Quick Reactions to Arguments Today before the Supreme Court on Mass. vs. EPA

 HYPERLINK "http://sciencepolicy.colorado.edu/prometheus/archives/climate_change/index.html#001003" http://sciencepolicy.colorado.edu/prometheus/archives/climate_change/index.html#001003

The transcript of arguments before the Supreme Court is available  HYPERLINK "http://www.supremecourtus.gov/oral_arguments/argument_transcripts/05-1120.pdf" here in PDF. A good overview of the hearing from an expert on the Supreme Court can be found  HYPERLINK "http://sciencepolicy.colorado.edu/prometheus/archives/climate_change/h%22ttp:/www.scotusblog.com/movabletype/archives/2006/11/analysis_kenned.html%22" here. In what follows I provide some excerpts from the oral arguments and my reactions to them. In my judgment neither side did a particularly effective job on the substantive issues associated with climate impacts, and the issue of redressibility in particular. I do not have any opinions worth considering on the legal aspects of the case, nor do I have any strong views on what will happen. Please read on for my comments on the oral arguments.

People appearing below, in addition to Supreme Court Justices:

JAMES R. MILKEY, ESQ., Assistant Attorney General, Boston, Mass; on behalf of Petitioners [Mass.].

GREGORY C. GARRE, ESQ., Deputy Solicitor General, Department of Justice, Washington, D.C.; on behalf of Respondents [EPA].

JUSTICE SCALIA: 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. [p. 5]

This statement is incorrect. The IPCC stated in 2001 that, “There is new and stronger evidence that most of the warming observed over the last 50 years is attributable to human activities.” ( HYPERLINK "http://www.ipcc.ch/pub/spm22-01.pdf" PDF) Not 100% of scientists agree with this statement of course, and it is very imprecise. 

MR. MILKEY: And in any event, it is important to point out that because of the scale of the problem, relatively small percentage deductions in global emissions can lead to real world results. [p. 8]

This statement is incorrect. A relatively small percentage reduction in global emissions will not lead to detectable real world outcomes with respect to sea level rise. What is "small"? In the context of this conversation is it 2.5% of total global emissions.

MR. MILKEY: . . . But it's important that given the nature of the harms, even small reductions can be significant. For example, if we're able to save only a small fraction of the hundreds of millions of dollars that Massachusetts parks agencies are projected to lose, that reduction is itself significant. 

CHIEF JUSTICE ROBERTS: That assumes everything else is going to remain constant, though, right? It assumes there isn't going to be a greater contribution of greenhouse gases from economic development in China and other places that's going to displace whatever marginal benefit you get here.

MR. MILKEY: Yes, Your Honor. But reducing domestic emissions will reduce our harm, the harm we would otherwise face regardless of what -

CHIEF JUSTICE ROBERTS: Not if your harm is the alleged loss of coastline. Not necessarily. It depends upon what happens across the globe with respect to greenhouse emissions.

MR. MILKEY: Your Honor, we would still lose coastline but we would not lose as much because these harms are cumulative, and while reducing U.S. emissions will not eliminate all the harm we face, it can reduce the harm that these emissions are causing.
So it will necessarily reduce our harm and satisfy redressibility.

JUSTICE SCALIA: I mean, do we know that that's a straight line ratio, that a reduction of two-and-a-half percent of carbon dioxide -- well, two and a half overall would save two-and-a-half percent of your coastline? Is that how it works? I'm not a scientist, but I'd be surprised if it was so rigid.

MR. MILKEY: Your Honor, I don't believe it's established it's necessarily a straight line. But I want to emphasize that small vertical rises cause a large loss of horizontal land. For example, where the slope is less than 2 percent, which is true of much of the Massachusetts coastline, every foot rise will create a loss of more than 50 feet of horizontal land. And for example, in the State of New York, the Oppenheimer affidavit projects that New York could well lose thousands of acres of its sovereign territory by the year 2020. So the harm is already occurring. It is ongoing and it will happen well into the future. [pp. 11-13]

Mr. Milkey offers a very misleading and incorrect argument in this instance. Reducing emissions by a small amount will not save parts of the coastline. At best, it will delay the time for which sea level rise will occur, and by only a very small amount of time. At the levels being discussed here, again about 2.5% of global emissions (based on today’s emissions, it will be a smaller percentage in the future), it is unlikely that such a reduction would be discernible in future sea level rise. 

This exchange points to an area where the scientific community has been grossly neglectful. There is very little work available that clearly explains the effects of different marginal emissions reductions on future specific climate impacts (e.g., sea level rise, hurricanes, drought, etc. — and not global average temperature as measured in hundredths of degrees). One reason for this oversight is of course that the answer in almost all cases the effects are almost nil on time scales of many decades, if not longer.

JUSTICE SCALIA: Mr. Milkey, I had -- my problem is precisely on the impermissible grounds. To be sure, carbon dioxide is a pollutant, and it can be an air pollutant. If we fill this room with carbon dioxide, it could be an air pollutant that endangers health. But I always thought an air pollutant was something different from a stratospheric pollutant, and your claim here is not that the pollution of what we normally call "air" is endangering health. That isn't, that isn't -- your assertion is that after the pollutant leaves the air and goes up into the stratosphere it is contributing to global warming. 

MR. MILKEY: Respectfully, Your Honor, it is not the stratosphere. It's the troposphere.

JUSTICE SCALIA: Troposphere, whatever. I told you before I'm not a scientist.
(Laughter.)

JUSTICE SCALIA: That's why I don't want to have to deal with global warming, to tell you the truth. [pp. 22-23]

Justice Scalia clearly does not understand the science of climate change at a particularly sophisticated level. But that does not make him unique -- Nor apparently does anyone else speaking today.

Note that Justice Scalia does identify carbon dioxide as a pollutant.

JUSTICE STEVENS: I find it interesting that the scientists whose worked on that [2001 NRC] report said [in an amicus brief] 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. I think that -if I could use that to go back to the standing question, Your Honor, which is the fundamental question of whether they've showed not just a connection between greenhouse gas emissions in toto and the phenomenon of global climate change, but the particular class of greenhouse gas emissions at issue in this case. Six percent of global greenhouse gas emissions, at most. That assumes you put all U.S. vehicles off the road or that they are all zero emission cars. So you're talking about emissions – [pp. 29-31]

Mr. Garre does himself no favors with this exchange. A connection between greenhouse gases and climate change has been established. Mr. Garre doesn’t seem to know what he wants to say about uncertainties. This exchange highlights the dangers of cherrypicking. Instead of making his case, Mr. Garre finds himself explaining away the earlier cherrypicking of the NRC report.

JUSTICE SOUTER: Let's assume the rest -let's assume that the rest of the world does nothing. I don't think that's a very reasonable assumption, but let's make that assumption. So that the only thing we're talking is the 6 percent [ie., the total of U.S. auto emissions as a percentage of global emissions]. If the 6 percent can be reduced -- I think the suggestion was over a reasonable period of time, by two and a half percent of the 6, there is, I suppose, reason to expect that there will be, maybe not two and a half percent less coastline lost, but some degree of less coastline lost because there is a correlation between the gas and the loss of the coastline. Why is that an unreasonable assumption to make in order to show causation and redressibility, bearing in mind that redressibility is a question of more or less, not a question of either/or. . . 

They don't have to show that it will stop global warming. Their point is that will reduce the degree of global warming and likely reduce the degree of loss, if it is only by two and a half percent. What's wrong with that?

MR. GARRE: Justice Souter, their burden is to show that if the Court grants their requested relief it will redress their injuries. I'm not aware -

JUSTICE SOUTER: Not redress their injury in the sense that it will prevent any global warming or stop global warming and stop coastal erosion; their argument is a different one. It will reduce the degree of global warming and reduce the degree of coastal loss. [pp. 35-36]

Here Mr. Garre faced a hanging curve over the fat part of the plate and fanned. In other words, for our non-baseball literate readers, Mr. Garre had a chance to provide an authoritative answer to Justice Souter’s question which could have addressed Mr. Souter's concern and better made his case, but he did not.

JUSTICE SOUTER: But isn't it intuitively reasonable to suppose that with some reduction of the greenhouse gases, there will be some reduction of the ensuing damage or the ensuing climate change which causes the damage? Isn't that fair? p. 37

Justice Souter, like others, displays his lack of familiarity with the issue of climate change. His statement is logical and reasonable, but wrong. "Some reduction" of greenhouse gases (i.e., of the amounts being discussed in this case) will have no discernible effects on sea level rise. These reductions will not, as Justice Souter suggests, reduce damages. If anyone has a study suggesting the contrary, please share it.

MR. GARRE: That's right, Your Honor. We've got a unique collective action problem, and yet, the reaction experience of the agency in dealing with the issue of stratospheric ozone depletion rate had precisely that situation, where the U.S. initially took steps. The stratospheric ozone depletion worsened, and it was only after international agreement was reached in the Montreal Protocol that a global solution to the problem was reached. [p. 50] 

Mr. Garre mischaracterizes the history of the ozone issue and the role of the United States. It was in fact U.S. action that motivated the international response, and the U.S. action was motivated by a lawsuit filed against EPA. However, that precedent is not directly relevant in this case. Why doesn’t he know this? For details, see this  HYPERLINK "http://sciencepolicy.colorado.edu/prometheus/archives/environment/000810myths_of_the_history.html" post.

 http://www.supremecourtus.gov/oral_arguments/argument_transcripts/05-1120.pdf

 http://www.ipcc.ch/pub/spm22-01.pdf

 http://sciencepolicy.colorado.edu/prometheus/archives/environment/000810myths_of_the_history.html