Law – Page 3 – a sibilant intake of breath

Listening to the Abel espionage case

Because of its restrained and historically accurate storytelling, Bridge of Spies is one of my favourite films.

Looking for something a bit meatier than podcasts to listen to on my exercise walks, I am trying out an Audible account with James Donovan’s Strangers on a Bridge: The Case of Colonel Abel. It’s the perfect kind of book for someone overly preoccupied with an academic project, insofar as it is interesting and detailed enough to be mentally engaging as well as mercifully unrelated to any work I need to do.

Canada’s election 2021 climate change platforms

UBC professor Kathryn Harrison was interviewed by the CBC’s Front Burner: Where the major parties stand on climate change

Texas’ bounty-based heartbeat law

America’s unravelling continues, with the Supreme Court declining 5-4 to hear an emergency appeal of Texas’ bizarre and cruel fetal heartbeat anti-abortion law.

Laurence Tribe has written about what the law’s bounty system will do:

It wasn’t just Roe that died at midnight on 1 September with barely a whimper, let alone a bang. It was the principle that nobody’s constitutional rights should be put on sale for purchase by anyone who can find an informant or helper to turn in whoever might be trying to exercise those rights.

That, after all, is how the new Texas law works. Its perverse structure, which delegates to private individuals anywhere a power the state of Texas is forbidden to exercise itself until Roe is overruled, punishes even the slightest form of assistance to desperate pregnant women. Doctors, family members, insurance companies, even Uber drivers, are all at risk if they help a woman in need. And the risk is magnified by the offer of a big fat financial reward for whoever successfully nabs a person guilty of facilitating an abortion once a heartbeat can be detected, typically six weeks after a woman’s last period, well before most women even know they are pregnant. There is not even an exception for pregnancies resulting from rape or incest. No law remotely like this has ever been allowed to go into effect.

The prospect of hefty bounties will breed a system of profit-seeking, Soviet-style informing on friends and neighbors. These vigilantes will sue medical distributors of IUDs and morning-after pills, as well as insurance companies. These companies, in turn, will stop offering reproductive healthcare in Texas. As of a minute before midnight on 31 August, clinics in Texas were already turning patients away out of fear. Even if the law is eventually struck down, many will probably close anyway.

Worse still, if women try to escape the state to access abortion services, their families will be on the hook for offering even the smallest aid. If friends or family of a woman hoping to terminate her pregnancy drive her across state lines, or help her organize money for a plane or bus ticket, they could be liable for “aiding and abetting” a now-banned abortion, even if the procedure itself takes place outside Texas.

Adding insult to injury, if a young woman asks for money for a bus ticket, or a ride to the airport, friends and parents fearful of liability might vigorously interrogate her about her intentions. This nightmarish state of affairs burdens yet another fundamental constitutional privilege: the right to interstate travel, recognized by the supreme court in 1999 as a core privilege of federal citizenship.

It’s a heartless and unfeeling religious morality that sees this kind of harassment as desirable. The Supreme Court’s conduct will also further erode its own position as a unifying public institution and legitimate arbiter of constitutional grievances. When people lose faith in unifying institutions — and in the perception that there are legitimate avenues for pursuing their interests — it threatens complete breakdown in the country’s self-understanding as one polity, and further progression into settling questions of policy and law by force rather than through reason and democratic debate.

Canada submits new 2030 climate target

Canada is now promising the UN that it will cut greenhouse gas emissions to 40–45% below 2005 levels by 2030.

The government says emissions are already set to fall from 729 million tonnes (MT) in 2018 (the last year with final figures) to 468 MT by 2030.

Canada’s choice of a 2005 baseline sets it apart from the global standard of setting targets compared to 1990 emissions as required by the UNFCCC reporting guidelines, effectively forgiving 15 years in which bitumen sands output and Canadian GHG pollution rose substantially. Canada’s emissions rose from 600 MT to 747 MT between 1990 and 2005.

Link rot and citations in authoritative publications

Researching social movements — where relevant information is often on social media, or the websites of NGOs, universities, or corporations that reorganize them frequently — link rot is an acute problem. Increasingly, the default way to let a reader see the source you’re referencing is to provide an internet hyperlink, and yet there is no assurance that a link on a site which you don’t control will continue to work.

Jonathan Zittrain has an instructive article in The Atlantic about many of the dimensions of the problem. Strikingly, he cites a study by Kendra Albert and Larry Lessig that half the links cited in court opinions since 1996 no longer work, along with 75% of the links in the Harvard Law Review.

Beyond the Wayback Machine, which I already use extensively both to find material which is no longer online and to preserve links to live content that may be useful in the future, Zittrain suggests several other initiatives to help with the problem, including Perma and Robustify.

Waterloo commits to divestment

The University of Waterloo has joined the set of Canadian schools committing to fossil fuel divestment, specifically with pledges for a “50% reduction in carbon emissions by 2030” and “no material positions in fossil fuel exploration and extraction companies by 2025.”

Cindy Forbes, chair of Waterloo’s Board of Governors, specifically cited the financial case for divestment and argued that it is compatible with fiduciary duty:

To protect our investments, we’re making the decision that we will reduce our exposure to carbon. In doing so we are protecting our primary fiduciary duty to maximise pension fund and endowment returns using measurable science-based targets.

While it contradicts the justice-based framing preferred by most climate activists, purely bottom-line driven divestment arguably has greater potential to spread through the financial system, since the system’s norms heavily emphasize an obligation to reduce risk and maintain profits, whereas commitments to justice and equity are at best controversial.

Dutch court rules that Shell must deeply cut total emissions

In a promising new development in the field of climate change litigation, a Dutch court has ruled that Shell’s climate change mitigation plan was insufficient:

The company must slash its CO2 emissions by 45% by 2030 from 2019 levels, according to a judgment from a district court in The Hague on Wednesday. That includes emissions from its own operations and from the energy products it sells.

…

The Anglo-Dutch company announced plans in September to become a net zero emissions company by 2050, a target that includes emissions from its products. It is currently targeting a 20% reduction in carbon intensity by 2030, and 45% by 2035.

The last part is hugely important and impressive, given how governments usually treat emissions from exported fuel as someone else’s problem. This is a legal recognition that controlling climate change requires limiting the production of fossil fuels.

Cultivating a conservative climate movement

Let’s begin with two simple premises:

The amount of climate change the world experiences depends on the total quantity of fossil fuels that get burned. As such, there is little value in avoiding burning particular coal, oil, and gas reserves in one time period if we then burn them in another
In Canada, the US, and the UK the electoral pattern for a century or more has been alternating between relatively left-wing and relatively right-wing governments

I think it follows from this that for climate change mitigation policy to succeed, it cannot only be supported by progressives or supporters of left-of-centre parties.

It’s true that the most prehistoric form of climate change denial (saying there is no problem, or it’s a problem too small to require action) is concentrated among political conservatives. It’s also true that the fossil fuel industry has outsize influence over conservative politics, parties, and politicians. To me — however — these observations are akin to the argument that since 85% of the world’s energy currently comes from fossil fuels it is imposible or unrealistic to try to replace them. In both cases, the depth of the current dependency demonstrates the need for change, rather than its impossibility.

Recently, UK Conservative MP Alicia Kearns and U.S. Republican congressperson John Curtis co-authored an article in the Times of London: The left should not dominate the conversation on climate change.

They also appeared in a recent panel hosted by the Hudson Institute:

Progressives tend to be very opposed to the argument or idea that conservatives need to be won over to climate change mitigation through fossil fuel abolition. The intersectional climate justice analysis holds that climate change is a symptom of systemic injustice and cannot be corrected through narrow solutions which do not eliminate colonialism or capitalism or patriarchy. It is a joined-together worldview that clearly motivates a lot of people, but I don’t think it’s a sound strategy for avoiding catastrophic climate change. Furthermore, I challenge the claim that only systematic change in our political or economic system can solve the problem. Progressives also tend to assert that renewable energy is cheaper and better in every way than fossil fuel, implicitly acknowledging that it could be possible to replace where our energy comes from without fundamentally changing much more about society.

I can see at least a couple of routes for moving forward with cultivating a conservative commitment to climate change mitigation.

Thinking about the span of the next couple of decades, I think conservatism in the English-speaking democracies may be posed for a huge splitting apart between comparative pragmatists who are willing to accept what science has unambiguously shown and pure ideologues whose policy preferences do not relate to what is really happening in the world. If that split can be enlarged to the point of crisis — when those on the empiricist side will no longer tolerate supporting the same candidates and parties as those on the fantasist side — those willing to consider evidence will likely have a long-term electoral advantage as those most implacably opposed to climate action die off, young people with a better understanding of climate change become politically dominant, and as the undeniable effects of climate change become even plainer.

Another plausible route to cultivating conservative support for climate change mitigation is through faith communities. The Catholic Church, United Church, Anglican Church, and others have been outspoken from the centre of their institutions about the need to control climate change. It’s true that there are some whose theology sees the Earth exclusively as a set of resources to be exploited, or who believe that a religious apocalypse will soon bring an end to the material world making long-term problems irrelevant, but I suspect there are many more in all faiths and denominations who can be won over to the view that we have a duty to care for creation and not to pass on a degraded world to our successors.

I think part of the progressive wariness about outreach to conservatives arises from how the intersectional view ties climate change into the social justice and economic redistribution agendas which animated the left long before climate change became a mainstream concern. Cooperating with conservatives on the narrow issue of replacing fossil fuels would not advance the general project of abolishing capitalism or re-ordering the global system. Some see climate change as a crisis which would be ‘wasted’ if our response only sustains planetary stability. Others convincingly point out that even without climate change as a problem the idea that resource use and waste production can increase indefinitely is fundamentally at odds with a finite planet. All that said, climate change seems to be the most pressing and serious societal problem facing humanity, and resolving it would give us more time and a more stable global environment in which to pursue other aims of justice.

I don’t believe either progressives or conservatives can or should win one another over to their entire worldview. The progressive climate change movement is an enormous success and source of hope, and I am not calling for it to be dismantled or fundamentally altered, though they ought to give more consideration to cross-ideological alliances on certain vital issues. As long as effective climate change policies are something which one side assembles and the other dismantles we cannot succeed, and so winning over conservatives to climate action is an indispensable condition of success.

America’s constitutional crisis

Some people are saying that Trump’s contestation of election results is just a way to soothe the pain of defeat and raise money for campaign debts, but the statements of high-ranking Republicans show that analysis to be unduly complacent.

Specifically, I mean secretary of state Mike Pompeo promising: “There will be a smooth transition to a second Trump administration” and senate majority leader Mitch McConnell saying Trump is “100% within his rights” to challenge the election.

Trump appointees are hampering the transition process for the Biden administration, likely with the intent to sap their ability to get anything done in the first 100 days which are considered so crucial to any presidency’s ability to implement an agenda. Meanwhile, US COVID-19 numbers are exploding and raising the spectre that, just as much of the promise of reform under Obama was undermined by the need to resolve the Bush-era 2008 financial crisis, Biden will inherit an out-of-control pandemic and a population half-primed to see medical precautions as oppression.

I think it’s already clear that America has been permanently weakened by the Trump administration, both domestically through their erosion of governance norms and self-dealing and internationally through cynical, short-sighted, and transactional diplomacy. That damage has already been badly worsened by threatening the peaceful transfer of power, and may be still more if a Biden administration gets constantly stymied by a hostile Republican senate. America’s strength depends on the norm that the party that gets defeated in elections accepts the legitimacy of the winners. If the country shifts to a pattern where every change of party is rejected by the other as crooked and illegitimate, the foundation of America as one polity will be undermined and fractured.

The nightmare possibility remains that Trump will exhort his supporters to violence during or at the end of the transition period, or that after they turn to violence based on the encouragement so far Trump will support them. The risk of America’s election ending in mass violence persists.

Strident progressivism versus incrementalist centrism

The debate on the left about what lessons to take from the 2020 US election has the same contours as the main debate within climate change activism, with one side arguing that the success of the right demonstrates that Democrats have compromised too much with Republicans while a strongly progressive candidate and platform would have done better with voters while the other argues that since most of the available votes are to the right of progressives the Democrats’ promotion of policies which appeal to their most fervent base turns off centrist voters while energizing the conservative base.

This is a lot like the debate between climate justice advocates who favour a broadly intersectional progressive agenda including economic redistribution and the endorsement of a broad range of social justice causes and climate-energy or CO₂-energy advocates who think the most plausible path to success is to remain focused narrowly on climate in ways calculated to not offend or challenge those with more conservative political views.

Since both arguments rely on counterfactuals (if only we had done this or that) the debate is hard to resolve. Either can be reconciled with the political outcomes we have observed, though each has contradictory implications for what the best approach moving forward is.

On climate specifically, I think one crucial element is the ability of decarbonization policies to endure between changes of government and party. If decarbonization is integrated into a progressive left agenda there is both the risk that the elements with more immediate political benefits will be given priority over the more painful changes needed to deal with climate change and the danger that the next right-wing government will dismantle the whole assembly.

To function, democracies need a consensus that the decisions of past governments were legitimate and that society as a whole needs predictability in what laws and regulations will be in force so that they can make appropriate long-term decisions. The historical pattern so far in climate change policies has been to see comparatively ambitious but still dreadfully inadequate proposals from left-wing governments and then their dismantling and contradiction by succeeding right-wing governments. Breaking out of that pattern somehow seems like our only path to the durable consensus on decarbonization which will need to hold for decades if we’re to avoid catastrophic climate change.