Professor Hayes (with ccs)
Your moot court idea for the recent HSRC situation is wonderful. You made
a good case for the defense, but I would really also like to hear a real (or
classroom) dialog after some serious scholarly studies of the case.
The key I suppose is who and how many judges are in charge of the
courtroom. I want at least nine as this is a matter of Supreme importance.
I think we can expect a split decision, based on what I remember in the press.
I can think of some other (fictitious now) cases as well - and Jim Thomas
offered some.
But we shouldn't wait for any law professors or students listening in to
report back. I am anxious to hear right now from "lawyers" who might be
retained by the other side (actually both sides) in this case you nobly defend.
Ron
ps I believe "principles" below could be "principals" (which also
appears)..
On Sep 25, 2013, at 8:44 PM, Michael Hayes <[email protected]> wrote:
> Ron et al.,
>
>
> You asked for feedback on the HSRC in defense of the "NOT GE" ( "I hope we
> can hear from others who would say this final example is NOT geo") argument.
> And, I believe the HSRC event would make a good moot court exercise on this
> overall issue.
>
>
> One possible moot court opening statement in defense of the HSRC event may
> read as such:
>
>
> In my most humble opinion, the primary 'intent' of the HSRC principles was to
> mitigate local declining salmon stock, the decline being due to multiple
> anthropogenic causes, by those in rightful ownership of the area known as the
> "salmon pasture". Yet, the project also offered, and used, a secondary
> 'intent' as an opportunity to gain valuable scientific and practical
> knowledge at a scale which is well within the opinion of the leading
> scientific authority on this issue, The Center for Biological Diversity
> (CBD), as it does explicitly accepts small scale GE
> experimentation/investigation. Thus, the primary 'intent' was not of GE
> significance and the secondary 'intent' was well within the proper scope and
> scale of GE related scientific field investigations accepted by the leading
> global authority on this issue; The Center for Biological Diversity.
>
>
> In the best opinion of the CBD, it offers the phrase "Scale and intent are of
> central importance.". True. That logic is obvious to all investigators
> seriously concerned with the GE issue. Was the 'scale' of the primary
> 'intent' (i.e.mitigating local wild salmon stock decline due to a well
> recognized human induced decline in the stock) significantly large enough to
> impact the planetary environment? No. Was the secondary 'intent' (i.e.
> collect GE related data and gain practical field investigational experience)
> carried out to the degree that the planetary environmental matrix was change
> in any significant way? No.
>
>
> The standard of GE 'scale' has not been met and the standard of GE 'intent'
> was well within the scope of the best 'opinion' of the leading global
> scientific authority.
>
>
> Thus, I would petition the jury to acquit the HSRC principals of the primary
> charge of wrongful GE as the actions simply did not exceed a reasonably
> scientifically knowable degree of harm or good at the planetary level. Also,
> I petition the jury to acquit the defendants on the lesser charge, of
> wrongful GE experimentation/investigation, as the CBD does allow for such
> actions and the 'best known scientific and engineering practices' in this
> field were followed.
>
>
> The moot court would now hear the oppositions' opening statement.
>
>
>
> In pursuit of a refinement of the word 'Geoengineering', and thus the bedrock
> of the scientific/engineering/philosophical/legal disciplines which are
> evolving around this concept, any new definition should be tested through
> this type of open moot court challenge. I believe it may be useful in
> limiting the subjective pitfalls inherent in this debate.
>
>
>
> Best,
>
>
>
> Michael
>
>
>
>
>
>
> On Wed, Sep 25, 2013 at 4:31 PM, Ronal W. Larson <[email protected]>
> wrote:
> Ken, Jim, etal
>
> The following more responding to Jim than Ken. Warning - the comments
> are mostly from a biochar perspective, and may not even be representing that
> group. But I am trying also to represent many of the CDR approaches as well.
>
> The critical "geo" issue I don't see mentioned in most of this is ocean
> acidification (not being addressed by SRM), so wonder if that distinction is
> well enough covered by both definitions below
>
>
> On Sep 25, 2013, at 1:28 PM, Ken Caldeira <[email protected]>
> wrote:
>
>> Jim,
>>
>> We all know that things written by committee often don't turn out well, but
>> to aid comparison, here are both definitions:
>>
>> CBD:
>>
>> "Geoengineering" is
>>
>> A deliberate intervention in the planetary environment of a nature and
>> scale intended to counteract anthropogenic climate change and its impacts.
>
> [RWL1: I sense that the developers of this definition did not have the
> concern that Ken has in his accompanying remarks - that the term
> "geoengineering" has become almost synonymous with SRM. More below on the
> reasons that Ken (and I) aren't comfortable with this very (too?) broad
> definition.
> I believe that only a small percentage of biochar projects are now being
> undertaken for climate reasons - rather most are undertaken for food/soil
> reasons. Jim and Ken and others: would that food/soil intention keep a
> biochar from being defined as "geoengineering" by this above? How about for
> Ken's next?
>>
>> Alternate candidate definition:
>>
>> "Geoengineering" refers to activities
>>
>> (1) intended to modify climate
>>
>> (2) and that has a greater than de minimis effect on an international
>> commons or across international borders
>>
>> (3) and where that greater than de minimis effect occurs through
>> environmental mechanisms other than a removal of anthropogenic aerosols
>> and/or greenhouse gases from the atmosphere.
>>
>>
>> I suggest that the latter definition would be more useful and more easily
>> applied in practice and do less damage to the development of technologies
>> such as biochar, biomass energy with CCS, reforestation, and so on, that
>> present no special risks, cross-border issues, international commons issues,
>> etc.
>
> [RWL2: I like the three-part definition. It would be very helpful to
> have Jim also make a comment on this one. This fails in what way? More
> (much more) on Jim's message below.
>
> The words "de minimis" seem to mean (from quick googling) trivial or
> not worth considering in a law suit. I believe this to be true for
> individual biochar projects involving only one buyer and seller (or maybe
> self-produced), but would claim a total opposite is possible collectively -
> certainly multiple wedges have been proposed. I hope JIm (and others) can
> comment on where biochar (as an example - could be afforestation, etc), can
> be well received at the individual user level, but be harmful globally.
> Biochar proponents would claim that the future impacts are going to be large
> (being multiple wedges) - but the impact entirely or overwhelmingly positive.
> Ken's definition here doesn't separate positive from negative impacts
> (which of course can be in the eye of the beholder). I am not worrying too
> much about this now that Ken has said biochar would be excluded from his
> 3-part definition. Jim has endorsed (maybe authored?) articles opposing
> biochar; does he place biochar in or out of the realm of geoengineering as
> defined by either of the above - or any other? Or certain cases - Yes;
> others - No? I see only "No" cases. More below on Jim's message also.
>>
>> Best,
>>
>> Ken
>>
>>
>> _______________
>> Ken Caldeira
>>
>> Carnegie Institution for Science
>> Dept of Global Ecology
>> 260 Panama Street, Stanford, CA 94305 USA
>> +1 650 704 7212 [email protected]
>> http://dge.stanford.edu/labs/caldeiralab @kencaldeira
>>
>>
>>
>>
>> On Wed, Sep 25, 2013 at 6:32 PM, jim thomas <[email protected]> wrote:
>> Ken and all,
>>
>> 1. The CBD definition was the result of a prolonged process. Indeed the
>> expert group even published a separate 10 page note for COP11 outlining
>> their method and rationale for their preferred definition (see
>> http://www.cbd.int/doc/meetings/cop/cop-11/information/cop-11-inf-26-en.pdf)
>> that was discussed in full session in SBSTTA 16 and i think also at COP11.
>> I'd suggest any further work on definition should acknowledge this
>> multilateral process between 193 countries as an authoratative starting
>> point.
> [RWL3: This was new. I thought the folks writing this above
> report on a definition did a credible job and worked hard. However, I doubt
> they were aware of the issues that Ken is addressing in his definitional
> notes of the past few days. I agree with Jim's final sentence, though.
> This list should say what was not covered in this CBD report. I would say
> the CBD experts were not sufficiently conscious of the problems that happen
> as you try to lump two topics as different as SRM and CDR into a single
> category (called "geoengineering"). Ken has narrowed the Geo definition a
> lot and I feel his is an appropriate narrowing.
>>
>> 2. While issues of geography, of the commons and cross-borderness, are
>> highly important in geoengineering governance i don't see why they
>> rationally have any place in framing a definition of geoengineering itself
>> (except as a baldly political move to maneuver loopholes into a governance
>> system). The appropriate place to raise those issues is in the specifics of
>> how a political decision is made about a geoengineering technology, not in
>> trying to bias an initial definition.
> [RWL4: The key words here are "baldly" and "loopholes". But also
> the last sentence starts with "place", but has "how" as well . I'd like to
> hear more from Jim on all four of these key words. Ken is not addressing
> "place" specifically, but "how" is simplified as the geo term is narrowed.
> I don't see the word "bias" as being appropriate in the definition. I see
> Ken's definition being a good resolution to the inaccurate way the
> "geoengineering" term is mostly used (to be synonymous with SRM).
> I ask JIm: which of the CDR approaches that Ken has carved out should
> not be (for "de minims" or other reasons). Jim's thoughts on biochar would
> be of most personal interest, but biochar is a fairly representative CDR
> approach.]
>>
>> In practical terms defining whether something is geoengineering or not by
>> whether the activity crosses a set of lines on a map is to muddle physical
>> reality with historical accident and will give quite perverse decisions.
>> [RWL: A] Under your proposed definition below the United States could
>> choose to artificially fertilize all of Lake Michigan or Russia to
>> fertilize all of Lake Baikal with clear ecological impacts and yet it would
>> not be considered geoengineering since it didn't cross international
>> borders. Yet [RWL: B] if a small patch of Lake Malawi was fertilized
>> that would be considered geoengineering in your definition since there
>> happens to be an international border in that lake. In physical terms that
>> difference is non-sensical. I wonder [RWL: C] if Canada or Russia decided
>> to put much of their entire landmass under an SRM scheme that somehow didn't
>> move out of their territory (lets say create whitened low level cloud cover
>> in someway) whether that would also fall outside of this definition (since
>> its a standard of X AND Y AND Z that need to be met to meet the definition).
> [RWL5: These are valid comments on three different specific
> examples - call them A,B, C as inserted above. It would be helpful to know
> where Jim would stand on these three examples. In my mind, the differences
> should be based on ocean acidification impact (is CDR involved? - Ken's #3
> criteria). Fertilizing may or may not mean CDR, so I would not put all
> fertilization into Ken's definition of geoengineering (nor would he I think).
> I think both Ken and Jim would say the Canadian-Russian compact (#C) is
> geoengineering; I would. So in summary, my first reaction:
> A: Geo only if intent is SRM; one nation rationale over-ruled based
> on fact Lakes Michigan and Baikal are large and effects could be
> international.
> B: Never Geo; de minimis exclusion (if not agreed to by all
> neighboring countries, take the issue to the UN).
> C: Geo if SRM (as assumed; can't assume effects stay only local);
> not Geo if it passes Ken's test #3.
>>
>> 3. You say 'de minimis' has a well established standard which i'd be
>> interested to see.. but naively it strikes me as a cover for argumentation
>> by a proponent of any scheme that they fall outside of the definition by
>> claiming to have only a 'de minimis' effect. De minimis from whose
>> viewpoint? a claimed 10,000 sq km fertilized patch was argued to be small
>> (de minimus?) by HSRC in the context of the entire Pacific Ocean but it was
>> viewed as large and consequential from the context of some BC fishers and
>> shellfish harvesters who are concerned that the red tides closing their
>> shellfish beds all winter may have been as result of the fertilization
>> (which can't be proven either way - what standard of proof would 'de
>> minimis' require?). Whether something is de minimis in terms of impacts then
>> becomes a tiresome fight between different sets of understandings,
>> requiring political arbitration. It complexifies and polarizes governance
>> rather than simplifies it.
> [RWL6: Agreed that all of these points need discussion. The HSRC
> example is probably a good one, and I know too little about it. The claimed
> main intent was food, but there was also a carbon credit aspect that I think
> would get past all three of Ken's criteria, thereby putting it in the geo
> category. My guess is that both Ken and Jim agree this is Geo, so I hope we
> can hear from others who would say this final example is NOT geo. And what
> definition justifies that non-geo choice?
> Jim's issues of a "tiresome fight" and "political arbitration" seem
> likely, but better to have dialog on that now rather than later. Legal and
> governance issues are not addressed at all in the CBD'a definition. Ken
> probably agrees that his was motivated by trying to speed governance and
> implementation along. How would Jim himself solve these
> governance/implementation issues through a definition? Or is that simple -
> that none should ever be permitted?
>
> Ron
>>
>> Jim
>>
>>
>> On Sep 25, 2013, at 9:40 AM, Ken Caldeira wrote:
>>
> <snip about 90%, but nothing critical, I think>
>
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