Law – Page 27 – a sibilant intake of breath

Federal responsibility in Canada’s oil sands

The Pembina Institute – in cooperation with Environmental Defence and Equiterre – has released a new report on Canada’s oilsands. It concludes that even with optimistic assumptions about carbon capture and storage, greenhouse gas emissions from the oil sands are set to be unacceptably large by 2050, making Canada’s climate change mitigation targets infeasible:

A key finding of the report is that the math on carbon emissions doesn’t add up. If expansion of the oil sands proceeds as planned, the oil sands industry will outspend its proportional share of Canada’s carbon budget under the government’s current target by a factor of 3.5 times by 2020 and by nearly 40 times by 2050, even assuming very optimistic application of carbon capture and storage technologies. The oil sands sector must do its fair share to reach the federal government’s commitments to reduce greenhouse gas emissions, or other sectors of the economy will be asked to shoulder the extra burden.

The report calls for oil sands operations to be subject to a carbon price, which would be applied equally across the economy.

The report stresses how, if the government gives the oil sands soft treatment, everybody else will need to work harder to achieve Canada’s climate targets.

The report does not particularly stress the sheer size of the fossil fuel reserve embedded in the oil sands, which may actually be the biggest problem from a climate change perspective.

Science and politics in Canada

I think it’s fair to say that political conservatives have long had a rocky relationship with science. While they approve of the chain from basic science to technology to economic growth, science has also repeatedly brought to light facts that undermine conservative ideologies and religious perspectives. With that in mind, this is an interesting development:

Today, the union that represents federal government scientists launches a campaign to put the spotlight on science for the public good.

“Federal government scientists work hard to protect Canadians, preserve their environment and ensure our country’s prosperity but they face dwindling resources and confusing policy decisions,” says Gary Corbett, president of the Institute.

The Professional Institute of the Public Service of Canada is a national union. Among its 59,000 federal and provincial members are 23,000 professionals who deliver, among other knowledge products, scientific research, testing and advice for sound policy-making.

The recent decision to end the mandatory long form census is the latest step in a worrying trend away from evidence-based policy making. Restrictive rules are curtailing media and public access to scientists, while cutbacks to research and monitoring limit Canada’s ability to deal with serious threats and potential opportunities.

This follows an editorial in Nature criticizing the Canadian government:

Concerns can only be enhanced by the government’s manifest disregard for science. Since prime minister Stephen Harper came to power, his government has been sceptical of the science on climate change and has backed away from Canada’s Kyoto commitment. In January, it muzzled Environment Canada’s scientists, ordering them to route all media enquires through Ottawa to control the agency’s media message. Last week, the prime minister and members of the cabinet failed to attend a ceremony to honour the Canadian scientists who contributed to the international climate-change report that won a share of the 2007 Nobel Peace Prize.

While factual claims about the nature of the universe do have political ramifications – think of the reality of climate change, or evolution – that doesn’t mean that the expression of factual information is a political act. Further, society has an enormous interest in the dissemination of accurate information, and the formulation of policy on the basis of such information. As such, it is encouraging to see scientists asserting their right to express their expert opinions, even when doing so is politically challenging for the government.

Soda and food stamps

William Saletan has written a very odd article for Slate, responding to New York Mayor Michael Bloomberg’s plan to make soda ineligable for purchase with food stamps. I think he intends to argue against the plan, but all his piece does is list the arguments in favour of it.

He points out the severity of America’s problem with obesity, as well as the argument that it is more justifiable to restrict how consumers can use food stamps than it is to restrict what they can do with their own money. He cites Robert Doar’s argument that “[g]overnment should not be in the business of subsidizing poor health habits that end up costing taxpayers through higher Medicaid and Medicare costs” and makes reference to how soda is “nutritionally empty.”

Saletan seems to be personally offended by these arguments – especially the notion that soda is a ‘product’ rather than a ‘food’ and that it is in any way like alcohol or tobacco – but he never really articulates why, beyond vague suggestions of libertarian displeasure. He argues that excluding soda from the set of foods that can be purchased with food stamps would “help… to push soda out of the food category and into a category with alcohol and tobacco, where it can be taxed and restricted more easily.”

What’s the problem with that?

This is your adjustment time

Virtually all moral systems incorporate some notion similar to John Stuart Mill’s Harm Principle – the idea that a person’s freedom to act can be legitimately restricted, when the actions of that person cause harm to others.

It is now beyond question that burning fossil fuels causes climate change, and that climate change is harmful to people all over the world. Also, there is a strong case that subjecting future generations to the risk of catastrophic or runaway climate change is morally unacceptable. Moral philosopher Henry Shue equates doing so to forcing someone to play Russian Roulette; even if they don’t end up getting shot, you have still imposed a risk on them in an immoral manner.

As a consequence of what we know about climate change, and what ethical theories tell us about freedom and harm, it seems safe to say that people no longer have an unlimited right to burn fossil fuels. As I mention in a comment on BuryCoal, however, there is a further wrinkle that deserves consideration:

One moral case that does have a bit of traction is based on ignorance and historical trends. Places with abundant coal – for instance – invested heavily in coal-based infrastructure before they were aware of the existence and threatening character of climate change. A strong case can be made for them to be given time to adjust, now that everybody knows that burning those fuels is deeply harmful. That being said, the world’s current legal regimes strongly defend the rights of resource owners to dig up and sell these fuels as they wish. There is little danger of them being immediately ordered to stop. As such, adjustment time is being provided based on the sheer length of time it is taking for the legal and political systems to take climate change into account.

To me, it now seems fair to tell the world’s fossil fuel users and extractors that their adjustment time has started. They should consider themselves on notice, when it comes to future restrictions on their right to extract and use fossil fuels.

If they are smart, they will be using this time to develop alternatives. That way, investments in appropriate infrastructure can be done efficiently and gradually, rather than in a time of crisis. When our legal and political systems finally catch up to the reality of climate change, they will no longer have much of a legitimate claim for transition time. That is especially true when it comes to some of the grossly inappropriate infrastructure that is being built now, such as coal-fired power plants and unconventional oil and gas projects.

Marriage for citizenship

The ongoing struggle for equal rights for gay couples has kept the issue of how states should legislate marriage at the political forefront in recent years. To me, the question of whether two consenting adults – regardless of sex – want to wed is entirely settled, as far as ethics are concerned. Places that restrict that right for same-sex couples are simply bigoted and operating under antiquated laws.

A broader question is the legitimate purposes for which people can get married. Clearly, we don’t believe child-rearing to be an essential component of marriage, or we wouldn’t allow the aged and infertile to do it. What then of those who want to get married because of economic benefits (health care, tax breaks, etc) or in order to acquire citizenship. Does it devalue marriage when people use it for such purposes? Should states try to prevent people from using marriage in that way, by trying to separate those who want to wed for ‘approved’ reasons from those who want to wed for ‘inappropriate’ ones?

I have argued before that states should treat marriage as just another contract. That being said, I do think there could be some validity to the argument that using marriage as a mechanism for achieving legal benefits is something of an affront to its importance as an institution. After all, it is the social importance of marriage that explains why homosexuals want to gain access to it. That being said, it seems like an awkward role for the state to try to determine the reasons why a couple want to wed. Also, a case can be made that immigration law and regulations on healthcare are overly restrictive, as of now, and that any mechanism that opens them up a bit has value.

What do readers think?

Canada doesn’t deserve a UN Security Council seat

At the moment, Canada is competing for one of the ten non-permanent seats in the United Nations Security Council – the principal international body charged with the maintenance of international peace and security. Canada thinks of itself as an internationalist country that has committed itself to peacekeeping and other forms of international assistance. Unfortunately, Canada is also doing virtually everything in its power to worsen the most pressing medium-term threat to international security, namely climate change.

At the moment, the United Nations process designed to find a successor to the Kyoto Protocol is going nowhere. While that situation has many causes, one of the most important has been the unwillingness of developed states to make real commitments and take meaningful domestic action. For its part, Canada has adopted targets that would be better than nothing, but which are neither fair now adequate. In order for the world to avoid dangerous climate change, other countries would need to pick up the slack created by Canada’s lack of ambition. Even worse, Canada has no credible plan to meet those targets, and has taken no serious domestic action on climate change.

Right now, Canada is flirting with some of the most dangerous energy options out there. These include unconventional oil and gas, including the oil sands and shale gas, as well as fossil fuel reserves in formerly inaccessible places like the Arctic. Chasing those fossil fuels is foolishness. It commits us to perpetuating an energy system that profoundly threatens future generations, and redirects resources from the task of building a sustainable basis for our society.

As long as Canada continues to behave with such reckless disregard for those outside its borders, including those who are not yet born, it doesn’t deserve the prestige associated with a Security Council seat. To be sure, some of Canada’s international actions have been and are praiseworthy, but that doesn’t counterbalance the way in which Canada is helping to commit the world to a colossal blunder. Ultimately, it may require Canada becoming an international pariah before our government will stand up to the oil and gas sector. Hopefully, it won’t come to that. If Canada loses its bid for this seat on the basis of domestic and international disapproval of our environmental record, perhaps it will be a much-needed signal that our recent conduct has been unacceptable.

[Update: 12 October 2010] Canada’s bid was unsuccessful. Hopefully, the embarassment will encourage Canada to play a more constructive role in future climate change negotiations.

Democracies and the wisdom of crowds

There are no perfect democratic systems; all those that have ever existed, that exist now, and that will exist have flaws.

In systems like Canada’s, voters choose between individual candidates. And yet, the platforms and leadership of parties are usually much more important for the direction of policy-making than the identity of individual Members of Parliament. By contrast, there are countries with systems of proportional representation in which the importance given to individuals is too little. That leaves voters without a direct mechanism for electing especially wise or capable people, and can diminish the level of awareness assemblies have to local issues.

On many other dimensions, the structure and character of democratic governments differ – whether the issue is the lobbying system, electoral law, federal versus central states, or something else. Each particular set of circumstances aids some groups (think of how Canada’s first-past-the-post system helps the Bloc Quebecois) while harming others (think of the Greens).

In the end, it isn’t possible for every country to establish a government that incorporates every desirable feature. Quite simply, some of them directly contradict others. What could be possible, however, is to exploit the wisdom of crowds. If we recognize that our system of government has deficiencies that manifest themselves in problematic policies, keeping an eye on policy development in other jurisdictions can serve as a bit of a counter to that. This already happens, for example, as when people turn to Scandinavia when discussing drug or childcare policies.

Taking a step further, it is possible for the political decisions in other democratic places to directly affect the situation in Canada. One major mechanism for this is when courts apply foreign precedents, particularly when dealing with new areas of law, or issues in which societal expectations are changing. Every time a judge presented with a case on gay rights or intellectual property gives consideration to what is happening in Europe or New Zealand or India, they are taking advantage of the diversity in policies that accompanies the diversity in forms of democratic government.

The ultimate example is something like the European Union, which actually incorporates 27 democratic governments and has decision-making power of its own. One of the reasons why it is such an exciting experiment is because of the potential it was for allowing the flaws of each constituent state to be partially counterbalanced by the sensible overall character of the consensus.

Of course, all this is anathema to the kind of old school patriots who are fearful of foreign precedents in domestic courts and cling as much as possible to the original words and meanings of founding documents. That is not an entirely irrational attitude. It is certainly possible that following the wisdom of crowds will produce a worse outcome than going it alone will. Overall, however, I think that a greater degree of international policy coordination is likely to be beneficial. Partly, that is a consequence of the extreme interconnectedness and interdependence of human beings today. The happenings in one political jurisdiction have never been more relevant and important to the inhabitants of all others. That – along with the potential to smooth the rough edges of our domestic political systems – is a major reason for making our sovereignties a bit more porous.

Smoking and climate change

Tristan keeps telling me that ozone depletion and acid rain are poor comparisons for climate change. Yes, they were major environmental problems that were identified scientifically, and then dealt with legislatively. But addressing them only really involved a small number of organizations, and processes that could be fairly readily replaced. Addressing the issues didn’t require much social or political change.

That’s fair enough, but perhaps there is an alternative comparison that is useful: smoking. Watching Mad Men constantly reminds me of how much of a transformation there has been in the public attitude toward smoking in the past few decades. While part of that was certainly driven by personal fear (smoking will kill you personally, climate change will not), the transition also involved moral arguments about the effects of secondhand smoke on unconsenting others. And it involved government imposing increasingly harsh regulations on an industry that was highly profitable, powerful, and fundamentally opposed to having its products restrained by law.

Perhaps growing awareness of the harms fossil fuels impose on others – including those in future generations – could help to drive a similar cultural shift. We have promising alternatives to fossil fuels, but our political system is still unwilling to take on the industries that want to keep us reliant on them. Perhaps smoking suggests that could change.

DDT and evolution

Naomi Oreskes’ book about climate change deniers makes some interesting points about the pesticide DDT. Apparently, there has been a kind of campaign recently to challenge the history of the substance and its ban, with some anti-regulation groups claiming the regulation of DDT was unneccessary and caused many human deaths. They argue that if DDT use had not been regulated, malaria could have been eradicated.

Oreskes seems to rebut this argument convincingly. Critically, she points out how DDT had been stripped of its effectiveness through over-use, particularly in agriculture. She makes the point that the consequences of different sorts of DDT use for the genetics of the mosquito population can be very different. Spraying indoors exposes only a small minority of mosquitoes to the chemical, leaving most of the population isolated from it. As a consequence, there is only a small advantage for those mosquitoes that are more resistant to the poison. By contrast, widescale agricultural spraying exposes whole populations of mosquitoes to the toxin. Those who are a bit resistant to it have a huge advantage, and soon come to dominate the population. Over time, the indiscriminate use of DDT breeds mosquitoes who are troubled less and less by the toxin.

Oreskes documents how the banning of DDT took place only after its effectiveness was lost, as well as how the environmental and human health effects of the substance were sufficiently worrisome to justify the ban. She argues that the recent attempt to change the historical narrative is not about DDT itself – which nobody is seeking to reintroduce. Rather, it is intended to foster and enlarge a general sense that taking precautions to protect human health and the environment is unjustified, and that science that supports the regulation of industry and individual behaviour is ‘junk’.

A related situation that I have written about before is the abuse of antibiotics in the livestock industry. Just as the agricultural use of DDT provided ideal circumstances for insects to evolve resistance, today’s factory farms may as well have been custom designed to render our antibiotics ineffective. Crowding huge numbers of unhealthy animals close together, flooding them with chemicals to make them grow as quickly as possible, feeding them unnatural diets, and then using antibiotics to try and keep them from dying too early, is a string of compounding errors. Not only does it demonstrate considerable disregard for the welfare of the animals in question, but it demonstrates a lack of foresight when it comes to maintaining the effectiveness of our drugs and the relative manageability of the bacteria out there.

Of course, the political system tends to favour the small group of farmers that benefits from the status quo and which would suffer significantly from a change in policy, rather than the great majority of people who are incrementally harmed by the emergence of ever-more-dangerous superbugs, and the dilution of the effectiveness of the relatively small class of chemicals capable of safely killing bacteria inside human beings, without causing undue harm to the person.

Obama and just war

The concept of ‘just war’ is one with deep roots in philosophy and law – a recognition that while wars are inevitably terrible, sometimes they are less terrible than the alternatives available. While it may have been incongruous of Barack Obama to use his Nobel Peace Prize address to discuss the subject, it was probably the only reasonable thing he could do, given his commitment to a sustained (but shrinking) presence in Iraq and his re-commitment to the war in Afghanistan. Indeed, when I first heard about the decision of the Nobel committee, I thought Obama’s best choice would be to graciously decline the prize, saying that he had not yet accomplished anything worthy of it, and was involved in the prosecution of two wars, to boot.

Obama’s sketch of the philosophy of just war includes elements of both jus ad bellum – the question of when it is right to go to war – and jus in bello – the question of how to rightly conduct yourself during war:

The concept of a “just war” emerged, suggesting that war is justified only when certain conditions were met: if it is waged as a last resort or in self-defense; if the force used is proportional; and if, whenever possible, civilians are spared from violence.

He also stresses how the elimination of violent conflict is not a plausible aim, for the decades ahead:

We must begin by acknowledging the hard truth: We will not eradicate violent conflict in our lifetimes. There will be times when nations – acting individually or in concert – will find the use of force not only necessary but morally justified.

He discusses the ways in which contemporary conflicts differ from those in more distant history, describes how American military strength has helped to maintain international stability in recent decades, and argues that some enemies can only be effectively confronted with violence. He also expresses support for the concept of humanitarian intervention, arguing that in cases like the Balkans, it can be justified to use force to stop crimes against humanity, even when doing so is a violation of traditional notions of state sovereignty

At the same time as he argues for the occasional necessity of war, Obama recognizes that war always involves horror:

So yes, the instruments of war do have a role to play in preserving the peace. And yet this truth must coexist with another – that no matter how justified, war promises human tragedy. The soldier’s courage and sacrifice is full of glory, expressing devotion to country, to cause, to comrades in arms. But war itself is never glorious, and we must never trumpet it as such.

Obama’s solution, for reducing the degree to which war is terrible and frequent, is to increase the strength of international institutions, though he doesn’t go so far as to say that the United States will never act unilaterally.

Obama brings up the issue of nuclear proliferation, but does not specify how far he would go to prevent it or roll it back:

One urgent example is the effort to prevent the spread of nuclear weapons, and to seek a world without them. In the middle of the last century, nations agreed to be bound by a treaty whose bargain is clear: All will have access to peaceful nuclear power; those without nuclear weapons will forsake them; and those with nuclear weapons will work towards disarmament. I am committed to upholding this treaty. It is a centerpiece of my foreign policy. And I’m working with President Medvedev to reduce America and Russia’s nuclear stockpiles.

But it is also incumbent upon all of us to insist that nations like Iran and North Korea do not game the system. Those who claim to respect international law cannot avert their eyes when those laws are flouted. Those who care for their own security cannot ignore the danger of an arms race in the Middle East or East Asia. Those who seek peace cannot stand idly by as nations arm themselves for nuclear war.

Earlier, he talks about developing “alternatives to violence that are tough enough to actually change behavior”, but he does not follow through and explain at what point sanctions should be abandoned in favour of the use of force, though perhaps that question is always too complex to answer with a general formula applicable to all circumstances.

All told, the speech is a thoughtful and defensible one that tries to reconcile principle with pragmatism. At its best, the United States is a key force for stability in the world, as well as the promotion of democracy and human rights. At the same time, it is very plausible that the relative power of the United States will continue to fall, producing difficult new situations in which to make foreign policy.

Obama doesn’t mention the difficulties of domestic politics – one major factor that has hampered him in trying to close down Guantanamo Bay – but that is certainly one of the biggest factors constraining his freedom of movement. Obama has certainly disappointed a lot of people by not changing foreign policy as swiftly or dramatically as they would have liked. It is not entirely clear to what extent that is the product of him being president, rather than a candidate; to what extent it is the result of domestic constraints; and to what extent it is the result of other factors. He closes in saying: “Clear-eyed, we can understand that there will be war, and still strive for peace.” It remains to be seen how that aspiration will stand beside the totality of his record as president.