Climate change confusion and the supreme court: The misguided regulation of greenhouse gas emissions under the clean air act

Notre Dame Law Review

Volumn 84, Issue 1, 2008, Pages 1-74

  Johnston, Jason Scott ^a  

^a UNIVERSITY OF PENNSYLVANIA   (United States)

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EID: 58849092878     PISSN: 07453515     EISSN: None     Source Type: Journal    
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References (387)

1. 127 S. Ct. 1438 (2007).
2. 42 U.S.C. § 7521 (2000).
3. See sources cited infra note 236.
4. EPA, 127 S. Ct. at 1449
5. (quoting Int'l Ctr. for Tech. Assessment, Petition for Rulemaking and Collateral Relief Seeking the Regulation of Greenhouse Gas Emissions from New Motor Vehicles Under §202 of the Clean Air Act at 1 (Oct. 20, 1999), available at www.icta.org/doc/ghgpet2.pdf).
6. Id. at 1449-50.
7. Id. at 1450-51
8. (citing Control of Emissions from New Highway Vehicles and Engines, 68 Fed. Reg. 52,922, 52, 925-29 (Sept. 8, 2003)).
9. In pertinent part, section 202(a) of the CAA states that "[t]he [EPA] Administrator shall by regulation prescribe . . . standards applicable to the emission of any air pollutant from any class or classes of new motor vehicles . . . which in his judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare." Clean Air Act (CAA) §202(a), 42 U.S.C. § 7521(a) (2000).
10. EPA, 127 S. Ct. at 1451
11. (citing Control of Emissions, 68 Fed. Reg. at 52, 929-31).
12. Id. at 1451-52
13. (citing Massachusetts v. EPA, 415 F.3d 50, 58-59 (D.C. Cir. 2005)).
14. Id. at 1458, 1462.
15. Id. at 1462
16. (quoting 42 U.S.C. § 7521 (a)(1)).
17. Id.
18. (quoting 42 U.S.C. § 7521(a)(1)).
19. Id. at 1463.
20. Id.
21. Id.
22. 42 U.S.C. § 7602(g) (2000).
23. See EPA, 127 S. Ct. at 1461.
24. Id. at 1460.
25. Summarized, for example, in Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).
26. EPA, 127 S. Ct. at 1455-56
27. (quoting declaration of Michael C. MacCracken ¶ 5).
28. Id. (citing declaration of Michael C. MacCracken ¶ 5).
29. Id. at 1456
30. (quoting declaration of Karst R. Hoogeboom ¶ 6).
31. Id. at 1457-58.
32. Id. at 1458.
33. Id. at 1454-55.
34. The source of the "procedural right" mentioned by the Court is 42 U.S.C. § 7607(b)(1) (2000). While it is outside my primary purpose in this Article, it is worth noting that § 7607(b)(1) had not previously been understood as conferring any "procedural right" beyond that already conferred by the Administrative Procedure Act; instead, it simply provides that judicial review of emission standards under the CAA can be had only in the D.C. Circuit.
35. 206 U.S. 230 (1907).
36. Id. at 236.
37. See, e.g., City of Milwaukee v. Illinois, 451 U.S. 304, 317-19 (1981) (holding that in enacting the 1972 amendments to the Federal Water Pollution Control Act, Congress "strongly suggests that there is no room for courts to attempt to improve on that program with federal common law").
38. EPA, 127 S. Ct. at 1454
39. (quoting Tenn. Copper Co., 206 U.S. at 237).
40. For an overview of this approach to statutory interpretation, see William N. Eskridge Jr. & Philip P. Frickey, Statutory Interpretation as Practical Reasoning, 42 STAN. L. REV. 321 (1990)
41. and Philip P. Frickey, Structuring Purposive Statutory Interpretation: An American Perspective, 80 AUSTRALIAN L.J. 849 (2006).
42. See Frickey, supra note 29, at 851-53
43. RICHARD A. POSNER, THE PROBLEMATICS OF MORAL AND LEGAL THEORY 208-09 (1999).
44. As the author of the petitioner's Supreme Court brief has explained, "In arguing the questions regarding EPA's authority and discretion under the [CAA], we made a tactical decision to rely almost exclusively on the text of the statute. Our thinking was as follows: First, most simply, the text of the statute clearly pointed in our direction." Lisa Heinzerling, Climate Change in the Supreme Court, 38 ENVTL. L. 3, 11 (2008).
45. EPA, 127 S. Ct. at 1460
46. (quoting CAA § 302(g), 42 U.S.C. § 7602(g) (2000) (emphasis added)).
47. See ALLEN V. KNEESE & CHARLES L. SCHULTZE, POLLUTION, PRICES, AND PUBLIC POLICY 69-83 (1975).
48. See CAA, § 101(a)(2), 42 U.S.C. § 7401(a)(2) (2000) ("[T]he growth in the amount and complexity of air pollution brought about by urbanization, industrial development, and the increasing use of motor vehicles, has resulted in mounting dangers to the public health and welfare, including injury to agricultural crops and livestock, damage to and the deterioration of property, and hazards to air and ground transportation . . . .");
49. id. § 101 (b)(1), 42 U.S.C. § 7401(b)(1) (declaring that the purpose of the Clean Air Act is to "protect and enhance the quality of the Nation's air resources so as to promote the public health and welfare and the productive capacity of its population"). The cost of complying with the Clean Air Act was also substantial, with the annual compliance cost exceeding $20 billion (1990 dollars) from 1974 until 1987.
50. See U.S. ENVTL. PROT. AGENCY, THE BENEFITS AND COSTS OF THE CLEAN AIR ACT, 1970 TO 1990, at 8 (1997), available at http://www.epa.gov/oar/sect812/1970-1990/chptr1-7.pdf.
51. EPA, 127 S. Ct. at 1460
52. (quoting CAA § 302(g), 42 U.S.C. § 7602(g) (2000) (emphasis added)).
53. Id. The CAA also defines the national "welfare" that is to be protected by the second National Ambient Air Quality Standards discussed below as including "effects on soils, water, crops, vegetation, . . . weather, visibility, and climate." 42 U.S.C. § 7602(h) (2000).
54. As explained on EPA's website, The Clean Air Act requires EPA to set National Ambient Air Quality Standards for six common air pollutants. These commonly found air pollutants (also known as "criteria pollutants") are found all over the United States. They are particle pollution (often referred to as particulate matter), ground-level ozone, carbon monoxide, sulfur oxides, nitrogen oxides, and lead. These pollutants can harm your health and the environment, and cause property damage. Of the six pollutants, particle pollution and ground-level ozone are the most widespread health threats. EPA calls these pollutants "criteria" air pollutants because it regulates them by developing human health-based and/or environmentally-based criteria (science-based guidelines) for setting permissible levels. The set of limits based on human health is called primary standards. Another set of limits intended to prevent environmental and property damage is called secondary standards. U.S. Envti. Prot. Agency, Six Common Air Pollutants (Apr. 8, 2008), http://www.epa.gov/air/urbanair.
55. x SIP Call, 60 U. PRRR. L. REV. 923, 928 (1999). EPA, Six Common Air Pollutants (Apr. 8, 2008), http://www.epa.gov/air/urbanair.
56. While EPA now sets primary NAAQS to reduce harm to human health, it is important to remember that when smog-the accumulation of too much ground level ozone and unburned hydrocarbons from automobile exhaust-first became a problem, it was viewed as a nuisance. For example, as late as 1971, a political scientist writing about air pollution control felt perfectly safe in saying: Photochemical smog remains more an irritating nuisance than a serious threat to the survival of urbanites. The nuisance has been irritating enough to provoke widespread complaints, however, especially in southern California. California officials have played an important part in inducing the auto-mobile industry to do something about the smog problem. MATTHEW A. CRENSON, THE UN-POLITICS OF AIR POLLUTION 9 (1971) (citation omitted).
57. Regulated, respectively, under 42 U.S.C. § 7521(a)(1), and regulations found at Control of Air Pollution from New Motor Vehicles, 65 Fed. Reg. 6698 (Feb. 10, 2000), and 42 U.S.C. §§ 7410-7431, with sixty-nine industry categories as set out in 40 C.F.R. § 60, Subpart C (2007).
58. See U.S. ENVTL. PROT. AGENCY, 2008 REPORT ON THE ENVIRONMENT ch. 2, 6-62 (2008), available at http://cfpub.epa.gov/ncea/cfm/recordisplay.cfm?deid=190806.
59. See U.S. ENVTL. PROT. AGENCY, THE BENEFITS AND COSTS OF THE CLEAN AIR ACT 1990 TO 2010, at 69-75 (1999), available at http://www.epa.gov/air/sect812/1990-2010/fullrept.pdf.
60. See U.S. Envtl. Prot. Agency, National Ambient Air Quality Standards, General Conformity, Frequent Questions, http://www.epa.gov/air/ genconform/faq.htm (last visited Nov. 5, 2008) ("The Clean Air Act identifies six common air pollutants that are found all over the United States. These pollutants can injure health, harm the environment and cause property damage. EPA calls these pollutants criteria air pollutants because the agency has developed science-based guidelines as the basis for setting permissible levels.").
61. 10).
62. See U.S. Environmental Protection Agency, supra note 44 ("Through [State Implementation Plans], States propose their strategy for reducing criteria air pollutant emissions.").
63. See Whitman v. Am. Trucking Ass'ns, Inc., 531 U.S. 457, 468-71 (2001).
64. Section 108(b)(1) of the CAA directs the Administrator to issue to the states "information on air pollution control techniques, which information shall include data relating to the cost of installation and operation." 42 U.S.C. § 7408(b)(1) (2000). Also, in section 109(d) (2) (C) (iv) the CAA requires that the Clean Air Scientific Advisory Commission advise the Administrator of any "adverse public health, welfare, social, economic, or energy effects which may result from various strategies for attainment and maintenance" of the NAAQS.
65. Id. § 7409(d)(2)(C)(iv).
66. As the Supreme Court explained: These provisions enable the Administrator to assist the States in carrying out their statutory role as primary implementers of the NAAQS. It is to the States that the CAA assigns initial and primary responsibility for deciding what emissions reductions will be required from which sources. It would be impossible to perform that task intelligentiy without considering which abatement technologies are most efficient, and most economically feasible-which is why we have said that "the most important forum for consideration of claims of economic and technological infeasibility is before the state agency formulating the implementation plan." Thus, federal clean air legislation has, from the very beginning, directed federal agencies to develop and transmit implementation data, including cost data, to the States. Whitman, 531 U.S. at 470 (citations omitted)
67. (quoting Union Elec. Co. v. EPA, 427 U.S. 246, 266 (1976)).
68. Mandatory federal level technology-based standards now apply both to new stationary sources, under section 111, and to hazardous air pollutants under section 112. See 42 U.S.C. §§ 7411-7412 (2000).
69. See, e.g., Sierra Club v. Ruckelhaus, 344 F. Supp. 253, 255-56 (D.D.C. 1972),
70. aff'd per curiam without opinion, 4 Env't Rep. Cas. (BNA) 1815 (D.C. Cir. 1972),
71. aff'd by an equally divided Court sub nom. Fri v. Sierra, 412 U.S. 541 (1973).
72. When legislation weis introduced to amend the law in 1976, it clearly reflected the stark differences in the regional costs and benefits of air pollution control: the nation was divided into areas based upon the existing level of ambient pollution, with different degrees of increases in pollution allowed, depending upon the ambient level (with increases limited even in areas that already were in attainment, the so-called Prevention of Significant Deterioration (PSD) provisions). See CHRISTOPHER J. BAILEY, CONGRESS AND AIR POLLUTION 190-91 (1998).
73. Senators from western and southern states immediately challenged the PSD provisions. A senator from Utah said: "The issue is not a clean air or dirty air issue: it is more a growth or no-growdi issue." Id. at 191.
74. A representative from Florida argued that the PSD provisions could have a "profound effect on our economy, severely limit potential jobs, create incentives for our basic industries to locate abroad and further retard our efforts toward energy self-sufficiency," and a House amendment to delete the PSD provisions from the bill was only narrowly defeated. Id. at 192.
75. The Clean Air Act Amendments of 1977, Pub. L. No. 95-95, 91 Stat. 685 (codified as amended at 42 U.S.C. §§ 7401-7671q (2000)), were motivated in large part by the widespread failure of states to meet the attainment deadlines of the 1970 CAA. The 1977 Amendments created the concept of a "nonattainment area" - an area where air quality falls short of the NAAQS. Clean Air Act Amendments of 1977 § 171 (2), 42 U.S.C. § 7501 (2). Congress extended the deadline for attainment of the primary NAAQS in a nonattainment area to December 31, 1982. Id. § 172(a)(1), 42 U.S.C. § 7502(a)(1).
76. Congress additionally allowed states to get further extensions for "photochemical oxidants" (ozone) and carbon monoxide if they could show that attainment was not possible by 1982 but would be achieved as "expeditiously as practicable" but not later than December 31, 1987. Id. § 172(a) (2), 42 U.S.C. § 7502(a) (2).
77. Moreover, since its passage in 1970, the CAA has left the regulation of old stationary sources that were built prior to 1970 entirely to the states (at least for conventional, non-hazardous pollutants). See CRAIG N.JOHNSTON ET AL., LEGAL PROTEO TION OF THE ENVIRONMENT 268 (2d ed. 2007).
78. See JAMES E. KRIER & EDMUND URSIN, POLLUTION AND POLICY 127-69 (1977).
79. See BAILEY, supra note 50, at 86-103.
80. See id. at 103-08.
81. In 1967, for example, a full sixty-five percent of U.S. automobile industry employment was located in the three Midwest States of Ohio, Michigan, and Indiana. See Fed. Reserve Bank of Chicago, Automotive Wages in Flux (July 18, 2007), http://midwest.chicagofedblogs.org/archives/2007/07/wages-in- automo.html.
82. Since 1990, auto industry jobs have steadily shifted from this area of the country, which has lost roughly 200,000 auto industry jobs during this period, to the South, which has gained about 180,000 jobs during the same period. Sean P. McAlinden, Vice President of Research Center for Automotive Research, There's No Place Like Home (Apr. 19, 2006), http://chicagofed.org/ news-and-conferences/conferences-and-events/files/2006-auto-mcalinden.pdf.
83. Indeed, the relatively strong growth rate of U.S. automotive manufacturing during the 1990s was primarily due to increased output from new plants in the southern United States owned by foreign-based manufacturers. See STEPHEN COONEY & BRENT D. YACOBUCCI, CONG. RESEARCH SERV., U.S. AUTO-MOTIVE INDUSTRY 36-49 (2005).
84. This was despite the efforts of Representative John Dingell from the auto manufacturing State of Michigan. California-which had set the first auto emission standards-was allowed under the 1967 law to set stricter auto emission standards than those set by the federal government. See BAILEY, supra note 50, at 134-35.
85. Through Senator Edmund Muskie's efforts, what was to become the CAA of 1970 set a 1975 deadline for a ninety percent decrease in automobile emissions; the political power of the automobile industry was nonetheless such that its congressional allies got the only serious concession made by Muskie in the 1970 law: provisions allowing the automobile manufacturers to request extensions to the deadlines for carbon monoxide and hydrocarbons. Id. at 151-55.
86. See generally Arnold W. Reitze, Jr., Mobile Source Air Pollution Control, 6 ENVTL. LAW. 309, 321-25, 338-43 (2000) (explaining vehicle emission control systems for exhaust emissions and federal exhaust emissions standards).
87. Michael Greenstone, The Impacts of Environmental Regulations on Industrial Activity, 110 J. POL. ECON. 1175, 1178 (2002) (finding that across a very broad sample of pollution-intensive industries, in the first fifteen years in which the CAA was in force, 1972 to 1987, relative to attainment counties, nonattainment counties lost approximately 590,000 jobs, $37 billion in capital stock, and $75 billion (in 1987 dollars) of output).
88. Tide VI of the CAA, "Stratospheric Ozone Protection," is found at 42 U.S.C. §§ 7671-7671q (2000). As lucidly explained by RICHARD ELLIOT BENEDICK, OZONE DIPLOMACY 111-13 (1991), U.S. companies such as DuPont did not actively oppose the phase-out of the most serious ozone depleting refrigerants, at least relative to their European competitors, in large part because they achieved leadership in producing substitutes.
89. Indeed, it was only after Congress added a separate and quite different program - the Title IV acid rain trading program - that the CAA successfully addressed even a regional air pollution problem. See BAILEY, supra note 50, at 230-38.
90. The acid rain problem was not even discussed by Congress until after the 1977 amendments. See id. at 210.
91. In Congress, acid rain control starkly pitted the interests of some regions of the country against others, with politicians from northern and northeastern states recounting the damage acid rain had done to their states' lakes rivers and forests, while those from midwestern and Appalachian coal-producing states argued that there was not sufficient evidence that coal was the problem. See id. at 214-27. Support for tougher sulfur dioxide emission limits came from representatives and senators from states in the Northeast; opposition came from congressional members from states in the Midwest and Appalachia that produced coal with a high sulfur content.
92. See id.
93. Throughout the 1980s, Congress remained deadlocked on the issue, and resolution did not come until strong presidential leadership helped usher in the cost-effective compromise represented by the acid rain trading program of Tide IV in the 1990 amendments. Id. at 209-37.
94. See infra Part U.C.
95. See U.S. GLOBAL CHANGE RESEARCH PROGRAM, CLIMATE CHANGE IMPACTS ON THE UNITED STATES 6-11 (2001), available at http://www.usgcrp.gov/usgcrp/Library/nationalassessment/001ntro.pdf (discussing likely negative impacts that global climate change will have on the United States).
96. Temperature increases in this range are predicted for the end of the century (2070-90) for so-called "business as usual" (no carbon tax) scenarios (the IPCC's A1F1 scenario and the A2 scenario) by two of the most widely used Ocean-Atmosphere Global Climate Models (OAGCM), the Hadley Centre's 3rd OAGCM and the National Center for Climate Research's Community Climate System Model 3. See Olivier Deschênes & Michael Greenstone, Climate Change, Mortality, and Adaptation: Evidence from Annual Fluctuations in Weatherin the U.S. 3, 39 (MIT Dep't of Econ., Working Paper No. 07-19, 2007), available at http://ssrn.com/abstract=995830.
97. I am not alone in this empirical observation, but this is to my knowledge the first time that the various pieces of evidence have been summarized for legal policymaking. See Cass R. Sunstein, The Complex Climate Change Incentives of China and the United States 11, 12 (AEI-Brookings Joint Ctr. for Regulatory Studies, Working Paper No. 07-14, 2007), available at http://aei-brookings.org/adrnin/authorpdfs/redirect-safely.php?fname=../ pdffiles/WP07-l4-topostvl.pdf (observing that even with a worst-case three degree centigrade increase in global mean temperature, the United States will face relatively litde cost from climate change, while Russia is actually expected to benefit from such a temperature increase).
98. As reported by the National Association of Realtors, median sales prices of existing single family homes as of 2006 for the exemplar cities in the text ranged from $753,000 and $402,000 for San Francisco and Boston, respectively, to $250,000 for Denver, $145,000 for Des Moines, $143,000 for Cincinnati, and $134,000 for Cleveland.
99. See Nat'l Ass'n of Realtors, Metropolitan Median Prices, http://www.realtor.org/Research.nsf/Pages/MetroPrice. For data on interurban wage variation,
100. see Jennifer Roback, Wages, Rents, and the Quality of Life, 90 J. POL. ECON. 1257, 1268-72 (1982).
101. For an introduction to the methods that economists have developed to isolate the effect of particular locational variables on market values, see Raymond B. Palmquist, Property Value Models, in 2 HANDBOOK OF ENVIRONMENTAL ECONOMICS 763, 766-83 (Karl-Göran Mäler & Jeffrey R. Vincent eds., 2005).
102. See Michael J. Potepan, Explaining Intermetropolitan Variation in Housing Prices, Rents and Land Prices, 24 REAL EST. ECON. 219, 219-23 (1996).
103. See, e.g., Glenn C. Blomquist et al., New Estimates of Quality of Life in Urban Areas, 78 AM. ECON. REV. 89, 97-104 (1988);
104. Joseph Gyourko & Joseph Tracy, The Structure of Local Public Finance and the Quality of Life, 99 J. POL. ECON. 774, 782 (1991)
105. (finding that while precipitation, humidity, sunshine, and cooling degree days are statistically insignificant, heating degree days are significant, with an estimated annual full price-lower housing prices but higher earnings-of living in a cold climate of $22.58 for each one percent rise in heating degree days). There are various definitions of climatic "mildness." Compare Blomquist et al., supra, at 104 tbl. 4 (calculating "climate" value by considering implicit prices resulting from "precipitation, humidity, heating degree days, wind speed, sunshine, and coast"),
106. Gyourko & Tracy, supra, at 779 (same),
107. and Roback, supra note 66, at 1270 (same),
108. with Potepan, supra note 68, at 235
109. (adopting the climate mildness index set forth in the Places Rated Almanac), and Christopher A. Manning, Explaining Intercity Home Price Differences, 2 J. REAL EST. FIN. & ECON. 131, 146 (1989) (same).
110. But as discussed below, the finding that climate is significant and that in particular people have high willingness to pay for a mild, warm climate is consistent, regardless of the particular measure of climatic mildness used. See infra notes 70-74
111. and accompanying text. In addition to Roback, supra note 66, at 1270,
112. see Sherwin Rosen, Wage-Based Indexes of Urban Quality of Life, in CURRENT ISSUES IN URBAN ECONOMICS 74, 96 (Peter Mieszkowski & Mahlon Straszheim eds., 1979);
113. Philip E. Graves, Migration and Climate, 20 J. REG'L SCI. 227, 234 (1980);
114. and Stephen M. Renas & Rishi Kumar, Climatic Conditions and Migration, 17 ANNALS REG'L SCI. 69, 76 (1983) (finding that people tend to migrate toward areas with relatively mild climates).
115. Michael Cragg & Matthew Kahn, New Estimates of Climate Demand: Evidence from Location Choice, 42 J. URB. ECON. 261, 277 (1997).
116. Id. at 277-78.
117. Id. at 277.
118. Id. at 278.
119. See Manning, supra note 69, at 146 (utilizing the climate mildness index set forth in the Places Rated Almanac. DAVID SAVAGEAU, PLACES RATED ALMANAC 24, 501-19 (7th ed. 2007)).
120. See SAVAGEAU, supra note 74, at 501-19.
121. See id.
122. See Graves, supra note 69, at 233;
123. Roback, supra note 66, at 1270.
124. Roback, supra note 66, at 1270.
125. Id.
126. See Graves, supra note 69, at 233.
127. Interestingly, like Cragg and Kahn, Graves found that response to climate is highly age dependent, finding, for example, that warmth (defined as average annual cooling degree days) is a big draw for people older than fifty-five but is of (statistical) insignificance to younger people. See Cragg & Khan, supra note 70, 277-78;
128. Graves, supra note 69, at 233-34.
129. See, e.g., Cragg & Kahn, supra note 70, at 278.
130. The most recent census data reveals that nine of the ten U.S. counties with the biggest population gains over the 2000 to 2006 period were in the South or West, with half of those with the biggest gains located in Texas; the biggest absolute population increase was in Maricopa County in Arizona (growing by 700,000 people since 2000, or by more than the population of all but fifteen American cities), and the largest growth rate was in Flagler County in northeastern Florida, with growth of sixty-seven percent since 2000. See Sam Roberts, Census Reports Arizona County Still Has Biggest Growth, N.Y. TIMES, Mar. 22, 2007, at A18.
131. A point made by Matthew E. Kahn, Environmental Valuation Using Cross-City Hedonic Methods 5 (Draft of June 2004), available at http://ssrn.com/abstract=556739.
132. Robert Mendelsohn, A Hedonic Study of the Non-Market Impacts of Global Warming in the U.S., in THE AMENITY VALUE OF THE GLOBAL CLIMATE 93, 104 (2001).
133. Id. at 105.
134. See Dora L. Costa & Matthew E. Kahn, The Rising Price of Nonmarket Goods, 93 AM. ECON. REV. 227, 227 (2003).
135. See Michael I. Cragg & Matthew E. Kahn, Climate Consumption and Climate Pricing from 1940 to 1990, 29 REG'L SCI. & URB. ECON. 519, 521-22 (1999).
136. See id. at 529.
137. Somewhat non-intuitively, they also find that across the entire 1940-1990 period, humidity was positively capitalized into rents. Id.
138. Costa & Kahn, supra note 86, at 231.
139. See Cragg and Kahn, supra note 87, at 536 (stating "there has been a rise in rental capitalization" and "earnings capitalization has declined").
140. The exception seems to be for soudiern earnings, which have not fallen. As noted below, infra note 118, this is likely a function of air conditioning, which has significandy increased labor productivity in the South.
141. It is worth noting that the preference for warm and sunny climates is not limited to U.S. households, but is a robust and highly statistically significant finding of studies of many other countries: indeed, David Maddison concludes that "[m]ost of the countries in Europe and North America" would "benefit substantially from an increase in temperature." David Maddison, The Amenity Value of the Climate: The Household Production Function Approach, in THE AMENITY VALUE OF CLIMATE, supra note 84, at 25, 35.
142. COMM. ON SCI., ENG'G, & PUB. POLICY, POLICY IMPLICATIONS OF GREENHOUSE WARMING 616 (1992).
143. Most recendy, perhaps, Deschênes and Moretti find "evidence of a large and statistically significant permanent effect on mortality of cold waves." Olivier Deschênes & Enrico Moretti, Extreme Weather Events, Mortality and Migration 26 (Nat'l Bureau of Econ. Research, Working Paper No. 13227, 2007), available at http://ssm.com/abstract=998010.
144. This effect appears to be larger than the immediate effect, possibly because it takes time for health conditions associated with extreme cold to manifest themselves and to spread. See COMM. ON SCI., ENG'G, & PUB. POLICY, supra note 91, at 616
145. (citing Wolf H. Wiehe, Climate, Health and Disease, in PROCEEDINGS OF THE WORLD CLIMATE CONFERENCE, 311, 336-48 (World Meteorological Org. ed., 1979));
146. Robert E. Davis et al., Changing Heat-Related Mortality in the United States, 111 ENVTL. HEALTH PERSP. 1712,1713 (2003).
147. For some specific studies, see, for example, G. Laschewski & G. Jendritzky, Effects of the Thermal Environment on Human Health: An Investigation of 30 Years of Daily Mortality Data from SW Germany, 21 CLIMATE RES. 91, 93-100 (2002);
148. Alexander Lerchl, Changes in the Seasonality of Mortality in Germany from 1946 to 1995: The Rok of Temperature, 42 INT'L. J. BIOMETEOROLOGY 84, 84-87 (1998).
149. In developing countries, by contrast, mortality peaks in the summer, primarily from infectious diseases. See COMM. ON SCI., ENG'G, & PUB. POLICY, supra note 91, at 616
150. (citing Wiehe, supra, at 336-48).
151. Although the causes are not yet understood, in "nearly all cities examined globally," winter mortality is "much higher" than summer mortality. Robert E. Davis, Climate Change and Human Health, in SHATTERED CONSENSUS 183, 191 (Patrick J. Michaels ed., 2005).
152. Hence lives lost to global warming-induced summer excess heat events might be outweighed by lives saved due to global warming-induced warmer winters. See Id.
153. Davis et al., supra note 92, at 1714.
154. Id. at 1717.
155. Id. at 1715-16.
156. Perhaps the most striking finding on the impact of air conditioning comes from studies of the impact of air conditioning on mortality during the 1995 Chicago heat wave. These studies found that moving from an unventilated indoor location to an air conditioned location reduced the individual mortality risk by a factor of five or six (that is, 500-600%). See, e.g., Nathan Y. Chan et al., An Empirical Mechanistic Framework for Heat-Related Illness, 16 CLIMATE RES. 133, 138-39 (2001).
157. Cragg & Kahn, supra note 87, at 527-29.
158. For example, over the period from 1968 to 2002, Arizona's population increased by 223%, compared to just 124% for other states in its Census Division. See Deschênes & Greenstone, supra note 64, at 21.
159. The U.S. estimate included an increase in the average number of days with a mean daily temperature above ninety degrees from just 1.7 to 44. See id. at 44 fig.2, 45 fig.3.
160. For the United States, the GCMs predicted an average decline of only three to eight days with a mean temperature below thirty degrees Fahrenheit. See id.
161. Id. at 26.
162. Id. at 27.
163. Id.
164. Deschênes & Greenstone find, importandy, that the vast increase in very hot days predicted by the Hadley Centre GCM and NCAR's GCM would cause an increase in the infant mortality rate, by 5.5% for females and 7.8% for males. Id. at 25.
165. Indeed, Deschênes & Greenstone predicted that as people adapt to climate change by installing more air conditioning, switching fuels and redesigning buildings, there will be a statistically significant increase in energy consumption of between fifteen and thirty-five percent. Id. at 34.
166. It has been estimated that a 2.5° centigrade rise in average U.S. temperatures would cut annual deaths by between 37,000 and 41,000. Thomas Gale Moore, Health and Amenity Effects of Global Warming, 36 ECON. INQUIRY 471, 475, 478 (1998) (researching these numbers based on studies of mortality in Washington, D.C. and in 89 large U.S. counties).
167. See Robert Mendelsohn & Maria Markowski, The Impact of Climate Change on Outdoor Recreation, in THE IMPACT OF CLIMATE CHANGE ON THE UNITED STATES ECONOMY 267, 268 (Robert Mendelsohn & James E. Newmann eds., 2004).
168. Id.
169. Id. at 283.
170. See Colin F. Camerer & Howard Kunreuther, Decision Processes for Low Probability Events: Policy Implications, 8 J. POL'Y ANALYSIS & MGMT. 565 (1989) (arguing that hurricanes and other catastrophic natural disasters are precisely the sort of low probability-vast harm events that people have difficulty in rationally and quantitatively evaluating). This is an alternative explanation of empirical findings, discussed below, that people do not discount by much the price they are willing to pay for housing in locations subject to such risks.
171. See, e.g., Don N. MacDonald et al., Uncertain Hazards, Insurance, and Consumer Choice: Evidence from Housing Markets, 63 LAND ECON. 361, 369-70 (1987).
172. See J. Edward Graham, Jr. & William W. Hall, Jr., Hurricanes, Housing Market Activity, and Coastal Real Estate Values, 69 APPRAISAL J. 379, 385-86 (2001).
173. Graham and Hall use different measures of market reaction (the spread between listing and selling price, average days on the market, and monthly sales), when looking at the same natural hazard realization-the series of hurricanes and storms that struck the Cape Fear Region of North Carolina ending in 1999. J. Edward Graham & William W. Hall, Catastrophic Risk and Behavior of Residential Real Estate Market Participants, 3 NAT. HAZARDS REV. 92, 96 (2002).
174. This study's main result, that the spread between asking and selling prices increased by eight percent after the fourth and final hurricane strike, id., also tends to support the earlier finding that this series of storms eventually caused people to revise upward their perceived probability of such storms.
175. See Okmyung Bin & Jamie Brown Kruse, Real Estate Market Response to Coastal Flood Hazards, 7 NAT. HAZARDS REV. 137, 137 (2006);
176. see also Joseph J. Cordes & Anthony M.J. Yezer, In Harm's Way: Does Federal Spending on Beach Enhancement and Protection Induce Excessive Development in Costal Areas?, 74 LAND ECON. 128, 128 (1998) (finding that in the forty-two Atlantic and Gulf beachfront communities they sampled from the Maine-Texas coasdine, the average annual rate of growth in housing units from 1960 to 1992 was 3.9%, a rate of growth more than 50% higher than the national growth rate of approximately 2.4%).
177. See Bin & Kruse, supra note 113, at 141.
178. For another study finding that floodplain location lowers property values in inland areas (in this study, an area near Gainesville, Florida), see David M. Harrison et al., Environmental Determinants of Housing Prices: The Impact of Flood Zone Status, 21 J. REAL EST. RES.
179. Bin & Kruse, supra note 113, at 141.
180. Indeed, the list of natural hazard adaptation measures available to developed countries such as the United States includes at least the following: [E]arly warning systems and large-scale evacuations; . . . disaster insurance; . . . reforestation, soil conservation, mangrove replantation, and other natural defenses; strengthen [ing of] docks, harbor facilities, and telecommunication and satellite systems; build [ing of] protective barriers for sea surges and water diversion channels; fortif[ication of] drainage, irrigation, water supply, and sanitation infrastructure; organization of] relocation efforts and "managed retreats"; smooth recovery for firms and sectors suffering serious losses; enforce [ment of] efficient zoning regulations; administration of] public health and educational services; and . . . emergency treatment for victims. J. TIMMONS ROBERTS & BRADLEY C. PARKS, A CLIMATE OF INJUSTICE 111 (2007).
181. Matthew E. Kahn, Two Measures of Progress in Adapting to Climate Change, 13 GLOBAL ENVTL. CHANGE 307, 309 (2003).
182. Kahn's list of natural disasters included earthquakes, extremes of heat and cold, floods, and a broad "wind storm" category that included hurricanes, storms, tornadoes, tropical storms, typhoons, and winter storms. Id. at 308.
183. For evidence of adaptation to warmer climates, see Cragg & Kahn, supra note 87, at 534-35 (showing that while people's willingness to pay for a warm climate has increased over the period 1960 to 1990, soudiern earnings have not fallen (as would be expected from rising demand for warm climate, as people accepted lower earnings in order to live in warm climates) ).
184. The coincidence of both rising earnings and employment in the South is generally ascribed to the adoption of the air conditioner, a form of adaptation to hot and humid summers that had a remarkably large impact in increasing labor productivity. Walter Y. Oi, The Welfare Implications of Invention, in THE ECONOMICS OF NEW GOODS 109, 127-28 (Timothy F. Bresnahan & Robert J. Gordon eds., 1997) (recounting how air conditioning rates in the South rose from fifty-eight percent to ninety-one percent over the 1970 to 1990 period versus only from forty-four percent to seventy percent nationally).
185. Especially with federally subsidized coastal flood insurance programs, for the individual coastal property owner, the amount risked per dollar invested has almost surely fallen over the time period 1960 to 1990. How much of this decrease in individual loss exposure is due to subsidized insurance, versus adaptive construction standards, is difficult to determine. Note that there is no inconsistency between a reduction due to adaptation in an individual coastal property owner's risk of loss from floods and hurricanes and the increase in the total losses from hurricanes and other coastal storms so clearly documented by Roger A. Pielke, Jr. & Christopher W. Landsea, Normalized Hurricane Damages in the United States: 1925-1995, 13 WEATHER & FORE-CASTING 621, 630-31 (1998). Indeed, by lowering individual cost, programs like federal disaster relief and federal flood insurance stimulate demand for coastal properties and increase the total developed value at risk in coastal areas.
186. Even taking as given the generally agreed-upon predictions that global warming will increase mean temperature, lessen seasonal swings, and increase storminess, it is possible that the answer to my question is "no," because increased temperature and lower seasonal variation does nothing to increase the supply of places with really beautiful beaches and the other characteristics that make the Outer Banks and similar coastal areas valuable. For an idea of the variety of value-determining characteristics, see Earl D. Benson et al., Water Views and Residential Property Values, 68 APPRAISAL J. 260, 269 (2000) (finding that enhanced views of water increase property value);
187. James R. Rinehart & Jeffrey J. Pompe, Adjusting the Market Value of Coastal Property for Beach Quality, 62 APPRAISAL J. 604, 608 (1994) (finding that a wider beach increases property value).
188. INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, WORKING GROUP II, CLIMATE CHANGE 2007 624 (Martin Parry et al. eds., 2007) (internal citation omitted).
189. J. Reilly et al., U.S. Agriculture and Climate Change: New Results, 57 CLIMATIC CHANGE 43, 56 (2003).
190. Id.
191. See id. at 57 fig.3.
192. Under a different GCM of climate change run by Reilly and colleagues, the large predicted net aggregate gain in U.S. agricultural product results from very large gains in some regions (the Great Lakes states, the Corn Belt, the mountain states, and the Pacific Northwest) and quite severe declines in others (the Southeast and southern plains). See id.
193. 2, but-and most importandy for agricultural production-in the amount of rainfall they predict Although a warmer climate must on average have higher humidity, the Canadian Center GCM predicts that rainfall patterns will shift north and west, dramatically increasing the drought frequency in the southeastern and southern plains U.S. states. Although they do not acknowledge this until the conclusion to their paper, the Canadian Center GCM "produces relatively extreme high temperatures compared with other climate models whereas the Hadley Center model produces temperature increases closer to the middle of existing climate models, but it produces particularly high levels of precipitation increases for the U.S." Id. at 66.
194. See id. at 59.
195. Robert Mendelsohn et al., The Impact of Climate Variation on U.S. Agriculture, in THE IMPACT OF CLIMATE CHANGE ON THE U.S. ECONOMY, supra note 107, at 55, 63, 67.
196. Id. at 70-71.
197. See Olivier Deschênes & Michael Greenstone, The Economic Impacts of Climate Change: Evidence From Agricultural Output and Random Fluctuations in Weather, 97 AM. ECON. REV. 354, 355, 381 (2007) (adopting this approach after finding that traditional hedonic regressions of farm value on climate variables are not especially robust to sample selection and to explanatory variable inclusion).
198. Id. at 380.
199. Id. at 377.
200. Perhaps the most dedicated economist critic is the German economist Wolfram Schlenker. See Wolfram Schlenker et al., Will U.S. Agriculture Really Benefit from Global Warming? Accounting for Irrigation in the Hedonic Approach, 95 AM. ECON. REV. 395 (2005).
201. Schlenker and his colleagues show that the hedonic climate gradient is different as between counties that rely on irrigation and those that do not (so-called dryland counties). Id. at 397-98.
202. However, the significance of their results for predicting the impact of climate change depends upon their assumption that subsidized irrigation will not be provided on the same terms as today if and when global warming increases the demand for it in current dryland counties. See id. at 396-97.
203. A more recent work uses a novel dataset that uses regression methods to interpolate daily summer maximum temperatures on 2.5 mile square grids and finds that yields for corn, soybeans, and cotton fall steeply when surface air temperatures exceed a direshold daily maximum. See Wolfram Schlenker & Michael Roberts, Estimating the Impact of Climate Change on Crop Yields: The Importance of Nonlinear Temperature Effects 10-12 (Nat'l Bureau of Econ. Research, Working Paper No. 13799, 2008), available at http://www.ssrn.com/abstract=1092849.
204. This is an interesting result, but it is subject to the general criticism of regression interpolation techniques for surface air temperature made by Roger Pielke, Sr. and his colleagues. See Roger A. Pielke, Sr. et al., Unresolved Issues with Assessment of Multidecadal Global Land Surface Temperature Trends, J. GEOPHYSICAL RES., Dec. 2007, at D24S08, at 2-12;
205. see also Schlenker & Roberts, supra at 10 fig.1 (depicting actual surface temperatures during the growing season and comparing this distribution to various future climate scenarios generated by the Hadley Center Coupled Ocean-Atmospheric GCM, ultimately revealing that the Hadley model predicts not a single-peaked, symmetric temperature distribution, but rather something quite different and very unusual).
206. See Gregory V. Jones et al., Climate Change and Global Wine Quality, 73 CLIMATIC CHANGE 319, 338-39 (2005).
207. Somewhat differendy, Orley Ashenfelter and Karl Storchmann take the hedonic approach one step further by estimating the impact of climate change on solar radiation and hence on the amount of solar radiant energy collected by vineyards in the Mosel region of Germany. Orley Ashenfelter & Karl Storchmann, Using a Hedonic Model of Solar Radiation to Assess the Economic Effect of Climate Change: The Case of Mosel Valley Vineyards 17-18 (Nat'l Bureau of Econ. Research, Working Paper No. 12380, 2006), available at http://www.ssrn.com/abstract=921546.
208. See Gianpiero Maracchi et al., Impacts of Present and Future Climate Variability on Agriculture and Forestry in Temperate Regions: Europe, 70 CLIMATIC CHANGE 117, 131-32 (2005).
209. See Robert Mendelsohn et al., The Distributional Impact of Climate Change on Rich and Poor Countries, 11 ENV'T. & DEV. ECON. 159, 173-74 (2006).
210. See Michael J. McPhaden et al., ENSO As an Integrating Concept in Earth Science, 314 SCIENCE 1740, 1744 (2006).
211. 2 from preindustrial levels over the next 100 years," ultimately, however, because "climate models have known flaws that compromise the reliability of future projections in the tropical Pacific . . . . [W]e cannot say with confidence at present how global warming will affect either ENSO variability or the background state on which it is superimposed." Id.
212. See Sang-Wook Yeh & Ben P. Kirtman, ENSO Amplitude Changes Due to Climate Change Projections in Different Coupled Models, 20 J. CLIMATE 203, 207 (2007) (hypothesizing that disagreement among the climate models in predicting ENSO amplitude is caused by varying degrees of nonlinearity in the models).
213. Jia-Lin Lin, Interdecadal Variability of ENSO in 21 IPCC AR4 Coupled GCMs, GEOPHYSICAL RES. LETTERS, June 2007, at L12702, at 2.
214. Hilary Spencer et al., El Niño in a Coupled Climate Model: Sensitivity to Changes in Mean State Induced by Heat Flux and Wind Stress Corrections, 20 J. CLIMATE 2273, 2273 (2007).
215. See id. at 2295.
216. This and the remainder of my description of the ENSO phenomenon is drawn from McPhaden et al., supra note 135, at 1740.
217. Id.
218. Id.
219. For a detailed discussion of how tropical ENSO events influence weathr at much higher latitudes (ENSO teleconnections), see Kevin E. Trenberth et al., Progress During TOGA in Understanding and Modeling Global Teleconnections Associated with Tropical Sea Surface Temperatures, J. GEOPHYSICAL RES., June 1998, at 14,291.
220. Interestingly, it has recendy been found that the global impact of both warm (El Niño) and cold (La Niña) phases of ENSO is strongly dependent upon the level of solar activity, with ENSO having a noticeable impact on the whole lower stratosphere and upper tropical troposphere-affecting both the subtropical jet stream and the polar vortex-only during solar minima. See Vladimir N. Kryjov & Chung-Kyu Park, Solar Modulation of the El-Niño/Southern Oscillation Impact on the Northern Hemisphere Annular Mode, GEOPHYSICAL RES. LETTERS, May 2007, at L10701, at 3.
221. McPhaden et al., supra note 135, at 1741 (noting that weaker events such as the El Niño of 2004 to 2005 "may have impacts that are muted or even undetectable above the background weather noise of the atmosphere").
222. Id.
223. The larger vertical shear that accompanies an El Niño has its greatest effect on storm patterns in the area between ten degrees and twenty degrees North from North Africa to Central America. Roger A. Pielke, Jr. & Christopher N. Landsea, La Niña, El Niño, and Atlantic Hurricane Damages in the United States, 80 BULLETIN AM. METEOROLOGICAL SOC'Y. 2027, 2028 (1999).
224. Hence the larger vertical shear associated with El Niño tends to reduce the number of Adantic tropical storms. Id. at 2028.
225. When Pielke and Landsea looked at normalized hurricane damages over the period 1925 to 1997 (damages indexed to take account of inflation, wealth, and population), they found a large difference in the probability of hurricanes generating more than $1 billion in damages between El Niño versus La Niña or neutral years, with a 0.77 probability in La Niña years and 0.48 probability in neutral years versus only a 0.32 probability in El Niño years. Id. at 2029-31.
226. It is true that Pielke and Landsea found that the frequency of very damaging hurricanes, with losses exceeding $5 billion, did not vary as much between La Niña and El Niño years, but there were relatively few such storms even over their long sample period; for this reason they found no statistically significant difference in the probability of such very large storms in La Niña versus El Niño years. Id. at 2031.
227. There are actually now two different theories of the Southern Oscillation of which El Niño is a component: the first holds that it is a "weakly dampled oscillator that needs to be triggered by a random disturbance. Westerly wind bursts in the western equatorial Pacific appear necessary [on this theory] at the onset of El Niño"; the second theory views the "Southern Oscillation . . . as a lower frequency self-sustaining mode of oscillation in the tropical Pacific." David J. Stephens et al, Differences in Atmospheric Circulation Between the Development of Weak and Strong Warm Events in the Southern Oscillation, 20 J. CLIMATE 2191, 2192 (2007).
228. On the latter theory, the quasiperiodicity of the ENSO cycle is understood as an aspect of a natural oscillator in the tropical Pacific coupled ocean-atmosphere system. See Nicholas E. Graham & Warren B. White, The El Niño Cycle: A Natural Oscillator of the Pacific Ocean-Atmosphere System, 240 SCIENCE 1293, 1293-97 (1988);
229. Eli Tziperman et al., El Niño Chaos: Overlapping of Resonances Between the Seasonal Cycle and the Pacific Ocean-Atmosphere Oscillator, 264 SCIENCE 72, 73 (1994).
230. This oscillator is a low order, nonlinear chaotic system, and hence somewhat predictable in the short-term. See José A. Rial et al., Nonlinearities, Feedbacks and Critical Thresholds Within the Earth's Climate System, 65 CLIMATIC CHANGE 11, 26 (2004).
231. This is not the only view, however, and not a view toward which recent evidence has been especially kind. As McPhaden and his contributors explain, optimism of the 1980s regarding the possibility of developing models that would allow the prediction of ENSO up to a year in advance faded during the 1990s, as existing models failed to "predict the onset, rapid growth, ultimate magnitude and sudden demise of the giant 1997 to 1998 El Niño" and failed also to reliably predict the "weak to moderate strength ENSO related fluctuations of the early to mid-1990s." McPhaden et al., supra note 135, at 1742.
232. Most recendy, the El Niño of 2006 to 2007 was not recognized until large wind shifts were observed in the western Pacific in July of 2006. Id.
233. Stanley A. Changnon, Impacts of 1997-98 El Niño Generated Weather in the United States, 80 BULL. AM. METEOROLOGICAL SOC'Y, 1819, 1826 (1999).
234. McPhaden et al., supra note 135, at 1743.
235. Changnon, supra note 146, at 1819, 1821.
236. Id. at 1821.
237. Id. at 1821, 1825.
238. Id. at 1823.
239. Id. at 1826 tbl.1.
240. Under section 202(a) (3)(A)(i), emission standards for hydrocarbons, carbon monoxide, oxides of nitrogen, and particulate matter for engines made after 1983 "shall contain standards which reflect the greatest degree of emission reduction achievable through the application of technology which the Administrator determines will be available for the model year to which such standards apply, giving appropriate consideration to cost, energy, and safety factors associated with the application of such technology." 42 U.S.C. § 7521 (a) (3) (A) (i) (2000).
241. See BAILEY, supra note 50, at 188-99, 227-37.
242. See Richard O. Faulk & John S. Gray, Stormy Weather Ahead? The Legal Environment of Global Climate Change 60-61 (2007) (unpublished manuscript, on file widi author), available at http://works.bepress.com/ richard-faulk/2/.
243. 2 Emissions from Cars 1, 4 Quly 2, 2007), available at http://europa.eu/rapid/pressReleasesAction.do?reference= MEMO/07/46.
244. For a discussion of the new Corporate Average Fuel Economy (CAFE) standards found in the Energy Independence and Security Act of 2007, Pub. L. No. 110-140, 121 Stat. 1492, see infra notes 158-163.
245. The Department of Energy acts in this way under the authority of the Energy Policy and Conservation Act as amended by the Energy Independent and Security Act. Energy Policy and Conservation Act § 1 (e), 49 U.S.C.A. § 32902 (West 2007), amended by Energy Independence and Security Act of 2007, Pub. L. No. 110-140, § 102, 121 Stat. 1492, 1498-1501 (codified at 49 U.S.C.A. § 32902 (West Supp. 2008)).
246. See Faulk & Gray, supra note 155, at 63 (discussing the renewable fuel standard program created by the Energy Policy Act).
247. As I discuss below, infra notes 160-163, the ethanol requirement has been massively increased by the Energy Independence and Security Act of 2007.
248. 2 emissions if the fuel is corn or sugarcane.
249. See Joseph Fargione et al., Land Clearing and the Biofuel Carbon Debt, 319 SCIENCE 1235, 1235 (2008);
250. Timothy Searchinger et al., Use of U.S. Croplands for Biofuels Increases Greenhouse Gases Through Emissions from Land Use Change, 319 SCIENCE 1238, 1238 (2008).
251. In the Energy Policy Act of 2005, Congress tripled the ethanol requirement in automobile fuel, § 1501, 42 U.S.C.A. § 7545 (West Supp. 2008), and in the Energy Independence and Security Act of 2007 Congress increased the ethanol requirement even further, quadrupling ethanol requirements over the 2009 to 2022 period, § 202, 42 U.S.C.A. § 7545 (West Supp. 2008).
252. Energy Policy Act of 2005, Pub. L. No. 109-58, 119 Stat. 594.
253. See Energy Policy Act § 1341(a), 26 U.S.C. § 30B (2006);
254. see also James M. Sallee, The Incidence of Tax Credits for Hybrid Vehicles 2 (Jan. 22, 2008) (unpublished manuscript, on file with author). Thirteen states have legislated tax incentives for hybrids.
255. See Union of Concerned Scientists, State and Federal Hybrid Incentives, http://go.ucsusa.org/hybridcenter/incentives.cfm (list visited Oct. 2, 2008).
256. See BRENT D. YACOBUCCI & ROBERT BAMBERGER, CONG. RESEARCH SERV., AUTOMOBILE AND LIGHT TRUCK FUEL ECONOMY 3-5 (2008), available at http://ncseonline.org/nle/ crsreports/06nov/rl33413.pdf;
257. B.B. Gleisner & S.A. Weaver, Cars, Carbon and Kyoto, 1 KOTUITUI: N.Z.J. SOC. SCIS. ONLINE 81, 85 (2006), available at http://www.royalsociety.org.nz/site/publish/ journals/kotuitui/2006/06.aspx.
258. See Renton Righelato & Dominick V. Spracklen, Carbon Mitigation by Biofuels or by Saving and Restoring Forests?, 317 SCIENCE 902, 902 (2007).
259. Carolyn Fischer et al., Should Automobile Fuel Economy Standards Be Tightened?, ENERGYJ., 4th Quarter 2007, at 1, 19-20.
260. Id.
261. See Michael P. Vandenbergh & Brooke Ackerly, Climate Change: The Equity Problem, 26 VA. ENVTL. L.J. 53, 61-62 & n.20 (2008)
262. 2 EMISSIONS 3 (2007), available at http://www.cbo.gov/ftpdocs/89xx/doc8946/04-25-Cap-Trade.pdf).
263. See Matthew A. Dombroski, Note, Securing Access to Transportation for the Urban Poor, 105 COLUM. L. REV. 503, 505-11 (2005).
264. CONG. BUDGET OFFICE, REDUCING GASOLINE CONSUMPTION 29-30 (2002), available at http://www.cbo.gov/ftpdocs/39xx/doc3991/11-21-gasolinestudy.pdf.
265. Somewhat surprisingly, there is apparendy no formal work on the distributional impact of CAFE standards. See id. at 29.
266. Id. at 32.
267. Dallas Burtraw et al., The Incidence of U.S. Climate Policy, Where You Stand Depends on Where You Sit 27-30 (Res. for the Future Discussion Paper 08-28, 2008), available at http://ssrn.com/abstract=1272667.
268. Under section 211 of the CAA, EPA has has authority to regulate automobile fuel and fuel additives. 42 U.S.C. § 7418 (2000). Under draft legislation introduced in the U.S. House of Representatives in June, 2007, EPA would be given the express audiority to regulate the carbon content of automobile fuels. See STAFF OF H.R. SUBCOMM. ON ENERGY AND AIR QUALITY, 110TH CONG., ALTERNATIVE FUELS, INFRASTRUCTURE AND VEHICLES (Discussion Draft 2007), available at http://energycommerce.house.gov/energy-110/Tide%20I%20-%20Fuels%20060107-xml. pdf.
269. See Jonathan H. Adler, Massachusetts v. EPA Heats Up Climate Policy No Less Than Administrative Law: A Comment on Professors Watts and Wildermuth, 102 Nw. U. L. REV. COLLOQUY 32, 37-39 (2007 )
270. ("Whatever impact Massachusetts v. EPA has on administrative law, one thing is certain: Barring congressional intervention, this decision will cause the EPA to regulate the emission of greenhouse gases from new motor vehicles, as well as from other sources . . . . Once the EPA makes the required finding under section 202 [the automobile tailpipe provision], it will be child's play to force greenhouse gas emission regulation under other Clean Air Act provisions.");
271. Faulk & Gray, supra note 155, at 66-74.
272. For the same conclusion, but from the perspective of the plaintiffs in Massachusetts v. EPA, see Heinzerling, supra note 32, at 5 ("[T] he legal reasoning behind EPA's decision not to control greenhouse gas emissions in setting New Source Performance Standards for power plants has been upended by the Court's decision.").
273. Eli Kindisch, Making Dirty Coal Plants Cleaner, 317 SCIENCE 184, 186 (2007).
274. 2 is purified for ground storage. Id. at 185.
275. A model Energy Department-sponsored plant called Future Gen that uses a newer and more advanced technique, integrated coal gasification, has gready increased in cost (from $1 to $1.8 billion) and the Energy Department is now requiring private utilities to bear a greater share of the cost of the project. See Andrew C. Revkin, A 'Bold' Step to Capture an Elusive Gas Falters, N.Y. TIMES, Feb. 3, 2008, § 4, at 4.
276. See JAMES P. STUCKER, THE IMPACT OF ENERGY PRICE INCREASES ON HOUSEHOLDS: AN ILLUSTRATION 18 (Rand Paper Series No. P-5585, 1976) ("Direct energy expenditures are usually regressive in their structure, lower income households spend a greater portion of their consumption budget (and their income) on energy purchases than wealthier families . . . all of the obvious types of energy taxes are probably regressive; utility gas taxes are probably the most regressive, and taxes on refined petroleum products - including gasoline - the least.").
277. More recendy, Ian W.H. Parry estimates that the poorest fifth of households spend almost 10% of its income on electricity, while the richest fifth spend less than 6% of its income on electricity. Ian W.H. Parry, Are Emission Permits Regressive?, 47 J. ENVTL ECON. & MGMT. 364, 373 tbl.1 (2004).
278. More dramatically, Jayanta Bhattacharya and colleagues find that while poor families increased their fuel expenditures and decreased their food expenditures during unusually cold months, richer families increased fuel expenditures, but did not decrease their food expenditures during such periods. Jayanta Bhattacharya et al., Heat or Eat? Cold-Weather Shocks and Nutrition in Poor American Families, 93 AM. J. PUB. HEALTH 1149, 1151 (2003).
279. A variety of ways to offset the impact on the poor of energy cost increases caused by GHG emission reduction measures have been surveyed. See ROBERT GREEN-STEIN ET AL., CTR. ON BUDGET & POLICY PRIORITIES, DESIGNING CLIMATE-CHANGE LEGISLATION THAT SHIELDS LOW-INCOME HOUSEHOLDS FROM INCREASED POVERTY AND HARDSHIP 12-18 (2008), http://www.cbpp.org/10-25-07climate.pdf. Distributional considerations can dramatically alter the choice among closely related policy instruments.
280. 2 permits can be highly regressive, making the top fifth of income earners better off but the bottom fifth much worse off, see Parry supra note 175, at 367-70, 377-82,
281. 2 permits were instead auctioned off to utilities and then revenues returned in lump-sum rebates to all households, low-income households would be moderately better off while high-income households would be worse off by approximately $1700, Terry M. Dinan & Diane Lim Rogers, Distributional Effects of Carbon Allowance Trading: How Government Decisions Determine Winners and Losers, 55 NAT'L TAX J. 199, 213, 219 (2002).
282. See Faulk & Gray, supra note 155, at 48
283. (quoting Bruce Yandle & Stuart Buck, Bootleggers, Baptists and the Global Warming Battle, 26 HARV. ENVTL. L. REV. 177, 202 (2002)).
284. See Envtl. Integrity Project, Dirty Kilowatts: America's Most Polluting Power Plants 4-7 (July 2007) (unpublished manuscript), available at http://www.dirtykilo-watts.org/dirty-kilowatts2007.pdf.
285. Id.
286. 2 Emissions by State (2005), http://www.eia.doe.gov/oiaf/1605/ggrpt/ excel/tbl-statetotal.xls;
287. U.S. Census Bureau, Annual Estimates of the Population for the United States, Regions, States, and Puerto Rico: April 1, 2000 to July 2007 (2007), http://www.census.gov/popest/states/NST-ann-est.html.
288. See Eric Neumayer, National Carbon Dioxide Emissions: Geography Matters, 36 AREA 33, 36 (2004).
289. Massachusetts v. EPA, 127 S. Ct. 1438, 1444-45 (2007).
290. See supra note 178 and accompanying text.
291. As Barry Rabe has persuasively argued, the fact that so many states and localities led U.S. efforts to pass GHG legislation is in large part to be explained by the desire of state and local politicians (what he calls "policy entrepreneurs") to advance their own careers by acquiring reputations as global wanning policy leaders. BARRY G. RABE, GREENHOUSE & STATEHOUSE 23-29 (2004).
292. EPA, 127 S. Ct. at 1455-56 (quoting declaration of Paul H. Kirshen ¶ 5).
293. Id. (quoting declaration of Karst R. Hoogeboom ¶ 6).
294. Since, as explained above, the GCMs are indeed unable to predict how global warming is likely to affect the frequency and severity of ENSO, see supra note 137
295. and accompanying text, and since ENSO is a major determinant of large-scale weather patterns in regions such as the soudiwestem United States, it might seem that climate models would also be unable to tell us much about whether or not global warming will lead to drought in the soudiwestem United States. Recent and highly publicized predictions that the Soudiwest will instead become more drought-prone due to global warming are in fact not predicted as a consequence of La Niña events becoming more frequent or severe due to global warming. Instead, these drought predictions are derived from computer predictions of changes in global atmospheric circulation patterns caused by warmer surface temperatures. Notably, climate scientist Richard Seager and his colleagues have found support for the hypothesis of a more droughtprone southwestern United States in a GCM prediction that global warming will move the Hadley cell circulation and mid-latitude westerlies poleward, thus robbing the southwestern United States of ocean moisture and subjecting it to very stable drying descending air. See Richard Seager et al., Model Projections of an Imminent Transition to a More Arid Climate in Southwestern North America, 316 SCIENCE 1181, 1183 (2007).
296. 2 and Climate Change (September 2008) (unpublished manuscript, on file with author).
297. See supra note 107 and accompanying text.
298. Economic studies have consistendy found that since the passage of the Clean Air Act, pollution levels have fallen more in counties with poor air quality (non-attainment counties) than in attainment counties. See Kenneth Y. Chay & Michael Greenstone, Does Air Quality Matter? Evidence from the Housing Market, 113 J. POL. ECON. 376, 395-401 (2005) (finding that total suspended particulates declined more in nonattainment areas);
299. J. Vernon Henderson, Effects of Air Quality Regulation, 86 AM. ECON. REV. 789, 796 (1996) (examining the effect of ozone regulation on economic activity in attainment and non-attainment regions);
300. Kenneth Y. Chay & Michael Greenstone, Air Quality, Infant Mortality, and the Clean Air Act of 1970, at 17-25 (MIT Dep't of Econ., Working Paper No. 04-08, 2003), available at http://ssrn.com/abstract= 509182 (studying the relationship between total suspended particulates and infant health).
301. In California in particular, Clean Air Act regulation has reduced air pollution across the state, but by more in the most heavily polluted Los Angeles basin than elsewhere. Matthew E. Kahn, The Beneficiaries of Clean Air Act Regulation, REGULATION, Spring 2001, at 34, 34.
302. These improvements have not come without a cost, as the more heavily polluted non-attainment counties have lost large, and relatively heavy polluting, factories to cleaner attainment areas. See Randy Becker & Vernon Henderson, Effects of Air Quality Regulations on Polluting Industries, 108 J. POL. ECON. 379, 402-05 (2000).
303. See Christopher S. Elmendorf, State Courts, Citizen Suits, and the Enforcement of Federal Environmental Law by Non-Article III Plaintiffs, 110 YALE L.J. 1003, 1022-23 (2001).
304. See supra Part II.A.
305. See BAILEY, supra note 50, at 144-55.
306. Under the Clean Air Act, federal regulations limiting emissions from new cars sold in the United States preempt the regulations of all states except those of California, which other states are permitted to follow. CAA §§ 202, 209(a), 42 U.S.C. §§ 7521, 7543(a) (2000).
307. This important justification for postponing investments in GHG emission reduction is a consequence of standard assumptions made in neoclassical growth models first applied to climate change by William Nordhaus. For a clear recent
308. 2 relative to preindustrial levels - "is not an artifact of the analyses or choice of model parameters. It is an inevitable consequence of a system in which the net feedbacks are substantially positive." Gerard H. Roe & Marcia B. Baker, Why Is Climate Sensitivity So Unpredictable?, 318 SCIENCE 629, 631 (2007).
309. 2 predominate (e.g., ice sheets melting, lowering albedo, leading to higher surface temperatures, more melting, and so on), then such models will always attach some positive probability to very high potential temperature increases. Perhaps most importandy, "foreseeable improvements in the understanding of physical processes, and in the estimation of their effects from observations, will not yield large reductions in the envelope of climate sensitivity." Id. at 631.
310. See BAILEY, supra note 50, at 167-74.
311. This is because, among other reasons, they cannot predict ENSO and NAO events, which are the major determinants of serious climate events on these timescales. See Peter N. Spotts, How Can You Predict Global Warming If You Can't Predict Rain?, CHRISTIAN SCI. MONITOR, Oct. 18, 2007, at 14, available at http://csmonitor.com/2007/1018/ p14s01-wogi.html.
312. See supra Part I, Part II.E;
313. see also Adler, supra note 173, at 38 ("Once the EPA makes the required finding under section 202 [the automobile tailpipe provision], it will be child's play to force greenhouse gas emission regulation under other Clean Air Act provisions.").
314. For the same conclusion, but from the perspective of the plaintiffs in Massachusetts v. EPA, see Heinzerling, supra note 32, at 5 ("[T] he legal reasoning behind EPA's decision not to control greenhouse gas emissions in setting New Source Performance Standards for power plants has been upended by the Court's decision.").
315. It is not of course literally impossible to lobby an agency that is under a court order to issue regulations. My statement implicidy assumes that the cost to an agency from failing to comply with the court order is sufficiendy high that members of Congress cannot offer a sufficiendy high reward to induce the agency to violate the court order.
316. See Daron Acemoglu, Why Not a Political Coase Theorem?: Social Conflict, Commitment, and Politics, 31 J. COMP. ECON. 620, 648 (2003).
317. But see DONALD WITTMAN, THE MYTH OF DEMOCRATIC FAILURE 160 (1995) (arguing for use of the Coase Theorem in democratic politics).
318. Daniel B. Rodriguez & Barry R. Weingast, The Paradox of Expansionist Statutory Interpretations, 101 NW. U. L. REV. 1207, 1240 (2007).
319. For a summary of this act's provisions, see generally FRED SISSINE ET AL., CONG. RESEARCH SERV., ENERGY INDEPENDENCE AND SECURITY ACT OF 2007 (2007).
320. As pointed out earlier in the Energy Policy Act of 2005, Congress tripled the ethanol requirement in automobile fuel. See supra note 160.
321. The Energy Independence and Security Act of 2007, further increases this ethanol requirement and requires that ethanol come from sources other than corn by 2016. See Energy Independence and Security Act of 2007 §§ 201-202, 42 U.S.C.A § 7545 (West 2003 & Supp. 2008) (effective Jan. 1, 2009).
322. This latter aspect of the bill is, of course, completely incredible: after having subsidized corn-based ethanol production for, by then, almost 20 years, it is hard to believe that the 2016 Congress would really stick to its earlier commitment to pull subsidies for corn-based ethanol.
323. Energy Independence and Security Act of 2007 §§ 201-202, 42 U.S.C.A § 7545 (West 2003 & Supp. 2008) (effective Jan. 1, 2009).
324. 2 emissions by at least fifty percent. See Searchinger et al., supra note 159, at 1238.
325. 2 than the annual GHG reduction provided by burning the biofuels instead of gasoline. SeeFargione et al., supra note 159, at 1235.
326. Both of these studies have been persuasively criticized as relying on a number of unreasonable, relatively arbitrary assumptions about things such as the amount of unused land available for biofuel crop production and how much feed corn is diverted to produce ethanol. See Letter from Michael Wang, Argonne Nat'l Lab. & Zia Haq, U.S. Dep't of Energy, to Science Magazine (Mar. 14, 2008), available at http://www.transportation.anl. gov/pdfs/letter-to-science-anldoe-03-l 4-08.pdf.
327. See Energy Independence and Security Act of 2007 §§ 201-202, 42 U.S.C.A § 7545 (West 2003 & Supp. 2008) (effective Jan. 1, 2009).
328. See BILL JACKSON ET AL., THE BOUNTY OF BIOFUELS 2 (2008), http://www.boozallen.com/media/file/Bounty- of-Biofuels.pdf;
329. Roger A. Sedjo, Commentary, Biofuels: Think Outside the Cornfield, 320 SCIENCE 1420, 1420 (2008).
330. See generally Victor B. Flatt, Taking the Legislative Temperature: Which Federal Climate Change Legislative Proposal Is "Best"?, 102 NW. U. L. REV. COLLOQUY 123 (2007).
331. See id. at 134-36.
332. See infra notes 244 47 and accompanying text.
333. S. 2191, 110th Cong. (2007).
334. See id.
335. See Regulating Greenhouse Gas Emissions Under the Clean Air Act, 73 Fed. Reg. 44,353, 44,362-71 (July 30, 2008) (to be codified at 40 C.F.R. Ch. I) (discussing the potential transportation costs, agricultural burdens, disparate regional impacts, questionable effectiveness, and various collateral effects of regulating GHGs under the CAA).
336. There has been widespread speculation, however, that an Obama administration would move quickly to promulgate such regulations, and thus such an administration would likely generate a test of my hypothesis regarding the likelihood of congressional reaction to costly and sub-optimal regulations. See Editorial, Obama's Carbon Ultimatum, WALL STREET J., Oct. 20, 2008, at A18.
337. 42 U.S.C. § 7521(a)(1) (2000).
338. Massachusetts v. EPA, 127 S. Ct. 1438, 1462 (2007)
339. (citing 42 U.S.C. § 7521(a)(1)).
340. Id. at 1463.
341. Id. (citation omitted).
342. See Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984) (stating that when reviewing an administrative agency's construction of a statute it administers, a court must first look for a clear intent expressed by Congress and, upon no intent being found, determine if the agency's interpretation is based on a permissible construction of the statute).
343. EPA, 127 S. Ct. at 1473 (Scalia, J., dissenting).
344. Id. at 1474.
345. Id. at 1463 (majority opinion).
346. Id. at 1444
347. (quoting 42 U.S.C. § 7601(a)(1) (2000)).
348. Id.
349. (quoting 42 U.S.C. § 7601(a)(1)).
350. A complete answer to this question requires a sustained analysis of the causes and treatment of uncertainty in predicting the human consequences of climate change. I give that complete answer elsewhere, and incorporate here only the most pertinent points.
351. See supra notes 38-48 and accompanying text.
352. See 42 U.S.C. § 7409 (2000).
353. See supra Part II.A.
354. See, e.g., INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, supra note 121, at 8-20.
355. See supra notes 185-87 and accompanying text.
356. See Mark A. Hall & Ronald F. Wright, Systematic Content Analysis of Judicial Opinions, 96 CAL. L. REV. 63, 95 n.133 (2008).
357. See Reimund Schwarze, Liability for Climate Change: The Benefits, the Costs, and the Transaction Costs, 155 U. PA. L. REV. 1947, 1951 (2007) ("If the United States were to establish a crushingly expensive regime ascribing liability to individual polluters, there would be a serious incentive to relocate GHG-intensive industries to countries such as China and India, which have no or almost no restrictions on GHG emissions and no liability for climate-related damages.").
358. See Hall & Wright, supra note 231, at 95 n.133.
359. Somewhat more concretely, Congress was concerned in the CAA with local or regional air pollution problems that could actually be solved through State Implementation Plans. See, e.g., Train v. Natural Res. Def. Council, Inc., 421 U.S. 60, 84-87 (1975).
360. 2 emissions).
361. 2 Emissions from Fossil Fuel Consumption and Cement Production, GEOPHYSICAL RES. LETTERS, April 2008, at L08806, at 1;
362. 2 EMISSIONS (2008), http://www.mnp.nl/en/ publications/2008/GlobalCO2emissionsthrough2007.html.
363. 2 emissions, and the likelihood that annual data underestimate emissions (due to incentives to overstate end-of-year production, so as to meet quotas, and hence understate early year production), Gregg and colleagues point out that it is possible that Chinese emissions could have passed U.S. emissions as early as 2004.
364. 2 emissions surpassed those of the United States in 2006.
365. 2 Emissions Using Province-Level Information, 55 J. ENVTL. ECON. & MGMT. 229, 229 (2008).
366. In addition, using models that accurately capture the cost of replacing old, dirty capital, they forecast that by 2010, China's carbon emissions will increase by 600 million metric tons relative to 2000, dwarfing the 116 million ton reduction that Kyoto signatories are committed to bringing about by 2010. Id. at 245.
367. This particular scenario is a version of the general game modeled by Michael Hoel who presumes that the higher the emissions reduction by one country, the lower the marginal benefit-in terms of reduced harm - to reductions by another country. Michael Hoel, Global Environmental Problems: The Effects of Unilateral Actions Taken by One Country, 20 J. ENVTL. ECON. & MGMT. 55, 59-60 (1991).
368. Hence although total emissions must decline, late movers free-ride off the emissions reductions of early movers. Moreover, under such conditions, a unilateral commitment to reduce emissions by one country unambiguously harms its position in negotiating with the other country for an emissions reduction treaty. Id. at 63-64.
369. Erling Moxnes and Eline van der Heijden provide evidence demonstrating that investments to reduce a public bad by leaders reduces subsequent investment by later movers. Erling Moxnes & Eline van der Heijden, The Effect of Leadership in a Public Bad Experiment, 47 J. CONFLICT. RES. 773, 781-82 (2003).
370. Moxnes and van der Heijden find that followers invest, on average, thirteen percent less in the public bad when there is a leader setting the good example as opposed to a situation with no leader. Id. This produces benefits also to the leaders but not enough to recover all the costs of taking a leading position.
371. Note that the existence of a treaty could significandy enhance the positive impact of early-moving behavior by essentially reducing the potential harm from treaty defection to treaty adherents. See Jean-Christophe Pereau & Tarik Tazdait, Cooperation and Unilateral Commitment in the Presence of Global Environmental Problems, 20 ENVTL. & RES. ECON. 225, 237 (2001). This, of course, is a further argument that a purposive Congress would not have intended to mandate U.S. GHG reductions without a treaty in place.
372. See Urs Steiner Brandt, Unilateral Actions, Case of International Environmental Problems, 26 RES. & ENERGY ECON. 373, 389 (2004).
373. The "Environmental Kuznets Curve" refers to the observed tendency for ambient pollution to at first increase but then decrease as national per capita GDP increases, thus giving rise to an inverted U-shaped relationship between per capita income and pollution. See Arik Levinson, Environmental Kuznets Curve, in 2 NEW PALGRAVE DICTIONARY OF ECONOMICS 892, 892-93 (Steven N. Durlauf & Lawrence E. Blume eds., 2d ed. 2008).
374. Elbert Dijkgraaf & Herman R.J. Vollebergh, A Note on Testing for Environmental Kuznets Curves with Panel Data 16-17 (Fondazione Eni Enrico Mattei Working Paper No. 63.2001, Sept. 2001), available at http://papers.ssrn.com/sol3/papers.cfm?abstract-id=286692.
375. 2 is perhaps predictable, given the more general finding in the Environmental Kuznets Curve literature that the more dispersed is the externality from a particular pollutant, the higher the turning point in national income at which levels of the pollutant begin to decline; for pollutants with the most dispersed negative impacts, there often is no turning point. See Levinson, supra note 240, at 892-93.
376. But it is unlikely. See Jon Hovi et al., The Persistence of the Kyoto Protocol: Why Other Annex I Countries Move on Without the United States, 3 GLOBAL ENVTL. POL. 1, 20-21 (2003) (analyzing an existing case of early moving on climate change policy - the European Union's early leadership in pursuing (superficially at least) a GHG reduction policy despite the failure of the United States to participate in the Kyoto Treaty-and rejecting the hypothesis that such behavior is motivated by rational strategic gain and believe that it is instead explained by the bureaucratic inertia of EU climate institutions and the desire of EU actors to strengthen the European Union as a foreign policy force).
377. For discussions of the potential for profitably transferring such technologies if they are indeed developed, see Scott Barrett, Proposal for a New Climate Change Treaty System, ECONOMISTS' VOICE, Oct. 2007, at 1, 4, available at http://www.bepress.com/cgi/viewcontent.cgi? article=1240&context=ev,
378. and Gwyn Prins & Steve Rayner, Time to Ditch Kyoto, 449 NATURE 973, 974 (2007).
379. Brian R. Copeland and M. Scott Taylor have demonstrated that international trade is likely to play a significant role in determining the impact of developed country GHG emission reductions. They show that by increasing developing country income from the production of "dirty" (that is, GHG emitting) goods, reduction in the developed country GHG emissions could actually stimulate the demand for GHG emission reduction in the developing countries by enough to offset both the shift of dirty good production to such countries (socalled leakage) and also free-riding by such countries. Brian R. Copeland & M. Scott Taylor, Free Trade and Global Warming, 49 J. ENVTL. ECON. & MGMT. 205, 229-31 (2005).
380. The economic studies of the impact of climate change cited supra notes 107, 121-34, for example, clearly show that temperature increases above seven degrees centigrade inflict large net losses on American agriculture.
381. Consider, for example, Africa. As the IPCC notes, climate is a "significant control on day-to-day economic development of Africa," with agriculture and waterresource sectors especially vulnerable to climate fluctuations. INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, supra note 121, at 436.
382. Under a variety of future climate scenarios, the IPCC predicts that there will be by the 2080's a "significant decrease in suitable rain-fed land extent and production potential for cereals," with an increase in arid (desert) and semi-arid land in Africa of five to eight percent and the likely disappearance of wheat production from Africa. Id. at 448.
383. For an Asian example, see Jonathan T. Overpeck and Julia E. Cole, Lessons from a Distant Monsoon, 445 NATURE 270 (2007)
384. (opining that if the Indian monsoon intensifies, as some climate models predict, then Indonesia in particular will have more severe and longer droughts, imperiling rural livelihoods and natural resources). Not only is developing world agriculture more susceptible to drought, increases in sea level that cause a loss of coastal agricultural land are much more damaging in poor countries that cannot as easily substitute for land loss by increasing fertilizer use and in which agriculture is a much larger share of the national economy. See Francesco Bosello et al., Economy-Wide Estimates of the Implications of Climate Change: Sea Level Rise, 37 ENVTL. & RES. ECON. 549, 557 (2006).
385. 2 in Geologic Time, J. GEOPHYSICAL RES., Sept 2005, at C09S05, at 5.
386. For the classic analysis, which shows the importance of the assumed rate of oceanic and biosphere absorption to the time path of atmospheric retention, see U. Siegenthaler and H. Oeschger, Predicting Future Atmospheric Carbon Dioxide Levels, 199 SCIENCE 388, 391-92 (1978).
387. Even many committed climate change scientist advocates end up recommending at least some conversion to nuclear power, see, e.g., R.T. Pierrehumbert, Climate Change: A Catastrophe in Slow Motion, 6 CHI. J. INT'L. L. 1, 18 (2006) ("[S]olving the problems of nuclear power is arguably more tractable than solving the problems of burning coal safely - especially safely sequestering the highly mobile carbon dioxide that is the inevitable consequence of coal burning.").