Inherit the wind: when science denial meets the law
For many readers the news that the US Federal Court backed the Environmental Agency (EPA) is old news – well a week old, which is a long time in the blogging and Twitterverse.
But I still wished to note the importance of the decision: critically the reasoning of the three judges in ruling the EPA regulate “heat trapping” gases such as CO2.
As noted in an article in last weeks New York Times, the judges unanimously dismissed the “science is not settled” argument:
The judges unanimously dismissed arguments from industry that the science of global warming was not well supported and that the agency had based its judgment on unreliable studies. “This is how science works,” they wrote. “The E.P.A. is not required to reprove the existence of the atom every time it approaches a scientific question.”
By way of background, a motley collection of fourteen states (including Texas), the notoriously anti-science US Chamber of Commerce and Massey Energy Co. challenged the EPAs move to regulate greenhouse gases (GHGs). They were initially defeated in 2007, but they appealed that decision – last week’s decision saw them defeated once again.
In terms of legal precedent it quite significant, and not just for the US.
Those hoping to mount legal challenges to the regulation GHGs in their jurisdiction should take note: courts and judges sharing a simular common law system (the US and Commonwealth countries) around the world will examine this decision. They will more than likely note that courts reasoning and follow it as a precedent.
Thus the implications for public policy are indeed profound.
There are some rumblings about challenging this decision in the US Supreme Court (SCOTUS). However the soundness of the reasoning employed these three Federal Court judges makes a successful challenge unlikely.
So all those litigation happy, climate deniers hoping that their views will somehow vindicated by having their day in court should take note. When science denial and the law collide, science denial tends to loose.
Indeed, I argued such back in 2010 when I advised litigation happy deniers they should be careful for what they wish for.
The 82 page reading is worth delving into, notably for what the three judges have to say about just how robust and “settled” the science is. I would highly recommend reading pages 27-32 of the decision because some of the most commonly used arguments used by deniers are either demolished, or dismissed.
Court dismisses the “The science isn’t settled” argument
The petitioners argued that the EPA was wrong to rely on bodies such as the IPCC, and that they had somehow “delegated” its judgement to others:
EPA simply did here what it and other decision makers often must do to make a science-based judgment: it sought out and reviewed existing scientific evidence to determine whether a particular finding was warranted. It makes no difference that much of the scientific evidence in large part consisted of “syntheses” of individual studies and research. Even individual studies and research papers often synthesize past work in an area and then build upon it. This is how science works. EPA is not required to re-prove the existence of the atom every time it approaches a scientific question.
“This is how science works”.
It is a wonderful quote and worth shouting from the rooftops, because clearly those challenging the legitimacy of climate science have no idea of a) how science works and b) what real science actually looks like…
(Hint there is a difference between a blog post on Watts up with that? and a thousands of peer-reviewed papers).
The judge also found the line of reasoning was deceptive used by the petitioners:
State and Industry Petitioners assert that EPA improperly “delegated” its judgment to the IPCC, USGCRP, and NRC by relying on these assessments of climate-change science. See U.S. Telecom Ass’n v. FCC, 359 F.3d 554, 566 (D.C. Cir. 2004). This argument is little more than a semantic trick.
The court clearly saw what most of us know: the arguments employed by climate sceptics are usually verbal slight of hands.
When an otherwise sober and conservative judge uses a loaded term such as “semantic tricks” it is the legal equivalent of them ripping you a new one.
Dismissing the “It’s all alarmist claptrap!” argument: climate change is real and it is a risk
The EPA had issued an endangerment finding in December 2009 that GHGs such as CO2 presented a danger to public wellbeing. The court found the EPA was correct in its assessment based on the scientific evidence:
The body of scientific evidence marshalled by EPA in support of the Endangerment Finding is substantial. EPA’s scientific evidence of record included support for the proposition that greenhouse gases trap heat on earth that would otherwise dissipate into space; that this “greenhouse effect” warms the climate; that human activity is contributing to increased atmospheric levels of greenhouse gases; and that the climate system is warming.
Relying again upon substantial scientific evidence, EPA determined that anthropogenically induced climate change threatens both public health and public welfare. It found that extreme weather events, changes in air quality, increases in food- and water-borne pathogens, and increases in temperatures are likely to have adverse health effects. Id. at 66,497–98. The record also supports EPA’s conclusion that climate change endangers human welfare by creating risk to food production and agriculture, forestry, energy, infrastructure, ecosystems, and wildlife.
Substantial evidence further supported EPA’s conclusion that the warming resulting from the greenhouse gas emissions could be expected to create risks to water resources and in general to coastal areas as a result of expected increase in sea level. Id. at 66,498. Finally, EPA determined from substantial evidence that motor-vehicle emissions of greenhouse gases contribute to climate change and thus to the endangerment of public health and welfare.
In other words the judge’s decision affirms what the science has been telling us about the risks of climate change for the past two decades.
Dismissing the “Climate change is a religion!” argument: court finds the EPA Considered evidence in a rational manner
The denial movement works very hard to position themselves as cool-headed rationalists standing up the hordes of angry, irrational environmentalists and tofu-munching scientists (wait, isn’t it the other way around?).
Again the court find in favour of both the science and the EPA careful consideration of the evidence:
When EPA evaluates scientific evidence in its bailiwick, we ask only that it take the scientific record into account “in a rational manner.” Am. Petroleum Inst. v. Costle, 665 F.2d 1176, 1187 (D.C. Cir. 1981). Industry Petitioners have not shown that EPA failed to do so here.
I wonder who in this whole facile debate is employing reason and rationality?
And just who is – metaphorically – curled up foetus like, under the bed covers with tears streaming down their face, muttering ad nausuem: “It’s not real! It’s not real!”
I’ll let you, the reader, make that call.
Three pillars of denial: tested and found to be wanting
Three pillars of deniers world view have been tested in a court of law:
The science isn’t settled?
Yes it is.
No it isn’t.
Climate change is a “belief” and not science?
Of course, this won’t stop the deniers continuing their campaign of deceit. However, this decision both affirms the soundness of the science and highlights the deluded nature of the denier’s claims.
Science Now summarises the case and reactions – great title “Climate science gets a hug”!
Business Week comments describe in more details some of the legal arguments.
The New York Times has further commentary.
Read the full decision of the court here.