Law – Page 38 – a sibilant intake of breath

‘Resistance’ versus ‘abstinence’ in responding to climate change

During the course of our extended discussion on the ethics of travel, given climate change, the idea came up that living in a high-carbon society has similar ethical characteristics to living under an unjust regime. For instance, an aggressive totalitarian state that attacks its neighbours. In both cases, people are born into the society without any say in its character. In both cases, people can become aware of the harm their society is causing to others. In both cases, individuals face the question of how to respond to the injustice.

Right now, our society is engaged in harming future generations for our own personal and economic self-interest. We are doing so by emitting greenhouse gases that profoundly threaten the quality of life of future generations. In a way, it is as though we are mining the health, welfare, and prosperity of those who will come after us, so that we can continue to live in the way to which people have become accustomed.

While living in such a society probably creates moral obligations to assist those who are being harmed, and who will be harmed in the future, it does seem like the primary moral impetus is that of resistance. Given that our society operates in a fundamentally unjust way, those of us who have come to understand this have an obligation to change the nature of that society. Obviously, there are a wide variety of possible approaches – everything from working to reduce your personal impact to working to reform government from within to armed insurrection. Similarly, there are a wide variety of personal costs that may be borne by those who choose to act. They might sacrifice more lucrative careers for ones which offer more scope for promoting societal change. They might give up luxuries that they and others once took for granted. They may bear even more acute costs, if they choose to resist in less socially acceptable ways. For instance, those who climb buildings to deploy banners – or who choose to protest peacefully in places where governments have forbidden it – could find themselves facing legal consequences.

Rather than seeing the problem of responding to climate change as an exercise in personal harm reduction, it may make more sense to think about it as an exercise in driving societal reform, through whatever means seem to be effective and ethically acceptable.

Is the above a sensible framework for thinking about climate change? Is it preferable to an ethic that calls upon us primarily to reduce our own emissions? In what ways are the ethical obligations that arise from a ‘resistance’ view different from those that arise from an ‘abstinence’ perspective?

Patent reform idea

The trouble with patents is that they block people out of using the latest technologies and techniques. Sometimes, that means one manufacturer can offer things their competitors cannot. Sometimes, it means that firms can effectively block technologies that would otherwise compete with them. The question, then, is how to encourage innovation without permitting such barriers.

One idea that comes to mind is state support for innovators: invent something useful, and the state gives you a lifelong pension with a value proportionate to the value of the invention. They then distribute it for everyone to use for free. The size of the pension could be based on the number of dollars that get spent implementing your idea, with larger amounts for innovations that people really pour money into using. The state could fund the system with higher taxes on businesses and consumers. Consumers benefit because best practices spread more rapidly, and the market overall benefits because firms are less able to undertake anti-competitive behaviours.

There is, of course, the issue of pre-existing patents. One way to deal with that would be to take the age of the youngest patent holder, calculate a maximum plausible remaining lifespan, and decree that all existing patents will expire at that point, including those held by corporations. There is also the issue of dealing with international patent agreements. Indeed, that and the entrenched interests of firms that hold lots of valuable patents are probably the major forces that would block any such reform. That being said, implementation difficulties aside, it does seem possible that this would be a better system than the current practice of granting a time-limited monopoly on use to patent owners.

Human rights and climate change

Over at Grist, there is a discussion about whether human rights are a useful perspective for thinking about climate change, as well as how they might be applied at the legal or institutional level to improve climate change outcomes. For instance, future generations could be appointed guardians within the legal system, in the same way in which children have legal guardians appointed to represent them in court.

The idea is a nice one, but it overlooks the degree to which legal and political decisions largely emerge as the products of political and economic influence, neither of which is possessed by future generations, within today’s political system. As such, these guardians would likely end up unpopular (for trying to block projects that would benefit those living and influential now) and powerless (for the lack of a real constituency to back them).

My general position on human rights is that they do not have moral force in and of themselves – they are just a shorthand way of encouraging good outcomes. For instance, it is the consequences of protecting free speech that make it a moral imperative to do so, not some metaphysical characteristic embedded in human beings. As with other areas of ethical thinking, human rights can be a useful heuristic when dealing with climate change, but what really matters is developing the mechanisms of thinking and action that will prevent the worst possible outcomes, while also seeking to secure the complimentary benefits that could accompany a global transition to carbon neutrality.

Waxman-Markey worse than useless?

In a very depressing piece of analysis, Grist columnist Gar Lipow argues that the Waxman Markey climate change bill emerging in the US will do worse than nothing, when it comes to dealing with greenhouse gas emissions. This is because of how it issues permits (downstream, rather than upstream), its problematic use of offsets, and the fact that most permits (80%) will be given away, rather than auctioned.

Lipow concludes that: “Because of the flaws I’ve mentioned, it essentially requires no emission reduction in practice for at least a decade. Any short term benefits come from non cap-and-trade provisions, such as the Renewable Energy Standard.”

Muddled climate policies that get captured by industry are a major danger, throughout the developed world. Unless you get the details right, it is easy for carbon pricing policies to give a huge amount of money to the dirtiest polluters, increase consumer prices, and fail to effectively mitigate emissions. While it is urgent to begin mitigation, it is also necessary to note the trade-off between a quick and deeply flawed approach and a slower but less problematic one. To begin with, we need policies like the Vienna Convention on Substances that Deplete the Ozone Layer: too weak, but not hopelessly flawed. Additional political and scientific work turned that instrument into the relatively effective Montreal Protocol. If we don’t display wisdom and overcome entrenched interests in drafting climate policies, we risk blocking the chances of any such progression in climate legislation.

The Bridge at the Edge of the World

The basic contention of James Gustave Speth’s The Bridge at the Edge of the World: Capitalism, the Environment, and Crossing from Crisis to Sustainability is that dealing with climate change – and environmental crises more generally – requires a major project of societal reform. This includes rejecting economic growth as a major objective, and focusing instead on improving the non-material factors that determine happiness. It also involves major economic and political reforms: severely curtailing the autonomy of corporations and sharply altering the relationships between business and government. While Speth’s vision is a coherent one, I don’t think he makes the case convincingly that it is the only alternative to ecological collapse. Indeed, implementing elements of his broader social program may well involve political battles that delay effective action on climate change.

One basic idea that Speth expresses well is a two-phased understanding of human civilization. In the first stage, exponential growth occurs and the proper mentality is that of the frontier or entrepreneurship. The second phase, basically the death of libertarianism, is when population and ecological strain become so significant that society and world level planning become necessary. It is clear that we are moving from the first to the second, as a civilization, though it remains unclear whether we will be able to manage that transition well, and avoid most of the damage and suffering that would result from getting it wrong.

Speth’s chapters on government and corporations seem like they were taken directly from AdBusters or Naomi Klein. That is not to say their analysis is wholly incorrect, but I do think it seriously overstates the power of corporations. Ultimately, they are subject to the will of governments. Of course, they have a strong ability to influence governments: both directly and by manipulating voters. Nonetheless, the authority and capability necessary to solve the world’s most pressing environmental problems lies with governments, and the process of achieving that will be all about altering their internal thinking and incentives. Speth’s analysis is also almost entirely focused on political and economic reform, in the sense of corporate governance. He pays relatively little attention to technological development and deployment, or to the economic instruments through which both can be advanced.

Speth is clearly well-read on the subject of the environmental movement. Indeed, his book is so riddled with quotations that his own voice and perspective are sometimes obscured. It isn’t always clear whether he is wholeheartedly endorsing someone’s idea, or introducing it as a partial contrast to his own point. Despite that, Speth’s writing is concise, clear, and often compelling. While readers may not find themselves in total agreement at all points, Speth at least provides some solid concepts and arguments to respond to.

Ultimately, the approach described in The Bridge at the Edge of the World comes across as somewhat unfocused. The author presents a package of reforms as through each is integral to all the others, but doesn’t make a strong enough case for why that is so. Indeed, the book also fails to present a coherent path from the present forward into a reformed world, indicating which elements are better primed to emerge soon. It may be sensible to argue for more progressive taxation, banning advertising to children, supporting sports and hobbies, providing free child care, etc, but some of these things are clearly secondary to the process of reconciling human civilization with the physical and biological limits of the planet.

Indeed, a strong case can be made that climate change will only be truly solved when it becomes post-ideological: when all the major political ideologies in states with serious greenhouse gas emissions come to accept the fact that they must be reduced and ultimately eliminated. Without that consensus, it seems unreasonable to expect the process of mitigation to continue for decade after decade. By tying the need to mitigate into an overly specific political framework, Speth puts forward a proposal that could obstruct that process, or lead to it sputtering out with the political ascendacy of a group with different perspectives and priorities.

Soft rules for the oil sands means harder targets for others

Environmental Defence has put out a new report on the oil sands that speaks well to both a general and a specific issue. Climate change policy is often about deciding on a total permissible quantity, then haggling over how it gets divided, with everyone asserting that their special circumstances justify lenient treatment. For instance, Canada argues that it should be able to cut its emissions by less than other states because it is large, cold, an energy exporter, etc. By contrast, other states argue for more generous targets on the basis of past action, ongoing extreme poverty, and many other reasons.

Of course, for everyone who gets lenient treatment, someone else needs to pick up the slack, if you are going to meet your targets. What the Environmental Defence report highlights is how giving an easy ride to the oil sands will mean higher costs for everyone else, if Canada is to hit its 2020 and 2050 mitigation targets.* The report – entitled Divided We Fall: The Tar Sands vs. The Rest of Canada – highlights how placing a disproportionate reduction burden on Ontario and Quebec could be harmful for their economic prospects, especially given how greater opportunities for mitigation exist in the fossil-fuel intensive western industries. Also, given the degree to which resource windfalls (in terms of both tax revenues and jobs) tend to accrue provincially, Ontario and Quebec have an even stronger case against allowing a weaker carbon pricing system for hydrocarbon production in Alberta and Saskatchewan.

Domestically, this is just one of the innumerable issues of Canadian federalism. Regional interests generate tensions that can sap the ability of Canada as a whole to achieve good outcomes. Certainly, some provinces will find it much easier than others to recognize and accept the fact that the fossil fuel industry has no long-term future. It’s a one-off bonanza that our legal and moral obligations on climate change will not permit us to fully realize. Instead of continuing to invest in a dead end, Canada needs to get serious about building an economy that can thrive in a low- and ultimately zero-carbon future.

The report is also available in French (PDF).

* It is worth remembering that, while the 2020 and 2050 targets have received much more media attention recently, the original announcement of the current government’s Turning the Corner climate change plan promised that total Canadian emissions would peak no later than 2012. Most people seem to have forgotten about the third promise.

New fuel efficiency standards in the US

Obama’s decision to extend California-style fuel efficiency standards across the US is a very welcome one, not least because it seems likely that Canada’s government will copy them. The US rules take effect in 2012 and create a federal fuel efficiency standard. The aim is to push the efficiency of the US car and light truck fleet to 35.5 miles per gallon (6.63 L/100km) by 2016: 40% better than now. Such a move is long overdue, given the poor efficiency of the US vehicle fleet, the huge amounts of oil imported by the United States in order to keep them running, climate change concerns, and reasonable doubts about the availability of low-cost hydrocarbons in the near to medium future.

While the new standards are a marked improvement, it is worth thinking about them in context. They will not bring the US up to speed with Australia, China, the European Union, or Japan. Indeed, even in 2020, the planned American standards lag behind where the EU and Japan were in 2002. Given the degree to which North American taxpayers now own the big car companies, it may well have been possible to demand more progressive action from them.

Toughening standards may seem even more prescient if the end of the economic slump brings back high oil prices, as some are predicting. As reported in The Economist, the Saudi oil minister is concerned that a sharp increase in oil prices could slow or stop an economic recovery, while attendees at an OPEC summit apparently expect oil to return to $150-per-barrel territory:

The explanation is simple. Oilmen are worried because they believe that many of the factors behind the record-breaking ascent last year remain in place. Much of the world’s “easy” oil has already been extracted, or is in the hands of nationalist governments that will not allow foreigners to exploit it. That leaves firms to hunt for new reserves in ever more inhospitable and inaccessible places, such as the deep waters off Africa or the frozen oceans of the Arctic. Such fields take a long time and a lot of expensive technology to develop. Worse, new discoveries tend to be smaller than in the past and to run dry faster.

More efficient vehicles make sense as a near-term mechanism for dealing with the linked problems of climate change and energy security, but they are only an incremental step. Rather than being able to rely on increasing the efficiency of an unsustainable practice, we need to alter the basis on which that practice occurs, so as to make it both efficient and sustainable. By all means, we need to increase the efficiency with which vehicles of all kinds transport people and freight, but we must remember that we will only have attained our basic goals when those efficient vehicles operate using zero-carbon, sustainable electricity or sustainably grown, carbon-neutral biofuels as their fuel sources.

Coal cancellations in the US

The Economist has been bold enough to suggest that ‘the writing is on the wall’ for coal-fired power plants in the United States, unless they can be converted to run on biomass or incorporated into other ‘green’ compromises. While there have apparently been 97 coal plants cancelled since 2001 (and nine so far this year), those that are operating now are long lived; their contribution to US emissions will barely fall between now and 2030. Unusually, the article makes no mention of carbon capture and storage (CCS) technology, which many supporters of fossil-fuel based power hope will soon emerge as a cheap, safe, and effective mechanism for preventing greenhouse gas emissions. The omission is actually a welcome one, given how tempted industry groups, governments, and commenters in general have been to see CCS as a simple silver-bullet mechanism for maintaining the status quo.

Worldwide, there must be an ever-increasing determination to prevent the construction of new coal capacity, except where it incorporates safe and effective CCS technology (if that proves possible). Meeting climate change mitigation targets (including avoiding a temperature increase of more than 2°C above pre-industrial levels) probably also means a fair bit of existing coal capacity will need to be converted to biomass or brought offline before the end of its economical lifetime. That will provoke the fierce opposition of those who have invested in such projects, though that may be a necessary signal to the market at large that coal-fired power is no longer acceptable – the carbon in the world’s coal beds needs to remain there, rather than being added to an atmospheric stock that is already dangerously high.

States like Canada and the US should be working to rebuild the basis of their energy system on the basis of non-emitting and renewable options. In so doing, they will establish the prerequisites for their own prosperity in the future, as well as help develop the technologies and approaches that will make the same transition possible in rapidly growing developing states.

The B.C. election and carbon pricing

From a climatic perspective, it seems that there are two reasons to be glad about the recent electoral victory of the Liberal Party in British Columbia:

Firstly, it shows that carbon pricing (and carbon taxes, specifically) need not mean death at the ballot box. While it is still far too weak, the B.C. carbon tax is at least a progressive example for North America. Some have concluded that it is actually the most effective climate policy in effect on the continent at this time.
Secondly, it shows that an unprincipled stand against carbon pricing can actually cost a party support. This is an essential development, if we are to deal with climate change. Succeeding will depend on carbon mitigation policies enduring and strengthening for many decades. As such, we need to reach the point where the electorate rejects those who would scrap them for non-environmental reasons.

While there are plenty of reasons to dislike both major political parties in B.C., at least this election didn’t prove to be yet another setback for effective climate policy in Canada.

Here’s hoping the US Congress is able to pass a cap-and-trade scheme before the Copenhagen meeting, and that Canada will finally roll out regulations on greenhouse gas emissions nationally.

Australia’s coal and China

All regular readers of this site are familiar with Canada’s energy dilemma, as far as the oil sands, the United States, and climate change are concerned. The US has a huge appetite for oil, and is increasingly anxious about getting it from the Middle East. From a short-term perspective, this positions Canada’s unconventional oil very nicely. Of course, when you think long-term and realize the importance of climate stability, you become a lot more likely to think we would be better off leaving the stuff in the ground.

A similar dynamic seems to exist when it comes to coal, Australia, and China. In March 2009, China imported 1,716,802 tons of Australian coal. All told, it imported 211% more coal between January and March as in the previous year. Like Canada, Australia has extremely high per-capita emissions, a poor record on greenhouse gas mitigation, and a lot of export-oriented resource extraction industry. Also like Canada, it may well be the case that long-term climatic stability requires leaving most of that coal underground.

As such, it is disappointing that Australia has delayed plans to institute carbon pricing. When it comes to the negotiations at Copenhagen in December, dealing with the complexities of energy imports and exports will certainly be among the trickier issues that need to be sorted out in negotiations. While the climatic requirements are clear (sharply reduce global emissions), the economic and moral ones are trickier. After all, a fair bit of the coal China is burning is being used to make products for people in other states. Who, then, bears the moral responsibility for the emissions associated with extracting, shipping, and burning the coal? What sort of legal regime can be established to effectively incentivize decarbonization throughout such complex international production chains?