Photogenic teens sue US government

To be fair, only one of them is known to be photogenic1. Bizarrely, according to Slate, the young plaintiffs “range in age from 9 to 20”2. Brian reports but doesn’t comment on the weirdness of having 9-year-olds suing in the courts. Are we really to believe that a 9-year-old has sufficient command of the issues? It seems utterly weird to me, more of a piece of performance art than a real thing, but the USA is a funny place. Apparently,

climate change violates their constitutional rights to life, liberty, and property by causing direct harm and destroying so-called public trust assets such as coastlines.

This sounds like just the sort of judicial overreach that got Trump elected; not a point Brian considers. Coastlines, assuming they are “public trust assets”, aren’t your property so even if they were destroyed that wouldn’t violate your right to property. And of course they won’t be destroyed, they’ll just migrate inland. The invocation of “liberty” is, umm, I was going to say bizarre but I’ve used that already, perhaps I’ll just say hard to understand. And “life”? Cars kill many many more people in the USA than climate change presently does, or even than would in the future for any plausible forecast. So should they not sue to ban cars instead? No, of course not. Firstly, it would be doomed, because USAnians like cars even more than they like guns-n-pizza. And secondly, because there’s a trade off: cars kill people, but they also provide benefits that people like. Burning fossil fuels is exactly the same, although perhaps that’s hard for a 9-year-old to understand.

Continuing,

the children and their lawyers say these government actions are willfully prioritizing short-term profit, convenience, and the concerns of current generations over those of future generations. The plaintiffs state that the government and these companies have continued to prioritize these short-term gains for more than five decades with full knowledge of the extreme dangers they posed.

I’m not sure this makes sense. They claim the government and the Evil Corporations have been prioritising short-term gains – let’s say “short term” means “decadal”, shall we, since they provide no clear definition themselves – for the last five decades at least. And that “short termism”, iterated for at least five intervals of short-term time, has clearly brought great material prosperity. So it can’t really be considered a short-term strategy. And are the winsome teens proposing to give up that prosperity? Of course along with that prosperity has come many problems, not uniformly distributed along with the prosperity, and not by any means restricted to the USA, though I’m not sure the court case considers harm to non-USA-type folk to be terribly important.

This in turn is just the to-the-present-day version of the familiar problem: that all the standard scenarios say that our descendants will be richer – in a material sense; they are responsible for their own metaphysical welfare; though I suppose they won’t be too happy if we f*ck over all the wildlife – than we are. So you can call it “short termism” if you like, but other people will call it “making us all richer”. Since these are the people who disagree with you, why do you think this is likely to convince them?

The fight to Do Something about GW is multi-faceted, and although my preferred route would be to convince people it is a good idea to Do Something (well, a carbon tax in fact, though I confess my efforts to persuade people of the bleedin’ obvious have not been successful so far) rather than sue them into doing something3, I can’t complain too much if other people prefer the grand theatre of the court system. And standing unbending on the Moral High Ground is so much more satisfying than arguing for a carbon tax. And I don’t suppose 9-year-olds are going to really understand the complexities of the process anyway. But I do wonder if now is a great time to be doing this. The case, inevitably, will go to the supreme court if it isn’t dismissed earlier. And so will concentrate the minds of Trump, and his advisors, on making damn sure that those he appoints will not pass this case. You’ll likely say – correctly – that he doesn’t need any more pressure to appoint the sort of judges who would oppose cases-like-this; but in that case, what’s the point, other than a few feel-good headlines?

Notes

1. I lie; see https://www.ourchildrenstrust.org/us/federal-lawsuit/4. See-also this pic – is that a familiar green hat I see in the background?

2. Ah: “…and Dr. James Hansen, acting as guardian for future generations.” Oddly, neither Slate or Brian mention that.

3. Similarly, Brexit, where I’d rather the losers didn’t try to “win” through the courts.

4. From where I find the judgement itself (Brian’s link didn’t work for me). I wrote this post from Brian’s post and the Slate article; I suppose I’m going to have at least pretend to read a vast slab of legalese now.

The judgement

I pressed “post”, as noted above, before reading the judgement. Some of it is interesting. For example, This lawsuit is not about proving that climate change is happening or that human activity is driving it. For the purposes of this motion, those facts are undisputed.3 It is good to see that, although “climate change is happening or that human activity is driving it” is one thing “those facts are undisputed.3” is somewhat different, as you’ll see if you follow footnote 3. Which is:

For the purposes of this motion, I proceed on the understanding that climate change exists, is caused by humans, and poses a serious threat to our planet. Defendants [state] that “[c]limate change poses a monumental threat to Americans’ health and welfare by driving long-lasting changes in our climate, leading to an array of severe negative effects, which will worsen over time.”… Obama declared “[n]o challenge … poses a greater threat to future generations than climate change.” … When asked… intervenors declined to take a clear position.

So while I’m not entirely happy that the addition of “and poses a serious threat to our planet” occurs only in a footnote, and I’m not totally happy with the failure to resolve that against the rather stronger assertions form the teens; I do admit they have Obama on their side. And the bit about the other side shuffling their feet, looking embarassed, but not actually finding anything coherent to say, is nice.

The bit where it gets bad is the immeadiately following:

The questions before the Court are whether defendants are responsible for some of the harm caused by climate change…

which appears to totally fail to understand that this has to be a cost-benefit problem. Burning fossil fuels has costs. It also has benefits, otherwise people wouldn’t do it (duh). If the case really is that badly one-sided then it is doomed to fare badly further up the chain.

Plaintiffs adequately allege injury in fact

I kid you not, the judge has accepted Plaintiff Zealand B. alleges he has been unable to ski during the winter as a result of decreased snowpack. as an example of “injury in fact”. What a bunch of special snowflakes these people are.

Refs

* Basic Geo-Engineering or Cosmic Rays Bite the Particulates – Eli
* Trump could face the ‘biggest trial of the century’ — over climate change – WaPo

45 Comments

  1. To be fair, only one of them is known to be photogenic1. Bizarrely, according to Slate, the young plaintiffs “range in age from 9 to 20”2. Brian reports but doesn’t comment on the weirdness of having 9-year-olds suing in the courts. Are we really to believe that a 9-year-old has sufficient command of the issues? It seems utterly weird to me, more of a piece of performance art than a real thing, but the USA is a funny place. Apparently,
    climate change violates their constitutional rights to life, liberty, and property by causing direct harm and destroying so-called public trust assets such as coastlines.
    This sounds like just the sort of judicial overreach that got Trump elected; not a point Brian considers. Coastlines, assuming they are “public trust assets”, aren’t your property so even if they were destroyed that wouldn’t violate your right to property. And of course they won’t be destroyed, they’ll just migrate inland. The invocation of “liberty” is, umm, I was going to say bizarre but I’ve used that already, perhaps I’ll just say hard to understand. And “life”? Cars kill many many more people in the USA than climate change presently does, or even than would in the future for any plausible forecast. So should they not sue to ban cars instead? No, of course not. Firstly, it would be doomed, because USAnians like cars even more than they like guns-n-pizza. And secondly, because there’s a trade off: cars kill people, but they also provide benefits that people like. Burning fossil fuels is exactly the same, although perhaps that’s hard for a 9-year-old to understand.
    Continuing,
    the children and their lawyers say these government actions are willfully prioritizing short-term profit, convenience, and the concerns of current generations over those of future generations. The plaintiffs state that the government and these companies have continued to prioritize these short-term gains for more than five decades with full knowledge of the extreme dangers they posed.
    I’m not sure this makes sense. They claim the government and the Evil Corporations have been prioritising short-term gains – let’s say “short term” means “decadal”, shall we, since they provide no clear definition themselves – for the last five decades at least. And that “short termism”, iterated for at least five intervals of short-term time, has clearly brought great material prosperity. So it can’t really be considered a short-term strategy. And are the winsome teens proposing to give up that prosperity? Of course along with that prosperity has come many problems, not uniformly distributed along with the prosperity, and not by any means restricted to the USA, though I’m not sure the court case considers harm to non-USA-type folk to be terribly important.
    This in turn is just the to-the-present-day version of the familiar problem: that all the standard scenarios say that our descendants will be richer – in a material sense; they are responsible for their own metaphysical welfare; though I suppose they won’t be too happy if we f*ck over all the wildlife – than we are. So you can call it “short termism” if you like, but other people will call it “making us all richer”. Since these are the people who disagree with you, why do you think this is likely to convince them?
    The fight to Do Something about GW is multi-faceted, and although my preferred route would be to convince people it is a good idea to Do Something (well, a carbon tax in fact, though I confess my efforts to persuade people of the bleedin’ obvious have not been successful so far) rather than sue them into doing something3, I can’t complain too much if other people prefer the grand theatre of the court system. And standing unbending on the Moral High Ground is so much more satisfying than arguing for a carbon tax. And I don’t suppose 9-year-olds are going to really understand the complexities of the process anyway. But I do wonder if now is a great time to be doing this. The case, inevitably, will go to the supreme court if it isn’t dismissed earlier. And so will concentrate the minds of Trump, and his advisors, on making damn sure that those he appoints will not pass this case. You’ll likely say – correctly – that he doesn’t need any more pressure to appoint the sort of judges who would oppose cases-like-this; but in that case, what’s the point, other than a few feel-good headlines?
    Notes
    1. I lie; see https://www.ourchildrenstrust.org/us/federal-lawsuit/4. See-also this pic – is that a familiar green hat I see in the background?
    2. Ah: “…and Dr. James Hansen, acting as guardian for future generations.” Oddly, neither Slate or Brian mention that.
    3. Similarly, Brexit, where I’d rather the losers didn’t try to “win” through the courts.
    4. From where I find the judgement itself (Brian’s link didn’t work for me). I wrote this post from Brian’s post and the Slate article; I suppose I’m going to have at least pretend to read a vast slab of legalese now.
    The judgement
    I pressed “post”, as noted above, before reading the judgement. Some of it is interesting. For example, This lawsuit is not about proving that climate change is happening or that human activity is driving it. For the purposes of this motion, those facts are undisputed.3 It is good to see that, although “climate change is happening or that human activity is driving it” is one thing “those facts are undisputed.3” is somewhat different, as you’ll see if you follow footnote 3. Which is:
    For the purposes of this motion, I proceed on the understanding that climate change exists, is caused by humans, and poses a serious threat to our planet. Defendants [state] that “[c]limate change poses a monumental threat to Americans’ health and welfare by driving long-lasting changes in our climate, leading to an array of severe negative effects, which will worsen over time.”… Obama declared “[n]o challenge … poses a greater threat to future generations than climate change.” … When asked… intervenors declined to take a clear position.
    So while I’m not entirely happy that the addition of “and poses a serious threat to our planet” occurs only in a footnote, and I’m not totally happy with the failure to resolve that against the rather stronger assertions form the teens; I do admit they have Obama on their side. And the bit about the other side shuffling their feet, looking embarassed, but not actually finding anything coherent to say, is nice.
    The bit where it gets bad is the immeadiately following:
    The questions before the Court are whether defendants are responsible for some of the harm caused by climate change…
    which appears to totally fail to understand that this has to be a cost-benefit problem. Burning fossil fuels has costs. It also has benefits, otherwise people wouldn’t do it (duh). If the case really is that badly one-sided then it is doomed to fare badly further up the chain.
    Plaintiffs adequately allege injury in fact
    I kid you not, the judge has accepted Plaintiff Zealand B. alleges he has been unable to ski during the winter as a result of decreased snowpack. as an example of “injury in fact”. What a bunch of special snowflakes these people are.
    Refs
    * Basic Geo-Engineering or Cosmic Rays Bite the Particulates – Eli
    * Trump could face the ‘biggest trial of the century’ — over climate change – WaPo

    Related

  2. Hank Roberts

    I think maybe you are working too hard at being a contrarian?
    [A fair point and one that I am somewhat conscious of. However, I don’t see anyone else fulfilling the role -W]
    The suit is a constitutional substantive due process claim, so the phrase that needs to be looked at first is “nor shall any State deprive any person of life, liberty, or property, without due process of law”. “life”, “liberty” and “property” all appear in the claims because that’s in the 5th and 14th amendments, but they have to be read in the context of substantive due process adjudication, and can’t be read at all without that final “without due process of law”.
    A general claim against cars as death traps wouldn’t succeed because general automobile safety has been legislated, regulated, and adjudicated. The assumption then is that the issue has been considered, due process applied, and the appropriate tradeoffs made. Specific claims against automobiles can be made, but any generic claim would (I believe) have to demonstrate that somehow all that legislative, regulatory, and judicial activity didn’t meet the bar of substantive due process.
    The claim in this suit is that assets in the public trust are being permanently impaired (beyond the ability of future legislatures to recover) without due process, and therefore there hasn’t been the appropriate weighing of tradeoffs and such. What the plaintiffs are asking is for the court to tell the other branches of government that they have to follow due process in considering the costs and benefits before continuing. It isn’t even for the court to make those tradeoffs, that’s up to the legislature and executive.
    [It would be nice to think that, but I don’t see any language about costs and benefits in the judgement. Where do you get it from? -W]
    wrt comments about what is before the court: this is a ruling on a motion to dismiss, on the grounds that the question isn’t justiciable and the plaintiffs lack standing. A motion to dismiss argues that the plaintiffs’ case would fail as a matter of law even if all the facts plaintiffs allege are true, so a ruling on a motion to dismiss assumes just about all the matters of fact in favor of the plaintiffs. So when the court says
    “This lawsuit is not about proving that climate change is happening or that human activity is driving it.”
    note that is followed immediately by
    “For the purposes of this motion, those facts are undisputed.”
    saying that the court is assuming these things for the purpose of deciding this particular motion, not the entire case, and what follows
    “The questions before the Court are whether defendants are responsible for some of the harm caused by climate change, whether plaintiffs may challenge defendants’ climate change policy in court, and whether this Court can direct defendants to change their policy without running afoul of the separation of powers doctrine.”
    is again about the scope of this particular motion, not the case as a whole. Same for the special snowflake’s claim, the acceptance there is only that the claim clears the very low bar of possibly being an injury of fact under the law, not a decision of actual fact.
    As far as coastlines and property rights are concerned, look at the legal history of public trust, which I believe we got from your common law, and you got from the Romans. For coastlands “migrating” inland, we can quibble over whether it is the same coastline, but it is at least reasonable to guess that it will be a smaller coastline and could be substantially impaired in value (beaches generally have more value as public trust than sheer cliffs, at least on US coasts).

  3. David B. Benson

    > believe that a 9-year-old has sufficient
    > command of the issues?
    Well, you said you tell them what the IPCC says.
    That should suffice.
    What lesson from “the Emperor has no clothes!” is missed?
    Relax, Der Trump has verified that millions of people voted illegally — that’s going to be excuse for enough arrests to remove most of the complainers. Yeah, we did once have something called habeus corpus, but it was a foreign language so, gone.

  4. Hank Roberts

    Yes, a coastline migrating inland has a reduced value in shellfish and other nearshore seafood. The populations cannot keep up with the horizontal movement on shallow slopes. This occurred on the east coast of South America during the transition from LGM to the Holocene. It was only after the sea stand stabilized that the ecosystem was restored.

  5. > our descendants will be richer – in a material sense;
    > they are responsible for their own metaphysical welfare;
    > though … won’t be too happy if we f*ck over all the wildlife
    Corollary: they will be too happy if the wildlife isn’t f*cked?
    The contrarian shtick always seems to assume ecological cluelessness. Can’t you find a conservative-‘ibertarian voice that has understood ecology 101?
    This can’t be what you want your kids to learn to think.
    [You’ve missed the point. The std scenarios don’t guarantee that the wildlife is f*ck*d. Indeed, without digging into details it is hard to tell one way or another. I didn’t notice any particular concern for wildlife in the case, other than one of the teens who was concerned about not getting enough salmon. They seemed more concerned with their property -W]

  6. “our descendants will be richer – in a material sense”
    Just anther unsupported assumption. It is possible that our descendants will be richer. But not sure.
    Exponents end. In other words, things that look like exponential growth only do so for limited amounts of time. Has to be that way, or bacteria would have consumed all mass in the Universe billions of years ago.
    [You snipped the context. Allow me to restore it: that all the standard scenarios say that our descendants will be richer – in a material sense. Which is to say, the std economic scenarios – SRES and so on – on which future CO2 emission scenarios are built. Theis can’t possibly be news to you, can it? -W]

  7. wrt: [It would be nice to think that, but I don’t see any language about costs and benefits in the judgement. Where do you get it from? -W]
    This is just a procedural ruling on a motion to dismiss, not any kind of final judgement. The scope of this order is only those things that need to be decided to rule on the motion, which is only about whether the court has any authority at all to decide the case (“justiciability”) and whether the plaintiffs have standing. So the court says “In any event, speculation about the difficulty of crafting a remedy could not support dismissal at this early stage.” That’s all it has to decide on the issue for this motion, weighing costs and benefits is out of scope.
    AIUI weighing costs and benefits may remain out of scope through any first round judgement. The plaintiffs are asking for a determination that their rights have been violated, and a decision ordering the defendants to come up with a remedy, not a specific remedy from the court. This is standard seperation of powers stuff discussed in the Baker factors part of that order, see
    “Plaintiffs do not seek to have this Court direct any individual agency to issue or enforce any particular regulation.”
    and
    “Should plaintiffs prevail on the merits, this Court would no doubt be compelled to exercise great care to avoid separation-of-powers problems in crafting a remedy. The separation of powers might, for example, permit the Court to direct defendants to ameliorate plaintiffs’ injuries but limit its ability to specify precisely how to do so.”
    In the first instance, it is normally up to the executive branch defendants to come up with a plan that redresses the harm and balances costs and benefits, including accommodating competing rights. Then typically someone appeals the plan, and it is only at that point the the court gets involved in cost/benefit tradeoffs.
    This is exactly the sequence we’ve seen with EPA regulation of GHGs under the Clean Air Act…in MA vs. EPA, the court ordered the EPA to come up with a plan, the EPA did so, industry appealed, and the court ruled that EPA hadn’t done the cost/benefit analysis right and go try again.
    Looking for cost-benefits in this decision is barking up entirely the wrong tree–that discussion isn’t supposed to be there.
    [No no no it was *you* who said and therefore there hasn’t been the appropriate weighing of tradeoffs and such. That’s a language of costs and benefits, and you were asserting it was part of the judgement. Now you seem to be saying the opposite. I’m confused -W]

  8. “You snipped the context. Allow me to restore it: that all the standard scenarios say that our descendants will be richer – in a material sense. Which is to say, the std economic scenarios – SRES and so on – on which future CO2 emission scenarios are built. Theis can’t possibly be news to you, can it? -W”
    Context was from comment #4. Complains to there.
    News? Hardly.
    Over the past 30 years the median person in the USA has not gotten richer. Will the current trend continue? Average wealth has increased, yes, but not median. Someone’s descendants might be richer, but ours? I have little trust in the standard economic scenarios, they seem overly optimistic and dictated by politics.

  9. Russell the Stout

    No, no, no, I did not say that tradeoffs were part of the judgement. I discussed them as part of the complaint, in sentences starting with phrases like “The claim in this suit” or “What the plaintiffs are asking” or “It isn’t even for the court to make those tradeoffs”. And I was specific that the plaintiffs were asking for the court to order the defendants to consider the tradeoffs, not asking the court to consider them. IOW, I believe I’ve been consistent and you’ve egregiously misread.
    But let’s try this one last time.
    There’s a complaint claiming that plaintiffs’ rights are being impaired without substantive due process, and the lack of substantive due process means cost/benefit tradeoffs haven’t been properly considered.
    The plaintiffs are asking the court to order the defendants to craft regulations to remedy the alleged lack of substantive due process, and those regulations will of necessity have to consider the cost/benefit tradeoffs. But the court could find that the plaintiffs have been harmed and denied substantive due process without touching the question of cost/benefit tradeoffs. I believe that is what usually happens, leaving the first instance consideration of tradeoffs to the regulators.
    There’s a recent procedural order denying a motion to dismiss. This is the doc you looked at, which you keep erroneously calling a judgement. All this order said on the subject was that the court didn’t have to consider difficulties of crafting a remedy in order to deny the motion to dismiss.
    That order means the case can likely go to trial. Judgement comes after trial, so there hasn’t been a judgement at all yet, thus asserting that something was part of the judgement is nonsense.
    Anyway, I’m getting irritated, so time to find something more productive to do.

  10. Russell the Stout

    The USA has a magnificent inland waterway system, and it is not private property. It belongs to the citizens. It is threatened by greenhouse climate change. The suit is not invalid by those obvious facts.

  11. Hank Roberts

    I should have saidhttps://en.wikipedia.org/wiki/Intracoastal_Waterway
    [Is “Today, federal law provides for the waterway to be maintained at a minimum depth of 12 feet (3.7 m) for most of its length, but inadequate funding has prevented that.[citation needed]” the kind of threat you were thinking of ;-? -W]

  12. Russell the Stout

    > The std scenarios don’t guarantee that the wildlife is f*ck*d
    Is there an ecologist you could talk with toward finding facts to agree on?
    … we persist in the endearing but misguided belief that yet another extended report on subjects guaranteed to fire the public imagination (“Bayesian model evaluation”, “tropospheric specific humidity”) will somehow make everyone believe us….

  13. Yes, that is just one of many threats around these parts nowadays. ;>]

  14. Hank Roberts

    #7: Over the past 30 years the median person in the USA has not gotten richer.
    You can say that again.
    [Was that intended to be a link? Perhaps it was a link to http://www.forbes.com/sites/timworstall/2016/06/10/american-middle-class-incomes-rose-41-from-1979-to-2013-not-stagnated/ -W]
    Skipping the list of quintiles with decreasing income from 2006 to 2014 (all – only the 1% saw an increase), and then:
    Note that these declines have occurred during an alleged six-year economic recovery from 2009 to the current time, and during a period when the labor force was shrinking due to a sustained decline in the labor force participation rate. On April 3, 2015 the US Bureau of Labor Statistics announced that 93,175,000 Americans of working age are not in the work force, a historical record. Normally, an economic recovery is marked by a rise in the labor force participation rate. John Williams reports that when discouraged workers are included among the measure of the unemployed, the US unemployment rate is currently 23%, not the 5.2% reported figure.
    I find this shocking, although it goes some way to explaining Trump’s appeal to some number of impoverished voters who see him as their last hope.

  15. How about opening up that “why do science in Antarctica” topic again? We seem to have news.http://www.livescience.com/57016-west-antarctic-ice-shelf-melting-inside.html
    —-snippety—-
    … scientists warned that the West Antarctic Ice Sheet could collapse within the next 100 years. That would lead to a sea-level rise of nearly 10 feet (3 meters), flooding coastlines around the world, the researchers said.
    Researchers have seen similar deep subsurface rifts in the Greenland Ice Sheet, where ocean water has seeped inland in areas, melting the ice from underneath. However, this is the first time researchers have witnessed such melting within Antarctic ice, the scientists in the new study said. The satellite images provide strong evidence that the Antarctic ice shelves respond to ocean changes similar to those in Greenland, Howat added.
    Rifts usually form at an ice shelf’s borders, where ice is thinner, Howat said. But the rifting in the Pine Island Glacier originated from the center, which implies that the ice shelf was already weakened at the center, likely by the warming ocean melting an ice crevasse at the bedrock level, he explained.
    The bottom of the West Antarctic Ice Sheet also lies below sea level, which allows ocean water to intrude far inland ….
    —–snip—–
    http://onlinelibrary.wiley.com/doi/10.1002/2016GL071360/abstract
    [But is the PR honest? If I look at the paper referenced, I don’t find 100 years, or anything resembling it -W]

  16. Now here Eli thought that you libertarians didn’t believe in picky laws or regulations but that everybunny should always be suing everyother bunny for their stuff.
    [I think the libertarians are keen on the idea of people being able to sue for redress; but I don’t think they want a society with constant lawsuits. The idea is that the ability to sue, and win when you have a case, should prevent the need.
    However I think they would also link that to the need for a comprehensible law, and therefore dislike “judicial overreach”… is that the right phrase? If I Google it I get mostly examples from India, so probably not. Perhaps https://en.wikipedia.org/wiki/Judicial_activism instead -W]

  17. Hank Roberts

    Of course all true libertarians believe that they are the ones to determine what are sensible lawsuits, and oh yes which laws are allowed.
    It’s libertarians all the way down.

  18. Hank Roberts

    > the ability to sue, and win when you have a case
    The only ‘ibertarian lawyers I’ve known have gloried in being able to do lawsuits because they act as their own lawyers and can force almost anyone to settle — because it costs so much to hire lawyers.
    Perhaps you would consider public funds for lawsuits, like the public funds for elections?
    That would reduce the slant of the playing field for law.
    [That the practice of law in present-day USA – and elsewhere – is imperfect is no secret. Blaming that on libertarians, or associating them with it in any strong way, seems odd to me. I, and they, and likely Hayek, would use your observation as evidence that the status quo is bad; that there is too much law, and too much of it is obscure -W]

  19. Hank Roberts

    Voltaire — ‘I was never ruined but twice: once when I lost a lawsuit, and once when I won one.’

  20. > Blaming that on libertarians
    No, not blaming it on ‘ibertarians, just saying that the recommendation to use lawsuits after damage is done tends to favor the lawyers, and requires proof of damage.
    Small signals can take a long time to emerge from the background noise, and by the time a small effect is verifiably, provably leading to an unfortunate outcome, the legal compensation available may not suffice to prevent ongoing damage.
    I’m sure you can think of one or two examples where the precautions taken to prevent growth of a problem were wise, and delay would have been rather damaging.

  21. “The idea is that the ability to sue, and win when you have a case, should prevent the need.” – W
    It’s almost if you’re suggesting that if laws were few enough and simple enough (whatever that would mean) and the punishments were proportionate (again, whatever that would mean) that the legal system would, to some degree, just take care of itself.
    But you know that’s not true. Everyone knows murder is a crime. It’s a comprehensible, understandable law. Yet there are murders. Even when the punishment is of the capital variety, they still occur.
    So is the problem that there is “too much law” or that “too much of it is obscure” or is it that people aren’t perfect legal or market actors – they do things impulsively and against their own long-term interests all the time?
    It’s similar to the silly concept that a carbon tax alone would be enough to stop global warming. As if people would look at the tax, understand the reasons behind the tax and then decide not to emit. It doesn’t work that way. People don’t work that way.
    And y’boy Hayek knows that. Lawmakers cannot be trusted to make laws because they are, inherently, irrational.
    [That forms no part of Hayek that I’m aware of. Which bit are you thinking of? -W]
    Yet somehow, libertarians forget that this irrationality also impacts the general population too.
    But maybe this inherent irrationality Hayek is quick to bring up when discussing lawmakers, magically only afflicts people when they enter a position of centralized power?
    [Now he is “quick” to bring it up? Do please cite chapter and verse -W]

  22. Hank Roberts

    “[That forms no part of Hayek that I’m aware of. Which bit are you thinking of? -W]”
    Seriously? It’s incredibly central to his thinking. A good write up can be found below (note: I’ve already think this to you in your last Hayek thread).
    https://home.isi.org/hayek-role-reason-human-affairs
    [The issues that the paper describes are central to his thought, but you have totally misunderstood them.
    Hayek’s point is that a modern society is so large and complex that it cannot be planned. Hence the central-plannning system is doomed. Instead, he is in favour a system which allows freedom for everyone to pursue their own goals -W]

  23. I challenge you to read though this and tell me how to manage the situation documented therein, if not by better regulation. The problem is bad enough at 110v and horrible at 220v.http://combinationafci.com/resources/doc_ieee_combination_afci.pdf
    [Unless I’ve misunderstood something, you have it backwards. There are two sorts of circuit breakers. Regulation mandates the use of one type, but the author of the article thinks another type is better. Why is this evidence that regulation is good? -W]

  24. Everyone following their own goals grazes the pasture to eroding dirt.
    [The English Commons system shows that solving this can be done via local co-operation rather than requiring government intervention -W]

  25. [The English Commons system shows that solving this can be done via local co-operation rather than requiring government intervention -W]
    At what scale does “local co-operation” become “government intervention”?
    [The boundary blurs; and of course some things that were once unwritten – although known to all – commons rules are now formalised and breaches would be dealt with through the courts nowadays -W]

  26. Local co-operation works in small societies where everyone knows everyone. Solution doesn’t scale beyond that.
    What does Hayek say?
    [I don’t recall Hayek being greatly concerned with pasture. Somewhat less superficially Hayek is principally concerned with things that are the function of government, so it would be a distraction to consider things that aren’t -W]

  27. Hank Roberts

    Hayek is an anti-rationalist. Hayek uses this stance as grounds to be pessimistic about the effectiveness of central-planning. (I think we agree on this)
    [No. I strongly disagree. I wonder if you’ve actually read any Hayek. can you confirm that you have, and if so what? I’m suspicious that you’re relying on paraphrases of his work.
    Hayek is entirely rationalist. He is strongly critical of central planning not because of any “rational” grounds, but because it does not and cannot possibly have the information required to do the planning, even making the entirely unrealistic assumption that it had adequate intelligence and was unbiased -W]
    You think he thinks this is because “modern society is so large and complex that it cannot be perfectly planned”.
    I think he says thinks this is because “people are inherently irrational and cannot perfectly plan for societies so large and complex.”
    [You really have not read his works, have you? -W]
    There’s very little different but apparently I’ve “totally misunderstood” his thinking.
    I then extend my interpretation of Hayek (which really doesn’t look much different than yours) to ask that question of people outside of a central-planning role. Surely, they too fall victim to the same problem. My point is, for the same reasons that Hayek (and you) distrust a person’s ability to perfectly centrally-plan a complex society, I distrust a person’s ability to act perfectly in a complex society. People will be people in both cases. They will have incomplete information, they will have biases, they will make mistakes, they will be greedy, they will be short-sighted.
    In the real-world, we see bad laws/regulations and we see bad individual actions in the absences of laws/regulations. That’s because we don’t have perfect legislators nor do we have perfect legal, market and moral actors. So we need some legislation to deal with the latter but carefully monitor the legislation because of the former.
    It would be inconsistent to selective use an anti-rationalist stance to piss on central planning for societies so large and complex, while assuming people would happily, cooperatively and sustainably be able to navigate through societies so large and complex without regulations or central planning.
    To return to my original point, your comment “The idea is that the ability to sue, and win when you have a case, should prevent the need” is obviously never going to work that way.

  28. Hank Roberts

    > why is this evidence that regulation is good?
    alas, we’re still stuck in the black/white good/bad thing here.
    My question to you was how else do you think the problem (arc fault electrical fires) can be approached, if not by regulation? Yes, it’s a messy and unfinished agenda:
    “50 to 75 percent of all electrical home fires in the United States” http://w3.usa.siemens.com/us/internet-dms/btlv/residential/residential/docs_AFIC%20Circuit%20Protection/SIE_WP_CAFCI_causes_of_electrical_fires.pdf
    Yes, they’re relatively new tech, and the regulations are being fought over — would you drop the attempt to approach these via regulation? How are they handled in the UK, where you have 220v?https://www.mikeholt.com/mojonewsarchive/AFCI-HTML/HTML/AFCI_Inventor_Responds~20020814.htm
    [Your original question wasn’t precisely formulated. I still think my answer is applicable: the paper you yourself pointed at provided evidence that regulation was causing a problem. Why then is your answer, automatically and without any pause for reflection, “more regulation”? This seems to be an example of an area where regulation is hindering technical innovation. The answer would appear to be for the regulation to get out of the way; at the very least, to avoid being over-prescriptive -W]

  29. “In the United Kingdom, these are better known by their initials RCD, and a combined RCD+MCB is known as a RCBO (residual-current circuit breaker with overcurrent protection).”

  30. RC sayz – “I think he thinks this is because people are inherently irrational and cannot perfectly plan for societies so large and complex.”
    WC sayz – “You really have not read his works, have you?”
    Hayek holds the position that people should be regarded “not as a highly rational and intelligent but as a very irrational and fallible being” (Individualism, page 8). (note: in the quote he is referring to “English individualism” but he is doing so favourably and building upon it in the rest of the text.)
    But you’re right, I could have been more specific. Hayek is anti-constructivist rationalism. So “anti-rationalist” should be “anti-constructivist rationalism”. Sloppy terminology but it doesn’t really change my point.
    [I disagree. It completely changes your point -W]
    Critiques of Hayek emphasize this jumping back and forth between wanting to be a rationalist but advocating against the utility of rationalism (ex. in lawmaking). A good example of this can be found in his Wikipedia article:
    “The human mind, Hayek says, is not just limited in its ability to synthesize a vast array of concrete facts, it is also limited in its ability to give a deductively sound ground to ethics. Here is where the tension develops, for he also wants to give a reasoned moral defense of the free market. He is an intellectual skeptic who wants to give political philosophy a secure intellectual foundation. It is thus not too surprising that what results is confused and contradictory” – Arthur M. Diamond.
    [Pffft, so what? People who dislike what he say dislike what he says -W]
    This is, in a different way, pointing out my issue. If you think people cannot rationalize plans for societies because they are so large and complex (as Hayek does), then “tension develops” when you all the sudden feel that people will, without regulations, rationally work their way through decisions in a large and complex society. I, too, feel the result is “confused and contradictory”.
    [I think in that last paragraph you are at last groping your way towards what Hayek is actually saying. But you are still – ignorantly, I think – so opposed to what he is saying that you’re not really capable of reading what he says. Hayek does not oppose all regulations; you made that up. He explicitly states that there is a role for government. But he points out (and I’m getting bored of saying this) that central planning does not and cannot work, for reasons that have nothing to do with rationality but which are all about lack of information for the planner. If you’re determined to believe that central planning is a really great idea that will remove the “messiness” of the market economy then you won’t accept this – somewhat in the manner that GW denialists, who won’t accept the need for some government action to deal with GW, illogically reject the science behind it -W]

  31. Hank Roberts

    The problem of the Commons is a problem of government.
    [It can be framed that way. It depends on what you mean by government. It can mean the sovereign entity ruling a country. Or it can mean any schema that determines “law” in a local context. Unless you clarify ambiguous words with what meaning you intend them to have you cannot insist upon precise distinctions -W]

  32. Kevin O'Neill

    But these codes, while they do get adopted by governments — are not crafted by governments. You don’t really want anybody to rewire your house without this kind of help and supervision, do you?http://www.nfpa.org/codes-and-standards/standards-development-process/the-value-of-standards-development-organizations
    … standards developed by NFPA and similar standards development organizations (SDOs) are “voluntary consensus standards,” created through procedures accredited for their consensus decision-making, openness, balance of interests represented, and fairness by the American National Standards Institute (ANSI). Because of their credibility and reach, independent SDOs are able to attract thousands of volunteer experts to serve on their standards drafting committees.
    What are SDOs?
    SDOs are standards development organizations which work to formulate health and safety standards….
    —-
    It appears the UK relies on them as well as the fifty U States.
    Electrical, plumbing, sanitation, construction, and much else are regulated using these kinds of standards. You don’t really want your city built and repaired by anybody who hangs out a shingle and cuts you a low price, do you?
    The problem with suing after damage is the damage to you and each other affected individual gets done twice, first by the idiots and then by the lawyers.
    I may repeat myself.
    This is why people organize governments — because hiring a champion to fight for you was such a failure in Medieval times that nobody’s wanted to return to the system. Almost nobody.

  33. I think I’ve brought this up before, but Hayek’s main arguments against central planning had to do with microfoundations and the inability of central planners to access it either at all or in a timely (i.e., real time) manner.
    Obviously Hayek lived in an age that didn’t have machines capable of making 130 quadrillion calculations per second or in an age of ‘big data’. When the internet of things is fully mature the basis for his argument will have largely disappeared.
    [I don’t think you have, but if you had, you’d be wrong -W]

  34. Russell Seitz

    How about a few more zingers from Hayek against (constructivist) rationalism and the limits of human rationality:
    “The whole conception of man already endowed with a mind capable of conceiving civilization setting out to create it is fundamentally false.” – Hayek (The Constitution of Liberty, chapter 2)
    “Human reason can neither predict nor deliberately shape its own future.” – Hayek (chapter 3)
    ‘It is for this reason that those intoxicated by the advance of knowledge so often become the enemies of freedom … The more men know, the smaller the share of all that knowledge becomes that any one mind can absorb” – Hayek (chapter 1)
    [I notice that you haven’t answered my question as to whether you’ve read Hayek. I think you haven’t. What you’re doing now is rapidly scanning through, without real understanding, in an effort to give the impression that you have read him. Feel free to answer my question, if you assert that at the time I asked it you had read Hayek I will believe me. But until you stop evading it I will believe that you have not.
    I think you’re going to have to lay aside your preconceptions, and admit that you’re wrong. Or you’ll be doomed to fight the strawman you’ve constructed.
    Your first quote is nothing to do with rationalism but entirely about Hayek’s point about how civilisation evolved, as the quote in context clearly reveals (https://books.google.co.uk/books?id=ujX0zwXcuK4C&pg=PA74&lpg=PA74&dq=%22The+whole+conception+of+man+already+endowed+with+a+mind+capable+of+conceiving+civilization+setting+out+to+create+it+is+fundamentally+false.%22&source=bl&ots=LTSZ_cLia_&sig=e1KWKn_exlJjJk6ST1wQHYuPnX4&hl=en&sa=X&ved=0ahUKEwiglN3BmNTQAhWIJ8AKHaU7BooQ6AEIHTAA#v=onepage&q=%22The%20whole%20conception%20of%20man%20already%20endowed%20with%20a%20mind%20capable%20of%20conceiving%20civilization%20setting%20out%20to%20create%20it%20is%20fundamentally%20false.%22&f=false). Hayek is discussing the idea that civilisation has been “constructed”, by deliberate design, and that therefore it is reasonable to simply change institutions. Instead, he points out that society / civilisation evolved. That we have many institutions whose purpose is unclear. And that therefore change-by-design is not possible; or perhaps rather than “not possible”, is unlikely to have the desired effects, because the consequences of any change cannot be foreseen.
    I will not consider your second or third unless we can have a meaningful discussion of your first -W]

  35. Kevin O'Neill

    WC: Coastlines, assuming they are “public trust assets”, aren’t your property so even if they were destroyed that wouldn’t violate your right to property. And of course they won’t be destroyed, they’ll just migrate inland.
    It’s only a matter of time before some Hollywood climactoplectic retaliates against our new Tea Party masters by producing a prequel to Waterworld, that shows Earth’s surviving population fleeing inundation by queuing up along the continental divide.

  36. Kevin O'Neill

    WC writes: [I don’t think you have, but if you had, you’d be wrong -W]
    Perhaps you haven’t read , The Use of Knowledge In Society, para. H15 and H16.
    “One reason why economists are increasingly apt to forget about the constant small changes which make up the whole economic picture is probably their growing preoccupation with statistical aggregates, which show a very much greater stability than the movements of the detail. The comparative stability of the aggregates cannot, however, be accounted for—as the statisticians occasionally seem to be inclined to do—by the “law of large numbers” or the mutual compensation of random changes. The number of elements with which we have to deal is not large enough for such accidental forces to produce stability. The continuous flow of goods and services is maintained by constant deliberate adjustments, by new dispositions made every day in the light of circumstances not known the day before, by B stepping in at once when A fails to deliver. Even the large and highly mechanized plant keeps going largely because of an environment upon which it can draw for all sorts of unexpected needs; tiles for its roof, stationery for its forms, and all the thousand and one kinds of equipment in which it cannot be self-contained and which the plans for the operation of the plant require to be readily available in the market.”
    “This is, perhaps, also the point where I should briefly mention the fact that the sort of knowledge with which I have been concerned is knowledge of the kind which by its nature cannot enter into statistics and therefore cannot be conveyed to any central authority in statistical form. The statistics which such a central authority would have to use would have to be arrived at precisely by abstracting from minor differences between the things, by lumping together, as resources of one kind, items which differ as regards location, quality, and other particulars, in a way which may be very significant for the specific decision. It follows from this that central planning based on statistical information by its nature cannot take direct account of these circumstances of time and place and that the central planner will have to find some way or other in which the decisions depending on them can be left to the “man on the spot.”
    [No, I hadn’t read that. It appears to be very similar to what he has said elsewhere; the central point remains the same. It doesn’t mention “microfoundation” as far as I can tell, and I don’t know what you mean by that. But I still find the idea that the IOE and an increase in computing power will usher in a grand new era of central planning; or will permit in theory such an era; to be wrong -W]

  37. And of course the next paragraph answers the question directly:
    “If we can agree that the economic problem of society is mainly one of rapid adaptation to changes in the particular circumstances of time and place, it would seem to follow that the ultimate decisions must be left to the people who are familiar with these circumstances, who know directly of the relevant changes and of the resources immediately available to meet them. We cannot expect that this problem will be solved by first communicating all this knowledge to a central board which, after integrating all knowledge, issues its orders. We must solve it by some form of decentralization.”
    What is this ‘wrong’ you speak of, white man?
    [Your apparent belief that Hayek is wrong, is wrong -W]

  38. Kevin O'Neill

    “for reasons that have nothing to do with rationality but which are all about lack of information for the planner.” – W
    I’m sorry but this is, to me (and what the hell do I know, right), just a bizarre reading of Hayek. Rationality absolutely plays a part in that (lack of information does as well). I honestly do not understand how you reject this.
    [Read what I’ve written. Read what Hayek has written. Read the bits that KON has pulled out -W]
    “Your first quote is nothing to do with rationalism but entirely about Hayek’s point about how civilisation evolved” – W
    Yes, evolution is part of it. He thinks societies are a product of social evolution and, equally importantly, he thinks that it is not a product of constructivist rationalism (hence the quote). You are saying the former, I’m saying the latter. Both are important to his thinking.
    It’s kind of like you saying libertarianism is about protecting life, liberty and property and me saying libertarianism is about limiting regulations. But then you say, “regulations have nothing to do with libertarian thinking!”.
    [Recall that your original statement was “Lawmakers cannot be trusted to make laws because they are, inherently, irrational”. You have now changed that to “societies are… not a product of constructivist rationalism”. That’s a major change and I think the original wording was inevitably confusing -W]
    “I think you’re going to have to lay aside your preconceptions, and admit that you’re wrong. Or you’ll be doomed to fight the strawman you’ve constructed.” – W
    Likewise. To continually rant about how rationalism has nothing to do with Hayek’s thinking is just so strange.
    “I notice that you haven’t answered my question as to whether you’ve read Hayek.”
    Because it wouldn’t do any good. But as it seems important to you, yes, I have. While I’m certainly not an authority on the subject (far from it), I have a different interpretation than you. While I no doubt believe you’ve read more of him and read deeper into him than I have, I also don’t consider you an authority on the subject. So you telling me that rationality doesn’t comprise any aspect of Hayek’s work isn’t convincing to me. Especially when actual scholars on the subject say otherwise.
    [OK, you’ve read him. I’m puzzled by what you’ve managed to pull out, though. You are correct not to consider me an authority on him; I’ve read 3/4 of LLL -W]
    Me trying to outline what I feel are inconsistencies in Hayek’s thinking isn’t going to be convincing to you.
    So, I’ll stop there. My apologies for dragging you into a rather fruitless conversation.

  39. WC writes:”…It doesn’t mention “microfoundation” as far as I can tell,…”
    LOL! Sometimes you are a hoot.
    Microfoundations: In economics, the term microfoundations refers to the microeconomic analysis of the behavior of individual agents such as households or firms that underpins a macroeconomic theory

  40. Kevin O'Neill

    Here’s a thought experiment for you. (My last attempt, I promise!)
    Let’s say we could solve Hayek’s Knowledge Problem and a central planner had real time access to all relevant information, at all times. Information was no problem; the planner has every bit of information imaginable and the information is perfect. The planner is a regular person (no special powers).
    In this case, with no lack of information, do you think Hayek would think that the central planner could devise a proper social/market/legal system?
    Or would Hayek still object that the central planner is not a perfectly rational agent, vulnerable to biases, limits of human cognition, cultural normatives and short-sightedness and so, even with perfect information, would still fail to devise a proper social/market/legal system?
    In other words, is Hayek’s opposition to central planning *solely* due to a lack of information (as you continually assert) or does he *also* factor in that humans are, or can be, “irrational and fallible”?
    [“solely” is your word; I haven’t used it, and I don’t think H does. H, if I recall correctly, uses the lack of information as a *sufficient* reason to oppose central planning, regardless of any other conditions. As far as I know, he does not explore what would happen were perfect information to be available. He does also point out the impossibility of predicting all the consequences of our actions, which I think he also uses to argue against central planning. I’m still rather baffled why you’re so in favour of central planning -W]

  41. Kevin O'Neill

    WC wrote: ”…It doesn’t mention “microfoundation” as far as I can tell,…”
    Are you prepared now to admit the 3 paragraphs from Hayek that I cited were all about microfoundations? Or are the actions of individual agents somehow *not* microfoundations in your economics?
    [I’ve no idea why you want to introduce the terminology -W]

  42. Hank Roberts

    WC writes: [I’ve no idea why you want to introduce the terminology -W]
    Because it’s impossible to move forward if you can’t even agree on terms. The word ‘microfoundations’ wasn’t in use during Hayek’s day, but he spoke (as cited) about the decisions that individuals agents make. This is micro-economics as opposed to macro-economics.
    Now, I make a simple point that he spoke about microfoundations (in the cited paragraphs) and you claim he doesn’t mention ‘microfoundations’ in those paragraphs. Yet he spoke of the actions of individuals and individual firms which is precisely what ‘microfoundations’ is all about.
    Oh, and you were the one that said I was ‘wrong’ when it’s now obvious you didn’t even understand the word. So, let’s clear that up. Was Hayek talking about microfoundations in the paragraphs cited?

  43. Hank Roberts

    I believe you went off the rails with the assumption stated in the original post, here:
    > this has to be a cost-benefit problem.
    It’s stated as a public trust issue.
    You write it “has to be a cost-benefit problem” but I don’t think you will find that’s necessarily assumed true for public trust law issues.
    Read up on the Mono Lake lawsuit, op. cit., for where the current discussions began. Or most anything about endangered species or public health or toxic substances law.
    Cost-benefit was one ofhttps://lawreview.law.ucdavis.edu/issues/45/3/Topic/45-3_Gray.pdf
    “… four distinct (and potentially conflicting) public trust standards:
    protecting the public trust wherever feasible,
    protecting the public trust when consistent with the public interest,
    an informal cost-benefit analysis and balancing of interests, and
    the public trust as merely one factor for consideration in water planning and allocation decisions.”
    —-
    line breaks added to distinguish the four — hr
    For the earlier dark side, the early defenses of CFCs and PCBs, when the attempts were made to show it would cost too much to stop introducing them to ecosystems.
    [Ah, well, perhaps I mis-spoke: it *should* be a cost-benefit issue. fighting over which law is applicable will likely be part of the case. See, for example, the aforementioned case of Cars: those kill people, but everyone has come to agree that the law against killing doesn’t apply to the analysis: some deaths are accepted as a regrettable and predictable side effect. See-also the discussion of “discouraged” versus “forbidden” in http://scienceblogs.com/stoat/2011/06/06/carbon-tax-now-1/ -W]

  44. Brian Schmidt

    > cars
    You’re too young to recall industry arguments that putting seat belts in cars would cost too much for the expected benefit. Or for that matter putting collapsing sections into steering wheel shafts to reduce the number of crushed chests and impalements. Terribly expensive, the manufacturers figured. Now, taken for granted as sensible precautions to take against predictable damage.

  45. FWIW, I like that William is somewhat contrarian – there needs to be at least one honest and fact-based contrarian talking about this stuff, and so far one is all we have.
    Random comments:
    Injury-in-fact doesn’t have to be all that substantial, just something. That’s a good thing too so malefactors don’t get away with ripping people off a little bit at a time (or don’ get away with more than they already do anyway).
    Very similar lawsuit is proceeding in Netherlands. I believe it was the inspiration. So this isn’t just USAian.
    Children do have rights, and someone has to make the decisions on their behalf to protect their rights. Hansen can put himself forward, and the other side can dispute him and nominate someone else if they want.
    I agree that judicial resolution would be very messy. I think adequate political resolution would be much better. The fact that children can’t vote to protect their interests 90 years from now is part of the political process problem, though.

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