Warm Out?

In addition to Crim Law, I try to keep my fingers on the pulse of Environmental Law.  Some would call me crazy for splitting my legal interests in this way – but most just call me unemployed.  Anyway. Environmental Law has come up randomly in discussion lately, mostly around the issue of global warming. 

This year the Supreme Court of the United States heard a case called, Commonwealth of Massachusetts, et al. (Petitioners) V. U.S. Environmental Protection Agency (Respondents).  The case basically deals with the US EPA’s failure to regulate greenhouse gases (the gases that cause global warming).  It’s a moderately tangled mass of law, which I won’t try to do justice to this evening.  I would like to post up something that I hope non-lawyers find interesting. 

For cases which appear before the Supreme Court, interested groups who are not actual parties to the litigation can file briefs called “Amici Curiae,” which means “Friends of the Court.”  These amicus briefs, which the court can chose to read or not, can do many things – sometimes, for example, they attempt to inform the court about technical or scientific details and processes, an issue that the legal briefs themselves, being usually limited to 50 pages, don’t have space to address.  I thought I’d post one such brief for MA v. EPA from a group of climate scientists.  The whole brief is available here (Download scienceamicus.pdf) and deals with the legal issues.  However, I thought I’d excerpt a few high points, reordered for readability, with all the legal stuff stripped out:

As practicing scientists who study the earth’s climate system, we and many in our profession have long understood that continued human-caused emission of greenhouse gases--primarily carbon dioxide (CO2), but also methane (CH4), nitrous oxide (N20), and fluorocarbons-would eventually warm the earth’s surface. Most were skeptical that we would see strong signs of human-induced climate change in our lifetimes. But by the beginning of this decade, we observed that global temperatures are rising, plant and animal ranges are shifting, glaciers are in retreat globally, and arctic sea ice is retreating. Sea levels are rising and the oceans are becoming more acidic. To the extent that these changes result from human alteration of the atmosphere, we know that they are just the first small increment of climate change yet to come if human societies do not curb emissions of greenhouse gases.  The evidence of these changes, though attended by the uncertainty or caveats that appropriately accompany scientific knowledge, is nonetheless so compelling that it has crystallized a remarkable consensus within the scientific community: climate warming is happening, and human activities are very likely a significant causal factor. The nature of this consensus may be obscured in a public debate that sometimes equates consensus with unanimity or complete certainty. We are profoundly troubled by the misunderstanding or misrepresentation of the current state of knowledge of climate change evident in the United States Environmental Protection Agency’s ("EPA’s’) denial of the petition for rulemaking to regulate emissions of greenhouse gases from mobile sources.  EPA and the appeals court stated that they considered the NAS/NRCre port Climate Change Science to be the scientific authority for the decision to deny the petition to regulate. We feel an obligation to inform this Court that they misunderstood or misrepresented the science contained in this report, to correct the public record as to what Climate Change Science and subsequent NAS reports say about climate change, and to offer our professional insight on using scientific evidence to judge whether a particular standard for regulatory action is met in the matter of climate change.

***

A large part of the work of science is directed towards understanding and quantifying uncertainties. The goal is to place bounds on future outcomes. An hypothesis is deemed "virtually certain" if the predicted outcome is expected to occur for 99% or more of repeated trials, "very likely" for 90-99%, and "likely" for 66-90%.  Absolute certainty is impossible in principle in climate science, as in all fields of science.

***

The Science of Climate Change Indicates that It Is Virtually Certain that Greenhouse Gas Emissions from Human Activities Cause Global Climate Changes, Endangering Human Health and Welfare.

***

To aid this Court in understanding the foregoing conclusion, we first clarify what scientific knowledge informs us about anthropogenic climate change.

1. The basic physics underlying the greenhouse effect is firmly established. . . First, particular atmospheric gases (" greenhouse gases") absorb radiation that otherwise would be lost to space, and re-radiate it back to the ground. A planet with those gases in its atmosphere is thus warmer at the surface than it would be without them. Second, greater atmospheric concentrations of greenhouse gases, all other things being equal, cause higher temperatures at the surface. The Earth is habitable for its current life forms in part because natural levels of greenhouse gases in the atmosphere warm the surface.

2. Over the last two centuries, it is virtually certain that human activities have increased amounts of important greenhouse gases (primarily CO2, CH4, N2O, and fluorocarbons~) in the atmosphere to levels not seen in all of prior human experience, and likely not seen for 3 million years.

3. It is likely or very likely that human-induced increases in these greenhouse gases are already causing global climate to warm. Human activities likely caused most of the approximately 0 .6 °C (1.1 °F) rise over the 20th century. . .The mean ocean temperature has risen by 0.05 °C (0.09 °F), global average sea level has risen by 0.1 to 0.2 meters (1/3 to 2/3 feet) over the 20th century, and snow cover and Arctic ice have decreased by about 10% and 10-15%, respectively, since the late 1960s (when data first became available for this measurement).

***

Among the more certain predictions are the following:

a. It is likely, based on both models and on data from the ice ages over the last 400,000 years, that if atmospheric carbon dioxide doubled from pre-industrial times, and rose no further, the long-term rise of global average surface temperature (the "climate sensitivity") would between 1.5 and 4.5 °C (2.7 - 8.1 °F).

b. In the absence of emissions reductions, however, carbon dioxide concentrations in the atmosphere are very likely to increase to much more than twice pre-industrial values, and the consequent rise in global average temperature during the 21st century, projected to be 1.4 to 5.8 °C (2.5 to 10.4 °F), will likely continue to higher values
beyond the year 2100.

c. This amount of warming in 6.a and 6.b is very likely to drive melting of arctic ice sheets and further increases in global average sea level by 2100, with continued sealevel
rise in the decades and centuries following 2100

d. The anticipated sea level rise, especially when combined with likely increases in hurricane intensities, would exacerbate storm surges and have direct, negative impacts on health and welfare in the United States, and globally. These negative impacts would be concentrated in low-lying coastal regions, such as Cape Cod, Massachusetts, the Gulf coast, and southern Florida.

e. Rising temperatures are also likely to lead to increases in extreme weather events (especially heat waves, and associated heat-related deaths) and altered patterns of rainfall (e.g., droughts and floods) that will disrupt natural and agricultural ecosystems, and increase the risk of extinction of animal and plant species.

f. Ocean acidity is very likely to increase by several tenths of a pH unit due to continued uptake of carbon dioxide, and this acidification is likely to cause substantial stress to key marine organisms, and hence to whole marine ecosystems, particularly in cold water regions. Although this is an impact of increasing levels of greenhouse gases, it is not an atmospheric climate change and therefore was not addressed in Climate Change Science.

g. Ground level ozone ("smog") levels (and associated risks to human health) are very likely to increase with temperature, especially in the Northeastern United States, where many areas currently experience ozone levels that exceed EPA Clean Air Act standards on hot summer days.

8. Apart from the likely, very likely, and virtually certain gradual climate changes outlined in points 1-7, there is also an as yet unquantifiable probability that continued greenhouse gas emissions will trigger abrupt climate change surprises that could very rapidly impose large impacts on ecosystems and human welfare and health.

***

10. Delaying reductions in greenhouse gas emissions heightens the risk to human welfare because climate inertia commits us to large-scale, long term (centuries) climate change consequences before the exact nature of those consequences can be known.

Comments

[jfakljfdk]

i suggest you read elizabeth kolbert's notes from a catastrophe.

[Kat]

Thank you so much for this thought-provoking post, Scoplaw. I enjoyed digging through your points as well as the Supreme Court brief you linked to, and have been busily browsing both sides of the issue since (As an aside, I had no idea that the US has completely phased out lead in gasoline...I wish Australia would hurry up and follow suite!)