Oil Pipelines and the Rule of Law

I saw quite a lot of cheering that Obama’s administration halted construction of the Dakota Access Pipeline. And I’ve heard some moaning that a Trump administration could resume construction. Rather than take a pro-pipeline or anti-pipeline stance, with this post I want to state clearly that I don’t want the president to be able to unilaterally halt or green-light an oil pipeline. Granting such powers to the president eviscerates the rule of law.

The "rule of law" means that our legal system is basically predictable and the rules are known ahead of time. That’s not to say it’s always fair. Something might look unjust as an individual act but still make sense as a rule. The point is we all know the rules ahead of time, the government must adhere strictly to procedures if it takes action against someone, and these procedures are well specified before any action takes place. The government cannot simply respond to populist outrage by nixing a lawful construction project. Such decisions should not depend on how sympathetic one of the parties to a conflict appears to outside observers. Native Americans are certainly a sympathetic group of victims (or “victims”, if you think their grievances aren’t well founded). We should actively guard against the temptation to side with a victim that tugs at our heartstrings, just as we should guard against all cognitive biases. The temptation to side with the most sympathetic party to a conflict must be overcome if we are to have a reasonably secure and predictable rule of law.

My best reading of the Dakota Access Pipeline construction is something like the following: There are legal procedures for building a pipeline, and Dakota Access, LLC followed these procedures. Read the Wikipedia page on the pipeline, especially the “History” section. It looks like they contacted all the right government agencies in each of the states it did construction in. It secured voluntary easements on an extremely high proportion of private properties it was building across (97% of North Dakota land, 93% of South Dakota land, 92% of Illinois land, and 82% of Iowa land). The use of eminent domain to secure easements from the hold-outs does bother me, but the notion that a few hold-outs could halt construction of a pipeline that everybody else wants bother me a bit more. “Eminent domain” used in this way doesn’t actually transfer ownership of property; it merely grants an easement so that construction can take place. Presumably farmers who had eminent domain used against them can continue to plant on the ground above the pipeline after construction is complete, for example. Anyway, there were various procedural and legal challenges to the pipeline, but the company ultimately got lawful permission to build.

If you’re reading this as a pro-pipeline polemic, you’re missing the point. I’m not arguing that the Dakota Access Pipeline *should* or *should not* be built. I’m not doing the cost-benefit analysis and rendering a pro- or anti-pipeline verdict. I’m merely arguing that, whatever process is in place for lawfully constructing a pipeline, that process should be followed. It should not be changed in an ad hoc manner by government executives because they sympathize with some victim group or because they favor the oil industry. Perhaps you think it should be easier to bring environmental grievances against a construction project. Or perhaps you think that Indian nations should get greater consideration, a “thumb-on-the-scale”, compared to the normal process. Maybe you think the use of eminent domain to acquire easements is a gross violation of property rights (I doubt anyone on the left will make a stand on the principle of property rights, but I’d be pleased to be proven wrong here). Maybe you think we should have an explicit “no new pipelines” policy. In the other direction, perhaps you think new pipelines are safer than old pipelines and shipment by rail, so perhaps you think we should actually fast-track new pipelines. Or maybe you think the environmental and administrative regulations are absurdly burdensome and should be relaxed. There are many potential arguments about what the optimal pipeline construction policy *should* be. That’s all beside the point. Whatever you imagine as your ideal system of “pipeline law”, whatever you think the process *ought to be* for building a pipeline, whether you think that process should be much more difficult or much less difficult, we aren’t living in a world where you designed those laws and procedures. I think the question is, “Given the laws and regulations and procedures as they exist today, does Dakota Access, LLC have a right to build a pipeline?” My somewhat casual reading of the facts is that they followed the existing procedure and bent over backwards to please everybody. I have not really read anything suggesting they didn’t do their due diligence, despite being deluged daily with anti-pipeline missives.

If you can't understand how anyone could possibly take the "pro-pipeline" stance, please see this reddit conversation and this court document of a legal decision against the Standing Rock Sioux Tribe. From the legal decision: “The Tribe fears that construction of the pipeline, which runs within half a mile of its reservation in North and South Dakota, will destroy sites of cultural and historical significance. It has now filed a Motion for Preliminary Injunction, asserting principally that the Corps flouted its duty to engage in tribal consultations under the National Historic Preservation Act (NHPA) and that irreparable harm will ensue. After digging through a substantial record on an expedited basis, the Court cannot concur. It concludes that the Corps has likely complied with the NHPA and that the Tribe has not shown it will suffer injury that would be prevented by any injunction the Court could issue. The Motion will thus be denied.” I’m curious what my opinion would be if I had dug “through a substantial record” as this court has done. I’m curious if all the anti-pipeline hawks on my Facebook feed would change their minds if they had substantially more information than they currently do. My fear is that many of them wouldn’t. Maybe this is uncharitable, but I get the feeling that people are instinctively choosing the more emotionally compelling side of this issue. Or maybe it's just that the noisiest idiots show up most prominently on my Facebook feed and most people are actually pretty reasonable. I really hope it's the latter.

Let me make one further clarification. By "rule of law," I'm not making the idiotic claim that we should always enforce all the laws on the books, no matter how despotic. Sometimes the rule of law actually runs counter to this notion of blindly enforcing statutes. Sometimes chest-thumping law-and-order types demand that we must zealously enforce our immigration laws (or drug laws or whatever), because "We are a nation of laws." I'm making a very different sort of argument. The rule of law means that the law is predictable and sensible. Strictly enforcing all statutes runs counter to this principle. The person using illegal drugs in the privacy of his own home, or the adult immigrant who was brought to this country as a small child, or the motorist speeding at five over the speed limit, expects some discretionary deference from the legal system. A strict enforcement of statutes would contradict this entirely reasonable expectation. 

Update on Drug Poisoning Data for 2015

The CDC just recently released the 2015 mortality data, so I thought it would be good to do an update of some previous posts that used the data through 2014. (See here and here and here for example; several other posts of mine from 2016 include this data.)

There were 52,623 drug poisoning deaths in 2015, which is up from 47,196 in 2014. But these are raw totals and aren’t very meaningful. They include accidental deaths, suicides, “undetermined intent”, and murder, and the CDC has separate codes for each of these. I don’t think it’s quite fair to add in suicides if we’re talking about “the drug problem,” because accidentally overdosing is very different from willfully ending your own life. These are different social problems, and the only reason to include suicides in the total is that you’re trying to inflate the number to make it look scarier. If we’re just looking at accidental drug poisonings, there were 44,335 in 2015 (up from 38,841 in 2014). (Accidental deaths are codes X40-X44, suicides are codes X60-X64, “undetermined intent” are codes Y10-Y14, and murder is X85, in the ICD10 coding system. Murdering someone with drugs is apparently rare; there are only 94 cases of it in 2015.)

I suspect you will see a lot of news stories starting with “There were 52,600 drug overdoses in 2015…” If you see such a story, scan it to see if it gives a breakdown by “accidental vs intentional.” If it doesn’t, that’s a big warning sign that the author didn’t do their homework. Or perhaps the author is trying to sell you a narrative using inflated and irrelevant numbers. Read such pieces carefully. If the piece starts with the 52k figure then shifts to talking about the “opioid epidemic,” the author has done a bait-and-switch. The relevant figure there is more like 15,000 to 19,000, depending on exactly how you count them.

Here are the notable things that happened between 2014 and 2015. Heroin deaths climbed from 10,754 deaths in 2014 to 13,069 deaths in 2015, taking the top spot. Other Opioids rose a little, from 12,657 to 12,927 deaths. Cocaine, which had been declining from 2006 to 2013, rose over the last two years (at 5495 deaths in 2013, 5992 deaths in 2014, and 6945 deaths in 2015). Other synthetic narcotics (which includes fentanyl and other very powerful synthetic opioids that are often a thousand times as potent as morphine) rose from 5695 deaths in 2014 to 9681 in 2015. This category shows the most dramatic increase. “Psychostimulants with abuse potential”, a category that includes methamphetamine and prescription analogs to it, has been increasing steadily over the past few years; it rose from 5114 deaths in 2014 to 6082 in 2015.

Here are the mortalities for each year for the most deadly substances, expressed as deaths per 100k population:

The chart above is from the CDC’s WONDER database, but it’s a little misleading. Don’t think you can add together the deaths from each substance to get a total, because there is significant overlap between categories. Single-substance overdoses are actually pretty rare. A typical heroin overdose actually involves two or three substances, so such a death might show up in, say, the heroin, cocaine, and benzodiazepine line. Such a death would be triple-counted if you made the mistake of summing the death totals for each substance. Also, some of these deaths aren’t even marked as “drug overdoses.” They are heart attacks or something else, but someone happened to write down “heroin” or “other opioids” on the death certificate. This is somewhat rare; usually if a drug is written down on the death certificate, the death is coded as a drug overdose. But this explains the discrepancy between the numbers in the above paragraph and the ones I will give below. Also, I’m excluding suicides, murder, and “undetermined intent” in the charts and figures below. The chart below is an update of a chart from an earlier post, illustrating the rarity of single-substance overdoses. I found some of these surprising when I first saw them (Click to enlarge, I realize the individual cells are small. Some rows are hidden, so the Total row might not match the sum of the column exactly in some instances):

To explore the details of what kinds of substances are found in combination, you need to dig into the raw data files here. There is a record for each death that happened in the United States in 2015, which lists all the contributing causes of that death. The CDC’s WONDER database is great, but it doesn’t allow you to determine what drugs *in combination* are contributing to these poisoning deaths. To see what kinds of substances are typically found in combination on a death certificate, see here:

(To read the cross table, go across by row and say, “This percent of [row label] poisonings also involves the substance [column label].” Thus you get 100% across the diagonal.)

So, for example, benzodiazepines are extremely likely to be found in conjunction with opioids. Alcohol is frequently found in conjunction with other drugs. You get the sense from looking at the cross table that many of these people would still be alive if they hadn’t been mixing drugs.

These drug interactions are a big deal, because a big increase in mortality due to heroin can cause an increase in mortality due to cocaine, even if the cocaine problem is declining. You can’t just look at the graph above and say, “The prescription painkiller problem (mostly the ‘other opioids’ curve) is getting worse, because it went up.” Looking at the cross table, for those deaths with “heroin” stamped on the death certificate, about 20% involve cocaine, ~15% benzodiazepines, and ~11% “other opioids.” So a rise of 3,000 heroin deaths per year (roughly what we saw from2014 to 2015) will result in 600 additional “cocaine” deaths, 450 “benzodiazepines” deaths, and 330 “other opioids” deaths. Likewise, the big spike in “Other synthetic narcotics” deaths is going to drive up the deaths attributed to other substances. Roughly 20% of these deaths involve other opioids, 18% involve benzodiazepines, and 17% involve cocaine.  So the roughly 4,000 additional “other synthetic narcotics” deaths will give us 800 additional “other opioids” deaths and about 700 additional benzodiazepines and cocaine deaths. This could be true even though there may be no additional users or perhaps even fewer users of these other drugs. The problem is that a heroin habit is so potentially deadly, and heroin users tend to use these other substances in combination. Anyone looking at the raw totals by substance will be misled if they aren’t thinking carefully about the poly-drug use problem.

Be cautious interpreting the big jump in “other synthetic narcotics.” I suspect that the year-to-year changes aren’t as big as the chart above implies, but rather the reporting is getting more accurate. There have been numerous media reports of multiple people overdosing at the same time in the same city (even the same neighborhood) because of a bad batch of “heroin.” Well, it’s not really heroin but actually something like fentanyl or something even stronger. The first responders don’t always know what drug is actually causing the drug overdose. The lab testing required to figure out the exact substance sometimes takes weeks (citation needed, but I’m speaking from memory based on an NPR story I heard months ago). I don’t expect that death certificates are always updated after the test results come back. I think the big jump in this "other synthetic narcotics" category shows a growing awareness that this is what’s really happening in these “heroin overdose” cases, most likely combined with a real increase in the number of overdoses. So there's a real trend with a reporting trend on top of it.

Some will surely draw the wrong lesson from this most recent year’s worth of CDC data. Some will say, ”The problem is bigger than ever, so we need to hammer it even harder!” In reality, the rising heroin and fentanyl overdoses are proving that drug prohibition isn’t working. Or in other words, prohibition is having *exactly* the effect that its critics predict. Dealers are attracted to drugs that are easiest to conceal, so they are opting for super-concentrated opioids that are sometimes thousands of times stronger than heroin. You can collapse a multi-ton shipment of heroin down to something the size of a briefcase. But when it reaches the user, it may not have been diluted properly. This problem is causing a lot of unnecessary overdoses. Ending prohibition would pretty much fix the problem, because strict quality control on the drug supply would be possible under a legalization regime. Buyers could ensure that they are getting pharmaceutical grade heroin that hasn't been spiked with a lethal dose of fentanyl, and producers would subject themselves to outside audits, the results of which they could show to their customers. Producers would subject themselves to the threat of lawsuits if they mislabeled something. Such quality controls simply aren't possible under a prohibition regime.

One final note here. The CDC's method for counting "prescription opioid overdoses" used to be to count all deaths involving methadone, other opioids, and other synthetic narcotics, which up until 2013 might have been a reasonable methodology. No longer. Unless the spike in other synthetic narcotics deaths is driven entirely by a recent dramatic spike in fentanyl prescriptions, we should suspect that the heroin and other synthetic narcotics categories are bleeding into each other. Be very careful if you're reading anything that says that 2015 saw a "new maximum" in opioid deaths. They are either using an old and now dubious methodology for counting prescription opioids or they are surreptitiously adding prescription opioids to heroin without explaining that these are two different problems. 

Legal Status is *NOT* the Limiting Factor in Drug Use

Some people are skeptical of drug legalization. They worry that legalizing certain substances will open up the flood gates and new addicts will pour through. I'll argue below that these fears are grossly exaggerated, if not totally unfounded. The legal status of a drug is almost never the limiting factor on the decision to use it. There is almost always some other cost or consideration that looms far larger than the cost of the legal penalties imposed on its use.

If you go to erowid.org, you can find testimonials on drug experiences. For example, this one:

So: I traveled through many familiar spaces. Presently I came to a space where Buddha-like Fire Gods created whole realities simply by making gestures. Their gestures, against the fabric-context-space of what seemed to be this proto-reality, caused ripples and indentations that emanated outward forever, each becoming, not a new universe, but a whole new reality. The space I was in was not reality. It struck me as 'backstage' -- the place where the props and sets and costumes out of which realities are constructed are kept.

I was seated, lotus-style, among an infinite number of these Fire Gods, arranged in stacked concentric rings that extended and radiated in all directions without end. There is no way to describe the sheer vastness of this space. It had an ancient-beyond-ancient and noble-beyond-noble feeling to it, and I felt awed and honored to be seated there. I decided to try my hand at creating realities. I followed the general pattern I'd watched others execute. Doing so was astounding. The simple movement of my hand brought forth heat like that of the core of the Sun, yet the heat did not burn me. Each movement of my hand violently shattered the space around it, and the aftershocks from my Act swayed the other seated Fire Gods, but did not disturb their somber equanimity. When at length I brought my hand to rest upon my knee, the Creative Act was finished, and I took up the noble and dignified silence of my fellows; a silence which was interrupted from time to time only by the Divine explosion of an occasional Act of Creation by one of us. I continued to meditate there for countless Ages. Eventually I rose higher than this realm, passing through a space of pure, infinite Consciousness, and then through endless Space-time itself, and finally into the limitless Nothing.

The drug that induced this trip is a dangerous street drug called DXM. Thank goodness it’s illegal, or people would be doing it all the time. A trip like the one described above is simply too enticing for anyone to resist. Just kidding! It’s not dangerous or illegal. It’s the active ingredient in cough syrup. Anyone can go down to the pharmacy and get enough to trip balls. Given that this was the premise of a South Park episode, I think it’s fairly common knowledge that you can get really high on cough syrup. But few do. It’s really not all that dangerous either. As I mentioned in this post, there were just under 300 deaths “involving” cough syrup in 2014 and almost all of them involved other drugs, too. It’s not clear that DXM killed any of these people. It’s cheap. It’s legal. It’s safe even in fairly large quantities. (See some of the testimonials on erowid.org for the enormous quantities consumed by some users.) So why aren’t people just using it all the time?

Because the cost of a DXM trip is something like “a day out of my life that I won’t ever get back.” That’s fine if you’re unemployed or marginally employed and nobody will miss you for a day and a half while you’re tripping and recovering. But if you have a place to be every day, plus kids to pick up after work, plus the obligation to watch those same kids on the weekend when you’re *not* at work, it would be pretty impossible to indulge such a habit. Now, some people *do* indulge the habit anyway and screw up their lives, and this is certainly terrible. But most people foresee such terrible consequences and decide against a DXM habit. It’s not even that they “decide against” it; the thought is almost ruled out of the question before any actual thinking happens. In fact, forget about a DXM habit; doing it even once would be hard to pull off for someone with normal daily obligations. The real opportunity cost of DXM isn't just the day you spend incapacitated; it's the meaningful life and career you could have had if you weren't regularly incapacitating yourself for 24+ hours.

This concept needs to be injected into every conversation on drug prohibition. The legal status of a drug is not the limiting factor when people are deciding whether or not to use it. Making a drug illegal can raise the cost, but only relative to other costs that are (in almost all cases) much, much greater. There is usually some other cost that overwhelms the black market mark-up and the threat of legal sanctions that comes with drug prohibition.

With DXM, the bulk of the cost is the opportunity cost of losing a day of your life, which may entail losing a job or alienating family if you’re like most normal people. Most of the cost of a cigarette comes from the health consequences, not the literal dollar price tag when you purchase a pack . Similar for alcohol. Heroin users appear to face overdose death rates of 1.5 to 2.5% or so, an enormous risk that no reasonable person tolerates from any routine activity. (One economist’s reaction to this figure when I showed it to him was: “It blew me away.”) For people who are willing to pay such costs to indulge a drug habit, the legal status is no deterrent at all. 

You can be much more rigorous about this argument if you use some math and some formal theory. You can show cool results, like that it's impossible for prohibition to make the users better off if demand is inelastic. Or that a punitive tax is strictly superior to prohibition. Or a bunch of other stuff in the same vein. It's important to get the details right. But it's far more important to keep in mind this underlying intuition that prohibition does little to change the overall cost faced by a drug user. The pathetically small risk of arrest and the black market markup are trivial compared to other costs, so it's a little absurd to think these things have a major impact on drug use.