Climate Change Science: Trial Courts And Regulations

Overlooked in the District of Columbia U.S. Court of Appeals decision, dated June 26, 2012, in Coalition for Responsible Regulation, Inc. v. EPA, is the court’s discussion of the climate change science relied upon by EPA. The decision unanimously upholds EPA’s determination that greenhouse gases, such as carbon dioxide, endanger public health and likely have been responsible for global warming over the past half century. The coal industry brought suit against EPA arguing that it had overstepped its jurisdiction under the Clean Air Act and acted without having an appropriate scientific basis for its actions. (Interestingly, several of the utilities among the Petitioner members had earlier argued the opposite during the Supreme Court argument in AEP v. Connecticut, where they sought dismissal on the ground that the EPA had the authority to regulate greenhouse gases under the Clean Air Act.)

The three judge panel ruled that EPA properly relied upon “major assessments” addressing greenhouse gases and climate change from three sources: (1) the Intergovernmental Panel on Climate Change (“IPCC”); (2) the U.S. Global Change Research Program (“USGCRP”); and (3) the National Resource Council (“NRC”). According to the EPA’s Endangerment Finding published at 74 Fed. Reg. at 66,510-11, these peer-reviewed assessments synthesized thousands of individual studies on various aspects of greenhouse gases and climate change and drew “overarching conclusions” about the state of science in this field.

The industry cried “Foul!”, asserting that EPA had improperly “delegated” its judgment to these three organizations by relying on their assessments of climate change science rather than EPA making its own assessment. In rejecting this argument as “little more than a semantic trick,” the court held that:

“EPA simply did here what it and other decisionmakers 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.” (Emphasis added)

EPA’s reliance upon IPCC, USGCRP and NRC assessments in reaching its Endangerment Assessment, and the court’s endorsement of EPA’s methodology in doing so, makes the determinations and findings of these organizations all the more important in the regulatory sphere. Because these groups make their assessments on the basis of their review and analysis of hundreds of scientific studies, reports and articles, the question arises how these organizations made the final determinations upon which EPA has relied. For example, what role, if any, does politics and organizational in-fighting affect the finished product? IPCC publishes a comprehensive set of “Principles and Procedures,” which is designed to establish comprehensiveness, objectivity, openness and transparency as guiding principles of IPCC work. For its part, IPCC clearly appreciates how important its work has become on the world climate change stage.

But it is not clear how the findings of IPCC and other climate change organizations will be addressed in the courtroom in a non-regulatory civil proceeding. Will it be enough for an expert witness in climate change litigation to merely rely, as did EPA, on what the D.C. Circuit Court of Appeals characterized as “overarching conclusions” about the state of climate change science?
These organizations’ assessments provide data and information on, among other things, the amount of greenhouse gases being emitted by human activities, their continued accumulation in the atmosphere, the resulting observed changes to Earth’s energy balance, temperature and climate at global and regional levels, “and other climate-sensitive sectors and systems of the human and natural environment.”

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Unlike the regulatory arena, civil litigation in our nation’s federal courts requires that experts provide detailed bases for their opinion. It should not be enough that a climate change expert rely upon a general organizational finding. Rather, the expert must be required to look at the specific peer reviewed scientific works that form the basis of his, rather than an organization’s, opinion. Although the court determined that EPA’s reliance did not constitute a “delegation” of authority, we would expect that  trial court  would not permit a scientific expert to merely rely on the conclusions of these organizations, no matter how scientifically compelling they appear to be..

Don’t Blame Cows: Manipulation Of Climate Change Data

CNN reported not too long ago that Frank Mitloehner, an air quality specialist from the University of California at Davis, accused the authors of a 2006 report published by the U.N. Food and Agriculture Organization (“FAO”), titled “Livestock’s Long Shadow”, of skewing scientific data to grossly exaggerate the impact of livestock farming on climate change and, at the same time, underplaying the impact of climate change caused by transport.

As the debate over the legitimacy of certain climate change science continues to swirl in both scientific and academic as well as policy making circles, it is vitally important to avoid politicization of the science.  Politics may be unavoidable when policymakers’ decisions on climate change will have a likely impact over time of tens of billions, but every effort should be made to keep the science on the straight and narrow.  That is why this article and the underlying FAO report is disturbing. The 2006 report claims that meat production is responsible for 18 percent of greenhouse gas emissions  world-wide (greater than impact of transport). The report goes on to claim that livestock farming occupies a whooping 30 percent of the world’s surface and that its environmental impact will double by 2050 unless drastic action is taken now.  Who knew?  Frank Mitloehner contends the U.N. reached its conclusions for the livestock sector by adding up emissions from farm to table, including the gases produced by growing animal feed; animals’ digestive emissions; and processing meat and milk into foods.

The U.N. also downplayed climate change caused by transport by failing to add up emissions from well head to steering wheel, and only considered  emissions from fossil fuels burned while driving. In fact, leading authorities agree raising animals for food accounts for about 3 percent of all greenhouse gas emissions in the U.S., while transportation creates an estimated 26 percent.  Mitloehner’s clarification must have brought about sighs of relief from U.S. beef associations, who were no doubt concerned about their member companies being tagged with responsibility for Hurricane Katrina’s damage in Louisiana and Mississippi and the loss of sea ice in Kivaluna in the Northwest!  Meanwhile, environmentalists and campaigners including Paul McCartney, used the U.N.’s findings to urge consumers to eat less meat and save the planet with slogan:  “Less meat = less heat.”  Sadly, once an icon in children’s literature, Old McDonald’s Farm, is no longer the innocent “EIEIO” of toddler rhyme, but a potential malefactor with inadequate insurance coverage to boot.

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Climate Change Science in the Courtroom

Two electrifying Circuit Court of Appeals cases handed down in 2009 may set the stage for climate change litigation in the years to come. The decisions are Connecticut v. American Electric Power Co., et al., 582 F.3d 309 (2d Cir. 2009) and Comer v. Murphy Oil USA, et al., 585 F.3d 855 (5th Cir. 2009). In both cases, the Court of Appeals reversed the decision of the federal district court and held that the plaintiffs had pleaded adequate facts to permit their cases to proceed. Therefore, unless the United States Supreme Court weighs in and reverses this growing momentum in climate change litigation, it is likely that federal trial courts will be grappling with all of the issues surrounding climate change liability, not least of which will be the science. Did defendant oil and coal producers, chemical companies and coal-using companies bring down the wrath of Hurricane Katrina on the Mississippi plaintiffs? What scientific evidence will be marshaled by plaintiffs to support their allegations? These are the questions that the Comer court will have to grapple with. The very idea that a corporate entity could be found legally responsible for unleashing the catastrophic power of a hurricane would have been unthinkable even ten years ago. Leaving aside epochal issues of public policy, justiciability and theology, the science surrounding climate change litigation will figure prominently in these lawsuits.

An excellent article on scientific issues in climate change litigation, Issues of Proof in Climate Change Litigation, by Francis J. Menton, a partner at Willkie Farr & Gallagher, appeared in The New York Law Journal (12/29/09).  Mr. Menton’s discourse, commencing with the issuance in 2001 of the Third Assessment Report (“TAR”) from the United Nations Intergovernmental Panel on Climate Change (“IPCC”) and bringing us up-to-date, reads like a Dan Brown conspiracy thriller, replete with conflicting claims and allegations of scientific fraud, data distortion, revelations by whistle blowers, and spoliation of evidence. On the one hand, the climate change plaintiffs allege that there exists a “clear scientific consensus that global warming has begun and that most of the current global warming is caused by emissions of greenhouse gases, primarily carbon dioxide from fossil fuel combustion.” On the other hand, there are those who deny that there is any consensus and that the entire hypothesis of human-caused or “anthropogenic” global warming is an “urban myth.” Undoubtedly, there will be Daubert–driven debates on both general and specific causation in the global warming litigation.

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