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:

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