Wednesday, October 31, 2012

Their eyes were watching nature's God

Their Eyes Were Watching God

The wind came back with triple fury, and put out the light for the last time. They sat in company with the others in other shanties, their eyes straining against crude walls and their souls asking if He meant to measure their puny might against His. They seemed to be staring at the dark, but their eyes were watching God.

— Zora Neale Houston, Their Eyes Were Watching God (1937)

I have always been fond of this passage from Zora Neale Houston's classic, Their Eyes Were Watching God, so much so that the first edition of the book now called Disaster Law and Policy opened its chapter on social injustice with this quote. The trouble has always lain in the empathetic limits of the law. Disaster law continually lingers among the ruins, so to speak, because the architects of disaster policy rarely understand the perspective of vulnerable individuals like Janie and Tea Cake.

Into this void steps an essay by Walter Russell Mead, Nature and Nature's God, on the occasion of Hurricane Sandy:

Hurricane Sandy Manhattan is one of those places where nature seems mostly held at bay. Except for the parks, oases of carefully preserved nature deliberately shaped by the hand of man, every inch of the city’s surface has been covered by something manmade. The valleys have been exalted, the mountains laid low and the rough places plain.

Those who live and do their business there pay very little attention to the natural world most of the time. It can be hard to get a taxi in the rain, and the occasional winter snowstorm forces a brief halt to the city’s routine, but the average New Yorker’s attention is on the social world, not the world of nature. . . .

Into this busy, self involved world Hurricane Sandy has burst. Sharks have been photographed (or at least photo shopped) swimming in the streets of New Jersey towns; waves sweep across the Lower East Side; transformers explode on both sides of the Hudson as salt water surges into the tunnels and subways. For a little while at least, New Yorkers are reminded that we live in a world shaped by forces that are bigger than we are . . . .

Tuesday, October 30, 2012

A Climate-Ready City for India?




If you like sparkling diamonds and saffron saris, you will love Surat, India’s bustling, no-nonsense city, some 250 kilometers north of Mumbai, near the Arabian Sea. If you’re wearing a new diamond, there’s an 80% chance its was shaped by Surati hands (and laser beams too). And nearly every Indian has something in the closet from Surat—which is what you’d expect from a city whose clattering looms churn out 30 million meters of raw fabric a day.

But Surat, with a population of 4.5 million, faces big challenges too. Its proximity to the Tapti River delta—a strategic advantage in trade—also makes Surat a flood magnet. In the last 20 years, the city has been drowned by three major floods caused by emergency releases from an upstream dam. Lesser floods, caused by hard rains, occur more frequently, interrupting local business and displacing families living in flood plains. In 1994, a flood like that led to an outbreak of the plague. In addition, tidal surges moving up the mouth of the Tapti River threaten the city from the opposite direction. Even on calm days, high tides push salt water into parts of the river needed for drinking. All of these problems will be made considerably worse by climate change, whose effects include stronger downpours and rising seas.

For these reasons, Surat has developed a “City Resilience Strategy” focused on adapting to climatic change. The initiative is supported by the Asian Cities Climate Change Resilience Network (ACCCRN), an organization launched in 2008 and funded by the Rockefeller Foundation. ACCCRN supports adaptation work in ten cities, including three in India. (I’ll tell you about another, Gorakhpur, in a future post).

Because Surat is seen as a leader among ACCCRN projects, I was eager to see what the city was doing and how its work might be replicated. I spoke with city officials, business leaders, and public health experts. I perused the aeration basins of a water treatment plant, climbed the floodgates of a major river embankment, and threaded my way through a township built to replace a flood-prone slum. I even toured a state-of-the-art diamond-polishing facility because—well—when would I get to do that again?

In just a few years, Surat has accomplished quite a bit. With the help of outside experts, the city has assessed the climatic risks in flood management, energy, and public health. It has even mapped the social vulnerability of neighborhoods in terms of social cohesion, education, and class. The city is implementing a new early warning system for major floods and designing an inflatable dam to protect the river from saltwater intrusion.

Almost all of this work has been accomplished through a flexible and relatively loose network of public officials, business people, and community members organized around one compelling environmental goal. (I’ve written about the promise and pitfalls of such networks in the context of adaptation here.)

It’s impossible to know at this early stage how effective this experiment with “green governance” will be. Surat, one of the fastest growing cities in the world, suffers from a shortage of affordable housing, rampant sprawl in flood zones, and the complete absence of public transportation.

And I wonder how easily its resilience strategies can be duplicated elsewhere in the country. Before you get to green governance you need good governance, and that, in some quarters, is as elusive as a Bengal tiger. And note that Surat is a comparatively wealthy city. Its reliance on foreign trade and investment is one reason the business community has been such a strong supporter of expensive infrastructure.

Still, I admire the speed and efficiency with which Surat has marshaled its resources. And the commitment of city officials and other advocates I met can only be described as diamond-hard.




Friday, October 26, 2012

The River Ganges Meets Climate Change








The River Ganges Meets Climate Change

VARANASI -- We slip into the river at night, and with an easy stroke, our oarsman moves our boat across the chestnut waters of “Mother Ganga,” India’s Ganges River.

Spiritual life in Varanasi (also called Benares) is a passion. Hindus all over India save their money for the chance to visit this holy city and bathe in Ganga’s purifying waters. At sunrise, along the string of bathing steps called “ghats,” you’ll see hundreds of people of all shapes and sizes soaping up in the water, praying, laughing and chatting, or just bobbing along. At the so-called “burning ghats,” open-air cremations take place twenty-four hours a day in quiet ceremonies attended by family and curious onlookers. But this evening, my family and another, visiting from Maharashtra, are on our way to watch the Ganga Aarti, a Hindu ceremony of music and prayer devoted to Mother Ganga. The ceremony is ancient. But it takes on new power when you consider that today the Ganges is all but an environmental disaster—a septic river, riddled with industrial poisons and now threatened by climate change. If Mother Ganga were human, she would be in the I.C.U.

From the boat, we watch the temple priests lined up on the ghat, swinging brass lamps with smoky incense. A chorus sings while bells and tabla drums repeat in a kind of lazy, Brian-Eno-style sound loop. I ask one of the family members from Maharashtra (an adult son) what’s going on. “They are giving praise to Saraswati,” he says, “the goddess of knowledge.”

On the subject of knowledge, we do know what goes into river Ganges, and we know that much of it, from organic matter to toxins, is not good. The river, of course, has absorbed the remains of the dead for centuries. The boatman tells me this and more, gesturing toward the water with just a hint of rehearsal: “Ashes from cremation, they go there. Bodies of animal, cow and buffalo, they go there. Bodies of special persons, they are tied to rock with string, and they go there, sadu holy man, leper, child under two years old, pregnant lady, man bitten by cobra, all are there.”

But the more potent, though less romantic, organic pollutant is raw sewage, which flows down miles of tributaries and canals, sending Mother Ganga’s fecal coliform levels through the roof. In a country where 80% of health problems are related to water-borne illness, that’s devastating. Then there are industrial pollutants like mercury, lead, and PCBs, which are routinely discharged from the thousands of small factories along the riverbanks. Abutting croplands leak pesticides and toxic fertilizers too.

These water quality problems are now amplified by a severe decline in water quantity. Mechanical diversions of water for irrigation, drinking water, and power generation limit stream flow and thus increase the concentration of water-borne pollution. And the headwater glaciers that feed the Ganges river network are retreating rapidly because of climate change. The full effect of global warming on the Ganges is crucial but little understood. It will be the wild card in all future river management efforts.

The Indian government, spurred by citizen activists, has been fighting the river’s problems for years. But the resulting initiative, known as the Ganga Action Plan (GAP), is too expensive and depressingly ineffective. GAP promised an array of new sewage plants, tough water quality standards, and hard-nosed enforcement. But many treatment facilities were never built; and those that were suffered from shoddy construction, poor maintenance, and inadequate power supplies. Pesticides and industrial toxins were never addressed. And restricting diversions to maintain water flow has become political poison.

Here at the aarti ceremony, the clouds of smoke have transformed into small balls of fire and (my boat mate tells me) the singers are now praising Shiva, the Destroyer. I dip my hand into the water. It really is pleasant—warm and soft with a light slippery feel. I ask the boatman whether he thinks the water is clean. Yes, yes, he insists. It’s brown, like chai tea, but that is the mud. And after the monsoon the silt settles down. In fact, he insists, the mud actually neutralizes the river’s harmful impurities. He reminds me of the human ashes, the expired livestock, the anchored bodies of lost children. “Smell,” he says, “just smell.” He draws a deep breath. “You see? No smell is there. That is Mother Ganga.”

For me, the Ganges experience encapsulates three points. First, in the developing world, climate adaptation will always be just a part of much more obvious and immediate environmental problems. Global warming is already shrinking the Ganges’ output and threatening future water supplies for millions living in the Ganges basin. But the lesser flow is already compromising the water quality for people who use it today. In adapting to climate change, policy makers are properly more concerned with addressing the immediate health and cultural needs of the public. But when they do that, they must consider climate.

Second, getting adaptation right requires top-notch climate projections and hydraulic modeling. The government’s Indian Institute of Tropical Meteorology is on the cutting edge of climate science, but its data are not always easily accessible to policy makers and in some cases unavailable to ordinary citizens. This needs to change.

Third, in a bureaucracy as big and unwieldy as India’s the government’s feet must be held to the fire. It takes an informed and impassioned citizenry to make sure that project money is not wasted and that health standards get enforced. It’s crucial that the everyday person understand not just what climate change or water pollution is, but what it does and how it harms..

Which brings me back to Saraswati, champion of knowledge. Always the favorite of exam-taking students, Saraswati is, herself, a former river goddess, often seen resting atop a paddling swan. But what I like most are her four strong arms, signifying intellect, sentience, alertness, and ego. Because, really, there is a lot of work to be done.

Sunday, October 21, 2012

Bioprospect theory

Jim Chen, Bioprospect Theory, available at http://ssrn.com/abstract=2164848 or http://bit.ly/BioprospectTheory. To be presented at the University of Akron School of Law's sixth annual Intellectual Property Scholars Forum on October 26, 2012. Jeremy Cherfas and Bruce Arnold have kindly taken notice of Bioprospect Theory on their blogs.

Bioprospecting Conventional wisdom treats biodiversity and biotechnology as rivalrous values. The global south is home to most of earth's vanishing species, while the global north holds the capital and technology needed to develop this natural wealth. The south argues that intellectual property laws enable the industrialized north to commit biopiracy. By contrast, the United States has characterized calls for profit-sharing as a threat to the global life sciences industry. Both sides magnify the dispute, on the apparent consensus that commercial exploitation of genetic resources holds the key to biodiversity conservation.

Both sides of this debate misunderstand the relationship between biodiversity and biotechnology. Both sides have overstated the significance of bioprospecting. It is misleading to frame the issue as whether intellectual property can coexist with the international legal framework for preserving biodiversity. Any lawyer can reconfigure intellectual property to embrace all of the intangible assets at stake, including raw genetic resources, advanced agricultural and pharmaceutical research, and ethnobiological knowledge.

The real challenge lies in directing biodiversity conservation and intellectual property toward appropriate preservation and exploitation of the biosphere. Commercial development aids biodiversity primarily by overcoming perverse economic incentives to consume scarce natural resources that may turn out to have greater global, long-term value. We continue to debate these issues not because we are rational, but precisely because we are not.

Indeed, legal approaches to biodiversity and to biotechnology are so twisted that they represent an extreme application of prospect theory. Losing supposedly hurts worse than winning feels good. The law of biodiversity and biotechnology appears to reverse this presumption. Biodiversity loss is staggering and undeniable. Humans are responsible for the sixth great extinction spasm of the Phanerozoic Eon. By contrast, gains from bioprospecting are highly speculative. Even if they are ever realized, they will be extremely concentrated. There is no defensible basis for treating ethnobiological knowledge as the foundation of a coherent approach to global economic development.

In spite of these realities, the global community continues to spend its extremely small and fragile storehouse of political capital on this contentious corner of international environmental law. Global economic diplomacy should be made of saner stuff. The fact that it is not invites us to treat the entire charade as a distinct branch of behavioral law and economics: bioprospect theory.

Saturday, October 20, 2012

Walrus baby

Yes, walruses are charismatic megafauna, and biodiversity conservation means so much more than that. But it sure is fun to watch a 250-pound walrus baby, Mitik, frolic in his first days at the New York Aquarium. Hat tip to New York Times.

Sunday, October 14, 2012

On the barbie

As a child of the Cold War, a time long ago when bedtime stories about the end of the world usually involved nuclear war between East and West, I have always thought of Australia as the probable last redoubt of civilization. I blame Neil Shute's On the Beach: The idea was that fallout from a nuclear war between the Soviet Union and the United States would reach Australia more slowly than any other place in the developed world.

Fast forward four decades, half a century, some other comparable stretch of time. Today, bedtime stories about the end of the world usually involve polar melting both north and south. And far from being civilization's last redoubt, "Australia is the canary in the coal mine" of global climate change, a harbinger of things "we can expect to see in other places in the future." From Jeff Goodell, Climate Change and the End of Australia:

Over the course of just a few weeks [in 2011], the continent [was] hit by a record heat wave, a crippling drought, bush fires, floods that swamped an area the size of France and Germany combined, even a plague of locusts. "In many ways, it is a disaster of biblical proportions" . . . . Australia — which maintains one of the highest per-capita carbon footprints on the planet — has summoned up the wrath of the climate gods . . . .

Australians [fear] that their country may be doomed by global warming. [That] year's disasters, in fact, [were] only the latest installment in an ongoing series of climate-related crises. In 2009, wildfires in Australia torched more than a million acres and killed 173 people. The Murray-Darling Basin, which serves as the country's breadbasket, has suffered a dec­ades-long drought, and what water is left is becoming increasingly salty and unusable, raising the question of whether Australia, long a major food exporter, will be able to feed itself in the coming dec­ades. The oceans are getting warmer and more acidic, leading to the all-but-certain death of the Great Barrier Reef within 40 years. Homes along the Gold Coast are being swept away, koala bears face extinction in the wild, and farmers, their crops shriveled by drought, are shooting themselves in despair.

Neil Shute really did fail to foresee the future. Perhaps time has come to rewrite his apocalyptic classic. The new title, though, might have to be On the Barbie.

Wednesday, October 03, 2012

Merger to monopsony: Revisiting AT&T's failed bid for T-Mobile

T-Mobile

A scant year after the collapse of its ill-fated merger with AT&T, T-Mobile has announced its intentions to acquire MetroPCS. This occasion is as good as any other for promoting my paper on one aspect of the failed AT&T/T-Mobile merger, Merger to Monopsony: AT&T, T-Mobile, and the Clayton Act. I am very grateful to Danny Sokol for promoting Merger to Monopsony in a recent post on the Antitrust and Competition Policy Blog.

Jim Chen, Merger to Monopsony: AT&T, T-Mobile, and the Clayton Act, downloadable at http://ssrn.com/abstract=2130962:

AT&T/T-Mobile

In a pivotal antitrust decision, Cellular South, Inc. v. AT&T Inc., 821 F. Supp. 2d 308 (D.D.C. 2011), the United States District Court for the District of Columbia allowed Sprint and Cellular South to pursue their suits to enjoin AT&T's proposed acquisition of T-Mobile. These suits posed a significant barrier to the merger of AT&T and T-Mobile. The ability of Sprint and Cellular South to pursue their claims represented a modest but important victory against the domination of the American wireless industry by an emerging AT&T/Verizon duopoly.

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