Saturday, December 02, 2006

Supreme Court transcript excerpts related to science

I'm reading through the US Supreme Court case hearing from last week, and thought I'd pull out a few excerpts related to alleged scientific uncertainty over anthropogenic global warming:

JUSTICE SCALIA: Well, there's a lot of conjecture about whether -- I gather that there's something of a consensus on warming, but not a consensus on how much of that is attributable to human activity.
JUSTICE KENNEDY: But at the outset, you made this, some of this perhaps reassuring statement that we need not decide about global warming in thiscase. But don't we have to do that in order to decide the standing argument, because there's no injury if there's not global warming? Or, can you show standing simply because there is a likelihood that the perceived would show that there's an injury?
MR. MILKEY (attorney for plaintiffs/appellants): Your Honor, especially in this case where none of our affidavits were challenged, I don't think the Court needs to go there ultimately on the merits because we showed through our uncontested affidavits that these harms will occur. There was no evidence put in to the contrary, and I would add that the reports on which EPA itself relies conclude that climate change is occurring in....
CHIEF JUSTICE ROBERTS: That's not all they said. I'm looking at A-85 and they said establishing emissions now would require EPA to make scientific and technical judgments without the benefit of studies that are being developed to reduce the uncertainty in the area. That's different than saying they disagree with the regulatory approach.
MR. MILKEY: It is and it isn't, Your Honor, because that statement will alleges be true. There will always be scientific uncertainty. Agencies will always have an understandable interest in seeing more information. They never -
CHIEF JUSTICE ROBERTS: There's a difference between the scientific status of the harm from lead emissions from vehicles that -- when you have lead in the gasoline, to the status, the status of scientific knowledge with respect to the impact on global warming today? Those are two very different levels of uncertainty.
MR. MILKEY: Your Honor, when EPA regulated lead back in the ethyl days, as the Court court itself took note, there were huge amounts of uncertainty atthat time. And EPA has a lot of discretion in evaluating that, that uncertainty.
And if the EPA determined that the level of uncertainty was such that it was not reasonable to anticipate endangerment, that is perfectly appropriate. It would also be appropriate if the agency determined that there was so much uncertainty that they couldn't even form a judgment on that. That would be applying the endangerment statute at the same time it put off. But the point is they did not say any of that. They instead relied on impermissible grounds.
MR. GARRE (attorney for defendant/respondent): Thank you. Mr. Chief Justice, and may it please the Court.
After carefully considering the issue the nation's expert agency in environmental matters concluded that Congress has not authorized it to embark on the regulation of greenhouse gas emissions to address global climate change. And that even if it has, now is not the time to exercise such authority, in light of the substantial scientific uncertainty surrounding global climate change and the ongoing studies designed to address those uncertainties....
MR. GARRE: .... And one of the reasons that the agency gave was the substantial scientific uncertainty surrounding the issue of global climate change. Petitioners acknowledge that that was an appropriate consideration for the agency....
MR. GARRE: I -- I don't think that that is a fair reading of the EPA decisional document, Your Honor. Certainly, the agency didn't go out of its way to say, "and reading these considerations together and not any of them individually." And with respect to the scientific uncertainty, Your Honor, you also have to take into account that the EPA had before it and pointed to the report of the National Research Council on global climate change.
JUSTICE STEVENS: I find it interesting that the scientists whose worked on that report said there were a good many omissions that would have indicated that there wasn't nearly the uncertainty that the agency described.
MR. GARRE: Your Honor, if you are referring to the amicus brief, Your Honor, there are -- assuming there are amicus briefs on the other side. The Ballunas amicus brief -- I think it is fair for the Court to look at, to look at the document that the agency had before it. That -- that document produced by the National Research -- Research Council, that's the research arm of the National Academy of Sciences. And it's one of the gold standards of research.
JUSTICE STEVENS: But in their selective quotations, they left out parts that indicated there was far less uncertainty than the agency purported to find.
MR. GARRE: Well, Your Honor, I think one thing that we ought to be able to agree on is there is that there is uncertainty surrounding the phenomenon of global climate change. I think the debate is on which areas are more uncertain than the others. But certainly I think the agency was entitled to conclude, particularly if you take into account the deference this Court should give to that kind of determination, that the scientific uncertainty surrounding the issue of global climate change, surrounding issues of the extent of natural variability in climate, surrounding the issues of impact of climate feedbacks like ocean circulation, and low cloud cover, are permissible considerations for the agency to take into --
JUSTICE STEVENS: Is there uncertainty on the basic proposition that these greenhouse gases contribute to global warming.
MR. GARRE: Your Honor, the report says that it is likely that there is a -- a connection, but that it cannot unequivocally be established....
(UPDATE: this post originally included an off-topic transcript excerpt, but I'm deleting it and giving it a separate post here.)
JUSTICE SCALIA: That's what I was asking, yes. And you think it will go back to them and they will say, oh my goodness, the scientific uncertainty is not enough by itself? You really expect that to happen?
MR. MILKEY: Respectfully, Your Honor, I think EPA will have a hard time saying that there is insufficient -- I mean, too much scientific uncertainty. The very sentence -
JUSTICE SCALIA: They said it already.
MR. MILKEY: No, Your Honor.
JUSTICE SCALIA: The only question is whether that alone is enough.MR. MILKEY: Respectfully, Your Honor, they did not say that. They did not anywhere say why the existing uncertainty mattered. To the contrary, they emphasized the need to act in the face of current uncertainty, but never explained why that principle applies to a nonregulatory approach but not to a regulatory one.
CHIEF JUSTICE ROBERTS: What they said was until more is understood about causes, extent and significance of climate change and the potential options for addressing it, we believe it's inappropriate to regulate these emissions.
MR. MILKEY: Your Honor.
CHIEF JUSTICE ROBERTS: That strikes me as saying they think there is too much uncertainty for them to act.
MR. MILKEY: Your Honor, they did not say there is too much uncertainty for them to form a judgment, which is the key issue. They said they preferred more certainty, but because of the nature of the endangerment standard, which emphasizes the important of regulating in the face of uncertainty, they have to at least explain why the uncertainty matters. And that is -- what they did here is particularly troubling in the fact that they ignored all of theindications pointing toward endangerment. They looked at what we don't know without ever looking at what we do know.

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