Guest essay by Dr. Tim Ball
Watts Up With That? (WUWT) recently reported on the submission of an Amicus Curiae application to the US Supreme Court (SCOTUS). It challenged the scientific legitimacy of the Environmental Protection Agency (EPA) actions to control CO2. Courts generally, but especially SCOTUS, will not involve themselves in scientific disagreements because they say they don’t understand the science. Most people, including me, don’t think the Court will hear the case. However, I believe there is an approach the Courts would entertain.
My presentation at the Heartland Climate Conference in Washington DC, spoke to the central problem and solution. A tenet common to science and the law that should not be violated is premeditation of an act. For example, in law there’s a clear distinction between murder and premeditated murder. Premeditation has absolutely no place in science; predetermined results are meaningless. It is inherent in the action of the IPCC as they attempted to prove rather than disprove the hypothesis that human CO2 is causing global warming. Scientists who tried to practice proper science and disprove the hypothesis were marginalized as skeptics and latterly deniers.
My comments evolve from experience with lawsuits on scientific issues. I know firsthand that courts at any level do not want to consider scientific disputes. From their perspective it is expressed in the vernacular as ‘your paper against my paper’. What’s needed is something that transposes the issue from a science to a legal argument.
There are three serious problems related to attempts to bring the EPA matter before the Supreme Court.
1. Science and technology are central to society as more and more legal cases develop that require judgment. As a Chair of committees on water management for an entire drainage basin or hazardous waste management for a large city I learned of the challenges to the law and lawyers of scientific conflict. I was aware of the problem because counseling students I realized most lawyers are Arts students. When I sought a lawyer for my legal cases I asked how well they had done in Taxation courses because I knew it is the one most lawyers fail first time round. It is increasingly untenable that the Supreme Court is unable to make judgments on scientific issues. Conflicts involving science will expand as environmentalism impinges across political boundaries for example. The public are increasingly aware of the problem the law faces when ‘experts’ present completely contradictory evidence. In addition, sadly, we learn of corrupted science in all fields everyday – it appears related to the post-modern approach exemplified by Greenpeace co-founder Paul Watson who said, “It doesn’t matter what is true, it only matters what people believe is true.” In politics, it is part of Saul Alinsky’s dictum in Rules for Radicals that the end justifies the means. These values were applied when climatology was adopted for a political agenda. It paralleled the use of consensus for a science issue when it mainly has application for politics.
2. I understand the EPA case against Massachusetts was determined under administrative law that gives bureaucracies a very powerful advantage. It appears the State of Massachusetts was guided into bringing the lawsuit that claimed the EPA were not performing their function of protecting the public from a “harmful substance” in order to get it to the Supreme Court. The EPA lost, deliberately in my opinion, which forced the appeal to the Supreme Court. This means the arguments EPA used in the Massachusetts case, about why they should not deal with CO2, very telling and important. In my opinion, they should be part of the argument against EPA’s actions. The Supreme Court ruled that the EPA must control CO2 as a harmful substance using administrative law. It was precisely the result the EPA wanted in order to bypass Congress. This ability to bypass elected representatives is increasingly the ploy of those who seek total control and unaccountability. Maurice Strong used it when he created the IPCC using the bureaucrats from the World Meteorological Organization (WMO). As Mary McCarthy wrote, “Bureaucracy, the rule of no one, has become the modern form of despotism.”
3. The issue in the EPA case is not ‘your paper versus my paper’. The EPA accepted IPCC science completely, not because they realize its limitations, but because it suited their political agenda. Therefore, I believe the best chance of getting the case before the Supreme Court is to demonstrate that the IPCC results were premeditated and corrupted. Evidence should include the emails leaked from the Climatic Research Unit (CRU); the manipulation and malfeasance including the data and the models; and the vast difference and discrepancies between the IPCC Science Report and the Summary for Policymakers (SPM). The case then becomes ‘their corrupted paper against our paper’. The final blow in the argument must be that ‘their corrupted paper’ fails because the fundamental, inescapable, judgment of science is accuracy of prediction, (Feynman’s observation). The fact the IPCC changed from predictions to projections as early as 1995 because of failed predictions, confirms they knew the problems. They compounded this by leaving the public and especially the media to believe they were predictions.
The EPA chose the results of the IPCC for a political agenda. If they knew the results were wrong then their action was a deliberate deception. They can’t argue, like the Courts, that they don’t understand the science – it is their job to understand. If they didn’t know they are incompetent. What a wonderful irony to have the EPA political agenda defeated by the corrupt practices used to advance the IPCC political agenda.
Despite this, I wish the Amicus application well. I agree with the comments that at least they are trying to do something. Hopefully, if it fails it won’t reduce the opportunity for future applications to SCOTUS. The issue of misuse of science and the need for courts to understand science grows. The problem this creates are understood when you consider a SCOTUS that includes scientists. Which science discipline would you include? The evolution of climate science practiced by a collection of specialists in the generalist discipline of climatology illustrates the problem. It is a major reason why I decided to withdraw from participation in the Application.