone else to be in the business of selling permits to do something harmful to the public?
Say you lived by a lake. Would you take kindly to the government selling someone a permit to pollute the lake you live by, simply because they agreed to stop polluting a different lake?
Isn’t that what Kyoto, cap and trade, and carbon credits are doing? They are giving some countries the right to pollute the air, in return for other countries agreeing not to pollute the air, with money exchanged in the process.

Interesting to see how deniers huddle together, confirming false beliefs then feeling superior because of the company they keep.
Anthony Watts is no more a recognized climate expert than I am a moon-walker. Mr. Watts is the ultimate arcade Whack_A_Mole, after getting refuted, he simply bounces back via another false or misinterpreted topic.
The future will detest such ignorance Mr. Watts, and you will be in the focus of that future as they curse the anti-science, pro-pollution, greed-first culture that sustains you.

REPLY:
Always a pleasure dealing with somebody who talks big insults, but is such a coward they have to hide behind anonymity, right Clinton? Check back in a couple of months – Anthony

observa

Personally I wouldn’t worry about the children putting their trust in these adults because I reckon they’ll work them out eventually. Here kiddies, go enjoy-
http://blogs.news.com.au/dailytelegraph/timblair/index.php/dailytelegraph/comments/all_we_are_saying_is_give_police_a_chance/
Yes children, all Western countries have them and they simply refuse to grow up and become intelligent responsible adults. We’re not sure if it’s herditary or environmental just yet but as you can tell we’re working on the problem.

Scott Brim

Lawsuits like these are simply another means of keeping the directors of various environmental advocacy groups, plus their lawyers, gainfully employed.
If a quick reduction in the rate of growth of US greenhouse gas emissions is to be accomplished — let alone a rollback to some previous emission level — the only realistic approach to achieving that objective is to place massive, direct taxes on carbon fuels.
Are any of the climate change advocacy groups lobbying the Congress and the various state legislatures to place massive, direct taxes on carbon fuels?
If these groups are not doing just that, then they are simply playing the game of AGW alarmism, using the courts as their playing field, for their own personal benefit, not the public’s.

@ferd berple,
“Can the government or anyone else for example, sell permits to pollute lakes or rivers?”
The answer is Yes. Governments’ environmental agencies routinely issue permits to pollute, and there is a fee for each permit. This is known as “pay-to-play.” In some areas, such as California where I live and practice, one must purchase pollution credits, that is, the right to emit pollutants into the environment. Here, one such program for air pollution is known as RECLAIM (see http://www.aqmd.gov/reclaim/index.htm)
The government also has a different form of pay-to-play, in which the polluting entity is required to spend money to environmentally enhance one location in order to emit pollutants at another location. These sometimes are on a 2-for-1 basis.
This kind of thing happens all the time, for air, water, and soil.

@Scot Brim
“Are any of the climate change advocacy groups lobbying the Congress and the various state legislatures to place massive, direct taxes on carbon fuels?”
Yes, here’s what ExxonMobil’s CEO Rex Tillerson had to say on this almost exactly two years ago:
“Benefits of a Carbon Tax
These costs and consequences inherent to cap-and-trade schemes have led many policy experts and economists to prefer another course of action to reduce greenhouse gas emissions. That other option is a revenue-neutral carbon tax. I know that’s hard for a politician to say, so we have given it a new name. We call it a “refundable greenhouse gas emissions fee.”
As a businessman, I have to take a deep breath every time I speak about this, because it’s hard for me to speak favorably about any new tax. I hope you see it shows how serious we are about this issue. A revenue-neutral carbon tax has the advantage of being well focused for achieving our society’s shared goal of reducing emissions over the long term. It can be predictable, transparent, and comparatively simple to understand and implement. ”
http://www.exxonmobil.com/Corporate/news_speeches_20091001_rwt.aspx

The Public Trust – Climate
Posted on October 22, 2011 by Anthony Watts
Guest post by William McClenney
„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. „

Mr. William McClenney,
Shams ad-Din i Tabriz says, „The easiest of science is the science of purification rituals and the branches of jurisprudence. More difficult than that are the principles of jurisprudence. Still more difficult are the principles of theology, and even more difficult is the science of philosophy and metaphysics.”
While physics deals with forces, metaphysics deals with the order of the immaterial nature, like the essence of the recognized laws of nature, logic, algebra, or music. One can measure thee effect of forces, but no one can measure truth or love, because it has no existence in the outer world.
There is a general different in the basics of morality between the codex of Hammurabi and the codex of the Northern tribes in Scandinavia; while Hammurabi has said ‘An eye for an eye.’ The idea of the Northern codex was ever to guide people of lack in moral back to the community.
As Epictet has written, not all things are in out power. I have written a song for Neil Young called: “No One Can Govern The Sun”. You can find it on this page:
http://www.neilyoung.com/lwwtoday/lwwvideospage.html
Prof. Ehrlich has suggested that the saw tooth like pattern for million of years of terrestrial climate fits well with resonance modes in the Sun.
http://volker-doormann.org/images/bentic_f_graph.gif
http://volker-doormann.org/images/bolshakov_2003.jpg
While this played music is beyond the laws of any terrestrial nation, it seems to be recognizable also for lawyers, that there is no one on this earth, who is responsible for this behavior.
Just some time ago I have found that the pattern of about 1800 years and it’s halve time interval corresponds to a couple of plutinos and it synodic tide.
http://volker-doormann.org/images/bond99_a.jpg
And again this pattern has a heliocentric nature and is so beyond the laws of any terrestrial nation.
http://volker-doormann.org/images/solar_fig_3.gif
Since a long time this pattern of the solar system of warm times and little Ice ages on our Earth modulates recognizable also for lawyers the terrestrial climate and the other planets like Neptune or Uranus or Pluto.
OK, in general it is necessary to talk about science. But the object is science, truth and logic and not politics and not jurisprudence and not logical fallacies.
Example: “I did not murder my mother and father with an axe! Please don’t find me guilty; I’m suffering enough through being an orphan.”
It is not really possible to tell truth: Truth of arguments must be recognized in each present in the very own consciousness. There is only one nature to recognize.
Thanks for reading.
V.

ChE

commieBob says: October 22, 2011 at 8:02 am
[…]
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).

What’s the downside? They can keep sending up trial balloons forever. There’s nothing “stupid” about taking a gamble where there’s no risk of being worse off than when you started. This is the inherent agitator’s advantage.

rw

It seems to me that an important question is whether it is possible to ensure that plantiffs that bring lawsuits of this nature are forced to pay a price if and when this whole AGW thing turns out to be a ‘hoax’. In other words, if and when this occurs they are not simply able to snigger (and say, “Never mind”) and shuffle off the stage. Because pretty soon this craziness is going to start killing people. (It probably has already in the 3rd world.) Moreover, the people initiating actions such as these seem always to operate with a certain attitude of inviolability – as if they were directors and not actors in this play.

crosspatch

There was another paper in the past couple of years in Quaternary Research that caught my eye (that is, by the way, my favorite scientific journal). What they found were some islands in the Pacific ocean that were in very stable crust. This crust is not rising or subsiding as far as they can tell. They are “flat-topped” and just barely protrude from the surface of the water. They also have active colonies of coral growing on them. They are interesting because as water levels rise and fall, the coral growth changes along the slopes of the island. So if the sea rises a meter, the top of the coral growth rises a meter, if the sea drops a meter, the top of the coral growth falls. These changes in coral growth can be dated. What they discovered was that about 5000 years ago, sea levels in the Pacific were about 2 meters higher than they are today. They also discovered that sea level can change quite rapidly, dramatic changes on a century timescale.

Ken Harvey

sunworks2day says:
October 22, 2011 at 9:41 am
“Anthony Watts is no more a recognized climate expert than I am a moon-walker.”
The word ‘expert’ when related to climate is probably an oxymoron. Can anyone be an expert in a subject which is so full of unknowns? That said, if I were on trial and needed an expert witness on climate, I, and, no doubt at all, many others, would opt to engage Anthony Watts, were he willing to oblige.

Mac the Knife

William,
Thank you very much, for this excellent legal brief and argument! You accept that the government and related agencies have ‘standing’ to protect the ‘public trust climate’ but effectively argue that their claimed AGW contribution, justifying the exceptional government regulations now being enforced, is well below the threshold of documented interglacial climate variability. As such, no regulatory intervention is justified to protect the ‘public trust climate’. Have I stated that accurately?
How can this argument be pressed forward through the courts? Can you provide an outline? Can you tell us laymen how we might help and effectively participate?

Mac the Knife

crosspatch says:
October 22, 2011 at 12:17 pm
“There was another paper in the past couple of years in Quaternary Research that caught my eye (that is, by the way, my favorite scientific journal). What they found were some islands in the Pacific ocean that were in very stable crust. This crust is not rising or subsiding as far as they can tell. They are “flat-topped” and just barely protrude from the surface of the water. They also have active colonies of coral growing on them. They are interesting because as water levels rise and fall, the coral growth changes along the slopes of the island. So if the sea rises a meter, the top of the coral growth rises a meter, if the sea drops a meter, the top of the coral growth falls. These changes in coral growth can be dated. What they discovered was that about 5000 years ago, sea levels in the Pacific were about 2 meters higher than they are today. They also discovered that seal level can change quite rapidly, dramatic changes on a century timescale.”
Crosspatch,
Can you provide a reference, please? Thanks!

Dan in California

I have a postulate and a question. As a famous example, a judge in California ordered the end of pumping irrigation water to north central California, which devastated thousands of square miles of agriculture and the people who lived there. This was done in response to a suit to lower the number of fish killed by the pumps. I understand the option of better inlet screens was never proposed. To me, this is a clear example of the bigger picture not being presented to the judge. The plaintiffs won because they chose a sympathetic venue and outspent the defense.
My question is, is Mr McClenney’s post about forcing courts and regulatory agencies to look at the bigger picture?

JDN

Terrible writing. Try rewriting in an essay format, not a conversation among friends that can read your mind. Example: “A recent definition of the timespan involved for the Holsteinian is 428kyrs ago to 397kya.” Who cares whether the definition is recent. Also, try “428 – 397 kyrs” instead. Rewritten: “The Holsteinian era took place 428 -397 kyrs ago.” and then footnote it if you think this might be contested.
Another example: “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. ”
Try: “There is evidence that we are living at the end of the Holocene era, an extreme interglacial period. There are many ways to define an “extreme interglacial”, however, everyone can agree that an era with temperatures or an ocean level equal or greater than our own qualifies as extreme.
In addition to poor construction, your essay is full of misdirection and statements without foundation, such as launching into sea level fluctuations during interglacials without proper introduction of the topic and placing it into your ultimate argument relating to public trust. After pondering over your article, I really have no idea whether you have a point or not.

Mac the Knife

Is there a summary list available of States/Attorney Generals that are currently pressing court cases against the federal government and related agencies, for unnecessary regulations and adverse economic impacts based on AGW theory?

@Roger Sowell, re ferd.
No argument that the Government DOES issue permits to pollute. Ferd’s question is that under the Public Trust Doctrine, where does the Government get the AUTHORITY to sell public assets (clean air, land, water (in theory)) to private entities to despoil them? I think because the Government does this, the Public Trust Doctrine in regard to the ban on selling assets is insubstantial.
@Roger Sowell, re Exxon:

A revenue-neutral carbon tax has the advantage of being well focused for achieving our society’s shared goal of reducing emissions over the long term. It can be predictable, transparent, and comparatively simple to understand and implement.

Any free-market economist should agree with this as well as any business man. The TAXING part is not at issue. The objections and debate fall around two points:
1. What happens to the money after it is received by the Tax Collector? Does it fairly, predictably, transparently, and simply go to the producers of non-carbon, non-GHG energy sources as incentive to replace the polluting carbon rich sources? Or does it find its way into the General Fund, with bits of it pulled off, opaquely, obtusely (and politically predictably) into the pockets of the politically well connected? Personally, I would favor a carbon tax, if I believed the tax money would do good. However, when I follow the money I do not care to support its destinations nor its middle-men.
2. Our Society’s shared goal seems to be reducing CO2 and CH4 emissions over the long term. The argument is, “Should we care about reducing CO2?” and if so, “what is it really worth to us?” A CO2-driven warmer earth (if that is what will happen) is not necessarily a bad thing. There will be winners and losers. With a carbon tax, the money will be efficiently, transparently, and predictably siphoned from the public insuring many more losers and a few big winners.

JDN,
Why don’t you write an article in Italian? That way folks whose first language is Italian can nitpick your sentence structure.

crosspatch

Here is the paper I referenced in my previous comment, Mac the Knife.

Microatoll record for large century-scale sea-level fluctuations in the mid-Holocene
by: Ke-Fu Yu, Jian-Xin Zhao, Terry Done, Te-Gu Chen
Quaternary Research, Vol. 71, No. 3. (May 2009), pp. 354-360. doi:10.1016/j.yqres.2009.02.003 Key: citeulike:5294156

Green Sand

IMHO “spin” is the major reason for the now entrenched public mistrust of the establishment politicians.
The same fate awaits the scientific community if it continues with its head long dive into “the world of spin”. Time to stand up against the hype, especially if it claims to represent your “side of the spectrum.”

crosspatch

And it appears that I mis-remembered the timing according to the abstract it was 7050–6600 yr bp

Coral microatolls have been long used as precise indicators of past sea level, but their use for precise definition of detailed sea-level fluctuations is still rare. Here we report twelve high-precision thermal ionization mass spectrometric 230 Th ages for twelve rims of five mid-Holocene microatolls from an emerged reef terrace at Leizhou Peninsula, northern South China Sea. This is a tectonically stable area, enabling us to reconstruct both the timing and trajectory of local sea-level fluctuations accurately. The elevations of these microatoll rims and cores were accurately determined relative to the surface of modern living microatolls at the same site. The results indicate that the sea level during the period of 7050–6600 yr bp (years before AD 1950) was about 171 to 219 cm above the present, with at least four cycles of fluctuations. Over this 450 yr interval, sea level fluctuated by 20–40 cm on century scales.

Myrrh

“Our Children’s Trust” should include the fictional science taught in support of AGW, the deliberate sleight of hand ‘experiments’ taught in classrooms with erroneous explanations of the physics, and as promoted by Gore in his recent heating carbon dioxide ‘experiment that you can all replicate’ which Anthony has deconstructed. And should include the fear generated in children by calling it a toxic, etc. and omitting all real teaching about the Carbon Life Cycle. We are carbon life forms, they’re calling our basic building block food a poison contrary to traditional physics designations of what gases are toxic.
The public should be able to trust our children are not being indoctrinated with quasi-religious beliefs in place of science knowledge facts.