The global scientific authority on climate change released its fifth global assessment this month, finding that human-induced warming of the planet is “unequivocal” and warning that unless “substantial and sustained” reductions in greenhouse gases occur we will cross dangerous temperature thresholds in the coming decades. Meanwhile, a Yale University poll found this month that Texans are not so different than the rest of the country when it comes to views on climate change. A solid majority (55 percent) even believe that the U.S. should cut emissions regardless of what the rest of the world does.
The climate panel at the Texas Tribune Festival yesterday, in contrast, might as well have taken place on some other planet—a planet where the laws of physics are suspended and the mere act of thinking makes things so. Invited to the panel, “The Fight Over Climate Change,” were three climate deniers and two people—a journalist and a scientist/environmentalist—who reflect mainstream views on the issue.
With U.S. Rep. Lamar Smith (R-TX) away in Washington voting to delay Obamacare, and inch the federal government toward a shutdown, that left the discussion evenly “balanced” between the “two sides.” On one side: Kathleen Hartnett White, former chairwoman of the Texas Commission on Environmental Quality and energy analyst with the corporate-funded Texas Public Policy Foundation, and current TCEQ chairman Bryan Shaw. On the other: Ramon Alvarez of Environmental Defense Fund and David Sassoon, publisher of the Pulitzer Prize-winning Inside Climate News.
Moderator Kate Galbraith did her best to challenge Shaw and Hartnett White by pointing out the overwhelming scientific consensus on anthropogenic climate change. And the audience generally responded to the duo with grumbling; one gentleman even loudly said “liar” while Shaw was speaking. But the two stuck to their potpourri of long-discredited talking points and red herrings: the models are flawed (Shaw); warming stopped 16 years ago (White); the IPCC—which produced the recent report—is politicized (Shaw), and the costs of doing something about climate change are too high (Shaw and White).
“Perhaps CO2 may not be the culprit,” said Shaw at one point. Carbon dioxide, he conceded, is a greenhouse gas. But, “we don’t know if additional CO2 is having the additional warming” effect.
Shaw also briefly pointed to the “recovery” of Arctic sea ice this summer as proof-positive that global warming, if it ever existed, has stopped.
During the question-and-answer session, an audience member pointed out that the extent of sea ice in the Arctic hit a record low last summer and this year it was the sixth lowest ever, well below the historical average. The suggestion was that Shaw’s point wasn’t really a point at all, but a flimsy, almost lazy, isolation of a single data point that, given just a bit more context, actually counters Shaw’s argument.
Still, Shaw was unperturbed. “Glaciers, oceans and temperature—none have been doing what the models suggest.”
(For the record, the IPCC reported: “Over the last two decades, the Greenland and Antarctic ice sheets have been losing mass, glaciers have continued to shrink almost worldwide, and Arctic sea ice and Northern Hemisphere spring snow cover have continued to decrease in extent.”)
David Sassoon, the Inside Climate News publisher, looked a man who had gotten off at the wrong stop and found himself in Crazytown.
“Let’s not argue science,” said Sassoon to Shaw. “You’re not a climate scientist. … It’s silly for us to be arguing over science. That’s what’s been going on for 20 years and in that time a lot more could’ve been done to resolve differences and take action. Let’s not waste any more time on that.”
Texans believe climate change is happening and that government should take action. Yet, we’re almost evenly divided about whether there is agreement among scientists.
A federal judge in Houston who made bizarre remarks during a hearing on a racial discrimination case he’s overseeing will not step down. A 5th Circuit ruling last week, rejecting a petition to have Hughes recused from the case, appears to be the final word on the matter.
Jitendra Shah, an Indian-American engineer, sued the Texas Department of Criminal Justice in July 2012, alleging that the agency had discriminated against him on the basis of his race and religion. Shah wants U.S. District Judge Lynn Hughes, a 72-year-old Reagan appointee, to recuse himself from the case because of comments Hughes made during a December pre-trial hearing.
In that ex parte hearing, during which only TDCJ lawyers were present, Hughes launched into a colloquy on Adolf Hitler’s use of swastikas, the origin of Caucasians and the futility of diversity programs at universities. He quoted Eleanor Roosevelt opining that “staffs of one color always work better.” It is not the first time Hughes’ views on race during discrimination cases have attracted attention. In January, the 5th Circuit admonished Hughes for dismissing a racist slur as “political” and opining that “no black individually and no blacks collectively owns [sic] the sensitivity rights to fried chicken or anything else.”
In January, Shah asked Hughes to recuse himself from the case, arguing that the judge had demonstrated bias and couldn’t rule on the case impartially. Hughes refused to rule on the motion and Shah took the matter to the 5th Circuit Court of Appeals. Last week, the 5th Circuit rejected Shah’s petition and Hughes remains on the case. In a filing with the court, the judge defended his remarks. “Discussion of history and race does not evince a bias against people who are Indian, Hindu, both, or anyone else,” he wrote.
Complaining that diversity directors make too much, Hughes told the TDCJ attorneys, Allan Cook and Jonathan Stone, “Why don’t they just hire people on ability and let diversity take care of itself? And what does the diversity director do? Go around and painting students different colors so that they think they were mixed?”
Later, the judge engaged in a back-and-forth with Cook on Shah’s race in which he declared Shah to be “Caucasian” and attempted to describe, Hughes later explained, “how a Sanskrit word for good luck became a symbol of a North-European political movement.” Judge for yourself.
JUDGE HUGHES: Well, what race is he to the extent those are meaningful at all?
STONE: He’s–he’s Asian, I think he said.
JUDGE HUGHES: That doesn’t-
COOK: I thought he said he was Hindu.
STONE: No. Yeah. When we asked him what race he was, he said his race was Hindu. So-
COOK: Right. And his religion was also Hindu.
JUDGE HUGHES: All right. So, he’s Caucasian?
COOK: No. He’s Indian.
JUDGE HUGHES: They’re Caucasian.
JUDGE HUGHES: All right.
JUDGE HUGHES: That’s where we came from.
COOK: All right.
JUDGE HUGHES: That’s why Adolph Hitler used the swastika.
JUDGE HUGHES: It was a symbol of good luck.
JUDGE HUGHES: -in going in Sanskrit to the Aryan people which he claimed a bunch of Germans were. They act a lot like Germans.
According to Hughes, “they act a lot like Germans” was a “criticism of the current in German thought… that has called for a return to a mythical glory of the race when they were dominant.” He did not explain who the “they” was. Shah claims that the judge was referring to people of Indian descent and his comment “establishes that Judge Hughes harbors a bigoted, stereotyped view of Indians (as well as Germans).”
As to why he labeled Shah Caucasian, Hughes explained that he was referring to the anthropological understanding of the term, “a cluster of people stretching from Europe through the Caucasus Mountains to India” and a “crude allocation of seven billion people into three groupings.”
“Groups that broad may have minor genetic unity, but knowing that is inadequate for pubic [sic] decision-making.”
Hughes also mused on an Indian-American’s position in the workplace.
JUDGE HUGHES: The fact that he’s the only Indian there is a fact in the department’s favor. It would be real easy not to hire the first Indian.
COOK: It would be hard not to hire an Indian engineer, though.
JUDGE HUGHES: No.
COOK: A lot of engineers out there are Indian. And they actually offered a job to one recently who turned it down.
JUDGE HUGHES: Oh. But that’s when you’re hiring on merit. But sometimes people decide—Eleanor Roosevelt said staffs of one color always work better. They don’t put that on the postage stamp. But when you hire somebody who applies and there’s nobody else like them, isn’t that what you’re supposed to do?
JUDGE HUGHES: And then you kept him a long time.
COOK: Kept him a long time.
JUDGE HUGHES: All right. Well, I think it’s time for you to move to summary judgment.
Hughes defended his comments, writing that “the point of the court’s statement that it would be easy not to hire the first Indian person in a workplace; that is how people discriminate.”
Hughes also establishes that some of his best friends are Indian. “The court’s asserted hostility to Indians would surprise its immigrant or first-generation Indian doctors, friends, law clerks, and interns.”
A dilapidated house on Bolivar Peninsula, summer 2011.
Last week marked the fifth anniversary of Hurricane Ike, the third costliest hurricane in U.S. history but also one that received relatively little attention from the national media. Ike devastated Galveston Island, parts of the mainland and nearly wiped the Bolivar Peninsula communities of Crystal Beach and Gilchrist off the map (who could forget this iconic image?). The storm took the lives of 112 people and did $30 billion worth of damage. More than 100,000 homes and businesses were flooded.
I’ve been following the story of the recoveryoff and on for five years now, especially the housing component. In 2008, the federal government awarded Texas $3.1 billion to spend on long-term recovery. Despite the devastation being concentrated in urban or semi-urban Galveston County, Rick Perry put the Texas Department of Rural Affairs in charge of the infrastructure component, disbursing money down to the locals through an inexplicably complex process.
A tiny agency, TDRA hired the job out to a contractor, HNTB, which frittered away money on administrative costs and got little accomplished.
TDRA proved to be such a disaster that the agency was later folded into the Texas Department of Agriculture. On the housing side, the Texas Department of Housing and Community Affairs didn’t do much better. The head of that agency resigned in 2011 and authority over the funding was moved to the General Land Office.
I did some extensive reporting on the pace of recovery on Bolivar Peninsula in 2011 and what I found was that only a tiny fraction of the aid had reached the storm victims. The folks I met were by and large upset, frustrated and left wondering what in the hell had gone wrong. At that point, three years after Ike struck, Texas had spent less than 3 percent of the $1.7 billion earmarked for housing. Statewide, just 36 new homes had been built.
Two years later, and five years after the storm, only 41 percent of all the homes have been rebuilt or rehabilitated, according to data I obtained from the General Land Office. Of the $1.6 billion the state expects to spend on housing, it’s only paid out $488 million, or a little more than 30 percent.
Nowhere has the pace of recovery been more fitful and contentious than Galveston Island.
Although natural disasters can bring communities together in extraordinary ways, the long, tedious haul of rebuilding is often when the fault lines are exposed. Almost as soon as people returned to Galveston after Ike, there were calls to not rebuild the three public housing buildings damaged by the storm. Some of Galveston’s poorest residents lived here and they felt abandoned and hurt when it seemed the rebuilding effort wouldn’t include them. Five years later, after much racially-charged political upheaval, not a single public housing unit has been rebuilt, despite legally binding agreements to replace all 569 units. Thousands of people are on a waiting list to move in.
A slate of virulently anti-public housing—critics say, anti-poor—candidates backed by a hard-right tea party campaign were elected to city council last year on a pledge of massive resistance to rebuilding the units. However, the General Land Office pledged to halt all of Galveston’s aid totaling hundreds of millions. Stuck, the city reluctantly capitulated. As a sign of goodwill, the GLO released a tranche of $17 million for road projects in July “in recognition of the city’s improved cooperation,” wrote GLO spokesman Jim Suydam in an email.
Still, even on a fast timeline, the first public housing units won’t be reopened until October 2014, at the earliest. City leaders are also aggressively opposed to rebuilding so-called scattered sites, subsidized apartments that would be dispersed around the island.
What you’re left with is a picture of a largely dysfunctional recovery process that has a disproportionate impact, as always, on the poor. This is not just anecdotal, as the Houston Chronicle found.
Scores of vacant lots and empty houses in Galveston’s minority neighborhoods are mute evidence of the lingering effects of the destruction wrought by Hurricane Ike five years ago.
“Vacant house after vacant house after vacant house,” said David Miller, president of the local NAACP chapter, on a drive through Galveston’s low-income areas.
[D]ata from the Galveston Central Appraisal District show that more than 4,000 properties that suffered 50 percent or more damage have yet to be repaired or rebuilt. Studies by Texas A&M University show that housing in minority and low-income areas suffered proportionately more damage and were the slowest to rebuild.
Of course, a poor man’s crisis is sometimes a rich man’s boon.
By scouring shabby properties from the map, the hurricane opened the way for more expensive development that is changing the character of many neighborhoods. “It gave the island a chance to upgrade some of those distressed properties,” said Kelly Kelley, a Galveston Island real estate agent.
Unlike North Texas’ Barnett Shale play, South Texas’ Eagle Ford fracking bonanza has never received the close scrutiny of fracking skeptics, researchers and regulators. Part of that is because Eagle Ford production didn’t really take off until 2011. It’s also much more sparsely populated than some of the fast-growing parts of the Barnett Shale, especially around Fort Worth and Denton. And, frankly, a lot of people are getting oil-rich from leases or work in the oilfield making decent pay.
A new 47-page report from Earthworks, released this morning, takes a sobering look at the potential health risks from fracking-related air pollution in Karnes County, one of the epicenters of the Eagle Ford Shale. The title offers a sense of its findings: “Reckless Endangerment While Fracking the Eagle Ford: Government Fails, Public Health Suffers and Industry Profits from the Shale Oil Boom.”
“At this point you have to ask the question: Are the regulators only there to create the perception of regulation so the oil and gas industry can do whatever it wants?” said Earthworks spokesperson Alan Septoff.
Drawing on a mixture of government documents, direct air testing and the stories of people in the shale, Earthworks concludes that “air pollution from oil and gas development in the Eagle Ford Shale definitely threatens, and likely harms, the health of Karnes County Texas residents.”
The report focuses on one family in particular as a sort-of case study: the Cernys of Karnes County. Their country home is within two miles of 37 oil and gas facilities, 18 of which have been drilled and fracked within a mile of their house since November 2010. The Cernys, including their 15-year-old son, complain of fatigue, nasal irritation, throat problems, burning eyes, joint pain, severe headaches, dry eyes, nosebleeds and other health problems they associate with emissions from nearby oil and gas activity.
In their research, the Earthworks team discovered that investigators from the Texas Commission on Environmental Quality had documented high, even dangerous levels, of pollutants emanating from nearby facilities.
For example, in 2012, TCEQ inspectors visited the Sugarhorn Central Facility, a site operated by Marathon Oil about 1.3 miles from the Cerny home, four times. On two occasions, inspectors with handheld detectors found concentrations of volatile organic compounds—a class of chemicals that includes the carcinogen benzene—that would normally lead to collecting canister samples to be sent to a lab for further testing. But, instead, the state inspectors deemed the levels “too high to safely obtain the samples.”
On another occasion, in August 2012, inspectors wielding an infrared camera happened to catch emissions pluming out of storage tanks at the same site. More than three months later, the company finally filed a report with TCEQ on what happened. The tanks had been venting volatile organic chemicals—which includes benzene and toluene—at 514 times the maximum allowable rate, and hydrogen sulfide at 112 times the allowable rate In August and September 2012, the site had emitted about 69 pounds of benzene, according to the company’s filing.
Although TCEQ issued violation notices to Marathon for exceeding its air permit and not reporting the incident within 24 hours, no fine or penalty was ever levied by the agency.
In a statement, TCEQ said it had collected “several millions of data points for volatile organic compounds” in the Barnett and Eagle Ford Shale plays. “Overall, the monitoring data provide evidence that shale play activity does not significantly impact air quality or pose a threat to human health.”
At another Marathon site, a little over a mile from the Cerny home and even closer to other residences, inspectors detected VOC concentrations of 1,100 parts per million. “The Recon team evacuated the area quickly to prevent exposure,” a report from TCEQ stated. “This facility is less than a mile from Complainant’s residence.”
Were the Cernys or their neighbors in danger of being exposed to unhealthy levels of pollution? There’s really no way of knowing, the report points out. “It is extremely troubling that there is apparently no step taken to either warn nearby residents of the chemicals in the air,” it states, “or to take canister samples at nearby receptors in order to try to determine residents’ potential exposure to the chemicals emanating from the facilities.”
TCEQ criticized Earthworks’ account as incomplete. “[T]heir report does not point out that Marathon personnel were contacted and made aware of the [TCEQ] team’s findings” and the leaking valve was fixed the same day, an agency statement said. TCEQ did not address why its inspectors apparently did not notify nearby residents or take canister samples.
The agency also defended its enforcement record in the Eagle Ford Shale, noting that it has issued 187 notices of violation in the area since September 2010, and launched 408 investigations in the last year.
“The TCEQ has a vigorous, effective enforcement operation in the Eagle Ford Shale, and when problems are detected, the TCEQ makes sure they are rapidly fixed,” TCEQ wrote in a statement.
Earthworks conducted its own on-the-ground investigation, using infrared cameras and canister samples taken from the Cernys’ property an a nearby drilling site. The air testing found that VOCs at the Cerny home were well below levels that TCEQ considers to be of concern. At the drilling site, benzene levels were 20 times TCEQ’s acceptable long-term “air monitoring comparison value.”
In March, Earthworks also drove around Karnes County with an infrared camera of the type state environmental investigators use. The group claims to have documented “numerous emissions” from facilities, including evidence of a broken flare at a Marathon facility first flagged by TCEQ in September.
The report doesn’t, and perhaps can’t, establish a direct, irrefutable link between the Cernys’ health problems and the oil and gas activity in their area. But it does call attention to the severe limitations in Texas’ oversight system. As Earthworks points out, TCEQ has established a network of 24/7 air monitors in the Barnett Shale, providing at least some real-time data to citizens concerned about fracking-related air pollution. No such system is in place in South Texas, although the agency apparently has plans for one monitor in Wilson County, southeast of San Antonio. It’s all little comfort for the Cernys.
“This isn’t living anymore. It’s just existing, and wondering what you are going to breathe in next,” Mike Cerny is quoted as saying in the report.
This is Part Twelve in an occasional series of Q&As with Texans involved in issues of the environment and energy. (Read Part One with Bee Moorhead here, Part Two with Andy Sansom here, Part Three with Katherine Hayhoe here, Part Four with Patrick Kennedy here, Part Five with Michael Banks here, Part Six with Gabriel Eckstein here, Part Seven with John Nielsen-Gammon here, Part Eight with Tad Patzek here, Part Nine with Charles Porter here, Part 10 with Carlos Perez de Alejo here and Part 11 with Kate Galbraith here.)
In Part Twelve, I talked to State Climatologist John Nielsen-Gammon at the Observer offices in this wide-ranging interview. I last interviewed Nielsen-Gammon for this series in June 2011, in the middle of that summer’s brutal heat. Now, two years later, amid a worsening drought, we sat down to take stock of the drought, discuss the challenges of communicating climate science and ponder the Pacific Multi-Decadal Oscillation.
Texas Observer: How has the drought story evolved in 2013?
John Nielsen-Gammon: I think it was good the drought was still getting people’s attention during the legislative session because they made some progress on long-term water planning issues there. The summer’s been relatively wet in most of West Texas and in East Texas it’s been kinda dry but hasn’t been as dry as it was two years ago. So we’re not really seeing the big agricultural impacts we had a couple years ago, which is good. And it’s been enough to keep the water supplies going in the reservoirs. So we’re sort of holding the status quo, which is not really what you need because you’re still pretty vulnerable.
TO: I think people, especially in cities, think, “2012 was average, at least in this area, and we had some big rainfall events and the plants look pretty good, so why are we in this persistent drought?”
JNG: Part of the answer is meteorological and part of it is the infrastructure has changed. More and more reservoirs have gone up along the Colorado River so there’s water that would’ve been in these reservoirs that is presently in different reservoirs. People have inhabited more of the Hill Country with dense subdivisions and built wells to supply those, which is taking water out of the system also. That hasn’t helped. Then meanwhile we haven’t had a good flood in a while. [Laughs]
Floods are bad for most purposes but they’re great for filling up reservoirs. There were floods along the Colorado River even during the 1950s drought. But we had one back in September 2012, which hit the upper Colorado River and pretty much doubled the amount of water in some of the reservoirs up there and provided a year’s worth of water for San Angelo. That bought them a year to develop an alternative well field. But there hasn’t been a flood around here. You need to have several wet months in a row or something really concentrated. The first thing that happens, the soil gets wet. Either you have the rain come fast enough that it doesn’t have time to sink in or you get enough of it that the soil is already saturated before you get the runoff that goes into the reservoirs.
TO: Back in March you said that by the end of the summer you expected this to be the second worst drought on record beyond only the drought of the 1950s. Are we there yet?
JNG: I think we’re there. I’m basically waiting another couple months until this one outlasts the 1917-1918 [drought]. But I think by most measures we’re pretty much number 2, but to make it official we’re gonna wait till the end of October.
TO: Who gets to decide that? Obviously you can do whatever you want. And what is the criteria?
JNG: Apparently I can, actually. There’s nobody that—well, the governor’s responsible for declaring drought emergencies and requesting federal assistance if necessary. But in terms of the meteorological conditions a few droughts ago I noticed that nobody was saying when the drought was over so I figured I’ll do it. [laughs]
TO: Well, you are the state climatologist and not some guy on the street.
JNG: So it makes sense for me to do it.
To: When you’re doing a comparative analysis of this drought vs that drought, what is the basis for measuring that sort of thing?
JNG: There are lots of different drought indices used to measure the severity of drought. The most common one is the Palmer Drought Severity Index. I’ve got this diagram where I plot the evolution of the index over time for all of the droughts in Texas since 1895 and by two months from now it will be the third longest-lasting drought and it bottomed out in terms of intensity pretty much on par with the 1950s drought. It was slightly worse on the index value than it was in 1956. But meanwhile it’s been more severe overall than the other longest-lasting drought, which was the early 1960s, which really wasn’t a major drought from a Texas impacts point of view. In terms of duration the only competition for second place is the 60s drought and in terms of intensity this one’s been worse.
TO: What would it take to say this has been the worst drought in Texas recorded history. How do we get to that point? How much longer would that take, what would the conditions need to be?
JNG: That is not as relevant for actual impacts as when this drought becomes the drought of record for particular water suppliers which is going to happen at different times in different places. I think this has already been the drought of record in some places. If it keeps going it will continue knocking down those records. The basis for water supply infrastructure is to be able to withstand the drought of record, which is great until you have the drought that surpasses it. We’re finding out what happens in that circumstance.
TO: So the drought of record is not just a fun record. It has significance for the purposes of water planning, for the water suppliers.
JNG: In principal you could plan for some kind of engineering standard, like a 1 in a 100 probability event happening. The advantage of using the drought of record standard from the [Texas] Water Development Board’s point of view is it’s a concrete event where you can calibrate and test models and make sure your models are performing the way they should. You can’t necessarily do that for a more abstract quantity.
TO: In a sense it’s not that conservative because the period for which we have records is kind of a blink of the eye in geologic history and then we have the enhancing effects of climate change. Do you think the drought of record is the proper yardstick for planning purposes or should there be some other approach?
JNG: Well, I think first you have to say what level of risk you want to allow, how resilient you want the water supply to be. I would think based on how severe and long term the consequences would be of having a water shortage in a major metropolitan area—I’m talking about economy, future industrial development and so forth—you really want to insure against something like that happening. I would think something like a 1 in 300 or 1 in 500 possibility in any given year would be a more reasonable planning target. That would suggest something more resilient than what would withstand the drought of record.
Now, on the other hand, the criterion is something like, in the drought of record you still have to supply all the water needs but needs are not necessarily necessary, relative to how much water you have. A household can get by with much less water than it thinks it needs, for example. There are problems with both ends of the scale.We need to be able to withstand the more severe drought but we also have to accept that in a more severe drought we’ll have less water than we want.
TO: How long do you expect this drought to last? You said sometime back that looking at the cycles of the past and the cycles we’re in presently that this drought could last through the end of this decade.
JNG: That’s certainly possible. I’m not wrong yet. [Laughs] It takes a lot longer to get in a drought than it does to get out of it. A couple of tropical disturbances that camp over the state would provide a lot of water, having several wet years in a row, like an El Niño event. We haven’t had an El Niño event during this drought . It could happen, not this winter, but possibly next winter. So you can’t really say more than a few months in advance whether a particular drought is likely to end or not. But over the long term the signals are still pointing towards drought.
TO: I think many, if not most,Texans are familiar with the El Niño/La Niña cycle and how it impacts our weather here but from what I understand we’re learning more about how the Atlantic Multi-Decadal Oscillation and how the Pacific Decadal Oscillation function, how they might influence Texas weather. What can you tell us about our friends ADO and PDO?
JNG: PDO is sort of like the long-term, slower version of El Niño except it has more of a signal at higher latitudes in the Pacific. They’re closely related and some people speculate that they’re really just the same thing looked at in two different ways. In terms of consequences, it really is similar to El Niño and La Niña when the index is positive we tend to have wet winters when it’s negative we tend to have dry winters. We’re negative now, of course and have been basically since the beginning of the century.
When the North Atlantic is warm it probably tends to lead to dry conditions in Texas, especially during the summers. And I say probably because we don’t have a consensus among all the different model that simulate the atmosphere. Some of them show a connection and some of them don’t. The historical evidence shows a connection, so it’s probably there, it’s probably a shortcoming of the model. But you can’t know it for sure because the Atlantic Ocean has only been cold, then warm, then cold, then warm during the climate record and that’s not many instances to build up solid statistics.
Assuming it’s real, the Atlantic has been running warm over the past 15 years or so and so that also favors dry conditions, mainly dry conditions in late summer and fall. There doesn’t seem to be anything that strongly affects the springtime rain. We’ve got different parts of the climate system hitting us at different times of the year right now.
TO: Going back to 2011, I remember you produced a chart plotting temperature and precipitation. 2011 was almost literally off the charts. People want to know: Is this just some crazy outlier year that we would have had regardless of climate change, is it caused by climate change or is climate change just a factor that works on top of natural variability?
JNG: We know from the past that the drier it is the hotter it tends to be in the summertime. Both 2012 and 2013 have not been outliers on the diagram. They’ve been near the middle of the cluster of points. 2011 was an unusual single event. The climate change aspect of it is that really for the past 10 or so summers the temperatures have been higher than you would expect for the amount of precipitation we got. In other words, a six inch summer would normally be 83 degrees and instead it was 84 degrees, something like that, for average of the maximum and minimum temperatures. So climate change is making things tend to be more of an outlier along the temperature part of the distribution but the thing that really affects temperature the most is rainfall. That was the big player in 2011.
TO: You tried to calculate what fraction of 2011 was due to global warming. What did you come up with?
JNG: Compared to the normals for 1981 to 2010, climate change seemed to be responsible for a degree Fahrenheit, so about 20 percent of the anomaly during that period. There’s a couple of qualifications to that. We’re only one year after the normal averaging period so effectively that’s just 15 years of climate change from the middle of that 30-year period to 2011 is sixteen years. A degree in 16 years is pretty substantial.
If you went back to the beginning of the century, how big of a change would you get? Well, that’s the other footnote because in Texas the average from 1981 to 2010 temperatures for summer pretty much matches the long-term average. We hadn’t experienced long-term warming in the state until recently. And maybe natural variability was masking some of that; it probably was. But that means we can’t say overall how much of a contribution climate change has at any given location, such as in Texas. Climate change and natural variability are all tangled up and both are contributing. It’s hard to be precise in terms of the relative impact of each of them when you don’t have something else to verify against.
TO: Why do you think as the state climatologist, as a climate scientist, why do you think communicating climate science to the public can be so difficult?
JNG: Oh, I think it’s easy to communicate climate science to the public. They do it all the time. It doesn’t even have to be accurate.
TO: And of course a lot of it is filtered through the media. Here I am.
JNG: And filtered through people’s perceptions. And different interest groups have different messages they want to convey. And, frankly, the climate system is so complicated that there’s no way that anybody in the public without a sense of scientific background is going to be able to evaluate different claims made about the climate scientifically. They really have to rely upon judging information by its source and that sort of thing.
Back in the 1950s and 1960 we might not have had this sort of polarization problem because we didn’t have multiple sources. Scientific information was regarded as basically right or wrong. Science writers were trying to explain things to the public. The public was interested in science through the nuclear revolution to the development of computers. We didn’t have fragmentation of scientific messages and that combined with the expertise of science reporters made for pretty good information going to the public.
Now with the climate science issue, there are many multiple messages. People will hear different things from the media they prefer, they have more ability to focus on particular media sources so we don’t get the broad information that happened when all the media was essentially trying to speak to everybody simultaneously.
TO: I think there’s a significant percentage of the public that, for example, challenges the greenhouse gas effect as a phenomenon, doubts its existence, in a way that I don’t think you see in other fields like physics. Do you attribute that to this bifurcation in the way that people get information, usually mediated through the media or is there something more fundamental at work there?
JNG: I think it really is the bifurcation. There’s not a lot of sources out there to say, well the greenhouse effect doesn’t even really work. You can find the odd scientist here and there, none of them climate scientists, that say it doesn’t work. I think because most of the public is not going to know the ends and outs of the various issues, the only thing they really care about—with justification—is, Is this something they need to be concerned about or not? And if the allusion is not, then that means the people saying it is something to be concerned about are wrong about what they’re saying. And everything they say will tend to go, by default, into the quote-unquote wrong category.
It’s not that a large portion of the public doubts the greenhouse effect, it’s that they doubt climate change is a serious problem and if they’re going to have to guess about a scientific question they will guess in the direction of those saying it’s not a serious problem. But ask any one of them to explain what’s wrong with the greenhouse effect, or ask someone who believes it’s real, how it works, 95 percent will not be able to give you a scientifically valid explanation.
TO: What do you make of the assertions, especially from politicians, that warming has stopped? Typically 1998 is cited as the year that global warming has stopped. And we know there is a plateau in the past decade or so when we look at land surface temperatures—
JNG: And ocean surface.
TO: What’s actually going on with the climate system and what are those folks getting wrong, if anything?
JNG: It’s all basically a matter of messaging. No, not all, but largely a matter of messaging. Have temperatures gone up a lot over the past decade? No. Does that mean global warming has stopped? Well, that depends on whether you define global warming as temperatures steadily increasing over a decade interval. If you define it like that, then yeah it has [stopped]. If you define global warming as a long-term increase in temperature caused by greenhouse gas increases, then has that long-term increase stopped? No. The short-term increase has stopped.
Scientifically there is always going to be natural variability to make things go up faster or slower. To be fair, when temperatures are going up faster, scientists didn’t take the initiative to figure out if part of that was natural. It was consistent with the rate models were increasing so there wasn’t any evidence it was too fast. Now that it’s slowed down, again temporarily, just as it was going up too fast temporarily, it’s become apparent that the models either don’t have enough natural variability or are overestimating the long-term trend, or both.
Scientists always knew that they were screwed up with natural variability of years to decades. Some models can do pretty well with El Niño summers. Multi-decades things, it’s hard to say they’re very good at it. But that wasn’t the goal of the models. It would be nice if the models were accurate in all things but the main emphasis was to have them be accurate in terms of the long-term magnitude of climate chance. Scientists weren’t too worried about not having things right from decade to decade. Now they are, belatedly I think, and we’re starting to see the results of research looking at the issue. Actually, there’s stuff coming out every day now.
The thing that points to it being a natural fluctuation is the fact that the ocean is continuing to warm up. That means we still have the energy imbalance that we put into the atmosphere. That hasn’t gone away and the surface temperature pendulum is going to swing back eventually. Meanwhile the long-term increase may need to be adjusted downwards as a result of this.
TO: From a policy perspective, is it good news because it buys the planet more time to try to address greenhouse gas emissions or is it bad news because it allows some folks to exploit the message and say climate change isn’t an issue and therefore leads to inaction? Or is it all a wash?
JNG: If it’s just a temporary thing that we’ll go back up and catch up to the rate we were warming before, then it’s bad news. It won’t have any long-term benefit to the climate system and it will delay action. If we’re down to, say, the minimum of a natural oscillation that’s superimposed on the long-term trend and we were above that before, hitting our peak in ’98, then it’s good news in the sense that the long-term trend is lower than what we thought it was. But the adjustment we’re talking about there is 20 percent or 25 percent lower, at the outside, which is small compared to the uncertainties. [Laughs] Such as how much we value things in the future versus the present, or how big the impacts are going to be for a given change in temperature. It’s not going to have a policy impact; it’s going to have an impact down the road on how things actually turn out. It doesn’t make any difference in the argument.
A man kayaks in the wetlands of Matagorda Bay Nature Park at sunset.
In a hastily-called meeting today, the Lower Colorado River Authority board of directors considered whether to cut off releases of freshwater to Matagorda Bay, a potentially devastating move for the freshwater-dependent bay system and another blow to a community increasingly crippled by the drought.
After hearing objections from environmental groups and an emissary from Matagorda County, the board voted to release water in September but made the first step toward choking off environmental flows for the rest of the year. To take that drastic step, LCRA would have to get permission from the Texas Commission on Environmental Quality. The discussion comes as levels in lakes Travis and Buchanan, the drinking-water source for Austin and other Central Texas communities, approach historic lows. Across the state, the drought is intensifying fights among communities reliant on a shrinking pool of water.
So-called environmental flows are critical to the health of Texas’ estuaries and bays. Under LCRA’s water management plan, the water authority must generally let a bare minimum amount of water flow down the river into the bays each month. Runoff generated from rainfall downstream of the lakes can count against the 14,000 acre-feet total. If no water flows into the lakes, LCRA doesn’t have to release any water downstream for the environment.
“It’s survival mode,” said the Sierra Club’s Jennifer Walker. “Ninety-seven percent of the fish and shellfish species use Matagorda Bay at some point in their life cycle. It’s critical for their survival.” She said that the most recent science suggests that maintaing a salinity level of 25 parts per thousand during extreme drought is important for bay health. Levels right now sit at 32, just a couple notches below the salinity of the Gulf. Cutting or curtailing freshwater inflows could be ecologically dangerous.
Folks in Matagorda Bay, where rice farming and eco-tourism are critical to the local economy, have been largely on the losing end in the fight over a dwindling amount of water in the Colorado River. Mitch Thames, the president of the Bay City Chamber of Commerce, said he was upset that the LCRA gave so little notice about today’s vote. As an “emergency” meeting, LCRA didn’t have to follow the state’s 72-hour posting rule. Thames said he heard about the meeting mid-day yesterday, affording him little time to prepare. “I did tell them I was quite concerned that they pulled the trigger on this meeting so fast I wasn’t able to get voices from Matagorda County the three hours to Austin to speak on our behalf.”
Update, 7:30 p.m.: I asked LCRA spokeswoman Clara Tuma why the river authority’s board made the environmental flows issue an emergency item and received this reply:
We confirmed the deficit last week and moved quickly to get the matter before the Board.
We had a special called meeting already set for today, and it made sense to get this issue on the agenda instead of waiting for next week’s regularly scheduled meetings. Issues concerning water supply during this historic drought could pose an imminent threat to public health and safety.
If emergency relief was requested and denied by TCEQ, there had to be enough time to send the required water to the Bay and have it arrive by the end of the month to comply with the Water Management Plan. It takes water about 12-13 days to get to the Bay from the Highland Lakes.
Correction: The meeting was scheduled on Friday; the agenda item dealing with Matagorda Bay was added on Monday, the day before the meeting. However, the meeting itself was not “hastily-called” as the original draft of the story stated. The Observer regrets the error.
March outside San Antonio City Council meeting in favor of non-discrimination ordinance
UPDATE, 2:43 pm: The non-discrimination ordinance passed 8-3 and goes into effect immediately. Although religious right organizations have promised to sue, the lopsided vote brings to a close what became an unexpectedly heated debate over a rather innocuous local measure that’s already on the books in Austin, Dallas, Fort Worth, Houston, El Paso and more than 170 other cities nationwide.
Mayor Julian Castro gave the final word before the vote.
“Whether you are white or black, Christian or Jew, whether you are straight or gay, San Antonio belongs to you too,” he said. “This is a city that belongs to everyone. This ordinance is about saying there are no second class citizens in San Antonio.”
LGBT groups declared the vote a victory for equality but some expressed dismay at the rancorous tone adopted by some opponents. “Today’s vote is a victory, but the attacks we saw from our opposition in the run-up to this—particularly the transphobic messaging—remind us of the ruthless tactics they use to promote discrimination against LGBT people,” said Human Rights Campaign President Chad Griffin in a statement.
Councilwoman Elisa Chan, who earned notoriety after a secret recording revealed her unvarnished views on homosexuality, gave a defiant speech before the vote.
“I’m disappointed that the power of political correctness has prevailed over the freedom of speech,” Chan said. Those expecting her to apologize for her “it’s disgusting” remarks might’ve been disappointed too.
“Just because I disagree with the lifestyle choice of LGBT community doesn’t meant that I dislike them,” she said. “Similarly just because one opposes this ordinance, that doesn’t mean one is for discrimination.”
At the end of the day, though, the question before the City Council was simple: whether to continue to make it legal for people to be discriminated against on the basis of sexual orientation and gender identity in the city of San Antonio. Everything else was either an invented issue (men in the women’s restroom!) or a side issue (the precise wording of the ordinance). In the end, a majority decided that LGBT people are deserving of the same protection as other protected groups.
You got the sense from listening to the NDO opponents that they know neither time nor momentum is on their side—even in Texas, where just about every Republican running for statewide office weighed in against the ordinance. (My favorite was state Sen. Donna Campbell worrying that “Tolerance is going too far in this instance.”) They had about them an air of desperation and a hint of the self-pitying righteousness that comes when your point of view falls from favor.
Although same-sex marriage or civil unions or a statewide anti-discrimination law isn’t coming anytime soon to Texas, it’s unlikely that the future holds any more rollbacks for the LGBT community. The vote on the San Antonio ordinance wasn’t even close, 8-3. And barring the wrath of God that some predicted would be unleashed upon the city, the ordinance is unlikely to change much of anything. But it is a fight that the LGBT equality movement won and the other side lost. It’s just strange that they came to die on a molehill.
UPDATE, 12:25 pm: After taking citizen testimony for several hours, the Council is on a lunch break. Business is expected to reconvene around 1 pm and Mayor Julian Castro plans to take a vote by 2 pm. The NDO measure is expected to pass 8-3 or 7-4.
Testimony this morning was mostly a redux of last night, with the opponents looking a bit more glum. Generally, I don’t think the blue shirts helped their cause a lot by threatening to unseat anyone who votes for the ordinance or by the bizarre and at times blatantly homophobic ramblings of several of that side’s speakers.
Several speakers told the Council that gay people do not suffer any discrimination.
“This [ordinance] is for something that doesn’t exist,” said Pete Ortega. “There is no history of discrimination against the gay, lesbian community.” He went to explain that LGBT folks won’t be discriminated against as long as they don’t act gay.
“I cannot detect homosexuals,” he said. “Unless they make it a point to identify themselves through their dress, I cannot tell. They can go through society undetectable which means they do not have to be discriminated. They can blend in.”
Another man, Patrick Von Dohlen, indulged in some good old-fashioned gay shaming. “God forgives, but nature doesn’t,” he warned, after briefly citing the much-maligned UT-Austin Regnerus study. Von Dohlen then gave an anatomical lesson involving anuses, penises and “toxic waste.”
It was instructive that in this final hour—after all the talk of sexual predators in the restroom and other red herrings—that so many opposed to the ordinance laid their cards on the table.
“I love the person but I hate the sin,” said a third man. “Homosexuality is a sin, it’s a filthy lifestyle.”
Ted Cruz, Greg Abbott, Dan Patrick, Donna Campbell, Barry Smitherman and many other high-ranking GOP elected officials have registered their opposition to the non-discrimination ordinance.
ORIGINAL STORY: Last night, the San Antonio City Council chamber was a house divided between red and blue as hundreds lined up for and against a proposed non-discrimination ordinance.
Opponents of the measure—which would add sexual orientation, gender identity and veteran status to the city’s list of groups protected from discrimination—wore blue and sat on the right. They carried bibles and claimed the ordinance would stifle free speech and persecute Christians. On the other side of the chamber, proponents wore red and urged the City Council, led by Mayor Julian Castro, to stand up for equality and the rights of the LGBT community. This being San Antonio, both sides sounded themes of family, Christian charity and pleaded the case for veterans. With more than 700 signed up to speak, citizen testimony lasted until 1 a.m. City Council reconvenes at 9 a.m. and the measure is expected to pass later today.
The religious right groups opposing the non-discrimination ordinance have picked an odd fight. San Antonio is proposing updates to its ordinance that would bring it in line with every other major city in Texas—Austin, Dallas, Fort Worth, Houston and El Paso—and some 180 cities around the nation. Some states, not Texas of course, have laws prohibiting discrimination on the basis of sexual orientation and gender identity in the areas of housing, public accommodations and the like. Constitutional and other legal challenges to such laws have long ago been exhausted. The author of the proposed changes, San Antonio City Councilman Diego Bernal, has repeatedly pointed out that he’s doing little more than adding sexual orientation, gender identity and veteran status to race, color, sex, religion, national origin, age and disability.
But opponents insist that it’s they—Christians who oppose homosexuality—who will be discriminated against. They’ve cloaked their position in the language of human rights and free speech. One of their groups is called the San Antonio Human Rights Coalition.
Last night, the blue shirts quoted Scripture, warned of God’s wrath, compared the ordinance to Nazism and slavery, and railed against what one speaker, Pastor Charles Flowers, called the “homosexual, lesbian and gender-confused community.”
“[The ordinance] seeks to legitimatize behavior that God calls an abomination,” one man told the Council. “It discriminates against God’s people. Thou shall not lie with mankind as womankind.”
Jon Kaplan of San Antonio warned that he could imagine the Council “charging and convicting [Councilwoman Elisa Chan] to quash her point of view.” (Chan was caught on tape calling gay people “disgusting.”)
Many intimated that God would punish the city if the ordinance passes. “History clearly shows us that any culture that turns away from God will fall into decline and it will be cut off from God’s blessings,” said Jay Braymer. “This ordinance would bring condemnation on the city of San Antonio. Ultimately you’ll have to answer to God for how you vote tomorrow.”
Kelli Farris, wearing red, summed up the feeling on her side of the room when she said, “If anyone made the case for why this ordinance is needed every time you speak you’ve made that case.”
One of the points of contention has been which side can lay claim to the civil rights movement. Flowers, who preaches “Holy Ghost healthcare” at his San Antonio church, complained last night that the “homosexual, lesbian and gender-confused community” is seeking “to piggyback on the civil rights movement.” Sexual orientation, unlike race, is a choice and a perversion at that, he said. (Of course, one’s personal faith cannot be compelled and is therefore a choice, but is nonetheless covered by the local non-discrimination ordinance.)
But Nettie Hinton, a 74-year-old woman who was at the March on Washington in 1963, told me that Flowers “clearly has a warped view of what civil rights means.”
“This is about civil rights and human rights,” she said. “It’s not a choice. It is how God has created people, just as I was born black and I have not chosen to be black. God creates people and he does not make mistakes.”
Check back here or follow me on Twitter (@forrest4trees) for updates from today’s City Council vote.
Clockwise from top-left: Texas Agriculture Commissioner Todd Staples, Texas Land Commissioner Jerry Patterson, Lt. Gov. David Dewhurst, and Sen. Dan Patrick.
You can be forgiven if you haven’t been following the nascent race for lieutenant governor. The only entrants so far are four Republicans—all white, all conservative, all male—and the only people sampling these different flavors of vanilla are political insiders with a taste for right-wing buffoonery.
But it’s time to tune in, dear reader. Come now, let us join Dan, David, Jerry and Todd as they give life to what Freud called the “narcissism of small differences.” Marvel as they claw at each other to decide who’s next in line in an unbroken succession of white men in the state’s most powerful elected office. Look a little closer, and you’ll detect some differences among the men that, while seemingly small, could mean big differences in governing styles.
I think the race will come down to a runoff between Houston state Sen. Dan Patrick and incumbent Lt. Gov. David Dewhurst—and that Dewhurst will learn, again, that GOP grassroots activists can spot a faker.
But first let’s meet the candidates, in ascending order of likelihood to win:
The long shot is Todd Staples, Texas Agriculture Commissioner. If Mitt Romney was the first clip-art candidate, Staples is surely the first bobblehead candidate. His chiseled but weirdly disproportionate visage would prove a challenge for sidewalk caricaturists. He’s already caricature. In 2006, the then state senator was easily elected ag commissioner. Since then, he’s been trying to get an increasingly urban and suburban state to notice him by hollering about narco-terrorists lurking among the Rio Grande Valley’s rutabagas.
Second, we have Jerry Patterson, Texas Land Commissioner. Patterson has assets the rest of the pack seem to lack: iconoclasm and a sense of humor. In a 2008 interview, he was asked whether wind turbines posed a threat to birds. Wind farms in the Gulf of Mexico, he allowed, “would be the first line of defense against avian flu.” I like Jerry Patterson, even if he makes a habit of referring to the Civil War as the “War of Northern Aggression.” Jerry’s problem is that he’s a little too single-issue-focused (guns, guns, guns) and too open-minded on immigration. He goes his own way and that may be too much for the GOP base to handle.
Third, we have David Henry Dewhurst, self-described “Defender of the Preborn.” If Dewhurst weren’t super rich, is there a chance he’d be lite guv? He isn’t a skilled politician. Insincere, distant, bumbling, awkward with the hoi polloi. He spent $8 million to become land commissioner in 1998. Watching Dewhurst pander to the far right since his loss to Ted Cruz in the 2012 U.S. Senate race has been painful. Even in ramrodding a sweeping anti-abortion bill through the Legislature this summer, Dewhurst managed to bungle it. He dragged things almost literally to the last minute, affording Wendy Davis and a gallery of rowdy protesters the opportunity to filibuster the bill and launch a movement.
And so that’s how we come to Sen. Dan Patrick, perhaps the favorite to win the lieutenant governorship. Patrick, who was born Daniel Goeb in Baltimore, Maryland, is a familiar American type: the snake-oil salesman who’s come to believe his own sales job. Where Dewhurst is unsure, Patrick possesses the certainty of a zealot. He’s an amalgam of the drive-time pablum of right-wing talk radio, the radical but platitudinous theology of the exurban mega-church, and the blinkered orthodoxy of the tea party. He gives political speeches in church, religious sermons in the Legislature, and a medley of both on his Houston AM radio station.
“There is no such thing as separation of church and state,” he told a Baptist church in Conroe in late June, just a few days after Wendy Davis’ filibuster.
A year earlier, he’d told the same congregation, “When I vote—and I’ve cast 13,000 votes in three sessions—the lobbyist I listen to more than any is Jesus Christ.”
Jesus tells him to ban abortion. Jesus tells him that private school vouchers are the “new civil rights movement.” Jesus probably even gives him marching orders on redistricting, tort reform and the boundaries of that new municipal utility district in Cypress-Fairbanks.
Dan Patrick as lieutenant governor is a frightening thought. You could say goodbye to the two-thirds rule, which requires a two-thirds vote to debate a bill and encourages compromise and comity in the Senate. Imagine the anti-abortion bill but without all the drama—many times over. All that stands in the way is David, Jerry and Todd.
A major decision came down in the arcane, but important world of Texas water law last week—opening the door to more lawsuits against local groundwater boards for regulating water use across the state.
In Edwards Aquifer Authority vs. Bragg Pecan Farm, the Texas Fourth Court of Appeals ruled on Wednesday that the Edwards Aquifer Authority owes landowners money for “taking” their groundwater by limiting pumping.
Groundwater regulators and environmental groups have long worried that such “takings” claims could imperil the state’s complicated and patchwork system of managing aquifers, many of which are increasingly stressed by drought and booming demand. Bragg is the first such “takings” case in Texas—and thus is being closely scrutinized by water interests across the state.
“What makes this case so important and potentially scary, certainly from the standpoint of the survival of the Edwards Aquifer Authority and therefore the survival of all the people who depend on that water, is that this is the first benchmark,” said Amy Hardberger, a professor at St. Mary’s University School of Law in San Antonio. Another environmental law professor wrote that it was a “deeply flawed and harmful decision.”
However, Russell Johnson, an Austin attorney who represents landowners, says the case simply establishes a balance. “It clarifies that the government’s good reasons for regulation don’t trump the property rights of landowners who have made those investment-backed expectations,” he said.
Although he shrugs off the notion that Bragg could make it impossible to sensibly regulate groundwater, he argues that groundwater districts will have to evolve.
“I believe most of the groundwater conservation districts in Texas want to preserve the status quo and that’s going to be hard to do and simultaneously respect groundwater rights. They’re just going to have to adjust to the fact that they can’t say no, they can’t just say this resource is already stressed .”
JoLynn and Glenn Bragg sued the Edwards Aquifer Authority after it denied them the full amount of water they claimed to need to irrigate two pecan orchards in Medina County, west of San Antonio. The couple argued that the allocated amount was insufficient for mature pecan trees, diminishing their crop and economically wrecking their livelihood.
In May 2010, a district judge ruled in favor of the Braggs, writing in his decision that the couple’s “life plan has been undermined, and their investment severely devalued.” He calculated their loss—based largely on the market price of Edwards Aquifer water—at $867,000. Both the Edwards Aquifer Authority and the Braggs appealed the decision. The appellate court, while upholding the “takings” claim, decided the compensation should be calculated in a different way.
“We conclude the ‘property’ actually taken is the unlimited use of water to irrigate a commercial-grade pecan orchard, and that property’ should be valued with reference to the value of the commercial-grade pecan orchards immediately before and immediately after” the permits to pump were issued. That amount is almost certain to be less than the trial court awarded. And you can imagine the inventive arguments each side will come up with to calculate such an award.
The appellate court decision comes on the heels of a landmark Texas Supreme Court ruling last year. In that case—Edwards Aquifer Authority vs. Day—the Supreme Court leaned heavily on oil and gas law to define for the first time the precise nature of groundwater ownership in Texas. The Supreme Court held that the landowner has an absolute vested property right to groundwater in place, just like oil and gas. The court also ruled that “landowners do have a constitutionally compensable interest in groundwater.” In other words, landowners could make a case that groundwater districts could owe them money when they limited or denied permits to pump.
Bragg was the first instance in which the Day decision was applied. All three attorneys I spoke to agreed that the Bragg decision, if it stands, is likely to open the door to more lawsuits. Johnson said takings claims will be most ripe in areas where groundwater districts are imposing pumping limits. He points to the Panhandle in particular, where groundwater managers are trying to slow the depletion rate of the dwindling Ogallala Aquifer.
Greg Ellis, an attorney and formal general manager for the Edwards Aquifer Authority, argues that the Bragg decision “completes a Catch-22″ by perversely opening the door to lawsuits from landowners who end up being punished for conserving their water. Landowner Jane and landowner Bill live next to each other over a stressed aquifer. Landowner Jane chooses to leave her groundwater alone for future generations. Landowner Bill, rationally assuming that he’d better get his before the whole thing drains away, pumps like crazy to water a corn crop or livestock or to fill a tank. The local groundwater district, trying to avoid a takings claim in the wake of Bragg, has very lax rules and allows Bill to proceed. But given the “secret, occult, and concealed” nature of groundwater, Bill ends up draining the water beneath Jane’s land too. In such a scenario, Ellis argues, Jane herself would have a takings claim.
Johnson says he “doesn’t think much” of Ellis’ argument because the grandaddy of Texas water principles—the Rule of Capture, aka May the Biggest Pump Win—protects against just such a scenario. “Under the Rule of Capture, you have no protection whatsoever, none, zero. So how can a district that’s attempted to apply some protection be held responsible for not preventing a, quote, taking when the landowner had no right to protect that in the first place?”
(If you’re confused about Rule of Capture, allow Daniel Day-Lewis to explain:)
Both fascinating and tendentious, these arabesque legal arguments may ultimately succumb to a more fundamental problem: Namely, Texas is in a deepening water crisis. The court largely skirted this issue, though it acknowledged that the Bragg farms are in a “semi-arid” part of “drought-ridden Texas.”
What good is a property right or carefully-calibrated regulation when the resource is gone? Should the government really have to pay people for not taking an action that, taken by others similarly-situated, would destroy a resource? Robin Kundis Craig, a law prof at the University of Utah, puts it aptly:
[T]he Texas Court of Appeals both has attempted to elevate historical water rights over new ecological realities and created a major legal impediment for any government entity trying to rationally address changing–especially declining–water resources. Endangered species or not, government regulation or not, overpumping the Edwards Aquifer and increasing droughts in Texas will eventually destroy the value of all private property claims to water (and maybe the value of all private property, period) in many parts of Texas. Instead of encouraging the Texas Legislature and the EAA to deal rationally with these new realities–including the reality that there just isn’t enough water for everyone to do everything they want for the rest of their lives–the Texas courts have effectively forced the EAA to assume all costs of attempting to ameliorate the shortage.
Should the State of Texas or EAA callously let the Edwards Aquifer go dry? I’d like to argue “no”–but I don’t think it should have to pay landowners who rush headlong into that disastrous result, either. Constitutional “takings” clauses need to accommodate changing ecological realities and the tragedy of the commons, or they will just make those tragedies worse.
Sens. Rodney Ellis (D-Houston), Jose Rodriguez (D-El Paso) and Sylvia Garcia (D-Houston).
Environment Texas just released its biennial legislative scorecard, with the usual results: Democrats scored relatively well (some with perfect scores), most Republicans not so much and some GOP-ers struggled to stay in the double digits.
Environment Texas scored lawmakers on 17 key votes—eight in the Senate and nine in the House—involving a range of environmental legislation from requiring frackers to get a local water permit to boosting incentives for solar energy projects.
In the Senate, three senators—all Democrats—earned a perfect score: Sens. Rodney Ellis (D-Houston), Jose Rodriguez (D-El Paso) and Sylvia Garcia (D-Houston).
In the House, twenty reps voted for major environmental bills, according to Environment Texas, 100 percent of the time:
Alma Allen (D-Houston)
Senfronia Thompson (D-Houston)
Hubert Vo (D-Houston)
Ron Reynolds (D-Houston)
The lowest-scoring Democrats in the Senate were John Whitmire (D-Houston) and Chuy Hinojosa (D-McAllen), each scoring 63 percent. The two had an identical voting record on the eight Senate votes that Environment Texas scored. They cast ‘yes’ votes on three bills that would’ve, in Environment Texas’ words, “eliminated funding for home weatherization,” “tied [the] hands of environmental regulators” and “limited rights of citizens to contest [uranium] mining permits.”
The lowest-scoring Democrat in the House was Rep. Tracy King, one of the few white Democrats left representing a largely rural district.
The competition for least green in the Legislature was an all-Republican affair. In the Senate, the extremely conservative incoming freshmen did not disappoint. Sens. Kelly Hancock (R-North Richland Hills) and Donna Campbell (R-New Braunfels) each scored 25 percent.
In the House, straight-shootin’gun-slinger and freshman Rep. Jonathan Stickland (R-Bedford) scored a whopping 13 percent. But he had stiff competition. Sixteen other GOP representatives voted against for the environment, according to Environment Texas’ rubric, just 22 percent of the time.