Tag Archives: environment

Constitutions And The Future

One of the academic listservs in which I used to participate was devoted to law and courts-both in the U.S. and internationally. Discussions contained a healthy dose of constitutionalism. I say I “participated,” but I mostly lurked–reading the commentary posted by notable scholars in the field, and learning a lot.

One fascinating exchange a year or so ago was triggered by discussion of a case brought by a group of  American children who claimed that government’s inadequate measures to combat climate change deprived them of their implied constitutional right to a livable environment. The case was thrown out by the liberal Ninth Circuit in January of 2020, and someone posted a question to the listserv, asking whether there were any constitutions around the world that would have been more protective of what the questioner termed “inter-generational equity.”

It turned out that more than 50 constitutions have such “inter-generational equity” clauses. Responses also linked to several “protection of the environment” clauses among the 166 currently-in-force constitutions that say something about that topic. 

As if to emphasize the salience of the issue, it was during the listserv discussion that the German Federal Constitutional Court decided a case in which it rejected the then-current plans of the German government to meet climate targets. The decision obligated the German government to rework its plans, and commence planned measures sooner, if not immediately, so as to avoid putting the burden of meeting environmental targets on future generations.

The press release of the Court (in English) is here.

As one scholar opined:

The decision invoked the duty to protect positive rights as part of the obligation to protect negative rights. Or, less abstractly, the decision argues that the only way to protect a negative right (the right to life, toward which the state has the obligation to refrain from interference) is to also protect positive rights (the right to health and the positive side of the right to life, both of which oblige the state to engage in affirmative protection). Other courts have understood the protection of positive rights as necessary for the protection of negative rights like this – particularly courts in the global south like India, Colombia and South Africa – but it has not been so common for global North courts to make this link. This is a huge leap for Germany.
The decision explicitly engages in the intertemporal assessment of rights protection. It weighs the burden on the liberty of people in the future when tough climate goals will kick in against the liberty of those in the present who give themselves a break by putting hard decisions off. And the Court finds that the current government assesses this balance wrongly by not leveling out the burden across generations. The Court therefore defends the intertemporal protection of liberty. Again, a first.

Lest you think that the German Federal Constitutional Court has taken a great leap off into judicial activism in defending against climate change, however, it’s important to note the language of the Basic Law with which they are working. Article 20A of the constitution says the following:

“Mindful also of its responsibility toward future generations, the state shall protect the natural bases of life by legislation and, in accordance with law and justice, by executive and judicial action, all within the framework of the constitutional order.”

In short, the German constitution explicitly requires the state to engage in intertemporal assessment (“mindful of future generations”) and also that the state has an affirmative duty to protect the “natural bases of life.” The Federal Constitutional Court was giving life, so to speak, to this provision and not inventing a right to environmental justice out of thin air. That said, the reasoning of the Court is nonetheless remarkable, especially if the two principles I mentioned above are going to become basic principles of interpretation with regard to other rights as well.

How would American constitutional interpretation change if our courts were required to take intergenerational justice into consideration?

Somehow, I find it hard to believe that our so-called “right to life” Justices would recognize such measures as a necessary consequence of their piously declared “reverence for life,” a reverence that apparently terminates at birth. 

 

Shame On Indiana–Again

During this year’s session of the Indiana General Assembly, environmental organizations followed–and lobbied against–an effort to roll back Indiana’s already inadequate regulations of the state’s wetlands. As usual, when there is a conflict between science and profit, profit won.

After the bill emerged from the legislative process, 110 organizations and individuals wrote a letter to Governor Eric Holcomb, “respectfully requesting” that he veto it. Governor Holcomb has proved to be far more rational than Republican members of the state legislature–more in the mold of Republicans of days-gone-by– and he had even allowed members of his administration to testify against the bill as it proceeded through the House and Senate, so there was some reason for optimism.

That optimism was dashed. Holcomb is defending his decision to sign the measure by saying that, in its amended form, the bill was less objectionable. Environmental scientists beg to differ, asserting that it ‘puts wellbeing of millions of Hoosiers at risk, now and well into the future.”

Indiana’s existing wetlands law was written in 2003, and it was admittedly due for review and revision now that the state had several years of experience with it. But experts say that rather than improving and fine-tuning the existing law, the changes made by this particular legislation will do “substantial harm to Indiana’s water future.”

According to the environmentalists and other concerned citizens who petitioned Holcomb, the legislation he has now signed puts  the vast majority of Indiana’s wetlands–and there are at least 500,000 that are under state rather than federal jurisdiction– in jeopardy. Indiana already ranks fourth among the states with the greatest loss of wetlands . The likely negative results of this measure will be increased flooding and erosion, loss of groundwater recharge and water supplies, water purification, safe recreation and tourism opportunities, and loss of the diverse wildlife that (according to the letter) “makes Indiana special.”

I am sorely tempted to offer some snark about what I think “makes Indiana special,” but I’ll restrain myself. Let’s just say it is neither respect for expertise or appreciation of nature’s bounties…

The signatories to the letter appended background information detailing the function of wetlands, and offering policy alternatives. They should have saved their pixels.

The letter was signed by a diverse number of organizations, as well as by science professors in relevant fields, and–notably–by several Indiana cities and mayors, and by religious organizations. (The latter evidently take seriously the biblical admonition to be “stewards” of the Earth.)

The letter, the list of signatories, and the science-heavy addendum are widely available online, and the addendum, especially, details the science bolstering the very serious concerns expressed. Our legislators, however, have a history of ignoring science (if you doubt that, take a look at the number of medically-inaccurate assertions they’ve included in their various attacks on reproductive choice) and they have routinely privileged the short term economic interests of their supporters over the long term best interests of Indiana citizens. 

In this case, according to those who followed the bill, the legislative priority was protection of land developers who might find themselves unable to pave over or otherwise wrest profit from every inch of property they own, even under Indiana’s relatively weak regulations.  

Oh, Indiana….will Hoosiers ever grow up?






 

 

Red Meat

By this time, most Americans who follow the news–or, in the alternative, Fox– have encountered the great meat hoax. It will undoubtedly go into the history books next to those non-existent “death panels” that Republicans insisted were part of the Affordable Care Act.

In case you’ve been vacationing under a rock somewhere, here’s the short version. When President Biden announced his climate plans, a garbage story from the routinely garbage-y Daily Mail somehow conflated those plans with a 2020 research study that was totally unconnected. The study had considered various methods of combatting climate change, and identified a drastic reduction in meat consumption as good for the environment.

Many pundits, including Paul Krugman, reported on that article, and on what happened next.

Among other things [the Daily Mail] took the most extreme scenario from a University of Michigan study of how reduced meat consumption could affect greenhouse gas emissions — a study released in January 2020 that had nothing whatsoever to do with the Biden plans. The Daily Mail also used a deceptive graphic to make it seem as if this was an actual administration proposal.

American right-wing pundits and politicians then ran with it. Did they actually believe the nonsense they were spouting? Well, Kudlow’s apparent belief that beer is made with meat is arguably a point in his favor, an indication that he’s genuinely clueless rather than merely cynical.

The reference to Kudlow (I vote for clueless) was a response to his laughable assertion (on Fox, of course) that Biden would soon have Americans drinking beer made from plants. (As one wag asked, “What’s next? Fruit based orange juice?”)  Twitter and Facebook users wondered what Kudlow thought beer is currently made from.

What’s clear, however, is that neither Kudlow nor other Republicans touting an imaginary war on meat saw any need to check out their story, felt any concern that their audience — Fox News viewers, Republican voters — would find the claim that Joe Biden is coming for their red meat implausible.

Krugman has an answer to the question why Republicans don’t bother to fact-check: he suggests that facts are incompatible with the GOP’s goal to define Democrats as “woke feminist vegetarians who don’t share the values of Real Americans.” He cites the right’s constant yammering about “cancel culture” and persistent demonization of Democratic women of color, along with the continual portrayal of Biden– a white male senior citizen–as nothing but a passive puppet.

Right-wing media are pushing this narrative nonstop. According to a Morning Consult poll last month, more Republicans said they’d heard “a lot” about the move to withdraw some Dr. Seuss books than said the same about Biden’s huge Covid-19 relief bill.

Talk about your alternate realities! (Along the same lines, Tucker Carlson recently told Fox viewers that they should “report” parents of children wearing masks, because making your child wear a mask equates to child abuse.)

One commenter on this blog opined that the real pandemic in this country isn’t COVID; it’s insanity. Purveyors of snark clearly agree. As a columnist for the Chicago Tribune wrote (after emphasizing that neither Biden nor his administration had suggested a plan to reduce or limit the consumption of red meat):

But because the Daily Mail, a chronically wrong British tabloid, connected the Michigan study to Biden’s climate plan, America’s right-wing media ecosystem erupted over the weekend in a perverse display of meat-rage. It was a veritable beef freak out. Baseless burger bollocks.

Fox News, the network where facts go to die, ran a graphic featuring a double cheeseburger under the titles “Up In Your Grill” and “Biden’s Climate Requirements.” The graphic’s burger-adjacent text included the lines: “CUT 90% OF RED MEAT FROM DIET”; “MAX 4 LBS PER YEAR”; and “ONE BURGER PER MONTH.”

An equally accurate graphic would read: “REINCARNATED RONALD REAGAN LOCATES AND BEFRIENDS BIG FOOT, PAIR EXPECTED TO DEFEAT COMMUNISM.”

We can laugh at Larry Kudlow’s apparent ignorance about the origin of beer and we can shake our heads over the GOP’s increasing distance from sanity, but the willingness of partisans to believe and spread utter nonsense is frightening. It’s true that a significant percentage of Americans has always been credulous–think of those who panicked listening to Orson Wells’ War of the Worlds–but we have never before had a major political party  composed in large part of credulous citizens willing to believe “leaders” who routinely manufacture “red meat”–or attacks on red meat–for their consumption.

A disloyal opposition is dangerous.

 

 

Stiglitz On The Environment

Today, I’m largely turning this blog over to Joseph Stiglitz, Nobel-prize winning economist who heads up economic research at the Roosevelt Foundation. Stiglitz recently testified before the Senate Budget Committee on what he–and President Biden–have both correctly termed an existential threat: climate change.

The following are excerpts from that testimony.The entire presentation is at the link.

Thank you for this opportunity to share with you some of my concerns about the large economic costs and huge risks of not taking strong actions now to deal with climate change, and the large benefits of doing so.

Some of the downside risks are already apparent. In one recent year, the magnitude of destruction associated with extreme weather events—which will inevitably occur more frequently, with ever more devastation as a result of climate change—was more than 1.5% of GDP, effectively wiping out more than 60% of the growth of that year.1 But this is only one dimension of what is occurring: Rising sea level will put much coastal property under water, destroying homes and property values. Forward-looking markets have already begun to price this in—but still far from adequately.2 3

Recent studies have documented the adverse effects of climate change on health.4 We pay for this in multiple ways, including higher health care costs and a less healthy population, which means a less productive workforce. But there is no way to accurately monetize the shorter life spans and the increased morbidity….

There are, of course, some sectors, some parts of our population, some locations that will be particularly hard hit. During the past year, we have seen the inequities associated with Covid-19. Those associated with climate change are equally severe, with people at the bottom of the income ladder often bearing the brunt of the costs, with fewer resources to respond. But there is an additional dimension of inequity that speaks to our future: While Covid-19 disproportionately affected older Americans, climate change is a risk that we impose on our children and grandchildren—on the future of our country….

Let me spend a few moments discussing the real risks our economy and society face if we do not take stronger actions than we have so far. We have been treating truly scarce resources, our environment, our water, our air, as if they were free. But economics teaches us that there is no such thing as a free lunch. We will have to pay the check someday. And delay is costly. Taking carbon out of the atmosphere is far more expensive than not putting it into the atmosphere. A smooth transition is far less costly than the one we will surely face if we do not take action urgently….

The longer we delay dealing with climate change, the larger the necessary adjustments will be, and the greater the potential for huge economic disruption—an economic disruption that could make the 2008 Great Recession look like child’s play by comparison.6 The danger of a crash is particularly acute for the U.S. economy, given that large U.S. banks are the largest financiers of fossil fuel….

Economics has, for good reason, been called the dismal science. The scenario of doom and gloom that I have painted is, unfortunately, all too real. But I want to end on a sunnier note. Doing something about climate change could be a real boon for the economy.

Too often, critics of taking action point to the job losses. Change is costly. But change provides opportunity. I am also firmly convinced that the opportunities afforded by addressing climate change are enormous. The number of jobs that will be lost in the old fossil fuel industries are dwarfed by those that will be created in the new industries. The value created in the new industries will also dwarf the value of the stranded assets in the fossil fuel and related sectors. As just two examples: the number of installers of solar panels already is a multiple of the number of coal miners; the auto company with the highest valuation today is Tesla…

The current focus on changing to a green economy is already stimulating enormous innovation, innovation that holds out the promise of significant increases in standards of living. The price of renewable energy has been plummeting, and in many areas outcompetes fossil fuels. The drive for a greener society is stimulating the design of new buildings and new ways of doing agriculture, which turn out actually to save resources, particularly if we value them appropriately….

Our country especially has much to gain, because innovation is a key comparative advantage. If we are ahead of the game—rather than a laggard—we will develop technology that will be in demand around the world. If we are behind the game, we will pay a high price. It is almost inevitable that other countries will demand cross-border adjustments that will put our companies at a disadvantage….

There is much more to be done to protect the economy from the risks I have described. For instance, we need immediately to end fossil fuel subsidies and require full disclosure of climate risks—both the risks of physical damage and the financial risks. Markets on their own don’t provide adequate disclosure, necessary both for the efficient allocation of scarce capital and for protecting investors. We need to change statutes governing fiduciary responsibility to mandate looking at these long-run risks, and especially where government is at risk, as in government insurance pension schemes…

There’s much more at the link, and it is definitely worth reading in its entirety.

What’s The Matter With Indiana?

Remember Thomas Frank’s book What’s the Matter with Kansas? Unfortunately, it’s not just Kansas. Indiana is governed by Republicans who refuse to believe science–and for that matter, routinely reject any reality inconsistent with an ideology firmly grounded in the 1950s.

Most recently, our embarrassing and self-aggrandizing Attorney General joined the state with others suing the Biden Administration for confronting the threat of climate change.The states we are joining are hardly economic powerhouses: Missouri, Arizona, Arkansas, Kansas, Montana, Nebraska, Ohio, Oklahoma, South Carolina, Tennessee and Utah. (A recent study out of Yale describes “low road states” like these as those laboring under  legacies of “conservative governance,” characterized by lower minimum wages, anti-union policies, and underfunded education and infrastructure.)

The lawsuit was filed Monday in federal court in Missouri as a response to President Joe Biden’s sweeping environmental protection order called “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis.”

Biden signed the order into action Jan. 20. It set in motion the reversal of a bevy of Trump administration-era policies that promoted economic growth over environmental regulations.

The lawsuit is a stark example of the refusal of far too many lawmakers in too many states to admit that climate change is real, and that it poses an existential threat to civilization–a threat that is daily becoming harder to ignore. It’s hard to know whether the group of Attorneys General who are participating in this lawsuit are truly among the “deniers” or simply pandering to state populations unwilling to confront reality.

It isn’t just our current, unfortunate Attorney General. This year’s session of the Indiana General Assembly offers evidence–if any was needed–that our lawmakers have absolutely no interest in America’s environment, or even in combatting their own state’s high levels of pollution.

Committees have been called the “workhorses” of the Indiana General Assembly, the places where Hoosiers can testify on bills and lawmakers can hash out their differences.

But one committee has been missing in action this year.

The House Environmental Affairs Committee has not met a single time. Not because it didn’t have any legislation assigned to it. Thirteen bills were filed, many dealing with weighty topics.

One would have required preschool and daycare facilities to test for lead and address any high levels that are found. One would have prohibited utilities from keeping contaminating coal ash in unlined ponds where it pollutes groundwater. One would have limited the amount of toxins known as “forever chemicals” in drinking water.

But since the deadline to hear bills from the House has now passed, all of them died without any consideration. And while it’s common for bills to die in committee — most do — it’s unusual for a committee not to meet at all.

As the linked article notes, lawmakers have found time to advance bills making popcorn the official state snack, providing protections for children’s lemonade stands and preventing Indianapolis from changing its name. They just couldn’t be bothered to address the state’s high levels of pollution.

According to the EPA’s Toxics Release Inventory, using data from 2019, the most recent, Indiana releases more chemicals and pollutants per square mile compared to any other state. And those releases have health implications: EPA data also shows that pollution poses a higher risk to public health in Indiana than in most other states.

If there is one characteristic shared by Indiana’s GOP lawmakers, it is willful ignorance.

Gerrymandering explains why the state’s voters continue to install super-majorities of the retrograde, but there are other reasons so many Hoosiers have only the dimmest understanding of science, economics or the operation of government, including the allocation of governmental authority under federalism. Michael Hicks– director of the Center for Business and Economic Research at Ball State University–recently pinned Indiana’s multiple problems on lawmakers’ refusal to adequately support education.

Indiana is failing at the single most important thing the state does to ensure a growing economy: educate our children and young adults. Our “Mississippi Strategy” of low taxes, declining educational attainment and huge tax incentives to businesses is finally having an effect. It is precisely what an economic model would predict; declining relative wages, declining productivity and the need to offer even larger incentives to lure employers into our state. That isn’t a strategy any Hoosier should be proud of supporting. But, it is certainly having an effect.

It sure is. What was the lyric in that great Tom Lehrer song about the environment? “Don’t drink the water and don’t breath the air.”