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The Washington Times Talks Greenhouse Law

Posted on 24 March 2011 by grypo

On Thursday March 17, the Washington Times published an editorial opinion with the title, "Ending the global-warming argument".  While the information in the article lacks any factual content that would end the argument on climate change, the purpose was to call attention to a legal battle that, in effect, would give a group of seven states "the right to sue out-of-state corporations as 'public nuisances' for their crime of emitting a harmless, colorless gas that’s essential for life on this planet." The editorial staff member is referring to carbon dioxide.

According to the complaint, carbon-dioxide emissions from various power plants around the country “increase smog and heat-related mortality”; “raise sea levels, thereby inundating low-lying property such as much of New York City’s infrastructure”; “lower water levels in the Great Lakes, harming commercial shipping and hydropower production in New York”; and “make it impossible for several species of hardwood trees to survive in Vermont, Connecticut, New York and Rhode Island.” It goes on to claim “even one degree of global warming will double the number of heat-related deaths in New York City, to 700 per year.”

The next paragraph of the Washington Times opinion starts, "Never mind that none of these calamities have actually happened...".  So let us look at what the legal brief actually says:

They [plaintiffs] alleged that carbon dioxide emissions from defendants’ power plants contribute to global warming, causing a wide range of current and threatened injuries to plaintiffs and their citizens. Among other things, plaintiffs alleged that the emissions and resulting global warming would:

Then, the complaint goes on to list the possible injuries.  Notice how the use of 'current and threatened' and 'would', with my emphasis, changes the context of the complaint.  It has a future context never mentioned by the editorial, and in fact, is misrepresented to make the argument easier to refute.  This is a case of classic logical fallacy called a strawman argument. The article has already failed its argumentative purpose at this point.

Going further, let’s look closely at the seven states' complaints to see if the truth-telling machine, known as science, supports their claims.  

1. [I]ncrease smog and heat-related mortality in Los Angeles and New York City

 From the IPCC AR4: WGI Ch 7.4 Reactive Gases and the Climate System

A few GCM studies have examined more specifically the effect of changing climate on regional ozone air quality, assuming constant emissions. Knowlton et al. (2004) use a GCM coupled to a Regional Climate Model (RCM) to investigate the impact of 2050 climate change (compared with 1990) on ozone concentrations in the New York City metropolitan area. They found a significant ozone increase that they translated into a 4.5% increase in ozone-related acute mortality.

2. [C]ontinue to shrink California’s mountain snowpack, which forms the State’s largest source of drinking water and has already been diminished by global warming

From the IPCC AR4: WG1 Ch Snowpack, Snowmelt and River Flow

Hayhoe et al. (2004) produced a standard set of statistically downscaled temperature and precipitation scenarios for California; under both the A1F1 and B1 scenarios, they find overall declines in snowpack.

3. [R]educe crop and livestock yields in Iowa

From the IPCC AR4: WGII Ch 14.4.4 Agriculture, forestry and fisheries

In the Corn and Wheat Belt of the U.S., yields of corn and soybeans from 1982 to 1998 were negatively impacted by warm temperatures, decreasing 17% for each 1°C of warm-temperature anomaly (Lobell and Asner, 2003). 

4. [L]ower water levels in the Great Lakes, harming commercial shipping and hydropower production in New York

From the IPCC AR4: WGII CH 14.4 Key future impacts and vulnerabilities

Lower water levels in the Great Lakes are likely to influence many sectors, with multi-dimensional, interacting impacts (Figure 14.2) (high confidence). Many, but not all, assessments project lower net basin supplies and water levels for the Great Lakes – St. Lawrence Basin (Mortsch et al., 2000; Quinn and Lofgren, 2000; Lofgren et al., 2002; Croley, 2003). In addition to differences due to climate scenarios, uncertainties include atmosphere-lake interactions (Wetherald and Manabe, 2002; Kutzbach et al., 2005). Adapting infrastructure and dredging to cope with altered water levels would entail a range of costs (Changnon, 1993; Schwartz et al., 2004b). Adaptations sufficient to maintain commercial navigation on the St. Lawrence River could range from minimal adjustments to costly, extensive structural changes (St. Lawrence River-Lake Ontario Plan of Study Team, 1999; D’Arcy et al., 2005). 

5. [M]ake it impossible for several species of hardwood trees to survive in Vermont, Connecticut, New York, and Rhode Island

Molecular indicators of tree migration capacity under rapid climate change Jason McLachlan et al.

Recent models and analyses of paleoecological records suggest that tree populations are capable of rapid migration when climate warms. Fossil pollen is commonly interpreted as suggesting that the range of many temperate tree species expanded at rates of 100–1000 m/yr during the early Holocene. We used chloroplast DNA surveys to show that the geography of postglacial range expansion in two eastern North American tree species differs from that expected from pollen-based reconstructions and from patterns emerging from European molecular studies. Molecular evidence suggests that American beech (Fagus grandifolia) and red maple (Acer rubrum) persisted during the late glaciation as low-density populations, perhaps within 500 km of the Laurentide Ice Sheet. Because populations were closer to modern range limits than previously thought, postglacial migration rates may have been slower than those inferred from fossil pollen. Our estimated rates of ,100 m/yr are consistent with model predictions based on life history and dispersal data, and suggest that past migration rates were substantially slower than the rates that will be needed to track 21st-century warming.  

6. [R]aise sea levels, thereby inundating low-lying property such as much of New York City’s infrastructure


Implications of Recent Sea Level Rise Science for Low-elevation Areas in Coastal Cities of the Conterminous U.S.A.  Weiss, J.L et al.

[G]lobal greenhouse gas (GHG) emissions over the 21st century will not only influence SLR in the next ~90 years, but will also commit Earth to several meters of additional SLR over subsequent centuries. In this context of worsening prospects for substantial SLR, we apply a new geospatial dataset to calculate low-elevation areas in coastal cities of the conterminous U.S.A. potentially impacted by SLR in this and following centuries. In total, 20 municipalities with populations greater than 300,000 and 160 municipalities with populations between 50,000 and 300,000 have land area with elevations at or below 6 m and connectivity to the sea, as based on the 1 arc-second National Elevation Dataset. On average, approximately 9% of the area in these coastal municipalities lies at or below 1 m. This figure rises to 36% when considering area at or below 6 m.  *Weiss SkS article

Time table:

Copenhagen Diagnosis 2009 Global Sea Level

  • Satellite measurements show sea-level is rising at 3.4 millimeters per year since these records began in 1993. This is 80% faster than the best estimate of the IPCC Third Assessment Report for the same time period.
  • Accounting for ice-sheet mass loss, sea-level rise until 2100 is likely to be at least twice as large as that presented by IPCC AR4, with an upper limit of ~2m based on new ice-sheet understanding

As for the next statement in the Washington Times editorial, "there would be no link to the companies under legal assault", I will point to part of Professor Scott Mandia's letter that he sent to the Washington Times in response:

Your March 17th editorial titled “Ending the global-warming argument” has confused science with politics. There is no informed debate that humans are overloading the air with too much carbon and that this carbon is causing the planet to dramatically warm. There is no informed debate that increasing carbon will cause this warming to continue.  (For perspective, the amount of CO2 that is added to the air every day by human activities, primarily from burning fossil fuels, is equal to the amount of oil spilled by 8,000 Gulf Oil Spills per day.)  Virtually every publishing scientist and all international science academies agree on this.

Let's hope the Washington Times decides to print the Professor's letter.

Further reading:

Wikipedia article on Public Nuisance Laws

Clean Air Act, Title I - Air Pollution Prevention and Control

Atmospheric Trust Litigation, Mary Christina Wood

CO2 EPA endangerment finding

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Comments 1 to 29:

  1. "Harmless and colorless gas"... I can't believe they still use this kind of strawman. Readers should know better at this point.
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  2. Alexandre how can you say it is not harmless and colorless? People in the navy stay on submarines where the co2 concentrations are in the thousands of parts per million. Also, I think no matter what side of the debate you are on, we can all agree the lawsuits the 7 states want to open are frivolous. How is it fair that California wants to sue out of state companies when we all know they are going to ask for a bailout at some point. They want to sue a company for damages that they cannot prove and at the same time ask people to send money to their state because they ran it into the ground. Here is a scenario. California wants to sue company X and they claim that company X's emissions somehow contributed to a flood or a hurricane. How can the prosecution prove that company X's emissions directly impacted the storm? How can they directly trace the emitted co2 molecules from the company to the storm?
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  3. Jay: Tell the 20 million people in Pakistan who's homes were flooded by AGW last summer that CO2 is harmless. Tell Tuvalu that they can all move to your home town when their country is gone. Will you provide them with new homes when they arrive? These comapnies know their product causes harm to others and they continue to deliberately cause that harm. They deserve to be sued until they pay for the harm they cause. This is the same argument that big tobacco uses: you have to proove which individual cigarette killed this person or we are not at fault.
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  4. Cadbury, please look up the definition of the term "strawman argument". And please stop saying things like "we can all agree". I'm not sure I've agreed with a single thing you've said in any of your comments to date.
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  5. Jay Cadbury, carbon dioxide is instantly lethal to humans at concentrations of about 10%, toxic (i.e. eventually fatal) at approximately half that, and harmful to the environment on a global scale at trace levels currently being emitted. So, no... it is not "harmless". It is colorless, but doesn't seem particularly relevant. As to the suits... I don't know how they'll play out. The nearest precedent I can think of would be suits of companies emitting sulfur dioxide and other chemicals causing acid rain. In that case legislation limiting emissions of such things was passed and the companies settled (i.e. paid up). The EPA is working on similar limits on CO2 under existing clean air legislation and while the GOP may be able to block it in the House it seems unlikely they can in the Senate. However, that largely depends on the next election. So it may well come down to politics rather than law or science.
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  6. Cadbury... The harm related to atmospheric concentrations of CO2 has nothing to do with the toxicology of CO2. It has to do with the effects on the climate system and the harm that can come from that. The EPA went to extreme lengths to detail out how and why CO2 is harmful. They published an extensive and detailed document. You might want to check it out before commenting further.
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    Moderator Response: [grypo] Thanks, I added the EPA endangerment finding to the reading list.
  7. Cadbury #2 The other responders are certainly more qualified than me, but as they said the problem with CO2 is not that it is toxic (below some 5~10% concentration, at least) or that it has a color (!!). It's its optical properties that cause IR radiation to be trapped. So the argument of the Washington Times is just a strawman. About your last paragraph: that's the problem with diffuse externalities. It's hard to pinpoint a culprit, even though everyone is to some extent. Higher CO2 concentrations have important climatic consequences, and some large emitters have played a larger role than others to change this concentration, regardless of which molecule obstructed which photon. BTW, I'm very interested in the outcome of lawsuits against such emitters.
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  8. Well I'm not trying to start an argument. Please let me know if anyone sees the similarity to this problem though. I think abruptly enforcing co2 emission laws is similar to the immigration issue. Some lawmakers want to outlaw illegal immigration and round up non citizens. It isn't plausible because we've have not enforced the existing law and we can't suddenly turn around and say "okay now we're going to enforce this law and your out." I think it is similar to telling a company "Lower your emissions or else." Many might argue that companies should have seen this coming, as it has been tied up in legal issues for several years but I still think it is unreasonable.
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  9. Cadbury #8 That's a good point about the law enforcement. So, assuming you're ok with the physics: knowing that CO2 amissions cause important externalities, how would you suggest this problem to be treated legally?
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  10. Jay... I don't think anyone carries any illusions that we're going to turn off the CO2 spigot over night. We all readily admit that pretty much our entire modern society is built on burning fossil fuels of one sort or another. But, we absolutely must find alternative means to produce energy quickly and efficiently. What's playing out here with states suing over CO2 production is a tactic. It would take years to litigate such cases. Think of how complex asbestos and tobacco were. Those cases were decades in the making. But they were both effective. Ultimately this should be an issue that is taken up in Congress and some form of carbon tax systems put into place. That is the right way to do it. One way or another this has to happen otherwise the costs we pass down to later generations will be unconscionable and potentially insurmountable.
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  11. That's similar to what I was getting at with the EPA. To date there have not been any CO2 emissions limits enshrined in law. That's a strike against these suits... though suits against the tobacco industry showed that if the company in question knew that their product was harmful, but released it anyway and claimed that it was safe then they may still be liable. Like I said, I'm not sure how it will come out from a legal perspective... and politics folds into that because the EPA is trying to introduce the sort of limits that haven't existed in the past, which would then make the legal basis for such suits rock solid going forward... but that'll only happen if politics doesn't stop the EPA from acting. All of which only applies to the U.S.
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  12. I have heard it claimed by skeptics that without CO2 in the atmosphere life on earth as we know it would cease. Is that true? I looked in your list of skeptical arguments but could not find anything that seemed to be relevant.
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  13. graphicconeption, with 0% atmospheric CO2 most green plants would die. Without those plants most herbivores would starve. Without those herbivores most carnivores and omnivores would starve. Yet life (even human life) would survive in drastically reduced numbers. Of course, on the other hand, with 15% atmospheric CO2 most animals on the planet would collapse bleeding from every orifice and die within a matter of seconds. Most plants would suffocate and die within a matter of days. And the climate impacts would be unimaginable... possibly sufficient to wipe out all life. That said, neither of those scenarios is remotely possible... making the skeptic argument just a red herring.
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  14. Earth, CO2 free? But the argument isn't really relevant to anything discussed for reducing emissions. The idea is to find suitable CO2 levels that stabilize the climate to which humans are all adapted to.
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  15. graphicconception... That would be true but it's a bit of a red herring. If there is too much CO2 in the atmosphere life also can't exist on Earth. If you would like to watch a really great lecture you should try this one by Richard Alley called The Biggest Control Knob. And definitely keep cruising the articles here on SkS. There's a lot of material.
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  16. I don't know if you in Skeptical Science, being largely down in Australia, know about The Washington Times. They are nowhere near as good and reputable a paper as the New York Times and the Washington Post. Rather, they were founded by the 'Moonies' (supporters of 'Reverend' Sun Myung Moon), to support his peculiar world view -- which includes some very conservative ideas: so a lot of neocon propaganda has found its way into print through the Washington Times. This poor and biased coverage of AGW issues is only one example of this trend.
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  17. Caveat: I am not a lawyer. In common law jurisdictions much of tort law is founded on the principle of a duty of care. In brief, this means that we all owe to each other a duty of care in our general activities. A breach of the duty of care could range from driving a vehicle with a known brakes defect to dumping waste materials in a river. Anybody occupying land has a specific duty in UK law to see that no harmful thing escapes from that land. The principle is of very general application - it includes humans as 'things'. The fact that CO2 is invisible would - I suggest - count in favor of any plaintiff. Industrial emitters of CO2 know daily that they are emitting this gas in large quantities. The average 'legal neighbor' is not aware of the presence and harmful effects of the gas. In the UK there are principles of civil law which lay a greater burden of damages on a misfeasor who by virtue of expertise knows - or should know - more than the average person about the thing complained of. Persistent statements by emitters of CO2 and their agents that CO2 is harmless to humans, good for plants, a natural gas, etc. could be used against them in a court of common law jurisprudence as evidence of fraudulent misstatement. A fraudulent misstatement need not be completely untrue. It need only be shown to have been made in an attempt to persuade the target audience of that statement that the thing complained of is not a cause for concern. Sources: Donoghue v Stevenson [1932] UKHL 100 (26 May 1932)
    Home Office v Dorset Yacht Co Ltd [1970] UKHL 2 (06 May 1970)
    The sources cited are from the UK case law. Of course, courts in other jurisdictions are not bound by House of Lords decisions - but they are entitled to take the arguments and findings into consideration as guidance. Caveat venditor. Again: I am not a lawyer.
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  18. Let's say that a privately-owned dam breaks and floods a town. Would the residents be able to sue the dam's owner for flooding the town with "a harmless, colorless liquid that’s essential for life on this planet"?
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  19. What are they implying by "colorless"? Is that attribute supposed to make the greenhouse gas better in some way? Sounds racist (yeah I know I'm being silly but so is the article).
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  20. Caerbannog #18 That was a catchy metaphore. I may use that one!
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  21. Of course, what a lot of people seem to forget is that CO2 isn't the *only* gas you get when you burn coal. Even after years of "cleaning" up emissions, coal-fired power stations are still major sources of Cadmium, Mercury & Radon-not to mention harmful particulate emissions that are believed responsible for asthma & lung disease. So even if the CO2 emitted could be defined as a "colourless, odourless gas, that's essential for life on this plant", you definitely can't say the same for all the other crap that comes with it!
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  22. Here's a question. Sceptics often tout the fact that CO2 is a "colourless, odourless gas" as 'evidence' that it can't do any harm - a 'see no evil' kind of thing. We also know that CO2 is *not* colourless in the IR spectrum. Has anyone taken pics in IR to show CO2 emissions from, e.g. power stations, or industry? I imagine by careful selection of the frequency & temperature sensitivity, you could see the plumes from industry against the background glow of the atmosphere.
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    Moderator Response:

    [DB] Carbon Tracker has maps, movie animations and even their own Youtube channel.

    Not at the fine-grained resolution you want, though.

  23. This colorless "argument" goes in to same category as "There's only 1 in 10,000 parts of CO2 in air, it's ridiculous to say that could affect anything." But I think you need only couple of PPMs gobolt to tint glass. And how many drops of food color you needed to turn a gallon of water into wine? Any other examples in visible spectrum?
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  24. @ 23 Food colouring turns water into wine? Man, just think of the super low budget undergraduate drinking opportunities... But seriously, I get your point - my personal favourite in a typically pointless net battle was as follows, 'if you think 400 ppm can't block light, go and stir the best part of a cup of ink into your bath water next time you wash' (mine holds a 450 litres (roughly) - 400 ppm is 180mls.
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  25. Not visible, but carbon monoxide is also a 'naturally occurring odorless colorless gas'... which is lethal to humans at about 670 ppm. Yet is also a nutrient (i.e. "life giving") for some types of bacteria.
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  26. Carbon monoxide, doh! Of course I learned as a little boy, that "when the blue flames have run out, you can close the damper". Never realized the lethal amount really is so tiny. In crowded room you could easily say: "If there were as much carbon monoxide in this room, as there's CO2, we would all be dead in less than an hour". Or on sidewalk in big city.
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  27. The Washington Times has also published an editorial, on 23 March, which is filled with delightfully inflammatory statements. Here is a sample paragraph: "In 2007, the Supreme Court ruled that carbon dioxide - the harmless gas essential to all life on this planet - is somehow a “pollutant” and the EPA is within its authority to regulate it under the Clean Air Act. The decision swept away any vestige of restraint on the agency and resulted in a cascade of global-warming fear-mongering that has ginned up anti- industrial regulations that are crippling America’s ability to power civilization." Boy! as an American I'm proud that the CEI is worried about my nation's ability to "power civilization"! In an earlier paragraph, the editorial implies that the EPA's proposed course of action is based on very poor economic science: "When EPA clean-air regulations become fully operative, they will send shock waves through the American economy. The agency’s claim of long-term benefits totaling $1.3 trillion is inflated, according to a report released March 17 by the Competitive Enterprise Institute. The purported financial gain is overstated due to “accounting tricks and gimmicks” and doesn’t consider capital expenditures factories will pay to comply with the rules." While Vaugh's analysis of the economic benefits or costs of the EPA's plans may be accurate (I have a doctorate in English, so I cannot comment authoritatively on the analysis), it is quite clear from reading through several of the CEI's reports and articles, and the site's "about CEI" page, that CEI is fundamentally opposed to government regulation of economic activities in just about any way, shape, or form, and many of the claims I saw in these other publications are clearly inaccurate. Thus I want to pose a question: Has anyone taken a more detailed look at the CEI website? It seems to me it might be worth the effort to debunk one or more of the articles on the environment put out by this organization, especially since they are probably read by many GOP lawmakers or their aides. CEI has this to say about its publications: "CEI publishes high-quality original research on a variety of issues and in several formats. Web Memo: CEI’s policy brief series designed for easy understanding of policy issues. OnPoint: CEI’s series of short policy white papers, which distill current issues in an easy-to-read format. Issue Analysis: CEI’s series of full-length policy monographs, which look at issues from a broad perspective."
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  28. Here's another one for you-Ozone. In small quantities, at the top of the atmosphere, Ozone is vital for keeping out harmful levels of UV radiation-thus allowing life on Earth to flourish. Yet closer to the surface of the planet, it is an extremely harmful pollutant that can damage plants & the human respiratory tract, & contributes to photochemical smog. I'm sure there are loads of other examples of chemicals which-in the right place & quantities-are vital to us but which, in the wrong place or quantities, are extremely harmful.
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  29. I wasn't sure where to put this, but since it is another example of legal maneuvering around global warming I thought this thread might be appropriate; Tennessee teaching law Basically, Tennessee is on the verge of passing a law which prohibits schools from disciplining teachers who 'examine the strengths and weaknesses' of 'controversial' issues like global warming and evolution. Obviously, this is meant to allow the usual propaganda nonsense to be introduced into school classrooms, but I have to wonder if it wouldn't also be an opportunity. Imagine a teacher in Tennessee walking into class after this is passed (if it is) and calmly going through a list of global warming 'skeptic' arguments and showing how they have been fabricated, misrepresented, et cetera. Said teacher would then be protected from any reprisals by the very law meant to spread this nonsense... they were merely pointing out the weaknesses of one of the sides in the 'controversy', namely that the arguments it advances are provably false. If the matter then ends up in a court of law there are firmly established standards (e.g. Frye, Daubert, Federal Rules of Evidence) which require that scientific testimony be limited to well established information... by criteria that would exclude virtually the entirety of global warming 'skepticism'. It seems to me that, as with various examples of demonstrably false 'skeptic' testimony to Congress, there has been a tendency to 'let things slide'. Rather we should pursue something more like the course taken by the 7 states in the suit discussed in the article above. Take the fight to the skeptics... in the classroom and the courtroom. Because the simple fact is that they don't have a leg to stand on once you take away the reams of misinformation in the 'denialsphere'. Get it on the legal record that 'global warming skepticism' is as fictional a 'science' as intelligent design and it becomes harder to spread this nonsense and easier to stomp it out.
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