Law – Page 39 – a sibilant intake of breath

Emissions permits for new entrants

One proposed element for a cap-and-trade system is holding back some permits for ‘new entrants.’ Basically, this would mean preemptively grandfathering emissions from certain types of new facilities. Depending on how it was done, it seems like it could be either environmentally beneficial or harmful. If the overall cap for any year is set below the level of emissions last year, on a downward trajectory compatible with stabilizing concentrations at a safe level, reserving some credits for new entrants would force other firms to bid for fewer permits, raising prices and increasing the number of mitigation activities that are worth undertaking. Conversely, if this is used as an excuse to increase the cap, it might impede the transition to a low-carbon future.

There is also the issue of complexity. It seems likely that special treatment for new entrants will lead to weird Enron-style accounting trickery. The more complicated a carbon pricing scheme becomes, the easier it is to do hidden favours, and the harder it is to transparently assess what is going on.

More disclosure for Canadian mining

Due to a recent federal court ruling, a long-standing disclosure exemption for the mining industry has been repealed. Previously, mining firms were not obliged to determine and disclose the toxic compounds present in their waste rock and tailings ponds. Apparently, environmental groups have been seeking to get rid of the exemption for sixteen years. American firms have had to obey similar disclosure rules for a decade now.

Data going back to 2006 will be made available on Canada’s National Pollutant Release Inventory (NPRI).

Biofuels and nitrous oxide

In theory, biofuels are an appealing climate change solution. They derive the carbon inside them from atmospheric CO2 and their energy from the sun. They can be used in existing vehicles and generators, and store a lot of energy per unit of volume or weight. The raw materials can be grown in many places, without massive capital investment. Of course, recent history has given scientists and policymakers an increasingly clear understanding of the many problems with biofuels. A report (PDF) from Scientific Committee on Problems of the Environment (SCOPE) of the International Council for Science (ICSU) concludes that, so far, biofuel production has actually produced more emissions than using fossil fuels would have. Partly, this is on account of the nitrous oxide emissions associated with the use of artificial fertilizers in agriculture. Over a 100 year period, one tonne of nitrous oxide causes as much warming as 310 tonnes of carbon dioxide. Corn produces especially large amounts of nitrous oxide, because it has a shallow root system and only takes in nitrogen for a few months each year.

It is possible that better feedstocks, agricultural techniques, and biofuel production processes will eventually make these fuels ecologically viable. Not all transportation can be electrified, and there will probably always be industrial processes that require petroleum-like feedstocks. Nonetheless, it must be recognized that the world has been going about biofuel production in the wrong way. That is something that should be borne in mind particularly by the citizens of states that are lavishing government support on them, both in the form of subsidies and by mandating that they comprise a certain proportion of transportation fuels.

Counting greenhouse gas emissions

Greenhouse gas emissions figures, as dealt with in the realm of public policy, are often a step or two removed from reality.

For instance, reductions in emissions are often expressed in relation to a ‘business-as-usual’ scenario, by governments wanting to flatter the results of their mitigation efforts. That means, instead of saying that emissions are X% up from last year, you say that they are Y% down from where they would have been in the absence of government action. Since the latter number is based on two hypotheticals (what emissions would have been, and what reductions arose from policy), it is harder to criticize and, arguably, less meaningful.

Of course, the climate system doesn’t care about business-as-usual (BAU) projections. It simply responds to changes in the composition of the atmosphere, as well as the feedback effects those changes induce.

The second major disjoint is between the relentless focus of governments on emissions directly produced by humans, compared with all emissions that affect the climate. For example, drying out rainforests makes them less biologically productive, leading to more greenhouse gasses in the atmosphere. Similarly, when permafrost melts, it releases methane, which is a powerful greenhouse gas. It is understandable why governments don’t generally think about these secondary emissions, largely because of the international political difficulties that would arise if they did. Can Canada miss its greenhouse gas mitigation targets because of permafrost melting? Who is responsible for that melting, Canada or everyone who has ever emitted greenhouse gasses? People who have emitted them since we learned they are dangerous?

While the politics of the situation drive us to focus on emissions caused by voluntary human activities (including deforestation), we need to remain aware of the fact that the thermodynamic balance of the planet only cares about physics and chemistry – not borders and intentionality. When it comes to “avoiding dangerous anthropogenic interference in the climate system” we need to remember to focus on both our absolute level of emissions (not their relation to a BAU estimate) and to take into account the secondary effects our emissions have. Doing otherwise risks setting our emission reduction targets too low, and thus generating climate change damage at an intolerable level.

Canadian parliamentary voting records online

The voting records of Canadian MPs are being made available online. For instance, here is the voting record of Paul Dewar – NDP representative for Ottawa Centre. Things are still in an introductory state and the system hasn’t become as useful as it could potentially be. Nonetheless, it is a nice step forward towards a system in which constituents can easily and effectively monitor what their representatives are doing.

The US and the UN Human Rights Council

America’s decision to join the new United Nations Human Rights Council (up to now, largely populated with extremely repressive regimes), hopefully signals a willingness on the part of the new administration to try to steer that body off its present course, which seems largely focused on silencing the critics of Islam:

[T]he Cairo document carries the huge rider that the application of all human rights should be subordinated to sharia law. It also affirms the illegitimacy of “exercising any form of pressure” on Muslims to quit their faith “for another religion or for atheism”—in terms that seem to deny the individual’s freedom to change religion, and to justify the penalties for “apostasy” and blasphemy that many Muslim states impose.

It seems pretty critical for the international community to continue to recognize that human rights are vested in individuals, and that decrees that empower the suppression of individuals by organizations run fundamentally counter to them. A world in which people are not free to criticize the religions of one another – including by encouraging them to abandon all faiths – is not one in which the critical rights of individuals are being upheld.

The EPA endangerment finding on CO2

Some very encouraging things are happening over at the United States Environmental Protection Agency (EPA). In response to a Supreme Court decision, they have issued an endangerment finding – paving the way to regulation. According to analysis on Grist, automobiles are likely to be the first sector targeted, though they represent only 20% of emissions. Later possible targets include coal power plants, which generate 40% of American greenhouse gasses.

In addition to prompting regulation, the finding may drive action in Congress, since legislators will likely prefer designing a greenhouse gas mitigation system themselves, rather than leaving it to the EPA. As such, this raises hopes of the United States passing a cap-and-trade bill sometime this year – the first absolute necessity in kicking off the transition to a low-carbon economy.

The Grist analysis above is well worth reading, as it is quite comprehensive. Along with Obama’s new commitment to high speed rail, this justifies considerable optimism about changes in American climate policy. That, in turn, might go a long way towards making the international negotiations in Copenhagen this December more successful.

UK libel laws and global free speech

As explained well in an article by Emily MacManus, I don’t think it’s an exaggeration to say that British laws on libel are a threat to free speech around the world. Because they permit frivolous cases that would be far too costly for most people to fight, they give a great deal of power to anyone who is annoyed enough and has the resources to pursue legal action there. Even the threat of such action may be sufficient to make individuals or publishing organizations censor themselves.

The linked article goes further into the peculiarities, which include the characteristics of ‘no-win-no-fee’ litigation and the broad understanding of who constitutes a ‘publisher.’ For instance, if you said something true but commercially harmful about a company on your website, they might go after you, your internet service provider, or the company that runs the server your site is on. Any of them might feel pressured into removing the statements, rather than face litigation. British law also holds that “every time the statement is downloaded or accessed it constitutes a fresh publication,” which could produce especially absurd outcomes for a popular website.

An important first step could be requiring the party bringing the suit to prove that the allegations are untrue, before the court accepts the case. For instance, if I said that Rio Tinto was polluting a river somewhere with mercury, or that Suncor is emitting huge amounts of greenhouse gasses, they would have to prove the opposite in some sort of pre-trial hearing, before they could come after me. It might also make sense to limit which courts can hear a particular case, so as to prevent people from shopping around in random legal jurisdictions to find the one that gives them the strongest hand.

The article suggests that ‘principled deep-pocketed litigants’ might be able to produce some useful new precedents, limiting the damage the existing rules on libel and defamation could have on honest and open public discourse. For now, however, it suggests that “the reaction to libel remains: take it down, take it down quickly, take it down again. And libel tourism means that this habit is likely to spread.”

One thing the article isn’t clear on is what could happen to you if a British court rules against you, in your absence, and you simply ignore them. Perhaps someone with more legal knowledge could explain whether there is any chance of them coming after assets held in another jurisdiction.

Gay marriage in Vermont

It is encouraging to see that Vermont’s legislature has legalized gay marriage, overturning the veto of the Republican governor. That said, while this is good news for same-sex couples in the state, I do think it’s a bit awkward that the change happened due to legislation rather than litigation. As I see it, forbidding same-sex marriage is straightforward discrimination. As such, eliminating the discrimination is something that governments with constitutions that enshrine equality are both legally and morally bound to do. By doing so through legislation instead, they distort that position and suggest that same-sex marriage is a voluntary legal situation, rather than a natural consequence of interpreting the law on all marriage in a non-discriminatory way.

While ‘activist judges’ are a hot-button political issue, I do think it’s important to identify and recognize when decisions emerge inevitably from our existing laws and values, rather than pretending that they require some secondary approval in order to be valid.

On a tactical level, the consequences of this approach are less clear. On the one hand, it might serve as a mechanism to counter accusations that gay marriages are anti-democratic or the work of the aforementioned ‘activist’ judges. On the other hand, it may isolate the specific matter of gay marriage from the broader issue of equality under the law. Whereas a finding that any state permitting heterosexual marriage must permit homosexual marriage can be naturally extended to matters like health care and pension law, the narrower scope of enabling legislation seems like a less useful precedent.

Canada, Charles, and the monarchy

The Globe and Mail is considering an issue I raised some time ago: whether the royal transition from Elizabeth II to Charles might be a good opportunity for Canada to abandon the monarchy entirely. Personally, I think it would be an ideal time to get rid of a dated institution that insults the concept of democracy and the rule of law. It is absurd that the highest office in Canada is occupied by a foreigner by virtue of the family they were born into. It is contrary to the values which our society is built upon and it is fundamentally anachronistic.

The absurd present arrangement might be eliminated in several different ways, two of which I will briefly consider. I dub them ‘republic light’ and ‘substantial republic.’

In the first case, we nix the royals and replace the Governor General with an appointed ceremonial president, with few substantial powers. They could retain things like the formal right to dissolve Parliament, but would be given much clearer rules on when and how to do so. The new presidency would be much like the current Governor Generalship, insofar as it would put someone who seems to embody Canadian values in a position to hobnob with foreign diplomats who would otherwise be a drain on the prime minister’s time.

In the second case, abandoning the monarchy could be a catalyst for a much deeper democratic reform. We could replace the Governor General with a directly elected president, formally splitting the executive and legislative branches of government. The prime minister would still make laws, but they could be subjected to a kind of limited veto system akin to what exists in the United States. The president would also be the head of the armed forces and the front-person for global diplomacy. While it’s hard to imagine a prime minister endorsing such a harsh curtailing of their own responsibilities, I think it would be very valuable for Canadian voters to have the chance to express their leadership preferences directly. The way in which the leaders of Canadian political parties are chosen leaves a great deal to be desired.

Both as a person and as a symbol, Prince Charles is far from impressive. I maintain that Elizabeth II is an eminently suitable final monarch, and suggest that Canada should be contemplating how the royal institution could end with her. The constitutional difficulties involved in making the change are considerable – enormously more so for ‘substantial republic’ than for the light version – but it is certainly a thing worth contemplating.