Saturday, June 30, 2012

Presenting at Sustainable Silicon Valley on water and climate change

On May 24th, I had the opportunity to speak on behalf of the Santa Clara Valley Water District at the Sustainable Silicon Valley's annual WEST:  Water, Energy, Smart Technology Summit.  More info about my panel regarding regional resilience to climate change is here, and my presentation is below:

Supposedly, we followed a variant on the Pecha Kucha, 20 slides/7minutes presentation.  Some speakers completely ignored the rules; I didn't think quite that far out of the box.

My Powerpoint had a glitch - it was advancing automatically while I was talking.  Fortunately, they removed that from the video.  Unfortunately, fixing that appears to have lost two slides in the process.  At about 5:10 I start referring to a compromise between letting the bay advance due to sea level rise and protecting critical areas at a red line, and that missing slide is here:

My thanks to Water District staff for the crucial assistance in preparing the slides.  Responsibility for any opinions I expressed rests with me.

(Reposted from my Water District blog).

Friday, June 29, 2012

Obamacare part deux - credit where due

Brian Beutler on March 26:

In a little-noticed exchange Monday, conservative Supreme Court Chief Justice John Roberts may have tipped his hand that he’s entertaining the possibility that the health care law’s individual mandate can be upheld on a constitutional basis that’s different from the one supporters and opponents have made central to their arguments....Roberts suggested he’s skeptical that the mandate and its penalties can be treated separately and may have opened the door to finding that Congress’ power to impose the mandate springs from its broad taxing power.

And Mark Kleiman on Wednesday:

....the ill-tempered and intemperate) outbursts from Alito about juvenile LWOP and (especially) Scalia about immigration make me wonder. If their side had won a huge victory – if they were about to overturn Obamacare – wouldn’t you expect them to be on their best behavior, and disinclined to reveal the full extent of their partisan hackery?
On the other hand, if Kennedy or maybe even Roberts decided that killing ACA was a bridge too far, it would be perfectly understandable if that put the extreme reactionaries in a pissy mood. 
I offer no prediction. But I’m not in total despair. I’ll leave that for tomorrow.

I've heard others say they had the same suspicion, but didn't hear them say it before the decision came out.

Another effect includes Vermont single payer plan getting a boost:

Vermont's push for universal, publicly funded, single-payer health care is going ahead no matter what, Gov. Peter Shumlinsaid Thursday, but he hailed the U.S. Supreme Court decision upholding the federal Affordable Care Act as a big boost for the state's efforts.
Shumlin called Thursday "a great day for Vermonters and a great day for Americans." But, he added, "I would say that of all the states of the Union, the least to be impacted by the Affordable Care Act is probably the state of Vermont."
That's because Vermont's health care overhaul, which legislation passed last year says will be implemented by 2017, goes well beyond the federal law, in the direction of a Canadian-style public system.
The biggest impact from the federal law will be money: an estimated $400 million a year in tax credits to help people with low and moderate incomes buy health insurance. That's expected to provide a partial answer to a big and still unanswered question: how Vermont will pay for its new health care system.

I'll add more on that Commerce Clause dicta thing:  if Obama's re-elected and gets to replace one of the five justices who made up the nonsense, it's far easier for a lower court to make up its own mind rather than glumly affirm a bad precedent and wait for the Supremes to overrule it.

Finally, Anthony Kennedy as a radical with some liberal social views, not a moderate.  I guess I can see it.

Thursday, June 28, 2012

The weird politicized and legally conservative Obamacare ruling (plus dicta)

Well, that was unexpected.  Supreme Court - actually, John Roberts -  rules Obamacare is legal not based on the Commerce Clause but based on the government's power to tax.  Roberts actually ruled the law is not a valid exercise of the Commerce Clause.

The weird and politicized aspect is that there's relatively little evidence in favor and some evidence against the idea that Congress was using its power to tax as a basis for Obamacare.  I think Roberts wanted to reach the outcome that he got on the Commerce Clause without causing the most disruptive overturning of a Congressional law since the Great Depression.  He got what he wanted, a limitation on the Commerce Clause.  Compare that to the SWANCC case I mentioned earlier, where there was plenty of evidence that Congress relied on the Commerce Clause and the Court majority ignored that so they could get the result they wanted without dealing with commerce issues.

The ruling on Commerce Clause advances legal conservatives position, even though the tax outcome leaves Obamacare intact.  The Medicare ruling is even more legally conservative - the power of federal government to spend money as it wishes for the public welfare has been almost unconstrained outside of First Amendment issues, but now its ability to move states in the direction it wants, with its own money, is facing a limit.

Surfing around the legal blogs, they're starting to notice that the "holding" on the Commerce Clause is actually dicta - reasoning that wasn't necessary to reach the conclusion made by the Court majority, and therefore just a statement that is no binding precedent on lower courts.  These are statements that Court actually shouldn't even make but if they do, we can ignore them in theory.  In practice, it's pretty clear where a majority of the current Supreme Court would go on this issue, so a lower court would hesitate to ignore it.

Given this tiny amount of restraint though, I guess the justices shouldn't be elected.  They're playing court politics, not politics politics.

UPDATE:  Nice post at SCOTUSblog on the Medicare issue.  Because it was a plurality but not a majority opinion, that means the plurality opinion isn't binding on future cases.  And what's up with Kagan and Breyer joining Roberts in his nonsense that the feds can't decide when to stop spending money?  This is an incredible door to judicial activism - they imply that a smaller penalty would be okay, but we'll never know what's okay except by countless lawsuits that will have to be relitigated for any new law involving funding of the states by the feds.

On the good side, and per the comments discussion, the implication here is that if a law looks like a tax, even if it otherwise suggests that it isn't a tax, then for purposes of determining whether it's constitutionally permissible it is to be considered a tax.  That goes a half-step beyond what courts usually say when they say they will search for an interpretation of a law that allows it to be constitutionally valid.

Monday, June 18, 2012

Yes, carbon taxes can work in theory

I've argued a million times that some enviros shot and are shooting themselves in the foot by opposing cap-and-trade so they can get their-way-or-the-highway alternative of the carbon tax.  I'm not enjoying the highway very much.

To balance this criticism, I should say the liberal economics blog NoahOpinion is wrong to say "Carbon taxes won't work".   Had he said "carbon taxes are unlikely to be politically achievable in the short to moderate term at levels that are sufficient to change behavior, and other approaches deserve prioritization of political capital," then he'd have a worse title but better argument.  His problem though is that he mushes a political argument into what purports to be an economic analysis.

Noah briefly tries to unmush the politics but doesn't do it.  He mentions the political difficulty and then says that's not an argument that economists should use.  He says the solution is technology development, standard Breakthrough Institute stuff (thankfully minus their prioritization of nuclear uber alles).

So.  Even if you think we really can't get 90% GHG reductions with current technology, a debatable but unimportant argument given the decades that we're talking about, then anything that incentivizes a move away from carbon will assist new technological development.  Therefore a theoretical carbon tax, especially a substantial carbon tax, will provide some of that incentive that he wants.

As for his other points, coordination is difficult, but Europe is moving, Australia has a carbon tax, and other countries are making efforts.  Carbon tariffs on imports seem like an important solution to the coordination problem, although I'm not clear to what extent that raises World Trade Organization issues.  Noah says the pointy-headed intellectuals might not want tariffs, but that hardly matters politically.

His argument that carbon taxes can be revoked and therefore have little effect is another political argument.  If you assume the political strength exists to get them started, my guess is that worsening climate impacts over time will only reinforce that resolve.  Finally his argument that a small reduction does almost nothing is a misstatement of his previous argument about temporary reductions.  If he wants to make a scientific argument instead, go to it then.

It all comes down to politics.  I'm happy to support a carbon tax, but will also support cap-and-trade that seems to get a lot farther politically.  It passed the full House of Representatives in 2010 and versions have passed Senate committees.  If Noah's ideal technological support legislation had reached similar levels before being stopped, then I'm sure he'd call that substantial support, not something that "went nowhere fast".

Of course, cap-and-trade and carbon taxes will go nowhere on the national level barring a natural disaster for at least a few years.  Support for technology is fine, but it shouldn't be viewed as the only possibility on an indefinite basis.

UPDATE:  I should have mentioned that I generally like the other posts at Noah's blog, but of course I have to complain about the one where I don't like the free ice cream.

Sunday, June 17, 2012

Supreme Court justices should be elected

UPDATE:  okay, turned out better than I expected.  Let's not elect them, but still give them term limits.

This is my pre-emptive post reacting to the near-future decision by the Supreme Court on Obamacare.  Maybe they'll preempt my preempting by doing the right thing instead, but I doubt it.  My best guess from reading Kennedy's and Roberts' questions is the same as the conventional wisdom, that they'll at least strike down a significant portion of the ACA on the fatuous activity/inactivity distinction.

I read Bush v. Gore the day it came out - five judges with little (Kennedy, O'Connor) to no (other three) history of ever caring about equal protection before that point suddenly joined two of the other four who also saw a problem in how the Florida Supreme Court was conducting the vote recount, but the five then refused to fix the problem but rather just stopped the recount.  The five used a contorted decision-making process to reach that result and then declared it had no effect on any subsequent decisions, to make sure their decision didn't accidentally provide equal protection to people who actually needed it.

Less well-known outside of environmental law is the SWANCC case, where the Supreme Court in a 5-4 ruling pretended the Clean Water Act didn't rely on the Commerce Clause for its constitutional authority, but only on constitutional authority to regulate navigable waters.  They made this up, because the majority wasn't ready to address the extent of the Commerce Clause.

Skip to 2012, where they'll soon adopt this activity/inactivity distinction.  Kevin Drum has a good take on it:

Of course it [ACA] was constitutional. Even Randy Barnett, the law professor who popularized the activity/inactivity distinction that opponents latched onto as their best bet against the mandate, initially didn't really think it was anything but a long shot. 
So how did that conventional wisdom change so dramatically in only two years? Ezra Klein writes about this in the New Yorker this week, but hell, Ezra's a liberal. He's probably sort of flummoxed too. Instead, let's hear what a nonliberal has to say about it:
Orin Kerr says that, in the two years since he gave the individual mandate only a one-percent chance of being overturned, three key things have happened. First, congressional Republicans made the argument against the mandate a Republican position. Then it became a standard conservative-media position. "That legitimized the argument in a way we haven't really seen before," Kerr said. "We haven't seen the media pick up a legal argument and make the argument mainstream by virtue of media coverage." Finally, he says, "there were two conservative district judges who agreed with the argument, largely echoing the Republican position and the media coverage. And, once you had all that, it really became a ballgame."

I've previously supported 18-year term limits for the Court, partly as a way to reduce the politicization of the nomination process by reducing the stakes involved, but that's not enough.  We're in the worst of possible worlds right now, with a Court making political decisions but without political accountability.  Let them face the voters if they've decided to be politicians as well.

It's not going to happen.  Term limits don't seem likely to happen either, although Democrats should at least lift a finger in support of it.  Elections shouldn't happen with lower judges who are bound somewhat by precedent, but term limits should.

Despite the terrible image we lawyers have, I like to think there's at some background level an integrity about the law that can overcome politics.  With this Supreme Court, though, maybe we should admit our weakness and bring democracy to limit the politicized "justice".

Sunday, June 10, 2012

Doing their best to prove me wrong

I've argued at times that climate adaptation will be easier to push through denialist resistance than climate mitigation, because:

1. It's not asking denialists to give up the bad things they do.
2. It doesn't blame the denialists for bad things that are happening, except in an indirect way.  At least it doesn't focus primarily on whether their/our lifestyle is causing problems for other people.
3. It's saving their own bacon (or maybe their community's bacon) rather than helping/not harming other people far away.  Folks that would confidently deny climate change might be much less confident in arguing against preparing for climate change.

I've also argued that preparing for the possibility of climate change will encourage people to accept its reality, a kind of backwards way of reasoning but one that still gets to the best policy outcome.  Hopefully people will then realize that mitigation reduces the need for adaptation.  None of this works though unless climate adaptation is an easier sell than climate reality overall.

North Carolina and Virginia legislatures are testing my hope that adaptation is an easier sell.  People in both states have noticed that coastlines sure seem flooded a lot, and both states have lots of low-elevation land.  Legislatures want to plan how to respond to this but have come down with hives at the mention of, or express adaptation for, climate change.

Still, North Carolina has backed away somewhat from its widely-mocked effort to limit projecting sea level rise to no more than the historical record.  Now they say accelerated sea level rise could be considered if derived from good science, kind of.  It has problems but it doesn't stop planning for some level of climate adaptation.

Virginia also has problems, with the city of Norfolk spending $6m annually to keep roads and homes clear of coastal flooding.  Their bill dances around the issue of climate change, dropping the words entirely in favor of "recurrent flooding".

On one level this is equal parts laughable and sad.  It reminds me of the controversy over BBC America's Frozen Planet series and the initial effort to drop the discussion of climate change that was shown in the original British version (they did show it in the end).  No surprise that Americans are in climate denial when their leaders and media hide the truth from them.

But even if they're not using the "CC" words in Virginia and North Carolina, it's not that hard to read between the lines.  Someday people will ask why taxpayers should be paying for this out of income and sales taxes, instead of polluters paying for it along with the emissions that cause the problem.

UPDATE:  Anonymous has a great art project idea in the comments.  I'd put it at 7 meters above sea level though instead of 20 - we still have time to save the Antarctic ice sheets.

Sunday, June 03, 2012

Improving existing coal plant efficiency is the political sweet spot

UPDATE;  Management strongly encourages readers to look at the bottom of the comments, a very interesting and informative discussion of electrical power distribution and generation has broken out.  Whoda thunk.

Nice post by Brad Plumer about unglamorous low-tech fixes for the climate:
Catherine Wolfram, an economist at UC Berkeley’s Haas School of Business, says that we too often ignore simpler solutions, such as wringing more efficiency out of our existing fossil-fuel and nuclear plants. Many of those power plants, after all, are likely to stick around for decades to come.... 
Wolfram described what happened in the 1990s after some U.S. states began deregulating their electricity sectors. Utilities sold off their nuclear reactors to private operators. And, Wolfram found in a recent paper with Lucas Davis, electricity output at these newly privatized reactors increased 10 percent compared with those that stayed in the hands of tightly regulated utilities.
....Even today, Wolfram notes, many U.S. power plants still don’t have incentives to operate as efficiently as possible. There are many coal plants in the Southeast that are regulated under “cost-of-service” rules, in which power plants can pass their fuel costs onto consumers. That means there’s less reason to operate as efficiently as possible. And a carbon tax wouldn’t necessarily fix this — not if utilities could just pass costs onto consumers. 
Bruce Buckheit, a former EPA official, concurs. He notes that the efficiency of the U.S. coal fired fleet has remained flat since the 1970s. And a variety of research (pdf) suggests that small improvements in operations could boost the overall efficiency of the U.S. coal fleet by as much as 5 percent. (Wolfram, for instance, has found that a coal plant’s efficiency can vary as much as 3 percent depending on the skill of the guy sitting at the controls.) That may not sound like much, says Buchkeit, but spread across hundreds of coal plants, there are real carbon savings to be had here.
A mandate requiring the utilities to get off their lazy butts, improve coal plant efficiency to match the best-in-class levels, and pass the savings on to customers sounds like a political winner to me.  The Republicans will call it a slippery slope, but if you can't fight them on this then the game's over.  Seems like a nice initiative to move forward this fall.

It might be too expensive for the oldest plants to convert and shut them down instead, as if that's a sad story, but overall this should save people money.  I suppose the new investment might be used against an effort to shut the plants down in a few years, but for the vast majority of them, I think Brad is right that they're going to be around for more than a few years.  Anyway, it doesn't sound like it needs much of an investment, just some willingness to hire trained people.

UPDATE:  one possibility would be to exempt coal plants if the owners commit to shut them down or otherwise make them as efficient as natural gas within a certain period, say 5-10 years.  If the grandfathering that's found throughout the Clean Air Act came with time limits, we'd be much better off.

Saturday, June 02, 2012

Many enviros have criticized Obama for not using the "bully pulpit" adequately to highlight the dangers of climate change.  Other activists make similar claims for their causes.  By contrast, most political analysts seem to think the bully pulpit doesn't actually work.

I think there's a measurement problem - short term changes could be noise or ephemeral reaction to the bully pulpit with no lasting implications.  Long term changes can't distinguish between bully pulpit causes and everything else in life.  My personal guess is that it plays a modest but not insignificant role in cultural attitudes, and plays a somewhat more important role in elite attitudes.

Obama's shift on same sex marriage provides the best hope that the bully pulpit can actually do something.  Public opinion has shifted dramatically on marriage equality in the last 20 years with some evidence of acceleration, so if there were ever a chance to accelerate it further, now seems like a great time.

Most polls I've seen following Obama's announcement have shown large shifts in African American public opinion (but not all polls) and little shift in non-black opinion.  Some analysts have complained that this shift just reflects people lining up with their side, as if that matters.  Anyway, it's short term. Long term, we all know that in a decade support for SSM will be the dominant position outside of the South but there would be no way to test whether the extent of the dominance was affected by Obama.

Let's look in the medium term, one or two years from Obama's announcement.  My guess, made before Obama evolved, was that his opinion could shift 5-7% of black opinion and 1-3% of non-black opinion.  I think I'll stick with that and look at polls in 2013.  The complicating factor is that support for SSM typically goes down in presidential election years as the Republican Party plays the anti-gay marriage card.  Might not happen this time, but who knows.

My prediction is that we'll see the biggest bump in African American support in 10 years, big enough to overcome any Republican push against marriage.

Moving past the medium term, I think the biggest effect of Obama's announcement is to line up the Democratic Party in all the same direction.  Democratic leaders in blue constituencies will find it very hard to resist supporting gay marriage.  Here in my area, the otherwise popular mayor of San Jose is finding that out, something that could really hurt his political future.  Democratic leaders in red constituencies and among African Americans now have much more room to support SSM.  This probably falls into the long-term category, though.

I'm not sure how this all plays into the debate over whether Obama should talk more about climate.  Overall I think that yes he can and yes he should, but his political actions are more important than the small effect he can have on public opinion in the medium term.

UPDATE:  found a prediction I made in 2005.
The actual timeline is that they'll benefit politically for another five years, it won't help or harm them much overall for ten years past that, and then for fifteen years it'll hurt them as they fight the fundamentalist dinosaurs in their party before they can finally get rid of the anti-gay marriage plank of the Republican Party platform.
I was too pessimistic overall.  Beginning in 2014, being anti-SSM will start hurting Republicans on the national level (this year it's neutral).  It won't take Republicans 30 years to drop opposition, more like 15-20 years.

Friday, June 01, 2012

Goodbye blue sky

The recent study showing that geoengineering via aerosols would make our planet's sky whitish, like what's seen in urban environments, is making the rounds.  It'll be interesting to see if we get some sky color denialism as a push back.  I also haven't seen whether urban skies would be even more altered as a result.

I expect this new study could have political repercussions.  The "don't worry about your SUV, we'll just partially blot out the sun and turn the sky a different color" crowd might find it a hard sell.  Especially when this change is from a human perspective, forever.  It will take centuries of pumping pollution in the atmosphere to balance the effect while the majority of extra CO2 is slowly eliminated.

Despite all this, I think we can't rule out the possibility that things will get so bad that we'll have to consider it.

UPDATE:  by comment request: