From: Rachel's Democracy & Health News #905, May. 03, 2007
HOW DOLPHINS GOT THE BENEFIT OF THE DOUBT AND WHY IT MATTERS
By Joseph H. Guth
[Joseph H. Guth is Legal Director of the Science and Environmental Health Network.]
The "burden of proof" is a central idea in the law -- it can determine whether the law protects public health and the environment, or whether it has the opposite effect. Getting the "burden of proof" right is crucial, as we'll see in the case of dolphin-safe tuna.
For environmentalists, shifting the burden of proof is a key element in a precautionary approach to environmental law. In chemicals policy, for example, chemicals as currently assumed safe until the government can prove they are harmful. The burden of proof is on the government. Environmentalists urge that the burden of proof should be shifted onto industry to prove chemicals are safe rather than on government to prove they are harmful.
Why is this so important? How can just a few words determine whether a law will effectively protect the environment and human health? Let's take a look at a recent case.
An April 27, 2007 case from the Ninth Circuit Court of Appeals shows how simple and yet profound this issue is. It demonstrates what the burden of proof is and how the outcome of a dispute can turn solely on which party bears that burden. It also shows how the fundamental interests protected by a law are defined by the structure of the burden of proof.
Earth Island Institute v. Gutierrez involves the killing of dolphins by tuna fishers. One way to catch tuna, it turns out, is to herd pods of dolphins in the open ocean over large "purse-seine" nets that are suspended deep in the water. Schools of tuna follow the dolphins into the center of the nets, which are then closed up like a purse capturing everything inside. The toll on dolphins is heartbreaking: the socially-organized pods are disrupted when they are herded with explosives, boats and helicopters, and at least six million dolphins have been killed by tuna fishers since 1959. Populations of three kinds of dolphins in the "Eastern Tropical Pacific Ocean" have been depleted to below their "optimal sustainable population," and they are not recovering.
For purposes of this case, the history of Congressional efforts to protect dolphins from tuna fishing is very simple. In 1990, Congress passed the Dolphin Protection Consumer Information Act, which barred tuna from being labeled "dolphin-safe" if the tuna were caught using purse-seine nets to encircle pods of dolphins. American consumers generally refused to buy tuna without the dolphin-safe label, with a devastating commercial effect on U.S., Mexican and South American tuna fishers who could not use the label because they fished with purse- seine nets. On behalf of industry, the United States government asked Congress to weaken the 1990 law and allow the dolphin-safe label even if tuna was caught by herding dolphins into purse-seine nets, as long as this was done in such a way that no dolphins were be observed to be killed or injured.
Congress was skeptical that this was possible. Accordingly, in 1997 Congress amended the dolphin protection laws to permit the dolphin- safe label for tuna caught by herding dolphins into purse-seine nets, but only if the Secretary of Commerce first performed three specified studies and then concluded that tuna fishing with purse-seine nets "is not having a significant adverse impact on any depleted dolphin stock in the Eastern Tropical Pacific Ocean."
Thus, the structure of the core legal test of the 1997 law is this: it presumes that fishing for tuna with purse-seine nets has an adverse impact on depleted dolphin stocks, and it requires the Secretary of Commerce to prove otherwise before the labeling standard can be changed. The default state that this law protects is the sale of tuna without a claim that it is dolphin-safe if purse-seine nets are used to catch it. If the government wants to change this default state, and allow tuna to be labeled dolphin-safe even if it is caught with purse- seine nets, the government must prove that this can be done without "having a significant adverse impact on any depleted dolphin stock." Under this law, then, the government bears the burden of proof to show that tuna fishing with purse-seine nets causes no significant adverse impact on a depleted dolphin stock.
After the 1997 law was passed, there followed a long and dispiriting history of failure by the Secretary of Commerce to perform the studies mandated by Congress, political meddling in the work of scientists, and government decision-making blatantly contrary to its own scientific findings. The Secretary of Commerce eventually concluded that the continuing purse-seine net tuna fishing was not causing a significant adverse impact on dolphin stocks and that the labeling standards should be changed. The Earth Island Institute sued to overturn that decision.
In its April 27, 2007 opinion, written by Chief Circuit Judge Mary M. Schroeder, the court first found that the Secretary of Commerce conducted only poor studies that did not constitute the studies required by Congress, and voided his conclusion on that ground. The Secretary of Commerce nevertheless made two additional arguments. First, he argued that the available evidence, taken as a whole, supported his conclusion. But the Ninth Circuit disagreed, and held that the Secretary's conclusion was not supported by the final report of the government's own scientists, who plainly concluded that they did not have enough data to determine whether or not the continuing purse-seine net tuna fishing is still adversely affecting the depleted dolphin stocks.
This led to the Secretary's final argument: that the Secretary could make the change in the dolphin-safe labeling requirement anyway. But the Court enforced the burden of proof imposed on the Secretary by the law:
"The Secretary then points to the inconclusive nature of all the agency's studies and claims that the absence of evidence allows him to make a change in dolphin-safe labeling requirements. [But] there is no basis on which to change the status quo if all of the evidence is inconclusive."
Thus, the record showed that the evidence as a whole was inconclusive, and because of this the Secretary could not meet his burden of proof to change the law's default state, which the court called the status quo. The power of this status quo stands revealed: it cannot be changed in cases of doubt or inconclusive evidence. The party bearing the burden of proof cannot prevail if it fails to produce adequate evidence to show that the default state should be changed. Absent or inconclusive evidence defeats the party bearing the burden of proof, and the law's default state is maintained.
The exact same factual record would have led to the opposite result if the 1997 law had allocated the burden of proof differently. For example, if the law had been designed more like most current American environmental laws, it would have allowed the dolphin-safe label for tuna caught using purse-seine nets unless the government showed the fishing caused a significant adverse effect on a dolphin stock. This structure would have put the burden of proof on government to show the existence of a significant adverse effect rather than the absence of one. Because the evidence was inconclusive, however, the government would not have been able to meet that burden either. But the default state protected by the law would have been totally different: this time tuna could be labeled "dolphin-safe" even though it was caught with purse-seine nets and even if dolphin stocks were in reality being significantly adversely affected. The interest protected by the law would have been the fishing industry instead of dolphins.
Thus, the structure of the burden of proof (i.e., who bears the burden of proof and what that person must show) defines a preferred default state that the law will maintain in all cases of inconclusive or insufficient evidence. This preferred default state reflects the fundamental interests that the law is designed to protect. In designing our laws, we are free to define this preferred default state however we wish, in accord with the kind of world we want to have. If we want them to, our laws can be designed so that the default state they protect is a healthy environment.
These principles can be widely applied to virtually any environmental or health issue. For example, a signature accomplishment of the new European chemicals law, REACH, is that it places the burden of proof on industry to seek authorization to market some highly dangerous chemicals. In the United States, Senator Lautenberg's "Kid Safe Chemicals Act of 2005 (S.1391)" would place the burden on industry to prove a chemical presents a "reasonable certainty of no harm" in order to market it. This would represent a dramatic change from our current law, the Toxic Substance Control Act, which places the burden on the Environmental Protection Agency (EPA) to prove that a chemical presents an unreasonable risk before EPA can impose regulations.
The default state that these laws (REACH and Lautenberg) are trying to establish and protect is one in which a chemical is not introduced into commerce without being tested and shown to be safe with respect to available data.
Establishing this default state is accomplished by placing the burden on industry, as a condition for placing a product on the market, to produce safety and use information, to prove their products are safe with respect to that information and perhaps to show that there are no safer alternatives. Under a law having such a structure, when there are data gaps and inconclusive studies, the law would retain the default state of not allowing the chemical on the market. Cases of doubt would be resolved against industrial proponents of the chemical, rather than, as they are now under our current law, against those seeking to regulate chemicals.
Earth Island Institute v. Gutierrez shows us many things about the power of the American legal system. It shows that our system is capable of forcing those seeking greater industrial activity to carry a burden of proof to provide evidence that their activities are safe.
Our system is capable of enforcing a requirement to generate specified data, of overturning a government decision that is contrary to the evidence in view of the burden of proof, and of refusing to change the law's default state if the evidence is inconclusive. American judges are capable of doing all this even when it means confronting the power of the federal government and a substantial national and international industry. They are capable of doing all this on behalf of a non-human species that lives in the ocean and is of little economic value to us.
This case encourages those who believe in the rule of law, believe that laws can be crafted that will implement precautionary approaches to protecting human health and the environment, and believe that such laws can be enforced even against a recalcitrant federal government.
Just one caveat remains -- Earth Island Institute v. Gutierrez may yet be appealed to the U.S. Supreme Court.
 Earth Island Institute v. Gutierrez, Case No. 04-17018; D.C. No. CV-03-00007-The Opinion (April 27, 2007)(9th Circuit), available at:
 The subsequent discussion of the facts and law is taken entirely from the Opinion in Earth Island Institute v. Gutierrez. Many additional details can be found in the Opinion.
 Earth Island Institute v. Gutierrez, Case No. 04-17018; D.C. No. CV-03-00007-The Opinion (April 27, 2007)(9th Circuit) at 4619-22.
 Earth Island Institute v. Gutierrez, Case No. 04-17018; D.C. No. CV-03-00007-The Opinion (April 27, 2007)(9th Circuit) at 4622-27.
 Earth Island Institute v. Gutierrez, Case No. 04-17018; D.C. No. CV-03-00007-The Opinion (April 27, 2007)(9th Circuit) at 4626.
 "REACH" is a European Union regulation entitled "Registration, Evaluation and Authorization of Chemicals."
 The "Kid Safe Chemicals Act of 2005" (S.1391).
 The various elements of a core legal test in a chemicals law, including the burden of proof, are analyzed in detail in Joseph H. Guth, "The Core Legal Test in a Chemicals Law," Rachel's Democracy and Health News # 892 (February 1, 2007).
TAKING THE 'FUND' OUT OF SUPERFUND
By Kate Sheppard
A drop-off in both government action and funding has all but stopped the push to clean up America's most toxic sites, posing health and environmental threats all over the country, according to a comprehensive series of reports released last week by the Center for Public Integrity.
Under the Bush administration, the amount of money budgeted to clean up these sites has plummeted and cleanup has stagnated, while the list of sites that need environmental remediation continues to grow.
The detailed report chronicles the government's failure to clean up our country's most toxic sites, and includes a leaked list of the most contaminated sites, an index of the companies linked to the most dangerous sites, and mapping tools that indicate the 1,623 Superfund sites around the country. It also highlights some of the slick tactics, hobnobbing, and back-scratching that helped bring Superfund to this point.
It's been 27 years since the federal government launched Superfund, a multi-billion dollar project to clean up more than 1,000 toxic sites around the country in the wake of the Love Canal saga. In the beginning, the program was funded by a tax on polluters that fed into a pool of money used to pay for the cleanup of other sites where the sources of the pollution were unknown or the polluter couldn't take care of the problem.
That tax law expired in 1995 under a Republican-controlled Congress, and by 2003 the $3.8 billion that had accumulated in the fund was pretty much exhausted. Since then, taxpayer money and cash recovered from polluters has powered the program. But the total amount in the Superfund budget has not kept up with inflation. According to the report, the program received $1.43 billion in appropriations in 1995, but 12 years later, it received $1.25 billion. Adjusted for inflation, funding has declined by 35 percent.
The EPA inspector general, the Government Accountability Office, and Congress have all issued reports on the Superfund collapse, but EPA officials in the Bush administration have done little to support the program. The top-ranking Superfund official, Susan Bodine, has a record of defunding the program she was appointed to head. In 1999, she helped author a bill that would have decreased the Superfund budget by $300 million (it failed), and just a month after her confirmation Bodine supported a $7 million decrease to the cleanup budget. She later stood beside the Bush administration's budget request for 2008, which reduces the budget by another $7 million.
Collection from companies deemed responsible at specific sites has also dropped off significantly. The amount coming in peaked in 1998 and 1999 at about $320 million each year. In 2004 that amount dropped below $100 million, and in 2005 and 2006 the EPA collected just $60 million each year.
The EPA ranks sites, but usually does not disclose the ranking, claiming it doesn't want polluters to know which sites are a priority and which aren't. But according to the report, some EPA insiders say the secrecy is intended to avoid provoking the public into demanding a solution from Congress.
"Basically, the leash has been let off of these corporations and at the end of the day, they are paying less money to clean up the sites, and taking less action themselves to clean up the sites. And the public bears the brunt of that," said Alex Knott, political editor at CPI and project manger on the Superfund report.
The squeeze on funding has forced the remaining sites to compete for money left over from previous cleanups. The less worrisome -- albeit still toxic -- sites have fallen off the priorities list, leaving millions of Americans at risk of exposure through air, soil, and groundwater.
"It is like having four sick kids at a table, and you only have one aspirin," Lois Gibbs, the housewife-turned-activist in Love Canal known as the "Mother of Superfund," told CPI. "You can't decide which one to give it to even though they all need assistance, and, like a Superfund site, those illnesses are going to get worse and those medical costs are going to get higher the longer it takes you to address the problem."
The last few years have also seen a slowdown in the number of sites added to the list -- down to 17 per year from 25 between 1995 and 2000 -- and longer cleanup times.
"I want the American public to understand what's really at stake," says Knott. "It's not just about some '60s dream of everybody becoming sensible about the environment. It's about health. You know, we're living at a time where over the last couple of decades, Americans have become more and more conscious about the things that affect their health. But they're not aware that one in five of them is living near a Superfund site where the contaminants that can affect their water and the air they breathe is not under control."
See the full report at CPI.
GREATER THAN 100% REDUCTION IN GREENHOUSE GASES
By Don Fitz
The military is the only sector of the economy where emissions of greenhouse gases (GHG) can be reduced by greater than 100%. This is because militarism is the only type of activity whose primary purpose is destruction.
When a road is bombed in Serbia, energy is used to rebuild it. Energy usage translates to the emission of GHG, primarily carbon dioxide (CO2). When a home is leveled in Afghanistan, reconstruction requires energy. Every hospital brought down and every person maimed in Iraq means CO2 emissions during the treatment of patients and construction of new treatment facilities.
Military production is unique. If it were halted, GHG emissions would be reduced by (a) GHG from fixing up what's in the path of military attacks, in addition to (b) GHG produced during its regular activities of building bases, using weapons and transporting troops and equipment.
Regular economic activity of the military is not exactly small.
According to the February 2007 Energy Bulletin, the Pentagon is the single largest consumer of oil in the world. Only 35 countries consume more oil. Yet, the official figure of 320,000 barrels of oil per day used only includes vehicle transport and facility maintenance.
That figure does not include energy for manufacture of vehicles, energy for building and dismantling military facilities, energy for construction of roads, and energy consumed while rebuilding whatever the military blows up. Nor does it factor in energy required by the military's partners, NASA and the nuclear industry. Additionally, whenever war or construction razes trees, it eliminates their ability to remove CO2 from the atmosphere.
Though the official figure for the [annual] military budget is $623 billion, the War Resistors League calculates total military-related spending at $1,118 billion by including NASA, Department of Energy nukes, vet benefits and interest on past military debts. Another $110 billion should be tacked on for extra spending on the war in Iraq.
The most recent figure for the gross domestic product is $13,246.6 billion. Putting these together leads to an estimate that just under a tenth of the US economy is military-related spending:
(($1,188B + $110B) / $13,246.6B) * 100 = 9.80%
Military spending is like a cancer which has metastasized throughout the body politic, with every congressional district demanding its place at the trough. According to Steve Martinot, "The military is now connected and conjoined to roughly 50% of all economic activity in the US."
This domination of industrial activity by the military is often referred to as the "permanent war economy." There is an even more insidious meaning to the phrase. That is the need of the military to have ever shorter periods of time between wars. The only way to have a true test of a weapon is to use it against people.
Millennia ago, it could have been decades or centuries before new weapons were tried out in war. Now, computerized weapons come out as fast as new generations of computers and the only way to make sure they function as designed is to use them in battle conditions.
With the military responsible for a large and increasing contribution to greenhouse gases, shouldn't it be front and center for efforts to reduce global warming? It is not.
Lester Brown's Plan B was so popular when it came out in 2003 that he wrote Plan B 2.0 in 2006. It is an outstanding combination of how peak oil, global warming and environmental catastrophes require building a new economy. But when he writes that, "Each year the world's taxpayers provide an estimated $700 billion of subsidies for environmentally destructive activities," military actions are absent from the activities he describes. His section on "A Wartime Mobilization" only mentions war as an analogy to illustrate the fervor which needs to be devoted to saving the planet.
Two contrasting prescriptions for global warming which came out in early 2007 are a report by the American Solar Energy Society and George Monbiot's Heat. The ASES document is a conservative, mainstream approach to reducing CO2 emissions in the US by energy efficiency and renewable energy. Monbiot's book proposes radical changes in areas such as home heating, appliances, transportation and retail stores that he says would reduce CO2 in the UK by 90%.
The word "military" does not appear in the index of either work. The ASES report has no discussion of how much global warming can be fought by addressing the military sector and Monbiot only mentions it to acknowledge that it is a hole in his analysis.
The one area of the economy where a greater than 100% reduction in greenhouse gases is possible is the area least likely to be discussed in connection with global warming. Something is very wrong when people devote enormous attention to technologies like liquefied hydrogen, plug-in electric cars and tidal energy which could hypothetically help reduce CO2 at some point in the future while they ignore what we know is having a huge effect right now.
Katrina dramatized the military-oil-climate change connection.
Excessive oil use in the overdeveloped countries fueled the warming of waters in the Gulf of Mexico, which intensified Katrina. When the hurricane hit New Orleans, the local National Guard was unavailable to help. Why? Because it was off in Iraq making sure that US corporations would control the world oil supply, with the consequence of further global warming, more violent hurricanes, and the flooding of more coastal cities.
The more Katrinas there are, the closer we get to the "tipping point" of global warming becoming self-perpetuating and increasing even if all industrial activity were to stop. Ecosystems would begin to release more CO2 than they absorb, which would further increase world temperature and cause plants to release more CO2. As glacier ice melts, deeper water absorbs more sunlight and similarly increases warming on its own.
We cannot afford to ignore the contributions of an entire economic sector to global warming simply because so much corporate profit depends on it. Silence implies that military-caused GHG deserve no special attention over and above the technological fixes that are being proposed for other areas of the economy.
The world does not need a global warming strategy which features tanks charged by wind power or Israelis using solar-powered bulldozers for leveling Palestinian homes. Given the oil used by the military, its interconnections with other economic sectors, and its increasing permanence, no proposal for reducing GHG should be taken seriously if it does not include a massive restructuring of war industry into a peacetime economy.
Don Fitz is editor of Synthesis/Regeneration: A Magazine of Green Social Thought, which is sent to members of The Greens/Green Party USA. Sources for this article can be obtained from him at email@example.com
THE CORPORATE CLIMATE COUP
By David Noble
Don't breathe. There's a total war on against CO2 emissions, and you are releasing CO2 with every breath. The multi-media campaign against global warming now saturating our senses, which insists that an increasing CO2 component of greenhouse gases is the enemy, takes no prisoners: you are either with us or you are with the"deniers." No one can question the new orthodoxy or dare risk the sin of emission. If Bill Clinton were running for president today he would swear he didn't exhale.
How did we get here? How did such an arcane subject only yesterday of interest merely to a handful of scientific specialists so suddenly come to dominate our discourse? How did scientific speculation so swiftly erupt into ubiquitous intimations of apocalypse? These are not hypothetical questions but historical questions, and they have answers. Such events as these do not just happen; they are made to happen. On the whole our ideas tend not to be our own ideas: rarely do we come up with them ourselves but rather imbibe them from the world around us. This is especially obvious when our ideas turn out to be the same as nearly everyone else's, even people we've never met or communicated with. Where did this idea about the urgent crisis of global warming and CO2 emissions come from and get into our heads, given that so few of us have ever read, or even tried to read, a single scientific paper about greenhouse gases? Answering such a question is not as difficult as it might seem, for the simple reason that it takes a great amount of reach and resources to place so alien an idea in so many minds simultaneously so quickly, and the only possessors of such capacity and means are the government and the corporations, together with their multimedia machinery. To effect such a significant shift in attention, perception, and belief requires a substantial, and hence visible and demonstrable, effort.
Until quite recently most people were either unaware of or confused and relatively unconcerned about this issue, despite a growing consensus among scientists and environmentelists about the possible dangers of climate change. Global warming activists, such as Al Gore, were quick to place the blame for that popular ignorance, confusion, and lack of concern on a well-financed corporate propaganda campaign by oil and gas companies and their front organizations, political cronies, advertising and public relations agencies, and media minions, which lulled people into complacency by sowing doubt and skepticism about worrisome scientific claims. And, of course, they were right; there was such a corporate campaign, which has by now been amply documented. What global warming activists conveniently failed to point out, however, is that their own, alarmist, message has been drummed into our minds by the very same means, albeit by different corporate hands. This campaign, which might well prove the far more significant, has heretofore received scant notice.
Over the last decade and a half we have been subjected to two competing corporate campaigns, echoing different time-honored corporate strategies and reflecting a split within elite circles. The issue of climate change has been framed from both sides of this elite divide, giving the appearance that there are only these two sides. The first campaign, which took shape in the late 1980's as part of the triumphalist "globalization" offensive, sought to confront speculation about climate change head-on by denying, doubting, deriding, and dismissing distressing scientific claims which might put a damper on enthusiasm for expansive capitalist enterprise. It was modelled after and to some extent built upon the earlier campaign by the tobacco industry to sow skepticism about mounting evidence of the deleterious health-effects of smoking. In the wake of this "negative" propaganda effort, any and all critics of climate change and global warming have been immediately identified with this side of the debate.
The second positive campaign, which emerged a decade later, in the wake of Kyoto and at the height of the anti-globalization movement, sought to get out ahead of the environmental issue by affirming it only to hijack it and turn it to corporate advantage. Modelled on a century of corporate liberal cooptation of popular reform movements and regulatory regimes, it aimed to appropriate the issue in order to moderate its political implications, thereby rendering it compatible with corporate economic, geopolitical, and ideological interests. The corporate climate campaign thus emphasized the primacy of amarket- based solutions while insisting upon uniformity and predictability in mandated rules and regulations. At the same time it hyped the global climate issue into an obsession, a totalistic preoccupation with which to divert attention from the radical challenges of the global justice movement. In the wake of this campaign, any and all opponents of the "deniers" have been identified -- -- and, most importantly, have wittingly or unwittingly identified themselves e with the corporate climate crusaders.
The first campaign, dominant throughout the 1990's, suffered somewhat from exposure and became relatively moribund early in the Bush II era, albeit without losing influence within the White House (and the Prime Minister's Office). The second, having contributed to the diffusion of a radical movement, has succeeded in generating the current hysteria about global warming, now safely channeled into corporate-friendly agendas at the expense of any serious confrontations with corporate power. Its media success has aroused the electorate and compelled even die-hard deniers to disingenuously cultivate a greener image.
Meanwhile, and most important, the two opposing campaigns have together effectively obliterated any space for rejecting them both.
In the late 1980's the world's most powerful corporations launched their "globalization" revolution, incessantly invoking the inevitable beneficence of free trade and, in the process, relegating environmental issues to the margins and reducing the environmentalist movement to rearguard actions. Interest in climate change nevertheless continued to grow. In 1988, climate scientists and policymakers established the Intergovernmental Panel on Climate Change (IPPC) to keep abreast of the matter and issue periodic reports. At a meeting in Toronto three hundred scientists and policy-makers from forty-eight countries issued a call for action on the reduction of CO2 emissions.
The following year fifty oil, gas, coal, and automobile and chemical manufacturing companies and their trade associations formed the Global Change Coalition (GCC), with the help of public relations giant Burson-Marsteller. Its stated purpose was to sow doubt about scientific claims and forestall political efforts to reduce greenhouse-gas emissions. The GCC gave millions of dollars In political contributions and in support of a public relations campaign warning that misguided efforts to reduce greenhouse-gas emissions through restrictions on the burning of fossil fuels would undermine the promise of globalization and cause economic ruin. GCC efforts effectively put the climate change issue on hold.
Meanwhile, following an indigenous uprising in Chiapas in January, 1994, set for the first day of the implementation of the North American Free Trade Agreement, the anti-globalization movement erupted in world-wide protest against market capitalism and corporate depredation, including the despoiling of the environment. Within five years the movement had grown in cohesion, numbers, momentum and militancy and coalesced in designated "global days of action" around the world, particularly in direct actions at G8 summits and meetings of the World Bank, the International Monetary Fund and the new World Trade Organization, reaching its peak in shutting down the WTO meetings in Seattle in November, 1999. The movement, which consisted of a wide range of diverse grass-roots organizations united in opposition to the global "corporate agenda," shook the elite globalization campaign to its roots. It was in this charged context that the signatories of the UN Framework Convention on Climate Change, which had been formulated by representatives from 155 nations at the Rio Earth Summit in 1992, met at the end of 1997 In Kyoto and established the so-called Kyoto Protocol to reduce greenhouse gas emissions through carbon targets and trading. The Kyoto treaty, belatedly ratified only in late 2004, was the sole international agreement on climate change and immediately became the bellwether of political debate about global warming.
Corporate opposition anticipated Kyoto. In the summer of 1997 the U.S.
Senate passed a unanimous resolution demanding that any such treaty must include the participation end compliance of developing countries, particularly emerging economic powers like China, India, and Brazil, which were nevertheless excluded in the first round of the Kyoto Protocol. Corporate opponents of Kyoto in the GCC, with the swelling global justice movement as a back-drop, condemned the treaty as a "socialist" or "third-world" plot against the developed countries of the West.
The convergence of the global justice movement and Kyoto, however, prompted some of the elite to rethink and regroup, which created a split in corporate ranks regarding the issue of climate change.
Defections from the GCC began in 1997 and within three years had come to include such major players as Dupont, BP, Shell, Ford, Daimler- Chrysler, and Texaco. Among the last GCC hold-outs were Exxon, Mobil, Chevron, and General Motors. (In 2000, the GCC finally went out of business but other like-minded corporate front organizations were created to carry on the "negative" campaign, which continues.)
Those who split off from the GCC quickly coalesced in new organizations. Among the first of these was the Pew Center for Global Climate Change, funded by the philanthropic offering of the Sun Oil/Sunoco fortune. The board of the new Center was chaired by Theodore Roosevelt IV, great grandson of the Progressive Era president (and conservation icon) and managing director of the Lehman Brothers investment banking firm. Joining him on the board were the managing director of the Castle-Harlan investment firm and the former CEO of Northeast Utilities, as well as veteran corporate lawyer Frank E. Loy, who had been the Clinton administration's chief negotiator on trade and climate change.
At its inception the Pew Center established the Business Environmental Leadership Council, chaired by Loy. Early council members included Sunoco, Dupont, Duke Energy, BP, Royal Dutch/Shell, Ontario Power Generation, DTE (Detroit Edison), and Alcan. Marking their distance from the GCC, the Council declared "we accept the views of most scientists that enough is known about the science and environmental impacts of climate change for us to take actions to address the consequences;" "Businesses can and should take concrete steps now in the U.S. and abroad to assess opportunities for emission reductions... and invest in new, more efficient products, practices, and technologies." The Council emphasized that climate change should be dealt with through "market-based mechanisms" and by adopting "reasonable policies," and expressed the belief "that companies taking early action on climate strategies and policy will gain sustained competitive advantage over their peers."
Early in 2000, "world business leaders" convening at the World Economic Forum in Davos, Switzerland declared that "climate change is the greatest threat facing the world." That fall, many of the same players, including Dupont, BP, Shell, Suncor, Alcan, and Ontario Power Generation, as well as the French aluminum manufacturer Pechiney, joined forces with the U.S. advocacy group Environmental Defense to form the Partnership for Climate Action (PCA). Like-minded Environmental Defense directors included the Pew Center's Frank Loy and principals from the Carlyle Group, Berkshire Partners, and Morgan Stanley and the CEO of Carbon Investments. Echoing the Pew Center mission, and barely a year after the "Battle of Seattle" had shut down the World Trade Organization in opposition to the corporate globalization regime, the new organization reaffirmed its belief in the beneficence of market capitalism. "The primary purpose of the Partnership is to champion market-based mechanisms as a means of achieving early and credible action on reducing greenhouse gas emissions that is efficient and cost-effective. Throughout its initial announcement this message was repeated like a mantra: athe benefits of market mechanisms," "market- oriented rules," "market- based programs can provide the means to simultaneously achieve both environmental protection and economic development goals," "the power of market mechanisms to contribute to climate change solutions." In the spring of 2002, the Partnership's first report proudly stated that the companies of the PCA are in the vanguard of the new field of greenhouse gas management. "The PCA is not only achieving real reductions in global warming emissions," the report noted, "but also providing a body of practical experience, demonstrating how to reduce pollution while continuing to profit."
This potential for profit-making from climate change gained the avid attention of investment bankers, some of whom were central participants in the PCA through their connections with the boards of the Pew Center and Environmental Defense. Goldman Sachs became the leader of the pack; with its ownership of power plants through Cogentrix and clients like BP and Shell, the Wall Street firm was most attuned to the opportunities. In 2004 the company began to explore the "market-making" possibilities and the following year established its Center for Environmental Markets, with the announcement that "Goldman Sachs will aggressively seek market-making and investment opportunities in environmental markets." The firm indicated that the Center would engage in research to develop public policy options for establishing markets around climate change, including the design and promotion of regulatory solutions for reducing greenhouse gas emissions. The firm also indicated that Goldman Sachs would atake the lead in identifying investment opportunities in renewable energy;" that year the investment banking firm acquired Horizon Wind Energy, invested in photovoltaics with Sun Edison, arranged financing for Northeast Biofuels, and purchased a stake in Iogen Corporation, which pioneered the conversion of straw, corn stalks, and switchgrass into ethanol. The company also dedicated itself "to act as a market maker in emissions trading of CO2 (and S02) as well as in such areas as "weather derivatives," "renewable energy credits," and other "climate- related commodities." "We believe," Goldman Sachs proclaimed, "that the management of risks and opportunities arising from climate change and its regulation will be particularly significant and will garner increasing attention from capital market participants."
Among those capital market participants was former U.S. Vice President Al Gore. Gore had a long-standing interest in environmental issues and had represented the U.S. in Kyoto. He also had equally long-standing family ties with the energy industry through his father's friendship with Armand Hammer and his financial interest in Hammer's company Occidental Petroleum, which the son inherited. In 2004, as Goldman Sachs was gearing up its climate-change market-making initiatives in quest of green profits, Gore teamed up with Goldman Sachs executives David Blood, Peter Harris, and Mark Ferguson to establish the London- based environment investment firm Generation Investment Management (GIM), with Gore and Blood at its helm. In May, 2005 Gore, representing GIM, addressed the Institutional Investor Summit on Climate Risk and emphasized the need for investors to think in the long term and to integrate environmental issues into their equity analyses. aI believe that integrating the issues relating to climate change into your analysis of what stocks are worth investing in, how much, and for how long, is simply good business, Gore explained to the assembled Investors. Applauding a decision to move in this direction announced the day before by General Electric's CEO Jeff Immelt, Gore declared that, "We are here at an extraordinarily hopeful moment... when the leaders in the business sector begin to make their moves." By that time Gore was already at work on his book about global warming, An Inconvenient Truth, and that same spring he began preparations to make a film about it.
The book and the film of the same name both appeared in 2006, with enormous promotion and immediate success in the corporate entertainment Industry (the film eventually garnering an Academy Award). Both vehicles vastly extended the reach of the climate change market-makers, whose efforts they explicitly extolled. "More and more U.S. business executives are beginning to lead us in the right direction," Gore exulted, adding "there is also a big change underway in the investment community."
The book and film faithfully reflected and magnified the central messages of the corporate campaign. Like his colleagues at the Pew Center and the Partnership for Climate Action, Gore stressed the importance of using market mechanisms to meet the challenge of global warming. "One of the keys to solving the climate crisis," he wrote, "involves finding ways to use the powerful force of market capitalism as an ally." Gore repeated his admonition to investors about the need for long-term investment strategies and for integrating environmental factors into business calculations, proudly pointing out how business leaders had begun "taking a broader view of how business can sustain their profitability over time." The one corporate executive actually quoted in the book, in a two-page spread, was General Electric's CEO Jeffrey Immelt, who succinctly explained the timing and overriding purpose of the exercise: "This is a time period where environmental improvement is going to lead to profitability."
By the beginning of 2007 the corporate campaign had significantly scaled up its activity, with the creation of several new organizations. The Pew Center and Partnership for Climate Action now created a political lobbying entity, the U.S. Climate Action Partnership (USCAP). USCAP membership included the key players in the initial effort, such as BP, Dupont, the Pew Center, and Environmental Defense, and added others, including GE, Alcoa, Caterpillar, Duke Energy, Pacific Gas and Electric, Florida Power and Light, and PNM, the New Mexico and Texas utilities holding company. PNM had recently joined with Microsoft's Bill Gates' Cascade Investments to form a new unregulated energy company focused on growth opportunities in Texas and the western U.S. PNM's CEO Jeff Sterba also chaired the Climate Change Task Force of the Edison Electric Institute. Also joining USCAP was the Natural Resources Defense Council, the World Resources Institute, and the investment banking firm Lehman Brothers whose managing director Theodore Roosevelt IV chaired the board of the Pew Center and was soon also to chair Lehman's new Global Center on Climate Change. As Newsweek now noted (March 12, 2007), "Wall Street is experiencing a climate change", with the recognition that "the way to get the green is to go green."
In January, 2007, USCAP issued "A Call for Action," a "non-partisan effort driven by the top executives from member organizations." The Call declared the "urgent need for a policy framework on climate change;" stressing that "a mandatory system is needed that sets clear, predictable, market-based requirements to reduce greenhouse gas emissions." USCAP carved out a "blueprint for a mandatory economy-wide market-driven approach to climate protection," which recommended a "cap and trade" program as its cornerstone, combining the setting of targets with a global carbon market for trading emission allowances and credits. Long condemned by developing countries as"carbon colonialism," carbon trading had become the new orthodoxy. The blueprint also called for a "national program to accelerate technology, research, development, and deployment and measures to encourage the participation of developing countries Iike China, India, and Brazil, insisting that "ultimately the solution must be global." According to USCAP spokesperson General Electric's CEO Jeff Immelt, "these recommendations should catalyze legislative action that encourages innovation and fosters economic growth while enhancing energy security and balance of trade."
The following month yet another corporate climate organization made its appearance, this one specifically dedicated to spreading the new global warming gospel. Chaired by Al Gore of Generation Investment Management, the Alliance for Climate Protection included among its members the now familiar Theodore Roosevelt IV from Lehman Brothers and the Pew Center, former national security advisor Brent Scowcroft, Owen Kramer from Boston Provident, representatives from Environmental Defense, the Natural Resources Defense Council, and the National Wildlife Federation, and three former Environmental Protection Agency Administrators. Using "innovative and far-reaching communication techniques," Gore explained,"the Alliance for Climate Protection is undertaking an unprecedented mass persuasion exercise" -- the multi- media campaign against global warming now saturating our senses.
If the corporate climate change campaign has fuelled a fevered popular preoccupation with global warming, it has also accomplished much more.
Having arisen in the midst of the world-wide global justice movement, it has restored confidence in those very faiths and forces which that movement had worked so hard to expose and challenge: globe-straddling profit-maximizing corporations and their myriad agencies and agendas; the unquestioned authority of science and the corollary belief in deliverance through technology, and the beneficence of the self- regulating market with its panacea of prosperity through free trade, and its magical powers which transforms into commodities all that it touches, even life. All the glaring truths revealed by that movement about the injustices, injuries, and inequalities sowed and sustained by these powers and beliefs have now been buried, brushed aside in the apocalyptic rush to fight global warming. Explicitly likened to a war, this epic challenge requires single-minded attention and total commitment, without any such distractions. Now is not the time, nor is there any need, to question a deformed society or re-examine its underlying myths. The blame and the burden has been shifted back again to the individual, awash in primordial guilt, the familiar sinner facing punishment for his sins, his excesses, predisposed by his pious culture and primed now for discipline and sacrifice. On opening day of the 2007 baseball season, the owner of the Toronto Blue Jays stood in front of the giant jumbotron, an electronic extravaganza, encircled by a ring of dancing corporate logos and advertising, and exhorted every person In the crowd, preposterously, to go out and buy an energy- efficient light bulb. They applauded.
In his bestselling 2005 book the Weather Makers, Tim Flannery called his readers to battle in "our war on climate change." With a forward for the Canadian edition written by Mike Russill, former CEO of the energy giant Suncor and now head of World Wildlife Fund/Canada, the book well reflected the corporate campaign. Each of us "must believe that the fight is winnable in social and economic terms," Russill insists, "and that we do not have to dramatically change the way we live."
"The most important thing to realize," Flannery echoes, "is that we can all make a difference and help combat climate change at almost no cost to our lifestyle."
"The transition to a carbon-free economy is eminently achievable," he exults, "because we have all the technology we need to do so."
"One great potential pitfall on the road to climate stability," he warns, however, "is the propensity for groups to hitch their ideological wagon to the push for sustainability." "When facing a grave emergency," he advises, "it's best to be single-minded." The book is inspiring, rallying the reader to battle against this global threat with ingenuity, enthusiasm, and hopefulness, except for one small aside, buried in the text, that gnaws at the attentive reader: "Because concern about climate change is so new, and the issue is so multi-disciplinary," Flannery notes, "there are few true experts in the field and even fewer who can articulate what the problem might mean to the general public and what we should do about it."
The corporate campaign has done more than merely create market opportunities for mainstream popular science writers like Flannery. By constructing an exclusively Manichean contest between mean and mindless deniers, on the one hand, and enlightened global warming advocates, on the other, it has also disposed otherwise politically- astute journalists on the left to uncharacteristic credulity. Heat, George Monbiot's impassioned 2006 manifesto on the matter, is embarrassing in its funneled focus and its naive deference to the authority of science. "Curtailing climate change," he declaims, "must become the project we put before all others. If we fail in this task, we fail in everything else." "We need a cut of the magnitude science demands," he declares; we must adopt "the position determined by science rather than the position determined by politics," as if there was such a thing as science that was not also politics.
Monbiot pulls no punches against the adenial industry, excoriating the negative corporate campaigners for their aidiocy and bitingly suggesting that some day soon aclimate-change denial will look as stupid as Holocaust denial, or the insistence that AIDS can be cured with beetroot. Yet he has not a word of acknowledgement much less criticism for the campaigners on the other side whose message he perhaps unwittingly peddles with such passion. And here too, oddly, a brief paragraph buried in the text, seemingly unconnected to the rest, disturbs the otherwise inspired reader. "None of this is to suggest," Monbiot notes in passing, "that the science should not be subject to constant skepticism and review, or that environmentalists should not be held to account....
Climate change campaigners have no greater right to be wrong than anyone else. "If we mislead the public," he allows, "we should expect to be exposed," adding that "we also need to know that we are not wasting our time: there is no point in devoting your life to fighting a problem that does not exist." Here perhaps some remnants of truth seep between the managed lines, hinting yet at the opening of another space and another moment.
Historian David Noble teaches at York University in Toronto. Canada. He is the author, most recently, of Beyond the Promised Land (2005)
ENVIRONMENTAL JUSTICE FIGHT IN TEXAS OVER VX NERVE GAS INCINERATOR
At the Carver Terrace housing projects, only a chain-link fence and a cluster of no-trespassing signs separate brightly painted jungle gyms from the Motiva oil refinery.
On warm days, the playground is filled with children playing in the shadow of the towers and pipes that spew smoke and spread a sulfurous, rotten-egg smell over this mostly poor, mostly black city of 60,000 along the Louisiana state line.
For decades, Port Arthur residents have lived with the refineries and chemical plants that ring their neighborhoods and loom over their backyards. And they have tolerated the cancer, asthma, and liver and kidney disease that some blame on the pollution.
But when a company won a $49 million contract to incinerate chemical waste from the destruction of the deadly nerve agent VX, Hilton Kelley and others said enough was enough.
"It's disgusting to know that all across America, when you mention Port Arthur, Texas, that it's considered the toxic dump site of North America. It's disgusting to know people are turning their backs on little children and old people and letting them stew in toxic waste," said Kelley, 46, a community activist. "It's not right, and I am not going to stand by and let anyone come and dump toxic waste in my community."
Kelley has been holding rallies and meetings to protest the incineration, drawing about 100 people to one recent meeting. And one mother started a petition drive to halt the project. But so far, there is little reason to believe they will accomplish anything.
Jefferson County, where Port Arthur is located, is home to one of the country's biggest chemical-industrial complexes and has been ranked in the top 10 percent of America's dirtiest counties by the Environmental Defense Fund.
Port Arthur is encircled by major refineries and chemical plants run by such companies as Motiva, Chevron Phillips, Valero and BASF, and their properties abut the backyards and playgrounds of the city's poor and historically black west end.
The battle began in April when Veolia Environmental Services of Lombard, Ill., announced a contract with the Army to incinerate 1.8 million gallons of VX hydrolysate over the next three years. New Jersey and Ohio fought off plans to incinerate the waste there.
VX hydrolysate is caustic waste water created when VX is destroyed by mixing it with sodium hydroxide and water. The Army is destroying its entire supply of the Cold War-era nerve agent, which can kill with a single drop, at a chemical depot in Indiana. The waste water will be shipped in 4,000-gallon containers across eight states and nearly 1,000 miles to the Veolia plant.
"I know a lot of people have concerns, but we are not bringing in VX nerve agent. We're bringing in waste water," said Daniel Duncan, Veolia's environmental, health and safety manager. "We have all the permits, all the required equipment. We have safety procedures and trained personnel. We would not be managing the waste if we didn't think we could do it safely."
At the Veolia plant, which employs 191 people, the VX hydrolysate is unloaded with specially designed hoses, fed into a blending tank where it is mixed with other waste materials, then funneled into a 60-foot rotary kiln and incinerated at temperatures between 1,500 and 1,600 degrees. The ash will be buried in a hazardous waste landfill in Carlyss, La.
The first shipments of waste water began arriving in Port Arthur about two weeks ago, and the first batch was incinerated on April 22. By the end of last week, the plant had received 23 shipments and burned 15,000 gallons, Duncan said.
Neither the reassurances from Veolia officials, nor an open house the company held last week, has assuaged the residents' fears.
Environmental activists in Indiana and Kentucky opposed plans to transport the VX byproduct for disposal, saying the hydrolysate contains toxic compounds and more VX than the Army has acknowleged.
Some have also suggested the waste water could erode the storage containers.
In Port Arthur, Army and city officials did not announce the project until the deal was done.
"We didn't even get a warning that it was coming," Kelley said. "We're being used as guinea pigs because we are the area of least resistance.
How are you going to go out and protest for clean air when you are just trying to get food for your family to eat?"
Mayor Oscar Ortiz said he saw no reason to warn anyone.
"Why create a big scare thing if there's nothing there to be afraid of? Why do something about a project that's safe and creating a lot of work?" Ortiz said.
A 2003 survey by researchers from the University of Texas Medical Branch at Galveston found that residents of the Beaumont-Port Arthur area had higher rates of a variety of symptoms, particularly respiratory, ear-nose-and-throat and skin conditions, than a group from Galveston.
Moya Green is convinced that her children's ailments, her own recently diagnosed asthma and the respiratory problems of two nieces, one a newborn, are connected to the emissions from the refineries and chemical plants.
"There is always a smell, always a spill. Pretty much every day, there is more smog, more fog than anything else," said Green, 35, who is in nursing school. "It has to be the refineries. This is not normal. This is crazy."
Green is circulating a petition to stop the incineration project. "I had to see what I could do for my own children because help is not there," she said.
While the mayor said the refineries and chemical plants are probably to blame for some health problems, he defended the companies as "good corporate partners" that contribute 64 percent of the city's tax base.
But Port Arthur residents say they get little of the benefits.
Instead, the money is going to developments sprouting to the west of the city where the more affluent have fled and where golf courses, hotels and homes are under construction.
"For people to go around and blame the refineries and Veolia for this and that... it's just something we have to live with," the mayor said. "I'm going to be 71 in May and I've been breathing this air for fifty- some years. I feel fine. Besides, we all have to die sometime."
Copyright 2007 The Associated Press
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