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.
Wasn’t a key issue here that IPCC is not US research as was legally required for it to be used by EPA?
The increasing use of fine print regulatory clauses to bypass the need to enact fresh legislation (and public debate on the issue) needs to be reviewed and restricted. Voters need to be awake to these issues and insist on all such regulations having a “sunset clause” inserted to ensure that the regulations can only be used in the period specified (one to 3 years should suffice) and then lapse unless bought before the legislature for public debate and then re-issue, but only after proper debate, (none of this pass the Bill, and then you can read the fine print rubbish!!) and again only to be used as a regulatory law for a further sunset period to be fixed by legislation.
This is especially so where a regulatory body can use the reluctance of the Supreme court to sensibly rule on the misuse of science.
Greg says:
December 19, 2013 at 12:22 am
“Wasn’t a key issue here that IPCC is not US research as was legally required for it to be used by EPA?”
I know someone brought that suit to court awhile ago… maybe 3 years ago. Not sure it is was blocked or still on going. I know people are suing over the EPA conducting dangerous illegal human experiments… however that case is likely blocked or still pending as well.
As socialists have gained more and more control in elections that has translated into more and more control over the courts through appointments and legal babble that con’t be understood except by “professionals”.
If the reluctance can be overcome how far can you trust the judgement of an Obama appointee?
Greg, on that point it was a simple matter of getting a relevant US government agency to writing up a report parroting the IPCC on points necessary, and then just distorting the facts about the US specifically as much as possible, when not outright lying.
Officially, the EPA was/is relying on US government documents, I think one of them was something like the “USGCP” or something. Unfortunately, while one can easily show these documents were *derivative*, and *selective*, we don’t have email leaks of their production process.
Thank you, Anthony. Well said. Many liberals would rather see our industrial base move out and be left with have not depending on the haves, but they can’t answer that. Flipping burgers? Our Trickle down economy has destroyed mainland manufacturing and shipped jobs over seas.
Doesn’t leave much. The minimum wage, union wages and protectionism laws with numerous loop holes has drained America of jobs.
We lost industry due to the lack of or the closure of power plants or the breaching of Dams. Next will be the Farm industry. They won’t stop until this country is dead on the inside.
That is what has happened to the communist governments. We saw just a piece of that at GM. VA govt. take over, wipe out of investor money and holdings, theft of car dealerships and buy back of the same dealership.
There is not much left for our government to destroy and why they hate us one can find in the hearts of those that are running it in the ground and have the power to do so. It is not about science or advancement.
If this were evolution, one would think the wrong species is in control. It is as if it is not the fittest, but the lower species has the upper hand by numeric advantage. They think 2+2=5 whether we like it or not.
The downside is as they argue closing or refusing new coal power plants, shutting down atomic plants and can’t replace them, we slide into a solar sunspot minimum with predictable colder longer winters ahead with possible gaps in the power grid. The possible negative outcomes are ahead.
They are setting up the Northeast USA for failure and that is Democrat, liberal controlled area. What ate they going to say and do if massive snow storms and cold wipe out the power grid weeks on end. They may be writing their own political epitaph.
Sometimes it is hard to have a prodigal son and even harder to watch half of what was a great nation go prodigal as well.
Most Sincerely,
Paul Pierett
The politicians are not interested as long as the public accept the media hye. AGW will have to become a huge issue to the point where they will not get re-elected before they accept they have to change tack. The biggest problem with our “democracy” in Britain is that all the political parties are very similar apart from on taxation and welfare state issues.
However there has been a slight shift on climate issues in recent weeks with Cameron telling his aides to drop the “green crap”…..denied of course.
Only last month on BBC’s Question time the Climate Change Minister, an MP and two other panelists were as one in stating that the sea ice is disappearing. As of yesterday the global sea ice remains at the 7th highest coverage in the last 35 years.
Not reported….no debate…empirical data ignored.
Until the media joins us in taking a more rational view we are stuck with the nonsense at least for the time being.
I wish you well Anthony and would not argue with you but the msm simply has to get its act together.
The value of damage done by Edward Snowden to the globalist powers that be with his whistle blower NSA snooping disclosures is estimated to be in the trillions of dollars. Don’t you just love it?
I would like to see a scientific analysis on WUWT of the monetary damage he did to the rulers of our planet, and what areas were affected.
I find an uneasy parallel between our present trajectory and the history of Mexico under dictator Porfirio Diaz a hundred years ago. The deference of our courts to purported science very much resembles the influence of the cientificos in President Diaz’s regime. In the words of Encyclopedia Britannica, “The científicos furnished Díaz’s dictatorship, which they upheld as a bulwark against anarchy, with a prestigious facade….” The history provides a graphic narrative of ‘science’ in the service of personal ambition and political agendas.
The Mexican experiment did not end well. We should be warned….
Its not poor science but it all started that way. Blaming CO2 for the warming is at first poor science. Later on because of the poor science came the poor politics. And by looking to it that way its American to, Hansen and Mann are American? Or is that a lie to?
By the way calling science settled is also poor science.
What you dear Colonials are facing is what we have here in the Peoples Democratic Republic of the European Union. No democracy, just a vast bureaucratic monster realing off dictat upon dictat about how we must live our lives, ever increasing taxes & regulations, & NO accountability. The EU Parliament is nothing more than a talking shop. NO EU Commissioner is accountable, & takes no responsibility for anything. I quote examples of the Costa Concordia accident, maritime design & safety is an EU Competence (there should be the prefix “In”), yet no body seems to have been accountable! Medical equipment is an EU Competence, yet apart from finding a private business individual responsible locally, NO EU Commissioner has been accountable! Food Safety & Standards are an EU Competence, yet no EU Commissioner has be accountable for the horse meat scandal. It’s a “rubber stamp” syndrome! These are prime examples of the utter & total corruption we suffer under the yoke of the EU, typical Socialist attitude, dictate but not be held responsible, it’s always a private individual who has strayed & erred, never the State, which seeks to remove personal responsibility from all walks of life, except when the Sh1T hits the fan! I am no shill for big oil or the bankers believe you me, but as I have said before, you guys are next, the last bastion of freedom & democracy in the NWO! Fight it every which way or as bizarre as it may sound, we have predicted our own end over the years in the Hollywood movies of benign dictatorship in some future world order! We have 14 private European schools across the EU, that if my children were younger & I wanted to send them there would cost around £15,000/year. The students who attend these schools are children of EU bureaucrats, with the schools ethos to create the new European attitude & a bureaucratic “elite”, a new ruling class if you like! Google it & see for yourself. You are next!!!!
1. There ought to be a “science court” that would adjudicate scientific disputes, or at least clear the air, adjudicate certain portions of the dispute, get all the issues and source documents on the table, and “clarify the issues.”
I Googled for: “Science Court: A bibliography” and got four useful links at the top of the page:
1. Science Courts… and Mixed Science-Policy Decisions
http://ipmall.info/risk/vol4/spring/taskfor.htm
The Science Court Experiment: An Interim Report*:
(* Reprinted with permission from 193 Science 654 (1976))
Task Force of the Presidential Advisory Group on Anticipated Advances in Science and Technology**
(** The task force is composed of three members of the presidential advisory group — Dr. Arthur Kantrowitz (chairman), Dr. Donald Kennedy and Dr. Fred Seitz – and [16 others])
2. The Science Court is Dead; Long Live the Science Court!
http://ipmall.info/risk/vol4/spring/field.htm
3, Symposium Index – The Science Court – Pierce Law Center IP Mall
http://ipmall.info/hosted_resources/RISK_Symposium_ScienceCourt.asp
4. The Science Court: A Bibliography. Jon R. Cavicchi*.
http://ipmall.info/risk/vol4/spring/bibliography.htm
I’ve taken a quick peek at these and am very impressed.
============
2. If a lawsuit alleges corruption, it would have a good chance the courts will allow it access to all the emails of IPOCC scientwists to “discover” their possible wrongdoings.
Um, the court agreed to hear the case on Oct. 15.
…Premeditation has absolutely no place in science….
Er… not exactly, according to my understanding. For example, Feynman’s famous lecture points out that you start developing a hypothesis with a guess, a ‘gut feeling’ – this is synonymous with ‘premeditation’.
The scientists who believe in AGW started out perfectly correctly. They developed a belief that CO2 drives temperature. A reasonable hypothesis. Then they developed some ‘experiments’ (mainly statistical examinations) which purported to examine the real world, and found that they matched. I do not think we should ‘underestimate’ the ‘scientific consensus’ – I think that they really do believe that they have done proper science and that the agreement with reality is precise.
Where they are falling down is with Feynman’s other requirement to ‘bend over backwards’ to look for reasons why they might be wrong – other alternative explanations of their findings. From our viewpoint we can see that they are refusing to consider explanations which match the data better and better as time progresses, while their original hypothesis has needed ever more rickety props to maintain it. But how far you go with this is a value-judgement, and we can’t treat that as a reason to claim that they are ‘breaching scientific process’.
Unfortunately, because AGW science has a strong political dimension, many of the AGW supporters are holding their positions for political reasons, and there is no requirement for politicians to consider where they might be wrong. Indeed, politics is the art of ruling, and it values attributes such as loyalty – the ability to die in the ditch for a cause you believe to be right. Which is, of course, what we are seeing right now amongst the political leaders of the AGW belief…
Science just will never be a prevailing issue for SCOTUS. After all, do you recall the time SCOTUS ruling tomatos are veggies or fruit? Today, SCOTUS will sprinkle real law into it’s rulings with most of them turning on politics. If SCOTUS did accept the case they’s simply affirm Congress’s delgation of power and point to the voters to elect someone else to fix it while wishing everyone a Good Winter Festivals.
And supposing SCOTUS did rule against the EPA? What difference would it make anyway? (thanks Hillary). Another EO rolls out and another period in the courts, maybe years. Plus, their like termites, they’ll just find a different path. SCOTUS knows this. SCOTUS knows the composition of the electorate and who their voting patterns. SCOTUS is now mostly political. And, unlike some, they actually do “do the math”.
Cheer and get excited only after SCOTUS decides against the EPA before working to block the EPA. They never give up.
Not much is going to change until there is strong political will for change. Your president seems to have a penchant for having hand puppets gesticulating on his behalf whatever he does. He and his ilk are the source of the problem. I can’t see a court of law arbitrating on issues of scientific disagreement. I just can’t. Frankly, they shouldn’t have to. Ultimately it’s in the public domain where judgement will be passed, when the cure is seen as more drastic than the ailment and the self serving behavior of the most deeply embedded troughists becomes patently obvious. Thus endeth my little rant.
Anthony said: “Premeditation has absolutely no place in science”.
Is this quite apt? While I expect most of us have never had such an experience, doesn’t some new scientific theory essentially start with a realisation that phenomena A and B are in some way linked, then investigating the linkage and developing a theory which accounts for it? This is all essentially premeditated: doing research purposefully, seeking to verify the validity of the theory.
But to follow scientific method rigorously the theory and research must be properly documented, all data and methods published to allow reproducibility and a null hypothesis stated when the theory is accepted to have failed.
I rather sympathise with the Supreme Court’s approach not to get involved in the science – the Justices can’t be experts in all fields known to mankind. But surely the Court does have power to ensure that the scientific method is rigorously applied, before any executive act is taken in reliance on a controversial theory. On application by a group of appropriately qualified persons, shouldn’t it grant a mandamus order that the executive should publish and archive full particulars of the theoretical basis on which the executive relies, all relevant research and data and state a nul hypothesis – ensuring that the theory is open to rigorous examination and testing?
Unclear: are there verbs missing?
“This means the arguments EPA used in the Massachusetts case, about why they should not deal with CO2, very telling and important. ” – 2
“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).” – 3
The real issue has always been corruption. We live in a corrupt age. Climate science is just a focus of the corruption.
Reverse a recent ruling? Unlikely.
Interesting observation about lawyers being “Arts” students. But not really surprising when you get right down to it. Lawyers deal with language as their medium, which is an “Arts” area. For a lawyer, it is not WHAT you say, but HOW you say it that matters.
I remember the old LA Law. Stuart Markowitz was the geek of the show. And yes, he was a tax lawyer. The only one that appeared to be solely logical, while the rest of the partners were almost solely emotional.
The science will ultimately only be settled by time. Many in life are followers. This holds in science as well. They will not stick their necks out for fear of having them chopped off. So they will bide their time and stick with the majority. As warming fails to hold with CO2 levels, the consensus will slowly shift as will the majority. At some point the line in the sand will be crossed, and a new theory gain prominence.
philjourdan says:
December 19, 2013 at 4:26 am
Interesting observation about lawyers being “Arts” students. But not really surprising when you get right down to it. Lawyers deal with language as their medium, which is an “Arts” area. For a lawyer, it is not WHAT you say, but HOW you say it that matters.
****************************************************************************************
This is so true, as an example from above:
Rattus Norvegicus says:
December 19, 2013 at 2:55 am
Um, the court agreed to hear the case on Oct. 15.
*******************************************************************************
This means we should know the judgement now (because the case was heard on Oct 15th)
I think this should have been: The court agreed on Oct 15th to hear the case. Same words but a very different meaning.
Funny thing language, but beware politicians use this to say one thing and give the impression that they have said something else. If called out, they just point to the actual words used and say “that’s what I said.”
Steve T
…Funny thing language, but beware politicians use this to say one thing and give the impression that they have said something else….
Actually, it’s ENGLISH that is the funny thing here. English is chock-full of ambiguous structures and ways of saying things. Read Empson. Other languages can be much more precise – Latin, for instance. You couldn’t make the same construction in Latin because the tense would be shown by the verb ending. The Romans were anal about tenses – indeed, most grammatical structures…
As I said before , you could on examining the EPAs witnesses, ask them what would happen if they were hugely successful and CO2 were reduced to significantly below 170 ppm or to zero. You could also ask what would happen to crop yields if CO2 fell significantly. Perhaps they could ask the witnesses what would happen if CO2 returned to preindustrial, given that was the little ice age then ask them what sort of mortality happened in the LIA. From a legal perspective, it’s hard to label something that is essential to life, and has led us away from a climate that killed 1/2 of Europe as pollution. Then they should also ask, what is the best level of CO2 for life, what is the optimal temperature, followed by how do you know that. Since the optimal level of CO2 is above today’s CO2 and lowering CO2 too much would be extremely hazardous one can hardly argue its a pollutant and the most prudent policy is sustainment of current emissions , or (per the IPCC) increasing emissions until 2 degrees of warming occurs. Legally speaking, I dont think you could declare CO2 to be pullution until it it is causing more than 2 degrees of warming, and you can demonstrate actual harm. IPCC science shows near term benefits from warming not harm. So history has it as beneficial, modelling has it beneficial at least for the next 2 degrees, what’s not to like about CO2
In essence I think you could cause EPA witnesses to make your case for you in court if you asked the right questions under oath. They should concentrate on the dangers of reducing CO2 (crop yields and land fertility) The dangers of cooling climate due to lower CO2 and the subsequent effects on the landowners in the USA and their constitutional right to life, liberty and justice. Convert it to a constitutional do no harm argument and show reducing either CO2 or temperature causes harm. This is not a hard argument, an ice age is not seen as a utopia, even by supreme court judges.
Should they argue they can’t reduce CO2 on their own, then that just makes the point that the regulation is pointless .