Tuesday, September 26, 2006

NOAA Reports Recent Cooling Of Upper Ocean

Sep 21: The average temperature of the water near the top of the Earth's oceans has cooled significantly since 2003. The new research suggests that global warming trends are not always steady in their effects on ocean temperatures. Although the average temperature of the upper oceans has cooled significantly since 2003, the researchers say the decline is a fraction of the total ocean warming seen over the previous 48 years. Josh Willis, a co-author of the study at NASA's Jet Propulsion Laboratory, Pasadena, CA said, "This research suggests global warming isn't always steady but happens with occasional 'speed bumps.'" This cooling is probably natural climate variability. The oceans today are still warmer than they were during the 1980s, and most scientists expect the oceans will eventually continue to warm in response to human-induced climate change."

Researchers found that the average temperature of the upper ocean rose by 0.16 degrees Fahrenheit from 1993 to 2003, and then fell 0.055 degrees Fahrenheit from 2003 to 2005. The recent decrease is a dip equal to about one-fifth of the heat gained by the ocean between 1955 and 2003. John Lyman, at the NOAA Pacific Marine Environmental Laboratory in Seattle, WA, and said the recent cooling is not unprecedented. "While global ocean temperatures have generally increased over the past 50 years, there have also been substantial decadal decreases. Other studies have shown that a similar rapid cooling took place from 1980 to 1983. But overall, the long-term trend is warming."

Willis indicated the findings have significant implications for global sea-level rise saying, "Average sea level goes up partly due to warming and thermal expansion of the oceans and partly due to runoff from melting glaciers and ice sheets. The recent cooling episode suggests that sea level should have actually decreased in the past two years. Despite this, sea level has continued to rise. This may mean that sea level rise has recently shifted from being mostly caused by warming to being dominated by melting. This idea is consistent with recent estimates of ice-mass loss in Antarctica and accelerating ice-mass loss on Greenland."

Access a lengthy release from NOAA and links to additional information (
click here). Access a 15-page technical paper on the study (click here). [*Climate]

USA v. Gerke Excavating, Inc. Interprets Rapanos Decision

Sep 22: In the U.S. Court of Appeals, Seventh Circuit (WI, IL, IN), Case No. 04-3941. This is the second U.S. appeals court case to interpret the U.S. Supreme Court 4-4-1 decision in Rapanos v. United States, 126 S.Ct. 2208 (2006) [See links below]. In a brief, but important 5-page decision, the Appeals Court reconsiders its previous decision in this case as a result of the Rapanos decision.

This suit charges that the defendant, Gerke Excavating, violated the Clean Water Act by discharging pollutants into “navigable waters” from “point sources” without having obtained the permit from the Corps of Engineers that is required if the pollutant consists of dredge or fill material. The district judge granted summary judgment for the government and imposed a civil penalty. The Seventh Circuit Appeals Court affirmed that decision on June 21, 2005. 412 F.3d 804 (7th Cir. 2005).

Gerke filed a petition for certiorari with the Supreme Court and the High Court granted the petition, 126 S. Ct. 2964 (2006), and remanded the case to the Appeals Court for further consideration in light of its June 19, 2006, decision Rapanos v. United States, where the Court reversed two judgments by the Sixth Circuit upholding Federal authority over wetlands [See WIMS 6/19/06], as the Seventh Circuit had in the instant case.

On it reconsideration the Seventh Circuit said, "There was, however, no majority opinion in Rapanos. Four Justices, in an opinion supporting reversal, wanted to limit federal authority over 'navigable waters' ... Justice Kennedy concurred in the judgment to reverse but not in the plurality opinion. The four dissenting Justices took a much broader view of federal authority; Justice Kennedy criticized them as well as criticizing the plurality. When a majority of the Supreme Court agrees only on the outcome of a case and not on the ground for that outcome, lower-court judges are to follow the narrowest ground to which a majority of the Justices would have assented if forced to choose. Marks v. United States, 430 U.S. 188, 193 (1977). In Rapanos, that is Justice Kennedy’s ground...

"Thus, any conclusion that Justice Kennedy reaches in favor of federal authority over wetlands in a future case will command the support of five Justices (himself plus the four dissenters), and in most cases in which he concludes that there is no federal authority he will command five votes (himself plus the four Justices in the Rapanos plurality), the exception being a case in which he would vote against federal authority only to be outvoted 8-to-1 (the four dissenting Justices plus the members of the Rapanos plurality) because there was a slight surface hydrological connection. The plurality’s insistence that the issue of federal authority be governed by strict rules will on occasion align the Justices in the plurality with the Rapanos dissenters when the balancing approach of Justice Kennedy favors the landowner. But that will be a rare case, so as a practical matter the Kennedy concurrence is the least common denominator (always, when his view favors federal authority)."

In its final determination on the instant case, the Appeals Court concluded, "Justice Kennedy’s proposed standard, which we conclude must govern the further stages of this litigation, requires factfinding not yet undertaken by the district court. We therefore remand the case to that court for such further proceedings as may be necessary to apply the standard."

Access the complete opinion (
click here). Access the previous, June 21, 2005, decision of the Seventh Circuit in this case (click here). Access the WIMS-eNewsUSA Blog post on the Northern California River Watch v. City of Healdsburg, August 10, 2006, decision of the Ninth Circuit with links to that opinion and additional information (click here). Access the complete Supreme Court Rapanos opinion and syllabus (click here). [*Water]