Law – Page 41 – a sibilant intake of breath

Cap-and-trade schemes and price increases

An exciting element of the new American administration’s climate change agenda is the promised cap-and-trade scheme for greenhouse gas emissions. During the campaign, Obama pledged that the system would auction 100% of the permits. The government would issue a set number of permits each year, which firms would need to bid for competitively. That way, the price of permits would be established through a market mechanism and whatever opportunities existed to mitigate emissions for a lesser cost would be captured. The revenues from the auctions could be used in various ways.

One big rhetorical counter-argument, employed largely by those seeking to stall the regulation of greenhouse gasses, is that this will increase consumer prices. At least when it comes to greenhouse gas intensive products, this is necessarily true in the short to medium term. The whole idea behind carbon pricing is to alter the relative cost of high-carbon and low-carbon goods: encouraging people to switch from the former to the latter, and generally minimize the consumption of high-carbon goods altogether. Prices are an important mechanism through which this information is conveyed. Also, the existence of a significant and rising cost of carbon is necessary to drive the kind of investments required to produce a low-carbon society.

There are a number of important responses to the point about raising prices. Firstly, it is important to highlight how the transition to a low-carbon economy is necessary and one-off. Putting society on a sustainable footing is a huge task, but also one of humanity’s biggest opportunities. Managed properly, our response to climate change can establish key parts of the foundation for a sustainable society. Secondly, it is key to realize that energy companies will pass along the cost of permits, even if they receive them for free (this previous post explains why). This leads to the third point, about the importance of where the funds go. In a system where permits are ‘grandfathered’ and given to power plants and industrial facilities for free, the price increases will translate into profits for those polluting firms. Cap-and-trade revenues, however, go into the public coffers. They can then be used to help individuals deal with the difficulties of economic transition, reduce taxation elsewhere, and help fund green infrastructure projects.

The 100% auction plan is certain to face stiff opposition in Congress. In spite of that, it is very much worth putting through. It is far better to get a weak but decently-designed system in place, ready to be tightened up later, than introduce something that is compromised from the start. Putting a small but real price on every tonne of emissions is thus better than entrenching a system of free emissions for favoured firms, even if non-favoured firms face higher initial carbon prices. Here’s hoping the Obama administration has the resolve and skill required to really kick off America’s urgent transition towards carbon neutrality.

Regulating dirty coal in the US

The New York Times is reporting on how the Obama administration in the US is going to propose new regulations on the wastes from coal combustion, including coal ash of the kind that spilled so dramatically in Tennessee, causing $100 million in damage. The wastes contain toxins like arsenic, mercury, and lead at higher concentrations than in previous decades, partly because the scrubbers used to keep these toxins out of the plant’s air emissions lead to them ending up in the ash instead. In 2006, the National Research Council of the National Academies researched the mean concentrations of toxins in the ash: arsenic (43.4 ppm); barium (806 ppm); beryllium (5 ppm); boron (311 ppm); cadmium (3.4 ppm); chromium (136 ppm); chromium VI (90 ppm); cobalt (35.9 ppm); copper (112 ppm); fluorine (29 ppm); lead (56 ppm); manganese (250 ppm); nickel (77.6 ppm); selenium (7.7 ppm); strontium (775 ppm); thallium (9 ppm); vanadium (252 ppm); and zinc (178 ppm). In 2007, the National Academy of Sciences concluded that: “The presence of high contaminant levels in many CCR (coal combustion residue) leachates may create human health and ecological concerns.”

At present, coal ash facilities are regulated far less stringently than landfills for municipal waste, despite how they are fundamentally more hazardous. The new regulations will aim at preventing spills, as well as the leaching of toxins into the water supply.

It just goes to show that, even with effective carbon capture and storage technology, coal will probably never be a clean source of energy. By the time coal-fired power stations are required to mine, burn, and dispose of coal in a more environmentally benign manner, the cost advantages associated with coal are likely to vanish as well.

Access rights to Canadian waterways

According to Saxe Environmental Law News, the federal government has proposed to amend the Navigable Waters Protection Act in a way that would limit future public access to navigable waterways:

Ever since Canada was first settled, anyone in a canoe has had a right to paddle rivers, lakes and streams with enough water to float in… Now the federal government is proposing to give away much of this power.

The right to free navigation in public space seems to be an important part of living in a just and open society. Having limits on the extent and character of private property is an important mechanism for maintaining an overall civic structure, in which everyone has equal rights under the law. As someone who has enjoyed a fair bit of canoeing (and some kayaking) in the past, I find this potential change of rules worrisome. Hopefully, this decision will get appropriate scrutiny from lawmakers and the public.

The post also includes a link to a memorandum on the issue (PDF), written by Ecojustice.

Creative Commons ‘zero’ license

It says something about the current climate of intellectual property law that Creative Commons has released a new ‘zero’ license, which strives to do everything legally possible to put a work into the public domain. The new license is meant to be an improvement over their previous public domain dedication service:

The CC0 system works better internationally, is likely more legally valid (since one can not dedicate their works into the public domain in many countries and there are questions about doing so in the U.S.) and, if the icon and meaning becomes recognizable enough, more clear.

It seems a bit remarkable that it is so difficult to choose to give intellectual property away. I can understand the importance of legal protections to ensure that people don’t do so by accident (particularly children), but it does seem as though there should be a straightforward legal mechanism to waive all rights as the creator of a work.

The contents of this site are under a Creative Commons license: specifically, one that allows anyone to copy, distribute and transmit the work, as well as produce adaptations. It requires that the work be attributed to me, that any derivative works be subject to the same rules, and does not grant these rights automatically for commercial purposes. That is to say, if someone wants to use one of my images on a personal site, with attribution, that’s fine; if Visa wants to use it in a commercial, I expect them to pay for the usage rights.

Creative Commons licenses are very valuable because they allow creators of content to establish such regimes without needing to hire lawyers or spend a lot of time and money.

Dealing with space junk

Junk in space is an increasingly severe problem, as both the quantity of useless debris and the number of useful satellites increases. Aside from international censure, there isn’t especially much that can be done at present to punish those who make the problem worse, as China did when they blew up one of their satellites in 2007.

A good international approach to mitigating the problem might resemble the following: an international agreement among space-faring states to avoid the production of such debris, coupled with a penalty system for situations in which it occurs. The money from the fines could be put into an insurance fund. Then, when collisions take place between unmanned satellites or manned space vehicles, some level of compensation could be paid out of that fund.

Setting up such a system would require the support and goodwill of quite a number of states. Nonetheless, it might help make the regions of space closest to our planet somewhat more orderly and well-governed.

Legal guide for bloggers

For those who are serious about their blogging, or simply concerned about the legal ramifications of the practice, the Electronic Frontier Foundation has a Bloggers’ Legal Guide available.

While it is focused on American law, the general principles and issues discussed are likely to be relevant elsewhere. Issues covered include intellectual property, defamation, the legal status of bloggers as journalists, and more. It also includes a page specifically for students.

People living in countries that have weaker protections for free speech might be better served by the BBC’s guide: How to avoid libel and defamation. On a side note, I certainly hope that British law evolves away from requiring the author to prove their comments were justified and towards requiring the person or organization alleging libel or defamation to prove that such things took place. The current approach encourages frivolous lawsuits and drives journalists to bury or tone down stories without due cause.

The MMR vaccine and autism

I am glad to see that an American court has rejected allegations that the MMR vaccine causes autism. The anti-vaccine movement that is gaining ground in Europe and North America is a worrying one. It is worrying on a direct level because it exposes children to new dangers and raises the risk that diseases that have been all but eradicated will return. It is also worrying insofar as it demonstrates the depth of the lack of trust between large elements of the population and doctors and scientists.

As with the alternative medicine craze, a disturbing number of people have decided that evidence-based medicine is lacking and have opted for alternatives that range from relatively harmless quackery to dangerous malpractice. It leaves one wondering if there is any mechanism through which broad public confidence could be restored.

Three passages from Payback

There are three further elements of Margaret Atwood’s Payback that seem in keeping with the themes of this blog, and the current conversations here. I am not going to comment on them excessively, since I think they provoke enough thinking in themselves.

The first is her list of possible responses to major crises. You can “Protect Yourself, Give Up and Party, Help Others, Blame, Bear Witness, and Go About Your Life.” In the context of climate change, it seems like we are all engaging in a particular combination of these behaviours. It is worth contemplating if it is the right one. She doesn’t really discuss how there is a prisoner’s dilemma at work here. If nobody else addresses problems, protecting yourself or partying are your best options. If you can convince others to cooperate, you can help others and get on with your life.

The second is her description of an international approach to climate change mitigation:

[G]lobal warming has been dealt with at a global summit during which world leaders gave up paranoia, envy, rivalry, power-hunger, greed, and debate over who should start cutting down the carbon footprint first and rolled up their sleeves and got with it.

While that is a very appealing vision for how developed and rapidly developing states might behave, it does seem appropriate to recall that, in many places, the reduction of extreme poverty and insecurity is a more urgent task. Let Canada, China, and the United States learn how to run a zero carbon society, before calling on Sudan or Afghanistan to do so.

The third is a hypothetical response the American president could have given to the September 11th attacks:

We have suffered a grievous loss – a blow has been struck at us that was motivated by an obsessive desire to harm us. We realize that this was the work of a small group of fanatics. Other nations might bomb the stuffing out of the civilian population where those fanatics are at present located, but we recognize the futility of such an action. Nor will we accuse any bystander nation of having been involved. We realize that acts of vengeance recoil upon the heads of the inventors, and we do not wish to perpetuate a chain reaction of revenge. Therefore we will forgive.

The quote is an interesting one. For me, the last sentence somewhat clashes with the rest. It is one thing to say: “We will not take this fight to those who did not start it.” It is quite another to say that we will not respond directly to those who did, while being careful to spare the innocent. While it is on the fringe of what is imaginable that the United States might have responded to Al Qaeda through international cooperation and the vigorous efforts of law enforcement and the courts, it doesn’t seem either moral or believable that they would not respond in some way to those who were directly involved.

Payback: Debt and the Shadow Side of Wealth

This series of lectures, published in book form, shows Margaret Atwood at her lively best. It is reminiscent of James Burke’s series ‘Connections,’ in which he traces a seemingly random path through history, choosing the most interesting and unexpected road at every juncture. In some ways, Atwood’s consideration of debt occurs in an even richer world, since it includes literature, mythology, and religion among the kind of paths that can be followed.

The first section of the book examines debt in a historical and conceptual way: considering different kinds of debt (financial, moral, spiritual, etc) as well as different modes of repayment. It considers the ethics of being a borrower and a lender, as well as the consequences that can arise for those who happen to be near either. Atwood’s examination highlights how lenders can err both in being too harsh on their debtors and in being too stingy with their money – both the vicious loan shark and the penny-pinching miser are culpable. The book discusses revenge as a special form of debt repayment, as well as the complexities that arise when debts are being incurred by states and princes. All this is made quite entertaining by the cleverness of the connections being identified, and the teasing and humorous tone of the narration.

The second section is an exposition of our current state of deep indebtedness, and a recognition that the greatest and most threatening of those debts are ecological. While Atwood’s updated Scrooge story includes asides on the unjustness of the World Bank and IMF, as well as the risks associated with fiat currencies, her primary concern is with the wanton destruction of the natural world that has been accelerating since the industrial revolution. She singles out overfishing, biofuels, deforestation, overpopulation, soil depletion, and climate change as examples, painting a general picture of extreme human recklessness. The redemptive vision is one based around neo-hippie victory: renewable power, an international agreement to stop climate change, and organic food for all.

The concluding story feels a bit trite, really. Any corporate baron paying the slightest bit of attention would already be jaded about the messages from the ghosts Atwood’s Scrooge Nouveau receives. That said, and while the literary merits of the first section exceed those of the second, it is appealing that this is a book of action as well as contemplation. It is hard not to agree with the thrust of Atwood’s argument. By all means, let’s increase the fairness of the global financial system and curb humanity’s self-destructive ways. This book contributes to that project by provoking a great deal of thought about the symbolism and meanings of debt. We will need to look beyond it for concrete ideas about how to overthrow or convert those who favour the status quo and thus bring about a sustainable (appropriately indebted) new order.

I say ‘appropriately indebted’ because the book makes a strong case that we can never really be out of debt. As social entities, there are always tallies of obligation between us, and nobody can ever be said to be sitting perfectly at the balance point of these transactions. Indeed, given the way they are denominated in different currencies (honour, favours, wealth), seeking such an outcome is hopeless. What we can attain is the position of borrowing and lending rightly, with forgiveness and an awareness and concern about the consequences for those around us and the wider world.

In any case, the book is highly topical, informative, and makes for a quick and rewarding read. It is telling that, while other books have been sitting around my apartment for months, I received this one in the mail yesterday and finished it today.

Closing Guantanamo and reining in the CIA

Not only did Barack Obama order the closure of Guantanamo Bay, he has also ordered that secret CIA prisons be closed and that the CIA must abide by the Army Field Manual in conducting interrogations. The latter decision closes a serious loophole in the human rights policies of the previous administration.

While there are a lot of tricky decisions left to be made about exactly how the prisons will be closed, who will be tried, who will be released, and where, this is a major step towards American rehabilitation in the eyes of the world. Hopefully, this will underline the fact that the Bush policies on torture and imprisonment were an aberration from the overall American approach. Of course, their injustice could be highlighted all the more effectively through the prosecution of some of the people who illegally implemented and oversaw them to begin with.