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“Scientists Announce That Humanity Can Afford to Burn Twice as much Carbon as Previously Thought.”   File that thought among headlines-you-never-saw-in-the-New-York-Times.  But buried in Eduardo  Porter’s  Economics Scene column last month endorsing nuclear power as mitigation for global warming was just such a suggestion.

Porter cites an “authoritative new study” for the proposition that  ”humanity must spew no more than 900 billion more tons of carbon dioxide into the air from now through 2050.”  That sounds like bad news — but the 2050 carbon budget  limit underlying Bill McKiben’s “Do the Math” campaign for divestment in fossil fuel industries is just 565 billion tons.   I used this number in an earlier post to calculate a sustainable global per capita direct carbon footprint of a scant one ton annually (about the equivalent of a single one-way flight from NY to LA).  And the study Porter relies on was produced by the same group that McKibben relies on.

What accounts for the difference between the 565 billion tons Bill McKibben has popularized and the 900 billion tons cited by the 2013 study?  The Grantham Research Institute  on Climate Change and the Environment, the authors of the study, explain that the 565 billion ton budget released in 2011 assumed no mitigation measures for non-carbon greenhouse gases such as methane, while implementation of  available methane controls in waste management and agriculture would allow a substantially larger carbon budget.  A substantial (and not yet implemented) investment in carbon capture and storage might extend the carbon budget by an additional 125 billion tons — resulting in a 2050 carbon budget of over a trillion tons, twice the previous figure.


This news is not enough to get me to go out and buy a car or start hopping on jet planes again.  But the implicit global per capita  direct carbon footprint of two tons is much less out of reach than a single ton.  And keep in mind that the Grantham study assumes near complete cessation of carbon burning activities after 2050 to maintain that 2 degrees celsius limit on warming — 75 million tons spread out over the second half of the century.  This suggests that the goal of policy maker, activists, and legal thinkers should be abolition of fossil fuels, not market based rationing.  (My current research includes looking at the parallels between the global abolition of slavery, which took well over a century of activism to accomplish, and the challenge of responding to climate change).


The  900 billion ton carbon budget posited by the Grantham study is based on avoiding catastrophic climate change in excess of 2 degrees celsius.  Also in the department of good news that may be bad news,  Andrew Revkin’s Dot Earth blog this week points to a comprehensive analysis by the Yale Forum on Climate and the Media on global temperature records for the past decade showing a slowing in the rate of warming.  The analysis is careful not to draw any conclusions, but does point out that the observed data is most consistent with those Global Climate Models that assume a lower sensitivity of the global climate to greenhouse gas forcings. The analysis considers other explanations for the disparity between the model consensus and the observed data and concludes that these other explanations are ether inadequate to explain the discrepancy, or are already accounted for in the models in question.   The less-sensitive models most consistent with the observations predict an ultimate warming of about 2 degrees celsius even under a “business as usual” scenario for carbon emissions.  In other words, it is just possible that even in the absence of measures to limit global carbon emissions, the world just might avoid exceeding the 2 degree C threshold for catastrophic climate change.

So where is the bad news?  The bad news is that, given the huge inertia in our energy economy and the psychological and political barriers against a consensus for action on climate change, scientific uncertainty becomes a driver of inaction.  While environmental law and international norms may have adopted the opposite approach in the form of the precautionary principle, political and social systems prefer inaction in the face of uncertainty.  The suggestion that maybe we can keep burning more like one trillion tons of carbon, rather than 565 billon, or that under a business as usual scenario the globe will no exceed the 2 degrees C threshold can only delay an aggressive response to climate change.

We are engaged in one huge and dangerous science experiment with Planet Earth.  Each climate model is an hypothesis about how the global climate system fits together, making a prediction based on a set of parameters.  Observations over the course of decades may validate or disprove particular global climate models, and may ultimately reject the most pessimistic (highest climate sensitivity) models.  None of the observations about the pause in global temperature change casts doubt on the fact that the planet is warming at an unprecedented rate due to anthropogenic sources.  Indeed, the observed data suggests a huge increase in deep ocean thermal energy, which may be mitigating the surface temperature increase.

We don’t have a “control” planet for our global experiment — so if the next decade’s data shows a return to rapid surface warming that is consistent with the more pessimistic global models. we can’t abandon our experiment.  And a 2 degrees C increase in global temperature may be the global consensus for avoiding catastrophe, but it is not acceptable.

Over the past two decades, some coherence in the federal environmental legal system has been achieved, but climate change now demands a stronger legal framework ensuring that federal, state, and local agencies work together to leverage available resources. Despite this imperative, recent legislation in North Carolina prohibiting the State Coastal Resources Commission from defining sea level rise for regulatory purposes is a serious setback.   In a related move, Virginia’s legislature insisted in removing all references to global warming and sea level rise from legislation that provided funds for flooding and reconstruction work in the state.

The topics covered in this blog post are based on my articles, Shifting Paradigms Transform Environmental and Land Use Law: The Emergence of the Law of Sustainable Development, and Katrina’s Lament: Reconstructing Federalism.

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The last two decades witnessed a surge in adopting local and state open space protection laws and strategies. These techniques are now being examined as capable of protecting and enhancing the sequestering environment, which captures and stores from 15 to 20 percent of the nation’s carbon dioxide emissions.

This blog post is adapted from my articles Shifting Paradigms Transform Environmental and Land Use Law: The Emergence of the Law of Sustainable Development and Managing Climate Change Through Biological Sequestration: Open Space Law Redux.

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Debates are raging in states underlain by shale gas formations, triggering arguments about the economic, health, and environmental impacts of a seemingly more climate-friendly source of energy. As we move from coal and oil to gas, countless decisions must be made about which level of government in our legal system should regulate which aspects of this new technology called unconventional gas drilling or hydrofracking.

This blog post highlights topics covered in depth by my articles, Shifting Paradigms Transform Environmental and Land Use Law: The Emergence of the Law of Sustainable Development, Hydrofracking: Disturbances Both Geological and Political: Who Decides? (with Victoria Polidoro), and Hydrofracking: State Preemption, Local Power, and Cooperative Governance (with Steve Gavin).

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During the past twenty years, sustainable development law has come of age, with an increasing number of law firms, public officials, and scholars viewing environmental, land use, real estate, energy, and other related fields of law as an integrated area of policy, practice, and scholarship: one that is capable of achieving impressive gains in energy conservation and emissions reduction. Enough has been learned to promulgate a set of standards to guide local governments in using their land use authority to create sustainable private sector development. Since two-thirds of the buildings on the ground by 2050 will be built between now and then, such a system could not be more urgently needed. In this blog post, I highlight the need for such an initiative and offer eight key objectives that illustrate how it could be structured to achieve local sustainable development and help integrate the related efforts of state and federal agencies.

This blog post is based on two of my articles, which contain in-depth discussions of these topics: Shifting Paradigms Transform Environmental and Land Use Law: The Emergence of the Law of Sustainable Development, as well as Changes Spark Interest in Sustainable Urban Places: But How Do We Identify and Support Them?

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The per se taking doctrine of Lucas and the less-than-certain projections of sea level rise hinder the use of land use and environmental regulations in preventing and mitigating development on coastal properties threatened with gradual inundation and sudden storm damage.  In these areas, the regulatory approach may have to yield to more flexible negotiations regarding applications to build in vulnerable places.

These issues are discussed in my article for the Fordham Environmental Law Journal, Shifting Paradigms Transform Environmental and Land Use Law: The Emergence of the Law of Sustainable Development,[1] as well as in my article for the Brooklyn Law Review, Land Use and Climate Change: Lawyers Negotiating Above Regulation.[2]

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The advent, beginning roughly in 1992, of local environmental law is adding expansive bottom-up land use strategies to top-down environmental law: local strategies that now constitute an accepted area of practice and scholarship.[1]

Critics of any attempt to solve the problems of sea level rise and climate change at the local level have a point: this is a global matter with national implications and should be addressed through top-down national strategies, not left to the vagaries of local initiatives. The last two decades, nonetheless, demonstrate the wisdom of enabling, encouraging, and guiding local governments to solve environmental problems at the ground level, through their delegated zoning, land use, home rule, and police power authority.

This issue is further explored in my article, In Praise of Parochialism: The Advent of Local Environmental Law, as well as in Shifting Paradigms Transform Environmental and Land Use Law: The Emergence of the Law of Sustainable Development.

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I watched Bill McKibben’s movie about his “Do the Math” Tour last night, and got to watch some of my good friends and personal environmental heroes getting arrested for civil disobedience protests against the Project XL pipeline. McKibben’s “Do The Math” campaign draws on the civil rights protests against 1960s segregation as well as the 1980s divestiture campaign against South African apartheid as a model for the ultimate 21st century climate protest.

McKibben points out (as he did in his 2012 Rolling Stone article) that the world can only afford to burn another 565 GT of CO2 equivalent by mid-century if it is to avoid catastrophic climate change. Identified reserves held by oil and coal companies exceed this threshold by five times over, and the globe is on track to cross the mid-century threshold in just 15 years. McKibben points out the huge climate externalities of the fossil fuel powered energy system and lays these externalities at the fossil fuel industries’ feet. The fossil fuel industry is fouling the global atmosphere with its combustion products in pursuit of obscene profits without having to pay for its pollution impacts. McKibben hopes divestment from fossil fuel investments by universities and public pension funds will force the fossil fuel industry to limit its climate impact.

All of which I heartily agree with, but McKibben leaves out one important point: the fossil fuel industry can’t make its obscene profits and cause its huge externalities without the willing participation of its accomplices: everyone who burns fossil fuels. That is, pretty much all of us. While it may be fair to lay the environmental externalities of fossil fuel combustion at the feet of the fuel suppliers (who know and expect that that is the result of the end use of their product), these environmental externalities also lay at the feet of the fossil fuel consumers, who benefit from burning oil, gas, and coal without paying for the climate impacts that result. While it might be fair to blame the drug pusher for crimes committed by addicts to support their habit, it seems a little odd to hear the addicts blaming the pusher for their own crimes.

So, here is the simple math that Bill McKibben does not do: 565 GT of CO2 max the planet can burn in the 37 years between now and 2050 works out to a maximum of about 15 GT per year. There are some 7 billion people on earth. More simple math: 15 billion tons per year divided by 7 billion people equals roughly 2 tons per person per year, even assuming zero population growth.

Assuming that for most people their total carbon footprint is about twice their direct personal carbon footprint, that leaves about one ton per person per year globally as a maximum direct carbon footprint. That’s about 100 gallons of gasoline (20 lbs CO2 per gallon). That’s enough to drive the average car 2,100 miles, or a Prius hybrid 5,000 miles. Or it’s enough for a single one-way flight from New York to Los Angeles. Maybe one flight round trip, if one assumes the lowest carbon impacts presented by various carbon calculators.

I don’t know anyone living on that kind of a carbon budget. I try hard, but the best I can do is to aspire to limit my direct footprint to three or four tons per year. The austerity of a sustainable global per-capita carbon footprint forces one to confront one’s true feelings about global inequality: my three ton carbon footprint is only sustainable if one assumes six people elsewhere on the planet living with one-half the sustainable one-ton per capita limit to make up for it.

But, for the past week, as a personal challenge for Earth Week, I have given up direct fossil fuel consumption entirely: I am in the seventh day of completely avoiding using any fossil fuels for heating, lighting, cooking, or transportation. This meant turning off the heat and hot water in my house, and cooking with an electric crockpot and microwave. I pay a few cents extra for 100% wind electricity at my house, so I didn’t have to turn off the lights. Two days this week I biked and kayaked to work; three days this week I rode my electric motorcycle that is charged by solar panels at my house and at the E-House at Pace. The only thing I am really really missing is a hot shower!

Bill McKibben’s “Fossil Free” campaign means divestment. But, as McKibben points out, the technologies to eliminate fossil fuel use are already available. They just happen to be more expensive and less convenient, so consumers don’t choose them — a classic case of consumer environmental externalities. Why not a “Fossil Free” Campaign for a boycott of the fossil fuels? Now that would really bring the fossil fuel industry to its knees.

In 1992, families with children predominated, creating a market for single-family, single-lot homes in suburban greenfields—the American Dream; 2013 sees a different market emerging of younger and smaller households, most of whom seek rental apartments or smaller for-sale homes in urban places, while cities learn to create sustainable neighborhoods to accommodate a new settlement pattern shaped by many American Dreams.

The forthcoming 5th Assessment report of the Intergovernmental Panel on Climate Change, which contains for the first time a chapter on human settlements, infrastructure, and spatial planning.  Professor John R. Nolon participated in the expert’s meeting regarding this chapter and contributed his article, The Land Use Stabilization Wedge Strategy: Shifting Ground to Mitigate Climate Change, and an article by Meg Byerly, Staff Attorney at the Land Use Law Center, A Report to the IPCC on Research Connecting Human Settlements, Infrastructure, and Climate Change.  This chapter is still in draft and we anxiously await its circulation.

These issues are explored in my article for the Fordham Environmental Law Journal entitled Shifting Paradigms Transform Environmental and Land Use Law: The Emergence of the Law of Sustainable Development.

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The Animal Law Circus

David Cassuto (x-post from Animal Blawg)

There’s a story about a Canadian farmer who won a $100 million tax-free, lump sum payment in the Canadian lottery.  When asked what he would do with the money, he replied “I guess I’ll just keep farming until the money’s gone.”

Now let’s talk about animal law.

Asian elephants are endangered.  Elephants in circuses are brutally mistreated.  In 2000, a lawsuit was brought under the Endangered Species Act, claiming that the elephants’ treatment by Feld Entertainment (parent of Ringling Brothers) violated the “No Take” provision of the ESA and should be enjoined.  In late 2009, following a lengthy litigation a judge threw out the case after deciding that the former circus worker who was the lead plaintiff in the case lacked credibility and was paid for his testimony and that there was therefore no standing for the plaintiffs to sue.  The decision was a travesty on many levels (some of which I’ve blogged about elsewhere).  Perhaps most disturbing was the fact that the treatment of the elephants became wholly ancillary to a ridiculous debate about people.  Continue Reading »

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