Literary Warrant [25]

The environment-poem bridges the gap between the opaque thingness of nature lying "out there," and the philosophical and scientific access we gain by developing terms, formulas, explanations, and theories of the order and meaning hidden within that opaque nature.

— Angus Fletcher, A New Theory for American Poetry: Democracy, the Environment, and the Future of Imagination (Harvard University Press 2004) 12.

• Douglas C. Cogan, RiskMetrics Group, Corporate Governance and Climate Change: The Banking Sector (A Ceres Report) (January 2008)
  

  "This report analyzes the corporate governance and strategic approaches of 40 of the world’s largest banks to the challenges and opportunities posed by climate change. With delegates of 190 nations meeting in Bali, Indonesia, in December 2007 to decide whether to extend or replace the 10-year old Kyoto Protocol after 2012, climate change has become not just a future political consideration, but also a key driver of how global business is being conducted today.

  "The financial community is at the center of this economic transformation. With nearly $6 trillion in market capitalization, banks are the world’s major capital providers and risk management experts. As such, banks have a vital role in finding timely, practical and cost-effective solutions to mitigate climate change and adapt the economy to its already apparent effects. Bringing greenhouse gas (GHG) emissions under control presents a formidable technological and financial challenge that will require an effective 'decarbonization' of the global economy over the next 50 years. Banks can begin by factoring a market price for carbon dioxide (the main greenhouse gas) in lending and investment decisions, while helping to build new markets through GHG emissions management, trading and brokerage."—Executive Summary.
  

Read the rest of this post . . . .

• Juscelino F. Colares, Syracuse University, A Brief History of Brazilian Biofuels Legislation (January 1, 2008)
  
  "Due to concerns with global climate change, Brazil's long and diversified experience with biofuels has captured the attention of policymakers worldwide. Yet, little is known about the history and scale of the Brazilian biofuels program. This brief article provides an introduction to the history of Brazil's biofuels program and refers to the basic statutes that set it in place. Due to the unavailability of these enactments in English, an appendix provides the relevant portions of these statutes both in Portuguese and in the author's English translation."—Abstract.


• Jon Creyts et al., McKinsey & Company, Reducing U.S. Greenhouse Gas Emissions: How Much at What Cost? (United States Greenhouse Gas Abatement Mapping Initiative Executive Report) (December 2007)
  
  "Consensus is growing among scientists, policy makers, and business leaders that concerted action will be needed to address rising greenhouse gas (GHG) emissions in the United States. The discussion is now turning to the practical challenges of where and how emissions reductions can best be achieved, at what costs, and over what periods of time."—Executive Summary.


• Earthjustice, Wolves in Danger (Campaigns)
  
  "The wolf's amazing comeback in the northern Rockies is one of our country's greatest wildlife success stories. But it may be dangerously short-lived now that the federal government has issued a rule that permits wolf killing in the northern Rockies. This heralds the beginning of a larger plan to remove the animals from the Endangered Species List and allow large-scale slaughters of more than 80% of the wolf population."


• Environmental Working Group, The Unintended Environmental Impacts of the Current Renewable Fuel Standard (RFS): A Guide to Common Sense RFS Policy (Fall 2007)
  
  "Biofuels can provide a significant source of renewable energy to reduce dependency on foreign oil and reduce climate change pollution. As Congress considers increasing the current RFS, we have an opportunity to promote biofuels while reducing unintended negative effects on the environment, natural resources and public health. Unfortunately, the ethanol industry is ramping up production dramatically before even rudimentary questions about the environmental impacts have been answered. Reliance on corn grain as a feedstock—which accounts for 98% of current ethanol production1—is already having adverse effects on food and feed prices, and is already posing local and regional environmental problems...."


• European Environment Agency (EEA), Estimating the Environmentally Compatible Bioenergy Potential from Agriculture (EEA Technical Report, no. 12/2207)
  

  "Increasing the use of bioenergy offers significant opportunities for Europe to reduce greenhouse gas emissions and improve the security of its energy supply. However, the substantial rise in the use of biomass from agriculture and other sectors for producing transport fuels and energy can put significant environmental pressures on farmland or forest biodiversity as well as on soil and water resources. Consequently, it may counteract current and potential future environmental policies and objectives, such as improving the quality of ground and surface waters or biodiversity protection. These issues are addressed in the EEA Report No 7/2006 on 'How much bioenergy can Europe produce without harming the environment?'.
  

  "This report underpins the 2006 document by providing technical details on the scenario assumptions and models for deriving the agricultural bioenergy potential."
  

• Federal Trade Commission (FTC), Bureau of Consumer Protection, Energy & Environment
  
  "Whether you need energy information about an appliance purchase, guidance for environmental claims made by your business, or facts about the fuel you put in your car, the FTC has a number of programs that provide consumers and businesses with important information about energy and environmental issues. These web pages connect you to FTC resources on energy labeling for consumer products, retail sales of electricity, environmental marketing claims, insulation and home energy issues, and fuel and automotive products."


• Green Infrastructure Action Strategy, Managing Wet Weather with Green Infrastructure: Action Strategy 2008 (January 2008)
  
  "A set of techniques, technologies, approaches and practices—collectively referred to as 'green infrastructure'—can be used to eliminate or reduce the amount of water and pollutants that run off a site and ultimately are discharged into adjacent water bodies. As cities move towards sustainable infrastructure, green infrastructure can be a valuable approach."—Introduction | Background.


• Lisa Heinzerling, Climate Change in the Supreme Court Environmental Lawyer, v.3, p.3 (2008)
  
  "In Massachusetts v. Environmental Protection Agency, the Supreme Court confronted the issue of climate change for the first time. The Court held that the Clean Air Act gives the Environmental Protection Agency the authority to regulate greenhouse gases and that the agency may not decline to exercise this authority based either on factors not present in the statute or inconclusive gestures toward uncertainty in the science of climate change. I had the privilege of serving as the lead author of the winning briefs in this case. This Article provides an insider's perspective on the choices that went into bringing and briefing the case. This Article is an edited version of the 20th Annual Natural Resources Law Institute Distinguished Lecture, delivered in the fall of 2007 at Lewis & Clark Law School."


• Richard J. Holden, Regional Commissioner, San Francisco regional office, U.S. Bureau of Labor Statistics; Donna Bahls, geographic information specialist (GIS), California
  Employment Development Department, Labor Market Information Division & Charles Real, Supervising Engineering Geologist, California Geological Survey, Seismic Hazard Assessment Program, Estimating Economic Losses in the Bay Area from a Magnitude-6.9 Earthquake, Monthly Labor Review (December 2007)
  
  "This article analyzes and maps employer data on employment and wages to assess potential business and economic losses from a magnitude-6.9 earthquake in northern California along the Hayward Fault. The article uses data from the BLS Quarterly Census of Employment and Wages (QCEW) to demonstrate how these data—when combined with seismic hazards in-formation—can be used to assess potential business and economic losses from a major earthquake. (Such an approach could also be used to assess the damages from other natural disasters.) Labor market analysts from the California Employment Development Department overlaid employment data from the QCEW onto seismic hazard information provided by the California Geological Survey to produce maps and tabulations that correlate estimated shaking intensities with employment levels for the counties in the San Francisco Bay Area that lie along the Hayward Fault." Includes comparison with losses from Katrina.


• David Maurer, Acting Director, Natural Resources and Environment, United States Government Accountability Office (GAO), Great Lakes Initiative: EPA and States Have Made Progress, but Much Remains to Be Done If Water Quality Goals Are to Be Achieved (Testimony Before the Subcommittee on Water Resources and Environment, Committee on Transportation and Infrastructure, House of Representatives) (January 23, 2008)
  
  "Millions of people in the United States and Canada depend on the Great Lakes for drinking water, recreation, and economic livelihood. During the 1970s, it became apparent that pollutants discharged into the Great Lakes Basin from point sources, such as industrial and municipal facilities, or from nonpoint sources, such as air emissions from power plants, were harming the Great Lakes. Some of these pollutants, known as bioaccumulative chemicals of concern (BCC), pose risks to fish and other species as well as to the humans and wildlife that consume them. In 1995, the Environmental Protection Agency (EPA) issued the Great Lakes Initiative (GLI). The GLI established water quality criteria to be used by states to establish pollutant discharge limits for some BCCs and other pollutants that are discharged by point sources. The GLI also allows states to include flexible permit implementation procedures (flexibilities) that allow facilities’ discharges to exceed GLI criteria."—Why GAO Did This Study.


• NetworkWorld, Layer 8, Robot Planes to Track Weather, Climate (January 22, 2008)
  
  "The US National Oceanic and Atmospheric Administration this week announced a $3 million, three-year program to test the use of unmanned aircraft to measure hurricanes, arctic and Antarctic ice changes and other environmental tasks. The agency said the drone aircraft would be outfitted with special sensors and technology to help NOAA scientists better predict a hurricane’s intensity and track, how fast Arctic summer ice will melt, and whether soggy Pacific storms will flood West Coast cities."


• Pew Center on Global Climate Change, Towards an Integrated Multi-Track Climate Framework (December 2007)
  
  "The report builds on the recommendations of the Pew Center’s Climate Dialogue at Pocantico, which brought together 25 senior policymakers and stakeholders from 15 countries. The group’s consensus report recommends engaging all major economies in the post-2012 climate effort through a flexible framework allowing countries to take on different types of commitments...."—Press release (December 12, 2007)


• Louise Smith, Science and Environment Section & Paul Bolton, Social and General Statistics Section, House of Commons Library, Aviation and Climate Change (Research Paper 08/08) (January 24, 2008)
  
  "Aviation is a growing industry. Government and the aviation industry recognise a link between aviation emissions and climate change, although there is uncertainty about the measurement of the exact effects. Given the predicted growth in the aviation sector, it seems likely that unless emissions are curbed, they will cancel out efforts made to reduce emissions in other sectors. This paper sets out to explain: the effects of emissions from aviation; the difficulties in making accurate calculations about how these emissions effect climate change; and what proposals and actions are being taken at various levels to reduce these emissions."


• Southern Utah Wilderness Alliance and Natural Resources Defense Council vs. Bureau of Land Management, Department of the Interior, United States District Court, District of Utah, Central Division, Case No. 2:08cv00064 (DAK) (January 23, 2008) (Plaintiffs' Complaint for Declaratory and Injunctive Relief)
  
  "This suit challenges the decisions by the Bureau of Land Management, the Department of the Interior, and Secretary of the Department of the Interior Dirk Kempthorne (collectively referred to as 'BLM') authorizing the sale of 60 oil and gas leases that allow surface occupancy on tens of thousands of acres of BLM managed lands in Utah at three lease sales held between February 2004 and May 2005. Each of these three sales presents the identical legal and factual issues recently addressed by the court in Southern Utah Wilderness Alliance v. Norton (SUWA), 457 F. Supp. 2d 1253 (D. Utah 2006)—whether BLM violated the National Environmental Policy Act (NEPA) when it sold oil and gas leases on lands recognized by the agency as having or likely possessing wilderness character and when it sold oil and gas leases without adequate pre-leasing analysis."


• United Nations General Assembly, Secretary General, Overview of United Nations Activities in Relation to Climate Change (A/62/644) (January 10, 2008)
  
  "The present annex aims to provide an overview of the United Nations system’s current climate change activities. It has been compiled on the basis of written submissions from members of the United Nations System Chief Executives Board for Coordination and subsequent consultations in the framework of the Chief Executives Board High-level Committee on Programmes. This does not constitute an attempt to provide an exhaustive inventory of all relevant United Nations activities, or to evaluate their effectiveness. Moreover, as the overview does not account for the financial resources allocated to each activity, it therefore does not attempt to assess the scale of individual and collective activities. Finally, it does not take account of the specialized role of multilateral environmental agreements."—Annex I, Introduction.


• United States Agency for International Development (USAID), Tsunami Reconstruction, Three Years Later (January 18, 2008, rev'd January 28, 2008)
  

  "In the days immediately following the Dec. 26, 2004, earthquake and tsunami, the U.S. Agency for International Development (USAID) and other government agencies launched a $656 million reconstruction program. The money was provided by Congress in May 2005 and signed into law by President Bush for the Tsunami Relief and Reconstruction Fund (including $31.3 million to combat avian influenza).
  

  "When added to the money spent by the Department of Defense on emergency recovery assistance and relief aid, as well as food aid provided by USDA, the United States contributed $841 million. Moreover, swift action by the United States, in cooperation with other donors and private organizations, prevented another disaster by ensuring critical water and sanitation needs were met."
  

• United States Environmental Protection Agency (EPA), Clean Watersheds Needs Survey 2004 Report to Congress (January 2008)
  
  "A new report from the EPA estimates $202.5 billion is the nationwide capital investment needed to control wastewater pollution for up to a 20-year period. Delivered to Congress this week, the 2004 Clean Watersheds Needs Survey summarizes the results of the agency's 14th national survey on the needs of publicly owned wastewater treatment works. The estimate includes $134.4 billion for wastewater treatment and collection systems, $54.8 billion for combined sewer overflow corrections, and $9.0 billion for stormwater management."—Press release (January 16, 2008)


• United States Environmental Protection Agency (EPA), Hazardous Waste Management System; Modification of the Hazardous Waste Program; Cathode Ray Tubes
  
  "Today is the one-year anniversary of the Cathode Ray Tube Rule in the U.S., which is intended to encourage recycling and reuse of CRTs and CRT glass. The rule requires that recyclers notify EPA headquarters in Washington, D.C. when they plan to export used and broken CRTs. EPA will then notify the receiving country of the shipment. However, if the CRTs are intact, instead of broken, and destined for reuse, the recycler must send a one-time notification to EPA before exportation. In this case, there is no requirement to notify the receiving country...the CRT Rule also covers recycling in the U.S. In many cases the recycler will disassemble the CRTs for its glass, lead or plastic components. The rule exempts CRTs from all hazardous waste requirements, if the recycler complies with certain conditions for packaging, labeling and storage. So, in general, the CRT Rule makes it easier to recycle CRTs than if the CRTs had to be handled as hazardous waste."


• United States Environmental Protection Agency (EPA), Reducing Stormwater Costs through Low Impact Development (LID) Strategies and Practices (EPA 841-F-07-006)(December 2007)
  
  "This report summarizes 17 case studies of developments that include Low Impact Development (LID) practices and concludes that applying LID techniques can reduce project costs and improve environmental performance. In most cases, LID practices were shown to be both fiscally and environmentally beneficial to communities. In a few cases, LID project costs were higher than those for conventional stormwater management practices. However, in the vast majority of cases, significant savings were realized due to reduced costs for site grading and preparation, stormwater infrastructure, site paving, and landscaping. Total capital cost savings ranged from 15 to 80 percent when LID methods were used, with a few exceptions in which LID project costs were higher than conventional stormwater management costs."—Executive Summary.


• United States Environmental Protection Agency (EPA), Office of Atmospheric Programs, EPA Analysis of the Low Carbon Economy Act of 2007, S. 1766 in 110th Congress (EPA Analysis of S. 1766) (January 15, 2008)
  
  "S. 1766 places a GHG emission cap on all GHGs in the Transportation, Electricity, Industrial, and Commercial sectors, establishes an auction and after-market for emission allowances, allows for unlimited domestic offsets, and does not allow the use of foreign credits or international offset projects."—Key Results & Insights.


• United States Government Accountability Office (GAO), Influenza Pandemic: Efforts Under Way to Address Constraints on Using Antivirals and Vaccines to Forestall a Pandemic (Report to Congressional Requesters, GAO-08-92) (December 2007)
  

  "Pandemic influenza poses a threat to public health at a time when the United Nations’ World Health Organization (WHO) has said that infectious diseases are spreading faster than at any time in history. The last major influenza pandemic occurred from 1918 to 1919. Estimates of deaths worldwide if a similar pandemic were to occur have ranged between 30 million and 384 million people. Individual countries and international organizations have developed and begun to implement a strategy for forestalling (that is, containing, delaying, or minimizing the impact of) the onset of a pandemic. Antivirals and vaccines may help forestall a pandemic.

  "GAO was asked to examine (1) constraints upon the use of antivirals and vaccines to forestall a pandemic and (2) efforts under way to overcome these constraints. GAO reviewed documents and consulted with officials of the Departments of State and Health and Human Services (HHS), international organizations, and pharmaceutical manufacturers."—Why GAO Did This Study.
  

• United States Government Accountability Office (GAO), National Flood Insurance Program: Greater Transparency and Oversight of Wind and Flood Damage Determinations Are Needed (Report to the Ranking Member, Committee on Financial Services, House of Representatives, GAO-08-28) (December 2007)
  
  "Disputes between policyholders and insurers after the 2005 hurricane season highlight the challenges in understanding the cause and extent of damages when properties are subjected to both high winds and flooding. Questions remain over the adequacy of steps taken by the Federal Emergency Management Agency (FEMA) to ensure that claims paid by the National Flood Insurance Program (NFIP) cover only those damages caused by flooding. GAO was asked to evaluate (1) issues that arise when multiple insurance policies provide coverage for losses from a single event, (2) state regulators’ oversight of loss adjusters, and (3) information that NFIP collects to assess the accuracy of damage determinations and payments. GAO collected data from FEMA, reviewed reinspection reports and relevant policies and procedures, and interviewed state regulatory officials and others about adjuster oversight and NFIP."—Why GAO Did This Study.


• Wall Street Journal, Environmental Capital (blog) (January 30, 2008)
  

  "Welcome to Environmental Capital, The Wall Street Journal’s new daily blog about the business of the environment. It’s not just about melting ice sheets. It’s about the flow of money.
  

  "The global-warming debate is at a tipping point that makes it a massive economic story. There’s widespread agreement that climate change is an issue that isn’t going away. The real debate is over what the world will do about it – and who will foot the bill. That scramble for solutions already is beginning to redistribute capital among countries, companies and investors. We hope to follow that ferment."—Environmental Capital: Following the Greenbacks.

Downtown

Ann Bartow, a faithful reader of Jurisdynamics, a super genius, and a dear friend, reminds me that Petula Clark's 1964 classic, Downtown, makes you smile whenever it's played. And so here it is:

For lyrics and other versions of this song, click here.This German-language version of Downtown is a ton of fun as well. Lyrics in English and German follow, courtesy of Lostpedia. Keine Zweifel — die Fernsehserie Lost wird auch in Deutschland sowie in den Vereinigten Staaten sehr viel beliebt. Sei wieder froh . . . .

English version

Deutsche Variante

When you're alone and life is making you lonely you can always go Downtown When you've got worries all the noise and the hurry seems to help, I know Downtown Just listen to the music of the traffic in the city Linger on the sidewalk where the neon signs are pretty How can you lose? The lights are much brighter there You can forget all your troubles, forget all your cares so go Downtown Things will be great when you're Downtown No finer place for sure Downtown Everything's waiting for you Downtown, Downtown Don't hang around and let your problems surround you there are movie shows Downtown Maybe you know some little places to go to where they never close Downtown Just listen to the rhythm of a gentle Bossa Nova You'll be dancing with 'em too before the night is over Happy again The lights are much brighter there You can forget all your troubles, forget all your cares so go Downtown Where all the lights are bright Downtown Waiting for you tonight Downtown You're gonna be all right now Downtown, Downtown And you may find somebody kind to help and understand you Someone who is just like you and needs a a gentle hand to guide them along So maybe I'll see you there We can forget all our troubles, forget all our cares so go Downtown Things will be great when you're Downtown Don't wait a minute more Downtown Everything's waiting for you Downtown, Downtown

Bist du allein, von allen Freunden verlassen Dann geh' in die Stadt Downtown Da wo das Leben über allen den Straßen Soviel' Lichter hat Downtown Vergiß im bunten Neonschein die Stunden deiner Sorgen Und hör die Großstadtmelodie bis in den frühen Morgen Sei wieder froh Da ist alles für dich da Da wirst du Dinge erleben, die sind wunderbar Come on Downtown — soviele Lichter, oh Downtown — soviel' Gesichter, oh Downtown — sie alle laden dich ein Bist du allein, weil keine Blicke dich grüßen Dann geh' in die Stadt Downtown Bist du allein, weil keine Lippen dich küssen Dann geh' in die Stadt Downtown Vergiß im bunten Neonschein die Stunden deiner Sorgen Und hör die Großstadtmelodie bis in den frühen Morgen Sei wieder froh Da ist alles für dich da Da wirst du Dinge erleben, die sind wunderbar Come on Downtown — soviele Lichter, oh Downtown — soviel' Gesichter, oh Downtown — sie alle laden dich ein (Downtown, Downtown, Downtown) (Downtown) (Downtown) Schau dich nur um, sieh ringsherum den Tanz der Leuchtreklamen Die Kinos und die Bars mit den geheimnisvollen Namen Und irgendwo Wirst du vielleicht mich dort seh'n Wenn wir uns beide begegnen, das wäre schön Come on Downtown — wenn wir uns beide seh'n Downtown — durch all' die Straßen geh'n Downtown — das wäre wunderschön Downtown, Downtown . . . .

And here are two other video options, plus an .mp3 audio file of Downtown:

Petula Clark's original	Emma Burton's 2006 cover
Just the song, please

Does constitutional theory matter?

According to Stanley Fish, no:

Does it matter if judges declare themselves to be adherents of the philosophical approach or the living constitution approach or the intentionalist approach or no approach. The urgency and occasional stridency of the debates in this area suggest that it matters very much because a judge’s interpretive theory will strongly influence, if not dictate, his or her decisions, won’t it? No. . . . “Most of the time,” said one judge, “you reach the result that’s fair and then build your thinking around it.”

The result is reached not by invoking some large theoretical vision and then tracing out its implications, but by situating the present case in a tradition of cases and putting to the facts questions that have become a central component of that tradition. Is this an instance of unjust enrichment? What is the proximate cause? Do we here apply rational or strict scrutiny? Have the wishes of the testator been clearly expressed? The first thing a judge does is not reach for a theory, but reach for the storehouse of precedents and formulas and three- or five- or ten-part tests and use them to decide under what legal rubric the case is to be placed and analyzed. That analysis will be systematic — it will follow a check list of mandated inquiries — but it will not be theoretical.

In fact, interpretation is not a theoretical act; it is a practical and empirical one. While theoretical formulations may, as I have acknowledged, be components of an opinion, they do not generate it. They make cameo appearances in a process whose main engine will be institutional and procedural. And that is what I meant when I said up top that the debates about constitutional interpretation have no practical consequences. . . .

In the end, the only way to tell the difference between conservative and progressive judges may be the Justice Potter Stewart way. You know them when you see them, and when you know them it will be because of the decisions they hand down, not be because of any interpretive theory they may profess, even one they loudly proclaim.

O Lost!

It is the darkest hour in the deepest night of the coldest season, and through the shadows I reach for twin sources of literary inspiration linked by the most tenuous of connections. O Lost!


First I look across time and the river to a Southern writer not yet forgotten, the master behind the South's greatest autobiographical protagonist, Eugene Gant:

When will they come again? When will they come again?

The laurel, the lizard, and the stone will come no more. The women weeping at the gate have gone and will not come again. And pain and pride and death will pass, and will not come again. And light and dawn will pass, and the star and the cry of a lark will pass, and will not come again. And we shall pass, and shall not come again.

What things will come again? O Spring, the cruellest and fairest of the seasons, will come again. And the strange and buried men will come again, in flower and leaf the strange and buried men will come again, for death and the dust will die. And Ben will come again, he will not die again, in flower and leaf, in wind and music far, he will come back again.

O lost, and by the wind grieved, ghost, come back again!

Thomas Wolfe, Look Homeward, Angel (1929).

And thence I look forward to Lost, even though I linger still in the twilight between seasons three and four. Lost is filled with characters who articulate diverse brands of faith, with wildly variable degrees of sincerity and credibility, but none speaks more powerfully than Mr. Eko, whose path to the priesthood took him through a simultaneous baptism, confirmation, and ordination in a shower of heroin. Though Mr. Eko slew many men, the last three with a machete while wearing a clerical collar he had not yet earned, he was holy beyond contemplation, let alone expression.

This was Mr. Eko's final confession:

I have nothing to confess because I have not sinned. Everything I have done, I have to done in order to survive. When I was a boy, I killed a man in order to save my brother. I am proud of what I have done. I have done the best I could with the life I was given.

I have done my best. I confess nothing, except this report as true as it is heartfelt: Lost, I too walk between the twin shadows of despair and defiance.

Gay marriage and the conservative movement

Dale Carpenter has organized a symposium at the South Texas College of Law dedicated to the question, "Is Gay Marriage Conservative?" The symposium will take place February 15, 2008. Dale describes it as "a first-of-its-kind event, devoted entirely to what has become an intramural debate among conservatives about the issue." The speakers, whom Dale properly characterizes as a "strong group of conservative intellectuals and gay-marriage experts," are:

• Gerard V. Bradley, Notre Dame Law School
• Dale Carpenter, University of Minnesota Law School; Visiting Professor, South Texas College of Law
• Jesse H. Choper, University of California Law School, Berkeley
• Teresa Stanton Collett, University of St. Thomas School of Law
• David Frum, American Enterprise Institute
• Charles Murray, American Enterprise Institute
• Robert F. Nagel, University of Colorado Law School
• Jonathan Rauch, The Brookings Institute
• John Yoo, University of California Law School, Berkeley

This symposium, as already noted, will ask whether gay marriage is conservative. I'll venture no opinion on this question. For me, it suffices merely to note that gay marriage deserves legal recognition.

Panoramic views of Gulf coast storm damage

Edward Fink (panoramic photos and composite) and Pierre Kattar (production) have assembled a remarkable series of interactive, panoramic images of Gulf coast storm damage at washingtonpost.com. Two samples follow; click the pictures and manipulate your mouse to adjust the view.

The Rigolets



The Rigolets strait connecting Lake Pontchartrain and Lake Borgne in New Orleans, spanned by Fort Pike Bridge on U.S. 90.


St. Bernard Parish



St. Bernard Parish over the Intercoastal Waterway near the Chalmette Bridge, southeast of New Orleans, with a barge washed up on shore.

Editor's note: Hat tip to Jurisdynamics correspondent Heather Ansert.

Die Preußische Staatsbibliothek

Cross-posted from Danzig U.S.A.

Die Preußische Staatsbibliothek

The Prussian State Library

Along Unter den Linden in Berlin, some distance east of Brandenburger Tor but considerably west of Alexanderplatz and Fernsehturm, stands the Staatsbibliothek zu Berlin. In the distant but hardly forgotten past this beautiful building bore a more assertive name: Die Preußische Staatsbibliothek. The Prussian State Library.

Unter den Linden is lined with beautiful buildings, and many of them speak more overtly to the ebb and flow of modern German history. It takes a grotesquely lazy tourist to overlook the stunning reconstruction of the Reichstag, for instance. Touring the publicly accessible portion of the old parliament building, restored to its proper place as the seat of national government, helps even a casual visitor understand how a united, democratic Germany fulfills through living architecture the twin promises that the Reichstag has made: Dem Deutschen Völke and Der Bevölkerung. To the German People and To the Population.

For those who approach Germany from the admittedly peculiar cultural prism of the American South, however, die Preußische Staatsbibliothek represents an obligatory visit in its own right. All Berlin, to the socially progressive Southerner, represents what our own "Heimat" should become. Reunited Berlin, once and rightful capital of Germany, after conquest, occupation, partition, disarmament, and global humiliation scarcely commensurate for Germany's crimes against humanity. If only Atlanta, Columbia, Birmingham, Nashville, and Richmond could be comparably redeemed from their own history. And there in the heart of Berlin, mere yards from the din of Unter den Linden, the courtyard of the old Prussian State Library beckons. This was the same ivy-covered oasis that greeted visitors and employees of the Library and its cousin, Die Preußische Akademie der Wissenschaften (the Prussian Academy of Sciences).

Within the courtyard, a single inscription will stand out: MCMXIII. 1913. The year before it all began unraveling and Germany found itself on an often hellish journey of seventy-five years. No American Southerner can behold that inscription and fail to think, "What if?" What if my own homeland, at its historical precipice comparable to MCMXIII in Germany, had only known and had exercised its last clear chance to set things right? What if I had only known? What would we, what could we have done differently?

The last words Willie Stark utters, as he lies mortally wounded by his assassin's bullets, are as perfect in the courtyard of the Preußische Staatsbibliothek as they are in All the King's Men: "It might have been all different Jack. . . . You've got to believe that. You got to. You got to believe that. . . . And it might even been different yet. If it hadn't happened, it might — have been different — even yet."

Jack Burden, for his part, knows all too well that "the world is a great snowball rolling downhill and it never rolls uphill to unwind itself back to nothing at all and nonhappening."

Because I live in Danzig U.S.A. in order to work toward its betterment (despite fearing at a deep level that the region truly is irredeemable), because I am a Southerner again by choice after having had opportunities to leave and to stay away for good, and because I too know how it feels to look back at that one moment and wonder, "Wenn nur . . . if only . . . ," I go out of history into history and the awful responsibility of Time. Und mittlerweile wartet die Preußische Staatsbibliothek auf mich.

Pinker on "The Moral Instinct"

Steven Pinker is as provocative as he is brilliant. This time he challenges the "moral instinct":

Which of the following people would you say is the most admirable: Mother Teresa, Bill Gates or Norman Borlaug? And which do you think is the least admirable? For most people, it’s an easy question. Mother Teresa, famous for ministering to the poor in Calcutta, has been beatified by the Vatican, awarded the Nobel Peace Prize and ranked in an American poll as the most admired person of the 20th century. Bill Gates, infamous for giving us the Microsoft dancing paper clip and the blue screen of death, has been decapitated in effigy in “I Hate Gates” Web sites and hit with a pie in the face. As for Norman Borlaug . . . who the heck is Norman Borlaug?

Yet a deeper look might lead you to rethink your answers. Borlaug, father of the “Green Revolution” that used agricultural science to reduce world hunger, has been credited with saving a billion lives, more than anyone else in history. Gates, in deciding what to do with his fortune, crunched the numbers and determined that he could alleviate the most misery by fighting everyday scourges in the developing world like malaria, diarrhea and parasites. Mother Teresa, for her part, extolled the virtue of suffering and ran her well-financed missions accordingly: their sick patrons were offered plenty of prayer but harsh conditions, few analgesics and dangerously primitive medical care.

From Ecclesiastes to epiphany

Herewith an interesting progression, from Ecclesiastes 9:11 to Thomas Merton, Conjectures of a Guilty Bystander (1966):

1. Ecclesiastes 9:11 (Revised Standard Version) —

Again I saw that under the sun the race is not to the swift, nor the battle to the strong, nor bread to the wise, nor riches to the intelligent, nor favor to the men of skill; but time and chance happen to them all.

2. Thomas Merton, Epiphany at Fourth and Walnut (as excerpted on The Cardinal Lawyer and Danzig U.S.A.) —

Then it was as if I suddenly saw the secret beauty of their hearts, the depths of their hearts where neither sin nor desire nor self-knowledge can reach, the core of their reality, the person that each one is in God’s eyes. If only they could all see themselves as they really are. If only we could see each other that way all the time. There would be no more war, no more hatred, no more cruelty, no more greed.

Literary Warrant [24]

• Roger Alford, Opinio Juris, Availability Cascades and Global Warming (January 2, 2008)
  
  Brief blog posting on a recent New York Times article addressing "the role of availability cascades in media coverage of global warming."


• Association of Metropolitan Water Agencies (AMWA), Implications of Climate Change for Urban Water Utilities (December 2007)
  

  "Warming of the earth’s atmosphere will continue to put mounting pressure on America’s drinking water sources, leading to diminishing supplies in some regions and flooding in others, according to an analysis released today by the Association of Metropolitan Water Agencies (AMWA), a nonprofit organization of the largest publicly owned drinking water systems in the United States.
  

  "AMWA’s report, Implications of Climate Change for Urban Water Utilities, forecasts the likely impacts of climate change on water supplies in different regions of the U.S., such as an accelerated hydrologic cycle of evaporation and precipitation, water contamination, rising sea levels and pressure on terrestrial and aquatic ecosystems."—Press release (December 13, 2007)
  

• California Air Resources Board, Comparison of Greenhouse Gas Reductions Under the CAFE Standards and ARB Regulations Adopted Pursuant To AB1493 (Technical Assessment) (January 2, 2008)
  

  "In public comments explaining his denial of a waiver under Sec. 209(b) of the Clean Air Act for California to enforce its regulations implementing AB1493, U.S. EPA Administrator Steven Johnson makes the claim, without supporting documentation, that California’s motor vehicle greenhouse gas emissions (GHG) rules are less effective than the recently adopted national CAFE standards in reducing global warming pollution. The California Air Resources Board’s (ARB) staff analyzed this claim and prepared and documented its own technical evaluation.
  

  "California standards regulate GHG emissions; federal CAFE standards are aimed at reducing the nation’s fuel consumption. This study makes the necessary calculations to allow the two programs to be evaluated so that the reductions in GHG gases under the California rules can be compared to those expected from implementation of the CAFE portion of the 2007 Energy Bill. The results show that the Administrator’s claim that the federal CAFE program is better than California’s program at reducing GHG emissions from motor vehicles is wrong, both in California and in those states that adopt the California standards."
  

Read the rest of this post . . . .

• European Environment Agency (EEA), Climate Change: The Cost of Inaction and the Cost of Adaptation (EEA Technical Report no. 13/2007)
  
  "Significant changes in climate are already visible globally, and are expected to become more pronounced in the future. These will lead to wide ranging impacts on the natural and man-made environment across different sectors and regions, which in turn will lead to economic costs. These economic costs of climate change are often known as the 'costs of inaction' and are increasingly helping to inform the policy debate. It is also evident that even if emissions of greenhouse gases stop today, changes in climate will continue for many decades. Therefore, in addition to mitigation, it is essential to develop adequate adaptive responses (adaptation) as a means of moderating damages or realising opportunities associated with climate change. To allow a fully informed debate on adaptation, there is a need to consider the economic aspects of adaptation."—Executive Summary.


• Jinxia Wang, World Bank Development Research Group, Sustainable Rural and Urban Development Team, Can China Continue Feeding Itself? The Impact of Climate Change on Agriculture (Policy Research Working Paper 4470) (January 200[8])
  
  "Several studies addressing the supply and demand for food in China suggest that the nation can largely meet its needs in the coming decades. However, these studies do not consider the effects of climate change. This paper examines whether near future expected changes in climate are likely to alter this picture. The authors analyze the effect of temperature and precipitation on net crop revenues using a cross section consisting of both rainfed and irrigated farms. Based on survey data from 8,405 households across 28 provinces, the results of the Ricardian analysis demonstrate that global warming is likely to be harmful to China but the impacts are likely to be very different in each region. The mid latitude region of China may benefit from warming but the southern and northern regions are likely to be damaged by warming. More precipitation is beneficial to Chinese farmers except in the wet southeast. Irrigated and rainfed farmers have similar responses to precipitation but not to temperature. Warmer temperatures may benefit irrigated farms but they are likely to harm rainfed farms. Finally, seasonal effects vary and are offsetting. Although we were able to measure the direct effect of precipitation and temperature, we could not capture the effects of change in water flow which will be very important in China. Can China continue feeding itself if climate changes? Based on the empirical results, the likely gains realized by some farmers will nearly offset the losses that will occur to other farmers in China. If future climate scenarios lead to significant reductions in water, there may be large damages not addressed in this study."—Summary.


• Cassandra Johnson & D.B.K. English, United States Department of Agriculture Forest Service, Visitor Diversity on National Forests—How Should Managers Respond? (Proceedings: National Workshop on Recreation Research and Management, General Technical Report PNW-GTR-698)
  
  "Historically, Anglo Americans have been the primary clientele at nature-based outdoor recreation areas in the United States. Goldsmith highlighted the lack of racial and ethnic diversity among National Park visitors. Citing a Texas A&M study, Goldsmith reported that less than 1% of car visitors to Yosemite National Park were African American and less than 4% of bus riders to the park were African American. Visitation by Hispanics at Grand Canyon National Park in Arizona was similar to that for Blacks. Natural resource managers and policy makers also have been mostly Anglo. Not surprisingly, the resulting management 'culture' has privileged traditional natural resource values and beliefs rooted in White, middle American culture."


• Bruce Katz, Christopher Geissler & Robert Puentes, Brookings Institution, America’s Infrastructure: Ramping Up or Crashing Down (January 2008)
  

  "Infrastructure has a dramatic effect on the economic competitiveness of our nation, the health of our environment and our quality of life. And infrastructure—freight ports, airports, bridges, roads, rail and transit networks, water and sewer systems, web of channel communications—is the connective tissue of our nation. Smart policies and investments can enhance and further national prosperity and the health and vitality of metropolitan areas, where the bulk of our population lives and jobs are located.
  

  "A long-term infrastructure plan can foster productive growth in our economy, sustainable growth that furthers energy independence and real solutions to climate change and inclusive growth so that low and moderate-income families have access to opportunity."—Executive Summary.
  

• National Association of Counties, Counties & Residential Green Building Standards (Green Government Initiative)
  
  "The built environment has a profound impact on the natural environment, the economy, and human health and productivity. Homes account for over 20% of the nation’s energy use and as a result, for over 20% of carbon dioxide emissions in the United States. Home builders and home buyers throughout the country are demonstrating an increased interest in green building—for environmental, health, and financial reasons. Counties can play an important role in providing services, incentives, programs and policies that support the green building movement."—Introduction.


• The Nicholas Institute for Environmental Policy Solutions, Harnessing Farms and Forests in the Low-Carbon Economy How to Create, Measure, and Verify Greenhouse Gas Offsets, eds. Zach Willey & Bill Chameides, Environmental Defense (Duke University Press 2007)
  
  "This guide is the first comprehensive technical publication providing direction to landowners for sequestering carbon and information for traders and others who will need to verify the sequestration. It will provide invaluable direction to farmers, foresters, land managers, consultants, brokers, investors, regulators, and others interested in creating consistent, credible greenhouse gas offsets as a tradable commodity in the United States."


• Jonathan Thompson, Running Dry: Where Will the West Get Its Water?, Science Findings (United States Department of Agriculture, Pacific Northwest Research Station) (No. 97) (October 2007)
  
  "Late summer streamflow in western and central Oregon and northern California is almost exclusively due to immense groundwater storage in the Cascade Range. The volume of water stored in permeable lava flows in the Cascades is seven times that stored as snow. Nonetheless, until recently, virtually all examinations of streamflow trends under future climates in the West have focused on the anticipated loss of snowpack. This has painted an incomplete picture of the looming water resource crisis that is expected because of global warming."—In Summary.


• Toronto City Planning, Design Guidelines for 'Greening' Surface Parking Lots (Draft) (November 2007)
  

  "When functional requirements are the only objectives considered in parking lot design, the design outcome is generally undesirable, with poor quality landscaping, unattractive streetscapes and a lack of pedestrian safety, comfort and amenity.
  

  "Conventional surface parking lots also represent an environmental challenge. Large expanses of asphalt contribute to the urban heat island effect, which raises local air temperature, elevates smog, and, in turn, increases energy demand for summer cooling. Vehicles left to 'bake in the sun' can be significant polluters as well, emitting smog-forming contaminants when parked and requiring additional energy for cooling when travel resumes."—Introduction.
  

• Trust for America's Health, Ready or Not? Protecting the Public's Health from Diseases, Disasters, and Bioterrorism (Issue Report) (December 2007)
  

  "This report finds that on some measures, significant progress has been made in the nation’s preparedness. There are important areas, however, where continued, concerted action is needed. From assuring an adequate stockpile of pandemic influenza countermeasures to having a public health workforce large enough and trained enough to respond to an emergency, federal and state policies still fall short of their stated goals.
  

  "Almost half the states do not provide sufficient legal protection from liability for health care volunteers who respond to the nation’s call for assistance in an emergency. In many other areas, a lack of transparency makes it hard for the American people and their elected representatives to know whether their government is protecting them. The variation in preparedness among the states, while not as great as in past years, does mean that where one lives still determines how well one is protected. Until all states measure up, the United States is not safe."—Introduction.
  

• United Nations Dag Hammarskjöld Library, Department of Public Information, UN Pulse, Climate Action (December 24, 2007)
  
  "Climate Action (e-book) is an international communication platform established by Sustainable Development International in partnership with the United Nations Environment Programme (UNEP) to educate businesses, governments and NGOs as to what they can do to reduce their carbon footprint and adapt to the impacts of climate change. The publication and supporting website will assist institutional investors in analysing and comparing companies that are responding to the business risks and opportunities resulting from global warming."


• United Nations Dag Hammarskjöld Library, Department of Public Information, UN Pulse, UNICEF: 3 Years after Tsunami (December 21, 2007)
  
  "The United Nations Children's Fund (UNICEF) reports on the organization's progress in helping children in countries affected by the tsunami of 26 December 2004 in the areas of education, health, nutrition, water and sanitation, HIV/AIDS and child protection. The report Three Year UNICEF Tsunami Anniversary Monitoring Report is available in pdf (full-text, 292 KB)."


• United Nations Development Programme, Human Development Report 2007/2008—Fighting Climate Change: Human Solidarity in a Divided World (2007)
  
  "As the Human Development Report 2007/2008 argues, climate change poses challenges at many levels. In a divided but ecologically interdependent world, it challenges all people to reflect upon how we manage the environment of the one thing that we share in common: planet Earth. It challenges us to reflect on social justice and human rights across countries and generations. It challenges political leaders and people in rich nations to acknowledge their historic responsibility for the problem, and to initiate deep and early cuts in greenhouse gas emissions. Above all, it challenges the entire human community to undertake prompt and strong collective action based on shared values and a shared vision."


• United States Department of Labor, Occupational Safety and Health Administration, Preparing and Protecting Security Personnel in Emergencies (OSHA 3335-10N) (2007)
  

  "Security personnel (i.e., guards) potentially risk occupational exposures to hazardous substances including chemical, biological, radiological, and nuclear (CBRN) materials during emergencies. Emergencies involving the release of hazardous chemicals at industrial facilities, including chemical manufacturers and industrial facilities utilizing hazardous substances, are the most likely and predictable incidents that may involve security personnel. Security personnel, however, work at a variety of locations with the potential for emergency incidents. Although general chemical release emergencies may be the most likely, incidents resulting from natural disasters or involving weapons of mass destruction (WMD) are also of concern to both private and public sector employers and the security personnel they employ. Security personnel working at companies for the protection of the facilities, materials, and products, as well as those employed by government agencies, are often called upon to provide support during hazardous substance emergencies and the emergency planning in preparation for such incidents is key to successful implementation of emergency response operations.
  

  "This document specifically addresses emergencies involving hazardous substance releases and provides guidance for employers, and their security personnel, who may be involved in the emergency response. It does not address other safety and health hazards (e.g., workplace violence) that security personnel may be exposed to while performing their routine duties."—Introduction.
  

• United States Fish & Wildlife Service, Bulletin: Statement for Polar Bear Decision (News release) (January 7, 2008)
  
  "The U.S. Fish and Wildlife Service is working diligently to reach a final decision on the proposal to list the polar bear as a threatened species under the Endangered Species Act. We expect to provide a final recommendation to the Secretary of the Interior and finalize the decision within the next month."


• United States Government Accountability Office (GAO), Army Corps of Engineers: Known Performance Issues with New Orleans Drainage Canal Pumps Have Been Addressed, but Guidance on Future Contracts Is Needed (Report to the Chairman, Ad Hoc Subcommittee on Disaster Recovery, Committee on Homeland Security and Governmental Affairs, U.S. Senate) (GAO-08-288) (December 2007)
  
  "Schedule concerns drove the Corps’ decisions in developing specifications for the pumping systems and awarding the contract, but the rush to award the contract resulted in deficiencies in key contract provisions. Specifically, the original factory test requirements were ambiguous, there were only limited provisions for on-site testing, and there were no criteria for acceptance of the pumping systems by the government. The Corps conducted an expedited competition to contract for the pumping systems and selected a supplier for contract award based largely on its ability to deliver the pumping systems by the June 1 start of the 2006 Atlantic hurricane season."—What GAO Found.


• United States Government Accountability Office (GAO), Coastal Wetlands: Lessons Learned from Past Efforts in Louisiana Could Help Guide Future Restoration and Protection (Report to Congressional Addressees) (GAO-08-130) (December 2007)
  
  "Over the last 17 years under CWPPRA, federal agencies and Louisiana have designed and/or constructed 147 projects to restore and protect over 120,000 acres of coastal wetlands—about 3 percent of the Louisiana coast. Projects have included large-scale efforts that reintroduce freshwater and sediment to declining wetlands, as well as smaller projects such as shoreline barriers and vegetation plantings to protect and restore the coastal landscape. As of June 2007, of these 147 projects, 74 were completely constructed, 16 were under construction, and 57 were being designed and engineered. While the majority of projects are full-scale restoration and protection efforts, 22 were demonstration projects, initiated to test new techniques and materials. The cost of projects can vary considerably from about $9,000 per acre to plant marsh plants to almost $54,000 per acre to restore barrier islands. As of June 2007, the estimated cost to complete all 147 projects was $1.78 billion. Projects also require a continuous source of funding to maintain them over their expected life spans, which in most cases are about 20 years—yet like naturally occurring wetlands, most restored wetlands are also subject to continuous erosion and subsidence over time. Because the CWPPRA program has not implemented a comprehensive evaluation and monitoring approach, it is not possible to determine the collective success of constructed projects."—


• United States Government Accountability Office (GAO), Natural Disasters: Public Policy Options for Changing the Federal Role in Natural Catastrophe Insurance (Report to the Ranking Member, Committee on Financial Services, House of Representatives) (GAO-08-7) (November 2007)
  
  "Large numbers of Americans are not insured for natural catastrophes. Homeowners may not purchase natural catastrophe insurance because doing so is voluntary and they may not believe that the risk justifies the expenditure. In addition, some homes may be underinsured—that is, not insured for the full replacement value. GAO estimates that the federal government made about $26 billion available to homeowners who lacked adequate insurance in response to the 2005 Hurricanes Katrina, Rita, and Wilma. Given the unsustainable fiscal path of federal and state governments, they will be challenged to maintain their current fiscal role."—What GAO Found.


• United States House of Representatives, Committee on Oversight and Government Reform, Political Interference with Climate Change Science under the Bush Administration (December 2007)
  

  "For the past 16 months, the House Oversight and Government Reform Committee has been investigating allegations of political interference with government climate change science under the Bush Administration. During the course of this investigation, the Committee obtained over 27,000 pages of documents from the White House Council on Environmental Quality (CEQ) and the Commerce Department, held two investigative hearings, and deposed or interviewed key officials. Much of the information made available to the Committee has never been publicly disclosed.
  

  "This report presents the findings of the Committee’s investigation. The evidence before the Committee leads to one inescapable conclusion: the Bush Administration has engaged in a systematic effort to manipulate climate change science and mislead policymakers and the public about the dangers of global warming."—Executive Summary.
  

• Beth Wellington, LLRX.com, Analysis of the Energy Bill, the EPA's Refusal to Grant Waivers and State Laws With Respect to Climate Change (December 23, 2007)
  
  "[A]s the calendar turns to 2008, it will fall to the courts and Congress, not the Bush Administration, to lead the way in fighting climate change."


• Harry C. Zinn & Alan R. Graefe, Emerging Adults and the Future of Wild Nature, International Journal of Wilderness, v. 13, no. 3 (December 2007)
  
  "Many resource managers and wilderness advocates see links between appreciating
  wild nature, participating in traditional outdoor activities, and support for protecting wild areas. Some of these individuals express concern that the values and recreation behavior of today’s young people may suggest less support for protecting wilderness in the future. Although emerging adults appear to express strong pro-environmental values, they exhibit outdoor recreation patterns strikingly different from the past. More questions than answers exist about emerging adults’ environmental and wilderness values, and how these values relate to their outdoor recreation behavior."—Abstract.

Headlines for the new year

Extra! Extra! Ann Bartow has tagged me with the "Headlines for the new year" blogging meme, which originated on Feminist Law Professors and began spreading there. The premise is simple: I have to identify headlines in four distinct categories:

Headline I’m most fearful of seeing in 2008:

Polar ice melt deemed irreversible
Evacuation of New Orleans, Pacific Ocean islands advised

Here's a runner-up in this category:

President-Elect _____ assassinated
Political crisis looms; war in Middle East escalates

Headline I most want to see in 2008:

Scientists announce HIV vaccine breakthrough
Drug companies agree to fund shots in developing countries

Headline I most expect to see in 2008:

Spending, scandals, and smears
Candidates spend record amount as ads and allegations fly

Headline I least expect to see in 2008:

Electoral College tie sends election to House
Supreme Court refuses to review Ohio and Florida returns

And now it's time to tag. I tag Marie Reilly, Nancy Rapoport, Michael Dorf and/or Sherry Colb, and Paul Caron.

Multimedia suggestions from South Carolina

I offer two radically different multimedia presentations, each traceable to a reader connected to South Carolina:

1.  One reader recommends PBS's documentary, Dirty Politics 2008:



I very much intend this video to be watched in conjunction with MoneyLaw's coverage of the South Carolina bar exam scandal.

2.  Another reader recommends Pope Benedict XVI's November 2007 encyclical letter, Spe Salvi:

“Spe Salvi facti sumus” — in hope we were saved, says Saint Paul to the Romans, and likewise to us (Rom 8:24). According to the Christian faith, “redemption” — salvation — is not simply a given. Redemption is offered to us in the sense that we have been given hope, trustworthy hope, by virtue of which we can face our present: the present, even if it is arduous, can be lived and accepted if it leads towards a goal, if we can be sure of this goal, and if this goal is great enough to justify the effort of the journey. Now the question immediately arises: what sort of hope could ever justify the statement that, on the basis of that hope and simply because it exists, we are redeemed? And what sort of certainty is involved here?

Multimedia source

Audio files (.mp3 and .m4a formats) of Spe Salvi have been posted for public use by Curt Jester:

Emergency and disaster response: The federal statutory framework

Note: The following constitutes a summary of my presentation at the 2008 annual meeting of the Association of American Law Schools, in a panel called "The Katrina Experience: Why Federalism Broke Down." It is derived from chapter 2 of Daniel Farber & Jim Chen, Disasters and the Law: Katrina and Beyond.

Within the statutory framework defining the federal role in emergency and disaster response, two statutes loom large:

1. The Stafford Act, 42 U.S.C. §§ 5121-5206.
2. The Posse Comitatus Act, 18 U.S.C. § 1835.

This summary identifies some of the leading issues that arise in interpreting these statutes.

The Stafford Act

Section 401 of the Stafford Act, 42 U.S.C. § 5170, enables the President to declare a major disaster. Section 501, id. § 5191, enables the President to declare an emergency. Both sources of authority require a request by the governor of an affected state. Short of either declaration, the President may authorize up to ten days' worth of essential federal assistance in the immediate aftermath of an incident that may ultimately qualify as a major disaster or an emergency. Id. 5170b.


A major disaster declaration by the President authorizes two types of federal disaster assistance:

1. General federal assistance under section 402(a) of the Stafford Act, 42 U.S.C. § 5170a.
2. Essential federal assistance under section 403, id. § 5170b.

For its part, a declaration of an emergency by the President authorizes emergency assistance under section 502, id. § 5192.

Major disaster relief and emergency relief differ in two crucial respects. First, the statutory definition of an emergency is a bit broader. The Stafford Act defines major disaster as

Any natural catastrophe (including any hurricane, tornado, storm, high water, wind driven water, tidal wave, tsunami, earthquake, volcanic eruption, landslide, mudslide, snowstorm, or drought), or, regardless of cause, any fire, flood, or explosion, in any part of the United States, which in the determination of the President causes damage of sufficient severity and magnitude to warrant major disaster assistance under this chapter to supplement the efforts and available resources of states, local governments, and disaster relief organizations in alleviating the damage, loss, hardship, or suffering caused thereby.

42 U.S.C. § 5122(2).

By contrast, an emergency is defined as

any occasion or instance for which, in the determination of the President, federal assistance is needed to supplement state and local efforts and capabilities to save lives and to protect property and public health and safety, or to lessen or avert the threat of a catastrophe in any part of the United States.

Id. § 5122(1).

Observe the use of the word catastrophe in both definitions. A "major disaster" is, in the first instance, a "natural catastrophe." An "emergency" presents an "occasion or instance" in which "federal assistance is needed . . . to lessen or avert the threat of a catastrophe." Expressio unius est exclusio alterius? If so, the definition of a "major disaster" may not cover a non-natural event, such as an electronic attack not attributable to "fire, flood, or explosion" or the deliberate release of a biological agent.

The second crucial respect in which an "emergency" differs from a "major disaster" is that the President may declare an "emergency," but not a "major disaster," if "[p]rimary responsibility rests with the United States because the emergency involves a subject area for which . . . the United States exercises exclusive or preeminent authority." In exercising this sort of emergency power, the President is directed to "consult" the affected governor, "if practicable," but the declaration ultimately does not require a governor's consent.

The Posse Comitatus Act

Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.

18 U.S.C. § 1835.

Potential violations of the Posse Comitatus Act are tested according to three judicial tests:

1. Whether civilian law enforcement officials have made "direct active use" of military personnel.
2. Whether military involvement has "pervaded the activities" of civilian authorities.
3. Whether the military has become so entangled in civilian law enforcement as to subject citizens to the "exercise of military power that is regulatory, proscriptive, or compulsory in nature."

In short, the military may play a "passive" role in law enforcement, such as providing logistical support to civilian police.

The Act does not mention the Navy (including the Marine Corps). Practically speaking, these branches are covered by the Act, thanks to Department of Defense regulations. The Act applies to members of the Reserve who are active or on inactive duty training in a Title 10 duty status. Courts have declined to give the Posse Comitatus Act extraterritorial effect.

Statutory exceptions to the Posse Comitatus Act include the Insurrection Act, 10 U.S.C. §§ 331-334, which authorizes the President to suppress "unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States." During the Pullman Strike of 1894, a federal court defined insurrection as "a rising against civil or political authority, the open and active opposition of a number of persons to the execution of law in a city or state." The Insurrection Act was used by President George H.W. Bush to quell unrest in the Virgin Islands after Hurricane Hugo in 1989 and in response to 1992's Rodney King riots in Los Angeles.

Department of Defense regulations also recognize two nonstatutory exceptions to the Posse Comitatus Act:

1. The military retains an inherent emergency power to take "[a]ctions . . . under the inherent right of the U.S. Government" as "a sovereign national entity . . . to ensure the preservation of public order and to carry out governmental operations within its territorial limits, or otherwise in accordance with applicable law, by force, if necessary."


2. Commanders may lend resources and assistance to civilian authorities when a disaster exceeds the capacity of local authorities and demands immediate action "to prevent human suffering, save lives, or mitigate great property damage." This authority appears to arise from the historical practice of the armed forces. During the 1906 San Francisco earthquake and fire, the commander of the Pacific Division directed all troops under his command to help civilian police in efforts to stop looting, fight fires, and protect federal buildings.