Aff

Freshwater 1AC

1AC – UtilThe standard is minimizing suffering. First, government policy is constrained by limitations on resources. Any government decision must account for tradeoffs, which only utilitarian ethics can do. Mack 4 [(Peter, MBBS, FRCS(Ed), FRCS (Glasg), PhD, MBA, MHlthEcon) “Utilitarian Ethics in Healthcare.” International Journal of the Computer, the Internet, and Management Vol. 12, No.3. 2004. Department of Surgery. Singapore General Hospital.] SJDI

Medicine is a costly science, but of greater concern to the health economist is that it is also a limitless art. Every medical advance created new needs that did not exist until the means of meeting them came into existence. Physicians are reputed to have an infinite capacity to do ever more things, and perform ever more expensive interventions for their patients so long as any of their patients’ health needs remain unfulfilled. The traditional stance of the physician is that each patient is an isolated universe. When confronted with a situation in which his duty involves a competition for scarce medications or treatments, he would plead the patient’s cause by all methods, short of deceit. However, when the physician’s decision involves more than just his own patient, or has some commitment to public health, other issues have to be considered. He then has to recognise that the unbridled advocacy of the patient may not square with what the economist perceives to be the most advantageous policy to society as a whole. Medical professionals characteristically deplore scarcities. Many of them are simply not prepared to modify their intransigent principle of unwavering duty to their patients’ individual interest. However, in decisions involving multiple patients, making available more medication, labour or expenses for one patient will mean leaving less for another. The physician is then compelled by his competing loyalties to enter into a decision mode of one versus many, where the underlying constraint is one of finiteness of the commodities. Although the medical treatment may be simple and inexpensive in many instances, there are situations such as in renal dialysis, where prioritisation of treatment poses a moral dilemma because some patients will be denied the treatment and perish. Ethics and economics share areas of overlap. They both deal with how people should behave, what policies the state should pursue and what obligations citizens owe to their governments. The centrality of the human person in both normative economics and normative ethics is pertinent to this discussion. Economics is the study of human action in the marketplace whereas ethics deals with the “rightness” or “wrongness” of human action in general. Both disciplines are rooted in human reason and human nature and the two disciplines intersect at the human person and the analysis of human action. From the economist’s perspective, ethics is identified with the investigation of rationally justifiable bases for resolving conflict among persons with divergent aims and who share a common world. Because of the scarcity of resources, one’s success is another person’s failure. Therefore ethics search for rationally justifiable standards for the resolution of interpersonal conflict. While the realities of

human life have given rise to the concepts of property, justice and scarcity, the management of scarcity requires the exercise of choice, since having more of some goods means having less of others. Exercising choice in turn involves comparisons, and comparisons are based on principles. As ethicists, the meaning of these principles must be sought in the moral basis that implementing them would require. For instance, if the implementation of distributive justice in healthcare is founded on the basis of welfare-based principles, as opposed to say resource-based principles, it means that the health system is motivated by the idea that what is of primary moral importance is the level of welfare of the people. This means that all distributive questions should be settled according to which distribution maximises welfare. Utilitarianism is fundamentally welfarist in its philosophy. Application of the principle to healthcare requires a prior understanding of the welfarist theory as expounded by the economist. Conceptually, welfarist theory is built on four tenets: utility maximisation, consumer sovereignty, consequentialism and welfarism. Utility maximisation embodies the behavioural proposition that individuals choose rationally, but it does not address the morality of rational choice. Consumer sovereignty is the maxim that individuals are the best judge of their own welfare. Consequentialism holds that any action or choice must be judged exclusively in terms of outcomes. Welfarism is the proposition that the “goodness” of the resource allocation be judged solely on the welfare or utility levels in that situation. Taken together these four tenets require that a policy be judged solely in terms of the resulting utilities achieved by individuals as assessed by the individuals themselves. Issues of who receives the utility, the source of the utility and any non-utility aspects of the situation are ignored.

Second, pleasure and pain are intrinsically valuable. People consistently regard pleasure and pain as good reasons for action, despite the fact that pleasure doesn’t seem to be instrumentally valuable for anything.Moen 16 [Ole Martin Moen, Research Fellow in Philosophy at University of Oslo “An Argument for Hedonism” Journal of Value Inquiry (Springer), 50 (2) 2016: 267–281] SJDI

Let us start by observing, empirically, that a widely shared judgment about intrinsic value and disvalue is that pleasure is intrinsically valuable and pain is intrinsically disvaluable. On virtually any proposed list of intrinsic values and disvalues (we will look at some of them below), pleasure is included among the intrinsic values and pain among the intrinsic disvalues. This inclusion makes intuitive sense, moreover, for there is something undeniably good about the way pleasure feels and something undeniably bad about the way pain feels, and neither the goodness of pleasure nor the badness of pain seems to be exhausted by the further effects that these experiences might have. “Pleasure” and “pain” are here understood inclusively, as encompassing anything hedonically positive and anything hedonically negative.2 The special value statuses of pleasure and pain are manifested in how we treat these experiences in our everyday reasoning about values. If you tell me that you are heading for the convenience store, I might ask: “What for?” This is a

reasonable question, for when you go to the convenience store you usually do so, not merely for the sake of going to the convenience store, but for the sake of achieving something further that you deem to be valuable. You might answer, for example: “To buy soda.” This answer makes sense, for soda is a nice thing and you can get it at the convenience store. I might further inquire, however: “What is buying the soda good for?” This further question can also be a reasonable one, for it need not be obvious why you want the soda. You might answer: “Well, I want it for the pleasure of drinking it.” If I then proceed by asking “But what is the pleasure of drinking the soda good for?” the discussion is likely to reach an awkward end. The reason is that the pleasure is not good for anything further; it is simply that for which going to the convenience store and buying the soda is good.3 As Aristotle observes: “We never ask [a man] what his end is in being pleased, because we assume that pleasure is choice worthy in itself.”4 Presumably, a similar story can be told in the case of pains, for if someone says “This is painful!” we never respond by asking: “And why is that a problem?” We take for granted that if something is painful, we have a sufficient explanation of why it is bad. If we are onto something in our everyday reasoning about values, it seems that pleasure and pain are both places where we reach the end of the line in matters of value.

Moreover, only pleasure and pain are intrinsically valuable. All other values can be explained with reference to pleasure; Occam’s razor requires us to treat these as instrumentally valuable. Moen 16 [Ole Martin Moen, Research Fellow in Philosophy at University of Oslo “An Argument for Hedonism” Journal of Value Inquiry (Springer), 50 (2) 2016: 267–281] SJDI

I think several things should be said in response to Moore’s challenge to hedonists. First, I do not think the burden of proof lies on hedonists to explain why the additional values are not intrinsic values. If someone claims that X is intrinsically valuable, this is a substantive, positive claim, and it lies on him or her to explain why we should believe that X is in fact intrinsically valuable. Possibly, this could be done through thought experiments analogous to those employed in the previous section. Second, there is something peculiar about the list of additional intrinsic values that counts in hedonism’s favor: the listed values have a strong tendency to be well explained as things that help promote pleasure and avert pain. To go through Frankena’s list, life and consciousness are necessary presuppositions for pleasure; activity, health, and strength bring about pleasure; and happiness, beatitude, and contentment are regarded by Frankena himself as “pleasures and satisfactions.” The same is arguably true of beauty, harmony, and “proportion in objects contemplated,” and also of affection, friendship, harmony, and proportion in life, experiences of achievement, adventure and novelty, self-expression, good reputation, honor and esteem. Other things on Frankena’s list, such as understanding, wisdom, freedom, peace, and security, although they are perhaps not themselves pleasurable, are important means to achieve a happy life, and as such, they are things that hedonists would value highly. Morally good dispositions and virtues, cooperation, and just distribution of

goods and evils, moreover, are things that, on a collective level, contribute a happy society, and thus the traits that would be promoted and cultivated if this were something sought after. To a very large extent, the intrinsic values suggested by pluralists tend to be hedonic instrumental values. Indeed, pluralists’ suggested intrinsic values all point toward pleasure, for while the other values are reasonably explainable as a means toward pleasure, pleasure itself is not reasonably explainable as a means toward the other values. Some have noticed this. Moore himself, for example, writes that though his pluralistic theory of intrinsic value is opposed to hedonism, its application would, in practice, look very much like hedonism’s: “Hedonists,” he writes “do, in general, recommend a course of conduct which is very similar to that which I should recommend.”24 Ross writes that “[i]t is quite certain that by promoting virtue and knowledge we shall inevitably produce much more pleasant consciousness. These are, by general agreement, among the surest sources of happiness for their possessors.”25 Roger Crisp observes that “those goods cited by non-hedonists are goods we often, indeed usually, enjoy.”26 What Moore and Ross do not seem to notice is that their observations give rise to two reasons to reject pluralism and endorse hedonism. The first reason is that if the suggested non-hedonic intrinsic values are potentially explainable by appeal to just pleasure and pain (which, following my argument in the previous chapter, we should accept as intrinsically valuable and disvaluable), then—by appeal to Occam’s razor—we have at least a pro tanto reason to resist the introduction of any further intrinsic values and disvalues. It is ontologically more costly to posit a plurality of intrinsic values and disvalues, so in case all values admit of explanation by reference to a single intrinsic value and a single intrinsic disvalue, we have reason to reject more complicated accounts. The fact that suggested non-hedonic intrinsic values tend to be hedonistic instrumental values does not, however, count in favor of hedonism solely in virtue of being most elegantly explained by hedonism; it also does so in virtue of creating an explanatory challenge for pluralists. The challenge can be phrased as the following question: If the non-hedonic values suggested by pluralists are truly intrinsic values in their own right, then why do they tend to point toward pleasure and away from pain?27

High magnitude, low probability first Bostrom 13 [(Nick, Philosopher and professor (Oxford), Ph.D. (LSOE), director of The Future of Humanity Institute and the Programme on the Impacts of Future Technology), “Existential Risk Prevention as Global Priority,” Global Policy, Vol 4, Issue 1, http://www.existential-risk.org/concept.html] TDI

The maxipok rule 1.1. Existential risk and uncertainty An existential risk is one that threatens the premature extinction of Earth-originating intelligent life or the permanent and drastic destruction of its potential for desirable future development (Bostrom 2002).

Although it is often difficult to assess the probability of existential risks, there are many reasons to suppose that the total such risk confronting humanity over the next few

centuries is significant . Estimates of 10-20% total existential risk in this century are fairly typical among those who have

examined the issue, though inevitably such estimates rely heavily on subjective judgment.1 The most reasonable estimate might be

substantially higher or lower. But perhaps the strongest reason for judging the total existential risk

within the next few centuries to be significant is the extreme magnitude of the values at stake. Even a small probability of existential catastrophe could be highly practically significant (Bostrom 2003; Matheny 2007; Posner 2004; Weitzman 2009). Humanity has survived what we might call natural existential risks for hundreds of thousands of years; thus it is prima facie unlikely that any of them will do us in within the next hundred.2 This conclusion is buttressed when we analyze specific risks from nature, such as asteroid impacts, supervolcanic eruptions, earthquakes, gamma-ray bursts, and so forth: Empirical impact distributions and scientific models suggest that the likelihood of extinction because of these kinds of risk is extremely small

on a time scale of a century or so.3 In contrast, our species is introducing entirely new

kinds of existential risk — threats we have no track record of surviving . Our longevity as a species therefore offers no strong prior grounds for confident optimism. Consideration of specific existential-risk scenarios bears out the suspicion that the great bulk of existential risk in the foreseeable future consists of anthropogenic existential risks — that is, those arising from human activity. In particular, most of the biggest existential risks seem to be linked to potential future technological breakthroughs that may radically expand our ability to manipulate the

external world or our own biology. As our powers expand, so will the scale of their potential consequences — intended and unintended , positive and negative . For example, there appear to be significant existential risks in some of the advanced forms of biotechnology, molecular nanotechnology, and machine

intelligence that might be developed in the decades ahead. The bulk of existential risk over the next century may thus reside in rather speculative scenarios to which we cannot assign precise probabilities through any rigorous statistical or scientific method. But the fact that the probability of some risk is difficult to quantify does not imply that the risk is negligible . Probability can be understood in different senses . Most relevant here is the epistemic sense in which probability is construed

as (something like) the credence that an ideally reasonable observer should assign to the risk's materializing based on currently available

evidence.4 If something cannot presently be known to be objectively safe, it is risky at least in the subjective sense relevant to decision making. An empty cave is unsafe in just this sense if you cannot tell whether or not it is home to a hungry lion. It would be rational for you to avoid the cave if you reasonably judge that the expected harm of entry outweighs the expected benefit . The uncertainty and error-proneness of our first-order assessments of risk is

itself something we must factor into our all-things-considered probability assignments. This factor often dominates in low-probability, high-consequence risks — especially those involving poorly understood natural

phenomena, complex social dynamics, or new technology, or that are difficult to assess for other reasons. Suppose that some scientific analysis A indicates that some

catastrophe X has an extremely small probability P(X) of occurring. Then the probability that A has some hidden crucial flaw may easily be much greater than P(X).5 Furthermore, the conditional probability of X given that A is crucially flawed, P(X|¬A), may be fairly high . We may then find that most of the

risk of X resides in the uncertainty of our scientific assessment that P(X) was small (figure 1) (Ord, Hillerbrand and Sandberg 2010).

1AC – BiodiversityFreshwater biodiversity is steeply declining – high interconnectivity and anthropogenic pressures make these ecosystems hotspots of endangermentReid et al 11/22 [(Andrea, Fish Ecology and Conservation Physiology Laboratory, Department of Biology, Carleton University, Ottawa, K1S 5B6 Canada) "Emerging Threats and Persistent Conservation Challenges for Freshwater Biodiversity," Wiley Online Library, 11/22/18] TDI

It has been over a decade since Dudgeon et al. (2006) published their seminal review of ecological stressors responsible for global freshwater biodiversity decline. This authoritative paper has been cited over 1800 times, placing it among the top‐cited 1% of papers in the field of Biology and Biochemistry (Web of Science®). Dudgeon et al. (2006) identified ‘overexploitation’, ‘water pollution’, ‘flow modification’, ‘destruction or degradation of habitat’ and ‘invasion by exotic species’ as five leading causes of population declines and range reductions of freshwater organisms worldwide. However, over the last decade, and as we advance into the epoch now being referred to as ‘The Anthropocene’ (Crutzen, 2006), these threats have escalated and/or evolved, and new or previously unrecognised threats have become more apparent.

The current scale of biodiversity loss in fresh waters is now so rapid that we consider it an invisible tragedy – hidden beneath the water surface (Richter et al., 1997) – that attracts little public, political or scientific interest (Cooke et al., 2016). It is timely, therefore, to revisit the questions: which emerging threats pose the greatest challenge to freshwater biodiversity conservation, and where do opportunities for intervention exist?

This overview identifies these emerging threats and updates our knowledge of continuing challenges to freshwater conservation, paying special attention to issues that may have global, undesirable effects. The scope includes: (i) threats identified by expert opinion and supported by primary literature; (ii) threats that vary in magnitude, geographic extent and/or frequency around the world; and (iii) threats that are entirely novel since 2006 (see Section V.7), or previously known issues with trajectories that require renewed consideration (see Section V.9). We begin by describing the status of global freshwater biodiversity and changes identified since Dudgeon et al. (2006). Twelve emerging threats are discussed and exemplified using diverse taxonomic groups with examples of mitigation provided where possible. We close with a discussion of the risks and benefits of various conservation tools, finally describing areas of conservation optimism that could contribute to a ‘good’ Anthropocene (Bennett et al., 2016) for freshwater biodiversity.

II. FRESHWATER BIODIVERSITY: A DEEPENING CRISIS

Fresh waters comprise only 0.01% of the water on Earth, with lakes, reservoirs and rivers covering approximately 2.3% (and freshwater wetlands

encompassing an estimated 5.4–6.8%) of the global land surface area, excluding large ice sheets

(Lehner & Döll, 2004). An initial global inventory – the Freshwater Animal Biodiversity Assessment

(FABA) (Balian et al., 2008) – revealed that these ecosystems host almost 9.5% of the Earth's described animal species , including one‐third of vertebrates; wetland ecosystems which are

highly biodiverse were not included in FABA. Despite the much greater area and total production of marine environments, the species richness of marine and freshwater fishes (Actinopterygii) is similar (14736 and 15149 species, respectively), with all saltwater species derived from a freshwater ancestor (Carrete Vega & Wiens, 2012).

Alarmingly, indicators are revealing rapid population declines and a large extinction risk in freshwater organisms . The World Wide Fund for Nature (WWF) Living Planet

Index (LPI) (Collen et al., 2009) disclosed that the index for populations of freshwater species fell more steeply from 1970 to 2012 than either the index for marine or terrestrial populations (see Fig. 1) (WWF, 2016). The LPI for freshwater

vertebrates has declined by 81% (range 68–89%) relative to index declines of 38 and 36% for land and sea, respectively; by 2014, this value for freshwater ecosystems had risen to 83% (WWF, 2018). This represents an annualised index decline of 3.9% for monitored freshwater populations, which is close to four times greater than that of terrestrial populations (1.1%). In this analysis, all 881 freshwater species (and 3324 populations) used to calculate the LPI are vertebrates, with detectable taxonomic and biogeographic biases across the data sets available. How the reported LPI trends relate to that of broader biodiversity remains largely unknown (Collen et al., 2009). Nonetheless, other data, such as the International Union for Conservation of Nature (IUCN) Red List, confirm the high proportion of threatened species among freshwater‐associated vertebrates (Ricciardi & Rasmussen, 1999; Collen et al., 2014). For example, almost 40% of European and North American freshwater fishes are at risk (Kottelat & Freyhof, 2007; Jelks et al., 2008). Although less comprehensively recorded than vertebrates, freshwater invertebrates are also faring worse than their terrestrial counterparts (Taylor et al., 2007; Clausnitzer et al., 2009; Cumberlidge et al., 2009).

The 2016 World Wide Fund for Nature (WWF) Living Planet Index (LPI) shows population trend data for a collective ‘basket’ of vertebrates in the freshwater (black circles), terrestrial (white circles) and marine (black triangles) realms, revealing remarkable index decreases among freshwater species. These index declines are relative to a benchmark value of 100 in 1970. Dates given here refer to years in which estimates of abundance were made, as LPI reports typically refer to data from four years earlier (e.g. the 2016 LPI is based on 2012 data). The 2012 index value of 19 for freshwater populations has confidence limits ranging from 11 to 32; the value of 62 for terrestrial populations has limits from 49 to 79; and the value of 64 for marine populations has limits from 52 to 80 (WWF, 2016).

Despite the downward trajectory of many freshwater taxa, the conservation literature is persistently biased towards terrestrial organisms, with fewer than 20% of recent papers dealing with aquatic species (Di Marco et al., 2017). This is problematic for at least three reasons. First, terrestrial biodiversity indicators are a poor surrogate for fresh waters (Darwall et al., 2011). Second, while some primary solutions to freshwater conservation problems depend on management at the terrestrial–freshwater interface (e.g. reduced agricultural runoff), many land‐based conservation efforts for freshwater biodiversity require implementation over large spatial extents at channel, riparian or catchment scales (Darwall et al., 2011). For example, 84% of threatened freshwater megafauna ranges fall outside of existing

protected areas (Carrizo et al., 2017). Finally, freshwater ecosystems represent hotspots of endangerment as a result of the convergence between biological richness and the many forms of human freshwater exploitation that are not only generated by land‐based actions. Projecting these issues forward suggests that freshwater extinction risks will remain high over the next few decades, regardless of actions taken now, due to an incurred ‘debt’ arising from low‐viability populations that are in the process of dwindling to extinction (Strayer

& Dudgeon, 2010). Nor will anthropogenic pressures on freshwater ecosystems ease soon, in view of the threats reviewed herein, particularly the ambitious plans for water infrastructure development globally (see Section V.5) as well as through expanding population pressure and the growing needs for domestic water use and food production (Mekonnen & Hoekstra, 2016).

Halting biodiversity loss in the US is key – the US is the global leader in freshwater diversityStein et al 2000 [(Bruce, chief scientist)(Lynn Kutner, contributor)(Johnathan Adams, president) "Precious Heritage: The Status of Biodiversity in the United States," Nature Serve, 2000] TDI

A vast land of contrasts, the United States harbors an extraordinary diversity of life, from the lush forests of Appalachia to the frozen tundra of Alaska, and from the Midwest's tallgrass prairies to Hawaii's rainforests. Precious Heritage reveals the nation's biological wealth in unprecedented detail, drawing together for the first time more than a quarter century of information from the network of state natural heritage programs. Sponsored by NatureServe and The Nature Conservancy, this richly illustrated volume not only documents the enormous breadth of U.S. species and ecosystems, but also considers how they are faring, what is threatening them, and what is needed to protect our nation's natural inheritance.

The Good News

The United States emerges from this assessment as being far richer in species and ecosystems than previously thought, and as a global center of diversity for many life-forms.

More than 200,000 species are now known from the United States-a figure double the previous estimate. This figure, however, includes only those species that scientists

have formally studied and named, and may represent fewer than half the plants, animals, and microbes yet to be discovered in the United States.

A surprising number of life forms are more diverse in the United States than anywhere else on Earth . The nation is particularly rich in aquatic life , such as fishes, turtles, salamanders, and mussels. For example, more fish species are found in a single river, the Tennessee, than in all of Europe .

The United States also supports a broader array of ecosystems than any other nation on Earth. Several large-scale ecosystems are especially well represented, and the United States hosts a large percentage of the world's broadleaf forests, temperate grasslands, and Mediterranean-climate vegetation.The Bad News

The United States' exceptional richness of life is not faring well, however, andPrecious Heritage documents the continuing decline of the nation's flora and fauna.

One-third of U.S. species are at risk and of conservation concern. Aquatic life is particularly vulnerable; for instance, nearly 70% of the nation's freshwater mussel species and over half of our crayfishes are in trouble.

More than 500 U.S. species are already extinct or missing. Of these, at least 100 plants and animals have disappeared forever and are presumed extinct, while another 439 are missing and feared lost.

Nearly 60% of the United States outside of Alaska has lost most of its natural vegetation, and habitat destruction is the leading threat to U.S. species. Alien species invasions-like zebra mussels and kudzu-are second only to habitat loss as a cause of species declines

Granting environmental personhood halts biodiversity lossDiGiacomo 8/17 [(Gordon, a senior fellow at the Centre on Governance at the University of Ottawa, where he also teaches political science. Human rights is among his primary areas of interest. His latest book, an edited collection, is

entitled Human Rights: Current Issues and Controversies (2016)) "Two drastic responses to increasing environmental destruction: half of the world's surface must be reserved for nature, and nature should have rights ," Policy Options, 8/17/18] TDI

The pace and scale of environmental destruction around the globe are enough to drive anyone to despair. Report after report after report has

documented the enormous losses in biodiversity across the planet, to the point where, according to leading scientists, the sixth mass extinction is under way and human activity is the main reason . And, as if that were not enough, we have witnessed in recent years the emergence of yet another type of environmental violence: the murder of those who defend the environment. In

2015 alone, there were 185 confirmed killings of environmental and land defenders around the globe. In the face of all this violence to people, wildlife, oceans, lakes, rivers, fish, forests, soils, the air, etc., the states of the world seem utterly incapable of effective action, as the UN special rapporteur on human rights and the environment reported in 2017.

Not surprisingly, unprecedented threats have given rise to unprecedented responses. Two are most interesting: the birth of the Nature Needs Half (NNH) movement and the growing body of legal measures supporting the rights of nature .

The NNH movement argues that the globe has reached the point where the remaining biodiversity can be saved only if half of its surface is reserved for nature. According to Edward O. Wilson, a biologist and professor emeritus at Harvard who came up with the

idea, “At one-half and above, life on earth enters the safe zone. Within half, existing calculations from existing ecosystems indicate that more than 80 per cent of the species would be stabilized” (Half-Earth: Our Planet’s Fight for Life, 2016, p. 4).

Given our treatment of the world’s biodiversity, is such a project even remotely possible? Perhaps. But thus far the protected areas in the world comprise only about 15 percent of the land and 2.8 percent of the oceans (p. 186). Yet Wilson is able to point to several initiatives for encouragement. For instance, Brazil’s environment minister has signed the legal documents required to fund, forever, the Amazon Region Protected Areas Program, covering 51.2 million hectares. It is the world’s largest network of protected tropical rain forests and three times the size of the entire US National Park System (p. 230). And in many other areas around the world, the building of dams has been “responsible for most of the recorded extinctions of native fish and mollusks. Many of the dams are now being torn down, with the annual rate of removal doubling during the first decade of this century” (p. 230).

Another venture that Wilson points to is the Yellowstone-to-Yukon Initiative, started by the Canadian environmentalist Harvey Locke. It declares its vision to be “an interconnected system of wild lands and waters stretching from Yellowstone to Yukon, harmonizing the needs of people with those of nature.” Since 1993, it has increased protected areas from 11 to 21 percent within the region.

The idea of a vast expansion in areas reserved for nature has been accompanied by a vast expansion in the meaning of rights, particularly in the

understanding of who — or, more accurately, what — may claim rights. Many now see nature itself as a claimant. It is no longer sufficient that individuals have a right to a healthy environment. Nature’s rights must also be recognized: its rights to protection, conservation, maintenance and restoration.The argument was given force by a seemingly unlikely proponent: a justice of the US Supreme Court. But William O. Douglas, who served on the Court from 1939 to 1975, was a different kind of jurist. As a sitting judge, he supported, organized and participated in ecology-related protests and wrote and spoke movingly about the importance and value of wilderness conservation. He was also an avid hiker. In a 1972 judicial dissent, based on Christopher Stone’s essay “Should Trees Have Standing?,” Douglas proposed that, just as a corporation and a ship are given a legal personality with rights, “so it should be as respects valleys, alpine meadows, rivers, lakes, estuaries, beaches, ridges, groves of trees, swampland, or even air that feels the destructive pressures of modern technology and modern life.”

Sound strange? It probably does, but the concept’s strangeness dissipates when one considers the importance that is being attached to it by a number of legal scholars, jurists, governments and NGOs. For instance, in Colombia in April 2018, the Supreme Court attributed legal personality to the Colombian Amazon region. In India, the high court in the state

of Uttarakhand ruled that the Ganges and Yamuna Rivers should be considered legal persons. In New Zealand, the government passed a law in 2017 making the Whanganui River a legal person with two guardians, one from the state and one from a Maori tribe. Several US communities have passed ordinances recognizing the rights of nature. Ecuador’s constitution, amended in 2008, contains a section on the rights of nature that states, among other things, “All persons, communities, peoples, and nations can call upon public authorities to enforce the rights of nature.” The rights of nature argument is currently being tested in Nigeria (the River Ethiope) and Nepal (the Himalayas).

And, in a landmark advisory opinion on the environment and human rights, the Inter-American Court of Human Rights determined that the right to a healthy environment protects the environment per se. In other words, says the legal scholar

Maria Banda, forests, rivers, seas and the like “constitute protected juridical interests in themselves.” Damage to the environment could be justiciable (able to be heard and

adjudicated in court), “even absent evidence of harm to individuals (a requirement that has

led to the dismissal of environment-related claims in other cases).” This interpretation effectively recognizes that nature has rights

Freshwater ecosystems are essential to human survival National Geographic n.d. ["Freshwater Threats," National Geographic, no date] TDI

Freshwater habitats face a multitude of threats, but it's not too late to save these environments. FRESHWATER ECOSYSTEMS ARE essential for human survival , providing the majority of people's drinking water . The ecosystems are home to more than 40 percent of the world's fish species . Despite their value and importance, many lakes, rivers, and wetlands around the world are being severely damaged by human activities and are declining at a much faster rate than terrestrial ecosystems.

More than 20 percent of the 10,000 known freshwater fish species have become extinct or imperiled in recent decades. Watersheds, which catch precipitation and channel it to streams and lakes, are highly vulnerable to pollution . Programs to protect freshwater habitats include planning, stewardship, education, and regulation.

Threats

The creation of dams and water-diversion systems blocks migration routes for fish and disrupts habitats.

Water withdrawal for human use shrinks and degrades habitats.

Runoff from agricultural and urban areas hurts water quality. Draining of wetlands for development depletes habitats.

Overexploitation and pollution threaten groundwater supplies.

Invasion of exotic species can harm native animals and plants. Global warming may lead to devastating floods and droughts.

Continued biodiversity loss will cause extinctionCarrington 10/29 [(Damian, the Guardian's Environment editor) "Humanity has wiped out 60% of a animal populations since 1970, report finds," The Guardian, 10/29/18] TDI

Humanity has wiped out 60% of mammals, birds, fish and reptiles since 1970, leading the world’s foremost experts to warn that the annihilation of wildlife is now an emergency that threatens civilisation . The new estimate of the massacre of wildlife is made in a major report produced by WWF and involving 59 scientists from

across the globe. It finds that the vast and growing consumption of food and resources by the global population is destroying the web of life , billions of years in

the making, upon which human society ultimately depends for clean air, water and everything else.“We are sleepwalking towards the edge of a cliff” said Mike Barrett, executive director of science and conservation at WWF. “If there was a 60% decline in the human population, that would be equivalent to emptying North America, South America, Africa, Europe, China and Oceania. That is the scale of what we have done.”

“This is far more than just being about losing the wonders of nature, desperately sad though that is,” he said. “This is

actually now jeopardising the future of people . Nature is not a ‘nice to have’ – it is our life-support system .”

“We are rapidly running out of time ,” said Prof Johan Rockström, a global sustainability expert at

the Potsdam Institute for Climate Impact Research in Germany. “Only by addressing both ecosystems and climate do we stand a chance of safeguarding a stable planet for humanity’s future on Earth.”

Many scientists believe the world has begun a sixth mass extinction , the first to be caused by a species – Homo sapiens. Other recent analyses have revealed that humankind has destroyed 83% of all mammals and half of plants since the dawn of civilisation and that, even if the destruction were to end now, it would take 5-7 million years for the natural world to recover.

The Living Planet Index, produced for WWF by the Zoological Society of London, uses data on 16,704 populations of mammals, birds, fish, reptiles and amphibians, representing more than 4,000 species, to track the decline of wildlife. Between 1970 and 2014, the latest data available, populations fell by an average of 60%. Four years ago, the decline was 52%. The “shocking truth”, said Barrett, is that the wildlife crash is continuing unabated.

Wildlife and the ecosystems are vital to human life, said Prof Bob Watson, one of the world’s most eminent environmental

scientists and currently chair of an intergovernmental panel on biodiversity that said in March that the destruction of nature is as dangerous as climate change .

“Nature contributes to human wellbeing culturally and spiritually, as well as through the critical production of food, clean water, and energy, and through regulating the Earth’s climate, pollution, pollination and floods,” he said. “The Living Planet report clearly demonstrates that human activities are destroying nature at

an unacceptable rate, threatening the wellbeing of current and future generations.”

The biggest cause of wildlife losses is the destruction of natural habitats, much of it to create farmland. Three-quarters of all land on Earth is now significantly affected by human activities. Killing for food is the next biggest cause – 300 mammal species are being eaten into extinction – while the oceans are massively overfished, with more than half now being industrially fished.

Chemical pollution is also significant: half the world’s killer whale populations are now doomed to die from PCB contamination. Global trade introduces invasive species and disease, with amphibians decimated by a fungal disease thought to be spread by the pet trade.

The worst affected region is South and Central America, which has seen an 89% drop in vertebrate populations, largely driven by the felling of vast areas of wildlife-rich forest. In the tropical savannah called cerrado, an area the size of Greater London is cleared every two months, said Barrett.

“It is a classic example of where the disappearance is the result of our own consumption, because the deforestation is being driven by ever expanding agriculture producing soy, which is being exported to countries including the UK to feed pigs and chickens,” he said. The UK itself has lost much of its wildlife, ranking 189th for biodiversity loss out of 218 nations in 2016.

The habitats suffering the greatest damage are rivers and lakes , where wildlife populations have fallen 83%, due to the enormous thirst of agriculture and the large number of dams. “Again there is this direct link between the food system and the depletion of wildlife,” said Barrett. Eating less meat is an essential part of reversing losses, he said.

The Living Planet Index has been criticised as being too broad a measure of wildlife losses and smoothing over crucial details. But all indicators, from extinction rates to intactness of ecosystems, show colossal losses. “They all tell you the same story,” said Barrett.

Conservation efforts can work , with tiger numbers having risen 20% in India in six years as habitat is protected. Giant pandas in China and otters in the UK have also been doing well.

But Marco Lambertini, director general of WWF International, said the fundamental issue was consumption: “We can no longer ignore the impact of current unsustainable production models and wasteful lifestyles.”

The world’s nations are working towards a crunch meeting of the UN’s Convention on Biological Diversity in 2020, when new commitments for the protection of nature will be made. “We need a new global deal for nature and people and we have this narrow window of less than two years to get it,” said Barrett. “This really is the last chance. We have to get it right this time.”

Tanya Steele, chief executive at WWF, said: “We are the first generation to know we are destroying our planet and the last one that can do anything about it

1AC – Natural GasUS fracking is on the rise – a major second wave will be unleashed by 2023Worland 18 [(Justin, a Washington D.C.-based writer for TIME covering energy and the environment) "A 'Major Second Wave' of U.S. Fracking Is About to Be Unleashed Upon the World," Time, 3/6/18] TDI U.S. oil and natural gas is on the verge of transforming the world’s energy markets for a second time, further undercutting Saudi Arabia and Russia.

The widespread adoption of fracking in the U.S. opened billions of barrels of oil and trillions of cubic feet of natural gas to production and transformed the global energy sector in a matter of a few years. Now, a leading global energy agency says U.S. natural gas is about to do it again.The International Energy Agency (IEA) said in a new forecast this week that growth in U.S. oil production will cover 80%

of new global demand for oil in the next three years. U.S. oil production is expected to increase nearly 30% to 17 million barrels a day by 2023 with much of that growth coming from oil produced through fracking in West Texas.

“Non-OPEC supply growth is very, very strong, which will change a lot of parameters of the oil market in the next years to come,” Fatih Birol, the head of the International Energy Agency, told reporters at the CERAWeek energy conference

hosted by IHS Markit. “We are going to see a major second wave of U.S. shale production coming.”

The plan is key to stop fracking – states have successfully banned fracking by granting environmental personhoodBiggs 14 [(Shannon, Director of Movement Rights, Co-Author of Building the Green Economy: Success Stories from the Grass Roots and The Rights of Nature) “Welcome to ‘Frackland’: Does a River Have the Right Not to be Polluted?” Global Exchange Organization January 28, 2014] TDI

Human laws have not forgotten nature, but neither have they protected it. Nowhere is this failure more apparent than with ‘hydraulic fracturing’ for natural gas and oil, an extreme energy extraction method commonly known as ‘fracking.’ Along with tar sands

mining and mountaintop removal, fracking is one of dirtiest forms of energy on the planet, releasing huge amounts of greenhouse gases into the atmosphere according to the US Environmental Protection Agency.

Halting the destruction wrought by fracking requires new regulations and community

controls over drilling, but it also involves something much deeper: the transformation of relationships between society and nature. Currently, human laws treat nature as mere property. In future, we must recognize that the ecosystems which sustain human life also have the right to exist, flourish and regenerate their natural cycles .

Some 400 million years ago, ancient aquatic environments dried up, cementing fine sedimentary deposits over the millennia into hard shale, which now lie two miles or more below the surface of the earth. Today, through technology developed by Halliburton and other corporations, along with plenty of industry-friendly political will and legal heft, these ancient shale formations represent the new subterranean playgrounds of the oil and gas industry worldwide.

Hydraulic fracturing is an advanced drilling technique that injects millions of gallons of water, sand, and toxic chemicals miles underground at pressures high enough to crack hard shale, thus releasing natural gas and oil that has been ‘trapped’ in its fissures. In the USA this technique produces 300,000 barrels of natural gas each day, and has pushed US oil output to a 25-year high . As Stephen Schork, puts it, president of the Schork Group energy consulting firm, “you can’t swing a cat without hitting a

barrel of oil in North America. It’s amazing how quickly things can change.” As this map shows, pretty much everyone in the USA lives downstream from ‘frackland’ and the pollution it creates. Here are some ‘fracts’ that everyone should know:

* There are approximately 800,000 active oil and gas wells in the United States, hovering above some of the world’s largest shale formations.

*Unlike most industrial activity which takes place far away from sight, fracking occurs less than 200 feet from homes and schools, on federal lands, in densely populated areas, and on farms and ranches.

* It takes upwards of 400 tanker trucks to carry water and supplies to and from each well pad.

* Each fracking operation uses between two and eight million gallons of water , and each well pad can be fracked up to eighteen times during its lifetime. Nationally, fracking uses over 100 trillion gallons of water and 400 billion gallons of “frack fluid” comprised of up to 600 different chemicals .

* On average, 330 tons of these chemicals are used per fracking operation, and two-thirds of the most toxic chemicals

remain underground. The millions of gallons of toxic waste water that are produced by fracking cannot be processed by wastewater treatment plants, so they are left in open pits. Thousands of these toxic stews were washed away during Superstorm Sandy and the recent extreme floods in Colorado.

* Fracking causes earthquakes, which are now common in fracked areas of Ohio, a state not previously known for its seismic activity.

* In theory, cement well casings protect the water supply by keeping toxins from leaching into aquifers underground. But research confirms that six per cent of these casings fail immediately, a figure that increases over time. Over one thousand cases of water contamination have been documented in frackland , and as the documentary film Gasland has made famous, methane leaks are commonplace, turning drinking faucets and showerheads into virtual flamethrowers.

If fracking is so destructive, why are oil and gas companies allowed to override community concerns and site new wells directly in their midst? This question gets to the heart of the matter about the legal rights of nature and of people.

In the USA, the Clean Air Act, the Clean Water Act, and similar laws at the state level effectively legalize environmental harm by regulating how much pollution can occur. Rather than preventing environmental destruction,

these laws codify it , assuming that the best that can be done is to slow the rate of devastation. How else could we legalize the damming of rivers, the removal of whole mountaintops for coal mining, or fishing the oceans to extinction?

We codify our values in the law, and Western societies have treated nature in law and culture as a “thing” to be dominated – amoral, without emotion or intelligence, and lacking any real connection to human beings. In this way we justify and

rationalize our exploitation of the natural world. Nature is seen as a possession or as property, rather than as a system that governs our own wellbeing. These ecosystems have no legal standing in most courts of law.

What do have legal standing are the energy corporations , which are in fact legal

fictions on paper that can shield their CEO’s and their shareholders from liability for their decisions. By contrast, the communities in which the wells are located are denied the authority to say “no” to fracking, even as their health, safety and welfare are at risk each time a well is fracked. In many states fracking is unregulated, and in some areas it isn’t even monitored. Most communities aren’t notified that fracking is happening close by. Cloaked in constitutional protections, exemptions and well-greased political cover, the oil and gas industry stands on solid legal ground as it rolls into town.

Some communities, however, are beginning to change the rules of the game. Nineteen communities in six states (Ohio, Pennsylvania, New York, Colorado, New Mexico and Maryland) have successfully banned fracking by writing new laws that place the rights of residents and their local

ecosystems above the interests of corporations. They join the ranks of 160 communities across the USA who have already banned other harmful practices, along with Ecuador, Bolivia and (to some extent) New Zealand which have recognized the rights of ecosystems at the national level.Take, for example, the town of Mansfield in Ohio. In 2012 this community of 50,000 people was slated to receive toxic frackwater waste from Pennsylvania. Under state law there was little that they could do to stop it, since dumping unwanted fracking chemicals into “injection wells” in Ohio is legal.

Nevertheless, concerned residents proposed an amendment to the town’s charter that affirms the rights of the local population to decide if injection wells are allowed within its boundaries. Suddenly, a matter of local concern became a major political issue for oil and gas companies and their Political Action Committees or PACS, which raise money on their behalf. Corporate contributors poured in over $300,000 to pay for TV advertisements and glossy brochures sent through the mail, which were designed to frighten residents into voting against the amendment on the grounds that it would be a “jobs killer”.

The majority of Mansfield’s residents rejected this hype, reasoning that any jobs related to injection wells would not be as plentiful as promised, and that dumping toxic waste into the town’s industrial park seemed more likely to chase away new business than to attract it. As the town’s Mayor put it at the time, “We don’t like outsiders telling us what to do.” The

amendment was passed with 63 per cent of the votes cast. Crucially, it subordinates corporations to the concerns of the community by stripping them of their legal “personhood” and other constitutional privileges, and recognizing the rights of natural ecosystems to be free from frackwater dumping.In 1973, Christopher Stone, a law professor at the University of Southern California, published a famous article called “Should Trees Have Standing?” In it, he explained why it is so hard to think about the rights-less as having rights. Citing the struggles of Abolitionists against slavery and of Suffragettes in favor of votes for women, Stone’s article showed how every emerging movement to recognize such rights has been deemed radical, and perhaps even treasonous.

In the same vein, it may seem strange to argue that rivers and forests also have rights . But how different would it be in the world if the Amazon River could sue oil companies for damages, or if those responsible for oil spills could be forced to make the Gulf of Mexico “whole” once again, or if communities could be empowered to act as stewards for their local environments and ecosystems?

The movement for the rights of nature has seen its ranks swell in recent times, as more and more communities realize that the law does not protect them from harm. The connections between our bodies and the web of life that sustains them are made more real with every industrial accident and incursion. As Mahatma Gandhi once said, “First they ignore you, then they laugh at you, then they fight you, and then you win.” When it comes to the rights of nature, nobody is laughing anymore.

Fracking profoundly violates environmental personhood - resource depletion, waste runoff, and groundwater contaminationEstrada and Bhamidimarri 16 [(Jose, Vice President (Development), London South Bank University) (Rao, Corresponding Author) “A review of the issues and treatment options for wastewater from shale gas extraction by hydraulic fracturing” Elsevier 10 May 2016] TDI

While the extraction of conventional natural gas is normally carried out by means of vertical wells, shale gas development needs horizontal drilling (or directional drilling) and hydraulic fracturing [2]. Both technologies were developed separately, but it is their combination which played a key role in the rapid development of shale gas in the USA [19]. Horizontal drilling originated in the 1940s in the USA, but it remained a marginal technique until the decades of the 1970s and 1980s when the early ‘‘modern” horizontal wells were drilled [24]. This technique consists of drilling a conventional vertical well that, when the depth of the formation of interest is reached (typically thousands of meters), turns in an angle to extend into the flat layer in which hydrocarbons are located. A horizontal well can in this way maximize the area of contact with the rocks allowing gas extraction from thousands of meters of shale, rather than the tens or hundreds of meters available with vertical wells [3]. One or more horizontal

sections can be drilled from a single vertical well [25]. Nowadays, multiple wells are usually drilled from a single surface site, and each of them includes horizontal sections. This arrangement is commonly known as ‘‘multi-well pad” and allows the recovery of gas from around 1 km2 , which minimizes the land requirements on the surface (Fig. 1) [26]. Wells are protected and isolated from the surrounding environment by the case, which is usually multilayer armour shielding of hollow steel pipe and cement. Up to four protecting layers can be placed between the well

and the ground to prevent the escape of gas and liquid pollutants [26]. However, horizontal drilling alone is not enough to induce sufficient natural flow from shale formations to the well for the extraction to be economically feasible due to the low permeability of shale. Thus, hydraulic fracturing (or fracking) is mandatory for the extraction of shale gas [3]. This technique is not exclusive of the unconventional gas operations, and has been previously applied in the oil and gas industry for decades to stimulate the hydrocarbon production of wells with

decaying rates. During hydraulic fracturing operations, a fluid carrying a proppant, such as sand, is injected into a well at high pressures to fracture the reservoir rocks [22,27]. During the hydraulic fracturing of shale gas reservoirs the process applied is known as ‘‘slick water treatment”, in which a drag-reducer compound is added to the waterbased fracturing fluid. Polymers to modify the viscosity of the suspension (used in other hydraulic fracturing applications) are not usually employed due to the low porosity of the shale plays, and thus, low concentrations of proppant can be transported in this fracturing fluid (25–250 g/L). This fluid is injected at high flow rates up to 0.3 m3 s1 and high pressures (480–680 bar) [22,28]. Hydraulic fracturing is not a continuous process: wells are fractured once after drilling and this process is carried out in stages (8–10 single fracturing stages per well). Later in the well lifetime, the process can be repeated for re-stimulation as the production declines [1].

The most common proppant employed is sand, and its mission is to keep the fractures caused by the fracking process

open. Other chemicals usually added to the fracturing fluid include surfactants, scale inhibitors, pH adjusting agents, corrosion inhibitors and biocides [29]. In recent years, there has been a continuous effort to substitute the most hazardous chemicals by less harmful compounds to develop more environmentally friendly fracturing fluids [30]. In fact, the only fracturing operation carried out to date in the UK (by Cuadrilla Resources in their Preese Hall-1 well, Bowland Shale, Lancashire) employed a

fluid composed only of water (98%) sand (1.8%), a polyacrylamide emulsion in hydrocarbon oil (0.046%), and a sodium salt solution added as a tracer (0.006%) [31]. The company has obtained permission to employ hydrochloric acid (a scale

inhibitor) and glutaraldehyde (a biocide) in future operations [31,32]. Hydraulic fracturing and shale gas production entail several environmental and social concerns including induced seismicity or intensive freshwater consumption among others . Problems associated to the increase of road traffic in areas with intense shale gas development have been reported [33]. Moreover, traffic and noise nuisance were the reasons underlying the Lancashire Development Control Committee recommendation to refuse fracking activity in the area in January 2015 [34]. Despite the social alarm caused by seismic

events (especially those associated to the only well fractured so far in the UK in 2011) and a recently published work linking fracking to earthquakes in Ohio, USA [35], evidences show

that these episodes present small relevance and are not common [36,37]. In terms of water consumption, high volumes of freshwater are needed during the fracturing operations , but after that, the requirements of shale gas production fall to minimal values for the rest of the well lifespan. In the UK, recent estimations report that the full development of the shale gas industry would require only about

0.2% of the total annual freshwater extracted for industrial use in the next 20 years [26]. However, water consumption should be taken into account as an impediment to shale gas development in areas with limited freshwater availability [1,30]. Alternatives such as the use of low salinity brackish groundwater (directly or blended with freshwater) have already been reported as options to

minimize freshwater consumption [14]. Atmospheric pollution ranks among the most important impacts of the shale gas industry: it can be caused by shale gas production in different forms and coming from different sources [38]. Besides the CO2 generated when the gas is burned for power generation, greenhouse gases (mainly methane) can be emitted during gas exploration and production via fugitive emissions and venting. The assessment of the extent of these fugitive emissions is one of the most controversial points of shale gas development, playing a key role in the discussion

surrounding the impact of this form of energy on climate change [4,39,40]. Methane emissions can take place throughout the lifetime of the well including drilling, venting, equipment leaks, liquid unloading operations, gas processing and transport, storage and distribution of the gas. However, these fugitive emissions do not differ much from those produced in conventional gas extraction with 1.3–7.9% of the total production being lost in shale gas compared to 1.3–6.0% in conventional gas [5,41]. Other important atmospheric pollutants commonly associated to shale gas extraction include volatile organic compounds (VOCs), NOx, H2S and particulate matter (PM). Potential sources of this pollution are the storage of liquid effluents (fracturing fluids saturated with gas and other pollutants present in the

formation), gas venting, flaring, gas/liquid separation operations and condensate tanks. The combustion in diesel engines for power generation and the pollution caused by vehicles transporting materials to and from the well is another important source of atmospheric pollution contributing to the reduction of the air quality in nearby areas [38,42,43].

Shale gas operations also present risks to ground water . The migration of fracturing fluid or gas from the deep shale formations to aquifers or groundwater is unlikely due to the low porosity of the shale and the distance separating the fractures and the typical aquifer depths (see Fig. 1) [44]. Studies from the US shale formations have revealed that even the longest fractures extending in vertical direction towards the surface still remain around 1200

m from the aquifers above them [45]. On the other hand, the main source of this water pollution is sealing failures in the case isolating the well from the surrounding environment [38]. There are different types of wellbore integrity failures (pores, cracks and gaps)

which allow for the migration of fracturing fluid, to the nearby ground and

pollute shallow groundwater. Despite the frequency of this failures is relatively low (1–3%), they

pose a serious environmental risks for instance in densely drilled areas or in abandoned wells.

Thus well integrity as well as the origin and methods to detect failures are subject to intense research [3,42]. The other main water pollution risk comes from the wastewater generated in the process. Failures in the lining of commonly used open storage ponds often

result in leakages to underground waters . Disposal to water bodies of poorly treated wastewaters from public sewage treatment plants has also caused environmental problems in drinking water quality and rivers [46,47]. The nature of this wastewater produced during shale gas production by hydraulic fracturing and the possibilities to mitigate its environmental impact are addressed further in the following sections.

Fracking is singlehandedly responsible for the demise of the renewable movement – ending fracking forces a shift to renewablesMDN citing Nestlerode 11 [(Daniel, Previous Director of Research and Portfolio Management at Nestlerode

& Loy Investment Advisors in State College) “Has Fracking Killed the Renewable Energy Movement ?” Marcellus Drilling News December 6, 2011] TDI

It is no surprise that those who rabidly oppose shale gas drilling in general, and hydraulic fracturing in particular, do so for one primary reason: it threatens renewable energy . In fact, MDN would go so far as to say hydraulic fracturing has single-handedly destroyed the renewable energy movement, and the greenies have brought out the long knives in response.

A column by Dan Nestlerode on StateCollege.com calls attention to just how fundamental, and dramatic, a shift has taken place in the last few years, a shift that spells the end of the green/renewable energy movement.

Very quietly and without any political fanfare, the United States became a net energy exporter in the last calendar quarter.

In historical context, this event essentially ends the calls for a national energy policy, the green alternatives and the potential for shortages derived from price controls . Those of you who remember the lines at your local filling station in the mid-1970s will recall what I am talking about.

This event came about not as the result of a coherent political energy policy or the rise of renewables of all kinds – wind, solar, biomass and ethanol, for example. It is the direct result of the application of technology devised, inspired and developed by America’s energy companies , namely Mitchell Energy, among others. This development was not seeded by the Department of Energy (Think of bankrupt

Solyndra, for example), nor politically assisted. It came about because of the vision of one individual who

doggedly persisted in finding the methods and ways to develop the naturally occurring oil and gas shale formations in Texas.

The success in the Barnett Shale in Texas led to the application of the technology to the Bakken formation in the Dakotas (oil shale) and the Marcellus Shale (natural gas) in the eastern United States, as well, and a number of other energy shale

formations. The development was spurred by the high prices of energy over the

past few years and the notion that we have reached peak fossil-fuel-energy output .

High prices and potential shortages of fuels — as well as disruptions caused by hurricanes, equipment and process

failures in the Gulf, and terrorist activities — pushed development into high gear. Now we have more oil in the United States (indeed North America) and natural gas coming to market than anyone believed was possible just a few years ago.

What does all this mean? The push for green energy is on its last legs again, just like in the Carter

administration 40-some years ago. We are already seeing the demise of a number of solar companies bitten by price-cutting from subsidized Chinese energy companies and the coming end of financial support from various states and the federal government.*

Renewables shift keeps warming below 2C threshold and solves catastrophic climate changeRoberts 16 [(David, Writer on Energy and Climate Change) “Here’s what it would take for the US to run on 100% renewable energy” Vox May 3, 2016] TDI

It is technically and economically feasible to run the US economy entirely on renewable energy, and to do so by 2050. That is the conclusion of a study last year in the journal Energy & Environmental Science, authored by Stanford scholar Mark Z. Jacobson and nine colleagues.

Jacobson is well-known for his ambitious and controversial work on renewable energy. In 2011 he published, with Mark A. Delucchi, a two-part paper (one, two) on "providing all global energy with wind, water, and solar power." In 2013 he published a feasibility study on moving New York state entirely to renewables, and in 2014 he created a road map for California to do the same.

His team's 2015 paper contains 50 such road maps, one for every state, with detailed modeling on how to get to a US energy system entirely powered by wind, water, and solar (WWS). That means no oil and coal. It also means no natural gas, no nuclear power, no carbon capture and sequestration, and no biofuels.

Why exclude those sources? And what does that do to costs? More on that in a minute.

The road maps show how 80 to 85 percent of existing energy could be replaced by wind, water, and solar by 2030, with 100 percent by 2050 . The result is a substantial savings relative to the status quo baseline, in terms of energy costs, health costs, and climate costs alike. The resulting land footprint of energy is manageable,

grid reliability is maintained, and more jobs will be created in renewables than destroyed in fossil fuels .

Here's how it looks:

Sounds pretty great! So how should we feel about this?

Remember when I discussed scenarios that showed humanity limiting global warming to 2 degrees Celsius? I made a point of saying that the scenarios demonstrated technical and economic feasibility, but represented enormous, heroic assumptions about social and political change . (Which is another way of saying that purely as a matter of laying odds, they were unlikely.)

Well, the same goes here. No one can say any longer, at least not without argument, that moving the US quickly and entirely to renewables is impossible. Here is a way to do it, mapped out in some detail. But it is extremely ambitious. Let's take a look at some of what's required.

Electrify everything

The core of the plan is to electrify everything, including sectors that currently run partially or entirely on liquid fossil fuels. That means shifting transportation, heating/cooling, and industry to run on electric power.

Electrifying everything produces an enormous drop in projected demand, since the energy-to-work conversion of electric motors is much more efficient than combustion motors, which lose a ton of energy to heat. So the amount of energy necessary to meet projected demand drops by a third just from the conversion. With some additional, relatively modest efficiency measures, total demand relative to BAU drops 39.3 percent. That's a much lower target for WWS to meet.

Switching from liquid fuels to renewable electricity would also virtually eliminate air pollution, thus avoiding health costs to the tune of $600 billion a year by 2050. Meanwhile, moving everything to carbon-free electricity would avoid about $3.3 trillion a year in global climate change costs of US emissions by 2050. Estimating health and climate damages is notoriously difficult, of course, involving a number of assumptions about discount rates, the value of human lives, and second-order effects of better health. These figures are averages drawn from very wide ranges of estimates.

Still, the potential health and climate gains of a WWS-based system are one of the big stories here: they are enormous, enough that in and of themselves they "pay for" a clean-energy transition.

So how could the economy be electrified on this ambitious timeline? Brace yourself:

Heating, drying, and cooking in the residential and commercial sectors: by 2020, all new devices and machines are powered by electricity. ...

Large-scale waterborne freight transport: by 2020–2025, all new ships are electrified and/or use electrolytic hydrogen, all new port operations are electrified, and port retro- electrification is well underway. ...

Rail and bus transport: by 2025, all new trains and buses are electrified. ...

Off-road transport, small-scale marine: by 2025 to 2030, all new production is electrified. ...

Heavy-duty truck transport: by 2025 to 2030, all new vehicles are electrified or use electrolytic hydrogen. ...

Light-duty on-road transport: by 2025–2030, all new vehicles are electrified. ...

Short-haul aircraft: by 2035, all new small, short-range planes are battery- or electrolytic-hydrogen powered. ...

Long-haul aircraft: by 2040, all remaining new aircraft are electrolytic cryogenic hydrogen ... with electricity power for idling, taxiing, and internal power. ...

Like I said: ambitious.

Build lots and lots (and lots) of new power plants

Here's what the paper says:

Power plants: by 2020, no more construction of new coal, nuclear, natural gas, or biomass fired power plants; all new power plants built are WWS.

One of the big challenges here is that wind and solar power plants have a much lower "capacity factor" than plants that run on fuel. A fuel-based plant can run around the clock (with breaks for maintenance), while wind and solar plants produce energy only when the wind is blowing or sun is shining. Although a nuclear plant and a wind farm might have the same "nameplate capacity" of 1 gigawatt, you'd actually need three or four wind farms that size to produce the same number of MWh as the nuclear plant. (EIA info on US capacity factors here; nuclear is highest, producing around 90 percent of the time, while solar PV is lowest, at around 20 percent.)

The upshot of this is that to meet most energy demand with wind and solar, you have to radically overbuild electrical generation capacity. To wit: the authors estimate that total US energy demand in 2050 will average 2.6 terawatts. To produce that much energy, they propose building power plants with a total of 6.5 TW of capacity. By way of comparison, the US currently has about 1.2 TW of installed electric generation capacity, so this plan would involve expanding generation capacity fivefold in 35 years.

Here's what that would require:

... 328,000 new onshore 5 MW wind turbines (providing 30.9% of U.S. energy for all purposes), 156,200 off-shore 5 MW wind turbines (19.1%), 46,480 50 MW new utility-scale solar-PV power plants (30.7%), 2,273 100 MW utility-scale CSP power plants (7.3%), 75.2 million 5 kW residential rooftop PV systems (3.98%), 2.75 million 100 kW commercial/government rooftop systems (3.2%), 208 100 MW geothermal plants (1.23%), 36,050 0.75 MW wave devices (0.37%), 8,800 1 MW tidal turbines (0.14%), and 3 new hydroelectric power plants (all in Alaska).

That will meet average demand. Then you need 1,364 additional new CSP plants and 9,380 50 MW solar-thermal collection systems ("for heat storage in soil") "to produce peaking power, to account for additional loads due to losses in and out of storage, and to ensure reliability of the grid."

"This," the authors note, "is just one possible mix of generators." But no matter what mix you pick, if you're confining yourself to WWS, you're going to be building a huge amount of generation capacity.

Would this power be reliable?

One common criticism of renewables is that because they are variable, they are not reliable. There will be times, critics say, when there's no sun shining and no wind blowing. Then we'll all be shivering in the dark!

Jacobson and colleagues, however, say that the grid they propose will be not only reliable, but more reliable than today's grid . They've got a detailed grid modeling and reliability study coming soon that makes the case in more detail, but the short story is that reliability is assured through three measures.

Warming causes extinctionGaworecki 1/3 [(Mike, Journalist) “Worst mass extinction event in Earth’s history was caused by global warming analogous to current climate crisis” Mongabay January 3, 2019] MCM

New research by scientists at the United States’ University of Washington and Stanford University suggests that the most destructive mass extinction event in Earth’s ancient history was caused by global warming that left marine life unable to breathe .

The Permian period, the last period of the Paleozoic Era, ended about 250 million years ago with the largest recorded mass extinction in Earth’s history. Before the dinosaurs emerged during the Triassic period somewhere around 243 and 233 million years ago, a series of massive volcanic eruptions is believed to have triggered global climate change that ultimately led to the Permian extinction, which wiped out 96 percent of marine species in an event known as the “Great Dying.”

According to Justin Penn, a doctoral student at the University of Washington (UW), the Permian extinction can help us understand the impacts of climate change in our own current era. He’s the lead author of a study published in Science last month that builds off of previous research by Curtis Deutsch, a professor of oceanography at UW.

“In 2015, Curtis published a paper demonstrating that temperature and oxygen act as invisible barriers to habitat for animals in the modern ocean,” Penn told Mongabay. “We wanted to know whether this framework could be used to

understand the link between ocean warming, oxygen loss, and marine ecosystems. The end-Permian mass extinction served as the perfect case study because there is clear evidence for ocean warming and oxygen loss during that time period, and the fossils recorded the response of marine biodiversity.”

Penn led a team of researchers that combined models of ocean conditions and animal metabolism with paleoceanographic records to show that the Permian mass extinction was caused by rising ocean temperatures, which in turn forced the metabolism of marine animals to speed up. Increased metabolism meant increased need for oxygen, but the warmer waters could not hold enough oxygen to meet those needs, and ocean life was left gasping for breath.

During the Permian period, Earth’s land masses were still joined together in the supercontinent of Pangaea, and before volcanic eruptions in Siberia increased the concentrations of greenhouse-gas’s in the atmosphere, ocean temperatures and oxygen levels were similar to those of today. The researchers constructed a model based on Earth’s configuration

and climate in the Permian, then raised greenhouse gases in the model until ocean surface temperatures in the tropics had risen by 10 degrees Celsius (20 degrees Fahrenheit), the conditions driven by the global warming that was occurring at the time.

The global warming and oxygen loss simulated in the Earth System model Penn and team built matched reconstructions of these changes made from the fossil record of the end of the Permian period. The oceans lost about 80 percent of their oxygen , and around half of the ocean seafloor became completely oxygen-free, especially at lower depths.

The researchers then used published lab measurements on 61 modern marine species like crustaceans, fish, shellfish, corals, and sharks to examine how those animals might respond to those oxygen and temperature conditions. Today’s marine wildlife are expected to have similar tolerances to high temperatures and low oxygen as Permian animals because of the similar environmental conditions under which they evolved.

“Warming and oxygen loss would have led to a loss of aerobic habitat for marine animals by increasing their temperature-dependent oxygen demand amid declining supply,” Penn said. “The predicted geography and severity of the resulting mass extinction explain the patterns observed in the global marine fossil record from the ‘Great Dying.’”

In a statement, Curtis Deutsch explained that by combining species’ traits with the team’s paleoclimate simulations, the researchers were able to predict the geography of the extinction event. “Very few marine organisms stayed in the same habitats they were living in — it was either flee or perish,” Deutsch, a co-author of the Science paper, said.

The model predicted that, because animals found at high latitudes far from the tropics are the most sensitive to oxygen levels, their numbers would have suffered the most, with those that have particularly high oxygen demands being almost completely wiped out. Many tropical species would have gone extinct, as well, the model showed.

“Since tropical organisms’ metabolisms were already adapted to fairly warm, lower-oxygen conditions, they could move away from the tropics and find the same conditions somewhere else,” Deutsch said. “But if an organism was adapted for a cold, oxygen-rich environment, then those conditions ceased to exist in the shallow oceans.”

To test the predictions made by the climate model, study co-authors Jonathan Payne and Erik Sperling of Stanford University turned to the Paleobiology Database, a virtual archive of published fossil collections. By looking at how fossils are distributed in ancient seafloor rocks, it’s possible to piece together where animals existed before the extinction event, where they they fled to or went extinct, or where they were confined to a fraction of their previous habitat. The fossil distributions of the late-Permian period confirmed that species far from the equator were hit the hardest by the mass extinction event.

“The signature of that kill mechanism, climate warming and oxygen loss, is this geographic pattern that’s predicted by the model and then discovered in the fossils,” Penn said in a statement. “The agreement between the two indicates this mechanism of climate warming and oxygen loss was a primary cause of the extinction .”

Penn and co-authors say that other shifts in the ocean environment, such as acidification or changes in the productivity of photosynthetic organisms, probably contributed to the Permian extinction, but that warmer temperatures leading to insufficient oxygen levels accounts for more than half of the losses in marine life.

That could help us understand how marine life will fare in our current age of global warming, Penn added, because the conditions in the late Permian are similar to conditions today.

The drivers of the Permian mass extinction — volcanic CO2 emissions into the atmosphere

leading to global warming — are analogous to human-caused CO2 emissions occurring today , Penn noted. “These results allow us to compare the scale of our modern problem to the largest extinction in Earth’s history ,” he told

Mongabay. “Under a business-as-usual emissions scenarios, by 2100 warming in the upper ocean will have approached 20 percent of warming in the late Permian, and by the year 2300 it will reach between 35 and 50 percent.”

The study, therefore, highlights the potential for a mass extinction driven by anthropogenic climate change due to mechanisms similar to those that caused the Permian mass extinction, Penn said: “The ocean cannot be cooled or oxygenated on a global scale by any feasible means. The only sustainable solution to reduce the risk of temperature-dependent hypoxia is to halt the anthropogenic accumulation of CO2 in the atmosphere.”

1AC – SolvencyResolved: The United States federal government should grant legal personhood to natural freshwater ecosystems. Environmental personhood gives freshwater habitats effective legal weapons to challenge corporate exploitationFalk 17 [(Will, Public Defender, Society of Professional Journalists, San Diego Chapter, 2016 Journalism award winner) “Colorado River v. Colorado with Will Falk” National Community Rights Network November 20, 2017] TDI

In the war for social and environmental justice, even the best lawyers rarely serve as anything more than battlefield medics.

They do what they can to stop the bleeding for the people, places, and causes suffering on the

front lines, but they do not possess the weapons to return fire in any serious way . Lawyers lack effective weapons because American law functions to protect those in power from the rest of us; effective legal weapons are , quite

literally, outlawed .Nonetheless, understanding the limits of the law to affect change through my experiences as a public defender, I recently helped the Colorado River sue the State of Colorado in a first-in-the-nation lawsuit — Colorado River v. Colorado —

requesting that the United States District Court in Denver recognize the river’s rights of nature. These

rights include the rights to exist, flourish, regenerate, and naturally evolve. To enforce these rights, the Colorado River also requests that the court grant the river “personhood” and standing to sue in American courts.

Four of my comrades in the international environmental organization Deep Green Resistance (DGR) and I, are listed as “next friends” to the Colorado River. The term “as next friends” is a legal concept that means we have signed on to the lawsuit as fiduciaries or guardians of the river. I also serve, with the brilliant Deanna Meyer, as one of DGR’s media contacts concerning the case.

Several times, I’ve been asked whether I think our case is going to win. We have provided, in the complaint we filed, the arguments the judge needs to do the right thing and rule in our favor. In this sense, I think we can win. And, if we do win,

the highly endangered Colorado River will gain better protections while the environmental movement will gain a strong new legal weapon to use in defense of the natural world .

But, when has the American legal system been concerned with doing the right thing? While every ounce of my being hopes we win, if we lose, I want you to know why. I want you to be angry. And, I want you to possess an analysis that enables you to direct your anger at the proper targets.

***

The Community Environmental Legal Defense Fund (CELDF) does incredible work to demonstrate how the American legal system is stacked against us. CELDF began as a traditional public interest law firm working to protect the environment. They fought against industrial projects like waste incinerators and dumps only to encounter barriers in the legal system put in place by both government and corporations.

According to CELDF, government and corporations “developed a structure of law which – rather than focused on protecting people, workers, communities, and the environment – was instead focused on endless growth, extraction, and development.” This structure is “inherently unsustainable, and has, in fact, made sustainability illegal .”

The current structure of law forces us into what CELDF calls the “Box of Allowable Activism.” The Box is formed by four legal concepts that have so far proven to be unassailable.

Those concepts are state preemption, nature as property, corporate privilege, and the regulatory fallacy. State preemption removes authority from local communities by defining the legal relations between a state and its municipalities as that of a parent to a child. Local communities are not allowed to pass laws or regulations that are stricter than state law.

Currently, nature is defined as property in American law. And, anyone with title to property has the right to consume and destroy it .

As CELDF notes, “this allows the actions of a few to impact the entire ecosystem of a community.” To make this worse, corporations – who own vast tracts of nature – are granted, by American courts, corporate rights and “personhood.” Corporate personhood gives corporations the power to request enforcement of rights to free speech, freedom from search and seizure, due process and lost future profits and equal protection under the law.

Finally, CELDF explains that “the permitting process, and the regulations supposedly enforced by regulatory agencies, are intended to create a sense of protection and objective oversight.” But, while water continues to be polluted, air poisoned, and the collapse of every major ecosystem on the continent intensifying, we must conclude that this protection is not happening.

Regulatory agencies give permits. By definition, they provide permission to destructive activities. CELDF states, “When they issue permits, they give cover to the applicant against liability to the community for the legalized harm.”

***

I went to law school at the University of Wisconsin-Madison and became a public defender in Kenosha, WI because I thought I could push back against the institutional racism of the American criminal justice system. Just like CELDF learned working through traditional environmental law, I learned quickly that my hands were tied by the legal structure, too.

Something similar to CELDF’s “Box of Allowable Activism” exists in criminal law. Prosecutors overcharge. For example, I represented a single mother of three charged with six counts of theft despite the total value of what she was accused of stealing amounting to less than $30 — one count for the bag of rice, one for the butter, one for the salt, one for the pack of chicken breasts, one for the onion, and one for the garlic.

Then, prosecutors offer plea deals taking advantage of a defendant’s rational self-interest and fear. In my previous example, the prosecutor offered to dismiss four of the six counts of theft and recommend 30 days in jail if my client pled guilty to two counts, the rice and chicken. When the prosecutor made her offer, she reminded my client that not taking the deal meant facing a long trial process while risking conviction on all six counts and being exposed to two years in jail.

Defense attorneys are ethically bound to defer to their clients’ desire to take a plea deal. Meanwhile, public defender offices are woefully underfunded. And, with the majority of criminal defendants so poor they qualify for court-appointed counsel, public defenders are notoriously overworked producing mistakes that lead to their clients’ incarceration.

Deep ecologist, Neil Evernden, connects the problems facing lawyers fighting institutional racism and lawyers fighting ecocide in his book “The Natural Alien: Humankind and Environment.” Evernden asks us to imagine we are lawyers defending a client who is black in apartheid South Africa or the Jim Crow American south.

He asks, “What would you do if faced with a trial judge who denies your client any rights and who, after hearing your case, simply says: ‘so what — is he white?”

Everndem claims that we only have two options in this situation. We can demand that the judge recognize the rights and dignity of our client and risk condemning our client to execution. Or, we can play by the rules, reinforce problematic law, contribute to its precedence, and detail our client’s genealogical records at length “to try to prove our client white.”

Evernden correctly notes that too often when environmentalists are challenged to justify their declarations on behalf of the living world, they proceed to try to prove their client white. Evernden writes, “Rather than challenge the astonishing assumption that only utility to industrialized society can justify the existence of anything on the planet” the

environmentalist “tries to invent uses for everything.” But, “ the only defense that can conceivably succeed in the face of this prejudice is one based on the intrinsic worth of life , of human beings, of living beings, ultimately of Being itself.”

We want our lawsuit, specifically, and the rights of nature framework, generally, to be legal arguments for the intrinsic worth of life and of living beings like the Colorado River.

We are attacking two of the walls forming the Box of Allowable Activism. We seek to overturn the concept that nature is only property, and we seek to erode corporate power by giving the source of corporate power (nature) rights to stop corporate exploitation. These arguments are not currently accepted, but neither was the argument that “separate is inherently unequal” when Thurgood Marshall argued this and ended school segregation in Brown v. Board of Education.

This is all well and good, but we are still forced to construct our argument only with currently acceptable legal language. We seek “personhood” for the Colorado River, for example. But, the river is much more than a person. The river is an ancient and magnificent being who carved the Grand Canyon, who braved some of the world’s most arid deserts on her path from the Rocky Mountains to the Gulf of California, and who facilitates countless lives, human and nonhuman.

I am afraid, that in seeking personhood for the Colorado River, people will mistake our arguments as trying to prove the Colorado River a “person” while reinforcing the notion that a being only has value as far as that being resembles a human.

***

Evernden only contemplated two options. We can prove the Colorado River a person, or we can demand recognition of our client’s dignity. But, there is a third option: Dismantle the power stacking the legal system against communities and natural ecosystems.

To fight this power, we must understand how power works. Dr. Gene Sharp, who CNN has called “a dictator’s worst nightmare” and the “father of nonviolent struggle,” is the world’s leading theorist of power.

Sharp identifies two manifestations of power – social and political. Social power is “the totality of all influences and pressures which can be used and applied to groups of people, either to attempt to control the behavior of others directly or indirectly.” Political power is “the total authority, influence, pressure, and coercion which may be applied to achieve or prevent the implementation of the wishes of the power-holder.”

Sharp lists six sources of power: authority, human resources, skills and knowledge, intangible factors, material resources, and sanctions. Interfering with these sources of power is the key to a successful resistance movement.

The powerful know where their power comes from and they protect the sources of their power. It is one thing to protect these sources with brute force. But, why use brute force when you can persuade the oppressed that there is nothing they can do to affect the sources of power? Or, when you can mislead the oppressed about where those sources of power are?

In this spirit, the powerful do everything they can to convince the oppressed that the current arrangement of power is inevitable. They seek to convince us that the legal system exists to protect communities and the environment. They teach us to look back through history to view our few victories as the result of a system devoted to justice.

These few victories are held up as proof that sooner or later the courts always make the right decision. We are pacified with assurances that if our lawyers are clever enough, if they work hard enough, if they articulate the truth eloquently enough, judges will recognize the brilliance of our lawyers’ arguments and justice will be served.

Justice for the natural world has rarely been served . CELDF names the final blockade to justice the “Black Hole of Doubt” and teaches, “We think we’re not smart enough, strong enough, or empowered enough – we literally do not believe we have the inalienable right to govern.” Sharp says, “Power, in reality, is fragile, always dependent for its strength and existence upon a replenishment of its sources by the cooperation of a multitude of institutions and people – cooperation which may or may not continue.”

Suits will win – environmental personhood sets precedent that spills over globallyPecharroman 18 [(Lidia Cano, Earth Institute, Columbia University, Project Officer and Researcher at LSE Consulting, Consultant focusing on the intersection between natural resources and governance at Berkeley Law) “Rights of Nature: Rivers That Can Stand in Court” Resources 14 February 2018] TDI

Worldwide legal systems are gradually introducing the possibility of granting rights to nature to stand in court for protection. Examples of court rulings applying said legislation and recognizing rights to nature have started to emerge a little more than five years ago. These rulings have granted rights to rivers across the world in different terms. There is no explanation about why rulings have been more

prevalent regarding the rights of rivers than those of other ecosystems. The first ruling recognizing the rights of nature was regarding a river, and the existence of this previous jurisprudence could have provided foundations for other judges to rule in

the same way. The nature of rivers as a distinct mass of water elapsing across terrain with a quasi-permanent shape and presence may make it easier to legally define a river as an “object” that can become a “subject” with rights. To date, rivers have been recognized as holding rights by a court ruling in Ecuador, India, New Zealand, and Colombia.

These cases are the first judicial attempts to apply legislation that recognizes the rights of nature or to set precedence in recognizing such rights .

The first ruling was delivered in Vilcabamba, Ecuador. A public contractor started building a road next to the Vilcabamba River using dynamite and heavy machinery

and depositing rocks and other construction materials in the river banks. The accumulation of these materials caused floods along the river and polluted the waters . After some

affected citizens brought this case to the courts, the river’s right to stand in court was admitted and those citizens representing the river continued in the process. The judge determined that the rights of nature had been violated —more specifically nature’s right “to exist, to be maintained and to the regeneration of its vital cycles, structures and functions.” This legal sentence did not stop the construction of the road, however. Instead the court ruled that the contractor should follow a set of environmental guidelines and recommendations that the Ministry of Environment had issued following a previous legal complaint against the road construction. It was then, on 30 March 2011 [37], that the rights of nature were recognized by a court for the first time. The ruling recognized the plaintiff’s right to sue on the basis of Article 71 of the constitution, which establishes every

citizen or nation’s right to demand the authorities the compliance with the rights of nature. The ruling recognizes the rights of nature as a constitutional right to be observed and emphasizes that every citizen can defend such rights in court when violated. However, it does not further elaborate on when nature should hold locus standi per se. The court applies the precautionary principle deeming necessary to order the halt of any construction “until it is objectively demonstrated that there is no likelihood or danger” of environmental damage . Finally, to defend the construction works, the provincial governments alleged that respecting the rights of nature would mean the violation of the local’s human right to development. To this allegation, the court responded that both rights are recognized by the constitution and should be pondered in the light of the constitutional principles. For this specific case, the court concluded that these rights are not colliding since the road can still be constructed while respecting nature’s rights [38]. In New Zealand, members of the indigenous Maori tribes have disputed with the Crown the status of the Whanganui River for the last 140 years in the framework of the interpretation of the Treaty of Waitangi, a treaty declaring British Sovereignty in 1840 and defining Maori’s land ownership, generally considered the founding document of New Zealand as a nation. Despite this, many Maori ¯ feel that the Crown did not fulfill its obligations under the Treaty and have presented evidence of this before sittings of the Waitangi Tribunal. In 2014, a settlement was finally reached [39] that would grant the river its own legal identity, with the rights, duties, and liabilities of a legal person. By this settlement, “the river becomes an entity in its own right, Te Awa Tupua” [39]. This settlement was turned into the Te Awa Tupua Act in 2017 by which the Whanganui becomes a legal person that will be able to be represented in court proceedings [40] and would have two guardians, one from the Crown and one from the Whanganui iwi [41] (see Part 2, Article 14, of the Te Awa Tupua 2017 Act: Te Awa Tupua is a legal person and has all the rights, powers, duties, and liabilities of a legal person). This has been so far the clearest legal reference to the way the rights of nature should be delineated and should be exercised. In this case, the Act, beyond declaring that nature has rights, explicitly grants legal personality to an entity within nature, i.e., the Whanganui River. It goes even further by naming those who should legally represent the river in court. The act makes a reference to the “Whanganui Iwi standing” (in Part 3, Subpart 2, named Ko au te Awa, ko te Awa ko au—Whanganui Iwi standing). It specifies that, for the purposes of the Resources Management 1991 Act, the trustees “are entitled to lodge submissions on a matter [...] affecting the Whanganui River” and are “recognized as having an interest [...] greater than any interest in common with the public generally.” Given the novelty of this declaration, it will be a matter of time to see how these norms applied to practical matters. Almost at the same time as the Te Awa Tupua Act was made official, the Uttrakhand High Court in India recognized that both the Ganges and its main tributary, the Yamuna, as well as “all their tributaries, streams, every natural water flowing with flow continuously or intermittently of these rivers” would be “legal and living entities having the status of a legal person with all corresponding rights, duties and liabilities” [42,43]. The case was brought to court when officials complained that the governments of Uttarakhand and Uttar Pradesh states were not cooperating with the federal government to set up a panel to protect river Ganges. The ruling [43] mentioned New

Zealand’s decision to recognize the Whanganui River as an ancestor and appointed legal custodians that would be the ones in charge of protecting the rivers (Paragraph 19 states: “The Director NAMAMI Gange, the Chief Secretary of the State of Uttarakhand and the Advocate General of the State of Uttarakhand are hereby declared persons in loco parentis as the human face to protect, conserve and preserve Rivers Ganga and Yamuna and their tributaries”). The court draws on the Supreme Court’s jurisprudence regarding personhood for Hindu deities and reaffirms that Hindu deities as juridical persons are to be managed by those entrusted with the possession of their property. The court bases its decision on the need to protect the recognition and the faith of society given that both of these rivers “support and assist both the life and natural resources [...] of the community.” The court regrettably did not elaborate on what the implications of such a declaration of rights would be, since the main focus of this ruling was actually on the nature of Indian federalism and the water management duties of federal and state governments and not on the rights of nature per se [44]. As aforementioned, three representatives are declared persons in loco parentis, as the persons in charge to protect the river. However, it is not discussed whether the river will hold locus standi whenever damaged or only under specific circumstances could these guardians defend the river’s rights in court. This same court ruled in April of the same year that Himalayan glaciers Gangotri and Yamunotri are legal persons. However, the Indian Supreme Court later overturned both rulings [45] after the state of Uttrakhand argued that the ruling could lead to complicated legal situations given that the consequences of providing rights to these rivers were not clearly defined. The case has not been settled, as the petitioner intends to appeal [46], but it is reflective of many of the questions that are raised by those opposing the legal doctrine of

the rights of nature. Uncertainty is certainly a challenge to overcome. Also based on the need to protect the river from human activity was the Atrato River ruling in Colombia. Illegal mining activities near the Atrato River and its tributaries were polluting the river and damaging the livelihoods and health of those living in the area. Given the situation, the Center of Studies for Social Justice “Tierra

Digna” [47] demanded the Government action to stop these activities and to protect the river. After this request was denied by the government, the case was brought to court. The judges noted the existence of a “serious violation of the fundamental rights to life, health, water, food security, the healthy environment, the culture and the territory of the ethnic communities that inhabit the Atrato River basin and its tributaries, attributable to the

Colombian State entities.” As a result, the court ordered that the river Atrato, its tributaries, and its basin have the right to be protected, preserved, and restored by the State and the communities. To safeguard these interests, the court mandates the government to appoint two representatives of the river, one would be a member of the community and the other a member of the government. Similarly, in this case, the river is provided with legal personhood and with representatives. However, when the river would have locus standi to be defended against any harm is unclear and has been left to be

decided on a case-by-case basis. The existence of this legal precedence is sparking actions for the recognition of the rights of nature in other parts of the planet . In fact, recently in September of 2017, Jason Flores-Williams (a lawyer in Denver) filed a suit in the Colorado Federal District Court seeking to hold the state of Colorado liable for the violation of the river’s right to exist, flourish, and regenerate. The plaintiff in the suit is the river ecosystem, and, because the river itself cannot appear in court, Deep Green Resistance filed the suit as a “next friend” of the river (an individual who acts on behalf of another individual who does not have the legal capacity to act on his or her own behalf) [48]. The court has not ruled anything thus far but it is

expected that similar cases will start sprouting all over the world. The movement supporting the rights of nature, and especially of rivers, to stand in court has found ground and encouragement on the existence of these precedents . Both the existence of political declarations and actual legislation make more plausible the idea of supporting the introduction of the rights of nature in

other legal systems, and the existence of courts’ rulings are setting a precedent by materializing the abstract idea of rights of nature into enforceable verdicts .

Environmental personhood provides an impetus for stronger environmental legislation – empirics proveGuim & Livermore 18 [(Mauricio is a S.J.D. Candidate at the University of Virginia and is an assistant professor of law at the Instituto Tecnológico Autónomo de México. Michael A. is an associate professor of law at the University of Virginia) “When Environmental Rights Go Wrong”, 2018]

The constitutions recognizing rights directly to nature have been celebrated as the most “ecologically advanced constitutions in the world.”29 The literature suggests different ways in which human environmental rights and nature’s

rights can positively affect environmental performance. First, nature’s or/and environmental rights can serve a powerful expressive function that could provide an impetus for stronger environmental legislation . Second, recognizing environmental or nature’s rights in a constitution can level the playing field between the environmental rights and other constitutional rights. In countries in which the constitution is directly applicable,

environmental and nature’s can also fill gaps in environmental legislation. Likewise, elevating the responsibility to protect the environment to the constitutional level can also strengthen the enforcement of existing environmental laws and policies. Even in the absence of environmental legislation, most constitutions allow

courts to directly protect the environment. Fourth, the non-retrogression or standstill doctrine contemplated in many constitutions can also protect environmental laws or regulation from rollbacks by future authorities.

Finally, procedural environmental rights increase citizen’s participation , access to information and facilitate political accountability . The literature suggests that these factors, individually or in combination, can improve environmental performance. If environmental rights transform a moral claim into a cognizable action, then environmental rights can strengthen citizens ’rights consciousness and increase their disposition to bring lawsuits . Lawsuits produce enforceable judgments, and these judgments protect and improve the environment. Likewise, if environmental rights transform moral principle into a positive law, then environmental rights can create strong focal point that facilitate collective action to protect the environments. Collective action creates interest groups, and these interest groups can effectively mobilize or lobby to demand a cleaner or safer environment. There is a small number of scholars who have studied to what extent

this claim has empirical support. In a mixed-methods research, David Boyd investigates to what extent environmental rights improve environmental performance. He coded the presence of three different kinds of environmental provisions in 150 countries and compared them across five different measures environmental performance: 1) ecological footprints of 150 nations; 2) the rankings of 30 nations in the Organization for Economic Co-operation and Development based on twenty-nine environmental indicators; 3) the rankings of the 17 largest and wealthiest OECD nations based on fifteen environmental indicators selected by the Conference Board of Canada; 4) ratification of major international environmental agreements; and 5) time-series data related to nitrogen oxide emissions, sulfur dioxide emissions, and green gas emissions. Using one-way analysis of

variance, the study concludes that the protection of environmental rights is systematically correlated with lower ecological footprints , higher places in the OECD and CBC rankings, higher percentage of major environmental treatises ratification , lower nitrogen oxide emissions, lower sulfur dioxide emissions, and lower greenhouse gas emissions .30

The plan is a means through which environmentalism evolves into an integral value addressed by law Babcock 16 [(Hope M, Georgetown Law) "A Brook with Legal Rights: The Right of Nature in Court," Ecology Law Quarterly, 4/1/2016] TDI

III. IT IS IMPORTANT TO GIVE NATURE ACCESS TO THE COURTS BECAUSE DOING SO HAS BOTH PRACTICAL AND

LEGAL EFFECT AND IS THE RIGHT THING TO DO

To imagine this change, we have to accept that our existing moral grammar, which the atmosphere‘s complexity thwarts, is not fixed once and for all, but can expand to make perceptible and salient what was once unavailable or impossibly obscure.97

It is important to give nature the independent legal right to go to court to protect itself from harm because the current system will not allow others to intervene on nature‘s behalf. As discussed above, third parties face nearly insurmountable barriers when they advocate for nature in court. The executive branch is perpetually hampered by limited resources, and occasionally a lack of will , when it comes to protecting nature from harm .98

Congressional paralysis (or worse), in matters affecting the environment has made that branch of government the least effective of all.99 The existing situation has real consequences for the environment—‖ hundreds of thousands of species on the brink of extinction , and only a tiny fraction will ever find activists in or out of the government to defend them.‖100

Granting something rights has real importance101: ―[p]rocedural determinations about which parties and persons can come into the courtroom create substantive outcomes and entail social ramifications . These substantive implications have a constitutive role in determining who does or does not belong within a community of legal subjects.‖102 However, ―rights exist in competition with other rights,‖ which means, for example, that granting animals rights interferes with humans‘ right to treat them like personal property.103 This makes expanding the circle of rights-holders controversial.

Granting something rights also has more than symbolic effect . 104 Justice Blackmun saw the legal recognition of environmental injuries as more than a mechanism for saving national forests; it was a means through which environmentalism could evolve into an integral element of the ills addressed by law , permeating the federal constitution, laissez faire economics, nonpartisan politics, and even our cultural sense of morality.105

Stone believed that a society that spoke of the ―legal rights of the environment‖ would be inclined to enact more laws protecting the environment.106 Identifying something as a right invests the underlying activity with ―meaning,‖ vague but still ―forceful,‖ in everyday language.107 When the concept of a right is infused into our thinking, it intuitively becomes ―part of the context against which the legal language‘ of our contemporary legal rules‘ is interpreted.108 Calling something a

right can also subtly shift ―the rhetoric of explanations available to judges, leading to the exploration of ―new ways of thinking and ―new insights.109 These new insights might encourage judges to ―develop a viable body of law,‖ which, in turn, might ―contribute to popular notions, thus changing how the new rights-holder is viewed.110

Granting something rights also has rhetorical importance. Naming a nonhuman, like an animal, as a party in a lawsuit tends to symbolically give the animal and its cause ―greater significance.‖111 This might cause people to stop thinking of animals as mere property, because property cannot sue.112 Current constitutional and prudential standing requirements have made ―ineffective‖ most efforts

to enforce the Animal Welfare Act under its own provisions or under the Administrative Procedure Act.113 But ―designating animals as something more than property, and allowing animals and people with interests in animals greater access to standing, will advance the progression of animal rights so that they more accurately depict the significance animals hold in our current world and give them the protections they deserve.‖114 As Professor Taimie L. Bryant notes,

[l]egal standing for animals could be considered simply as a pragmatic means of increasing humans‘ compliance with human-made laws to protect animals by way of a procedural mechanism that does the least conceptual violence to traditional standing principles. . . . In seeking to address the harm to an animal, it makes more procedural sense for a lawyer to say, ―I am here representing a particular animal plaintiff who has been harmed by a particular human‘s failure to provide food and water‖ than to say, ―I am here representing a human plaintiff who has been harmed by another human‘s failure to provide food and water to an animal.‖115

But granting something a right is of symbolic importance only until a court is willing to review actions that are inconsistent with that right.116 To ―count jurally,‖ what Stone describes as having ―legally recognized worth and dignity in its own right,‖ the rights-holder must be able to ―institute legal actions at its behest,‖ and a court must consider injury to the thing when it determines legal relief, which, in turn must benefit the rights-holder.117 The purpose of granting nature standing, then, is to protect other rights nature possessed and to ensure that whatever harm to the environment occurs will be mitigated or repaired.118 In the words of Justice Douglas, granting nature access to court is the only way ―[t]here will be assurances that all of the forms of life which [nature] represents will stand before the court—the pileated woodpecker as well as the coyote and bear, the lemming as well as the trout in the streams.

Stone concurred for reasons of morality and self-interest. Stone believed that ―the strongest case can be made from the perspective of human advantage for conferring rights on the environment.‖120 He advocated that steps be taken away from a human need to dominate things, ―to objectify them, to make them ours, to manipulate them, to keep them at a psychic distance.‖121 Stone believed that the gap between humans and the natural environment needed to lessen.122

One way to help integrate humans into the natural environment was to encourage the popular consciousness to relinquish its ―psychic investment in our sense of separateness and specialness in the universe.‖123 Stone found evidence that a new ―sort of consciousness‖ was developing ―for the betterment of the planet and us.‖124

Stone also remarked on a ―heightened awareness‖ that people have about the dangers of pollution and other harms to the environment, which ―enlarges our sense of the dangers to us,‖ and at the same time ―enlarges our empathy.‖125 In his article, he optimistically comments that humans are ―developing the scientific capacity‖ to understand this as well as ―cultivating the personal capacities within us to recognize more and more the ways in which nature—like the woman, the Black, the Indian, and the Alien—is like us.‖126 Ever the optimist, Stone theorized that ―[t]he time may be on hand when these sentiments and the early stirrings of the law, can be coalesced into a radical new theory or myth—felt as well as intellectualized—of man‘s relationship to the rest of nature‖127 that could ―fit our growing body of knowledge of geophysics, biology and the cosmos.‖128

Frontlines

1AR – Markets CPTransaction costs and free riders prevent property rights enforcementAdler 12 [(Jonathan, Professor of Law at Case Western Reserve University School of Law), Is the Common Law a Free-Market Solution to Pollution, Critical Review, 24(1), 61–85, http://dx.doi.org/10.1080/08913811.2012.684475] TD

How and why did the common law fail? Common-law actions can easily handle the simple case in which one property owner causes obvious harm to his neighbor. If emissions from a cement plant foul a downwind property owner’s air, causing

clear damage, a nuisance action provides an adequate means of redress, and can also provide a powerful incentive to avoid potentially polluting behavior in the first place. But what about the not-so-simple case? Commentators and critics have raised concerns that

common-law actions are a particularly poor fit for many contemporary pollution problems because the pollution may come from numerous sources, may affect numerous property owners, and may be difficult to detect

(Schroeder 2002, 599). It is one thing to urge nuisance remedies when a factory dumps sludge into a pond owned by someone else, quite another when numerous factories emit invisible pollutants into the air or water that affect numerous rights holders downstream. It may be difficult or costly to organize a response when numerous rights holders are affected by a single firm’s polluting behavior. If the harm is spread across a wide area and affects many property owners, no individual owner may have suffered harm sufficient to justify bearing the costs of organizing her neighbors (Brunet 1992, 313). Even if the collective benefit to all the rights

holders along a given stream might justify the costs of filing a suit, transaction costs and free-rider problems could prevent the victims of pollution from organizing to put an end to it.

Markets can’t solve - short-run pressure and external investments prevent environmentally efficient outcomes Smith 95 [(Tony, Professor of Philosophy at Iowa State University), The Case Against Free Market Environmentalism, Journal of Agricultural and Environmental Ethics, http://citeseerx.ist.psu.edu/viewdoc/download?doi=10.1.1.178.695&rep=rep1&type=pdf, 1995] TDI

In making this argument defenders of FME assume that private property rights lead owners to use their property in an environmentally sound fashion. Unfortunately

capitalist markets work in a way that prevents us from assuming this.

Consider a family farm that has stayed in a particular family for many generations. We can assume that the owners hope

that they will be able to leave their farm to their children in a good condition. But economic pressures may lead them to engage in practices that undermine this hope. Suppose that the prices of agricultural inputs have risen significantly while the prices of farm

commodities have declined, resulting in a high level of farm debt. In this case a farmer may be forced to attempt to increase production in order to avoid being foreclosed. The farmer may know that intensified production is not an environmentally sound practice in the long run. But economic pressures can prevent action in the here-and-now from being based on a long-term perspective. In periods of economic decline this sort of pressure may be quite strong throughout the economy.

Even if particular enterprises are not threatened by bankruptcy, a tension between shortterm economic imperatives and long-term environmental interests can still arise. If significant numbers of investors are willing to dump stocks whose quarterly

performance disappoints them, corporations come under intense pressure to maintain their quarterly earnings . This short-term pressure may lead these corporations to neglect long-term investments, including those that would protect the firm's assets from environmental damage.iv Also, capital accumulated in one region need not be reinvested in that same area ; if returns are greater elsewhere there is a great likelihood that it will not be reinvested in the first area. This too undermines the assumption that property holders refrain from subjecting their property to environmental degradation.

Let me present two scenarios to make this last point clearer. In the first case, at some time T1 an investment of $100 is made in a production facility located on a specific area of land. The owners wish to preserve the value of this land, so they spend $25 installing safeguards to protect against environmental damage. By T2 let us suppose the firm has made $75 profit from its investment. At this point a new investment opportunity opens up that the owners estimate to be extremely promising. They are able to sell the land for the $100 they paid for it, which together with the $75 profit gives them $175 to invest in the new opportunity.

In the second case everything is the same except that the firm does not invest in the environmental safeguards. As a result, the land is not as valuable at T2 as it was at T1. When the owners come to sell it they are only able to obtain $85. But they have made greater profits in the period between T1 and T2 as a result of lower costs. Their profit is $100 instead of the $75 they would have received had they invested in the environmental safeguards. Together with the $85 they received from the sale of the land, they now have $185 to invest in the new opportunity, placing them in a better position than in the first case.

Of course if the costs of the environmental safeguards were less, or if failure to install the safeguards resulted in a greater loss of real estate value, then the firm in the first scenario might end up in the better position. But that is precisely my

point. There is no invisible hand operating here that ensures that environmentally sound practices will be employed just because property rights are in private hands . Self-interested economic agents will calculate the costs of environmentally benign practices over against the costs they will incur if they do not institute those practices. If they estimate the former to exceed the latter, environmentally sound practices will tend to be ignored. The owners of capital make investments in order to attain a return within a given unit of time. The key question for capitalist investors is not "What will the physical condition of my holdings

be at time T2?" but instead "How much capital will I have accumulated by T2?" If considerable amounts of capital can be accumulated at the cost of harming their holdings, this is of little concern as long as attractive investment opportunities are available elsewhere.

Public land management maximizes efficiency and environmental protectionBlumm 6 [(Michael, Professor of Law at Lewis and Clark Law School), The Fallacies of Free Market Environmentalism, Harvard Journal of Law & Public Policy, January 2006] TDI

Not unexpectedly, Anderson and Leal disapprove of federal ownership of public lands. They initially cannot quite bring themselves to advocate selling off the public land "for reasons of political feasibility."' But later, sounding like latter-day Sagebrush disciples of James Watt,58 they suggest it as the only solution to solve the nation's energy problems.59 They blame "massive reservations of land as public domain" for halting the privatization of land and for "often subsidiz[ing] environmental destruction.' There is of course some truth in the latter proposition, but just as much in its converse:

Public land management undeniably (if somewhat unpredictably) produces environmental protection.6' For example, nearly all of the remaining Northern

Spotted Owl habitat in the Pacific Northwest is on federal lands where the last vestige of the Pacific forest's old growth timber endures.62 Virtually all of the old growth on private lands has been logged because the market attributed no value to preservation of old growth ecosystems .

Multiple use is a particularly difficult concept for Free Market Environmentalism, for it requires that "decisionmakers have in-formation on the value of alternative uses," which is not possible for the government because of "the absence of market information."88 The authors' solution is to create a market by selling the public lands to the highest bidders, which, they are careful to point out, might include environmental groups, alleged by Anderson and Leal to be quite wealthy.

Such an auction would create fragmented land management on a myriad of dominant-use parcels, increased spillover costs from incompatible parcels, inestimable difficulties in managing transboundary resources, and would leave ultimate decision-making authority in the hands of members of various boards of directors of oil, timber, and mining companies and environ-mental groups alike. This was, of course, the chief intellectual contribution of the Sagebrush Rebellion that helped usher Secretary Watt to office." The authors of Free Market Environ-mentalism mean to keep the old Sagebrush Rebels agitated.

Anderson and Leal indict government controls for failing to produce information necessary for efficient resource use. Their criticisms of government techniques of supplying prices for un-priced commodities, such as shadow pricing and economic

models based on adequate marginal analysis, are on the mark, but they fail to acknowledge that the same information problems disable markets as well. There is almost never good information on health costs, let alone risks, so the market has no way of rationally producing efficient results, of internalizing costs.' Anderson and Leal make an unconvincing attempt to explain how cost internalization is possible based on some obscure reasoning about the benefits of pricing, the costs of monitoring and measurement, and the availability of alternative suppliers in a market system.67 None of this

responds effectively to the charge that markets persistently fail to ensure that private bargains internalize environmental costs, risks, and benefits. Moreover,

markets measure only existing preferences , objectionable to those who cling to the traditional American belief in progress.'

C. Assuming Efficiency as Paramount

Even if markets could overcome information problems and allocate environmental resources efficiently, it is far from clear that efficient resource allocation should be our only social goal." Anderson and Leal assume that

efficiency is the chief goal,' but no statute or constitutional provision mandates resource decisionmaking based on ability to pay, perhaps because such a criterion would allocate resources predominantly to the wealthy. On the other

hand, there are numerous constitutional and statutory commands calling for fairness, due process, equality, open decisionmaking, public participation, compensation for past damages, and risk minimization.

Efficiency is attractive to Privateers like Anderson and Leal because it is easy to measure in profit and loss statements." Through markets and prices, subjective values seemingly can be transformed into objective measurements." Privateers are searching for such simplified decisionmaking criteria to replace administrative discretion. It is a fool's gold they seek,

however. Even if efficiency were the primary goal of environmental policy, many environmental goods are incapable of being priced, and there is conflicting evidence as to whether privatization in fact produces increased

efficiency. For example, although not noted in Free Market Environmentalism, in 1980 nearly twice as much public rangeland was in excellent condition as private rangeland .75

There is also some evidence that some forms of public property have been maintained precisely because privatizing them would be inefficient."Although Anderson and Leal claim that replacing govern-ment intervention with marketplace ordering will increase envi-ronmental quality,77 they worry that the former frequency produces "too much" wildlife habitat,78 clean water,79 and other environmental goods. What is "too much" is not clearly stated, but apparently the authors view it as more of an envi-ronmental good than the market would produce if environmen-tal resources could be effectively priced and bought and sold. A more analytic treatment of environmental decisionmaking might explain instances of environmental "overprotection" (as measured by inaccurate market techniques), as a reflection of the influence of non-economic goals."

Regrettably, Anderson and Leal's marketplace fanaticism does not permit them to see risk minimization, species preservation, or ecosystem stability as legitimate social goals unless and until the market places a high dollar value on them.

1AR – Rights NC – FrameworkSelf-ownership can’t be justified through argumentationMurphey and Callahan 6 [(Robert, visiting assistant professor of economics at Hillsdale College) and (Gene, PhD candidate in philosophy at the London School of Economics), Hans-Hermann Hoppe’s Argumentation Ethic: A Critique, Journal of Libertarian Studies Volume 20, No. 2, Spring 2006] TDI

As we stated above in the introduction, we believe that even if one grants the basic validity of Hoppe’s approach, his argument still fails to make the case for full self-ownership. At best, Hoppe has proven that it would be contradictory to argue that someone does not rightfully own his mouth, ears, eyes, heart, brain, and any other bodily parts essential for engaging in debate. But that clearly would not include, say, a person’s legs; after all, it is certainly possible for someone to engage in debate without having any legs at all. (Consider physicist Stephen Hawking, who is quite physically handicapped and yet manages to engage in propositional discourse of the highest caliber.)

To illustrate how the above foils Hoppe’s intention, imagine a collectivist arguing,

People should not have full ownership of their bodies, as libertarian theorists believe. For example, if somebody is sick and needs a kidney, then it is moral to use force to compel a healthy person to give up one of his.

Since it is not necessary to have two kidneys in order to argue, Hoppe has not succeeded in demonstrating the contradictory nature of such a collectivist claim.

Therefore, even on its own terms, his argument only establishes ownership over portions of one’s body. Now we will demonstrate that, at best, it also only establishes self-ownership of those body parts during the course of the debate.

For example, suppose a collectivist argues,

Generally speaking, people have the right to use their bodies as they see fit. However, during national emergencies, it is moral to use force to compel certain individuals to act in the public interest. In particular, if the nation is being invaded, the government may draft people into military service. Therefore, the libertarian claim to absolute self-ownership is unfounded.

Has Hoppe shown that someone uttering the above (during a policy debate) is engaging in a performative contradiction?

The collectivist is not using force during the debate; he is merely arguing that under certain conditions the use of force is appropriate to compel military service, thus denying the libertarian ethic. While we disagree with our hypothetical collectivist, we don’t see how his claims are self-contradictory. Before moving on, let us point out one rejoinder that is not valid for the defender of Hoppe’s argument. In response to considerations like the above, a Hoppeian might be tempted to say,

The fact that such collectivists would not be performing a contradiction at that moment is irrelevant. The beliefs of these collectivists necessarily rest on ‘might makes right’ when force is applied, and at that point, they show that they are not really interested in justifying their aggression.

For example, the Hoppeian might continue,

a person forced into a hospital to have a kidney removed certainly can’t argue while he’s under, and a person forced to the front lines to repel invaders certainly isn’t in a fair position to debate the justice of his condition. Therefore, these collectivists are engaging in a contradiction when they try to justify forced kidney transplants or the draft.

Hoppe himself has written:

[I]n the same way as the validity of a mathematical proof is not restricted to the moment of proving it, so, then, is the validity of the libertarian property theory not limited to instances of argumentation. If correct, the argument demonstrates its universal justification, arguing or not. (Hoppe 1988, p. 54)

Again, reasoning such as this is invalid; the defender of Hoppe must come up with a different way to respond to our arguments above. To see why this purported defense fails, consider the following proposition:

Patrons in a movie theater should refrain from talking during the feature presentation (in accordance with their implicit agreement with the owners of the theater) unless there is a genuine emergency such as fire or someone needing medical attention.

Not only do we feel that it is consistent to justify this proposition, but we actually believe the quoted proposition is true. (Before continuing, we urge the skeptical reader to decide for himself whether this proposition seems true or false, and in particular whether it seems compatible with a Rothbardian view of property rights.) Now, suppose that we are in an anarcho-capitalist society conforming to Hoppe’s vision of justice. A certain man pays for his movie ticket, observes the sign on the wall that says, “ALL PATRONS AGREE TO REMAIN SILENT DURING THE FEATURE PRESENTATION EXCEPT FOR EMERGENCIES,” buys some popcorn, and sits down in the theater. About ten minutes into the show, this man begins yelling at the screen, furious at the shoddy acting of several of the thespians. The people around him try “shhhhh” for several minutes, to no avail. Eventually two burly men who work for the theater must use force to eject the man out onto the pavement.

Here is the interesting part of the tale: While he is being dragged out of the theater, the man demands that his escorts debate the justice of their actions. But rather than giving a rational exposition of the nature of property and contractual agreements, these brutes continue to urge him to keep his mouth shut! The man is horrified at this brazen refusal to even try to justify their violence against him. As he recounts the episode to his sympathetic friends hours later, the man points out the ultimate irony of the theater’s rule: Not only is the prohibition against talking during a movie wrong, it is actually unjustifiable! For how can someone debate the justice of such a rule if he is forbidden to speak?!

Hopefully we can end our silly tale at this point. But in all seriousness, we must ask the reader: What specifically is wrong with our fictitious man’s position? Among other flaws, one of his errors is the notion that a rule is indefensible if its application would make debate at that particular moment impossible (or difficult). In our example of the movie theater, we

feel most Hoppeians would agree that it is perfectly acceptable to use force to uphold a rule, so long as the justice of the rule could be rationally defended beforehand, when force isn’t being used to intimidate anyone.

Now is there any important difference in this respect between our example of the movie theater, and the earlier collectivist justifications of the military draft or organ transplant? Just because one can’t argue on the front lines or in an operating room doesn’t by itself prove that these outcomes are unjustified uses of force. It is true, as Hoppe points out, that once a proposition has been proven, the proof does not “expire” the moment the discussion of it ceases. But the conclusion of a

valid proof is still only necessarily true when its premises are true. Hoppe has shown that bashing someone on the head is an illogical form of argumentation. He has not shown that the fact that one has ever argued demonstrates that one may never bash anyone on the head, nor has he demonstrated that one may not validly argue that it would be a good thing to bash so-and-so on the head. We cannot convince you of anything by clubbing you, but we may quite logically try to convince you that we should have the right to club you.

Our final point in this section is to note that, even setting aside all of the above difficulties, it’s still the case that Hoppe has only proven self-ownership for the individuals in the debate. This is because, even on Hoppe’s own grounds, someone denying the libertarian ethic would only be engaging in contradiction if he tried to justify his preferred doctrine to its “victims.”

For example, so long as Aristotle only argued with other Greeks about the inferiority of barbarians and their natural status as slaves, then he would not be engaging in a performative contradiction. He could quite consistently grant self-ownership to his Greek debating opponent, while denying it to those whom he deems naturally inferior (Aristotle 1905, Book I, sections 4–6).

Once again, let us point out that the defender of Hoppe must exercise caution. It is tempting to respond to the above example by saying, “That’s silly. If Aristotle tried to justify his views to a barbarian debating opponent, he would necessarily be engaging in contradiction. Therefore, his views are in general unjustifiable.”

Why is this response illegitimate? Because, if we accept it, then we must also admit that human “domination” of “lower” animals is also unjustifiable. Human beings never ask polar bears their thoughts on zoos. Horses are never allowed to debate the justice of their position in society. But surely the Hoppeian would not consider the denial of self-ownership to these creatures as an unjustifiable practice. Indeed, there are debates all the time on the issue of animal rights, and humans do try to justify experiments on animals, slaughtering animals for food, etc. But when they do so, it is always in order to convince other human beings. Nobody—not even animal rights activists—ever demands that we justify our practices to the animals themselves.

Of course, the Hoppeian might respond that horses are not as rational as humans, and therefore do not need to be consulted. But Aristotle need only contend the same thing about barbarians: they are not as rational as Greeks. Indeed, that was precisely why he held that they were naturally slaves. And the only way a libertarian could prove him wrong would be to argue that barbarians deserved the same rights as Greeks; i.e., one would have to start from scratch in trying to defend a

libertarian concept of rights. Hoppe’s argument as such offers nothing to help in this task. To assume from the outset that whatever rights any particular individual enjoys (through argumentation),

must therefore extend to all people—including newborn infants, the mentally retarded, as well as

senile and comatose individuals, none of whom can successfully debate—is to beg the question.3This is a crucial point, so let us approach it from a different angle. Suppose an animal rights activist reads Hoppe’s argument and is fully convinced of its coherence, and is in fact overjoyed at its ramifications. She immediately announces to the world that she now has irrefutable proof that slaughtering chickens is immoral. After all, how can someone possibly claim that a chicken need not have legal ownership of its body, without engaging in a performative contradiction?

We urge the skeptical reader not to dismiss our suggestion as ridiculous. What is the actual error4 of our hypothetical animal rights activist?There are many possible responses a Hoppeian might advance; our point does not depend on the specific reply. But whatever the reply may be, if it is equally applicable to any human being, then Hoppe’s argument must not make the universal case for libertarian rights, after all.5

Hoppe Conflates Use With Ownership

In the previous section we argued that, even if one grants the basic validity of Hoppe’s approach, he has still not made the case for universal, full self-ownership in the libertarian sense. At best, all Hoppe has proven is that it would be a performative contradiction for someone to deny in an argument that his debating opponent (and perhaps those in the same “class”) own the body parts (such as eyes, brain, and lungs) necessary for debate, for the duration of the debate. This is a far cry from showing that it would be a contradiction for someone to deny the case for libertarianism. In particular, a collectivist could argue that people can rightfully be forced to give up a kidney, or go to war, if such actions would help the rest of society.6

But now we move on to a more fundamental objection to Hoppe’s argument: One is not necessarily the rightful owner of a piece of property even if control of it is necessary in a debate over its ownership. Because of this fact, a crucial link in Hoppe’s argument fails. Someone can deny the libertarian ethic, and yet concede to his opponents the use of their bodies for debate. There is nothing contradictory about this, as we shall demonstrate with a few examples.

First, imagine a devout theist who believes that God created the entire universe, and is therefore the rightful owner of everything, including the bodies of human beings. The theist might believe that God has granted humans temporary control over His property, just as a landlord leases an apartment. However, just as the landlord would prohibit certain destructive acts, so too (the theist might think) would God prohibit such things as suicide and prostitution. Because of his worldview, such a theist might argue (against a libertarian atheist, perhaps) that people do not own their bodies, and that it is perfectly legitimate for outsiders to use force to prevent someone from committing suicide.

Now, we grant that the theist would have a difficult time proving his case; indeed, we would disagree with his conclusions if such a theist really existed and advocated this stance. However, we do not think he has, by making such a case, in any

way engaged in contradiction. Since we have come up with a logical counterexample to his sweeping result, Hoppe’s argument as it stands must be incorrect.7

Second, imagine that a Georgist were to argue that everyone should own a piece of landed property. The Georgist could go so far as to claim that his position is the only justifiable one. He could correctly observe that anyone debating him would necessarily grant him (the Georgist) some standing room, and then he might deduce from this true observation the conclusion that it would be a performative contradiction to deny that everyone is entitled to a piece of land. We imagine that Hoppe would point out to such a Georgist that using a piece of land during a debate does not entitle one to its full ownership, and Hoppe would be correct. But by the same token, Hoppe’s argument for ownership of one’s body falls apart; Hoppe has committed the exact same fallacy as our hypothetical Georgist.8

Finally, we point out with some irony that Hoppe and Rothbardian libertarians in general do not believe in universal selfownership. In particular, they believe that criminals may be rightfully enslaved to pay off their debts to victims (or their heirs). Now we ask: Would it be contradictory for legal procedures in an anarchist society to allow convicted criminals the right to appeal? Couldn’t criminals take the stand and testify as to their wrongful conviction? We can imagine a private judge saying to the criminal, “You currently do not possess full self-ownership rights, but we want the community to trust in the equity of our proceedings, so by all means, please explain your objections to your conviction.” Would such an utterance by the judge be contradictory?

If not, then it must not be true, after all, that one needs to own his body in order to debate. This is obvious; Thomas Paine wrote the first portion of The Age of Reason while imprisoned, the famous “Birdman of Alcatraz” submitted scholarly articles to journals while serving time for murder, and the imprisoned Timothy McVeigh certainly tried to justify the bombing to which he had

confessed, in correspondence with Gore Vidal. Indeed, Ludwig von Mises, Murray Rothbard, and Hans Hoppe were denied their rights to self-ownership (by the governments claiming authority over them), yet they managed to advance plenty of arguments.

Hoppe’s response to this objection, when it was made by David Friedman, Leland Yeager, and others,9 was to point out that he was not denying the historical existence of slavery, but rather its justification. But Hoppe misunderstood his critics’ point. Friedman, for example, wasn’t merely saying that because slavery has existed, Hoppe must be wrong. Rather,

Friedman argued that, because countless slaves have engaged in successful argumentation, Hoppe must be wrong when he claims that self-ownership is a prerequisite to debate.

This is a crucial point, so we wish to elaborate. Not only did Hoppe believe the particular evidence cited by his critics was harmless to his argument; he thinks all empirical facts are irrelevant. Hence, it’s not merely that he believes Friedman et al. were mistaken in their criticism, but that they completely misunderstood the type of claim he was making:

My entire argument, then, claims to be an impossibility proof. But not, as the mentioned critics seem to think, a proof that means to show the impossibility of certain empirical events, so that it could be refuted by empirical evidence [such as the existence of non-libertarian societies—RPM and GC]. Instead, it is a proof that it is impossible to justify non-libertarian property principles without falling into contradictions . . . empirical evidence has absolutely no bearing on it. (Hoppe 1988, p. 53)

Misesian economists will no doubt appreciate Hoppe’s frustration; he believes he is in the analogous position of someone being asked to deal with ostensible “counterexamples” to the law of diminishing marginal utility. However, as we stated above, it is Hoppe who is misunderstanding the type of claim being made. Yes, Hoppe is arguing for a conclusion (namely, that only libertarian ethics are consistently justifiable) that by itself makes no empirical claims, and hence cannot be falsified by observation. However, Hoppe’s chain of arguments to reach that (empirically neutral) conclusion crucially relies on an empirical assumption, to wit, that a person needs to enjoy self-ownership (and all other libertarian rights) if he is to successfully debate. It is this empirical assumption that his critics attacked, and quite successfully so: It is simply not true that one needs to own his body in order to fairly debate, just as one doesn’t need to own standing room in order to fairly debate.

We do not wish to deny that there is a definite sense in which, if there is to be a legitimate give-and-take of ideas, the two parties in question must enjoy a degree of autonomy or “freedom.” It would indeed be silly if the puppeteer “debated” his

marionette, or if a man trained his dog to engage in a mock argument. Yet this transcendental self-ownership is not what Hoppe is after; even the heretic being burned at the stake ultimately has free will and “owns” his mind. It was ingenious for Hoppe to attempt to

equate the conditions necessary for rational discourse with the property rules of radical libertarianism, but it is obvious to us that this attempted mapping fails.

Agents aren’t bound by constitutive rules absent their external justificationsEnoch 11 [(David, Professor of Law and Philosophy at Hebrew University of Jerusalem), “Shmagency Revisited” In Michael Brady (ed.), New Waves in Metaethics. Palgrave Macmillan, 2011)] TDI

If it can be defended, then, constitutivism promises to yield significant payoffs . But constitutivism seems to be subject to a powerful objection. For agents need not care about their qualifications as agents, or whether some of their bodily movements count as actions. They can, it seems, be perfectly happy being shmagents – non-agent things

that lack the thing purportedly constitutive of agency, but that are as similar to agents as is otherwise possible – or perhaps being something else altogether. If so,

constitutivism cannot make good on its promises: For when Korsgaard replies to the agent who asks, say, "Why should I care about the hypothetical and categorical imperatives?" with "Well, otherwise you wouldn't even count as an agent, you wouldn't even be in the game of performing actions.", the skeptic can discard this reply with a simple "So-what?". What is it to her, as it were, if she qualifies as an agent or not? She would be analogous not to the chess-player who asks why she should play according to the rules, but to

someone who enjoys the aesthetic qualities of (what we call) the chess board and pieces. If we tell this person that he must not move his king to a certain position because it's against the rules, and if he breaks them he won't count as playing chess, he can shrug us off with a simple "So-what?". He doesn’t care whether his manipulation of the chess pieces qualifies as chess-playing. And at this point the

objectivity Velleman hopes for also collapses, because the practical reasons whose objectivity Velleman wants to secure will not reach the person who is happy being a shamgent-rather-than-an-agent, or perhaps something else entirely. The general point here is that the status of being constitutive of agency does not

suffice for a normatively non-arbitrary status. Of course, if there were some independent reason to be an agent (for instance, rather than a shmagent), or to perform actions, this objection would go away. But the price would be too high, for such an independent reason – one not accounted for by the constitutivist story, but rather presupposed by it – would make it impossible for constitutivism to be the whole, or the most foundational, account of normativity, or to deliver on its promised payoffs.

Violations of property rights are coherent and universalizableEabrasu 12 [(Marian, Professor of Economics at the Champagne School of Management, France), Rothbard's and Hoppe's justifications of libertarianism: A critique, Politics Philosophy & Economics Journal, 12(3), 288–307, 2012] TDI

This critique of the justification of libertarianism would remain incomplete if we were to limit the discussion to the self-

ownership axiom. Libertarian scholars in the tradition initiated by Rothbard (1996: 33) extend the self-ownership axiom to external resources: ‘if every man owns his own person and therefore his own labour, and if by extension he owns whatever property he has ‘‘created’’ or gathered out of the previously unused, unowned, ‘‘state of nature’’, then what of the last great question: the right to own or control the

earth itself [?]’. To answer this question, Rothbard follows closely the Lockean formulation of the homesteading principle: ‘whatsoever, then, he removes out of the state that Nature hath provided and left it in, he hath mixed his labour with

it, and joined to it something that is his own, and thereby makes it his property’ (Locke, 1980: V, §27). Rothbard believes that ‘the natural rights justification for the ownership of ground land is the same as the justification for the original ownership of all other property’ (1996: 34, emphasis added). This idea is disputed by contemporary left-libertarians (Otsuka, 2003), who point to the fact that the right to self-ownership does not necessarily equate to the homesteading principle. Therefore, additional arguments have to be formulated in defence of the homesteading principle.

Why should those who first have access to and de facto control of an external resource also be its legitimate owners? Hoppe (2006: 336) uses reductio ad absurdum to demonstrate that it could not possibly be otherwise. In doing so, he pays attention to the fact that the alternatives to the homesteading axiom must be different from the alternatives to the self-ownership axiom. Even though the argumentative structure remains the same, the justification of the homesteading principle is different from the

justification of the self-ownership axiom and must be studied separately. Homesteading requires on the one hand, that the respective resource should not have been previously used, and on the other hand, that labour should be mixed with it. If these are the

conditions, the alternatives become obvious. Indeed, by denying the right to homesteading, it follows that either a property right may be obtained by declaration or latecomers may be entitled to ownership of such land without the initial agreement of a homesteader. If these alternatives were inconceivable, then the axiom of homesteading would be justified. Each alternative will now be detailed and discussed separately.

First, land may be appropriated by declaration:

If a person did not acquire the right of exclusive control over other, nature-given goods by his own work, that is, if other people, who had not previously used such goods, had the right to dispute the homesteader’s ownership claim, then this would only be possible if one would acquire property titles not through labor, i.e., by establishing some objective link between a particular person and a particular scarce resource, but simply by means of verbal declara- tion. This solution ... would not even qualify as a solution in a purely technical sense in that it would not provide a basis for deciding between rivalling declarative claims. (Hoppe, 2006: 336)

Indeed, declaration as a principle for land appropriation seriously complicates the assignment of property rights. Since almost everyone can claim the same piece of land,

additional criteria would be required to deal with any ensuing conflicts between incompatible claims. However, even if we agree with Hoppe that declaration is an insufficient principle for legitimizing the ownership of land, this still does not make this alternative absurd. As with our discussion of the

rejection of the first alternative to the self-ownership axiom, we can note again the same category mistake: the confusion between practical and logical impossibility .

Let us now focus on the second alternative: the possibility that latecomers may become owners.

If a person were not permitted to acquire property in these goods and spaces by means of an act of original appropriation, i.e., by establishing an objective (inter-subjectively ascertain- able) link between himself and a particular good and/or space prior to anyone else, but if, instead, property in such goods or spaces were granted to late-comers, then no one would be permitted to ever begin using any good unless he had previously secured such comers’ consent. Yet how can a late-comer consent to the actions of an early-comer? Moreover, every late-comer would in turn need the consent of other still later-comers, and so on. That is, neither we, nor our forefathers or our progeny would have been or will be able to survive if one were to follow this rule. However, in order for any person – past, present, or future – to argue anything it must be obviously possible to survive then and now; and in order to do just this property rights cannot be conceived of as being timeless and unspecific with respect to the number of persons concerned. (Hoppe, 2006: 383)

In formulating this argument, Hoppe closely follows Locke (1980: V, §28). Before going any further, it is important to observe that the Lockean appropriation theory itself has numerous interpretations. This theory is simultaneously used in various (and incompatible) theories of justice ranging from natural to contingent property rights and from egalitarian to communitarian property rights (Widerquist, 2010: 5).

In addition to the multiple interpretations of the Lockean homesteading principle, we can observe that this is not the only

way of assigning property rights. Imagine a society in which ownership is conceded only to old people. Instead of the homesteading axiom, this society would function according to an alternative norm: ‘only people older than 65 years have the right to ownership’. This means that first comers under 65 may only ‘borrow’ a resource (so they will not

perish) until they turn 65 or until another person over 65 requests it. Although different than the axiom of homesteading, the rule of ‘over 65’ is neither inconceivable nor practically impossible. Not only is the application of this rule possible, in some

specific cases it is even intuitive: it is easy to observe, for example, how some categories of people (older people and pregnant women) are entitled to priority seating on public transport.This norm, proposed as a counter-example to the homesteading axiom, is based on a prima facie rule (Ross, 1930: 19).

This principle says that a norm is binding, ceteris paribus, unless it is overridden by another norm. More precisely, the homesteading axiom can be trumped by a norm saying that latecomers may be the just owners of a good if they satisfy some specific conditions.

The conditions may be, for instance, that they are more than 65 years old, that they are poorer, taller, or stronger than the current user, and so on. It is crucial to note

that this alternative to homesteading does not postpone ad infinitum the appropriation of a particular item. Hence, Hoppe’s argument falls short. Any pioneer being the first to discover a good may use it until another person satisfying some particular conditions requests its ownership. This idea makes clear that the order of arrival is not the unique manner of granting the right of ownership . For example,

eye colour, strength, poverty, or similar could be possible criteria for allocating property rights. Therefore, the rule of first appropriation should also be tested against such alternative norms and not only against the rule of second appropriation.

Furthermore, even if it is checked against the rule of second appropriation there are not sufficient reasons to claim that only the homesteading axiom can be justified. Consider, for example, a chair and a finite list of users at precise and different moments in time: A, B, C, and D. Assume also that only one of these users can be the rightful owner. Why should this be A rather than B, C, or D? The answer ‘because A is

the first user’ is neither more nor less obvious than the answer ‘because B is the second user’. The application of the norm ‘for any defined item, its second user has the right to own it’, although curious, is not logically or practically impossible. In practice, it could appear that this norm would represent a disincentive for people to mix their labour with unoccupied land, but this would be a utilitarian objection based on individual psychology rather than a logical assumption. This norm is applicable to exactly the same extent as the homestead- ing axiom. Yet, these two norms are mutually incompatible and, therefore, they cannot have a simultaneous application.

For all these reasons, the reductio ad absurdum argument is not sufficient to justify the homesteading axiom, whether the homesteading axiom is deduced from the self-ownership axiom or not. Even when the reductio ad absurdum argument is customized

to justify the homesteading axiom, the absurdity of the alternatives to this axiom still cannot be proved. Hence, additional arguments are required to bolster the monist claim that only libertarian- ism can be justified. This is precisely the task of the performative contradiction argument.

1AR – Rights – ContentionThe aff is consistent with and strengthens property rightsHouck 17 [(Oliver, Professor of Law @ Tulane), Noah's Second Voyage: The Rights of Nature as Law, 31 TUL. ENVTL. L.J. 1, 2017] TDI

Vocal opposition comes as well from those who see a threat to private property and freedom itself, one advocate declaring that "there would be nothing left of human society if we treated animals not as [our] property but independent holders of rights."'92 Granting the utility of property rights-and overlooking the fact that the same was said of rights for

blacks and women-nothing in the rights of nature demands that private ownership be abridged any more than it is by zoning regulations, pollution controls, and other measures that we accept routinely for the common weal. Indeed, in

many settings these measures tend to enhance the values of private property, as does the protection of nature itself, a local park, a stand of trees. Property interests, can be accommodated through such time-tested devices as development credits, impact fees, tax relief, land swaps, and mitigation banks that allow activities to go forward while maintaining the base. Rights in nature do not end property as we know it. They simply ask it to meet the rest of the world half-way.

The plan increases personal liberty by resolving legal power imbalancesWalley 19 [Hailey Walley, Two Arguments for Extending Legal Personhood to Nature, May 2019, http://thesis.honors.olemiss.edu/1565/3/Walley%20Thesis.pdf] TDI

The question then becomes, how would granting the environment legal personhood actually protect individual autonomy?

I think it is most helpful to consider the Dakota Pipeline debacle, and similar examples, in which individual citizens were unable to legally protect their self-interest in environmental rights or their way of life because they were unable to illustrate personal monetary loss by the construction plan. In contemporary U.S. law, the only way to litigate against corporate/governmental plans involving the environment is to prove that one will be monetarily affected by its construction, or that the construction acts as

a substantial nuisance to the property one owns. There are many instances, however, in which people, both local and non-local, disagree with the building of a corporate plant or some other construction for other reasons: because it will mar the natural

landscape and ecosystem in general, because they believe it to be morally wrong, because it will infringe on their way of life, because they do not agree with the ideals of the company, because its construction will cause immense pollution to common goods that will affect all future generations, and so on. Under current U.S. law,

citizens are not able to fight explicitly against such plans for these reasons - they are not seen as substantial enough to be taken into consideration. According to the modern standing to sue guidelines, the plaintiff must show that they have suffered an “injury in fact,” establish causation in showing that the injury “fairly can be traced back to the challenged

action,” and show that the injury "is likely to be redressed by a favorable decision" of the court.31 Thus, for a case to hold up in court it must be oriented around proving that the plaintiff has suffered direct injury. Even then, though, were the plaintiff to prove injury, there is still a consideration of cost-benefit analysis that may award him/her damages but not injunction, so the source problem will continue to exist and cause further damage. For instance, in the United States case Boomer v. Atlantic Cement Company (1970), the plaintiff was awarded damages for the nuisance caused by the Atlantic Cement Company’s pollution, but the court did not award injunction because the company’s net-worth was considered too high in comparison to the damage they were causing to

justify it be closed. As this demonstrates, our society and governmental decisions are

primarily based on economic consideration in the form of benefit and cost analysis, which places the citizen at a disadvantage. However, the concept of personal autonomy does not acknowledge this stipulation that decisions must be based on economic consideration. The central meaning of personal autonomy is freedom to pursue one’s goals and desires (as long as they do not harm

another); there is no necessary consideration of personal economic well-being. Thus, by making use of this concept of personal autonomy, our citizens would be able to fight for environmental change whether they had an economic argument or not. In fact, this autonomy could be either narrowly or more broadly

conceived, and so be involved in many different kinds of conflicts. By extending personhood to the environment, citizens would have another legal avenue they could use to thwart environmental damage which didn’t depend on an economic argument.

Pollution violates liberty – the aff increases freedomBlumm 6 [(Michael, Professor of Law at Lewis and Clark Law School), The Fallacies of Free Market Environmentalism, Harvard Journal of Law & Public Policy, January 2006] TDI

Anderson and Leal's allegation that environmental regulation sacrifices individual liberty is also contentious. Market principles cannot support this claim because liberty is difficult to price and infeasible to aggregate . Unfortunately, Free Market Environmentalism offers no illumination on the liberty issue, just a bald assertion that liberty

would be enhanced with market al-location of environmental resources.' The liberty of those who emit air

pollutants, discharge water contaminants, or dispose of hazardous waste materials may well be increased. But those exposed to environmental degradation lose liberty. And the numbers of liberty-losers typically outnumber considerably the liberty-gainers. Whether aggregate liberty is gained from mar-ket

transactions is difficult to ascertain, but it is clear that some of the liberty-losers pay enormous health costs.42 Anderson and Leal ignore these issues and, in so doing, undermine the usefulness of their effort.

1AR – Court Clog DAThe link is the squo and feasibility checksHouck 17 [(Oliver, Professor of Law @ Tulane), Noah's Second Voyage: The Rights of Nature as Law, 31 TUL. ENVTL. L.J. 1, 2017] TDI

A final fear is that nature standing would "flood the courts" with litigation. It

has little foundation. After Siena v Morton, "person"-based environmental litigation rose in America in direct proportion to the rise of environmental laws themselves," many of which encouraged citizen enforcement as a means of keeping the government on task.' The lawsuits (many of which have to be brought by industry

and others opposed to environmental requirements) are already here.'" In practice, the similarly worded environmental rights provisions in the constitutions of other countries-some of which accord standing without restraint- have not produced a flood of any kind. The practical realities of this litigation-lengthy, costly, legally complex, scientifically complex, politically and socially risky, and in some places physically dangerous to those who undertake it-are quite sufficient to keep the traffic down.

Institutional checks prevent the linkStone 10 [(Christopher D., Christopher D. Stone is an authority on environmental and global issues, including international environmental law, environmental ethics, and trade and the environment. He taught Property, Globalization, Rights of Groups, and International Environmental Law. A magna cum laude graduate of Harvard, Stone received a JD from Yale Law School. He was Fellow in Law and Economics at the University of Chicago and practiced law at Cravath, Swaine & Moore in New York before joining the USC Law faculty in 1965. He has taught at University of Michigan Law School and Yale Law School.) “Should trees have standing? Law, Morality, and the Environment Third Edition” Oxford University Press, 2010] TDI

This problem, that standing for natural objects will clog the courts to a standstill, is all too easily exaggerated. Lawyers value their time too much to throw it away on a brook —certainly not on a brook that has nothing to babble about on the merits. Worse, brooks cannot cover the copying costs of modern litigation, much less the hours. 47 Moreover, the range of permissible guardians can

be limited, so that not every lawyer in all the land is qualifi ed to besiege the courts on every hand. Unique guardian-ward relationships, peculiar to certain “objects,” may develop de facto. The Hudson River has a “Riverkeeper” who is the client of the Pace University Law School Litigation

Clinic; the clinic at Widener University Law School has taken on the Delaware Bay Keeper as its principal client; a Boalt Hall (University of California, Berkeley) law school clinic represents the San Francisco Baykeeper.48 In addition, statutes can be drafted (and treaties negotiated) that authorize standing in the name and interests of certain designated nonhumans. Such provisions can also circumscribe, in advance, the group authorized to represent them. In Germany, some of the states (Länder) have, by special regulation, approved environmental groups to serve as in effect as designated guardians for certain forests.49 More recently, German federal law has arranged for certain qualifi ed nonprofi t associations (altruistisches Verbanden) to enjoy a wide range of opportunities to participate in activities affecting the environment, beginning with the planning stage

and carrying over into litigation.50 In the United States, the National Oceanic and Atmospheric Administration (NOAA) is the designated trustee for fish,

marine mammals, and their supporting ecosystems within the U.S. fi sheries zone. Under this setup, NOAA has authority to institute suits against any party that injures its “ward.”51 For example, if whale-watchers harass migrating whales, NOAA has express standing to institute administrative action (civil penalties). If toxic releases damage the whale-supporting ecosystem, it is in the province of NOAA to refer the matter to the U.S. Department of Justice to litigate.52

The notion of having guardians for natural resources has become so familiar, that under the Superfund Acts the president is authorized to appoint, from among governmental and state agencies, “natural resource trustees” with power to sue wrongdoers for restoration costs.53 As I’ve said, the supposed “practical” problem of court-clogging strikes me as exaggerated. There remain, of course, philosophical objections. “The only stone which could be of moral concern, and thus have legal rights, and thus deserving of legal rights,” one Canadian commentator gibed, “is one like Christopher.”54 But this challenge is based on a common error, to suppose that a thing’s having legal rights (being a person in a legal system) has to stand or fall on the thing possessing moral rights underneath. (We assign corporations independent status in the legal system, such as the capacity to sue and be sued in their own name, but we do not do so because anyone believes that corporations are moral agents). Thus, I do not believe that the commonly cited practical and philosophical conundrums are anything near fatal. I suspect that the principal reason why Trees has had so mixed an impact has been, ironically, the growth and the success of environmental law. Throughout the seventies, as the social climate grew more sympathetic to the environment (even in face of the “energy crisis”), several developments reduced the value of Trees’ “standing” thesis as a tactic for environmental lawyers.

Neg

Case

1NC – PollutionLegal personhood atomizes environmental justice and undermines existing and effective aquatic protectionsO’Donnell 18 [(Erin, Professor at University of Melbourne, She has worked in water governance since 2002, in both the private and public sectors. Erin’s research focus is the challenge of providing sufficient water for the environment within the context of transferable water rights and water markets, and is informed by comparative analysis across Australia, New Zealand, the USA and Chile. Erin’s PhD explored the role of the new legal institutions and organizations in delivering efficient, effective and legitimate environmental water management, by constructing the aquatic environment as a legal person), "Legal rights for rivers: More power, less protection?," 4-23-2018] TDI

But this very framing highlights two significant problems. Firstly, just what is ‘nature’? Western legal frameworks have dealt very poorly with this concept, and tend to embed a dichotomy between the ‘natural’ and the ‘human’, which breaks the powerful bonds between people and country that are so central for First Nations peoples.

Secondly, why should nature need to protect itself in law? Modern environmental law is essentially

public law created to protect collective values and interests in a clean and healthy environment. It is part of a broader set of public interest laws intended to ensure that the law acts on behalf of those too vulnerable to speak up for themselves in an adversarial context.

Giving rivers legal rights replaces this emphasis on the collective good with individual rights, most particularly the right to sue and be sued (legal

standing), so that rivers can go to court and advocate for their own interests. In 1972, Christopher Stone made a compelling argument as to why legal standing is so important: without it, harm to the

river can only be recognised if it is also harm to human beings. But standing law has evolved significantly since 1972 , and many environmental organisations can now speak on behalf of the environment. Ultimately, rivers only need a voice if we expect them to compete for their own outcomes. Giving rivers a voice means we can effectively abdicate our responsibilities for looking after them , because they will do it instead .What kind of evidence is there for these sorts of unexpected effects? Rivers have only received legal rights directly in the past year, and it is too soon to tell exactly what impacts these new legal entities will have. But we can examine some less direct examples, such as the legal entities responsible for recovering and managing environmental water, to see what might happen next.

Emerging narratives: competition and collaboration

Environmental water managers are found throughout the world, but are particularly active in acquiring and managing water using water markets in Australia and the USA. What makes them useful examples is that they use their legal personality to make decisions on where, when and how to use water to achieve ecological outcomes, and in doing so, they begin to speak and act on behalf of the aquatic environment.

In Australia, environmental water managers are now some of the largest holders of water rights in the Murray Darling Basin. This water has been recovered via investment in the water market, as well as investing in infrastructure efficiency

to generate water savings. In 2004, policy makers argued that the environment has a legitimate need for water. By 2008, the rhetoric had shifted dramatically: the environment was labelled ‘just another user’ of water in the media, and rather than seeing the environment as an essential element for water resource security, irrigators began viewing the environment as a competitor.

In 2010, policy submissions to the Productivity Commission supported using markets to buy back water for the environment from willing sellers. By 2015, in response to pressure from the irrigators, the Australian government passed legal reform to limit the volume of water that the Commonwealth Environmental Water Holder could buy from other users.

The environmental water holders had successfully transformed the aquatic environment from a legal object, to a legal subject, with rights of its own. But in doing so, they had managed to weaken support for legal protections that were perceived as special treatment for the environment .

Weakened legal protections and the shifting cultural narratives have undermined the billions that have been invested in water recovery for the environment by leaving environmental water vulnerable to theft , and the environmental water holders with little recourse.

The situation in the western USA has evolved rather differently. Environmental water managers have been unable to rely on highly active water markets, so they have been forced to adopt a much more consensus-based approach to water recovery across the western USA. Each transaction to recover water for the environment is long and expensive, but each transaction produces a local champion, willing to extol the benefits of water recovery to their local communities.

However, legal rights are only valuable to the extent that they can be enforced .

Environmental water managers can find it difficult to use the legal powers they currently have, if it means going up against members of their communities. Legally, they may retain the same set of rights and duties as other users of water (although many states still impose

specific limits on water for environmental purposes), but they cannot make effective use of them without losing community support .

The paradox of legal rights for rivers

Rivers with legal rights can take action to protect themselves, but when they do, people are less likely to want to protect them, and less willing to support legislation that does . This apparent paradox creates real problems for the emerging jurisprudence of rivers as legal persons, and it may well create more problems than it solves.

The aff empirically fails – suits won’t happen because individuals can’t compete with the governmentHaskins 18 [(Caroline Haskins), "Water, water, everywhere but not a drop to drink," Outline, August 6 2018] TDI

Some countries have started to grant their bodies of water the same status as a living being, or de facto legal personhood: New Zealand has done this for its Whanganui

River, and India its Ganges and Yamuna Rivers. If a company pollutes those country’s waters and the incident goes to court, the rivers have enforceable legal rights, independent of who uses them.

The problem with enforcing this is that a lawyer representing a river may have to go up against an entire government that has failed in its legal obligation maintain that body of water’s cleanliness. As such, in the year since the Whanganui, Ganga, and Yamuna rivers have been granted personhood status, there has not yet been a lawsuit concerning pollution in which a river is the plaintiff .

Water personhood privatizes environmental defense which prevents effective redressTalbot-Jones 18 [(Dr. Julia Talbot-Jones, PhD in economics at the Australian National University and Managing Editor of the UNESCO Global Water Forum), "Flowing from fiction to fact: The challenges of implementing legal rights for rivers," , International Water Law Project, May 7 2018] TDI

Granting legal rights to rivers also places the responsibility of looking after, and representing, the environmental good or resource in the appointed guardians, rather than elected officials. Without broader institutional and financial support, this means that only wealthy or well-endowed representatives will be able to challenge decisions and enter costly litigation, should a river wish to sue or find itself the subject of an individual or class action.

Given the financial burden of engaging in judicial process, perhaps it is not surprising that Ecuador –

a country, which granted all of nature legal rights in 2008 – has had only three cases of the rights of nature being successfully brought to court by civil society. In the first case, two American residents who live part-time in Ecuador brought a case against the Provincial Government of Loja on behalf of the Vilcabamba River. The plaintiffs owned property downstream of a road that was to be widened and that runs past the river. The couple argued on behalf of nature that the new construction was adding debris to the river and thus increasing the likelihood of floods that affected the riverside populations that utilise the river’s resources.

Open standing homogenizes community interests and enables ulterior motives which turns case and causes environmental injusticeFish 13 [(Laurel, Stanford University), Homogenizing Community, Homogenizing Nature: An Analysis of Conflicting Rights in the Rights of Nature Debate, 2013] TDI

One of the most pressing practical conundrums in implementing rights of nature proposals is who should act as nature’s representative, given that nature cannot represent itself in the legal system. As rights of nature have gone from theory to practice [xiii], the trend in Ecuador

and Spokane has been to grant standing to everyone, regardless of whether or not they suffered direct harm (the typical standard in a lawsuit), while naively assuming that the provisions will be used primarily by idealized communities that have nature’s best interest at heart [xiv]. However, open standing (actio popularis) is not as democratic or unequivocally good for an ecosystem’s best interests as it may seem. Because anyone,

including foreigners, people unfamiliar with the local environment, and corporate interests can sue on behalf of nature under an open standing doctrine, there is

the possibility that claims supposedly based on nature’s rights will be used to further the personal interests of those people in power . This not only

reinforces existing political and economic disparities, but also permits

claims that are disconnected from local needs and obscures ulterior motives of lawsuit plaintiffs . In part, the idealization of a homogenous community serves to hide disparities and conflicting interests within the community, as well as between the community and society more broadly.

The first (and so far, only ) case where the courts have recognized the rights of nature, already shows signs that the law obscures resource disparities and conflicting interests between different community groups. The case was presented to the Loja Provincial Court of Justice in Ecuador in March of 2011, on behalf of nature, specifically the Vilcabamba River, and against the Provincial Government of Loja. The suit sought to stop the widening of the Vilcabamba-Quinara road that runs past the river. The plaintiffs, Richard Frederick Wheeler and Eleanor Geer Huddle, argued on behalf of nature that new construction was adding debris to the river, thus “increasing the river flow and provoking a risk of disasters from the growth of the river with the winter rains, causing large floods that affected the riverside populations who utilize the river’s resources” [xv]. Environmental groups applauded the courts for allowing Wheeler and Huddle to file a lawsuit on behalf of the river rather than out of direct personal harms.

On an environmental level, the suit may prevent a minimal amount of environmental damage, but further investigation indicates that the case was primarily a victory for Wheeler and Huddle, two American residents who live part-time in Ecuador and own property downstream

of the road construction. According to their website, the couple have plans to develop a “Garden of Paradise Healing and Retreat Center” outside of Vilcabamba, with plots along the river selling for $30,000 to $150,000 [xvi]. The land slated for development was most likely that which was flooded by the new road construction—one of the reports from the Global Alliance for the Rights of Nature states that the 3.7 acres that flooded as a result of the road construction were “of the most valuable land in the Uchima Neighborhood” and that approximately 15,404 feet of the Wheeler-Huddle land was affected [xvii]. To be sure, the case most likely did prevent a

minimal amount of erosion in the Vilcabamba River, but it is questionable whether the construction of a full-scale retreat center and multiple houses along the river that cater to Western tourists, will not have an equal or greater impact on the river and surrounding environment.

While the true environmental impact remains ambiguous, the suit had clear social implications that were not taken into

account. Basing the claim on nature’s rights sidestepped the issues of resource disparities and competing rights claims between foreign interests and the local community. The case briefly mentions the impact on the surrounding community that uses

the river, but it appears that no local people were asked to testify, and local perspectives were not a major part of the judge’s decision. Furthermore, there is no evidence on how the development affected the lives of local people .

What was the economic impact of the road construction on surrounding communities? Were local people supportive of the lawsuit? Did the road increase mobility and access for local people? These questions become irrelevant when the rights of nature provisions are examined in isolation, without regard to provisions that guarantee the human right to benefit from the environment (such as Article 74) and to lead productive and meaningful lives. In fact, the Vilcabamba case generated absolute, unadulterated praise from environmental organizations, with no one bothering to examine the motives behind the suit or consider how the road might benefit the surrounding communities [xvii]. Organizations such as the Global Alliance for the Rights of Nature specifically praised the Loja court for focusing exclusively on the violation of nature’s rights rather than comparing

the competing interests of the river and surrounding communities [xix]. This praise not only overlooks any potential ulterior motives of the plaintiffs, but also neglects a discussion of the comparative value and risks of development and conservation. Even if the suit had a net positive impact for the Vilcabamba River, it shows the risks of overlooking

tensions between the rights claims of humans and nature. While Ecuador certainly faces unique problems such as instability and corruption within its court system and large wealth disparities between foreigners and citizens, which would

enhance the possibility for successful personal interest claims, the threat of NIMBYism also applies to the United States [xx]. It is easy to imagine situations in which a proposed development would be in the best interest of society as a whole, but have some

negative impacts for nearby residents. Schools, light rail lines, halfway houses, and waste treatment facilities are all necessary , but create some annoyances for residents in the immediate vicinity. The risk is that claims on behalf of nature—

cutting down tress, clearing brush, impinging on animal habitat—would be used by more powerful groups to simply relocate development to poor neighborhoods , where the environmental impact could be equivalent or even greater .

Proponents of granting rights to nature envision the laws being used to assist communities in fighting back against

corporations and developers, and largely deny the possibility of personal interest claims. For example, when asked if individuals could use their advocacy for nature to advance their own interests, the Envision Spokane campaign director indicated that communities are less likely than corporations to make self-interested claims. He did not take other possibilities seriously, saying only that democracy is almost necessarily “messy” (Huschke K, personal interview, Nov 22, 2011). Even Thomas Linzey, one of the main people involved in drafting the

provisions for U.S. municipalities and Ecuador, admits that the laws make it possible for a developer to argue that it is in the “best interest of the river to be diverted, or used, or put to some other ‘higher and better’ purposes.” Linzey’s proposed resolution is to trust that the laws’ true intent will be “vindicated” by well-meaning communities [xxi]. However, the cases above suggest that local communities may not have the resources, power, or even desire to uphold the best interests of the local environment. While combating the threat of corporate power is

certainly one application of the proposed laws, it is likely not the only—the lack of attention to local resource disparities and heterogeneous interests within a community threatens to silence certain perspectives and even well-meaning communities may not act solely in nature’s best interest.

BioD isn’t existential - redundancy, intervening actors, boundaries will never be crossedKareiva & Carranza 18 (Peter Kareiva & Valerie Carranza. Institute of the Environment and Sustainability,. “Existential Risk Due to Ecosystem Collapse: Nature Strikes Back.” Volume 102, September 2018, Pages 39-50)

The interesting question is whether any of the planetary thresholds other than CO2 could

also portend existential risks . Here the answer is not clear . One boundary often mentioned as a concern for the fate of global civilization is biodiversity (Ehrlich & Ehrlich, 2012), with the proposed safety threshold being a loss of greater than .001% per

year (Rockström et al., 2009). There is little evidence that this particular .001% annual loss is a threshold—and it is hard to imagine any data that would allow one to identify where the threshold was (Brook et al., 2013; Lenton & Williams, 2013). A better question is whether one can imagine any scenario by which the loss of too

many species leads to the collapse of societies and environmental disasters, even though one cannot know the absolute number of extinctions that would be required to create this

dystopia. While there are data that relate local reductions in species richness to altered ecosystem function, these results do not point to substantial existential risks . The data are small-scale experiments in which plant productivity, or nutrient retention is reduced as species number declines locally (Vellend, 2017), or are local observations of increased variability in fisheries yield when stock diversity is lost (Schindler et al., 2010). Those are not existential risks . To make the link even more tenuous, there is little evidence that biodiversity is even declining at local scales (Vellend et al 2017;

Vellend et al., 2013). Total planetary biodiversity may be in decline, but local and regional biodiversity is often staying the same because species from elsewhere replace local losses , albeit homogenizing the world in the process. Although the majority of conservation scientists are likely to flinch at this conclusion, there is growing skepticism regarding the strength of evidence linking trends in biodiversity loss to an existential risk for humans (Maier, 2012; Vellend, 2014). Obviously if all biodiversity disappeared civilization would end —but no one is forecasting the loss of all species . It

seems plausible that the loss of 90% of the world’s species could also be apocalyptic, but not one is predicting that degree of biodiversity loss either. Tragic, but plausible is the possibility our planet suffering a loss of as many as half of its species. If global biodiversity were halved, but at the same time locally the number of species stayed relatively stable, what would be the mechanism for an end-of-civilization or even end of human prosperity scenario? Extinctions and biodiversity loss are ethical and spiritual losses, but perhaps not an existential risk. What about the remaining eight planetary boundaries? Stratospheric

ozone depletion is one—but thanks to the Montreal Protocol ozone depletion is being reversed (Hand, 2016). Disruptions of the nitrogen cycle and of the phosphorous

cycle have also been proposed as representing potential planetary boundaries (one boundary for nitrogen and one boundary for phosphorous). There are compelling data linking excesses in these nutrients to environmental damage. For example, over-application of fertilizer in Midwestern USA has led to dead zones in the Gulf of Mexico. Similarly, excessive nitrogen has polluted groundwater in California to such an extent that it is unsuitable for drinking and some rural communities are

forced to drink bottled water. However, these impacts are local . At the same time that there is too much N loading in the US, there is a need for more N in Africa

as a way of increasing agricultural yields (Mueller et al., 2012). While the disruption of nitrogen and phosphorous cycles clearly perturb local ecosystems ,

end-of-the-world scenarios seem a bit far-fetched . Another hypothesized

planetary boundary entails the conversion of natural habitats to agricultural land . The mechanism by which too much agricultural land could cause a crisis is unclear —unless it is because land conversion causes so much biodiversity loss that is species extinctions that are the proximate cause of an eco-catastrophe. Excessive chemical pollution and excessive atmospheric

aerosol loading have each been suggested as planetary boundaries as well. In the case of these pollution boundaries, there are well-documented mechanisms by which surpassing some concentration of a pollutant inflicts severe human health hazards . There is abundant evidence linking chemical and aerosol pollution to higher mortality and lower reproductive success in humans, which in turn could cause a major die-off. It is perhaps

appropriate then that when Hollywood envisions an unlivable world, it often invokes a story of humans poisoning themselves. That said, it is doubtful that we will poison ourselves towards extinction . Data show that as nations develop and increase their wealth, they tend to clean up their air and water and reduce environmental pollution (Flörke et al., 2013; Hao & Wang, 2005). In addition, as economies become more circular (see Mathews & Tan, 2016), environmental damage due to waste products is likely to decline. The key point is that the pollutants associated with the planetary boundaries are so widely recognized , and the consequences of local toxic events are so immediate ,

that it is reasonable to expect national governments to act before we suffer a planetary ecocatastrophe.

1NC – Natural GasNatural gas is a bridge to renewables – any alternative makes it impossible to meet 2 degreesBrown 17 [Derek (BA Geology @ Yale), Hydraulic Fracturing and its Impact on Renewable Energy Development, May 5, 2017, Brackets in Original] TDI

This section considers the pros and cons of natural gas as a transitional energy to a renewable energy future. It takes into

account the alternatives to natural gas, increasing demand of electricity, and the levelized cost of electricity. While it is important to not become reliant on fossil fuels, natural gas can be complimentary to renewable energy sources and serve as a near ideal transitional energy if extraction, transportation, and disposal is performed properly. Natural gas is a valuable domestic resource given its abundance in the U.S. It is a much cleaner burning fuel than coal , the main fuel that it competes with in U.S. electricity production, when leakage is minimized. This is because while coal is composed primarily of carbon, it

always has significant impurities due to its process of formation. Coal combustion releases more than twice as much CO2 than combustion of natural gas, per unit of energy released, and also emits much larger quantities of pollutants such as sulfur and nitrogen oxides. The substitution of natural gas for coal in U.S. power generation during the last decade has had a large effect on U.S. CO2 emissions . Energy related carbon dioxide emissions peaked in 2007 at just over 6000 million metric tons (Tour,

2010). The downward trend from this point marks a significant decrease in carbon after a long pattern of increasing yearly emissions (eia.gov, 2017). Natural gas

power plants complement renewable energies on the grid very well for many reasons. Because there is no large-scale economical way to store renewable energy and reconcile the misaligned supply and demand, most energy companies must still rely on non-renewable fuel sources during peak demand. Natural gas-fired plants can quickly meet those hourly variations by quickly ramping up or down at a moment’s notice to meet minute-to-minute fluctuations. This contrasts coal-fired power plants, which are slow and inefficient to ramp up and have contractual minimum run times that

can last several days. Many environmentalists disregard the potential for a balanced energy system and still push for renewable energy instead of fossil fuels. However, economists believe that natural gas compliments renewable energy because they are price dependent . One example is peanut butter and jelly. Peanut butter and jelly are compliments because they’re usually eaten together. If the cost of peanut butter goes down, people will eat both more peanut butter as well as more jelly, assuming that the cost of jelly hasn’t changed (Reynolds, 2015).

Likewise, when the price of natural gas goes down, so does the effective cost of renewables, which are made ever more plausible by gas-fired generation.

Improved public perception of fracking methods that will come with more research, paired with

strict regulations and advanced technologies, can make fracking a less daunting and more environmentally practical strategy to serve as a transitional energy to renewables . Sustainable Energy Innovation In 2011, GE announced the first power plant to integrate wind and solar power with natural gas. It was designed to combine a traditional gas-fired steam turbine with solar thermal power and wind power. The 530 megawatt plant began operation in Turkey in 2015 and is made practical by a flexible, high-

efficiency natural gas system along with a solar thermal power system and mirrors. The solar component is a field of sun-tracking mirrors that focuses sunlight on a tower to produce steam, which is fed into the steam

turbine to increase the plant’s output. The small wind farm connected to the plant provides another 22 megawatts of power and the natural gas component smooths out the variability problems inherent in wind energy. When the wind is not

blowing, natural gas generates steam to spin the turbines. In 2015, Western Energy Partners announced they will build a $1 billion, 750 MW hybrid natural gas and photovoltaic (PV) solar power plant in New

Mexico. This trend creates jobs and paves the way for more innovation , such as a battery-gas hybrid power plant or solar roof shingles to reduce pollution. Is natural gas a bridge to nowhere? Many researchers argue that the most dangerous aspect of natural gas usage is the perpetuation of fossil fuel dependence. There are currently large, but not insurmountable barriers to harnessing natural gas and renewable energy to meaningfully reduce our national reliance on imported oil for

transportation. However, much of the current conversation is narrowly focused on either natural gas or renewable energy as distinctly separate components or concentrates on the competitive impacts of one over the other. The two forms

of energy, natural gas and renewable energy, are complementary in many respects:

natural gas electricity generation enjoys low capital costs and variable fuel costs, while renewable energy generators have higher capital costs but generally zero fuel costs. Yet, despite the complementarities and potential for greater coordinated use, the natural gas and renewable energy industries have at times viewed each other as direct competitors, especially in the power sector. As of mid-2012, the primary competitive impact of inexpensive natural gas has been over 300 terawatt-hours (TWh) of fuel switching from coal- to natural gas-fired electricity since 2008 (Dumaine, 2012). If natural gas prices remain below roughly $5 million British thermal units (MMBtu), many developers of renewable electricity projects might be hard pressed to offer competitive power purchase prices, thus limiting the number of projects deployed (Howarth et al., 2011) Similarly, natural gas producers and biofuel producers might compete over water, especially in areas with limited

water supply. The joint efforts of the natural gas and renewable energy industries to engage on these and other platforms of dialogue and collaboration in good faith can bring new insights to existing bodies of knowledge that will help define and frame current and future policy questions, but this may not happen while they see each other as competitors. Policymakers and regulators could

use this foundation to craft well-designed and complementary energy policies and regulations to successfully guide the evolution of the U.S. energy industry along desired long-term pathways, but studies show that abundant natural gas decreases use of both coal and renewable energy technologies in the future. Researchers project that only climate policies bring about a significant reduction in future CO2 emissions within the US electricity sector. Without strong limits on GHG emissions or policies that explicitly encourage renewable electricity, abundant natural gas may actually slow the process of decarbonization, primarily by delaying deployment of renewable energy technologies. If oil and gas companies involved in fracking claim to use natural gas from fracking to be a transitional energy, then they should find ways to facilitate and not delay the transition. This is done quite simply by investing more in renewables. Renewable generation costs have declined in many parts of the world due to sustained technology progress, improved financing conditions and expansion of deployment to newer markets with better resources. In order to stabilize the amount of carbon-dioxide in the atmosphere at about 450 parts per million — giving us a shot at limiting global warming below 2°C — fossil fuels must be strictly regulated and used only when a substitute cannot be found (Howarth et al, 2011). Energy Secretary, Ernest Moniz, told

the Senate that natural gas use would need to get phased out by mid-century or so, and that "we must continue to invest in research in carbon-free sources— renewables, nuclear and carbon

capture and storage for both coal and natural gas [to limit global warming below 2°C]” (Howarth et al, 2011).

Battery storage prevents effective renewables – fracking is the best alternativeTemple 18 [(James, senior editor for energy at MIT Technology Review focused on renewable energy and the use of technology to combat climate change), "The $2.5 trillion reason we can’t rely on batteries to clean up the grid," MIT Technology Review, 7-27-2018] TDI

But there’s a problem with this rosy scenario. These batteries are far too expensive and don’t last nearly long enough, limiting the role they can play on the grid, experts say.

If we plan to rely on them for massive amounts of storage as more renewables come online—rather than turning to a broader mix of low-carbon sources like

nuclear and natural gas with carbon capture technology—we could be headed down a dangerously unaffordable path.

Small doses

Today’s battery storage technology works best in a limited role, as a substitute for “peaking” power plants , according to a 2016 analysis by researchers at MIT and

Argonne National Lab. These are smaller facilities, frequently fueled by natural gas today, that can afford to operate infrequently, firing up quickly when prices and demand are high.Lithium-ion batteries could compete economically with these natural-gas peakers within the next five years, says Marco Ferrara, a cofounder of Form Energy, an MIT spinout developing grid storage batteries.

“The gas peaker business is pretty close to ending, and lithium-ion is a great replacement,” he says.

This peaker role is precisely the one that most of the new and forthcoming lithium-ion battery projects are designed to fill. Indeed, the California storage projects could eventually replace three natural-gas facilities in the region, two of which are peaker plants.

But much beyond this role, batteries run into real problems. The authors of the 2016 study found steeply diminishing returns when a lot of battery storage is added to the grid. They concluded that coupling battery storage with renewable plants is a “weak substitute” for large, flexible coal or natural-gas combined-cycle plants, the type that can be tapped at any time, run continuously, and vary output levels to meet shifting demand throughout the day.

Not only is lithium-ion technology too expensive for this role, but limited battery life means it’s not well suited to filling gaps during the days, weeks, and even months when wind and solar generation flags.This problem is particularly acute in California, where both wind and solar fall off precipitously during the fall and winter months.

This leads to a critical problem: when renewables reach high levels on the grid, you need far, far more wind and solar plants to crank out enough excess power during peak times to keep the grid operating through those long seasonal dips, says Jesse Jenkins, a coauthor of the

study and an energy systems researcher. That, in turn, requires banks upon banks of batteries that can store it all away until it’s needed.

And that ends up being astronomically expensive.California dreaming

There are issues California can’t afford to ignore for long. The state is already on track to get 50 percent of its electricity from clean sources by 2020, and the legislature is once again considering a bill that would require it to reach 100 percent by 2045. To complicate things, regulators voted in January to close the state’s last nuclear plant, a carbon-free source that provides 24 percent of PG&E’s energy. That will leave California heavily reliant on renewable sources to meet its goals.

The Clean Air Task Force, a Boston-based energy policy think tank, recently found that reaching the 80 percent mark for renewables in California would mean massive amounts of surplus generation during the summer months, requiring 9.6 million megawatt-hours of energy storage. Achieving 100 percent would require 36.3 million.

The state currently has 150,000 megawatt-hours of energy storage in total.

(That’s mainly pumped hydroelectric storage , with a small share of batteries.)

Building the level of renewable generation and storage necessary to reach the state’s goals would drive up costs exponentially , from $49 per megawatt-hour of generation at 50 percent to $1,612 at 100 percent.

And that's assuming lithium-ion batteries will cost roughly a third what they do now.

“The system becomes completely dominated by the cost of storage ,” says Steve Brick, a senior advisor for the Clean Air Task Force. “You build this enormous storage machine that you fill up by midyear

and then just dissipate it. It’s a massive capital investment that gets utilized very little.”

These forces would dramatically increase electricity costs for consumers.

“You have to pause and ask yourself: ‘ Is there any way the public would stand for that ?’” Brick says.

Similarly, a study earlier this year in Energy & Environmental Science found that meeting 80 percent of US electricity demand with wind and solar would require either a nationwide high-speed transmission system, which can balance renewable generation over hundreds of miles, or 12 hours of electricity storage for the whole system (see “Relying on renewables alone significantly inflates the cost of overhauling energy”).

At current prices, a battery storage system of that size would cost more than $2.5 trillion .

A scary price tag

Of course, cheaper and better grid storage is possible, and researchers and startups are exploring various possibilities. Form Energy, which recently secured funding from Bill Gates’s Breakthrough Energy Ventures, is trying to develop aqueous sulfur flow batteries with far longer duration, at a fifth the cost where lithium-ion batteries are likely to land.

Renewables can’t save the planetShellenberger 19 [(Michael, Time Magazine “Hero of the Environment” and president of Environmental Progress, an independent research and policy organization), "Why Renewables Can’t Save the Planet," Quillette, 2-27-2019] TDI

But, as the years went by, the problems persisted and in some cases grew worse. For example, California is a world leader when it comes to renewables but we haven’t converted our dams into batteries, partly for geographic reasons. You need the right kind of dam and reservoirs, and even then it’s an expensive retrofit.

A bigger problem is that there are many other uses for the water that accumulates behind dams, namely irrigation and cities. And because the water in our rivers and reservoirs is scarce and unreliable, the water from dams for those other purposes is becoming ever-more precious.

Without large-scale ways to back-up solar energy California has had to block electricity coming from solar farms when it’s extremely sunny, or pay neighboring states to take it from us so we can avoid blowing-out our grid.

Despite what you’ve heard, there is no “battery revolution” on the way, for well-understood technical and economic reasons.

As for house cats, they don’t kill big, rare, threatened birds. What house cats kill are small, common birds, like sparrows,

robins and jays. What kills big, threatened, and endangered birds—birds that could go

extinct—like hawks, eagles, owls, and condors, are wind turbines.

In fact, wind turbines are the most serious new threat to important bird species to emerge in decades. The rapidly spinning turbines act like an apex predator which big birds never evolved to deal with.

Solar farms have similarly large ecological impacts. Building a solar farm is a lot like

building any other kind of farm. You have to clear the whole area of wildlife.

In order to build one of the biggest solar farms in California the developers hired biologists to pull threatened desert tortoises from their burrows, put them on the back of pickup trucks, transport them, and cage them in pens where many ended up dying.

As we were learning of these impacts, it gradually dawned on me that there was no amount of technological innovation that could solve the fundamental problem with renewables.

You can make solar panels cheaper and wind turbines bigger, but you can’t make the sun shine more regularly or the wind blow more reliably. I came to understand the environmental implications of the physics of energy. In order to produce significant amounts of electricity

from weak energy flows, you just have to spread them over enormous areas. In other words, the trouble with renewables isn’t fundamentally technical—it’s natural.

Dealing with energy sources that are inherently unreliable, and require large amounts

of land, comes at a high economic cost.

There’s been a lot of publicity about how solar panels and wind turbines have come down in cost. But those one-time cost savings from making them in big Chinese factories have been outweighed by the high cost of dealing with their unreliability.

Consider California. Between 2011–17 the cost of solar panels declined about 75 percent, and yet our electricity prices rose five times more than they did in the rest of the U.S. It’s the same story in Germany, the world leader in solar and wind energy. Its electricity prices increased 50 percent between 2006–17, as it scaled up renewables.

I used to think that dealing with climate change was going to be expensive. But I could no longer believe this after looking at Germany and France.

Germany’s carbon emissions have been flat since 2009, despite an investment of $580 billion by 2025 in a renewables-heavy electrical grid, a 50 percent rise in electricity cost.Meanwhile, France produces one-tenth the carbon emissions per unit of electricity as Germany and pays little more than half for its electricity. How? Through nuclear power.

Then, under pressure from Germany, France spent $33 billion on renewables, over the last

decade. What was the result? A rise in the carbon intensity of its electricity supply, and higher electricity prices, too.

Renewables transition won’t happen – the best scenario is centuriesSmil 15 [(Vaclav, Distinguished Professor Emeritus at the University of Manitoba, Canada), "Energy transitions, renewables and rational energy use: A reality check," Observer, November 2015] TDI

There is nothing new about energy transitions, though until the 19th century they unfolded very slowly. With the exception of the UK (where coal had already become the dominant fuel by the mid-17th century) all major Western societies remained predominantly wood-fuelled economies energised by traditional biomass, until the latter

half of the 19th century. Coal began to supply more than half of French energy by the early 1870s, and more than half of the US demand by the mid-1880s. But in

global terms the 19th century was still dominated by wood and the world began to use more coal than wood only at the very beginning of the 20th century.

By 1950 traditional biomass fuels supplied about 27% of the world’s energy (and most of the energy in both China and India), and fossil fuels (mainly coal) provided about 72%, with hydroelectricity delivering just over 1%. By the end of the 20th century modern civilisation became even more dependent on fossil fuels: in absolute terms their extraction had more than quadrupled between 1950 and 2000, and they delivered about 78% of the world’s primary energy. But traditional biomass fuels still provided nearly 12%, so if we count only modern primary energies, then coal, crude oil and natural gas supplied 90% of the world’s energy in the year 2000, declining to 86% by 2015. We have always known that our reliance on fossil fuels would be a temporary affair, and that long before we would exhaust their immense resources, coal recovery from deep and thin seams and oil and gas production from small fields in extreme environments would become too costly

to handle. A shift to nuclear energy or to modern conversions of renewable energy flows was always inevitable. If fuel resources and technical abilities to recover them at affordable price were the only limitations, we could anticipate at least another century or more of coal, oil and gas. Global warming has made the transition to non-carbon energies a matter of some urgency, but

we must nevertheless be realistic about the size and speed of such a shift.

By 2015, the largest non-fossil contribution came from hydroelectricity (about 6%), and while large-scale opportunities to develop water power are still available in parts of Asia, Africa and Latin

America, resource limitations and environmental consideration dim the prospects of even a doubling of this contribution . Nuclear fission now supplies less than 5% of the world’s primary energy and while there are some bold plans for its expansion in Asia, its use in OECD countries has been stagnating or declining, making it highly improbable that it could become a leading source of non-carbon energy in the near future.

Solar, wind and modern biofuels now supply no more than 3% of the world’s primary energy, and in 2014 China, which has seen years of record-setting additions of solar and wind

capacities, derived less than 2% of its energy from these conversions . Wind and

solar electricity are much more prominent in some EU countries, but even Germany, the country that forced an accelerated adoption of new renewables through its Energiewende,

produced about 15% of all electricity from wind and solar , compared to about 55%

from fossil fuels in 2014. Going further, say to 40-50%, will be challenging technically and cost-wise, since producing higher shares of intermittently available electricity will require higher reserve capacities for night-time demand, and for overcast and calm days; better high-voltage interconnections; and more extensive electricity storage, including for entire cities, now home to more than half of the world population.

However, generating higher shares of electricity from wind and solar conversions is less challenging than displacing fossil fuels for transportation. Biofuels are an obvious alternative but very few countries can afford to divert so much of their cropland to their cultivation as the US has done, where biofuel still only supplies less than 8% of all of its transportation energy. Global production of modern biofuels (ethanol and biodiesel) is now equivalent to just 3% of nearly 2.5 billion tonnes of oil equivalent used by

land, water and air transport. Low power densities, low energy returns, water demand and environmental degradation are among the most obvious limits on biofuel production, and the much touted second generation of such fuels (converting waste phytomass) has yet to reach large-scale commercial stage.

Most importantly, there are large segments of modern energy consumption where we do not have any readily available alternatives of the required scales of billions or hundreds of millions of tonnes. Worldwide, about a billion tonnes of coal goes to make coke, the critical raw material for producing iron, while direct

reduction of iron accounts for only 5% of the metal’s total output (and it is mostly energised by another

fossil fuel, natural gas). Non-energy uses of fossil fuels are also critical: more than half a billion tonnes of crude oil and natural gas are used as feedstocks to produce a wide array of plastics, fertilisers and other chemicals, and more than 100 million tonnes of crude oil end up as lubricants and paving materials (asphalt).

Slim that waste line

So there is work to do. A combination of subsidy changes–removing them from fossil fuels, enhancing them for new

renewables–mandated production targets and intensified R&D could accelerate the transition to renewables, but it is unlikely to displace all fossil fuels in a few decades, particularly as many low-income

countries will rely on them for their development. While fossil fuels will still dominate the global energy supply by 2050 , their absolute consumption should be steadily declining, particularly in OECD countries and if we commit ourselves to a more rational energy use.

Mass adoption of the best available conversion techniques is not enough :

after all, we now use more fuel by flying more frequently in better airplanes

and moving more goods in more efficient ships and trucks. High-income

economies simply have to find ways to reduce their average per capita energy use, such as by cutting their extraordinarily high food losses (about 40%), and rationalise their wasteful transport. Such actions would increase well-being and improve trade balances as well, while steadily reducing CO2 emissions.

We should not forget that the environmentally least disruptive action is not to turn to new technical solutions to produce more energy in different ways, but simply to do with less. “Less is more” has never been more desirable than in the case of tackling the rising levels of atmospheric CO2.

No extinction – it takes 12 degrees without adaptationFarquhar et al 17 [Sebastian Farquhar (PhD Candidate in Philosophy at Oxford and Project Manager at Future of Humanity Institute), John Halstead (climate activist and one of the co-founders of 350 Indiana-Calumet), Owen Cotton-Barratt (PhD in pure mathematics at Oxford. Previously worked as an academic mathematician and as Director of Research at the Centre for Effective Altruism), Stefan Schubert (Researcher at Department of Experimental Psychology at University of Oxford), Haydn Belfield (Associate Fellow at the Leverhulme Centre for the Future of Intelligence. He has a background in policy and politics, including as a Senior Parliamentary Researcher to a British Shadow Cabinet Minister, as a Policy Associate to the University of Oxford’s Global Priorities Project, and a degree in Philosophy, Politics and Economics from Oriel College, University of Oxford), Andrew Snyder-Beattie (Director of Research at the Future of Humanity Institute at Oxford, Holds degrees in biomathematics and economics and is currently pursuing a PhD in Zoology at Oxford), Existential Risk: Diplomacy and Governance, Global Priorities Project (Bostrom’s Institute), 2017-01-23, https://www.fhi.ox.ac.uk/wp-content/uploads/Existential-Risks-2017-01-23.pdf] TDI

The most likely levels of global warming are very unlikely to cause human extinction .15 The existential risks of climate change instead stem from tail risk climate change – the low probability of extreme levels of warming – and interaction with other sources of risk. It is impossible to say with confidence at what point global warming would become severe

enough to pose an existential threat. Research has suggested that warming of 11-12°C

would render most of the planet uninhabitable,16 and would completely devastate

agriculture.17 This would pose an extreme threat to human civilisation as we know it.18 Warming of around 7°C or more could potentially produce conflict and instability on such a scale that

the indirect effects could be an existential risk, although it is extremely uncertain how likely such scenarios are.19 Moreover, the timescales over which such changes might happen could mean that humanity is able to adapt enough to avoid extinction in even very extreme scenarios.

The probability of these levels of warming depends on eventual greenhouse gas concentrations. According to some experts, unless strong action is taken soon by major emitters, it is likely that we will pursue a medium-high emissions pathway.20 If we do, the chance of extreme warming is highly uncertain but appears non-negligible. Current concentrations of greenhouse gases are higher than they have been for hundreds of thousands of years,21 which means that there are significant unknown unknowns about how the climate system will respond. Particularly concerning is the risk of positive feedback loops, such as the release of vast amounts of methane from melting of the arctic permafrost, which would cause rapid and disastrous warming.22 The economists Gernot Wagner and Martin Weitzman have used IPCC figures (which do not include modelling of feedback loops such as

those from melting permafrost) to estimate that if we continue to pursue a medium-high emissions pathway, the probability of eventual warming of 6°C is around 10%,23 and of 10°C is around 3%.24 These estimates are of course highly uncertain. It is likely that the world will take action against climate change once it begins to impose large costs on human society, long before there is warming of 10°C. Unfortunately, there is significant inertia in the climate system: there is a 25 to 50 year lag between CO2 emissions and eventual warming,25 and it is expected that 40% of the peak concentration of CO2 will remain in the atmosphere 1,000 years after the peak is reached.26 Consequently, it is impossible to reduce temperatures quickly by reducing CO2 emissions. If the world does

start to face costly warming, the international community will therefore face strong incentives to find other ways to reduce global temperatures.

1NC – SolvencyJudicial balancing causes inefficiency and makes the aff unenforceableBlake 17 [(Emilie, Texas Tech School of Law), Are Water Body Personhood Rights the Future of Water Management in the United States, 47 TEX. ENVTL. L.J. 197 (2017)] TDI

Compared to rights of personhood, the riparian doctrine does not effectively conserve water because there is no quantified limit on use of water under the riparian doc- trine. 9 Rights to personhood, on the other hand, may give a

guardian more control over consumption and use of a water supply based on injury to a water body.40 However, until a state's legislature clearly defines the term "injury," to include a quantitative amount, courts will still need to undergo a balancing analysis, especially in times of drought.41 For now, the term is left open to interpretation, so like riparian rights, this might not be as

helpful of an allocation theory as originally anticipated.42 Courts could quite possibly treat the right to personhood similar to riparian rights by requiring only that the water use simply be reasonable to avoid liability for injury and would, therefore, undergo a judicial balancing test.43 This, in turn, could result in increased litigation costs, time, and effort and have the same result as the riparian doctrine: uncertainty and water management inefficiency in drought-ridden environments.

So, as compared to riparian rights, environmental personhood rights do not have much of an edge in achieving water conservation simply because the body of law is not as established as riparian law.* As the law in personhood rights in water matures, it could gain an advantage over riparian rights due to the guardian's ability to control consumption and use of a water supply within the water body.41

Regulatory takings cause non-enforcementRarrick 18 [(Lee, JD Columbia Law School), Executive Review and the Youngstown Categories: Vulnerability of Environmental Regulations to Unbounded Executive Review, 43 COLUM. J. ENVTL. L. 475, 2018] TDI

In another case concerning the delta smelt, California water users claimed that ESA regulations which imposed water use restrictions to protect the fish interfered with their property rights, constituting a physical taking. Defendants argued that the activity was instead a regulatory taking and thus subject to the less demanding Penn Central Transp. Co. v. City of New York analysis."

The Court of Federal Claims agreed and directed the federal government to pay for the water that it "takes." 219 In a

similar case in California involving steelhead trout, the Federal Circuit Court of Appeals found that the government's action in diverting water to protect the species pursuant to the ESA should be analyzed as a physical per se taking.220 Adopting such reasoning,

the President could decide to provide full compensation any time the ESA is used to restrict water rights, or other kinds of property rights for that matter. Admittedly, it would be an unusual decision to voluntarily expend more federal money, but if the President is sympathetic to private property rights it is not outside the realm of possibility. Moreover, such a large budget draw could incentivize and provide an arguable motivation for not enforcing the statute.2

Markets CP

1NC – Markets CPCounterplan: The United States federal government ought to

- mandate compensation for pollution enforceable by a private cause of action against polluters that infringe upon individuals’ property rights

- repeal all environmental regulationThat solves pollutionBowman 12 [(Sam Bowman, Research Manager and Policy Director of the Adam Smith Institute), "A free market solution to pollution," Adam Smith Institute, 4-23-2012] TDI

Clearly, there are significant, unfactored external costs to the use of fuels like coal and oil compared to fuels like nuclear power. This does not mean that coal and oil should be banned, though many environmentalists would like it, because they both produce significant real benefits as well – cheap energy is one of the cornerstones of modern civilization. The optimal outcome is not a total ban or a total free-for-all. As with motoring, where some deaths are an inevitable outcome of socially beneficial

activity, the optimal number of deaths is greater than zero.

This is a classic case of conflicting property rights: what we need is a situation that can balance the property rights of polluters with those people whose air is being polluted against.

The standard pseudo-market solution is to assign an arbitrary value to each life and tax polluters by a fraction of that, to “price in the cost to society”. But this is a poor approach, because the cost is borne by the individuals who get sick and die — not by society in general or the government, which gets the money.

A free market solution to pollution would, through courts or voluntary agreement, force polluters to compensate the people they pollute against . If the property rights of the polluted-against were upheld, this would lead to a situation where both parties would agree a pollution premium: a middle-point where the polluter is compensating local people enough to continue polluting.

This would have the happy outcome of incentivizing polluters to move away from urban areas. It might also incentivize people who care less about their lungs, like smokers, to move to areas of higher pollution. The big obstacle to this is that the technology for measuring air quality is quite primitive, and probably wouldn’t allow us to find this balance. But this isn’t as

significant a problem as it seems: the very fact of these property rights being upheld (even

crudely) would incentivise innovation in demarcating property rights, and so on.

Best of all, it would rebalance the relative price of dangerous fuels, like coal, against safer fuels, like shale gas and nuclear power. Currently, nuclear power isn’t really

viable as a free market fuel source – it requires massive government subsidies for the initial investment. With a "free market environmentalist" mechanism that puts respect for property rights at its core, this could change — relative to coal and oil, nuclear may become quite competitive. Shale gas, cheap and relatively clean, would probably become

even more invested-in than it is now. And the real costs of pollution would be mitigated to an acceptable

level. There's no need for complex regulation and arbitrary "social" taxation. For an energy industry

that bears the costs of its pollution, all we need to do is recognise property rights .

It aligns incentives to create effective and localized solutions to minimize pollutionStroup 8 [(Richard, president of the Political Economy Research Institute and visiting professor of economics at North Carolina State University, both in Raleigh, North Carolina. He is also a senior associate with the Property and Environment Research Center in Bozeman, Montana. From 1982 to 1984, he was director of the Office of Policy Analysis, U.S. Department of the Interior), Free-Market Environmentalism, Henderson, DR The Concise Encyclopedia of Economics, 2nd edition. Indianapolis: Liberty Fund, 2008.] TDI

For markets to work in the environmental field, as in any other, rights to each important resource must be clearly defined , easily defended against invasion , and divestible ( transferable) by owners on terms agreeable to buyer and seller . Well-functioning markets, in short, require “3-D” property rights. When the first two are present—clear definition and easy defense of one’s rights—no one is forced to accept pollution beyond the standard acceptable to the community. Local standards differ because people with similar preferences and those seeking similar opportunities often cluster together. Parts of Montana, for example, where the key economic activity is ranching, are “range country.” In

those areas, anyone who does not want the neighbors’ cattle disturbing his or her garden has the duty to fence the garden to keep the cattle out. On the really large ranches of range country, that solution is far cheaper than fencing all the range on the ranch. But much of the state is not range country. There, the property right standards are different: It is the duty of the cattle owner to keep livestock

fenced in. People in the two areas have different priorities based on goals that differ between the communities . Similarly, the “acceptable noise” standard in a vibrant neighborhood of the inner city with many young people might differ from that of a dignified neighborhood populated mainly by well-to-do retirees. “Noise pollution” in one community might be acceptable in another, because a standard that limits one limits all in the community. Those who sometimes enjoy loud music at home may be willing to accept some of it from others. Each individual has a right against invasion of himself and his property, and the courts will defend that right, but the standard that defines an

unacceptable invasion can vary from one community to another. And finally, when the third characteristic of property rights—divestibility—is present, each owner has an incentive to be a good steward: preservation of the owner’s wealth (the value of his or her property) depends on good stewardship.

Environmental problems stem from the absence or incompleteness of these characteristics of property rights . When rights to resources are defined and easily defended against invasion, all individuals or corporations, whether potential polluters or potential victims, have an incentive to avoid pollution problems. When air or water pollution damages a privately-owned asset, the owner whose wealth is threatened will gain by seeing—in court if

necessary—that the threat is abated. In England and Scotland, for example, unlike in the

United States, the right to fish for sport and commerce is a privately owned, transferable right. This means that owners of fishing rights can obtain damages and injunctions against polluters of streams . Owners of these rights

vigorously defend them , even though the owners are often small anglers’ clubs with modest means. Fishers clearly gain, but there is a cost to them also. In 2005, for example, Internet advertisements offered fishing in the chalk streams of the River Anton, Hampshire, at 50 pounds British per day, or about $90 U.S. On the River Avon in

Wiltshire, the price per day was 150 pounds, or $270. Valuable fishing rights encouraged their owners to form an association prepared to go to court when polluters violate their fishing rights. Such suits were successful well before Earth Day in 1970, and before pollution control became part of public policy. Once rights against pollution are established by precedent, as these were many

years ago, going to court is seldom necessary. Potential plaintiffs who recognize they are likely to lose do not want to add court costs to their losses.

Thus, liability for pollution is a powerful motivator when a factory or other potentially polluting asset is privately owned. The case of the Love Canal, a notorious waste dump, illustrates this point. As long as Hooker Chemical Company owned the Love Canal waste site, it was designed, maintained, and operated (in the late 1940s and 1950s) in a way that met even the Environmental Protection Agency standards of 1980. The corporation wanted to avoid any damaging leaks, for which it would have to pay.

Only when the waste site was taken over by local government—under threat of

eminent domain, for the cost of one dollar, and in spite of warnings by Hooker about the chemicals—was the site mistreated in ways that led to chemical leakage. The government decision makers lacked personal or corporate liability for their decisions . They built a school on part of the site, removed part of the protective clay cap to use as fill dirt for another school site, and sold off the remaining part of the Love Canal site to a developer without warning him of the dangers as Hooker had warned them.

The local government also punched holes in the impermeable clay walls to build water lines and a highway. This allowed the toxic wastes to escape when rainwater, no longer kept out by the partially removed clay cap, washed them through the gaps created in the walls.

The school district owning the land had a laudable but narrow goal: it wanted to provide education cheaply for district

children. Government decision makers are seldom held accountable for broader social goals in the way that private owners are by liability rules and potential profits. Of course, anyone, including private parties, can make mistakes, but the decision maker whose private wealth is on the line tends to be more circumspect. The liability that holds private decision makers accountable is largely missing in the public sector.

Nor does the government sector have the long-range view that property rights provide, which leads to protection of

resources for the future. As long as the third D, divestibility, is present, property rights provide long-term incentives for maximizing the value of property. If I mine my land and impair its future productivity or its groundwater , the reduction in the land’s value reduces my current wealth. That is because land’s current worth equals the present value of all future services. Fewer services or greater costs in the future mean lower value now. In fact, on the day an appraiser or potential buyer can first see that there will be problems in the future, my wealth declines. The reverse also

is true: any new way to produce more value—preserving scenic value as I log my land, for example,

to attract paying recreationists—is capitalized into the asset’s present value.

Because the owner’s wealth depends on good stewardship, even a shortsighted owner has the incentive to act as if he or she cares about the future usefulness of the resource. This is true even if an asset is owned by a corporation. Corporate officers may be concerned mainly about the short term, but as financial economists such as Harvard Business School’s Michael C. Jensen have noted, even they have to care about the future. If current actions are known to cause future problems, or if a current investment promises

future benefits, the stock price rises or falls to reflect the change. Corporate officers are informed by (and are judged by) these stock price changes.

This ability and incentive to engage in farsighted behavior is lacking in the political sector. Consider the example of Seattle’s Ravenna Park. At the turn of the twentieth century it was a privately owned park that contained magnificent Douglas firs. A husband and wife, Mr. and Mrs. W. W. Beck, had developed it into a family recreation area that, in good weather, brought in thousands of people a day. Concern that a future owner might not take proper care of it, however, caused the local government to “preserve” this beautiful place. The owners did not want to part with it, but the city initiated condemnation proceedings and bought the park.

But since they had no personal property or income at stake, local officials allowed the park to deteriorate. In fact, the tall trees began to disappear soon after the city bought it in 1911. A group of concerned citizens brought the theft of the trees to officials’ attention, but the logging continued. Gradually, the park became unattractive. By 1972 it was an ugly, dangerous hangout for drug users. The Becks, operating privately at no cost to taxpayers, but supported instead by user fees, had done a far better job of managing the park they had created.

Could parks, even national parks like Grand Canyon or Yellowstone, be run privately, by individuals, clubs, or firms, in the

way the Becks ran Ravenna Park? Would park users suffer if they had to support the parks they used through fees rather than taxes ? Donald Leal and Holly Fretwell studied national parks and compared certain of them with state parks nearby. The latter had similar characteristics but, unlike the national parks, were supported in large part by user fees. The comparisons were interesting. Leal and Fretwell noted, in

1997, that sixteen state park systems earned at least half their operating funds from fees. The push for greater revenue led park managers to provide better services, and more people were served. For example, in contrast to nearby national parks with similar natural features, Texas state parks offered trail runs, fun runs, “owl prowls,” alligator watching, wildlife safaris, and even a longhorn cattle drive. Costs in the state parks were also lower. Park users seem happy to pay more at the parks when they enjoy more and better services.

Private individuals and groups have preserved wildlife habitats and scenic lands in thousands of places in the United States. The 2003 Land Trust Alliance Census Tables list 1,537 local, state, and regional land trusts serving this purpose.1 Many other state and local groups have similar projects as a sideline, and national groups such as The Nature Conservancy and the Audubon Society have

hundreds more. None of these is owned by the government. Using the market, such groups do not have to convince the majority that their project is desirable, nor do they have to fight the majority in choosing how to manage the site. The result, as the federal government’s Council on Environmental Quality has reported, is an enormous and healthy diversity of approaches.

Nevertheless, it is important to note that the government is still involved, even in the case of privately donated and

privately owned trust lands. Most of these private conservation choices benefit from tax advantages, as conservers gain charitable deductions from taxable income. Tax law, therefore, influences what sorts of donations qualify; it also increases the total amounts by

rewarding all qualifying choices by tax reductions. Who gains from the increased conservation? Most often it is first and foremost the nearby landowners. When donors of trust lands retain adjacent property, they benefit from the existence of the trust lands to a degree greater than other citizens more distant. Open space usually raises the value of nearby lands.

It resolves overconsumption through divestibilityEpstein 9 [(Richard, James Parker Hall Distinguished Service Professor of Law at The University of Chicago and Peter and Kirsten Bedford Senior Fellow at the Hoover Institution), Property Rights, State of Nature Theory, and Environmental Protection, 4 N.Y.U. J.L. & LIBERTY 1 (2009)] TDI

The expanded definition of possession, which makes permanent ownership possible, also has powerful positive implications for environmental

protection.19 Its long time horizons allow owners to make intelligent choices between investment, consumption,

and saving, just as Blackstone predicted.2° A farmer who would sow seed could now harvest the crops. As owner of both crops and the land, he fully internalized any decision to compromise the value of the land to increase crop yield. No one has an incentive to trash the land because he cannot assure his use of it tomorrow. The environmental soundness of the temporal decisions of private owners is evident when one looks at the harvesting programs al- lowed today on government-owned land.21 Commercial firms have a built-in incentive to clear-cut on public lands because they do not own the long-term interest and any reduction in land value falls on the public at large. The same timber companies operate more prudently on their own private lands where the needed internalization takes place as a result of longer-time horizons.22 If these companies cut down timber prematurely, they will pay the price on their own private lands. Should timber companies invest the net cash received from premature timber in risk-free securities, this return would always be less than the anticipated increase in value from allowing the timber to

mature. The point here is simple but critical. Securing environmental protection by having environmental laws that are specifically addressed to that end is not the only way to respond to temporal challenges. In some contexts, the correct definition of property rights can also create a general improvement.

It spurs green innovation which alone solves long-run environmental constraintsZhang 13 [(Bei Zhang) Market-based solutions: An appropriate approach to resolve environmental problems, Chinese Journal of Population Resources and Environment, 11:1, 87-91] TDI

In the eyes of the economists, the environmental factor is valuable and should not be cost free. When consumers buy products, the price they pay includes a certain amount of money for the

environmental consideration, such as environmental harm and any recycling process. Marketbased instruments should offer the environmental factor a proper price in the production and consumption process and present flexibility and distinction at the same time. This kind of economic method stops people undertaking a monetary burden regarding pollution. “Market-based instruments are regulations that encourage behavior through market signals rather than through explicit directives regarding pollution control levels or methods”

(Stavins 1998). A different approach to work out the environmental problem is a traditional method called “command-and control theory” approach. This approach compels all the companies to implement similar pollution control strategies, irrespective of the relative cost (Hahn and Stavins 1992). Companies and individuals are informed how much pollution they may let out, the kind of technology to apply, and even the certain manufacturing procedures to follow. However, compelling all companies and individuals to obey the same rules or use the same technology or facilities may be costly. In addition, there will be fewer motives for companies to go further than the regulations and laws require them to follow. 2.

Advantages of market-based solutions In terms of the market-based instruments, which provide great flexibility and financial incentives, they can spur producers to adopt the new technologies and facilities to pursue better results in order to solve the environmental problems . From the definitions of market-based instruments and command-

and-control instruments, we can figure out the comparative advantages of the market-based solutions: cost effectiveness and motivation for technology innovation. In a

theoretical view, if well-designed and carried out properly, market-based policies “allow any

desired level of pollution cleanup to be realized at the lowest overall cost to society , by providing incentives for the greatest reductions in pollution by those firms that can achieve these reductions most cheaply” (Stavins 2003).

Compared with the command-and-control measures, which set the same criterion for all companies, market-based policies equate the increased amount which companies use for reducing pollution.

More specifically, it offers a motive for companies to equate abatement costs at the margin , thereby reaching the fixed standard of environmental quality in a cost-effective way. What the command and control measures ignore is that the costs of dealing with environmental problems vary greatly according to the production, labor force, technology, the quality of equipment and other factors among different firms in the various industries. The way of setting uniform standards for all the firms may be inappropriate and costly in fact . In addition, it leaves little flexibility for companies to pursue better pollution reduction solutions. As mentioned above, market-based solutions give the companies a greater incentive to use the new

technologies and equipment. Incentives which will influence the individual’s behavior to a considerable extent. People will accept a policy more easily if either the benefits increase or the cost decreases. One may pour their wastes to a close-by river if they do not need to pay for that. This can be regarded as a result of “tragedy of the commons” which means that if people can use valuable resources such as the water or fishery industry without restriction, the resources will be damaged or exhausted by people who want to share its value (Anderson and Leal 2001), because there

is no incentive to stop gaining benefits in such an easy and cheap way. That is what market-based solutions try to change in the environmental protection process. Market-based

solutions connect the “incentive” with “economy” and show that making use of an environmental protective incentive in an appropriate way could finally achieve a cost-efficient process . This is how the market-based solutions operate, they connect the environmental missions with the financial incentives. Because of this factor, the market-based solution often “pays firms to clean up a bit more if the sufficiently low-cost method (technology or process) of doing so can be identified and adopted” (Stavins 2003). Moreover,

this kind of incentive drives companies to try and develop better technologies in their own interests and, ultimately, achieve a way to reduce pollution.

2NR – AT: Markets InefficientThe counterplan solves inefficient markets better than the affRegan 11 [(Shawn, public affairs fellow at the Property and Environment Research Center, a nonprofit dedicated to improving environmental quality), "Debunking myths about free-market environmentalism," Grist, 3-27-2011] TDI

Ronald Coase’s 1960 paper “The Problem of Social Cost” [PDF] challenged the way economists thought about competing uses of

resources. In short, the Coase theorem states that if property rights are fully specified and the costs of coordinating transactions between agents are zero, bargaining will lead to an efficient outcome, regardless of how rights are initially assigned.

To illustrate: suppose a farmer and a refinery are both located along a river. According to the Coase theorem, as long as property rights to the use of the river are clearly defined and the costs of transacting with one another are zero, the amount of effluent disposed in the river by the refinery will be the same regardless of who has the property right. If the farmer had the right to have the river’s water free of the refinery’s waste, the refinery could compensate him in exchange for a partial right to discharge effluent into the river. If the refinery had the right to use the river for effluent discharge, the farmer could compensate the refinery in exchange for less effluent released into the river.

In this stylized example, voluntary negotiations between the farmer and the refinery will result in the optimal amount of effluent discharged in the river, as long as property rights are defined to one of them. This would occur without taxes imposed, water-use regulations devised, or subsidies doled out to try to control the use of the river.

But as was correctly noted (and astute readers have no doubt picked up on), the real world is much more complex; negotiation is costly, multiple agents are often affected, and information is diffuse. So, Coase’s theorem — and free-market environmentalism in general — is irrelevant in the real world, right?

Wrong. Coase’s chief accomplishment was to encourage the economics profession to move away from the abstract mathematical tinkering that often bears no resemblance to the real world. He introduced the world to the reality of transaction costs, the costs of coordinating exchanges in the market. For decades, economists had devised policy prescriptions based on faulty assumptions of perfect competition, complete information, and, although it wasn’t framed in these terms, zero transaction costs. As Coase later wrote, “What my argument does suggest is the need to introduce positive transaction costs explicitly into economic analysis so that we can study the world that exists.”

Despite the claim that his theory is “mathematical,” Coase’s work lacks even a single equation. Coase’s ideas are about reality, not theoretical math — a reason why he rejects what he calls “blackboard economics” because “it does not study the real world.”

Building upon Coase’s essay on social cost, economists began focusing attention on property-rights institutions and their ability to lower transaction costs. Free-

market environmentalism recognizes that when property rights are well defined, disputes over resource use can often be resolved locally and cooperatively. This is in sharp contrast to the conventional command-and-control approach to environmentalism that is characterized by top-down management, special interests, and zero-sum “I-win-you-lose” outcomes.

This is not to say free-market environmentalists don’t believe in the presence of high transaction costs. To be sure,

sufficiently high transaction costs can present significant hurdles for market-based solutions. But oftentimes, this presents an opportunity for entrepreneurs to step in and define property rights that lower such costs .

These environmental entrepreneurs, call them “enviropreneurs,” are the often-unrecognized agents of change that contract with rights holders to keep water instream for fish and wildlife habitat, compensate livestock owners for their losses due to wolf depredation, and develop ecosystem-services markets for water quality and endangered species habitat.

Of course, the transaction costs associated with some environmental problems can be too high for even entrepreneurs to handle. For property rights and markets, the atmosphere is in many ways the new frontier. However, in such instances, the common-law legal system historically played an important role in resolving resource conflicts in a Coasean manner.

Before being shoved aside in the 1970s by the more politically attractive federal statute law, common law made it clear that no polluter had the right to impose unwanted costs on the owners of private property. Centuries of legal precedence affirmed that people had a legal right to have their property free from pollution. Upon examining the history of the common law, economists Roger Meiners and Bruce

Yandle concluded that the common law “can protect the environment more effectively and fairly than can congressional statutes and bureaucratic regulations.”

When property rights are well defined, the free-market-environmentalism approach is bottom-up, not top-down . This addresses the key knowledge problem that plagues much of environmental policy. How do distant policymakers possess the information necessary to design the “socially optimal” tax, regulation, or subsidy that will result in the optimal level of pollution?

It is here that the ideas of another, perhaps more important, luminary of free-market environmentalism, F.A. Hayek, come to light. Knowledge in society is dispersed and “not given to anyone in its totality,” he wrote in his seminal 1945 article. Hayek suggested that the information required to effectively allocate resources depends on very specific circumstances of time and place. Because of this fact, the spontaneous ordering among the many supersedes the special wisdom of the few. Hayek’s emphasis on market institutions and decentralized decision making is the essence of free-market environmentalism.

Curiously, many discussions of environmental policy ignore Hayek’s knowledge problem, assuming instead that regulators and politicians will yield effective environmental results. But alas, much server space has been occupied by those frustrated with the sad result of political environmentalism.

Critics admonish free-market environmentalism because “complete information is impossible” in markets, but fail to apply

the same logic to government. Whereas markets are by their very nature decentralized collectors of knowledge, public officials are far from omniscient or benevolent purveyors of sound environmental policy.

Free-market environmentalism is already working to end overfishing, encourage resource stewardship, and increase stream flows, and the environmental community is beginning to recognize it. Fred Krupp, president of

Environmental Defense Fund, recently remarked that “harnessing the power of the market is often the best way to achieve the greatest environmental benefit at the lowest cost.” As we work on today’s environmental problems, we’d do well to accept free-market environmentalism into the broader environmental movement.

Property Rights NC

1NC – Property RightsArgumentation is a pre-requisite to ethics which means individuals have an intrinsic right to self-ownershipGibbs 13 [(Daniel, Ph.D. Candidate in Department of Politics at Princeton University), The Justice of Inequality: Argumentation Ethics and Radical Non-Aggression, The Agora Journal, 2013] TDI

Hoppe observes that argumentaton is a subcategory of action. As has been shown, it is impossible for man to deny that men act because to do so would result in an illogical performative contradiction. It is similarly nonsensical for a man to argue that men do not argue. 11 Moreover, unless one presupposes argumentation, there can be no concept of right, wrong, or true. 12 Without argumentation as a category of action, what appears to us as language would be purposeless noise entirely devoid of truth-values.

For man to argue, he must further presuppose a right to argue inasmuch as he takes control of his mind, lungs, throat, larynx, and mouth. If taking possession of one’s own bodily organs in order to argue were unethical, then

the source of ethics must not only exist outside of our cognitive capabilities, but outside the realm of true and false since argumentation is the only method of ascertaining truth. In

other words, in order to enter into inquiry concerning the rights of man, one must have a right to use all necessary human faculties. Since argumentation is an epistemologically necessary category, it applies to all human beings . This

universality logically extends to the right of self-ownership, which is derived from argumentation.

To buttress this claim of necessary individual self-ownership, consider the logically possible arrangements of the

ownership of men identified by Murray Rothbard. The only three possible arrangements are: (1) all men own all men; (2) some men own others; (3) man owns himself.13

Considering the first arrangement, an obvious question arises: how could any man ever act? If all men own all others, no man could ethically act to grant permission to another man so that that man could ethically approve of the initial action. Despite its egalitarianism, the proposition is frankly impossible. The second arrangement fails to stand up to the requirements of the crucial categorical

imperative; its implied ethical maxim is not universal. In other words, there is no a priori way of determining who owns whom. Moreover, such an arrangement (slavery by any other

name) is offensive to our ethical intuition, a critical though informal test ofany ethical theory.14 Thus we are left with only one possible arrangement: man owns himself.

Self-ownership requires an inviolable right to property Rothbard 2K [(Murray, Distinguished Professor of Economics at the University of Nevada, Las Vegas, Vice President of the Ludwig von Mises Institute, and Research Fellow and founding Member of the Board of Advisors for the Independent Institute), Justice and Property Rights: The Failure of Utilitarianism, Published by the Mises Institute, 2000] TDI

Let us consider the first principle: the right to self-ownership. This principle asserts the absolute right of each man, by virtue of his (or her) being a human being, to "own" his own body; that is, to control that body free of coercive interference.

Since the nature of man is such that each individual must use his mind to

learn about himself and the world, to select values, and to choose ends and means in order to survive and flourish, the right to self-ownership gives each man the right to perform these vital activities without being hampered and restricted by coercive molestation.

Consider, then, the alternatives — the consequences of denying each man the right to own his own person. There are only two alternatives: either (1) a certain class of people, A, have the right to own another class, B; or (2) everyone has the right to own his equal quotal share of everyone else. The first alternative

implies that, while class A deserves the rights of being human, class B is in reality subhuman and, therefore, deserves no such rights. But since they are indeed

human beings, the first alternative contradicts itself in denying natural human rights to one set of humans. Moreover, allowing class A to own class B means that the former is allowed to exploit and, therefore, to live parasitically at the expense of the latter; but, as economics can tell us, this parasitism itself violates the basic economic requirement for human survival: production and exchange.

The second alternative, which we might call "participatory communalism" or "communism," holds that every man should have the right to own his equal quotal share of everyone else. If there are three billion people in the world,

then everyone has the right to own one-three-billionth of every other person. In the first place, this ideal itself rests upon an absurdity — proclaiming that every man is entitled to own a part of everyone else and yet is not entitled to own himself. Second, we can picture the viability of such a world — a world in which no man is free to take any action whatever without prior approval or indeed command by

everyone else in society. It should be clear that in that sort of "communist" world, no one would be able to do anything, and the human race would quickly perish. But if a world of zero self-ownership and one-hundred-percent other-ownership spells death for the human race, then any steps in that direction also contravene the natural law of what is best for man and his life on earth.

Finally, however, the participatory communist world cannot be put into practice. It is physically impossible for everyone to keep continual tabs on everyone else and, thereby, to exercise his equal quotal share of partial ownership over every other man. In

practice, then, any attempt to institute universal and equal other-ownership is utopian and impossible, and supervision and, therefore, control and ownership of others would necessarily devolve upon a specialized group of people who would thereby become a "ruling class." Hence, in practice, any attempt at communist society will automatically become class rule, and we would be back at our rejected first alternative.

We conclude, then, with the premise of absolute universal right of self-ownership as our first principle of justice in property. This principle, of course, automatically rejects slavery as totally incompatible with our primary right.7

Let us now turn to the more complex case of property in material objects. For even if every man has the right to self-ownership, people are not floating wraiths; they are not self-subsistent entities; they can only survive and flourish by grappling with the earth around them. They must, for example, stand on land areas; they must also, in order to survive, transform the resources given by nature into "consumer goods," into objects more suitable for their use and consumption. Food must be grown and eaten, minerals must be mined and then transformed into

capital, and finally into useful consumer goods, etc. Man, in other words, must own not only his own person, but also material objects for his control and use. How, then, should property titles in these objects be allocated?

Let us consider, as our first example, the case of a sculptor fashioning a work of art out of clay and other materials, and let us simply assume for the moment that he owns these materials while waiving the question of the justification for their ownership. Let us examine the question: who should own the work of art as it emerges from the sculptor's fashioning? The sculpture is, in fact, the sculptor's "creation," not in the sense that he has created matter de novo, but in the sense that he has transformed nature-given matter — the clay — into another form dictated by his own ideas and fashioned by his own hands and energy. Surely, it is a rare person who, with the case put thus, would say that the sculptor does not have the property right in his own product. For if every man has the right to own his own body, and if he must grapple with the material objects of the world in order to survive, then the sculptor has the right to own the product which he has made, by his energy and effort, a veritable extension of his own personality. He has placed the stamp of his person upon the raw material by "mixing his labour" with the clay.

As in the case of the ownership of people's bodies, we again have three logical alternatives: (1) either the transformer, the "creator," has the property right in his creation; or (2) another man or set of men have the right to appropriate it by force without the sculptor's consent; or (3) the "communal" solution — every individual in the world has an equal, quotal share in the ownership of the sculpture. Again, put baldly, there are very few who would not concede the monstrous injustice of confiscating the sculptor's property, either by one or more others, or by the world as a whole. For by what right do they do so? By what right do they appropriate to themselves the product of the creator's mind and energy? (Again, as in the case of bodies, any confiscation in the supposed name of the world as a whole would, in practice, devolve into an oligarchy of confiscators.)

But the case of the sculptor is not qualitatively different from all cases of "production." The man or men who extracted the clay from the ground and sold it to the sculptor were also "producers"; they, too, mixed their ideas and their energy and their technological know-how with the nature-given material to emerge with a useful product. As producers, the sellers of the clay and of the sculptor's tools also mixed their labor with natural materials to transform them into more useful goods and services. All the producers are, therefore, entitled to the ownership of their product.

The chain of material production logically reduces back, then, from consumer goods and works of art to the first producers who gathered or mined the nature-given soil and resources to use and transform them by means of their personal energy. And use of the soil logically reduces back to the legitimate ownership by first users of previously unowned, unused, virginal, nature-given resources. Let us again quote Locke:

He that is nourished by the acorns he picked up under an oak, or the apples he gathered from the trees in the wood, has certainly appropriated them to himself. Nobody can deny but the nourishment is his. I ask then, when did they begin to be his? When he digested? or when he ate? or when he boiled? or when he brought them home? or when he picked them up? And 'tis plain, if the first gathering made them not his, nothing else could. That labour put the distinction between them and common. That added something to them more than Nature, the common mother of all, had done, and so they became his private right. And will anyone say he had no right to those acorns or apples he thus appropriated because he had not the consent of all mankind to make them his? Was it a robbery thus to assume to himself what belonged to all in common? If such a consent as that was necessary, man had starved, notwithstanding the plenty God had given him…. Thus, the grass my horse has bit, the turfs my servant has cut, and the ore I have digged in my place, where I have a right to them in common with others, become my property without the assignation or consent of any body. The labour that was mine, removing them out of that common state they were in, hath fixed my property in them.8

If every man owns his own person and therefore his own labor, and if by extension he owns whatever material property he has "created" or gathered out of the previously unused, unowned "state of nature," then what of the

logically final question: who has the right to own or control the earth itself? In short, if the gatherer has the right to own the acorns or berries he picks, or the farmer the right to own his crop of wheat or

peaches, who has the right to own the land on which these things have grown? It is at this point that Henry George and his followers, who would have gone all the way so far with our analysis, leave the track and deny the individual's right to own the piece of land itself, the ground on which these activities have taken place. The Georgists argue that, while every man should own the goods he produces or creates, since Nature or God created the land itself, no individual has the right to assume ownership of that land. Yet, again, we are faced with our three logical

alternatives: either the land itself belongs to the pioneer, the first user, the man who first brings it into production; or it belongs to a group of others, or it belongs to the world as a whole, with every individual owning an equal quotal part of every acre of land. George's option for the last solution hardly solves his moral problem: for if the land itself should belong to God or Nature, then why is it more moral for every acre in the world to be owned by the world as a whole, than to concede

individual ownership? In practice, again, it is obviously impossible for every person in the world to exercise his ownership of his three-billionth portion of every acre of the world's surface; in practice, a small oligarchy would do the controlling and owning, rather than the world as a whole.

But apart from these difficulties in the Georgist position, our proposed justification for the ownership of ground land is the

same as the justification for the original ownership of all other property. For as we have indicated, no producer really "creates" matter; he takes nature-given matter and transforms it by his personal energy in accordance with his ideas and his vision. But this is precisely what the pioneer — the "homesteader" — does, when he brings previously unused land into his private ownership. Just as the man who makes steel out of iron ore transforms that ore out of his know-how and with his energy, and just as the man who takes the iron out of the ground does the same, so too does the homesteader who clears,

fences, cultivates, or builds upon the land. The homesteader, too, has transformed the character and usefulness of the nature-given soil by his labor and his personality. The homesteader is just as legitimately the owner of the property as the sculptor or the manufacturer; he is just as much a "producer" as the others.

Moreover, if a producer is not entitled to the fruits of his labor, who is? It is difficult to see why a newborn Pakistani baby should have a moral claim to a quotal share of ownership of a piece of Iowa land that someone has just transformed into a wheat field and vice versa, of course, for an Iowan baby and a Pakistani farm.

Land in its original state is unused and unowned. Georgists and other land communalists may claim that the entire world population "really" owns it, but if no one has yet used it, it is in the real sense owned and controlled by no one. The pioneer, the homesteader, the first user and transformer of this land, is the man who first brings this simple valueless thing into production and use. It is difficult to see the justice of depriving him of ownership in favor of people who have never gotten within a thousand miles of the land and who may not even know of the existence of the

property over which they are supposed to have a claim. It is even more difficult to see the justice of a group of outside oligarchs owning the property, and at the expense of expropriating the creator or the homesteader who had originally brought the product into existence.

Finally, no one can produce anything without the cooperation of ground land, if only as standing room. No man can produce or create anything by his labor alone; he must have the cooperation of land and other natural raw materials. Man comes into the world with just himself and the world around him — the land and natural resources given him by nature. He takes these resources and transforms them by his labor and mind and energy into goods more useful to man. Therefore,

if an individual cannot own original ground land, neither can he in the full sense own any of the fruits of his labor. Now that his labor has been inextricably mixed with the

land, he cannot be deprived of one without being deprived of the other.

The moral issue involved here is even clearer if we consider the case of animals. Animals are "economic land," since they are original nature-given resources. Yet, will anyone deny full title to a horse to the man who finds and domesticates it? This is no different from the acorns and berries which are generally conceded to the gatherer. Yet in land, too, the homesteader takes the previously "wild," undomesticated land, and "tames" it by putting it to productive use. Mixing his labor with land sites should give him just as clear a title as in the case of animals.

From our two basic axioms, the right of every man to self-ownership and the right of every man to own previously unused natural resources that he first appropriates or transforms by his labor — the entire system of justification for property rights

can be deduced. For if anyone justly owns the land himself and the property that he finds and creates, then he, of course, has the right to exchange that property for the similarly acquired just property of someone else. This establishes the right of free exchange of property, as well as the right to give one's property away to someone who agrees to receive it. Thus, X may own his person and labor and the farm he clears on which he grows wheat; Y owns the fish he catches; Z owns the cabbages he grows and the land under it. But then X has the right to exchange some of his wheat for some of Y's fish (if Y agrees) or

Z's cabbages; and when X and Y make a voluntary agreement to exchange wheat for fish, then that fish becomes X's justly acquired property to do with what he wishes, and the wheat becomes Y's just property in precisely the same way. Further, a man may, of course, exchange not only the tangible objects he owns, but also his own labor, which of course he owns as well. Thus, Z may sell his labor services of teaching farmer X's children in return for some of the farmer's produce.

Thus a standard of absolute property rights is a side constraint on all ethicsThat negates - Restricting human interaction with environment without individual injury violates non-interferencePardy 14 [(Bruce, Professor of Law at Queen’s University), The logic of ecosystems: capitalism, rights and the law of ‘ecosystem services’, Journal of Human Rights and the Environment, Vol. 5 No. 2, September 2014, pp. 136–152] TDI

The law of the jungle contains no rights or prohibitions. In an ecosystem, resources are free for the taking – if you can prevail against others who want them too. The tragedy of the commons is not a tragedy, but merely one of the dynamics to which organisms must adapt or perish. Nothing prevents taking a dead gazelle from a lion except the lion’s response. Organisms do not respect the interests, habitats or lives of other organisms.

Capitalism and markets impose restrictions on behaviour not present in ecosystems. The source of those restrictions is the principle of non-interference, which is the conceptual foundation of negative human rights, including most

common law rights such as self-ownership, property rights, and the freedom to contract in markets. Sometimes, those restrictions have the effect of protecting ecosystem functions and resources, including ES, especially when the resources in question are subject to property rights. Capitalism is faulted for facilitating the consumption and destruction of resources, but it does no such thing. The argument is thus: since the owner of the land on which bees live can destroy their habitat, his property rights must be the source of the ability to do so.55

This reasoning is incorrect. The effect of property rights is to enable the holder of the rights to prevent other people from using or damaging the resource . Property rights held by the owner of the land mean that only the owner can destroy the habitat . That is the nature of negative legal rights, including property rights: they do not entitle the holder to act, but to restrict others from acting in a manner that breaches the right. A negative right gives the holder of the right the ability to limit the civil liberties of others.56 In the case of property rights, others are restricted in what they may do with respect to the thing to

which the property rights apply.57 In the absence of a regime of rights or other legal restrictions, anybody can do anything they like.58 Possession of land does not give the right to occupy, but the right to exclude others from that space, making occupancy exclusive. The possessor may have the ability to use up or damage the resource to which the right relates but that ability is not created by the right.59 It exists

because no one else has a right to stop him. In the absence of property rights, everybody and anybody can destroy the bees’ habitat. Capitalism and markets do not facilitate or enable the use, consumption or destruction of ecosystem processes. Sometimes the rule of non-interference prevents it. The environmentalist criticism of capitalism, therefore, should not be that it facilitates the destruction of ecological resources,

but that it does not always prevent it. Ecosystems cannot be harmed but only changed. If ecosystems are changed by human action to the detriment of human well-being, then change to ecosystems represents a conflict between people . The way to resolve conflicts between people is to determine who has rights to what – which will indicate who has the ability to restrict the actions of whom. Without answering the rights question, identifying

externalities is problematic. The question is, does the principle of non-interference mean that people have a right to limit other people from changing ecosystems?

Negative rights – rights that restrict the actions of other people – express the principle of non-interference. If Gretchen has a right to restrict Harold’s actions, it must be because Harold is interfering with her by making changes to his own property. Of course, she has no property rights in Harold’s land. The only respect in which Harold’s actions allegedly interfere with Gretchen is their effect in changing the ecosystem of which elements found on his land are a part. In order to maintain such a

complaint, she would have to show that she has a right to non-interference in ecosystems . Does she? When does human interference with an ecosystem breach the rights of other humans? When is it merely one of the actions and interactions that make the system what it is, and change the system the way it

does? Humans participate in ecosystems when they breathe, eat and die. It is impossible not to do so. But if all human actions in ecosystems are natural actions that are simply part of the activity in ecosystems, then none of those actions can be said to constitute interference with others.61 On what basis could it be said that wiping out a colony of bees or paving over a wetland is not merely an interaction, but constitutes interference with the system itself, and therefore with individuals who have a right to non-interference? I have proposed possible approaches to this question elsewhere.62 The resolution is complex and contentious.

7 CONCLUSION

ES are the product of a long and ongoing process of natural selection in ecosystems. Protecting ES because of their usefulness to human society is an instrumentalist mandate in conflict with the nature of ES and ecosystems. In effect, proposals to protect ES threaten to do to ecosystems what advocates pretend to reject: to place more importance on their use to human society than on their natural, unplanned, ungoverned operation. Laws designed to protect specific ecosystem services are misguided because they do not preserve the ecosystem dynamics that produced the ‘service’ in the first place. If humans depend on ES, then they also depend on the way ecosystems work, because the two are really the same.

In markets, people may not physically interfere with other people. Does the right to non-interference mean that people have a right to restrict other people from changing ecosystems on which they depend? If so, then ecosystem services would be protected to the extent that the right encompasses them. If not, then ecosystem services are not protected, and should not be – since people have no

such right. If Harold’s destruction of bee habitat interferes with Gretchen’s autonomy, then Gretchen should have legal rights that prevent Harold from doing so. If it does not, then Harold should not be stopped – since his actions interfere with the autonomy of no one.

Court Clog DA

1NC – Court ClogDistrict courts are on the brink now – vacancies massively overburden district judges which force magistrate and retired judges to fill in. That’s inefficient and they still don’t have the numbers to keep up with current caseloads. Lowrey 3/20 [(Brandon, In-Depth Reporter for @Law360. Wrote for Reuters, LA Weekly, LA Daily News & more.) “Swamped: How Magistrate Judges Salvaged Louisiana's Judicial Crisis” Law 360 March 20, 2019] TDI

From November 2017 to October 2018, most of the district’s courthouses didn’t have a single Article III district judge. The district’s six magistrate judges’ workloads exploded. “ My normal, if you will, civil motion load in any given month is 40 to 60 pending civil motions — never mind habeas and criminal and all that stuff,” Magistrate Judge Hanna said. “In September, it was 360 for me and my partner next door. … I told the chief, ‘I’m not whining, I’m not complaining , we just can’t do it. We’re pedaling as much as we can.’” It wasn’t just the volume of work, though. He and the other magistrate judge at the federal courthouse in Lafayette also had to take on more complex duties, like consent cases, in which the parties agree to allow a magistrate judge handle dispositive motions and preside over trials. Parties in consent cases appeal directly to circuit courts. Magistrate Judge Hanna said that back in 2011, before the Western District became short on district judges, he terminated 17 consent cases with a total of 103 motions. In 2018, he and one other magistrate judge terminated a total of 57 cases that included 530 motions, 618 orders, and 141 pretrial conferences. Beyond consent cases, they decided numerous potentially dispositive motions using reports and recommendations, which are essentially orders that require

the approval of a district judge. Magistrate judges, whose job was created in 1968 to help district judges with their workloads, have hit their limits in some districts as judicial vacancies go unfilled and the number of total authorized judgeships in each district hasn’t been comprehensively updated in decades. Since the last major increase in the number of district judges in 1990, the authorizations of new full-time magistrate judges have dramatically outpaced the authorizations of new district judges, according to federal court data. At the same time, the number of part-time magistrate judges plummeted. Magistrate judges across the nation have been taking on an increasing number of consent cases over the last decade. In 2009, they disposed of 11,905 civil consent cases. In 2018, they disposed of 17,112, according to federal judicial data. They’ve also written more reports and recommendations. In 2009, they issued 9,005 reports and recommendations on civil dispositive

motions. In 2018, they issued 16,193. Their statutory limitations can create inefficiencies, however. Reports and recommendations that parties object to require de novo review from a district judge. Yet magistrate judges must meet higher minimum qualifications than their congressionally confirmed counterparts. District judges technically need not even hold a law degree. Magistrate judges are required to have spent at least five years practicing law, and many of them exceed that. They are selected by Article III judges for renewable, eight-year terms, and earn about 92 percent of district judges’ salaries, according to the Federal Judicial Center. “Magistrate judges, on the whole, are capable, qualified and do good work,” said Charles Gardner

Geyh, a law professor at Indiana University Bloomington Maurer School of Law. “But in situations where you have really acute work shortages, it doesn’t really matter whether you have only magistrate judges or only district judges minding shop. The shop is understaffed.” Southern Discomfort Chief U.S. District Judge Maurice Hicks Jr. had a lot of ground to cover. If Louisiana is shaped like a boot, Judge Hicks’ sprawling but sparsely populated Western District would include the cuff, the heel, and most of the arch. The Middle District wraps over the instep to include state capitol Baton Rouge, and the Eastern District, seated in New Orleans, stretches from the end of the arch to the toe. To go from the Western District’s remote Shreveport in the north to Lake Charles in the southwestern corner and Lafayette in the southeastern

corner is to make a more than 200-mile drive. It takes up to four hours each way, under the best conditions. When a federal court begins to sag under the burden of its cases, civil litigation is a casualty . Courts are obligated under the U.S. Constitution and the Speedy Trial Act to handle criminal cases rapidly, so other matters, especially complicated civil motions and cumbersome civil trials, wind up delayed. The Western District is allotted seven district judgeships, but retirements spanning from 2016 to the end of 2017 left it at one point with only two — Chief Judge Hicks and one other. As five judicial nominations remained pending in the Senate indefinitely, Judge Hicks called on magistrate judges and senior-status judges to help the district tread

water. Enter Judge Udj. “Judge Udj” became the nickname for the growing docket of cases assigned to “Unassigned District Judge.” Magistrate judges handled all of Judge Udj’s motions, while the district judges and some of the senior judges took turns acting as the

duty judge for those cases. If one of Judge Udj’s cases was ready for trial, parties would be faced with the choice of consenting to trial by magistrate judge or accepting an indefinite delay — maybe a few months, maybe a year. Magistrate Judge Hanna said he tried to get lawyers to commit to trials at least a quarter ahead to keep up with the nonstop onslaught of cases. “We were constantly on the phone with the parties, saying, ‘You need to tell me now,’” he said. “Now we’re in February. I would look at cases set to go to trial in June, July, and August, and I’d ask, ‘Does it look like it will be continued? Does it look like it will settle? Do you honestly think it’s going to go to trial?’” As the consent trials and requests for reports and recommendations picked up, nothing else slowed down. “In addition to that, we had the normal criminal docket,” Magistrate Judge Hanna said. “The bad guys weren’t getting religion. They were still being bad guys, and we had our normal duties.” Judge Hicks and the other two district judges criss-crossed the western half of the state regularly to handle criminal cases, first and foremost, and then some civil cases as they could. “We kind of felt like first-year lawyers who had the traveling associate kind of routine,” Judge Hicks said. Making Do When judges couldn’t travel, often everyone else had to. Douglas W. Truxillo, a veteran maritime lawyer for Lafayette-based Onebane Law Firm PC, said that parties sometimes wouldn’t or couldn’t have a magistrate judge preside over their trials. In those cases, the lawyers and witnesses had to make the trek across the state to Shreveport, where the judges normally sat. Attorneys grew wise to the delays and took their business to Texas or elsewhere in the Pelican State. Truxillo said far fewer maritime cases from the Gulf of Mexico seemed to wash ashore in Western Louisiana. He had to start taking a greater share of intellectual property and medical benefits cases to stay busy. “People were filing elsewhere rather than here. That’s had an impact, I think, on the lawyers’ practices here,” he said. Truxillo had nothing but praise for the jurists who did all they could to keep their heads above water. He reserved his exasperation for Congress and the delays in the judicial confirmation process. “I was so afraid that some of these [nominees] would just say, ‘OK, forget it,’ and we’d have to start the whole process all over again,” he said. As his magistrate judges and senior judges tried to stay afloat, Judge Hicks asked for help from neighboring districts. He was able to pass 25 cases to the state’s Middle District and 50 cases to the Eastern District. Some relief came last March, when the Senate confirmed Judge Terry A. Doughty, who previously served as a state judge, to the federal courthouse in Monroe, Louisiana. Judge Doughty was sworn in on a Friday and presided over his first federal trial the following Monday, Judge Hicks said. The Western District of Louisiana caught another lucky break in September and October, when the Senate confirmed two district judges for the Lafayette courthouse. Two more vacancies remain, however, with only one nominee pending. Judge Hicks reflected on how difficult it would have been if anyone in his courthouses weren’t there to help. “I am aware of lawyers’ complaints about not getting things as fast as they used to,” he said. “But nonetheless, you make do with what you have.” Drinking at the Fire Hydrant As the Western District of Louisiana edged toward recovery from its crisis, a new ordeal has arisen in the Eastern District of New York. U.S. District Judge Joseph Bianco seems poised to take a seat on the Second Circuit. His departure would add to the four judicial vacancies in the district that have been pending for at least two years now. Even if the district's bench was fully staffed, it would need more resources, according to the Judicial Conference of the United States, which last week recommended adding two more judgeships there. The court, operating with just 11 active district judges, has leaned heavily on magistrate judges to fill the gaps. Magistrate judges in the Eastern District handled 27,675 civil pretrial matters last year, more than any other district in the country, according to the Administrative Office of the U.S. Courts. The runner-up is the District of New Jersey, where magistrate judges handled 16,828 matters. Judge Bianco is one of only two active district judges at the Central Islip courthouse on Long Island. His caseload was going to be left to U.S. District Judge Joan

Azrack, four active senior judges and five magistrate judges. District Executive Eugene Corcoran told Law360 this is the reality of the vacancy crisis in the Eastern District. “It is only through the efforts of those retired senior judges who continue to work, and our magistrate judges, that we are able to keep up at all,” he said

in an email. “ It is undoubtedly true that the caseloads for magistrate judges are

affected by the large number of vacancies.” The staffing shortage in Central Islip has grown so dire that as Judge Bianco’s nomination moved out of committee and to a floor vote earlier this month, the court began quietly reassigning hundreds of cases from his docket to judges based in Brooklyn. In the Western District of Louisiana, Magistrate Judge Hanna said the new district judges have made his caseload easier to bear. That surge of stuck cases has begun to move along. The federal courthouses in Alexandria and Lake Charles still don’t have district judges permanently assigned to them. Two senior judges sit in Alexandria, and Judge Udj still keeps the bench warm in Lake Charles. The courthouse in Lafayette, where Magistrate Judge Hanna works, now has U.S. District Judges Robert R. Summerhays and Michael J. Juneau. The new district judges are making headway on the heap of cases that piled up before their confirmations. “Of course,” Hanna said, “they’re still drinking at the fire hydrant.”

Aff allows massive influx of environmentalism suits – only withholding personhood from rivers solves. Smith 18 [(Wesley J. J.D., is a special consultant to the Center for Bioethics and Culture and a bioethics attorney who blogs at Human Exeptionalism.) “Environmentalists Will Sue Endlessly Until Courts Say a River Has a “Right to Life” Life News MAY 2, 2018] TDI

Environmentalism isn’t about conservation or protecting endangered species anymore, approaches that recognize human exceptionalism, e.g., our right to thrive off the environment

mediated by our duty to do so responsibly. Over the past decade and more, the movement has grown increasingly radical and implicitly and explicitly anti-human. Hence, we are denigrated as a “plague on the earth” by Sir David Attenborough, as the movement often seeks to prevent

our thriving off the earth. This new approach is epitomized by the “nature rights” movement that seeks to establish something akin to a right to life for nature, e.g., the “right to exist, persist, maintain and regenerate its vital cycles, structure, functions and its processes in evolution.” Nature’s “rights” would be enforceable by anyone who believes a proposed project would impede or destroy nature’s vital cycles and processes in evolution — which would bring enterprise to a screeching halt. Colorado is now a clear focus of the movement. A lawsuit was filed last year to have the Colorado River declared a person. That was withdrawn, but they will be back, as is made clear by an article Denver’s 5280 magazine: “We’re talking about a 20- to 30-year time frame here,” says Thomas Linzey, executive director of the Community Environmental Legal

Defense Fund. To affect policy, “you need 100, 200, 300 court cases [such as Colorado River v.

Colorado]. You gotta draw the conflict in enough places to force that up the ladder.” In other words, they will sue and sue and sue and sue, diverting already strained judicial resources from proper purposes — until they find that one

judge who wants to make radical history. Why not? It’s worked many times before. The litigation campaign can be stopped. Every time these groups sue for such ridiculous things, courts should quickly dismiss and impose stiff financial sanctions on the groups bringing the actions and refer the attorneys for professional discipline for filing frivolous (under current law) suits. That would force these ideas into the arena of democratic deliberation where they belong. SUPPORT PRO-LIFE NEWS! Please help LifeNews.com with a donation to share the pro-life message “Nature rights” radicals candidly admit they seek to to impede development and enterprise: To keep the forests intact [from logging or clearing for pasture land], DGR is encouraging indigenous nations on the Colorado Plateau to insert nature-centric provisions into their tribal constitutions, which would grant forests the inherent right to exist and flourish. A couple hundred miles away, the citizen-led Boulder Rights of Nature group is working to pass an ordinance by early 2019 that would grant the county’s grasslands and forests the legal right to exist and evolve. That would mean Boulder Creek, for example, would gain the right to maintain a healthy in-stream flow, defending it against overuse for municipal or agricultural diversions. Which means hands off without first going through an extensive and expensive legal process, even if that

leads to a water shortage. It is high time that state legislatures and the Congress pass laws barring animals, geological features, and nature from possessing “rights” or being granted any legal standing in court. The threat is real. The time to stifle “nature rights” is now, while the campaign is still incipient.

A consensus of economic literature agrees court clog destroys the patent process. Backed-up courts mean firms have to undergo long and expensive patent suits, that has tangible effect on firm and investor behavior in the context of innovation. Ball and Kesan 10 [(Gwendolyn G. Ball Research Fellow Business, Economics and Law Group Institute for Genomic Biology and Information Trust Institute University of Illinois Jay P. Kesan Professor and Mildred Van.Voorhis Jones Faculty Scholar College of Law Business, Economics and Law Group Institute of Genomic Biology University of Illinois) “Judges, Courts and Economic Development: the Impact of Judicial Human Capital on the Efficiency and Accuracy of the Court System” unpublished manuscript April 30, 2010]

There is a long-standing consensus that the clear definition and enforcement of property rights is an important element in economic development.1 This consensus is of more than scholarly concern; the experience in the reforming socialist economies demonstrates that secure property rights play an major role in market economies.2 But well-designed laws and regulations cannot ensure property rights without an institution that will enforce those rights and settle disputes, and

in nearly all countries the final forum for resolving property rights disputes is the court system. Thus, a well-functioning court system is crucial for economic growth. Following this line of reasoning, economists have considered the operations of court systems an important area of study. However, economic study of courts has usually focused on the design of incentive mechanisms to ensure an accountable and impartial judiciary. Much of this literature discusses the inherent tradeoff between judicial independence and judicial accountability.3 Nonetheless, some authors have noted that even if judicial incentives are perfectly designed, the organization of the court system and the rules under which it operates can have a dramatic impact on its effectiveness as an economic institution. While it is true that judges need to be protected from outside influences which could bias their decision, even unbiased decisions must accurately interpret the law. Inaccurate or well meaning but seemingly

idiosyncratic decisions will decrease confidence in the legal system and increase uncertainty in economic activity.4 And accuracy alone is not sufficient for a high quality court system. Disputes must be resolved and decisions must be rendered in a timely manner if they are to provide investors with the security and certainty necessary to promote investment. Thus, a judicial system must not only be impartial, it must be accurate and efficient as

well. International institutions promoting economic development, such as The World Bank, have recognized this link and launched technical assistance efforts to improve the administration of court systems around the developing world.5 Economic scholarship also recognizes the importance of a well-managed court system. In their study of the relationship between entrepreneurial investment and the “quality” of the legal systems across states in Mexico, Laeven and Woodruff, define “quality” not only as “the impartiality of judges” but also as “the quality of judges; the adequacy of judicial resources; the efficiency of enforcement of rulings; the efficiency of judicial administration more generally; the cost, ease of use and completeness of property

registries and the adequacy of local legislation related to contract enforcement.”6 Rosales-Lopez explores the impact of recent reforms in the Spanish court system on its ability to resolve disputes, citing the “problems such as congestion, the high cost and delay of procedures [that weaken] the access and citizens’ equality before the law, as well as the enforcement of laws and the guarantees of property rights and contracts.”7 Choi, Gulati and Posner8 compare compare appointed and judges and find ambiguous results regarding the “independence” of the two judicial systems. However, they also evaluate both the “productivity” (as measured by the number of opinons written) and the “quality” (as measured by the number of citations

received by such opinions) of judges in the two systems. Thus, to ensure public confidence and promote investment, courts must not only be impartial in administering justice, but also accurate and efficient in the resolution of disputes.9 . Finally, in their massive international study of adjudication of simple civil cases, Djankov, et. al.[3] analyze the importance of court procedures on both accountability and also on accuracy and case duration. Thus Recent economic scholarship has acknowledged the importance of case duration in analyzing the operation of court systems. However, what this literature generally neglects is that, just as there may be a trade-off between accountability and independence, there may be a trade-off between court reforms promoting accountability and those promoting increased judicial “human capital.”10 The various proposed measures to increase the“openness” and “accountability” of courts–election, versus appointment of judges; term limits; etc.–all involve the actual or threatened removal of judges from office. However, the job of managing a case docket is one which a judge must learn on the job. Presumably, a judge with many years on the bench should have developed a set of skills to keep cases flowing smoothly–scheduling the necessary court procedures, managing lawyers, etc. And previous legal experience may not have exposed a new judge to all the areas of the law s/he may see on the bench; as a judge sees more cases of a particular type, his/her knowledge of that area of the law should become deeper and richer, leading to more accurate decisions and rulings. Thus, the importance of general managerial skills and familiarity with special areas of the law can play a part in discussions of judicial term limits as well as whether judges should be elected or appointed. Maskin and Tirole note this problem by acknowledging that there may be a tradeoff between measures designed to create an unbiased court system and the “set up” costs of a new judge, including the “learning by doing” which occurs on the bench.11 And there is empirical verification that some policies designed to increase accountability may decrease experience and the resultant stock of human capital. In his study of state court judges, for example, Hanssen finds that appointed judges serve 50% longer on average than do elected judges.12 Thus, there is cause to worry that some legal reforms my reduce judicial experience due to a legal “switching cost” which kicks in when judges are removed from the bench. The possibility of such costs could be an important consideration in implementing reforms designed to increase the contribution of the courts to economic development. If the costs are great, reforms which lead to too much “churning” on the bench might be avoided. In fact, it might be worth pursuing policies which increase judicial experience and human capital, even if such changes might lead to a decrease in “impartiality.” For example, many countries employ specialized court systems which cover only one type of particularly complex case case. An argument for such specialized courts is that they lead to greater judicial human capital as judges specialize on one area of the law. But one argument against them is that judges and lawyers practicing in that area might become overly familiar, thereby decreasing impartiality.13 However, behind all the arguments about these potential tradeoffs between openness and experience lies one fact: this underlying hypothesis–that there is a positive relationship between judicial human capital and the accuracy and efficiency of the court system–must be empirically verified. This paper performs such an analysis, utilizing a class of litigation particulary suited to the question: litigation of patent infringement disputes in the United States. All U.S. patent cases must be filed in the U.S. Federal District Court system. Thus all patent cases are litigated using a uniform set of rules and procedures; data drawn form other types of litigation, which can be filed in both federal and state courts, has to account for a wide variety of legal statutes, precedents and procedural rules.14 In addition, all cases in U.S District Courts are randomly assigned to judges through a “round robin” system, freeing our analysis of experience from the type of endogeneity that plagues studies of education. Moreover, patent law is a highly specialized area of the law, allowing for a distinction between the “general” judicial human capital acquired through time on the bench and “specialized” human capital acquired through experience with a particular area of the law. Finally, examination of these issues with respect to patent cases has particular policy relevancy; as of this writing, the U.S. is contemplating the creation of a specialized patent trial court in order to increase the specialized knowledge of judges presiding over such cases. Thus, study of the relationship between judicial experience and the litigation of patent cases is both highly suitable and timely. The rest of the paper pursues this issue as follows. First, we provide some background on patent litigation in the United States and why it provides a good vehicle for the study of the impact of judicial human capital. Then, we outline the data collection procedure, including details about the data generating process which make unobserved heterogeneity a cause for concern, as well as the various methods for defining judicial experience. In the next section, we estimate the relationship between experience and efficiency using a duration model and using appropriate techniques for controlling for the impact of both observed and unobserved heterogeneity. Finally, we explore the relationship between experience and accuracy by analyzing the probability that a case will be reversed on appeal. Through these mechanisms we will examine the relationship between judicial human capital and the accuracy and

efficiency of the court system. 2 Accurate and Efficient Patent Litigation and Judicial Human Capital. While most economic scholarship analyzing the importance of the courts has focused on disputes over real property, the relationship between the court system and investment is no less strong for intellectual property. And to a large extent, the

relationship between the courts and the patent system depends on the quality of “judicial human capital.” In the United States, as in many countries, the courts are a crucial part of the patent system to the extent that the patent system is can be termed a two-stage

process. In the first stage, the U.S. Patent and Trademark Office grants property rights to inventors. In the second stage, inventors can protect those rights through patent infringement suits in the courts and alleged infringers have the right to challenge improvidently granted patents and have them declared invalid. As a consequence, some authors have referred to patent rights as being “probabilistic,” depending not only on whether the innovation embodied in the patent has commercial value, but also on

the refinement of that patent property right after litigation.15 Just as with real property, the management of the court system has an impact on both patenting behavior and on investment in research and development . While the majority of all patents are not litigated, those that are disputed in the courts are among the most valuable .16 The rules governing the court system may even “feed back” into patenting behavior; some authors have found evidence that the increasingly “patent friendly” rules17 adopted by the courts are a major factor in the surge in patenting since the 1980s.18 Moreover, the ability to define the “probabilistic” property rights is an important element in determining whether patents

fulfill their purpose of promoting innovation.19 Finally, the costs associated with the patent systems can be reduced by an efficient court system; firms may hesitate to invest in new products and technologies which may infringe on existing patents, so any additional delay or cost in clarifying existent rights may slow the process of innovation. The more quickly and cheaply these rights are defined, the more beneficial the patent system will be in promoting and not inhibiting innovation and investment.

Strong IPR key to pharmaceutical innovation. Resnik and De Ville 02 [(David B., Ph.D., is Associate Professor in the Department of Medical Humanities at the Brody School of Medicine at East Carolina University and Kenneth A., Ph.D., J.D., is Professor of Medical Humanities at the Brody School of Medicine, East Carolina University.) “Bioterrorism and Patent Rights: "Compulsory Licensure" and the Case of Cipro” The American Journal of Bioethics, 2002] TDI

While an innovator's personal interest and right in intellectual property provides some justification for current patent protections, the conventional, stronger, and more robust justification emanates from utilitarian considerations. According to the utilitarian view, intellectual property can be justified on the grounds that it promotes important social values, such as the progress of science and technology and the development of business and industry. The U.S. Constitution provides a clear statement of this view in Article 1, Section 8, Clause 8: "Congress shall have the power . . . To promote the progress of science and the useful arts, by securing for limited times to authors and

inventors the exclusive right to their respective writings and discoveries." The idea expressed here is that intellectual property can promote the progress of science and the useful arts by providing authors and inventors with incentives and rewards for their work. Without these incentives and rewards authors and inventors might not engage in their creative activities, or they might try to protect them through trade secrecy . The patent system provides innovators an additional incentive to work hard, focus their creative ideas, and share their breakthroughs . Because these breakthroughs are likely to provide benefit for society at large, the patent system is believed to

be the most efficient way to translate individual effort and insight into overall social benefit. In this respect U.S. patent law involves an implicit bargain between the government and inventors: in exchange for disclosing their inventions and discoveries, the government grants

inventors a limited property right. In the process private right is traded for public disclosure (Miller and Davis 2000). Since corporations can invest in science and the useful arts, intellectual property protections provide them with some assurance of a return on their

investments. Nowhere is this point more evident than in the pharmaceutical industry, which spent $26.4 billion on R & D in the United States in 2000,

according to industry estimates (Pharmaceutical Research and Manufacturing Association 2000). The industry argues it requires intellectual property rights to protect its R & D investments. Why would a company spend $500 million dollars and ten years developing a new drug without expecting that it would have patent rights over the drug? Although many commentators criticize the industry for spending almost as much on marketing as it does on R & D and for having high profit

margins—the top ten companies had an average margin of 30% in 1999— one cannot deny that pharmaceutical companies play a key role in the world's R & D investments. Seventy percent of the clinical trials conducted in the United States in 1999 were sponsored by pharmaceutical companies (Resnik 2001b; Bodenheimer 2000). [End Page 35]

Biotech innovation key to stop disease. Guilford-Blake 08 [(Roxanna Guilford-Blake is an award-winning writer with 20+ years' experience. Expertise in health, biotech, value-based care & more) “Preparedness for Pandemics and Biodefense” Biotechnology Innovation Organization, 2008] TDI

In the wake of the September 11 terrorist attacks, BIO surveyed the industry and found that many biotech companies were already working on defense projects or developing technologies useful for both conventional health care and for defense against biological, chemical and radiological/nuclear agents.

Biotechnology companies are also developing novel approaches to prepare for a pandemic, including the development of new vaccines, antivirals and diagnostic and detection tools. Policy BIO has a long-standing policy of opposing the use of biotechnology to develop weapons of any sort that contain pathogens or toxins aimed at killing or injuring humans, crops or livestock. Appropriate uses of biotechnology include products and services to inoculate citizens against infectious agents that may be used in an attack, to detect biological, chemical or radiological/nuclear attacks, and

to diagnose and treat those who may have been exposed to such attacks. A Strategic Asset Many U.S. biotechnology companies are actively developing medical countermeasure technologies. Some companies are working on defense-specific technologies under contracts with the federal government. Many more are working on technologies that can be used for conventional health care, pandemics and biological defense, such as antivirals, antibiotics, and diagnostic tools. Recognizing the important value that the biotechnology industry has in developing bioterror countermeasures, President Bush announced in January 2003 the Project BioShield initiative, which would fund new programs at the National Institutes of Health designed to spur countermeasure development. The Project Bioshield Act was signed into law in July 2004 and authorizes $5.6 billion in procurement funding for medical countermeasures against chemical, biological, radiological or nuclear attacks. Similarly, the President approved $3.3 billion in FY 2006 and an additional $2.3 billion in FY 2007 for the Department of Health and Human Services for development and procurement of

medical countermeasures against a potential influenza pandemic. Biotechnology companies have products and platforms, including vaccines, therapeutics and diagnostics, that can be enlisted to prepare our nation for man-made and natural emergencies. In addition, drug-delivery technology can make urgently needed medications easier to administer on the battlefield or during a civilian crisis. Medications could even be stored in a soldier's backpack. VACCINES AGAINST WEAPONIZED

PATHOGENS Vaccines of varying efficacy and convenience exist for anthrax, smallpox, plague and tularemia, and vaccines are in development for other infectious agents that may be used in biological assaults. The major challenges in vaccine technology are to develop vaccines against a variety of infectious agents (including new strains), to shorten the time needed to establish immunity (some vaccines require multiple boosters to be effective), to be able to produce them in large quantities, improve ease of administration, and make them even safer. Biotechnology companies are working to solve these problems with new vaccines based on improved delivery technologies and discoveries made through genetic research. Examples: Researchers are exploring new vaccine technologies, including vector technology to induce rapid protection. Applications include a third-generation anthrax vaccine. This strategy has the flexibility to address a number of different bioterrorism agents and may elicit a long-lasting immune response after a single oral dose. By manipulating an immunotoxin-hybrid molecule used to kill tumor cells in lymphoma patients, researchers have created a vaccine that has been shown to protect mice against ricin, an extremely potent toxin, without significant side effects. Agricultural biotechnology researchers are working on fruits and vegetables genetically modified to contain vaccines. Such foods could protect large populations in a very short period of time. MONOCLONAL ANTIBODIES Monoclonal antibodies can be used like antibiotics or antivirals, as a way to treat viral and bacterial infections; they can also be used to detect the presence of infectious agents or to clear bacterial toxins from the bloodstream. And, like vaccines, they can confer immunity against biological agents. Example: An antibody combination that attaches to anthrax toxin and clears it from the body is under study. The technology could be applied to other biowarfare threats, such as dengue fever, Ebola and Marburg viruses, and plague. DNA- OR RNA-BASED THERAPEUTICS Researchers are applying genomics and proteomics technologies to discover weaknesses in viruses and bacteria that can be targeted with a new generation of antibiotics and antivirals. Such weaknesses include proteins or segments of RNA essential to an infectious organism's survival or replication. Projects are under way targeting both. RNAi, or RNA interference, is another exciting technology. RNAi technologies aim to "silence" targeted genes to prevent the manufacture of disease-causing proteins. RNAi could apply to a number of infectious diseases related to national preparedness. In a similar vein, the Defense Advanced Research Projects Agency (DARPA) has funded projects that entail rapid DNA analysis, followed by the rapid synthesis of drugs that can bind, or disable, segments of DNA crucial to an infectious organism's survival. Researchers have completed genome sequences for numerous infectious agents, including the bacteria that cause malaria, stomach ulcers and food poisoning, as well as organisms responsible for hospital-acquired infections, cholera, pneumonia and chlamydia, and for potential biowarfare agents, such as the organism responsible for bubonic plague (Yersinia pestis). BATTLEFIELD EPIDEMICS Under battlefield conditions, soldiers are vulnerable to naturally occurring infections such as influenza. The biotechnology industry is addressing such illnesses with vaccines (including some under development that could be taken

orally), antivirals and antibiotics. DETECTION AND DIAGNOSIS As we saw in the anthrax scare of 2001, we need to be able to rapidly determine whether a person has been exposed to an infectious agent, and we also need capabilities for detecting these agents in the environment. Some devices have been developed already for these purposes, and others are in the pipeline.

Causes extinction - it only takes one ‘super-spreader’ and globalization overwhelms burnout - US is key. Bar-Yam 16 [Yaneer. Professor and President, New England Complex System Institute; PhD in Physics, MIT. “Transition to extinction: Pandemics in a connected world.” July 3. http://necsi.edu/research/social/pandemics/transition] TDI

Watch as one of the more aggressive—brighter red — strains rapidly expands. After a time it goes extinct leaving a black region. Why does it go extinct? The answer is that it spreads so rapidly that it kills the hosts around it. Without new hosts to infect it then dies out itself. That the rapidly spreading pathogens die out has important implications for evolutionary

research which we have talked about elsewhere [1–7].¶ In the research I want to discuss here, what we were interested in is the effect of adding long range transportation [8]. This includes natural means of dispersal as well as unintentional dispersal by humans , like adding airplane routes, which is being done by real world airlines (Figure 2).¶

When we introduce long range transportation into the model, the success of more aggressive strains changes. They can use the long range transportation to find new hosts and escape local extinction . Figure 3 shows that

the more transportation routes introduced into the model, the more higher aggressive pathogens are able to survive and spread .¶ As we add more long range transportation, there is a critical point at which pathogens become so aggressive that the entire host population dies . The pathogens die at the same time, but that is not exactly a consolation to the hosts. We call this the phase transition to extinction (Figure 4). With increasing levels of global transportation, human civilization may be approach ing such a critical threshold . ¶ In the paper we wrote in 2006 about the dangers of global transportation for pathogen evolution and pandemics [8], we mentioned the risk from Ebola. Ebola is a horrendous disease that was present only in isolated villages in Africa. It was far away from the rest of the world only because of that isolation. Since Africa was developing, it was only a matter of time before it reached population centers and airports. While the model is about evolution, it is really about which pathogens will be found in a system that is highly connected, and Ebola can spread in a highly connected world.¶ The traditional approach to public health uses historical evidence analyzed statistically to assess the potential impacts of a disease. As a result, many were surprised by the spread of Ebola through West Africa in 2014.

As the connectivity of the world increases, past experience is not a good guide to future events. ¶ A key point about the phase transition to extinction is its suddenness . Even a system that seems stable, can be destabilized by a few more long-range connections, and connectivity is continuing to increase. ¶ So how close are we to the tipping point? We don’t know but it would be good to find out before it happens.¶ While Ebola ravaged three countries in West Africa, it only resulted in a handful of cases outside that region. One possible reason is that many of the airlines that fly to west Africa stopped or reduced flights during the epidemic [9]. In the absence of a clear connection, public health authorities who downplayed the dangers of the epidemic spreading to the West might seem to be vindicated.¶ As with the choice of airlines to stop flying to west Africa, our analysis didn’t take into consideration how people respond to epidemics. It does tell us what the outcome will be unless we respond fast enough and well enough to stop the spread of future diseases, which may not be the same as the ones we saw in the

past. As the world becomes more connected, the dangers increase. ¶ Are people in

western countries safe because of higher quality health systems? Countries like the U.S. have highly skewed networks of social interactions with some very highly connected individuals that can be “superspreaders.” The chances of such an individual

becoming infected may be low but events like a mass outbreak pose a much greater risk if they do happen. If a sick food service worker in an airport infects 100 passengers, or a contagion event happens in mass transportation, an outbreak could very well prove unstoppable .