A group of climate scientists has submitted an amicus curiae brief to the Supreme Court in support of the petitioners, the State of Massachussetts et al. against the EPA. The lawsuit has to do with the regulation of carbon dioxide by the EPA (details can be found here).

One of the participating climate scientists emailed me and asked that I post their brief and ask for comments here on Prometheus, which we are happy to do. The brief can be found here in PDF.

We’d welcome comments on either the substance of the brief or the advocacy of these scientists. I’ll start things off with some comments after the jump.


I am not a lawyer, nor am I in the business of predicting Supreme Court judgments. But I do have a few more-or-less random and perhaps not-well-thought-through thoughts about the case.

1. In my judgment EPA clearly has the authority to regulate CO2, despite what they have said to the contrary. The decision to regulate anything is at its core a political decision. So it seems that the EPA position that they do not have authority should be overturned.

2. As I understand the CAA the decision to propose regulations is at the judgment of the EPA Administrator, and given that the costs and benefit of CO2 regulation are legitimately contested, I do not see the Supreme Court mandating how exactly the EPA administrator should exercise his/her judgment. In such cases over history major policy decisions like this are more appropriately made by the legislature, and I can imagine the SC following this thinking as well. The most relevant legislative precedent would seem to be the provisions included in the Clean Air Act Amendments of 1977 which added a section for the regulation of ozone depleting chemicals. Presumably, if this provision was not needed, then Congress would not have seen fit to add it. I’d suppose that the SC might want to see similar explicit legislative guidance provided for CO2 before supporting its regulation. But maybe not …

3. Even if the SC does mandate the initiation of a regulatory process I am doubtful that regulations — or meaningful regulations — would ever occur, under the Bush Administration or any other. This is because all federal regulations have to pass cost-benefit test under OMB/OIRA. Under the standard approach to C/B analysis the discount rate used will provide a very high bar for any regulation in which costs are borne today and benefits decades in the future. A second factor is the role of adaptation of these long time scales which according to much of the climate impacts literature in many cases (in the US, at least) has great potential to reduce many of the possible impacts. The regulatory system is not well designed for dealing with problems with a large asymmetry in the timing of costs and benefits, particularly in contexts where there are a diverse and legitimate range of perspectives. In this instance the response to ozone depletion is a very poor precedent. Once substitutes were developed the short-term costs dropped to near zero (and maybe even negative) making regulation a relatively simple action. A more appropriate analogy related to ozone may be methyl bromide – an ozone-depleting chemical used on strawberries – which is not currently regulated because the short-term costs are very high due to the fact that there are (as yet) no viable substitutes.

As far as overt political advocacy by scientists, I certainly am not against it, but it does have consequences for both individuals and for the community. The decision to become a political advocate is not unlike the decision of a medical researcher to take funds from a big company. Lots of people do it, it does have positives, but would we want every medical researcher doing it? Indvidual decisions by scientists have collective consequences. I do think it is a bit disingenuous of a few of the scientists who have publicly stated that they are focused not on advocacy but correcting the scientific record. Lets be clear, taking sides and participating in a court case is not about science; it is about politics.