Climate Science in Court

Another plaintiff in the 2016 hearing asserted that “increased wildfires and extreme flooding jeopardize[d] his personal safety.” Again, we cannot automatically claim climate change (geological or anthropogenic or both or neither) is behind wildfires and flooding. Without more detailed evidence, we actually cannot reach any conclusions at all about such a claim. But speaking more broadly about flooding and wildfire dangers, much more plausible explanations lie in the mistaken building of entire neighborhoods on flood plains or surrounded by tinderbox forests. For example, a town like Paradise (California) never should have been built unless all houses featured masonry walls and metal roofs. It was a disaster waiting to happen. For another example, the City of Houston never should have approved building neighborhoods in marshland prone to flooding caused by inevitable seasonal hurricanes. When people build homes right along the ocean shore, why are they surprised when regular seasonal storms damage their property? When ancient ocean currents erode the beach?

This odd sense of entitlement to build homes in dangerous places ironically ignores inescapable natural forces, lately increasingly blamed on the “climate change” scapegoat.

Another plaintiff testified that climate change was exacerbating her asthma. But many more pertinent things cause asthma, including a lack of childhood cardio-vascular exercise that thus hinders full development of the lungs. If the plaintiff’s claim was accurate, we would have a permanent pandemic of asthma in the equatorial and subtropical areas of the world (we don’t).

One plaintiff even whined that he had been “unable to ski during the winter as a result of decreased snowpack.” Ah, the problems of the elite. If only they would pay for the damage their studded tires do to the streets and highways. Instead, the masses pick up the bill through highway and property taxes.

The 2020 Juliana hearing ended the litigation with a predictable whimper. Judge Andrew D. Hurwitz wrote that the “plaintiffs failed to demonstrate that the injunctive relief they sought was within the power of an Article III court, as required for redressability element for Article III standing.” In other words, federal court was the wrong venue for the would-be cause célèbre. But, despite this technicality, Judge Hurwitz was clearly very sympathetic with the plaintiffs and completely swayed by the “evidence” they presented.

Judge Hurwitz wrote, “Copious expert evidence establishes that this unprecedented rise [in global temperatures] stems from fossil fuel combustion and will wreak havoc on the Earth’s climate if unchecked.” Well, of course. When you only call “expert witnesses” from the same politicized-science coterie, no other conclusions are possible. The federal defendants in this case (including the EPA) had consumed the same anthropogenic carbon emissions Kool-Aid. Hence, the show trial characteristics.

For example, in the 2018 Juliana hearing, the U.S. Government conceded that “human activity is likely to have been the dominant cause of observed [global] warming since the mid-1900s.” They seemed to have overlooked that a substantial corpus of scientists (including the National Academy of Sciences) actually observed global cooling during the 1940s-1970s, and briefly feared an imminent ice age.

At the very least, the litigants in Juliana might have studied something fundamental, like Frances Drake’s book, Global Warming: The Science of Climate Change, a profound scholarly tract that successfully strives to focus on science and avoid politics.

And politics and policy were the real issues here, not jurisprudence and certainly not climatology. With inadvertent irony, Judge Hurwitz himself observed, “We reluctantly conclude, however, that the plaintiffs’ case must be made to the political branches or to the electorate at large, the latter of which can change the composition of the political branches through the ballot box.”

Judge Hurwitz mentioned that only the venue issue separated his majority opinion from the sole dissent (from District Judge Josephine L. Staton). In her dissent, Judge Staton wrote, “What sets this [climate change] harm apart from all others is not just its magnitude, but its irreversibility.”

Irreversibility presumes predictive powers that no one possesses. But consistent with an overall obliviousness to the nature of politicized science, Judge Staton also expressed belief in the mythical “tipping point” of catastrophic climate doomsdayism. Never mind that environmental alarmists have been preaching the point-of-no-return for at least half a century now. How is it that the “tipping point” keeps moving ahead on an ever-receding horizon?

Believe it or not, the above assessment is not necessarily to blame judges. The politicized science in the Juliana litigation was obvious and open. But the hearings also reflected how law and science often mix very poorly in court. Many legal scholars have observed this very fact. Here are a few examples:

Sheila Jasanoff (Harvard Law alum) wrote, “The law, by contrast [to science], must take a position based on the facts at hand, however premature such a decision may appear in the eyes of scientists.” Then Jasanoff asked a crucial question: “Whose knowledge should count as valid science, according to what criteria, and as applied by whom?” The show trial aspect of Juliana did not even explore climate science beyond their prejudicial conclusions of anthropogenic carbon emissions. By doing so, the litigation missed the entire scientific approach toward intellectual truth, which (as ever, in science) includes ongoing questions and uncertainties, and only tentative conclusions. Instead, they sought political affirmation. This is almost inevitable when (as law professor David Faigman wrote), “science rarely, if ever, describes the factual world definitively.” Faigman continued,

even the best [scientific] research often offers only a glimpse into the underlying realities. The law, on the other hand, is largely an engine of normatively. It uses information about the world as a starting point from which it generates rules and goals for controlling the world. It must integrate the uncertain knowledge about empirical reality into a complex web of normative values held with more or less certain conviction.

And, as legal scholar Robin Feldman wrote, “In so many circumstances, we use science to create the Illusion of Reasonable Resolution where the solution is not reasoned nor is the issue resolved.” The Juliana litigation was a classic reflection of this phenomenon.

As Feldman further observed, what is worse is how a judicial failure to appreciate the limitations of science leads to further confusion. This does not bode well for any satisfactory outcome in the current lawsuits that various states’ attorneys general have filed against fossil fuel companies, for these suits are also premised upon similar faulty, incomplete, and agenda-driven climate science. Again, there is the shaky premise of the greenhouse hypotheses of global warming paraded as irrefutable scientific fact. And, again, the plaintiffs make simplistic cause-and-effect claims supposedly linking anthropogenic climate change and disastrous damages from weather events that are actually bound to have a host of other contributing causes, such as the aforementioned building site mistakes. Also, we might simply admit that, since time immemorial, extreme weather has always caused property damage. Claiming “climate change” is making such weather events more severe is based far more in ideology than in science.

As so many wise people have observed, science is (or should be) an approach to knowledge, not necessarily an authority. The agenda-driven “science” in the Juliana litigation actually more closely resembled religion, particularly the strain I call Green Calvinism. There is the same “fall” from ecological paradise, the same misanthropic worldview (via ecological sin), the same belief in impending doom, and the same faith in dogma and false authorities.

Not to mention the same hypocrisy among those preaching but not practicing beyond token measures. By the way, what’s the “carbon footprint” of a ski holiday?

In previous writings I have mentioned how there is so much we do not know about the earth’s climate. The more I look, the more I appreciate the scale of the mysteries. They just go on and on. For example, scientists are still trying to understand the “Younger Dryas cold event,” which apparently cooled the climate of the Northern Hemisphere between 11–12 thousand years ago. If we had another such cold event, I imagine all the global warming fears would magically disappear. Other geological and astrophysical climate phenomenon we don’t completely understand include the Atlantic Meridional Overturning Circulation, Dansgaard–Oeschger events, and the universe itself apparently heating up with its continuing expansion (sources, below).

I think I’ve grown particularly interested in these geological and astrophysical forces precisely because the anthropogenic carbon camp ignores them. Such is the power of dogma? No one in the Juliana litigation even acknowledged the existence of such complex scientific evidence, past and present, much less how simpleminded cause-and-effect gets us nowhere.

Obviously we should work hard to be good environmental stewards of the planet. But frivolous lawsuits based more in propaganda than in science are little if any help. In fact, they easily distract us from more pressing concerns, such as detoxifying chemical dumps, coping with radioactive waste (consume it in safer, new-generation nuclear power plants!), and a grim list of genuine environmental problems that continue to plague the world’s poor. The latter don’t go on ski holidays.

Copyright © 2022 Will Sarvis. All rights reserved.

SOURCES

Juliana v. United States, 217 F.Supp.3d 1224 (2016).

Juliana v. United States, 339 F.Supp.3d 1062 (2018).

Juliana v. United States, 947 F.3d 1159 (2020).

James U. L. Baldini, et al, “Evaluating the Link Between the Sulfur-Rich Laacher See Volcanic Eruption and the Younger Dryas Climate Anomaly,” Climate of the Past 14 (2018), 969–90.

Pierre Burckel, et al, “Changes in the Geometry and Strength of the Atlantic Meridional Overturning Circulation During the Last Glacial (20–50 ka),” Climate of the Past 12 (2016), 2061–75.

Frances Drake, Global Warming: The Science of Climate Change (NY: Oxford University Pr., 2000).

David L. Faigman, Legal Alchemy: the Use and Misuse of Science in the Law (NY: W.H. Freeman & Co., 2000), quotes from pages 190–91.

Robin Feldman, The Role of Science in Law (NY: Oxford University Pr., 2009), quotes from pages 7, 140; also see pages 79, 95. Feldman offers a great synopsis of recent philosophy of science, pages 122–33, and where that leaves us today, pages 133–38.

Allan Freeze, The Environmental Pendulum: A Quest for the Truth about Toxic Chemicals, Human Health, and Environmental Protection (Berkeley: University of California Pr., 2000).

Sheila Jasanoff, Science at the Bar : Law, Science, and Technology in America (Cambridge, MA: Harvard University Press, 1997) quotes from pages 9, 19.

L. Menviel, et al, “Hindcasting the Continuum of Dansgaard–Oeschger Variability: Mechanisms, Patterns and Timing,” Climate of the Past 10 (2014), 63–77.

Matt Williams, “The Average Temperature of the Universe has Been Getting Hotter and Hotter,” Universe Today: Space and Astronomy News (Nov. 13, 2020).

Haiwei Zhang, et al, “Gradual South-North Climate Transition in the Atlantic Realm Within the Younger Dryas,” Geophysical Research Letters 48 (2021).

Youjia Zou, et al, “Southward Migrations of the Atlantic Equatorial Currents during the Younger Dryas,” Limnology and Oceanography 62 (2017), 1732–1741.

For a compendium of the state lawsuits v. fossil fuel companies, see the State Energy and Environmental Impact Center, NYU School of Law.