Guest Editorials--Global Warming Legal Theories, Guns And Church Security

From now until the election SP will feature guest editorials/rants on everything from politics to the environment to religion and everything else in between. Today there are two--First up, JD (who has blogged here before) tears apart a new radical environmental legal theory, and Meg offers her take on an article concerning security (read: guns) at Churches and argues for guiltless self-defense.

There is no censorship at SP, and though the view may from time to time depart from SP's "politics." This is excellent for two reasons--1) the only true "diversity" is a diversity of opinion guaranteed by the Constitution and the only method for providing a true forum for the exchange of ideas; 2) additional voices strengthen any blog. I welcome them both, and if you have responses or questions, leave them in the comments. I know they'll be appreciated.

JD--first read this:

University of Oregon law professor Mary Wood is tired of waiting for government officials to take action on global warming. So she’s devised a new legal tool to hurry them up.

...Wood has developed a theory that claims the atmosphere is an asset that belongs to all but is held in trust by the government. The government has a legal obligation to protect that trust from harm, she argues…

The legal response:

What utter nonsense. Even the news page at her own the law school’s web site seems to acknowledge that her theory will probably lead to frivolous and nuisance lawsuits; the only benefit might be pushing the Federal government to negotiate with environmentalists in order to discourage those lawsuits.

She has some severe problems with her theory, all of which she glosses over by claiming that, as an academic, she will leave actual litigation strategy to practicing attorneys. Of course she will. That is because there is no way to implement her strategy in actuality.

The Clean Air and Clean Water Acts are both federal statutes and have clearly articulated enforcement provisions upon which the courts can rely. They do indeed flow from the public trust doctrines in common law. However, they also go considerably further than the origins of the common law doctrine, which basically held that submerged and submersible land was to be held and preserved by the state for public use in navigation, fishing, and recreation.

If Congress wants to go beyond the common law and write another law to deal with global warming, it is certainly entitled to do so. At that point, the courts would gladly enforce it. Congress has not done this, though, which is why Prof. Wood is promoting her theory. Instead, she wants the courts to extend the common law doctrine themselves. This will not happen.

Courts are hesitant to extend the common law unless it clearly fits with extant legislation. While the courts may tell the EPA that it needs to look at carbon emissions as part of its mission as defined by statute, it will not tell the EPA what standards it needs to set. With that sort of hesitancy, the courts are not about to go so far beyond statute as to order the EPA to take up the fight against Global Warming. They would need clear legislative direction before they would ever do such a thing.

Prof. Wood is attempting to take all the environmental protection cases and laws and argue that, en mass, they provide a basis for viewing the global atmosphere and climate as a public trust. Sure, the air in Denver is a public trust as it clearly affects the health and well being of the people who live here. It is also clearly regulated by statute. The same cannot be said of the entire global atmosphere and climate. There are not clear laws regulating that here in the U.S. More to the point, the U.S. cannot legislate to the rest of the world. Without worldwide effort, any effort is largely pointless. Treaties and executive agreements, not court rulings, provide the only means of achieving worldwide action.

Let us ignore that fundamental problem for a moment, though. Let us assume that the U.S., by its own actions, could have a major impact on the world climate and atmosphere. A court would still want to know what that impact could be. The sad truth is that no one knows for certain. There are a lot of theories, but no absolutes, and the range of different models is severe. Also, before declaring the atmosphere and climate public U.S. trusts, courts must balance the uncertainly of any action against the negative impact on commerce and personal liberty such action would have. That we can measure with certainty, and it is enormous. The bigger the impact, the higher the standard the court will set before it rules. Can it be shown that there is an extremely important state interest at stake which cannot be protected by less restrictive means? I rather doubt it. Environmentalists would have to admit that we would be creating major economic upsets for extremely uncertain results. The opposition would then show that the earth has undergone numerous climate shifts over time, that it is unclear how much impact humans are having, and even more unclear as to whether we can do anything about it if we are a major factor. Faced with that, the courts would universally hold that this is a political issue which must be decided by the political branches.

No court is going to extend the common law without clear legislative instruction on such a thin pretext. No amount of creative argument will change that. No matter how many scientists are brought in, an equal number can be brought in by the opposition who either disagree or show different results—even while agreeing in principle. The courts won’t touch this. It is too big and too broad. Bring a case that says aerosols are destroying the ozone, and they may happily outlaw those particular aerosols. A certain type of fishing is driving sea turtles to extinction? Fine. Pick your venue; even the WTO adjudication body will help there. But global climate change? Too big, too broad, too political. In truth, I would call it a matter of faith, and the courts have done a very good job of maintaining the separation of church and state.

Julian Dunraven, J.D., M.P.A.

Our second editorials takes aim (sorry, couldn't help myself) at the issue of guns in Churches, a particularly important topic given the twin shootings at religious venues last December here in Colorado:

The Denver Post profiled a church security workshop that took place last Thursday in east Denver. Church representatives came to the workshop presumably to learn how to formulate plans to make their churches a little safer in the wake of madman Matthew Murray’s shooting spree at New Life Church in Colorado Springs.

Unfortunately, the Post’s article has the usual slant. The headline? “More churchgoers are carrying guns: Trend since shootings is risky, church leaders told”. There was no mention of Jeanne Assam, the woman whose bullets brought Murray down; she was again referred to as “a New Life security officer.” No mention of New Life’s senior pastor Brady Boyd’s praise of the security plan that had been implemented that Sunday. Assam had heard of the shootings in Arvada and suggested that the church increase security measures just in case. Boyd credited the security plan with saving dozens of lives. Instead, the article makes it sound as though New Life had sunk into total chaos during the Murray rampage, detailing how members retrieved their guns from cars or tried to wrest them from Murray, supposedly confusing police and making things “stressful.”

The response at the security workshop? Each church should come up with a “hazard plan,” including so-called surveillance for firearms. “It’s important to know who’s armed in your church,” according to Sgt. Gene Enley of the Littleton police. Add this to the statement by Bill Ray of the Trinity Springs Church in Elbert County: “We can [develop a hazard plan]… but we can’t have guns in our church.”

We can’t have guns in our church. It’s important to know who’s armed.

Same old anti-gun, fearful attitude, despite Assam’s blazing bravery and showcase of what concealed weapons can do to save lives. My questions… Who will maintain the list of church members who have concealed weapons permits (CCWs)? Who will have access to this list? Will there be judgments of certain members’ “qualifications” to carry a gun, despite the fact that all CCW holders in the state have to pass stringent requirements? What will happen to those who do not self-report, especially if there is a crisis?

Some more blunt questions: Does anyone care about CCW holders’ privacy… or safety, for that matter? What is the point of concealed weapons permits if someone else knows that you are carrying? These skittish church officials probably encounter dozens of people every day with a concealed firearm, and they have no reason to know that these folks are armed. Bottom line: my concealed weapon is no one’s business but mine. It’s bad enough that the state must pass judgment on me that I’m worthy to carry a concealed weapon. My church doesn’t need to get in on this game, too.

Meg

I am a member of the group that Grover Norquist calls the "Leave Us Alone Coalition." I dislike people who think that they know better than me how to run my life. I think that the government is way too involved in citizens' everyday life, and sadly some have come to depend on it. In a nutshell, I think the government should spend more time protecting rights and sticking to functions written into the Constitution, and less time on inventing rights and creating new functions of government. Colorado is better than most, but we could easily go the wrong way, especially with some of the leadership. You'll find my hands-off approach reflected in my writings, and I have even been known to stray from the "traditional" conservative path in doing so. I promise to try to keep things interesting for you when you hear from me. --In the interest of total disclosure, I work as an engineer for the government, in an area firmly written into the Constitution: national defense. Ahh, there, I said it, so don't try to blast me as some kind of hypocrite. After all, I serve YOU as a civil servant. Do note, however, that none of my comments necessarily represent the views of my agency, the DoD or the United States Government.

Global Warming--Command And Control Or Technological Approach?

Sen. James Inhofe lays out the economic stakes of a planned cap-and-trade scheme that would only exacerbate current economic downturns by crippling the American economy--and offers in its stead a free market, technology approach that would likely prove immensely more successful in its state goal of cleaning the environment while also keeping the economy strong:

The United States Senate will soon begin to debate a global warming cap-and-trade bill that, if passed, would impose severe economic constraints on American families and American workers for no environmental gain. We have had this debate before, starting with the rejection of the Kyoto Protocol in 1998, then again in 2003, and again in 2005. Each time, these cap-and-trade measures were defeated for two simple reasons: they did not include developing nations; and because of the significant economic impact on the American public. With the American economy facing troubles, now is certainly not the time to try this costly experiment.

What proponents of this bill fail to understand is that the American environmental success story has been built while growing our economy. Over the past three decades, Americans have proven that we can clean up our environment while expanding our population and vibrantly growing our economy. Democrats and their special interest allies have consistently taken the opposite approach and emphasized job-killing regulations and expanding the government’s power. The U.S. can follow a path of onerous government mandates or we can follow a path of developing and encouraging new technologies. A simple history lesson reveals that the technological approach is the only viable path forward as carbon cap-and-trade mandates are proving to be a failure throughout the developed world.
. . .
The Lieberman-Warner command and control path utterly fails in comparison to an approach that embraces and develops new technologies. A technology emphasis is the only politically and economically sustainable path forward. I have long advocated a technology approach that brings in the developing world nations such as China and India. My home state of Oklahoma demonstrates that tomorrow’s energy mix must include more natural gas, wind and geothermal, but it must also include oil, coal, and nuclear energy, which is the world's largest source of emission-free energy. This approach serves multiple purposes – it will reduce air pollution, expand our energy supply, increase trade, and, along with these other goals, reduce greenhouse gases. Developing and expanding domestic energy will translate into energy security and ensure stable sources of supply and well-paying jobs for Americans.

Will the United States Senate choose the economically harmful Lieberman-Warner bill or the new technology path? With five weeks to go until the debate, the question is largely up to you. If you believe, like I do that we must not impose more costly mandates on the American people, I urge you to engage in the debate and contact your Senator and make your voice heard.

Recent News Indicates Global Cooling Currently Under Way

From the fellows over at the EPW blog, "A sampling of recent articles detailing the inconvenient reality of temperature trends around the planet."

An additional roundup of the global cooling/climate change.

Capitalism's PR Problem

The best argument for capitalism is socialism, but it suffers a bit of a PR problem (via Tim Blair):

The problem for those of us who believe that capitalism offers the best chance we have for leading meaningful and worthwhile lives is that in this debate, the devil has always had the best tunes to play. Capitalism lacks romantic appeal. It does not set the pulse racing in the way that opposing ideologies like socialism, fascism, or environmentalism can. It does not stir the blood, for it identifies no dragons to slay. It offers no grand vision for the future, for in an open market system the future is shaped not by the imposition of utopian blueprints, but by billions of individuals pursuing their own preferences. Capitalism can justifiably boast that it is excellent at delivering the goods, but this fails to impress in countries like Australia that have come to take affluence for granted.

It is quite the opposite with socialism. Where capitalism delivers but cannot inspire, socialism inspires despite never having delivered. Socialism’s history is littered with repeated failures and with human misery on a massive scale, yet it still attracts smiles rather than curses from people who never had to live under it. Affluent young Australians who would never dream of patronising an Adolf Hitler bierkeller decked out in swastikas are nevertheless happy to hang out in the Lenin Bar at Sydney’s Circular Quay, sipping chilled vodka cocktails under hammer and sickle flags, indifferent to the twenty million victims of the Soviet regime. Chic westerners are still sporting Che Guevara t-shirts, forty years after the man’s death, and flocking to the cinema to see him on a motor bike, apparently oblivious to their handsome hero’s legacy of firing squads and labour camps.

And today's most self-righteous have flocked to the next-generation socialist ideology:

Environmentalism, too, has the happy knack of inspiring the young and firing the imagination of idealists. This is because the radical green movement shares many features with old-style revolutionary socialism. Both are oppositional, defining themselves as alternatives to the existing capitalist system. Both are moralistic, seeking to purify humanity of its tawdry materialism and selfishness, and appealing to our ‘higher instincts.’ Both are apocalyptic, claiming to be able to read the future and warning, like Old Testament prophets, of looming catastrophe if we do not change our ways. And both are utopian, holding out the promise of redemption through a new social order based on a more enlightened humanity. All of this is irresistibly appealing to romantics.

Both socialism and environmentalism also share an unshakeable belief in their own infallibility, which further ramps up their attractiveness. Both dismiss their opponents as either ignorant (‘falsely conscious’) or in bad faith, and they are both reluctant to allow counter-arguments, evidence, or logic to deflect them from the urgent pursuit of their proffered solutions. Although they both ground their claims in ‘science,’ their appeal is as much emotional as rational, and both take themselves so seriously that they lose any sense of irony. Rockstars fly around the world in private jets to perform at sellout stadium concerts demanding action on global warming, and indignant youths coordinate anti-globalisation protests using global communication networks.

And the intellectuals that harp on the benefits of socialism?

But the best explanation for the intellectuals’ distaste for capitalism was offered by Friedrich Hayek in The Fatal Conceit. Hayek understood that capitalism offends intellectual pride, while socialism flatters it. Humans like to believe they can design better systems than those that tradition or evolution have bequeathed. We distrust evolved systems, like markets, which seem to work without intelligent direction according to laws and dynamics that no one fully understands.

Nobody planned the global capitalist system, nobody runs it, and nobody really comprehends it. This particularly offends intellectuals, for capitalism renders them redundant. It gets on perfectly well without them. It does not need them to make it run, to coordinate it, or to redesign it. The intellectual critics of capitalism believe they know what is good for us, but millions of people interacting in the marketplace keep rebuffing them. This, ultimately, is why they believe capitalism is ‘bad for the soul’: it fulfils human needs without first seeking their moral approval.