Liability and SLR Contribution from the AIS

[AbruptSLR]

The question of liability (legal or otherwise) associated with sea level rise (SLR) contributions from the Antarctic Ice Sheet (AIS) is not a new topic.  However, I believe that the nature of the 'Fat-Tailed" probability density function (PDF) for this risk is so different from the historical risk PDFs that our legal, societal, and infrastructure design standards have evolved to address; that this question merits a new thread devoted to re-examining some of the basic assumptions related to this matter.

For example, in the 1990's several US states (including California) filed a lawsuit against the Environmental Protection Agency, EPA, demanding the CO2 be better regulated; and as part of that lawsuit James Hansen testified about the risks (PDF) associated with abrupt SLR from the potential collapse of both: the Greenland Ice Sheet, GIS, and the AIS.  However, his testimony was heavily attacked/discredited by the defense attorneys when the pointed out that Hansen was not a glaciologist and when the prosecution could not find a single glaciologist who would support Hansen's testimony.  Subsequently, the states of California, Oregon and Washington retained the US National Research Council, NRC, to evaluate the risk of SLR to the US West Coast (including an evaluation of the risk of abrupt SLR), and in 2012 the NRC (which included Tad Pfeffer on the board) issued their findings, which discounted the risk of abrupt SLR, in a manner similar to that presented in the leaked draft of the IPCC's AR5 (of which Tad Pfeffer has contributed).

Now I would like to quote from Al Gore's new book: The Future Six Drivers of Global Change, Random House, 2013, from page 320:

"Most legal systems in the world make it a criminal offense, as well as a civil offense, for anyone to knowingly misrepresent material facts for the purpose of self-enrichment at the expense of others who rely on the false representations and suffer harm or damage as a result.  If the misrepresentation is merely negligent, it can still be a legal offense.  If the false statements are reckless and if the harm suffered by those induced to rely on the false statements is grave, the offense is more serious still.  The most common legal standard for determining whether or not the person (or corporation) misrepresenting the material facts did so "knowingly" is not "beyond a reasonable doubt," but rather the "preponderance of the evidence.""

Now I would like to point out that while individual scientist many not be subject to civil liability for providing their expert opinions, government agencies such as the NRC who have been contracted by states, such as California, Oregon, and Washington, to provide SLR guidance that the states are relying on for their regulation of at risk infrastructure; are such subject to such civil liability prosecution if it can be shown that the administration of the agency should have provided better warnings of risks not addressed in their contracted work product (such as the NRC 2012 SLR guidance document).

Clearly Hansen has never backed down from his position regarding the risks of abrupt SLR, and indeed his has retired early from NASA (apparently due to administrative pressure that is not part of the scientific process); so that he can better prepare legal liability suit(s) against the federal government (apparently for negligence).

While this is a complex question, I believe that we have now entered the "Age of Consequences" so that there are now a number of parties that have standing in the courts due to damage that they have suffered due to the negligence of various agencies; and thus we will likely start to see better legal opinions on who is liable.  Also, due to the complexity of this question, in subsequent posts, I expect to discuss short-term liabilities associated with: (a) insurance, including the changing US National Flood Insurance Program, NFIP, and the associated changing US Federal Emergency Management Agency, FEMA, standards for insurability; and (b) changing flood design standards for infrastructure.

[AbruptSLR]

My previous post focused on US legal liability, but I would like to note that after 2020 the Kyoto protocol is suppose to have some kind of legally binding requirements; and that there are already a number of low lying countries that might be inundated by SLR, that are preparing legal cases for expected damage due to potential non-compliance with the new legal requirements. 

Also, I note that the liabilities associated with SLR can be accelerated by storm surge, such as is the case for Superstorm Sandy, where the 10-12 inches of SLR experienced there since 1900 directly contributed to the damage done by the storm surge.  Unfortunately, in the future most of the flood damage associated will deficient infrastructure design standards will likely not be paid for by a $50 to $60 billion payment by the US Congress to the damaged parties, as in the future most governments (including the US federal government) will likely not have the funds to pay; but still until that day these negligent government agencies will be subject to legal actions which may accelerate the day that they are unable to pay for damages, which may force many governments to give concessions to Public-Private-Partnerships to provide adequate infrastructure in the future.

[AbruptSLR]

I would like to return to the US civil liability concept of the "preponderance of the evidence."  Very roughly speaking, infrastructure typically are designed to have safety factors of from 2 to 5 when subjected to loading that might happen a few times in a hundred years, depending on the nature and importance of the feature.  This implies that for traditional societal norms we are talking about very low probabilities of failure within the design life; which implies that we are only talking about loading from the extreme far right tail of the probability density function, PDF.  Thus when agencies such as NOAA, FEMA, NASA, NRC deny the possibility of abrupt SLR within the next approximately 100-years (a common design life for critical infrastructure); then they are exposing their agencies to potential future civil liability action if the prosecuting attorney can so that there was a "preponderance of evidence" that such agencies should have considered scenarios resulting in abrupt SLR at the time that the infrastructure facility was built. 

[AbruptSLR]

Most of my posts regarding the Antarctic have been related to highlighting existing information about the risk of abrupt SLR so that this signal is not lost in the noise.  However, this is only half of the problem of enhancing the signal for the risk of abrupt SLR from the Antarctic, the other half is in reducing the noise from unreasonable sources.  And this is where the question of liability is helpful in a permissive global society that frequently does not hold parties responsible for their actions (whether investment banking, derivative funds, government, or themselves).  All that parties need to do what they want in a permissive society is to have plausible deniability which is greatly aided by the complexity of climate change (but again I will point out that uncertainty is not society's friend, but it might be a denialist's friend).

In order to enhance the signal of the true risks of abrupt SLR from the Antarctic, it could be possible for NGO's to use information technology in a similar manner to how hedge funds and derivative funds currently use advance physicists to identify financial signals (of both undervalued and overvalues financial instruments).  In this regard, I will say that hazard analyses are difficult to evaluate because of the large number of plausible scenarios that must be evaluated.

However, one recent example (among other information technology examples) of how this difficulty could be address is presented by the commercially available quantum computer chip provided by D-Wave, a company based in Burnaby, Canada, which has been selling quantum computers since 2011, which uses a non-mainstream method called adiabatic quantum computing.  Such a quantum system based on entanglement would be very good at identifying the most likely hazard scenarios related to abrupt SLR (or other abrupt climate change hazards).  If this approach could be implemented then denialist would lose plausible denial ability and could then be held liable for their actions.

[AbruptSLR]

As discussed in my previous post in this thread, so long as deniers can claim plausible deniability regarding the risk of abrupt climate change they can continue to dumb-down projections, when what we need in face of the complexity of climate change is greater wisdom in our decision making process.  The complexity of climate change modeling seems to make the provision of clarity intractable (particularly w.r.t. projecting the risk of abrupt SLR this century).  But in addition to using quantum computers (see previous post, and also research the unitary methodology in quantum theory) how should we deal better with uncertainty?  Our traditional (dumb) approaches are often qualitative and disjointed, and frequently result in unintended consequences.

In order to learn how to better deal with uncertainty, we need to better understand the complexity that causes it.  Complexity arises where many different system components interact in ways that seem to take on lives of their own to adapt and evolve due to positive system feedback; which can result in abrupt (and seemingly unpredictable) changes when the system crosses a "tipping point" (please also see my discussion of complexity theory and "strange attractors" in the "Paleo-Evidence for WAIS Collapse" thread and my discussion about Black Swan Theory, and about data mining in such closed gardens as provided by Paladin software).
Unfortunately, the trouble with effectively using such tools (quantum computers/theory, complexity theory, or "data mining") for addressing complexity, is that frequently decision makers do not have an adequate conceptual framework and do not even know what questions to ask, nor do they know what is critical from what is chafe (some added by deniers).  Many different researchers/agencies are working on the development of such a conceptual framework (of complexity) including efforts by both the Rand Corp. and the Santa Fe Institute, SFI, as discussed below:
- First: using "Robust Decision Making" Rand under contract to the Port of Los Angeles used to statistical methodology to add the risk of abrupt SLR back into the SLR probability distribution function developed by Pfeffer et al 2008 (see the first attached image), in order to make the PDF presented in the second attached image; which closely matches the PDF's that I have repeatedly posted regarding abrupt SLR.

- Second: as the risks of abrupt SLR indicated by Rand far exceeds the capacity of existing relevant infrastructure per traditional design methodology.  Thus many agencies/institutes including the SFI are studying the role of resilience — the ability of a system to maintain or recover its functionality in a disturbance.  Where resilience is intrinsic to SFI's studies of complex systems. Although complex networks of many interacting components might suggest a systemic fragility, such systems also tend to adapt to disturbances and evolve to changing environments. SFI researchers want to learn how a complex system’s structure and dynamics strengthen or weaken resilience and find principles common to complex systems in an effort to build a general theory of resilience.

I will say more about resilience in my next post.

[AbruptSLR]

Resilience by itself is one (of many) good concept(s) for addressing complex systems such as modeling climate change in GCM (ESM), RCM and LCM projections; however, even the application of such a robust concept needs an understanding of legal liability in order to avoid creating more needless waste.  Given that many deniers of abrupt climate change (whether in federal agencies, fossil fuel lobbies, or in the IPCC WGI) like for others to assume the risks associated with their decisions (such as was the case before the 2008 financial crisis when various real estate financial products were relying on home owner equity to cover the risks of the high-risk mortgages they were funding; which then triggered the global financial contraction when the losses from bad mortgages exceeded the risk coverage to the financial institutions provided by the owner's equity); one must be careful how resilience policies are implemented in order to avoid the moral hazard of the decision makers covering the risks that they are exposing society to (wrt abrupt SLR) at the expense of public/infrastructure safety.
To clarify what I am talking about, most infrastructure (at risk from abrupt SLR) are designer with factors of safety of from 2 to 3 for strength above the frequently 100-year event, and when adopting a resiliency approach risk policy makers allow for a reduction in this factor of safety applied to strength design (or serviceability level loading) in exchange for some consideration of resilient failures should the actual loading exceed the strength of the structure (including the reduced factor of safety).  While such an approach may be all that society can afford in the future; at the moment many areas are planning on investing billions of dollars to provide resilient behavior in such over-load cases for features that would fail abruptly if subjected to abrupt SLR.  For example the state of Louisiana is planning on spending about $50 billion on "resilient" coastal defense systems, and New York City is planning to spend over a billion dollars on resilient measures for the city; both of which would be overwhelmed by a combination of abrupt SLR and an increasingly severe 100-year storm event (note that climate change is making large storm events both more frequent and more severe, especially with regard to storm surge).  Or in other words it is possible that unless the true risk of abrupt SLR is recognized by such agencies as NOAA (who is advising in SLR criteria for both Louisiana and New York) such areas could be worst off than if they had not followed NOAA's guidance (thus subjecting NOAA to civil liability for negligence regarding SLR guidance that they were paid for, and the same can be said for NRC 2012 SLR guidance for California, Oregon and Washington).

I also note that while Pfeffer et al 2008 are more than welcome to their expert opinions about denying the physical possibility of abrupt SLR this century; many advisors to policy makers are using Pfeffer et al 2008's limit methodology as a standard of comparison (see the attached figure for GIS ice mass loss projections); while work such as that performed by Rand demonstrate that there is significant risk for SLR beyond the limits set by Pfeffer et al 2008 (see my prior post).

[Tom_Mazanec]

Here is more on liability and AGW:
https://www.eenews.net/stories/1060850731