Brief of Amicus Curiae by Climate Scientists
September 15th, 2006Posted by: Roger Pielke, Jr.
A group of climate scientists has submitted an amicus curiae brief to the Supreme Court in support of the petitioners, the State of Massachussetts et al. against the EPA. The lawsuit has to do with the regulation of carbon dioxide by the EPA (details can be found here).
One of the participating climate scientists emailed me and asked that I post their brief and ask for comments here on Prometheus, which we are happy to do. The brief can be found here in PDF.
We’d welcome comments on either the substance of the brief or the advocacy of these scientists. I’ll start things off with some comments after the jump.
I am not a lawyer, nor am I in the business of predicting Supreme Court judgments. But I do have a few more-or-less random and perhaps not-well-thought-through thoughts about the case.
1. In my judgment EPA clearly has the authority to regulate CO2, despite what they have said to the contrary. The decision to regulate anything is at its core a political decision. So it seems that the EPA position that they do not have authority should be overturned.
2. As I understand the CAA the decision to propose regulations is at the judgment of the EPA Administrator, and given that the costs and benefit of CO2 regulation are legitimately contested, I do not see the Supreme Court mandating how exactly the EPA administrator should exercise his/her judgment. In such cases over history major policy decisions like this are more appropriately made by the legislature, and I can imagine the SC following this thinking as well. The most relevant legislative precedent would seem to be the provisions included in the Clean Air Act Amendments of 1977 which added a section for the regulation of ozone depleting chemicals. Presumably, if this provision was not needed, then Congress would not have seen fit to add it. I’d suppose that the SC might want to see similar explicit legislative guidance provided for CO2 before supporting its regulation. But maybe not …
3. Even if the SC does mandate the initiation of a regulatory process I am doubtful that regulations — or meaningful regulations — would ever occur, under the Bush Administration or any other. This is because all federal regulations have to pass cost-benefit test under OMB/OIRA. Under the standard approach to C/B analysis the discount rate used will provide a very high bar for any regulation in which costs are borne today and benefits decades in the future. A second factor is the role of adaptation of these long time scales which according to much of the climate impacts literature in many cases (in the US, at least) has great potential to reduce many of the possible impacts. The regulatory system is not well designed for dealing with problems with a large asymmetry in the timing of costs and benefits, particularly in contexts where there are a diverse and legitimate range of perspectives. In this instance the response to ozone depletion is a very poor precedent. Once substitutes were developed the short-term costs dropped to near zero (and maybe even negative) making regulation a relatively simple action. A more appropriate analogy related to ozone may be methyl bromide – an ozone-depleting chemical used on strawberries – which is not currently regulated because the short-term costs are very high due to the fact that there are (as yet) no viable substitutes.
As far as overt political advocacy by scientists, I certainly am not against it, but it does have consequences for both individuals and for the community. The decision to become a political advocate is not unlike the decision of a medical researcher to take funds from a big company. Lots of people do it, it does have positives, but would we want every medical researcher doing it? Indvidual decisions by scientists have collective consequences. I do think it is a bit disingenuous of a few of the scientists who have publicly stated that they are focused not on advocacy but correcting the scientific record. Lets be clear, taking sides and participating in a court case is not about science; it is about politics.
September 15th, 2006 at 9:02 am
Roger
I concure with you that the EPA has the authority, if they see to it an obligation, to regulate CO2 emission.
As for the lawsuit, I don’t see how a group of scientist and lawyer can win a case where a judge could force a political organism to take action based on a subject that is still contentious and the outcome unknown.
Also, I find strange that James Hansen refused to appear to the congressional hearing just to associate himself to a political action like this one.
Finally, is the EPA interested to defend itself in such a lawsuit? In other words, are they interested to invest thousands of dollars of their budget to defend themselves when the outcome of such a trial could only mean new legislative power awarded to them.
September 15th, 2006 at 10:51 am
If carbon dioxide happens to be re-classified as a pollutant, would the US government be forced by law to retaliate against foreign countries, say China, that do not agree to cap emissions?
September 15th, 2006 at 10:59 am
Thanks, Roger, for posting this. It is unfortunate that you start off the discussion with what will be viewed by some as a personal attack on the scientists involved by suggesting they are being “disingenuous.” As one of those scientists I should quickly correct at least this error.
Roger Pielke wrote: “I do think it is a bit disingenuous of a few of the scientists who have publicly stated that they are focused not on advocacy but correcting the scientific record. Lets be clear, taking sides and participating in a court case is not about science; it is about politics.”
Participating in such a proceeding before the U.S. Supreme Court is obviously an action with political consequences, but it is also an action that is, in fact, “about science,” and it is false to suggest that correcting the scientific record was not the primary reason for many of the participating scientists to join. It may help to understand the particular role that scientific issues have played in this case. Both EPA and the decision by the lower Appeals Court relied, for the aspects of their decisions which turned on science, on a 2001 report by the National Academy of Sciences on Climate Change Science, but both the lower appeals court and the EPA misrepresented the science it contained.
As an occasional reader of this blog, I have noticed that you are a vigorous advocate rigorously correctly representation of the science when it is brought into the policy debate. You are likewise vigilant in your efforts to correct misrepresentations of science when you encounter them, so that those misrepresentations to do not contaminate the policies which emerge. It is in the furtherance of precisely such a goal that the scientists (many of whom were authors of the NAS report which was being misrepresented) joined this brief: to correct the misrepresentation of science and prevent the emergence of policies founded on bad science.
To suggest otherwise is, in a word, disingenuous.
September 15th, 2006 at 11:12 am
Regarding the legal argument pertaining to your points 1 to 3: As I understand it, Massachusetts’ legal argument (i.e. the argument about what the law requires, apart from what you or I or anybody thinks might or might not be good policy) is that:
(1) Congress authorized EPA to regulate air pollutants from vehicles on an as “as-needed” basis, where the law defines “air pollutant” broadly, to include “any physical, chemical, biological, radioactive . . . substance or matter which is emitted into or otherwise enters the ambient air.” EPA’s argument about why this plain language does not include CO2 and other greenhouse gases (and hence, that they do not have the authority to regulate) is too convoluted for a non-lawyer like me to understand. However, it has nothing to do, legally, with whether the decision to regulate is “at its core, a political decision”; it has to do with whether the law gives them the authority or not.
(2) Congress *required* the EPA administrator (the law says that “the Administrator shall”) take an affirmative decision to regulate any air pollutant emission from vehicles “which in his judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare,” where welfare is also explicitly defined to include impacts on “climate” and “weather.” The administrator has some discretion here (he is the one who must judge whether the emissions contribute to pollution which “may reasonably be anticipated to endanger”), but Congress limited his discretion to judging whether that one precise question was answered. The argument is that the law does not give him discretion, for this threshold determination, to weigh broader policy considerations.
(3) Once the threshold determination of endangerment is made, other provisions of the law kick in, and these set forth the criteria for the *content* of the regulations so triggered, and specify additional factors (eg. the weighing of costs and benefits, as you say) for the agency to consider at this subsequent stage.
The outcome of the lawsuit will not likely turn on anything to do with (3), although we can speculate that if EPA is required to go back and do it again, and if they do make an endangerment determination, that the content of such regulations (your point 3) will depend to some extent what presidential administration is doing the regulation-writing. I imagine most would speculate that if it was the current Administration, the regulations would be written to be as weak as possible, but since it is likely (given how these things tend to drag on) to be a subsequent administration that gets this particular hot potato such speculation might not be very relevant.
Regards,
Scott
September 15th, 2006 at 11:34 am
Scott-
Apologies if you interpreted my words as a personal attack. They were not.
I do strongly disagree with your claim that the purpose of your or any other amicus curiae brief is “to correct the misrepresentation of science and prevent the emergence of policies founded on bad science.” Saying this, or even believing it, doesn’t make it so. The purpose of an amicus curiae brief os to advocate for a particular outcome in a legal/political dispute. In this case you and your colleagues are calling for the regulation of carbon dioxide, an issue that goes far beyond “science”. Science just happens to be the battleground on which your expertise allows you to enter the discussion.
Whether or not EPA engaged in cherrypicking, misprepresentation, oversight, bad logic, or what not, you and your colleagues have taken a political position as a participant in the process. I think this is fine. But to say that your role is about the misrepresentation of science does not tell the full story.
Perhaps my choice of “disingenuous” was the wrong term, if it connoted anything personal — perhaps I should have said “misplaced” or something. But please don’t try to convince me about “preventing the emergence of policies founded on bad science.” You are trying to advance the emergence of policies that best advance your values. Science may tell us something about how a particualar course of action might achieve what you (or others) value as outcomes, but such policies are grounded on far more than science, even when scientists are doing the advocacy.
Thanks.
September 15th, 2006 at 12:17 pm
Scott- regarding your #1 (& #2): I’m wondering exactly which section & subsection of which CAA (1970, 1977 or 1990) you’re referring to. Because if you’re talking about Sect. 202(B)(1)(c) of the 1990 amendments (PL 101-549), the use of “as needed” far from clearly gives authority to regulate CO2 in my reading.
thanks
September 15th, 2006 at 12:59 pm
#2
The Supreme Court has already ruled on when it is appropriate for the courts to order an agency to act. Interestingly it was about the clean air act and involved the enviro group NRDC.
The court held that the courts should be cautious about forcing an agency to act because agency action is a policy decision that is best left to the legislature. The test the court developed was to first look at the law the legislature passed and see if the agency’s decision to act (or not to act) would be permitted under the law. If the agency was permitted to act the court would not intervene and the court would not examine if the agency’s decision was good or bad policy.
#3
As far as the Clean Air Act and cost benefit analysis, there was a recent Supreme Court decision that held cost benefit analysis did not apply to the clean air act. If the agency action prevented harm an accounting of cost was not required. I’m not sure how that decision would effect the CO2 case.
September 15th, 2006 at 1:16 pm
Kevin: I am sorry, the “as needed” is not the text of the law, it was my characterization. The legal basis is Clean Air Act Section 202(a)(1), which states:
The Administrator shall by regulation prescribe (and
from time to time revise) in accordance with the
provisions of this section, standards applicable to the
emission of any air pollutant from any class or classes
of new motor vehicles or new motor vehicle engines,
which in his judgment cause, or contribute to, air pollution
which may reasonably be anticipated to endanger public
health or welfare.
I am not the best source for the legalities, which are thoroughly discussed in the petitioner’s brief, at: http://www.communityrights.org/LegalResources/PendingSupremeCourtCases/Mass.asp
In fact, all 14 amicus briefs in support of the petitioner can be found there also.
Best,
Scott
September 15th, 2006 at 5:18 pm
Roger,
My involvement in the Supreme Court brief was not motivated by an intention to influence policy. I was annoyed at how the EPA lawyers had quoted selecively from our NRC Climate Change Science report to create the impression that the uncertainties in our understanding of global warming are so large as to preclude serious consideration of any actions on the EPA’s part. Correcting the public record on this issue is important to me regardless of whether it results in any policy changes.
September 15th, 2006 at 10:24 pm
Hi Mike- Thanks much for weighing in here!
My concerns are much less with the motivation of individual scientitsts than the characterization of the act as being about science and not being political.
Submitting an amicus curiae brief is about as political an act as there is! (Regardless of motivation or intent.)
I have no problem with the action, it is the characterization of the act as not political that I take issue with.
Thanks!
September 16th, 2006 at 7:26 pm
Roger Pielke said, in response to Mike Wallace: “My concerns are … the characterization of the act as being about science and not being political.”
First: Nobody that I am aware of has characterized our filing the brief as “not being political” in some sense. In fact, if you look at my post above, I said it *was* political, and you can rest assured that nobody who is part of this is unaware that we are part of an adversary legal process. I think, Roger, you are fighting a straw man of your own making when you say somebody has claimed it is “not political”.
(of course, “political” has alot of different meanings — American Heritage dictionary has 6 definitions — and you can get alot of mileage if you want to score debate points by playing these definitions off one another.)
Second: Just because it is a political act, does not mean that it is not also about science, and as Mike Wallace’s post makes clear, for some it is probably *primarily* about correcting the science, and certainly for all it was essential that the science presented in the brief be rigorously correct. It is not unheard of (indeed common in my experience) for scientists to have the attitude that we must go where the science leads, without regard to the political implications. This is not a characteristic typically associated with your standard run-of-the-mill partisan political advocate.
To put it another way: the desire to correct the science was necessary and sufficient for this scientist’s brief to be filed. The desire to further the political goal of action on climate change is certainly there for some (you would have to ask the individuals), but such a desire was possibly not necessary (c.f. Wallace) and certainly not sufficient: absent the mischaracterization of science by EPA and the court, this scientist’s brief would not have been filed.
Regards,
Scott
September 17th, 2006 at 8:39 am
Scott-
Thanks much for the continuing dialogue. A few replies.
1. You write, ” Nobody that I am aware of has characterized our filing the brief as “not being political” in some sense.” In a separate thread here your colleage SC Wofsy has written, “We labored hard to ensure that nothing in the brief carried political tone or intent. This brief is about risk . . . It is a scientific judgement, not a political statement, as to whether greenhouse gas emissions pose that kind of risk.”
2. Lets address this another way. Lets say that you and your colleagues are concerned with the public representation of the 2001 NRC report by EPA. You obviously have many outlets to present your views on how it should be interpreted, yet you chose to engage as a participant in a lawsuit.
Why did you not deicde to write an op-ed? Send a letter to Science or Nature? Post you views on the web? Prepared an essay for BAMS? Issued a press release? Etc. etc.
My point is that it streches the bounds of credulity to accept your claim that “the desire to correct the science was necessary and sufficient for this scientist’s brief to be filed”. The _only_ reason to file an amicus brief is to influence a lawsuit. Period. Science is simply the means that you and your colleagues have to attempt to wield that influence.
Again, I have little interest in the personal motivations of the individual scientists, or the act of filing the brief. I am concerned with the representation by three of you here (and several others I’ve seen in the media), that then brief was filed (primarily or whatever) to correct perceptions about science rather than being about trying to influence policy.
Why not just say openly, “We believe that EPA should regulate greenhouse gases and we are weighing in on the side of Massachuseetts in this lawsuit, making the best arguments we can based on our expertise and reputations.”
Hiding political arguments behind “science” or “risk” contributes to the pathological politicization of science. For example, have a look at this dicussion:
Sarewitz, D., 2004. How Science makes environmental controversies worse, ESP, volume 7, pp. 385-403.
http://sciencepolicy.colorado.edu/publications/special/sarewitz_how_science_makes_environmental_controversies_worse.pdf
Thanks.
September 17th, 2006 at 6:16 pm
Hi Roger.
Thanks for initiating this stimulating discussion – you provide a great service to the community, and I enjoy much of what is discussed on this site, and the tone in it is discussed.
I am not a party to the amicus brief, but I am at times involved in activities that you might regard as “being about trying to influence policy” (eg IPCC). But I think of my role in these activities as being about trying to influence HOW policy is determined, rather than determining the policy per se. That is, I do not have a [publicly expressed] view on whether we should mitigate greenhouse gases or not, but I am passionate that those deciding on a mitigation (or non-mitigation) policy should do this on the basis (inter alia) of the best available scientific advice.
[I am serious about not having a publicly-expressed view on the actual policy - not even my long-suffering wife, who knows my political views on just about every other topic under the sun, knows whether I think we should mitigate or not. But she knows I get furious when I see governments making policy decisions on this subject based on poor, biased science].
I dont know all of the parties to the brief, and I dont know any of them well enough to know whether they intended to influence policy, or only influence the way policy is set. But I would have thought that some, at least, were only trying to do the latter. And surely we, as scientists, have a responsibility to try to get policy makers to base these policies on the best available science? I know that some scientists involved in the IPCC are also simply trying to provide governments the best assessment of the science, so that the governments can combine this with other information (economics, values, politics…) to determine the most appropriate policy. If we dont do this, why are we wasting our time doing science?
This role of trying to get policymakers to base their policies on good science might lead us to write op-eds, or be involved in IPCC, or even join an amicus brief, as well as write journal papers. Sure, if we wanted to influence policy then we could also do these things – but doing these things does not, of itself, prove that we are trying to influence policies except in so far as we are trying to ensure that these policies are based on good science. If we dont do these things to attempt to correct matters when policies appear to be based on poor science, then surely we are saying that we (as scientists) dont care whether policies are based on good or bad science?
Cheers,
Neville Nicholls
September 17th, 2006 at 8:21 pm
Hi Neville-
Thanks much for weighing in!
I am quite sympathtic to your distinction between focusing on the functioning of decision processes versus influencing actual decisions. Much of my own work is focused on the health of decision processes that involve science.
But there are better and worse ways in which to seek to improve processes versus advocating for particular outcomes.
Consider this parallel case. Lets say that you are a US political scientist with expertise in elections. In the 2000 presidential election everyone knows what happened in the Florida. Lets say that you as a political scientist have an interest in improving the electoral process. I do not think that taking sides in the election, or taking action that _has the effect_ of taking a side (like writing an amicus brief to the Supreme Court), is the most effective way to improve the process. In fact, I would think that by taking sides, you might even harm your ability to contructively improve the process.
The time to improve the process of using science in political decisions is not in my view during the heat of political battle. No matter the intent, the net result of the action in the amicus brief is to take sides. Science becomes evermore politicized when this obvious fact is denied by those taking sides.
Thanks again!!
September 17th, 2006 at 10:05 pm
Hi again Roger – you are quick. Dont you ever rest?
I take your point about the 2000 election. If I was an academic totally disinterested in the specific result, but wanting to ensure that, in the future, an improved election process was instituted, then it might be better to wait until the heat had gone from the immediate debate.
However, I dont see this as a parallel case to the question of how and when to advocate the use of balanced science in determining policy positions relevant to climate change. The election had a defined finish date, whereas the climate change debate will likely continue for some time. So should I wait until ex vice-presidents stop making documentaries, or scifi authors stop writing novels about climate change, or moviemakers stop making thriller movies on the topic, or Greenpeace and the fossil fuel industry stop lobbying? Once all these activities have finished, what will be the point of advocating that decisionmakers base their policies on sound climate change science? If these activities never stop (ie we continue to be in “the heat of political battle” for ever), does this mean that no scientist is ever allowed to point out that a decisionmaker is not basing his/her decisions on sound science?
Cheers,
Neville
September 17th, 2006 at 11:55 pm
Roger,
I am sympathetic to your concern about “pathological politicization of science”, even perhaps by scientists, and agree that this can happen when political or values-based arguments are smuggled in as if they were scientific ones. But that is quite different from arguing that the mere fact of entry by a scientist into a political arena necessarily politicizes science pathologically. That is an absurd argument. You have to look at the content of what is being said.
Steve Wofsy’s statement (about the content of the brief) is not at odds with the act of filing the brief (whatever its content) also being an act of participation in a broadly political process that supports one side in an adversarial legal controversy. Whether the act is political by some definition is a separate question from a discussion of the precise ways in which it is political and the ways in which it is not, and it seems to me that by confounding these two questions and insisting on a unitary explanation you are confusing the issue rather than clarifying it. There is nothing inconsistent about a multiplicity of explanations.
Wofsy’s comments about the *content* of the brief are exactly right:
(1) the brief’s content is “non-political” in the particular and precise sense of being (to the extent we were successful) an objectively testable (i.e. scientific) argument that does not depend for its force on one’s political predilections, ethics or values. It consists of three parts: (a) a series of scientific statements about the earth’s climate system; (b) an argument that EPA and Appeals court mischaracterized these statements; and (c) an argument about whether the evidence contained in these statements is sufficient to meet a standard for action prescribed by law. Each of these parts is in principle testable by the community of scientists acting according to the norms of science. Whether it passes this test remains to be seen, but it is in any case “objective” (i.e., “non-political” according to one common definition) by at least the Kantian notion of objectivity as intersubjective agreement. For example, we don’t have to agree that the standard prescribed by law (“reasonable expectation of endangerment”) is a good or appropriate standard for action in order to be persuaded whether or not it is met by the evidence at hand.
(2) The brief is “non-political” in this particular sense for good reason: the Supreme Court decides (or at least strives to decide) controversies on the basis of law and evidence; political, policy, or ethical arguments do not in general get you very far. Thus, the Supreme Court does not care whether I or any of my colleagues think mitigating GHG’s would be “a good idea.” It cares about what the law requires, and whether the EPA followed the standards that the law requires. (thus much of what was contained in your initial three point summary, based on what you thought was “appropriate” for the court to do, is likely irrelevant.)
For the record, and to make you happy Roger, I will readily state openly (on behalf of myself only) that I believe that greenhouse gases should be regulated, and that this is part of my personal motivation for participating on the side of Massachusetts in this lawsuit (this will surprise nobody who knows me). But that doesn’t change anything about the non-political nature of the content of the brief, and it doesn’t mean that others should make the same statement if it is not true for them.
However, if we accept your standards for behavior, then a scientist like Mike Wallace or Neville Nicholls faces the absurd dilemma of either lying (by saying that his motives are purely political when in fact they are not) or unavoidably contributing to the “pathological politicization of science.” What a world this Pielke-place is: the less political a scientist’s motives for doing anything outside the ivory tower, the more he or she contributes to pathological politicization. The more honest this scientist is about non-political motives, the more “disingenuous” he or she become. Now, there is a good example of a world that is, to use a phrase, pathologically politicized.
Regards,
Scott
September 18th, 2006 at 7:24 am
Scott-
Thanks for the continued comments. Now we’re getting somewhere! Some replies below:
1. You completely mischaracterize my perspective when you write, “the mere fact of entry by a scientist into a political arena necessarily politicizes science pathologically.”
It is not the participation in politics that leads to pathological politicization. It is the presumption or representation that such participation represents the diembodied voice of “truth” or “objectivity.”
2. Throughout your comments you present a view of “politics” as something bad and to be avoided. From this perspective it is no wonder that you are going to efforts to be viewed as “non-political”! I respect and understand that you think that you are playing an “objective” role here above and beyond politics. I don’t see it that way. It is of course convenient for scientists to present themselves as above politics because that lends authority to their claims as haveing a special position as arbiters of truth in contested political issues.
3. Your describtion of the non-political nature of Supreme Court decisions would be thoroughly rejected by the political science community. You suggest that the impact of decisions is not considered by the SC. This is wrong, and it in fact it is arguably the main function of an amicus brief:
“Amici curiae briefs are important because they reduce information problems at the Court by helping the justices anticipate the impact of their opinions.”
Spriggs, J. F. II, & Wahlbeck, P. (1997). Amicus curiae and the role of information at the Supreme Court. Political Research Quarterly, 50 (2), 365-386.
Courts are political bodies. This is why the appointment process is so heavily contestsed — individual views on policy, politics, and ethics matter enormously.
3. You enter strawman territory when you suggest that I have argued that scientists should admit to being “purely political.” A simple recognition that one is taking sides in a court case should be plenty enough acknowledgement of the reality of the significance of providing a court brief. Further, your distiction between more or less political action by sceintists makes no sense to this political scientist. What criteria would one use to asssess if an act is more political than another?
Again, let me emphasize I have no interest in individual motives, which you keep referring to. I am interested in action and consequences regardless of motive. The action of submitting a brief has the same consequences ragardless of motive, so by invoking the notion of “more or less” political you must be talking about motives. I don’t care about motives, but consequences. I would like scientists to have some awareness of the consequences of their actions. In this case, the consequence of taking a political action (by its consequences) but representing it as “non-political” or “objective” (perhaps by motivation or whatever) does in fact have the consequence of presenting values-based arguments as if they sprung unvarished from someplace called “truth.” That is what represents a pathological politicization of science.
You have thus far dodged my earlier question. What was the criteria that you and your colleagues applied for deiciding to express your views through an amicus brief versus some other strategy? Who was your audience? What outcomes were you seeking to attain? What would be evidence that you actually achieved those outcomes?
Thanks!
September 18th, 2006 at 7:50 am
Hi Neville-
Thanks for your continued participation!
I’m glad that you see my point. I don’t think that scientists should stand on the sidelines, to the contrary I would hope and expect that they would be active in improving the process by which science and decision making are connected.
I do think that inserting oneself into a highly visible, highly political lawsuit about regulating carbon dioxide is probably not the most effective way to improve the process.
Scientists interested in improving the process might begin by asking where the IPCC has suceeded or fallen short in its efforts to be “policy relevant, but policy neutral” or discuss the role of policy options in assessment, science academy, or research council reports, and so on. From where I sit looking at the climate science community broadly there has been far less concern about the process of connceting science to decision making itself than there has been to advocating for specific policy outcomes.
Perhaps there are many scientists with an interest in the process, but they are certainly overshadowed by explicit advocates and those representing themselves as process-focused but really acting as advocates for particular policy outcomes.
Ultimately, we need a focus on process all of the time. A focus on outcomes matter most when there is a window of opportunity, like a lawsuit or election.
Thanks!
September 18th, 2006 at 9:16 am
Scott – To sum and simplify Roger’s point, I think we can put it like this. As a group you had two options:
1- Publish a detailed critique of EPA’s response to the NRC report in a disinterested and peer-reviewed setting, like BAMS. Then allow the litigants — at their own discretion and without any input by you — to enter in as evidence your published (and disinterested) article to further their ends. You get to correct the record without taking sides in a litigated dispute, which keeps you above the fray, and the record is corrected before the court.
2- Insert a detailed critique of one litigant’s analysis *on behalf of* the other litigant in an ongoing dispute. No matter how objective your critique or how pure your motives, you are now irrevocably pegged to one of the litigants.
You guys chose #2. Again, whatever the motives, pure as they may have been, the very action means you have chosen a side amongst litigants. Even if the science remains pure, the context the science is placed amidst is not, for this is an adversarial, political process.
September 18th, 2006 at 1:23 pm
Roger and Kevin,
Thanks this has been very interesting, I will have to think about this some more and if time allows perhaps post again. In the meantime, I have other things to work on…
In the meantime a few more thoughts:
– you keep disclaiming interest in motives, but all your questions intrinsically involve motive: why did we decide to express our views in an amicus? Whether an act is political depends in part on a motive for doing it, not just on consequence (else people could be political by accident, without any conscious awareness of it).
– your definition of politics is particularly broad (maybe it is the political science definition). That’s OK, but you should recognize that in common usage, other more limited definitions are often meant, and argue accordingly. People can be non-political in the common usage sense, but be political in the broad sense you mean.
– Yes Supreme Court is drenched in politics, of course. Pathological politics even, especially evident at nomination/confirmation time. I don’t know supreme court jurisprudence very well, but it seems to me that despite all that, (a) the strict “law-and-evidence” ideal sometimes does work, and (b) that is a good thing. Specifically, having a “least political branch” (to paraphrase Hamilton’s comment about the judiciary being the “least dangerous branch”) in which political currents are at least in principal forced to submit to the discipline imposed by an ideal of reasoned argument based on evidence has, in the best examples, positive impacts on the body politic.
– I didn’t say the SC doesn’t consider implications or impacts, only that they strive (invoke caveats cited in previous point here) to avoid making “political” decisions (not in your all-encompassing sense of the word, but in the common usage in which explicitly political decisions are left to the other branches).
– I don’t imply that politics, or engaging in political process, was bad as a matter of principle. As you say, that’s how decisions get made. But there are political perversions to our system that are bad, and if one engages at all, one must step carefully so as to avoid them if possible. It seems your position is more negative about politics than mine is: you say that by striving to achieve an ideal of science-based arguments that are non-political in their content, we are contributing, unavoidably even, to the pathological politicization of politics, which is about as bad as you can get.
– my distinction between more or less political is the distinction between my stated motive (one among several) to influence decisions on behalf of mitigation, and that articulated by Mike Wallace (and perhaps Neville Nicholls), which disavows an intention to achieve specific policies.
– you wrote: “it stretches the bounds of credulity to accept your claim that ‘the desire to correct the science was necessary and sufficient for this scientist’s brief to be filed’. The _only_ reason to file an amicus brief is to influence a lawsuit. Period.” The statement about necessary and sufficient is a testable statement (within the bounds of human psychology) about why people signed onto the brief, it does not depend on how credulous you are or anyone else is. I think it is a true statement, and if I am right, that is an existence proof that your second sentence (about politics being the _only_ reason) is incorrect.
– I didn’t mean to dodge your earlier question about how we decided to file an amicus, just dealt with other issues. I already announced my motives (again, you are the one who asked about motive!), and I can’t tell you the others because I didn’t ask what they were, I only asked if they wanted to join an amicus brief. In my case, I think this is likely the most effective way to get the issue addressed, because unlike publications which can be ignored, this is in a forum where it cannot be ignored (if it is a good brief), and where it is more likely to have an influence. Influence in this case means both on possible policy outcomes (which is what I think you wanted to get me to say), but also influence to more effectively discourage the mis-use or mis-characterization of science in future policy decisions (or in the sequel to this case, if there is one). Again, a multiplicity of influences is possible.
Best,
Scott
September 18th, 2006 at 4:25 pm
Dear Dr. Pielke, I never fail to learn from your blog. Thanks for your many valuable posts.
I believe there is an inconsistency between your first and second points. In point one, you write that EPA “clearly has the authority to regulate CO2, despite what they have said to the contrary.” In point two, you write that, “The most relevant legislative precedent would seem to be the provisions included in the Clean Air Act Amendments of 1977 which added a section for the regulation of ozone depleting chemicals. Presumably, if this provision was not needed, then Congress would not have seen fit to add it.” Correct–but has Congress seen fit to add a climate protection title, section or subsection to the Clean Air Act? No.
In fact, the terms “greenhouse effect” and “greenhouse gas” appear nowhere in the Act.
If Congress wanted EPA to interpret the Clean Air Act as authority to control greenhouse gases for purposes of global warming mitigation, it could easily have said so. It never did, and all subsequent attempts to enact CO2 control provisions (e.g., the McCain-Lieberman Climate Stewardship Act) were either voted down or had too little support to make it to a floor vote. The attorneys general are attempting to impose via litigation a regulatory program Congress never approved.
The stakes are bigger than might appear at first glance. The AGs are suing under Section 202, which pertains only to tailpipe emissions, and requires EPA to take into account cost and technological feasibility. However, the regulatory trigger in Section 202 is identical to the regulatory trigger in Section 108, the cornerstone of the National Ambient Air Quality Standards (NAAQS) program, and when setting NAAQS, EPA is forbidden to consider cost.
The trigger in both provisions is a “judgment” by the Administrator that emissions of a particular substance “may reasonably be anticipated to endanger public health or welfare.” Thus, if EPA were to classify CO2 a regulated pollutant under Section 202, it would obligate itself to begin the process of setting NAAQS for CO2 under Section 108.
If EPA failed to do so, the AGs would surely sue again. This is obvious from the fact that three of the AGs, including AG Reilly of Massachusetts, the lead attorney in the case, filed a notice of intent to sue EPA back in 2003 for failing to set NAAQS for CO2. The case before the SC is just the opening move in a much more ambitious litigation and regulatory strategy.
The costs of a CO2 NAAQS program would be difficult to contain. By law, NAAQS must be set at a level requisite to protect public health and welfare “with an adequate margin of safety.” How many parts per million of CO2 is requisite to protect public health and welfare with “an adequate margin of safety”?
There are plenty of activist scientists who claim that current CO2 levels are intensifying hurricanes, destabilizing the West Antarctic Ice Sheet, causing “mass species extinctions,” etc. The Kyoto Protocol would barely slow the growth of CO2 emissions. So a CO2 NAAQS program could easily become more stringent in its fossil energy restrictions than Kyoto. Citizen suit provisions would allow the AGs and environmental groups to sue EPA to enforce compliance with the control requirements, no matter how onerous.
In short, I think you too quickly concede that EPA has authority to regulate CO2, and also understate the seriousness of the risks to the nation’s economic future.
Best regards, Marlo Lewis, Senior Fellow, Competitive Enterprise Institute
September 18th, 2006 at 4:35 pm
Scott- Thanks for participating in the conversation here and the give-and-take. You are always welcome to join in.
You write, “you say that by striving to achieve an ideal of science-based arguments that are non-political in their content, we are contributing, unavoidably even, to the pathological politicization of [science].” Yes (if indeed it was science that you meant as the last word and not politics!!], this is exactly what I am saying.
Do have a look at the Sarewitz article, he makes this point far better than I do:
Sarewitz, D., 2004. How Science makes environmental controversies worse, Environmental Science & Policy, volume 7, pp. 385-403.
http://sciencepolicy.colorado.edu/publications/special/sarewitz_how_science_makes_environmental_controversies_worse.pdf
September 18th, 2006 at 4:37 pm
Hi Roger.
This continues to be an interesting discussion and the various comments and replies are helping me to clarify what I am trying to do.
“An Inconvenient Truth” opened here just last week (well behind the US opening) and was reviewed on TV by Australia’s most respected movie reviewers (www.abc.net.au/atthemovies/txt/s1720229.htm). At the end of the review one of the reviewers said “…if there is doubt about what Gore is claiming…surely it’s possible to set up a body that doesn’t have any vested interest in either outcome, you know, that just wants to know the truth and finding out what the truth is.”
Their web site was beseiged by comments (I suspect many just included the four-letter word “IPCC”) and the reviewer then added a thank you note for this input at the end of the review, along with a link to the IPCC website.
My point in recounting this story, apart from the fact that I am amused by it, is that some members of the public, as well as some scientists, do believe that we can and should intervene in the (partisan) political to ensure that science is not misrepresented or misused. And that this is possible.
Whether IPCC or an amicus brief is the most effective way to do this is clearly a topic for debate, but the question of whether a scientist can/should intervene in a topical discussion without having an interest other than ensuring the best science is used to resolve the question is surely unquestionable.
Cheers,
Neville
September 18th, 2006 at 4:54 pm
Marlo-
Thanks much for your comments. I understand what you are saying. I do think that the ozone precedent suggests the need for legislative action, but I am not 100% convinced.
Even so, I don’t think that the slippery slope is as slippery as you suggest. Consider the following:
Taking a look at data from the US EIA (http://www.eia.doe.gov/):
It projects out to 2030 that the accumlated global carbon dioxide emissions will be 235 GtC. It also projects that of this total about 15 GtC will come from the use of petroleum in the United States. Lets assume all of this comes from cars. Lets further assume the EPA regulates carbon dioxide such that no emissions are allowed.
This would reduce the global total emissions of carbon dioxide from 235 to 220 GtC by 2020. Can don’t think that current cliamte models are able to differentate bewteen a world with these two values of carbon dioxide emissions, much less predict how one might be different than another.
I can envision a scenario where EPA has authority but the judgment of the EPA administrator might be that the marginal difference between 220 GtC and 235 GtC (i.e., what EPA has authority over), would not amount to a conclusion that the marginal US carbon dioxide emissions from cars “may reasonably be anticipated to endanger public health or welfare.”
Thanks!
September 18th, 2006 at 5:41 pm
Hi Neville-
Thanks again. I am going to respond like a professor (sorry!) and ask you to take a look at two articles.
The first is by Dan Sarewitz and it explains why it is that efforts to have the “best science” are confounded by the very diversity of science as well as the numerous societal ends to which science might be legitimately put:
http://www.cspo.org/products/articles/excess.objectivity.html
The second is a paper that I worte that critiques the use by the IPCC of the FCCC definition of climate change, which has important political consequences (like deemphasizing adaptation):
Pielke, Jr., R.A., 2005. Misdefining ‘‘climate change’’: consequences for science and action, Environmental Science & Policy, Vol. 8, pp. 548-561.
http://sciencepolicy.colorado.edu/admin/publication_files/resource-1841-2004.10.pdf
Thanks!
September 19th, 2006 at 4:24 pm
Hello Roger,
I fear the slope will be slippery, if the Court decides EPA has authority to regulate CO2. Carbon dioxide is the most ubiquitous byproduct of industrial civilization. Whatever the ideological leanings of Bush’s EPA appointees, who are here today and gone tomorrow, the agency has an institutional interest in getting its regulatory hooks into CO2. Nothing would do more to expand its power over the U.S. economy.
Further, if the Court decides in favor of plaintiffs, I cannot see the Administrator arguing that there’s no point in regulating CO2 because U.S. auto emissions constitute only a small part of a larger “problem.” All Clean Air Act target emissions created by sources that individually pose no risk to health or welfare–that has never stopped EPA from pulling the regulatory trigger.
The AGs even speak to the point in their brief, arguing that although a NAAQS for CO2 would not be a “complete” solution to global warming, an incomplete solution is better than none, if only because it would encourage and complement other countries’ incomplete solutions. Again, I suspect that many career people at EPA are itching to act on just such reasoning.
Thanks for the quick response to my post. Keep up the great work. — Marlo
November 29th, 2006 at 5:49 pm
Dr. Peilke wrote “The decision to become a political advocate is not unlike the decision of a medical researcher to take funds from a big company.”
Of the amicus briefs, have you identified any as being from people who are taking funds from big companies, to opine in this case?
Do you believe all of them are funded by big companies, overtly or covertly?
Have you noticed any amici presenting arguments made in the past by authors hired by big companies to present advocacy science?
The British Medical Journal study of court tactics seems quite relevant == they compare arguments paid for by big companies presented in court to the arguments published by industry-funded scientists in science journals.
Is ‘Public Health’ always, to you, a political advocacy role?
http://tc.bmj.com/cgi/content/abstract/15/suppl_4/iv68?ct
November 29th, 2006 at 6:17 pm
Hank- Thanks for your comments and question.
Wealth is but one of many values that people think are important. Advocacy occurs in pursuit of these values, as well as wealth.
It is a mistake to think that the only values that matter are money and the only actors that matter are companies.
There is nothing wrong with advocacy, it is fundamental to democracy. But taking on an advocacy role does raise some interesting questions for scientists, including those situations where money is involved, but also others.
Thanks!
November 29th, 2006 at 10:26 pm
Do you consider public health as science, Roger? Or only as politics? Did you look at this public policy group’s amicus brief?
http://www.law.capital.edu/Tobacco/News/2005/20050831TPPCNews.asp
Can scientists be involved in court cases in ways that go beyond politics, when they contend with ‘advocacy science’ that is biasing and confusing public policy, arguing that truth has a place in science and politics?
http://tc.bmj.com/cgi/content/extract/15/suppl_4/iv1
You know some of the advocacy scientists involved in that case.
” “Doubt is our product,” as a candid Brown & Williamson document puts it.2 A decade of doubt means billions of dollars in profits. …”
Any parallels in policy?
November 30th, 2006 at 5:47 pm
Methyl bromide, by the way, is regulated and its use is being gradually decreased, although shenanigans by the Bush Administration and some members of both political parties have delayed the process.
I see a clear analogy to Kyoto and post-Kyoto: it’s not good enough even as originally planned, it’s not meeting its planned target, and yet it’s still a far better policy outcome than not trying to decrease and eliminate this pollutant.
November 30th, 2006 at 7:40 pm
Brian S.- Thanks for participating.
Methyl Bromide has and has not been phased out, see:
http://www.epa.gov/ozone/mbr/
Kyoto is not analogous to the EPA lawsuit as it is international. For most of its supporters, whether or not it makes sense as a policy has far less to do with its actual effects on the climate than its effects on the politics of the issue.
Thanks!