by Judith Curry
The limits of judicial competence and the risk of taking sides
Several recent posts have discussed the involvement of courts in climate science disputes:
- The Urgenda ruling in the Netherlands
- Minnesota Trial: Social Cost of Carbon
- Silencing climate dissent via the courts
Lucas Bergkamp has a new paper in press: Adjudicating scientific disputes in climate science: the limits of judicial competence and the risks of taking sides. In this rich 29 page paper, it was difficult for me to decide what to excerpt, below is some text that particularly struck me:
At first impression, if a court were to rubberstamp the scientific consensus, the possible risk of a sort of ‘Galileo trial’ without a suspect, cannot be excluded, since consensus is no guarantee for truthfulness. Although the ‘Galileo’ risk can never be avoided, it should caution policy-makers, scientists, and, above all, lawyers to keep an open mind, even in the face of apparent widespread consensus. In the case of Galileo, science operated under the oversight of religion. Religion is not the only master that science may have to serve. In modern societies, politics or governments are more likely candidates for this position.
Causation in science and in law
Causal requirements, i.e. the conditions under which a cause-effect relation is assumed to exist between two variables, differ greatly between various fields of science, and between science and law. In science, a broad distinction is made between correlation and causation, but there are also close relations between the two. Statistics have important things to say about the probability that a finding is true or false, but there are numerous pittfalls. In law,a broad distinction is made between ‘cause in fact’ and ‘cause in law.’ In Anglo-Saxon jurisdictions, cause in fact is often described as the ‘but for’ test; in civil law jurisdictions, this is the ‘conditio sine qua non’ test, i.e. cause as a necessary condition for a consequence. The exceptions to this requirements are limited.
To prevent the misuse of science in the law, courts have to ensure that the causal conditions that have been applied by the scientists meet the law’s causal requirements. For instance, scientists might conclude that that there is a cause-effect relation between two variables based solely on correlation, even relatively weak correlation, and a “weight of the evidence” approach. A court, however, is likely to be required under the applicable law to apply more robust and demanding causation and evidentiary requirements.
Consequently, a court cannot simply endorse a scientific conclusion, but has to examine independently whether the conclusion is based on the same standards and rules that the court is required to apply. In other words, a court has to apply its own standards to determine whether the scientific conclusions hold up under the law. In evaluating the evidence, it would have to call on scientists from across the spectrum of climate science and beyond, not only those that are affiliated with the IPCC or supported by a powerful state government.
Judicial assessment of scientific consensus
In its Daubert judgment, the US Supreme Court explicitly rejected the consensus or “general acceptance” test for the admissibility of scientific opinions to replace it with requirements regarding sound scientific methodology, validity, and relevance. Thus, consensus is likely to present an issue in relation to the relative degree of credibility or reliability assigned to scientific evidence.
A court may be tempted to treat scientific findings as facts in law, if there is “consensus” about such findings among scientists, since consensus science can be presented in an authoritative manner. On the other hand, a court should realize that consensus may be very far from unanimity and refer merely to the largest minority among a group of scientists. At a more fundamental level, consensus does not exhaust science. In politics, consensus is required to achieve results and progress. In science, however, the debate is never closed, although it may be dormant for some time. Even a widely accepted scientific theory can be falsified at any point in time, without notice. Science does not need consensus, and too strong an emphasis on consensus may even harm scientific creativity or the way science is presented to policy-makers.
In short, consensus is not necessarily irrelevant, but consensus needs to be understood to determine how much weight it should be given, and how it compares to other scientific opinions. Unthinkingly rubberstamping consensus science is not a good practice. In a court room, a claim that there is scientific consensus raises several questions. First, what is the basis for the claim that there is consensus? In other words, how do we know there is consensus at all, and how strong is the evidence supporting the consensus? Second, what is the nature and extent of the scientific consensus? This examination covers issues such as precisely on which findings and facts is there consensus and why, and on which findings and facts is there disagreement and why. Third, how was the consensus produced, i.e. in what kind of environment? Of course, consensus that is based not on persuasive argument, but on silencing dissent by inappropriate means, is not worth anything. Likewise, if an area of science is politicized, consensus may not signal the state of the science, but political dominance.
Process of Consensus Formation
In terms of the process, courts should examine the institutional environment and process in which the pertinent scientific consensus (or other advice) is produced. In other words, it should examine the “politics” of the relevant science and scientific claims or advice. Science is not free from politics, and the organizational, institutional, and procedural context may exercise strong influence on the dominance of scientific theories.
Consequently, there may be substantial differences in the process that leads to the consensus. At one extreme, a process of objective, interest-free deliberation of scientific findings and theories, in an environment free from politics and possible sanctions for adopting any legitimate scientific position, may result in broad concurrence of scientists around a particular scientific theory and specific facts and findings. In such cases of “spontaneous” scientific consensus, a court of law does not run much risk in relying on the consensus position. At the other extreme, however, the process that leads to the consensus is heavily politically charged, as well as strongly value-laden, the environment in which the scientists operate is polarized and characterized by competing non-scientific interests, and scientists are exposed to possibly significant consequences attached to taking a scientific position that deviates from the consensus position. As discussed further below, the climate science consensus is closer to the latter end of the range, and this has consequences for the legal assessment of the climate change consensus.
The Political Nature of Climate Consensus
Thus, the IPCC’s focus is on the human contribution to climate change, not on all possible causes of climate change, which limits the scope of its scientific assessments. Furthermore, the IPCC’s mission is not to carefully map the state and limits of the science and the diversity of scientific opinions, as that would not help policy-makers. Although it is required to be “neutral” and “objective,” there is no effective mechanism to enforce these standards. To the contrary, the process is formally political, since “[c]onclusions drawn by IPCC Working Groups and any Task Forces are not official IPCC views until they have been accepted by the Panel in a plenary meeting.”
The IPCC bodies are required to “use all best endeavours to reach consensus.”In practice, to meet the policy demand for actionable scientific advice, the IPCC was forced to take positions on key scientific issues based on consensus, or at least the public perception of consensus. As a result, scientific deliberation within the context of the IPCC is not free and unencumbered. Rather, the IPCC had to “walk the tightrope of being scientifically sound and politically acceptable.”
The politicization of the IPCC consensus formation and reporting process is further reinforced by the substantial vested interests in climate science and ambitious climate policy. These interests are material as well as ideological. Vast amounts of money are spent on academic and other research, consulting work, etc. Obviously, these funds generate incentives to produce research that requires further research. But there is also an important ideological component. Using climate policy as a prime example, Pieterman and Hanekamp refer to the “vested interests in fear and precaution” as the “precautionary coalition.” This coalition would include academia, environmental NGOs, mass media, and supranational political bodies, and be guided by the ‘Thomas theorem:’ “when people think something is real, it will become real in its consequences.”
Dissenting scientists have either abandoned IPCC process, or they have been marginalized the drive towards consensus. Of course, their defection says nothing about whether they are right or wrong, but, as these dissenting scientists are legitimate scholars, not charlatans, it is a cause for concern. Hence, a court judgment that invokes consensus as a justification would be perceived as taking sides and, thus, would only aggravate the already politicized situation.
Although it apparently influences the thinking of low level judges with no scientific training, the emphasis on scientific consensus in climate science is not likely to move the debate forward. It harms not only the scientific process, but also the process of public opinion formation and policy configuration. At law as elsewhere, consensus is a relative concept and needs to be explored further.
In climate science, scientific consensus, depending on the specific issue, may be relevant, but it may also be unreliable or irrelevant. But consensus is never decisive. Courts should be aware of the relativity of scientific consensus to deciding issues of fact in law. The political IPCC process of consensus formation in climate science is not favorable to the free competition of the best scientific concepts. It does not encourage thorough debate. It pushes consensus in the direction set by the early identification of anthropogenic emissions as the cause of climate change.
If scientists cannot resolve these complex and tricky issues, how can courts resolve them? Society faces very substantial scientific uncertainty, which is the root cause of the scientific disagreements. Courts cannot make the uncertainty go away, and, if substantial, court decisions granting claims will also be arbitrary and subjective, not based on law.
Courts should be aware that consensus science, which is invoked by policy advocates only if it supports their cause, is not a reliable guide, because it may reflect ‘science power politics, ‘group think,’ political pressure, or be seriously biased for other reasons. As a matter of law, the IPCC reports cannot be assumed to be either representative of a scientific consensus, or free from political influence and value judgments; this would need to be established independently for each specific statement. In a climate case, more so than any other policy-related case, courts need to inform themselves of the range of scientific opinions, the specific points of agreement and disagreements, the assumptions made by scientists, their theories and reasoning, the validity and accuracy of the models used, the unknowns, uncertainties, and gradations, etc. Once they understand the climate science arena and the politics around it, they will see the pitfalls of ruling on any scientific disputes in this area: erroneous conclusions on the facts, usurpation of legislative power, upsetting the balance of powers, and frustrating effective and efficient policy-making. “Stay out” would appear to be the best advice for courts.
If courts value the universe of science, uphold the rule of law, and stay within the limits of their own authority, they should refuse to rule on climate science and refer scientific disputes back to the scientific community, which is where they belong. Such is what the law and the balance of powers require, also in the international arena.
In recent weeks, I have been writing frequently about legal challenges involving climate change. Not just because there have been recent and relevant cases and proposals, but because of my own subpoena in an ongoing U.S. Supreme Court case (I was deposed earlier this month – will do a blog post on this case at some point).
Lucas Bergkamp is providing valuable perspectives on these cases and the broader issues. As we saw in the Minnesota case, consensus does not rule, but rather there are two sides that are given equal time. The sad thing is that the scientific community seems more focused on silencing dissent. Perhaps the courts have something to offer on the climate science debates.