By Mildred Butler,2014-11-25 19:35
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    AUG 1, 2007


     In June, 2007, leading climate scientists warned that Earth is in ―imminent peril‖ from

    carbon emissions that cause global heating. In 2005, 48 Nobel-Prize winning scientists stated: ―By ignoring scientific consensus on . . . climate change, [our government is] threatening the Earth’s future.‖ The series of UN reports issued over the past several

     1 Philip H. Knight Professor of Law, Morse Center for Law and Politics Resident Scholar (2006-07),

    University of Oregon School of Law. For citations and references to many of the quotes and statistics, see

    Nature’s Trust: A Legal, Political and Moral Frame for Global Warming, 34 Boston College

    Environmental Affairs Law Review 577 (2007), available at (under

    ―global warming outreach‖).


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    months make clear that global heating is a threat to civilization as we know it. It is leagues beyond what Humanity has ever faced before. British commentator Mark Lynas, author of HIGH TIDE, puts it this way:

    If we go on emitting greenhouse gases at anything like the current rate, most of the

    surface of the globe will be rendered uninhabitable within the lifetimes of most

    readers of this article.

     Time is not on our side. Jim Hansen, the leading climate scientist for NASA, warns

    2that ―we are on the precipice of a tipping point beyond which there is no redemption.‖

    According to scientists, we must cap our rising greenhouse gas emissions in the next 8-10 years and bring them downward. 8-10 years. If we fail, we effectively lock the doors of our heating greenhouse and throw out the keys, trapping ourselves and future generations inside as disaster unfolds across the planet over the long term.


     And yet, in face of this emergency, we are embroiled in political chaos: all sorts of various proposals and half-measures on the state, and international level. And on the federal level, we have industry lobbyists swarming the halls of Congress to fight climate legislation, and we have a person sitting in the highest office in this country steadfastly rejecting any mandatory carbon reduction.



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    This is a recipe for disaster. But amidst all of this there is also hopeful simplicity. There is only one law that is relevant: the law of Nature. Either this law is complied with, or all of Humanity will endure climate punishment for generations to come.

    I was invited to speak at this conference to provide a broad framework for climate crisis with the hope that it will help ground discussions about renewable energy in the sessions ahead. I would like to begin my remarks by describing Nature’s Mandate. Then I will address why our current expectation of government will likely block us from meeting Nature’s Mandate. But I hope to offer a different way of thinking to address climate crisis.


    Let’s begin with what scientists have called Business as Usual. Under Business as Usual, our society is spewing out greenhouse gases at a rate that is increasing by 2% a year. We now have higher levels of carbon in the atmosphere than at any time in the past 650,000 years, and carbon persists in the atmosphere for centuries. These gases trap heat, as if we were to put blankets over the planet that it can’t shake off. As you have probably heard, rising temperatures on Earth are melting the Polar Ice Caps, Greenland, and every major glacier in the world. Scientist are clear that any climate heating beyond 1 degree C. more than what is already in the pipeline is dangerous. So this is Nature’s Mandate – to

    not go beyond 1 degree C.

    To achieve a cap at 1 degree C, atmospheric carbon levels may not exceed 450 ppm.


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    And to maintain carbon levels below 450 ppm, the total atmospheric load of carbon may

    3not exceed 935 billion tons. We are now at 880 billion tons. We have 55 billion tons to go before plunging the planet over that danger threshold. We are putting out 8.2 billion tons a year. As you can see, Nature’s Mandate is really a matter of carbon math. But it’s math in a minute glass, because Nature has kicked in its own feedback loops that are now accelerating carbon emissions.

    To address global warming, we have to acknowledge that Nature’s Mandate doesn’t come from any political processes. It’s just out there as law, applied to the whole world, and it’s unyielding. The climate scientists are the legislative reporters for this law.

    They’re not out there lobbying Nature, trying to get compromises or loopholes. There’s an old Italian saying, ―arithmetic is not opinion.‖

     The scientists are clear that we still have a window of hope, but it’s closing fast. To

    stay below the dangerous threshold of 450 ppm, we need to: 1) bring rising carbon levels down within the next 8-10 years; and 2) continue bringing them down until they are 80% below 1990 levels by 2050. You can think of it in this way: it’s as if we’ve mortgaged our

    Earth home. We have to make a big down payment within the next 8-10 years by capping and then reversing carbon emissions. If we fail at this, we don’t get a shot at the rest. But even after we accomplish this, we have to keep reducing carbon through regular

     3 For discussion of these numbers, see FRED PEARCE, WITH SPEED AND VIOLENCE (APPENDIX).


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installments think of carbon amortization until we reach the final payoff by 2050. Only

    then will we have a chance of getting our planet back on the path of climate equilibrium. Renewable energy is one of those crucial installments in paying off the mortgage.

    If we fail to meet Nature’s Mandate fully, all our efforts will be useless. If we go beyond the 450 ppm tipping point, we’re looking at what scientists call – in their words --

    a ―transformed planet.‖ It won’t matter that we tried hard. It won’t matter that we met Nature part way. A rescue rope that is too short is no good at all.

    The nice thing is, you can apply this mandate to every nation of the world and create a framework for carbon responsibility. If each industrialized nation complies fully with Nature’s Mandate – that is, each one brings its emissions down within a decade, and gets to 80% below 1990 levels by 2050 -- then the planet as a whole will comply. (Now that’s assuming that the developing nations do not add to the problem -- we’ll need to

    come back to that). You can imagine the planetary carbon load as one big pie. You’ve heard of pie in the sky. Even though industrialized nations come in different sizes, if each reduces carbon proportionately by the same amount -- the carbon pie as a whole will reduce by that amount.). So you can take this one planetary mandate and make it into a uniform national mandate for any industrialized nation on Earth. That’s what the Kyoto Protocol tried to do. Now the contrary is also true: if even one major industrialized nation does not accept its share of carbon reduction, does not reduce its slice of the pie, it will


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sink all other planetary efforts. The carbon pie won’t shrink by the amount it needs to.

    Let’s put this principle into a familiar environmental context. In hazardous waste cleanups, we talk about orphan shares. If 20 different companies contribute waste to a toxic dump, all 20 are liable for the cleanup costs. If one company has gone bankrupt, it leaves an orphan share that the others must pick up if the site is to be cleaned up.

    The U.S. is responsible for 30% of the greenhouse gas emissions on the planet. Our emissions are increasing every year. We are putting a huge orphan share out there. Now, in the hazardous waste context, orphan shares aren’t so much of a problem, because the solvent companies can pick them up simply by paying out more money than their share for the cleanup. The problem is, this doesn’t work with carbon. No other industrialized

    nation on earth is positioned, much less obligated, to adopt an orphan share left by a deadbeat sovereign especially a share as large as ours, 30%. By refusing our planetary share of responsibility, we are consigning all other nations on Earth to disaster.


    Now, this is clearly a matter for our government. Individuals can make changes to reduce their carbon, and some are, and those efforts are very important, but at the same time, those reductions are quickly nullified by the carbon emissions of others. Just one hummer negates the carbon savings of a hard-peddling bicycle commuter. If you notice, the number of Americans making changes is still pretty insignificant. Look around. You


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see SUVs, RVs, ATVs everywhere, massive waste in businesses it’s called convenience -

    - and families still making an average of 9 trips a day in the cars. Our society is nowhere near decarbonizing. The carbon math is simply not going to add up unless we have massive change, which can only be achieved through government leadership.

    The fact that so many Americans are trying make small changes on their own tells us that we are lacking such leadership. Where is government during this crisis? We have plenty of government at the local, state and federal level. In fact, we have more agencies than any other country in the world. If every one of these agencies made climate a priority we might stand a chance of meeting Nature’s Mandate head on. One would think that, in face of a planetary emergency, every elected body and every agency in America, at the local, state, and federal level, would be convening climate task forces to achieve carbon lockdown within a decade.

    But aside from Gov. Schwarzenegger and a handful of others, our government is driving this country towards runaway greenhouse gas emissions. County commissioners

    are approving trophy home subdivisions and destination resorts as if global warming didn’t

    ;exist. State environmental agencies are approving air permits as if global warming didn’t

    exist. The Forest Service is approving timber sales as if global warming didn’t exist. And

    the electric power industry is racing to build more than 150 new coal fired power plants


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    across the United States, banking on EPA approval and federal subsidies as if global warming didn’t exist.

    The heart of the problem is this: Americans have lost their sense of government obligation towards Nature. How has this happened? Unfortunately, I believe the answer resides in our system of environmental law.


     Environmental law consists of thousands of statutes and regulations passed since the 1970s to protect our natural resources. Had environmental law worked, we would not have this ecological crisis on our hands. The core of the problem is this: while the purpose of every local, state and federal environmental law is to protect natural resources, nearly every law authorizes the agencies to permit the very pollution or damage that the statutes were designed to prevent. Of course, the permit systems were never intended to subvert the goals of environmental statutes. But most agencies today spend nearly all of their resources to permit, rather than prohibit, environmental destruction.

     You can think of environmental law, with all of its statutes and regulations, as one big picture. The agencies have constructed a frame for that picture. The four sides of that frame are discretion, discretion, discretion, and discretion -- to allow damage to our natural resources. All of environmental law is carried out through that frame. And so, though our statutes were passed to protect the air, water, farmland, wildlife and other resources,


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    when the laws are carried out through the discretion frame, they are used as tools to openly legalize damage. Most officials are good, dedicated, hardworking individuals, but as a group, they dread saying no to permits. Essentially, our agencies have used the discretion in the law to destroy Nature, including its atmosphere. That is why we have species extinctions, rivers running dry, dead zones in our oceans, and global warming.

    Why would public servants whose salaries are funded by tax dollars use their discretion to allow destruction of public resources? It is because the discretion frame never characterizes natural resources as quantified property assets. Instead, the environment is portrayed as a nebulous feature of our world. So when private parties come to agencies seeking permits to pollute or destroy resources, they almost always carry the day because their property rights are clear and tangible.

    Our federal government uses this discretion frame to justify inaction in the face of climate crisis. Protecting our atmosphere is characterized as a political choice. EPA

    claims discretion to permit pollution by the oil, gas, coal, and automobile industriesno

    matter that this legalized pollution will degrade the atmosphere so much that it will no longer support human civilization as we know it.

     And courts aggravate this problem because they defer to the agency discretion. They fail to examine whether the agency decision is politicized. They operate on the false assumption that all agency decisions are neutral. This neutrality of course is often a


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    charade. Do we really believe, for example, that the former chief of staff of the White House Council on Environmental Quality, who was a former climate lobbyist with the American Petroleum Institute do we really believe he was neutral when he edited

    government climate reports to emphasize doubts about climate change? He is now with Exxon.

     Government discretion is to industry, what honey is to bears. When you have legislatures, agencies, and courts all saying the government has discretion whether or not

    to protect the environment, it attracts corruptive influence. The danger is this: we have relegated climate to the political playing field. There’s no umpire on this field. There’s just discretion. To have even a voice, the public has to spend enormous amounts of time and energy chasing the ball up and down the field many people feel that they have

    assumed a second career (without pay) just trying to convince government to protect the environment and prevent global warming!

    Now, of course, on this playing field, Nature bats last. Unless we can view our government as having a firm, clear obligation and one tied directly and mathematically to Nature’s Mandate, we don’t stand a chance of complying with Nature’s laws.


     So how can the public break this death spiral of environmental discretion and


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