Hot News From The IPCC

Although the Intergovernmental Panel on Climate Change ("IPCC") is not scheduled to release its fourth report on the science of global climate change on February 2, 2007, a few details of the report's contents have begun to leak out. The report will include the bold pronouncement that

Warming of the climate system is unequivocal, as is now evident from increases in global average air and ocean temperatures, melting of snow and ice, and rising sea level.

Here are some other significant statements the report will make:

The anthropogenic release of greenhouse gases has already altered the earth's atmosphere so severely that the effects of global climate may already be locked in for at least 1000 years.

Current atmospheric concentrations of the greenhouse gases, carbon dioxide and methane, "far exceed" concentrations known to have existed over the last 650 000 years.

The Artic Ocean could be entirely ice-free in summertime by the end of the 21st Century.

Heat waves and droughts will increase in frequency.

Hurricanes will become more severe, though less frequent.

Global mean surface temperatures will most likely increase by between 1.7 and 4.0 degrees Celsius over the next century.

Sea levels will most likely increase by between 0.28 and 4.5 metres, though there is a significant probability that the Greenland iceshelves will melt completely, eventually raising sea levels by about 7 metres.

The full report will be sure to include myriad more predictions and assessments of risk when it is released in a couple of days. What seems clear already is that, where world scientific consensus included relatively general predictions accompanied by generous error margins only several years ago, current predictions have increased significantly in both magnitude and specificity.

Modeling "Wicked" Cumulative Effects

Cumulative Effects
By J.B. Ruhl

In several posts earlier this month I explored the difficulties presented by "cumulative effects" problems such as global climate change. Here I outline a model of the essential characteristics of the most complex cases of such effects--the "wicked" problems that present the hardest management challenges for social, economic, and legal institutions.

• Massive source agent numbers: Cumulative effects problems are likely to be easier to manage when the number of agents contributing to the effects is small. We have a realtively small set of coal fired power plants emitting greenhouse gases, for example, but a much larger set of agricultural land uses contributing to nutrient runoff affecting the "Dead Zone" in the Gulf of Mexico. No surprise that we blanket power plants with regulations (some say too much, others say not enough) whereas farms are relatively untouched by environmental regulation, if not deliberately left alone.
  

• Nonlinear aggregation thresholds: The aggregation of effects as agent numbers increase and agent behavior consequences accumulate may not exhibit proportionalality over time and space. The effects, may begin to exhibit synergistic interactions that amplify or impede the cumulative effects or reveal new qualities to the effects. These "jumps" in quantity and quality may present themselves at relatively discrete thresholds along the way. Predicting when these nonlinear thresholds will occur is likely to be very difficult.
  

• Source agent resistance to change: The behavior of the source agents leading to the cumulative effects may may have nothing to do with wanting to cause the effects, but rather the effects may be the incidental consequence of behavior that is motivated by some deeply rooted incentives or set of circumstances. In complex systems terminology, the agent behavior is self-organizing around attractors, and bumping the behavior out of the attractor can be quite difficult. The source agent behavior, in other words, may have deeply sunk "roots."
  

• Coevolution with other agent systems: It is entirely possible that the cumulative effects produced from one source agent system begin to coevolve with other agent systems in such a way as to reinforce the other or vice versa. The source agenct system, in other words, may spread "tentacles" between other systems, which may make it difficult to disentangle the root cause of the cumulative effects or, once identified, to uproot it without affecting other systems.
  

When all these characteristics are in play, we've got a nasty problem on our hands.

Perhaps, however, this is all just a matter of degree, not of quality, and the solution is to throw more of the same at the problem. Maybe, for example, the best way to deal with wicked cumulative effects problems is through the most elegant complex adaptive system devised by humans--markets. Or, at the other end of the spectrum, perhaps the rational administrative state should confront such problems through regulation guided by aggressive use of cost-benefit analysis of policy options.

In the next few posts I will argue that, while market-based approaches and cost-benefit analysis have a role to play, expecting either to supply the complete answer is preposterous.

On The Menu At Davos

The World Economic Forum ("WEF"), held in Davos, Switzerland, kicks off today. In addition to speeches by Angela Merkel, John Kerry, and other elite "opinion-makers", A-list invitees representing the worlds of politics, wealth-making and wealth-managing, business, the arts, and academia will attend presentations on such hot topics as the future of the American dollar, philanthropy, and the currently moribund Doha round of World Trade Organization negotiations.

Notably, this year's WEF agenda highlights numerous issues highly relevant to biolaw. In fact, soon after the Chandon and single malt scotches begin to flow, participants will work off their buzz at the first session of the conference: "The Legal Landscape around Climate Change".

Other biolaw topics abound, including

1.24.2007 - CNBC Debate - Make Green Pay, Why Do Brains Sleep? (including consideration of the vitally self-important subject of "Do leaders sleep less?"), AIDS 2025, and The Security Implications of Climate Change.

1.25.2007 - Robotics Unleashed, What the Mind Teaches Us about Education, Relationships and Self-Esteem, Depression, Stem Cells, Early Warning and Crisis Preparedness, The Scent of Success, Creating New Body Parts, Climate Change: A Call to Action, Reverse Engineering the Brain, The Global Playing Field for Intellectual Property Rights, Can Markets Save the Planet?, Emerging Nutrition Markets, and Me, Myself and My Identity.

1.26.2007 - Technology for a Healthy Future, Privacy: Your Life as an Open Book, Engineering Nature's Power Solutions, Who Funds Research and Innovation?, The Procreation Choice, Science and Development, BBC World Debate: Climate Change, African Agriculture: Ready for a Revolution, Fighting Low-Profile Diseases, The Human Lifespan, How Much Should the Industrialized World Spend on Healthcare?, The Battle against Cancer - A Progress Report, Hurricanes, Heatwaves and High Seas, The Price of Becoming Old, and Health in the City.

1.27.2007 - Building Health Systems in Developing Markets, Genetic Screening: Seeing the Future?, A Blueprint for Human Settlement of the Solar System, The Fate of the Universe and the Search for Life, Pandemics: Monitoring a Risk in Hibernation, and The Impact of Web 2.0 and Emerging Social Network Models.

The conference then draws to an elegant conclusion at the Schatzalp Hotel, a posh alpine location where fortunate attendees can "enjoy the beautiful views from this mountain pasture". Perhaps, if they are patient enough, as they practice their newfound skills at Eclectic Fine Wines and consider making a personal investment in The Singles Economy, they will notice the view altering before their very eyes, as ancient Alpine glaciers melt away from the accelerating onslaught of global warming.

GMOs Are Growing Up

The International Service for the Acquisition of Agri-biotech Applications ("ISAAA"), a nongovernmental organisation that promotes genetically modified ("GM") crop adoption in the developing world, has just reported that more than ten million farmers grew GM crops occupying more than 100 million hectares worldwide by the end 2006. As the ISAAA enthusiastically states in its new report,

In 2006, the first year of the second decade of commercialization of biotech crops 2006-2015, the global area of biotech crops continued to climb for the tenth consecutive year at a sustained double-digit growth rate of 13%, or 12 million hectares (30 million acres), reaching 102 million hectares (252 million acres). This is a historical landmark in that it is the first time for more than 100 million hectares of biotech crops to be grown in any one year.

Among the surprises in the ISAAA's report is the fact that India - often viewed as a prime locus of anti-GM crop sentiment - increased its GM crop hectareage more swiftly than any other country in 2006. Worldwide, GM crops have increased the area of farmland they occupy by sixty times over the last decade. ISAAA claims this makes GM crops the most rapidly adopted technology in history.

Beyond the increase in popularity of GM crops, ISAAA emphasizes their alleged environmental benefits. For example, from 1996 to 2006,

224,300 MT of active ingredient, which is equivalent to a 15% reduction in the associated environmental impact of pesticide use on these crops, as measured by the Environmental Impact Quotient (EIQ) - a composite measure based on the various factors contributing to the net environmental impact of an individual active ingredient.

Love them or loath them, GM crops are becoming mainstream. The adoption rate of GM soybean and cotton in the United States is 80%, with other crops close behind. Hectareage devoted to GM crops in India increased by almost 200% in the last year alone. Bon appétit!

Islands In The Legal Stream (Final Day)

As the students in Biodiversity Law discussed what they had learned in the class, one student provided this rather eloquent observation:

The US Virgin Islands are very close to being loved to death. It seems that everybody wants their slice of paradise, and it appears the negative environmental costs of development are barely recognized by most of the island's political players and disregarded by real estate developers despite many laws on the books designed to protect the island's environment and biodiversity. Two significant questions repeatedly surface: 1) Is the federal government legally required to exercise significantly more land use control in the Virgin Islands than it has at present to protect endangered species? And, 2) Given the Virgin Islands dependence on tourism, which is arguably tied closely to its biodiversity (particularly in the form of charismatic megafauna like the green sea turtle), will that industry at some point recognize the importance of protecting the island's ecosystems and help fund preservation of important natural areas and enforcement of the island's biodiversity laws? In the words of one environmental writer "God Bless America. Let's save some of it." And on a broader level, God Bless the World, let's save some of it for its ecosystem services and because seeing a three-foot long remora attached to the back of a green sea turtle is pretty darn cool.

The class and I had a wonderful experience studying biodiversity law with the Virgin Islands acting as a natural laboratory for testing legal theory and hypothetical fact patterns against the real world. We are all very grateful to the many wonderful citizens, environmentalists, business people, scientists, policymakers, attorneys, and politicians who met with us, taught us, and helped us in the Virgin Islands. As a class, we now hope to repay their kindness by producing and publishing the first critical appraisal of biodiversity law in the Virgin Islands.

Islands In The Legal Stream (Day 6)

The final lecture focused on three topics: international biodiversity treaties, enforcement of biodiversity law, and effects of global climate change on biodiversity. The class discussed how biodiversity is, and has been, regulated internationally under such agreements as the North Pacific Fur Seal Treaty, the International Convention for the Regulation of Whaling, the Convention on International Trade in Endangered Species of Wild Fauna and Flora, the Convention on Biological Diversity, the World Trade Organization (including both the Dolphin/Tuna and Turtle/Shrimp disputes). Then, the class grappled with the challenges of biodiversity law enforcement, citing Virgin Islands biodiversity issues as heuristic examples. Next, the class considered the biodiversity legal issues raised by global climate change, relying particularly on the startling data in IPCC Technical Paper V (entitled "Climate Change and Biodiversity"). Lecture concluded with a discussion of how observations the students had made about biodiversity law in the Virgin Islands related to biodiversity law in the rest of the world.

Our final fieldtrip was to Lindquist Beach. Our guide was Toni Thomas, who is renowned in the Virgin Islands as a superb botanist, conservationist, and author of a number of books on the islands' natural patrimony. Lindquist Beach is a relatively undisturbed parcel of land on the Northeast shore of Saint Thomas that has just been purchased by the Territorial government as the founding piece of the Virgin Islands Territorial Park system. Low dry scrub vegetation, hosting such birds as parakeets and anis, led down to a beautiful white halfmoon-shaped beach fringed by coral formations just offshore. To study the effect of development on biodiversity, the class then compared Sapphire Beach, a similar parcel of land adjacent to Lindquist Beach. Here, a hotel development had removed almost all of the native vegetation, and the offshore coral formations were visibly disturbed, broken, and diseased. On a more positive note, as the class snorkled away from the greatest density of the hotel's guests, the quality, size, and diversity of coral communities did increase. A couple of students even observed Green Sea Turtles grazing sea grass and stingrays gliding over the sandy bottom in the middle of the bay.

Having compared Lindquist and Sapphire Beaches, one student summarized his reaction as follows:

While the Virgin Islands are a beautiful place now, I can only imagine what they must have been like when Columbus explored their coasts. While all of the development on the islands makes for great postcards, in the long run I don't believe it's what will be best for the VI. The "naturalness" of the islands is one of their big attractions. The ability of the islands to heal themselves after an event, such as a hurricane, is made possible because of biodiversity features, such as mangroves. Once this biodiversity is gone, in order to make some place more aesthetically appealing to humans, the ability of self-regeneration may forever be lost. I would think that after Hurricane Katrina, we all would have learned a valuable lesson. So, Toni [Thomas] said, in the long run, allowing the natural biodiversity to flourish would be more valuable than a manicured postcard-perfect beach.

Another student remarked, more generally, that the

biodiversity of the Virgin Islands is a major draw for tourists - but development designed to capitalize on the tourism industry may end up adversely impacting the very ecosystems that make the pace so desirable as a destination. There is some interest in protecting biodiversity, but currently the Virgin Islands seem to lack the political will and necessary enforcement capacity to make biodiversity protection effective.

Heading back to our accommodations as the sun set on their final day of the Biodiversity Law fieldtrip, the entire class appeared a tad melancholy about leaving the biodiversity of the Virgin Islands behind as they returned to KU Law School for the start of the Spring term. However, they also seemed eager to begin the papers they will now write on various aspects of the biodiversity law of the Virgin Islands.

Islands In The Legal Stream (Day 5)

Today was a very exciting one. After lecture, which covered economics, sustainability (including an exploration of the IPAT formula and its implications), the origins, history, and sources of biodiversity law, the class was invited to visit Senator Adlah "Foncie" Donastorg at his home. With a panoramic view of rough Atlantic breakers swatting the North coast of Saint Thomas, Senator Donastorg spent the afternoon regaling the class with the ins and outs, and ups and downs, of biodiversity law on the Virgin Islands. He discussed trends in development of previously natural areas, the regulatory framework that implements biodiversity law on the Virgin islands, the sometimes uneasy interaction of Federal and Territorial statutes and regulations, and the details of how biodiversity issues make the transition from suggestions and ideas to draft legislations to legally effective statutes to enforced regulations. As always, Senator Donastorg was gracious, cogent, forthright, and optimistic about what politics and the law could accomplish if given the opportunity by strong and brave leadership. As one of my students stated

Meeting with Senator Donastorg was extremely interesting. It was clear that he is aware of biodiversity issues in the Virgin Islands, and has tried to make them a legislative priority. It was also clear how difficult it is to push such legislation forward when there are so many other social and economic issues facing the islands. Finding a balance between promoting all of these issues seems to be essential in successfully preserving biodiversity.

The United States Virgin Islands have clearly not yet found the appropriate balance, and their abundant and unique biodiversity is tipping dangerously towards wholesale liquidation. The class was inspired by Senator Donastorg's efforts to preserve and sustainably use the Virgin Islands' biodiversity, and hope his future in the Virgin Islands is bright.

Islands in the Legal Stream (Day 4)

The class began by exploring the implications for biodiversity law and policy of uncertainty, risk, and surprise (à la Clark and Kates), the ecological concepts of resilience, resistance, and stability, and C.S. Hollings’ theory of discontinuities in natural systems. A propos of Sunday, today’s lecture included a discussion of ethics and biodiversity law; in particular, we discussed the legal implications of Muir and preservationism, Pinchot and conservationism, and Leopold’s land ethic. Lecture – today conducted under an awning by the MMSC’s main dock – was interrupted at one point by the surfacing nearby of a Federally-listed Green Sea Turtle, perhaps interested in learning more about the Endangered Species Act.

After lunch, the class visited the new Nature Conservancy property at Magen’s Bay, an extremely long bay on the North shore of Saint Thomas known for its white sand beach. We discussed the role of private legal efforts to conserve biodiversity, including conservation easements, tax incentives for conservation, and debt-for-nature swaps, as we hiked from trailhead halfway up the mountain down to the endangered mangrove wetland just behind the beach. As one of my students put it

As we marched from the top of the mountain down to Magen’s Bay the biodiversity changed as we marched towards the sea. The vegetation seemed to be in about 3-4 distinct zones form top of the mountain to the bottom, where the ocean is. Also of note was the difference and volume of organisms. Around the middle of the protected area I saw the greatest number and diversity of species, including many lizards, solder crabs, and even a tarantula. As we got closer to the bottom we could hear noise from the beach. Also, as we got closer to the noise there appeared to be fewer organisms. I am unsure whether this was mere a coincidence, an effect of the change in vegetative zone, or an effect of the beach noise. It does pose an interesting question for conservationists wanting to preserve sects of land. If an organism you’re seeking to preserve is affected by noise where and how large of an area would you need to reserve to effectively provide the habitat? Balancing the need for biodiversity and the human interest and effect on the land will be a difficult task. Before this balancing can be reached, however, there may be the need for more research and discovery in the field of biodiversity.

We ended the day by visiting Coral World, a local for-profit aquarium that acts as a nursery for mangrove trees to be reintroduced around the coasts of the Virgin Islands and a hospital and rehabilitation for endangered species, such as Hawksbill and Green Sea Turtles.

Tomorrow morning after lecture, we plan to meet with Senator Adlah "Foncie" Donastorg, a former member of the Virgin Islands Legislature who perennially received more electoral votes than any other candidate for Senator, and candidate for Governor in last autumn's election, who has been the most ardent supporter of biodiversity conservation the USVI have seen. He will share his experiences in drafting and successfully passing a number of biodiversity statutes, including his baby: the new Territorial Park law.

Islands In The Legal Stream (Day 3)

Today the morning lecture covered the different branches of the tree of life, ecosystem dynamics, metapopulations, extinction, and the implications of each of these biological topics for existing biodiversity law and the need for new law to fill current gaps in legal coverage. One topic we covered in detail was the role that biological science (1) actually plays in both lawmaking and legal enforcement and (2) should play in order to ensure optimal management and conservation of biodiversity.

After lecture, we visited a local attorney who has been very active - and, remarkably, successful - in using the Endangered Species Act to protect local endangered species. One of my students summarized what he learned from this attorney as follows:

I think that [the attorney]let us know that there is a lot more to practicing law in the Virgin Islands than knowing your civil procedure. By that I mean there are a lot of inner workings and behind the scenes activities that go on in the Virgin Islands - more so than in other places. [The attorney] provided us with compelling examples of how good biodiversity law can be inspired by vastly different motives; these run the gamut from those of traditional environmental groups, such as the Sierra Club or Defenders of Wildlife, to property owners merely concerned about protecting their own properties from encroaching development. It has now become clearer to me that biodiversity law depends as much on skilled legal advocacy as it does on good science.

After lunch, the class headed down to Botany Bay again. On this visit we all snorkled out to the coral reef at an as yet undisturbed spot named Mermaid's Chair to survey the diversity of fish, coral, and other invertebrates, and to assess the health of the coral reef community. We observed approximately thirty distinct species of reef fish, ranging in length from less than one centimetre to more than a metre; these included Angel Fish, Butterflyfish, Grunts, Ocean Surgeonfish, Damselfish, Blue Chromis, Parrotfish, Needlefish, Wrasses, Trumpetfish, Goatfish, Yellow Jack, Trunkfish, and Barracuda. We also noticed about fifteen species of coral, including, most spectacularly, Federally-listed Elkhorn Coral, large braincorals, and numerous Pan's Pipe corals. This reef survey prompted another one of my students to observe that

Coming from the Midwest, it is striking to see how delicate the coral reef and coastal ecosystems of the tropics are. Observing how the minor natural changes effect the coral shows how human interference and actions can have a major impact. The lesson for biodiversity law is the necessity to create enforcement mechanisms that can actually be implemented to protect these fragile ecosystems successfully. The Virgin Islands Legislature needs to work with developers, citizens, environmental groups, and biologists to implement realistic and effective enforcement practices for conservation to work.

Tomorrow, we will be back down at Botany Bay to examine the effects development there is having on both the forested slopes and the offshore coral reefs.

Islands In The Legal Stream (Day 2)

Today began with a lecture discussing legal efforts to conserve biodiversity at the level of the species, particularly the (in)effectiveness of focusing protection efforts at individual components of ecosystems instead of ecosystems as wholes. We also explored the current state of "species theory", including growing evidence that no single coherent species concept can describe taxa from all parts of the tree of life, and the growing recognition among biologists that "species" may not exist. Finally, we discussed what implications the existential crisis surrounding "species" may have on such laws as the U.S. Endangered Species Act ("ESA") and the Convention on International Trade in Endangered Species of Flora and Fauna ("CITES"). For example, if species turn out to lack objective scientific reality, then to what do the ESA and CITES pertain? The demise of species as units of biodiversity lends additional support to refocusing conservation from taxonomy to geography.

After lecture, Donna Nemeth, a professor of fish biology at the University of the Virgin Islands, presented some of her research on freshwater animals she has discovered in the "guts" (seasonally wet waterways) that stripe the islands. Then, Professor Nemeth and a visiting shark researcher (and retired pathologist), Ben Victor, led the class up a gut to sample the freshwater fish (two native and two introduced taxa) and shrimp (five native taxa) found in permanent pools at a variety of elevations and subject to various levels of pollution and human disturbance. The class concluded its visit to the gut by discussing how best to legally protect the islands' guts from human encroachment, development, and pollution, as well as how to legally regulate runoff from guts so as to minimize damage to coral reefs from gut effluent.

In the afternoon, the class visited Renata Platenberg, an officer with the Virgin Islands Department of Planning and Natural Resources ("DPNR"), whose responsibilities include management and protection of the islands' animals. She shared her insights into the process of biodiversity policy- and lawmaking on both the U.S. and British Virgin Islands. Her recent interests have included protection of local endangered species, such as the highly charismatic Virgin Islands Tree Boa and the Leatherback, Hawksbill, and Green Seaturtles. She concluded by pointing my students to some very useful sources of information regarding Virgin Islands biodiversity law; hard to believe as it may be, one of the greatest challenges of biodiversity law on these islands is locating current and accurate Territorial statutes and regulations, and then determining their significance. One of the eventual fruits of the Biodiversity Law class will be to compile, interpret, and summarize all of the biodiversity law that applies to the Virgin Islands.

One unfortunate lesson my class learned today was the importance of biodiversity law to most elected politicians: our appointment at the Legislature was canceled without explanation. So, although they differ markedly from each other in climate, culture, history, and many other respects, the U.S. Virgin Islands and the mainland United States do converge in the political importance they seem to place upon biodiversity issues.

Islands In The Legal Stream (Day 1)

I flew into the U.S. Virgin Islands late Tuesday night. As I stepped down onto the airport tarmac, the night chorus of the coqui treefrogs (invasive, thriving, and, at times, deafening) soon replaced the dull roar of the jet engines. I spent the night up on Crown Mountain, the second highest point on Saint Thomas, and awoke the next morning to sight of Atlantic breakers thrashing the North shore of the island a few kilometers below.

I spent the morning arranging lecture space at the University of the Virgin Islands' excellent Maclean Marine Science Center ("MMSC"), home to a small band of talented and dedicated marine biologists and conservationists. Then, our driver and I popped over to the airport to pick up KU Law School's inaugural Biodiversity Law class. All of my students were tired from a long day of flying, but excited to dive into biodiversity law in the perfect natural laboratory the Virgin Islands provide.

We shopped, we cooked dinner, we watched KU's basketball team thrash Oklahoma State, and then we all slept for far too short a time. Early this morning we all headed down the mountain to the MMSC. Today's lecture introduced the concept of biodiversity, the various mathematical methods used to measure it, the current scientific understanding of its magnitude, geographical distribution, and value as measured both on and off the market. We concluded with a discussion of humanity's dismal history of triggering or directly causing extinction events around the globe, including the curren, anthropogenic, mass extinction.

After lecture, we drove to Red Hook, at far West end of Saint Thomas, and took a fast ferry to Cruz Bay, at the Western end of Saint John. We climbed the 45 degree grade road into the Virgin Islands National Park, and then descended the Reef Bay Trail into the Virgin Islands' finest example of a seasonal rainforest. Halfway down the steep trail, we paused to do a empirical survey of tree diversity. Using a protocol developed by Stuart Pimm, an avowed non-botanist, my students ventured into the rainforest to gather intact, fallen leaves at timed intervals. Then, we spread a large white bedsheet over the side of the trail, and my students organized their leaf samples into "taxa" based on gross leaf morphology - a variation of the tried-and-true Sesame Street protocol of "One of these things is not like the other". Our conclusions: estimating rainforest tree diversity based on leaf samples suffers from numerous biases, our estimates were mere glimpses of total diversity, and taxonomy is difficult, time-consuming, and fraught with source of error. We then discussed the implications of taxonomic uncertainty on the crafting, implementation, and enforcement of biodiversity laws.

Next, we visited the Virgin Islands Environmental Research Station, which is located at the Eastern end of Saint John a few hundred meters from the Easternmost point in the United States. Having tramped up a seasonally wet streambed, we discussed what legal strategies one might use effectively to preserve this rare and rapidly-disappearing habitat, including application of the NEPA, the Clean Water Act, the Endangered Species Act, and coastal zone management laws.

We capped off our day by popping back over the Saint Thomas, and then heading to the Westernmost point of the island: Botany Bay. The last large parcel of almost undisturbed land on Saint Thomas, Botany Bay includes almost 200 hectares of gorgeous and highly biodiverse tropical forest, two entire watersheds, and some of the most intact nearshore coral habitats in the Virgin Islands. I have visited Botany Bay since 2001, and have been intimately involved in legal efforts to preserve its biodiversity. What we found this year was stunning: new roads have been cut through the forest, from mountain summit to beach, and sizeable swathes of forest have been clearcut. The owners of the Botany Bay, having finally been issued building permits, have begun to build the somewhat hopefully-named "The Preserve at Botany Bay", which will comprise dozens of luxury homes at higher elevations, and a luxury hotel next to the beach. Recently, amidst the Federally-listed coral growing just offshore, researchers from the MMSC measured record levels of soil runoff, almost certainly caused by the construction. My students were dazzled by the beauty of Botany Bay, and disquieted by the implications for its biodiversity of the imminent development. The class will be using Botany Bay as a case study of biodiversity legal issues over the next several days.

Tomorrow we'll be guests of the Legislature of the Virgin Islands, where we will meet with several Senators who have generously agreed to share some time with the class. My students are already brimming with biodiversity law questions to ask these elected lawmakers.

Global Climate Change: An Accumulation of Cumulative Effects

Cumulative Effects
By J.B. Ruhl

It's going to be 75 degrees here this Saturday and Sunday (as it was last Saturday and Sunday). Granted, I live in Florida, but 75 degrees in January? So I couldn't help but think about the big cheese of all cumulative effects...global climate change. [Disclaimer: if you don't believe global climate change is afoot, or if you don't believe anthropogenic causes are at least in part behind it, you might want to surf on, though really you should read on.]

My 6th grader son knows the explanation for global climate change (GCC) is that we're emitting so much greenhouse gases that they are trapping heat in the atmosphere. But it's not that simple. Rather, GCC is a net effect of the effects of countless reactions set in motion by, among other things, increased greenhouse gas emissions. Some of the effects increase local or regional temperature, and some reduce it, in both cases on small incremental scales.

Take, for example, just one of the potential manifestations of GCC--increased fire frequency in the earth's boreal forests. Also known as the taiga, these are the lush coniferous forests situated in the high northern latitudes above the steppes and below the tundra. Research presented recently in Science (Randerson et al., 314:1130-32) examines the net effect of fires based on their many effects, some of which increase temperature (bad) and some of which decrease it (good). Fires release greenhouse gases (bad), but they also release aerosols (good or bad, depending), and deposit carbon the land's snow and ice surfaces, which reduces albedo (bad), yet they also can alter heat radiation effects of the burned ecosystem landscape (mostly good). So what is the net effect? The research suggests that it is to increase overall temperature immediately after a fire but to decrease it over an averaged 80-year period. So, to the extent greenhouse gas emissions trigger reactions that cause more fires in the boreal forests, in the long run the fires lead to a negative feedback effect.

Of course, the answer to GCC is not to ignite the boreal forests! The point is simply that GCC is very complex, and what we see as a net effect is in fact the accumulation of many cumulative effects. Moreover, the fact that greenhous gas emissions may be the significant driver in this system of effects does not mean we can say for sure what will happen were we able to reduce emissions. The system of effects that has been set in motion is neither linear nor reversible--it's not as if as we slowly work our way back to 1990 levels of greenhouse gases, the system retraces its steps as if rewinding a movie.

So what does this mean for policy? Two big picture observations:

1. As important as it is to focus on the big drivers in this system of systems--in particular, greenhouse gas emissions--it is also important for us to study and understand as much as we can about all of the other effects contributing to the net effect. The big drivers don't drive everything, and in any event we will never understand how to steer them. We need to understand that policies directed at a particular component of the system--even at the big drivers--may trigger effects elsewhere in the system that work in the opposite direction.

2. Recognizing that (a) we will never fully understand the whole system, and (b) we will never be able with perfect accuracy to predict the long-term impact of any particular policy measure on the system (much less on human systems such as the economy), we need to begin developing a legal infrastructure around the need to adapt to global climate change. This legal structure will not be about environmental policy per se, but rather about insurance, immigration, agriculture, tort liability, contracts law, social benefits policy, and so on. In short, we need a law of global climate change, not just law to stop global climate change.

Villanova law professor Joeseph Dellapenna sparked an interesting thread of e-mails on the environmental law professors' listserve by raising this subject, and it is clear that talk of adapting is anathema to many who want to hammer away at the big drivers in the system--in particular, to alter behavior leading to, and law governing, greenhouse gas emissions. And there is some reason to want to shy away from talk of adaptation, because people--Americans in particular--may be keen to the idea that if we can adapt, then we don't need to suffer the pain of working on the drivers. Reducing greenhouse gas emissions will be costly, they may say, so let's skip that step and just adapt to what comes from not doing so. People need to understand, however, that when we say "adapt" to GCC, we don't mean turning down the thermostat. We mean moving cities, moving people, changing the way we live--in other words, spending a lot of money and changing a lot of lifestyles. It will be vitally important, therefore, to develop models of the cost of adaptation based on futures with and without policies aimed at the drivers, to illustrate how much work on the drivers can save us in cost of adaptation. But it is equally important to develop models of how we can adapt given the likelihood that policies aimed at drivers will in many cases fail or be too costly to implement, as well as that even if we do tough it up and reduce greenhouse gas emissions by huge margins, we're unlikely to turn the corner on GCC effects for decades.

In other words, as in the jungle, and as in business, part of our global climate change policy must be to appreciate that we must adapt to imminent climate changes or die ignoring them.

The Ever Less Virgin Islands

The United States Virgin Islands ("USVI"), which are comprised of the islands of Saint Thomas, Saint John, Saint Croix, and a variety of smaller cays and islets, harbor a significant proportion of the United States' tropical biodiversity. Situated at the inflection point of the North-South Lesser Antilles and the East-West Greater Antilles, the USVI are a meeting place for biodiversity evolutionarily derived from both North and South America. The result is a singular and fascinating mixture.

Although the USVI host thousands of native plant and insect species, along with a rich array of native birds, bats, lizards, and snakes, much of their biological diversity is below the waves. Coral reefs provide habitat for myriad fish, turtles, manatees, invertebrates, and microbes. This is one of the United States' biological paradises.

There is, however, trouble in paradise. Though Saint John had the fortunate distinction of having once been largely owned by Lawrance Rockefeller, who donated much of the island to the United States government to create the relatively well protected Virgin Islands National Park, Saint Thomas suffers from high density human population and overdevelopment. Saint Croix is much larger than the other two Saints, so, although following a development trajectory much like that of Saint Thomas, its human population density remains modest by comparison.

The main challenges to the USVI's biodiversity can be summarized by highlighting each of the five components of E.O. Wilson's "HIPPO" mnemonic. Habitat is being liquidated and modified, both on land and underwater. Invasive species of plants, animals, and fungi arrive and thrive at worrying rates. Dense human population crowds out other species. Pollution harms the air, sullies the disappearing aquifers, and runs off into the ocean, harming the coral reefs. And, overexploitation of marine resources have severely depleted local fish populations, both in terms of numbers and size of individuals. Added to these are the potentially vast, yet difficult to predict, threats posed by global climate change and ozone depletion.

Over the next ten days, my Biodiversity Law class will be in the USVI to explore issues of biodiversity science, policy, and law. I will post regular reports to BioLaw to share what we discover.

One Million More Reasons Not To Fly?

Cumulative Effects
By J.B. Ruhl

Gazing out the window of an exit row seat on a plane trip back from a conference last week, I was reminded of a news item I saw in a recent issue of Scientific American ("Hot Trails," Sept. 2006, page 28). It turns out that in the days following 9/11, when jet traffic was basically zero, average daytime temperatures for the nation rose slightly and nighttime temperatures dropped more substantially. This finding supported a long held hypothesis that jet contrails reduce the temperature range by cooling the temperature during the day and heating it at night. Contrails are condensation trails that act essentially as thin cloud barriers that both reflect sunlight and block the earth's heat from rising. During the day the former effect is dominant, and during the night the latter effect is exclusive (because, obviously, there is no sunlight to reflect).

Armed with this proof, the ingenious legal mind might suggest ways of shifting flights from night to day as a way of countering global climate warming. We could auction off limited night slots, allow trading of night flight rights, etc. The net effect should be to take advantage of the daytime cooling effect of contrails and reduce their nightime heating effect.

Not so fast. The contrail effect is a classic "cumulative effects" phenomenon--the aggregate effects of many small individual similar events. It is an unfortunate term because it suggests that aggregation effects are linear. But is one contrail's effect of "x" on temperature simply aggregated, so that 100 contrails in a region equal an effect of 1oox? Most likely not. We already know that time matters. Space probably matters too. And the aggregation of effect in any time-space context may exhibit nonlinear properties, such that 100 contrails in a region over a defined time have an effect of 50x or 150x. Perhaps, for example, the number of daytime contrails is just below the threshold at which any more will tip the dominance over to the heat barrier effect. And maybe the number of nighttime contrails is well above the nonlinear threshold at which fewer contrails make a difference. Then our ingenious market-based solution would lead to exactly the wrong result. After all, all we really know is the effects of contrail numbers lumped around two points--zero contrails and status quo. It is amazing we know even that--it was the result of a one-time (we hope) disaster; it is not likely the FAA ever would have allowed anyone to test the hypothesis by banning all flights for a week. We clearly do not know what happens, therefore, between zero and status quo or beyond.

Cumulative effects problems are devilishly hard for law and policy to crack. They have way of growing on you, and once we are aware of them, they are very hard to study. It seems unlikely they behave in neat, linear fashion as the individual events aggregate over time and space. And it seems unlikely that the identified cumulative effects system has effects limited to what is being observed. For example, even if shifting contrails from night to day would help in the temperature range sense, maybe the increased day ground traffic would trigger some other cumulative effect threshold, and maybe the reduced job employment at night would trigger another. Who knows? How do we model it?

With this post, following a vacation of sorts from blogging, I start a new series on cumulative effects. How do they behave in contexts relevant to law and policy? What pressing problems of the day are, at bottom, cumulative effects problems? What devices can law employ to manage them? Comments are welcome along the way.

Of clean water, wildlife, and fragmented institutions

The U.S. Supreme Court has granted certiorari in National Association of Home Builders v. Defenders of Wildlife, 420 F.3d 946 (9th Cir. 2005). As is so often true in environmental law, the narrow issues before the Court seem bloodless, even boring. The dispute is over whether EPA could transfer to the state of Arizona authority to issue water pollution (NPDES) permits without imposing conditions sought by the US Fish and Wildlife Service to ensure protection of federally listed endangered and threatened species. On that point, the Ninth Circuit's decision appears to be in conflict with a Fifth Circuit opinion, American Forest and Paper Ass'n v. EPA, 137 F.3d 291 (5th Cir. 1998). The Supreme Court has added a question that looks like even more of a yawner: if the Ninth Circuit was right to reject EPA's decision on the grounds that it was based on an internally inconsistent interpretation of EPA's obligations under the Endangered Species Act, and if so whether the lower court should simply have remanded to EPA for a better explanation.

The dull veneer of this case, however, is deceiving. This is potentially the most important ESA case the Court has heard since TVA v. Hill, 437 U.S. 153 (1978). It squarely raises the question of how far Section 7 consultation duties extend. EPA argued unsuccessfully below that the Clean Water Act required it to delegate authority to Arizona once the state met the requirements specified in that Act for permitting programs, which don't explicitly include protection of threatened and endangered species. According to EPA, although the Endangered Species Act, passed after the CWA delegation provision, required it to consult with FWS on the effects of delegation, it didn't provide the authority to condition delegation on features not specified in the CWA.

This case potentially has ramifications for any number of other situations in which the executive branch under the current administration has unsuccessfully argued that it lacks the authority to protect listed species. That argument has been made, for example, about the operation of water projects and federal dams.

The facts of this case also powerfully illustrate the difficulties inherent in our current, highly fragmented, environmental regulatory system. It wouldn't matter whether the FWS got to review the delegation of permitting authority if Arizona's subsequent permitting decisions were effectively constrained themselves by the ESA. In theory, they are. Both state permitting decisions and the permitted discharges themselves will remain subject to the prohibitions on take of ESA section 9. But section 9 does not require advance study of the impacts of a proposed action on a listed species; risk-taking dischargers are free to go ahead with their projects and put the burden of proving take on opponents.

That, in turn, may well be difficult under the facts of this case. The concern is not that permitted water pollution will itself harm listed species in the state's streams, it is that development, which requires a permit for discharges during the construction process, will destroy the habitat of terrestrial species.

Because this connection is somewhat tenuous, the question of whether section 7 is subject to the same proximate cause analysis the Court imposed on section 9 claims in Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687 (1994), becomes important. If section 7 requires consideration of these sorts of indirect results of federal actions, it may well not matter whether the NPDES delegation decision itself is subject to section 7. The US provides considerable funding for state clean water programs. Those funding decisions are more explicitly discretionary than the delegation decision, and therefore more clearly subject to section 7. Perhaps the US cannot help fund an Arizona program that doesn't account for the indirect effects of permitting decisions on endangered species, even if it can allow Arizona to implement such a program on its own.

Forever Young

In a stunning revelation, a family has made public their choice to use hormone and surgical treatment at a Seattle hospital to prevent the further growth and development of their severely disabled daughter, Ashley. Even more remarkably, far from hide their decision to embark on what they call the "Ashley treatment", the family has posted details on their website of their daughter's life so far, the thought process that led them to this radical medical treatment, and their hopes for Ashley's future. Here is how the family has justified and summarized the "Ashley treatment":

It was obvious to us that we could significantly elevate Ashley’s adult quality of life by pursuing the following three goals:

1- Limiting final height using high-dose estrogen therapy.

2- Avoiding menstruation and cramps by removing the uterus (hysterectomy).

3- Limiting growth of the breasts by removing the early breast buds.

The family suggests on its website that there are other families who consider such a treatment potentially desirable for their own severely disabled children. This story is sure to continuing unfolding. Watch this space.

Scientific Fishing

For the first time in a decade, the U.S. Congress has passed a bill substantively amending Federal fisheries legislation. The Magnuson-Stevens Fishery Conservation and Management Reauthorization Act of 2006 (H.R. 5946) will make several important changes to U.S. fishing law. In addition to making it mandatory for Regional Fishery Management Councils ("Councils") to end identified instances of overfishing within two years and to set specific catch limits, the new bill raises the profile and power of fisheries scientists and their considered advice.

Section 103 of the bill tightens the credentials one must possess to qualify as a scientist:

`(C) Members appointed by the Councils to the scientific and statistical committees shall be Federal employees, State employees, academicians, or independent experts and shall have strong scientific or technical credentials and experience.

Under the same section, Councils must

develop annual catch limits for each of its managed fisheries that may not exceed the fishing level recommendations of its scientific and statistical committee or the peer review process...

And, according to section 105, complete closures of marine areas to fishing must be based, among other criteria, on "on the best scientific information available".

Though the amendments could certainly have gone farther in ensuring that fishery management decisions are based on solid biological science (for example, by basing management decisions more at the biological community or ecosystem level, rather than the level of individual biological populations), Congress' actual amendments are good news, not only for marine biologists and conservationists, but for fish populations as well.

How public should scientific data be?

Phillip Cassey and Tim M. Blackburn, Reproducibility and Repeatability in Ecology, 56 BioScience 958 [subscription required] argue against the trend toward requiring deposit of raw data in a publicly accessible database as a condition of publication in scientific journals. Their position is that papers should include sufficient explanations to allow others to evaluate and reproduce the work. They object to demands for raw data because they regard that data as the "intellectual property" of the researchers who generate it. Although they acknowledge the potential usefulness of data to other researchers, they believe that "is not a valid scientific reason to demand the publication of raw data," at least not if publication demands are unevenly applied. Their primary concern is that "being required to give away . . . hard-won data for no return . . . has the potential to significantly hinder scientists’ careers."

Cassey and Blackburn are, of course, not the first to raise this concern. Together with worry about the costs of responding to individual requests, fear of loss of intellectual entitlements underlies the scientific community’s resistance to the Shelby amendment, a 1998 appropriations rider which made data generated with federal grant funding subject to FOIA demands.

Unfortunately, data hoarding has real costs, not only for the scientific enterprise but for information-intensive policy choices. Putting aside its value for detecting fraud, publication of raw data facilitates meta-analyses, syntheses of datasets, and the application of new analytical methods. At the outer frontiers of scientific understanding, where so many environmental and natural resource management decisions must be made, this sort of additional data crunching has value to society, not just to competing scientists. It is not a sufficient answer to say that nature remains available to all, so that other researchers are free to gather their own data. Ecological data may not in fact be uniformly available, especially on private property. More importantly, gathering ecological data is time- and resource-intensive. Unnecessary repetition drains already-inadequate scientific funding to little purpose. Nor is it sufficient to say, as Cassey and Blackburn implicitly do, that the original researchers can be relied upon to seek collaborators who will help them extend their findings. The transaction costs of collaboration can be very high, particularly where it extends across established disciplinary lines. Furthermore, it seems likely that researchers who are already inclined to hoard their data will fear that prospective collaborators are out to steal their thunder. Disputes about primacy of authorship or other divisions of credit may substantially increase barriers to collaboration.

One solution is to use sticks, such as the Shelby amendment or disclosure requirements conditions of publication. In this context, however, sticks are not likely to work as well as carrots. Data made public will be only as useful as they are well maintained, documented, and organized. The cooperation of the depositor is therefore critical to the value of the deposit.

Disclosure incentives need to counteract the incentives for hoarding. Those incentives are clear: researchers want to milk every possible publication from their data because that is what they believe will advance their professional standing. I do not mean that to sound flip; the pressure to publish is real, as all academics are aware. The incentives of the academic research process need to be adjusted to better mesh with the information needs of modern society.

Perhaps what is needed is simply a different measure of the importance of research. Traditional measures, numbers of papers in prestigious journals and numbers of citations, don’t adequately account for the value of datasets. Concerns about responsibility for authorship preclude putting the names of those responsible for assembling a dataset on every paper to which the data contribute. But it should be possible to require acknowledgment of data use, and to electronically track those acknowledgments, much as citations are currently monitored. Data use ought to be a strong indicator of the impact of research.

That might not be enough to counter the tendency of untenured scientists to hold data close to their vests, because the publication of spin-off papers from dataset deposits is likely to show an even longer time lag than citations. Therefore, it may also be necessary to develop a norm of peer evaluation of the value of disclosed datasets as part of the tenure process, and perhaps also as a feature of grant application review.

Because I am not a practicing academic scientist, I recognize that these suggestions may be naive. The details are less important at this point than triggering a robust discussion about the costs and benefits of data disclosure, for individual researchers, the scientific community, and society. Without such a frank discussion, we are unlikely to stumble on better ways to align the incentives of researchers with the needs of the larger communities.