EDITORIAL : THE NEW YORK TIMES, USA

The Court and Global Warming

The case about global warming scheduled to be argued on Tuesday before the Supreme Court is a blockbuster. Eight states — from California to New York, plus New York City — sued six corporations responsible for one-fourth of the American electric power industry’s emissions of carbon dioxide.

Rather than seeking money or punishment for the defendants, they seek what everyone should agree is the polluters’ responsibility: abatement of their huge, harmful part in causing climate change. The purpose is not to solve global warming or usurp the government’s role in doing so. It is, rightly, to get major utilities to curb their greenhouse-gas emissions before the government acts.

Because there is no federal regulation of this problem in force, it is fortunate that there is a line of Supreme Court precedents back to 1901 on which the plaintiffs can build their challenge. When this lawsuit began seven years ago, one of the defendants’ main defenses was that, because the Clean Air Act and other laws “address” carbon dioxide emissions, Congress has “legislated on the subject” and pre-empted the suit. The pre-emption claim was spurious when they made it and remains spurious now.

Seven years ago, neither Congress nor the Bush administration showed interest in pushing comprehensive laws or rules to curb these gases. Since then, the Environmental Protection Agency has found that greenhouse gases endanger public health as “the primary driver” of climate change and has regulated vehicle emissions.

But the electric power industry is working to scuttle this regulation, with the help of the Republican-controlled House. In court, the industry pushes for letting the E.P.A. regulate. On Capitol Hill, it tries to torpedo that authority.

For the United States Court of Appeals for the Second Circuit, two Bush appointees (one by the father, the other by the son) held that the prospect of regulation by the federal government is not enough to make this lawsuit go away. What the judges noted remains incontestable today: “E.P.A. does not currently regulate carbon dioxide” by requiring “control of such emissions” from existing power plants.

The judges reviewed five other major statutes that directly address the issue of climate change, beginning with the National Climate Program Act of 1978 a generation ago and running through the Energy Policy Act of 2005 passed while this lawsuit was under way.

They use italics to devastating effect, noting that these laws call for assessments, data collection, forecasts, improvements in understanding and all manner of other ground-laying efforts, but not one concrete action “to regulate greenhouse gas emissions in any real way.”

Yet the failure of the federal government to act, which has gone on for many years, doesn’t mean the plaintiffs must wait until it does. As the Second Circuit writes, they “may seek their remedies under the federal common law,” including made by justices. The Supreme Court has upheld a lawsuit preventing the discharge of sewage that made the Mississippi River unfit. It has upheld limits of noxious emissions of sulfur from copper foundries in Tennessee that were destroying Georgia forests. There are other clear-cut precedents.

The appellate court’s opinion closes by paraphrasing a Supreme Court opinion from almost 40 years ago. New federal regulation may pre-empt the federal common law of nuisance, but, until then, federal courts are empowered to address the public nuisance caused by major, undisputed and destructive sources of greenhouse gases.

Iceland’s Way

In the go-go years leading up to the financial crisis, Iceland’s banks were hugely irresponsible, luring foreign depositors with high interest rates and putting the money into risky loans. When Iceland’s big banks went under in 2008, they were 10 times as big as the country’s economy.
The government of Iceland failed to rein in bankers’ excesses. But its refusal to take on bank debts, forcing creditors to take losses and share in the pain, looks increasingly smart as Iceland’s economy begins to recover.
The European Union and the International Monetary Fund — their bailouts of Greece and Ireland were designed to make creditors whole — should learn from Iceland’s example. As they negotiate a rescue for Portugal, they should realize that taxpayers cannot bear the entire cost of the banks’ misdeeds.
The government of Iceland wasn’t intentionally daring or smarter than others. It couldn’t afford to bail out its banks, so it let them fail. It transferred domestic deposits and loans, at a discount, into new banks, with some $2 billion in money from taxpayers. And it left the banks’ foreign assets and foreign debts behind. Some foreign creditors could get as little as 27 cents on the euro.
Britain and the Netherlands have pushed Iceland to cover about $5.8 billion lost by British and Dutch depositors when the bank Landsbanki went belly up in 2008. (The British and Dutch governments reimbursed their citizens in anticipation of Iceland paying up.)
Iceland twice agreed to those demands, despite the fact that the amount is about 45 percent of its gross domestic product. Iceland’s taxpayers refused to go along. In a referendum last week, voters rejected a deal for the second time.
Iceland has felt considerable pain. Its currency lost half of its value against the euro in 2008. A $2 billion loan from the I.M.F. managed to stave off a complete meltdown, but the economy still shrank 7 percent in 2009 and the unemployment rate quadrupled. Government debt is expected to peak at about 100 percent of G.D.P. this year — up from 42 percent three years ago.
Britain and the Netherlands are suing Iceland before the court of the European Free Trade Association for failure to pay its debts. And there is talk in London and The Hague about further punishment, including possibly stalling Iceland’s application to join the European Union.
Still, it is pulling through. The I.M.F. expects it to grow 2.5 percent this year. Unemployment is falling. Compare its case to Ireland, where the government put the banks’ debts on the shoulders of taxpayers. Its economy shrank at least as much as Iceland’s, and it is recovering more slowly. The I.M.F. expects Ireland’s debt to peak at 125 percent of G.D.P. in two years. That looks optimistic.
As investors recover confidence, insurance on Icelandic government debt is cheaper than that on debt from Ireland, Greece or Portugal.

Real Prisoners, Phantom Residents

The New York State Legislature took a stand for electoral fairness last year when it banned prison-based gerrymandering, the cynical practice of counting prison inmates as “residents” to pad the population of legislative districts. The new law required that inmates be counted as residents of their home districts.

State lawmakers who are at risk of losing political clout are predictably eager to turn back the clock. They have challenged the law in court. The common sense case against prison gerrymandering is two-fold. Prisoners who cannot vote or move freely in a community can hardly be said to be residents there. Prisoners typically return to their real home, often hundreds of miles away, the moment they are released.

This lawsuit is all about self-interest. The lead plaintiff is State Senator Elizabeth Little, whose upstate district contains 11 state correctional institutions, one federal prison and an estimated 12,000 inmates. According to an analysis by the Prison Policy Initiative, a research group based in Massachusetts, Senator Little’s current district is one of seven in New York that meet federal population requirements by counting inmates as residents.

Senator Little wrongly argues that the state is constitutionally required to count inmates as “residents” because the census counts them there. But New York’s Constitution allows the state to use other information as well and states clearly that a person cannot be assigned a new home address simply because he or she is serving a prison sentence.

Many county governments with large prisons, including counties represented by Senator Little, have emphatically rejected the strategy of counting inmates as “residents.” Those governments rightly determined that the practice unfairly inflated the voting power of towns with prisons while diluting the power of others. Given the facts, the court should have an easy time dismissing this suit.

What Stories These Lice Can Tell

Were there many bird and mammal species while dinosaurs still lived? Or did they diversify only after dinosaurs were wiped out some 65 million years ago? The fossil record hasn’t been much help answering this fundamental question. But a study published recently in the Royal Society’s Biology Letters may have found an answer based on a different kind of fossil: fossilized lice.

Imagine a louse not as a repulsive human pest (this may take some doing) but as a scientific marker of sorts. Lice reproduce quickly, and they tend to co-evolve with the species they infest, adapting to fit one kind of host. This means that a wide variety of lice presupposes a wide variety of hosts. Using genetic markers, a team of scientists led by Vince Smith of the Natural History Museum in London determined that lice families began to radiate, or diversify, before the Cretaceous-Paleogene extinction, which killed 75 percent of the species on earth. They may have begun to diversify as long as 145 million years ago.

That suggests that bird and mammal species also began to diversify in the Cretaceous period. It corroborates new genetic evidence, from birds and mammals, though it is still unclear how many of them survived the extinction that marks the end of the Cretaceous period.

We may now have to reimagine the age of dinosaurs, picturing a wider array of birds and mammals moving among them. We may also have to picture feathered dinosaurs pestered by lice just the way modern birds are. Those could well be ancestors of the postextinction lice that specialize in mammals, including the three species that specialize in us.