Amicus Curiae Brief — Massachusetts v. EPA

38 File Date:

MAY 15 2006

No. 05-1120

In the Supreme Court of the United States

COMMONWEALTH OF MASSACHUSETTS, ef al.,

Petitioners.

.

U.S. ENVIRONMENTAL PROTECTION AGENCY, e/ a/.,

Respondents.

On Petition of Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

BRIEF OF AMICI CURIAE CLIMATE SCIENTISTS

DAVID BATTISTI, CHRISTOPHER FIELD, INEZ

FUNG, JAMES E. HANSEN, JOHN HARTE, EUGENIA

KALNAY, DANIEL KIRK-DAVIDOFF, JAMES C.

MCWILLIAMS, JONATHAN T. OVERPECK, F.

SHERWOOD ROWLAND, JOELLEN RUSSELL,

SCOTT R. SALESKA, JOHN M. WALLACE, AND

STEVEN C. WOFSY

IN SUPPORT OF PETITIONER

JOUN C. DERNBACTI ROBERT B. MCKINSTRY, JR.*

WIDENER UNIVERSITY PENN STATE UNIVERSITY

LAW SCHOOL 432 FORUS! RESOURCES

3800 VARTAN WAY BUILDING

HARRISBURG, PA) 17106 UNIVERSI!Y PARK, PA 16802

(717) 541-1933 (484) 407-3207

* Counsel of Record

KIRSTEN H. ENGEI

UNIVERSITY OF ARIZONA

COLLEGE OF LAW

1201 E. SPEEDWAY BLVD

TUSCON, AZ 85721

(520) 621-8444

Counsel for Amici Curiae Climate Scientists

EEE DI I I I TE TD TI TT ETE TE TILE IIT IE TIES

=

TABLE OF CONTENTS

Page

TABLE OF AUTIRORITEES 2... cccccscccccvece Tre il

Se Rees CO ANTI CURIAD 2... cs cecsccccesesss 1

SUNIMARY OF ABRIMIENTE wn ccccccccccsccsccess 6

es hss nodeannadasdeneaceceebadinndwads 8

THE COURT SHOULD GRANT CERTIORARI TO

REQUIRE EPA TO FOLLOW THE CLEAN AIR ACT AND

SETTLE A GLOBALLY SIGNIFICANT ISSUE

REGARDING THE IMPACT OF GREENHOUSE GASES

ON THE EARTH'S ENVIRONMENT. .............. 8

L.The Court of. Appeals Ignored Reasonable Scientific

Certainty That Emissions of Carbon Dioxide and Other

Greenhouse Gases from Mobile Sources and Other

Anthropogenic Sources Have Already Had an Effect on

the Earth's Climate and Will Continue to Affect Climate

PSI. ckddanthadccnnddetecceuasaeausds 8

II. The Court of Appeals Erred in Not Requiring EPA to

Apply the “Reasonably Be Anticipated to Endanger

Public Health or Welfare" Standard in Section

202(a)(1) of the Clean Air Act ................. 13

PEON in Sr nak beads n den dead phheceeseuns 20

Appendix: STATEMENT OF CLIMATE SCIENTISTS ON GLOBAL

CLIMATE CHANGE: DAVID BATTISTI, CHRISTOPHER FIELD,

INEZ FUNG, JAMES E. HANSEN, JOHN HARTE, EUGENIA

KALNAY, DANIEL KIRK-DAVIDOFF, PAMELA A. MATSON,

JAMES C, MCWILLIAMS, JONATHAN T. OVERPECK, JOELLEN

RUSSELL, F. SHERWOOD ROWLAND, SCOTT R. SALESKA, JOHN

M. WALLACE, ANDSTEVEN C. WOFSY .............. Al

(i)

TABLE OF AUTHORITIES

Cases | Page

BedRoc Ltd., L.L.C. v. United States, 541 U.S. 176 (2004). .14

Burlington Truck Lines, Inc. v. United States, 371 U.S. 156,

PEPE. ec uéceeanknnenecenh esas es aneesanceavctnd 9

Citizens to Preserve Overton Park v. Volpe, 401 U.S. 41402

gg SO TET Torey Tre reer Te Tee 9

Hartford Fire Ins. Co. v. California, 509 U.S. 764 (1993) . 19

Murray v. Schooner Charming Betsy, 6 U.S. 64 (1804)... 19

Massachusetts v. EPA, 415 F.3d 50 (D.C. Cir. 2005) .. 9, 16

Motor Vehicle Manufacturers Ass'n vo. State Farm Mutual

Automobile Ins. Co., 463 U.S. 29, 43 (1983) ........... 9

Weinberger v. Rossi, 456 U.S. 25 (1982)) ........... 18-19

Spector v. Norwegian Cruise Line, Ltd.,545 U.S. 119, 125S.Ct.

ic sac ud calidteneeecaushwankueies 19

\Vhitman ov. American Trucking Assn., 531 U.S. 457, 467—

SE glhaktnedseacuckinndnhudesdeeessaseteudes 14

Constitution, Statutes and Administrative Materials

Seka fF 8} er rere busau¥acdaaes 18

Clean Air Act, 42 U.S.C. 88 7401-767 1q,

§ 202(a)(1), 42 U.S.C. 8 752Ma)(1) ...... 7, 13-16, 18-20

68 Fed. Reg. 52922 (Sept. 8, 2003) ............. 8, 14, 19

(ii)

Miscellaneous Page

United Nations Framework Convention on Climate

Change, U.N. Doc. A/ AC 237/18 (1992), reprinted in 31

od ono dan gu Wkkt hee ee eae 7-8, 18

ewe h one he sak ce aken ean 7-8, 18, 20

EC a 6es hee ae weeks senha cadendcees 18

NATIONAL RESEARCH COUNCIL, ABRUPT CLIMATE CHANGE:

INEVITABLE SURPRISES (2002) .............-48. pass

NATIONAL RESEARCH COUNCIL, CLIMATE CHANGESCIENCE:

AN ANALYSIS OF SOME KEY QUESTIONS (2001)... passim

INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE,

CLIMATE CHANGE 2001: THE SCIENTIFIC BASIS (2001) . 9

(ili)

INTEREST OF THE AMICI CURIAE'

Amict Curiae Climate Scientists are David Battisti,

Christopher Field, Inez Fung, James E. Hansen, John

Harte, Eugenia Kalnay, Daniel Kirk-Davidoff, James C.

McWilliams, Jonathan T. Overpeck, F. Sherwood Rowland,

Joellen L. Russell, Scott R. Saleska, John M. Wallace, and

Steven C. Wofsy (hereinafter “Climate Scientists”).> The

Climate Scientists are individual climate scientists who are

actively involved in research on changes to the Earth’s

climate that are being caused by anthropogenic emissions

of carbon dioxide, methane, nitrous oxide, sulfur

hexafluoride, hydrofluorocarbons, and perfluorocarbons

(“greenhouse gases” or “GHGs”) and the effects of those

changes. Most of these scientists are members of the

National Academy of Sciences (“ NAS”)’ or Engineering, or

have served on one or both of two recent National

Academy of Sciences/ National Research Council

(“NAS/ NRC”) panels that have reviewed the state of the

science on climate change and the impacts of human

activities on climate.’ The NRC, the Academy’s principal

' All- parties have consented to the filing of this brief. Pursuant to

this Court's Rule 37.6, Amici state that no counsel for any party in this

case authored this brief or the appended Statement in whole or in part,

and no person other than Annci and their counsel have made a

monetary contribution to the preparation and submission of this brief

or the appended Statement.

* The Climate Scientists are appearing, in their individual capacity

and not as representatives of any institution with which any of them

is affiliated.

“The National Academy of Sciences (“NAS”) is a private, nonprofit,

self-perpetuating, society of distinguished scholars engaged in

scientific and engineering, research, dedicated to the furtherance of

science and technology and to their use for the general welfare, Upon

the authority of a charter granted to it in 1863, the Academy has a

mandate that requires it to advise the federal government on scientific

and technical matters.” NATIONAL RESEARCH COUNCIL, CLIMATE

CHANG” SCIFNCF: AN ANALYSIS OF SOMF KEY QUESTIONS (2001)

(“CLIMATE CHANGE SCIENCE” or “2001 NAS/NRC Report” ], Preface.

d.; COMMITTEEON ABRUPT CI IMATE CHANGE, NATIONAL RESEARCH

CouNciL, ABRUPT CLIMATE CHANGE: INEVITABEF SURPRISES (2002.)

2

operating arm, was formed in 1916 to further scientific and

technological Knowledge and to advise the federal

government. NATIONAL RESEARCH COUNCIL, CLIMATE

CHANGE SCIENCE: AN ANALYSIS OF SOME OF THE KEY

QUESTIONS, preface (2001). Amicus David Battisti is the

Tamaki Professor of Atmospheric Sciences at the

University of Washington. He has a Ph.D. from the

University of Washington in the field of atmospheric

sciences. He has been involved in the field of climate

dynamics and climate change since 1984 and his research

involves climate variability (El Nino, drought in the Sahel,

decadal variability in the climate svstem), paleoclimate

(abrupt climate change during the last glacial period), and

climate change. He served for three years on the NAS

Committee for Climate Research and for six years was co-

chair of the United States Climate Variability and

Predictability Science Steering Committee.

Amicus Christopher Field is the founding director of

the Department of Global Ecology of the Carnegie

Institution of Washington and Professor of Biological

Sciences at Stanford University. He has a Ph.D. from

Stanford University in the field of biological sciences. He

has been involved in the study of climate change impacts

and the global carbon cycle since 1988. He is a member of

the National Academy of Science.

Amicus Inez Fung is Professor of Atmospheric Science

and Co-Director of the Berkeley Institute of the

Environment at the University of California at Berkeley.

Dr. Fung received her Sc.D. from the Massachusetts

Institute of Technology. Her research expertise is in large-

scale numerical modeling of biogeochemical cycles and

their interaction with climate. Her research also includes

climate change, remote sensing of earth systems,

investigations of atmosphere-ocean interactions, and

atmosphere-biosphere interactions. She is a member of the

National Academy of Sciences and served on the National

Research Council's Committee on Climate Change Science

“ABRUPT CLIMATE CHANGE” or “2002 NAS/NRC Report’ ].

I

3

that reviewed the state of climate science for President

Bush and produced the 2001 NAS/ NRC Report.’

Amicus James E. Hansen is head of the NASA

Goddard Institute for Space Studies. Dr. Hansen received

his Ph.D. from the University of Iowa. His research

interests include radiative transfer in planetary

atmospheres,.development of global climate models,

current climate trends from observational data, and

projections of man’s impact on climate. He is a member of

the National Academy of Sciences and served on the

National Research Council's Committee on Climate

Change Science that reviewed the state of climate science

for President Bush and produced the 2001 NAS/NRC

Report.”

Amicus John Harte is a Professor in the Energy and

Resources Group and the Ecosystem Sciences Division of

the College of Natural Resources at the University of

California at Berkeley. He received a B.A, in physics from

Harvard University in 1961 and a Ph.D. in theoretical

physics from the University of Wisconsin in 1965. He has

been involved in the study of earth system science since

1973 and his research currently focuses on the ecological

consequences of climate change and the climate

consequences of ecological changes. He has served on six

different panels of the National Academy of

Sciences / National Research Council.

Amicus Eugenia Kalnay is a Distinguished University

Professor at the University of Maryland. Previously she

was Director of the Environmental Modeling Center at the

National’ Weather Service and Head of the Global

Modeling Branch at the NASA Goddard Space Flight -

Center. She has a Ph.D. in meteorology from MIT. Her

research expertise is in numerical modeling of the

atmosphere, data assimilation and predictability, El Nino

prediction, and applications of satellite remote

measurements to weather and climate problems. She is a

~ CLIMATE CHANGE SCIFNCF, supra, note 3,

"Id

4

member of the National Academy of Engineering, and has

served on many panels of the National Academy of

Sciences / National Research Council.

Amicus Daniel Kirk-Davidoff is an Assistant Professor

in the Department of Meteorology at the University of

Maryland. He received a Ph.D. in Meteorology from the

Massachusetts Institute of Technology in 1997. He is a

climate dynamicist with interests in the stratospheric

water vapor budget, paleoclimate modeling, satellite

climate monitoring, and the use of satellite data to

improve climate models.

Amicus James C. McWilliams is the Louis Slichter

Professor of Earth Sciences at University of California, Los

Angeles. He has a Ph.D. from Harvard University in the

field of applied mathematics. He has been inv olved in the

study of oceanic and atmospheric circulations and climate

since 1970. He is a member of the National Academy of

Sciences and a Fellow of the American Geophysical Union.

He served on the National Research Council's Committee

on Climate Change Science that reviewed the state of

climate science for President Bush and produced the 2001

NAS/ NRC Report.

Amicus Jonathan T. Overpeck is a Professor of

Geosciences and a Professor of Atmospheric Sciences at

the University of Arizona. He has a Ph.D. from Brown

University in the field of geological sciences. He has been

involved in the study of climate science since 1979. His

research focuses on using models and the climate record

of the past million vears to understand climate variability

and future change. He has served on the NAS/NRC

Committee on Abrupt Climate Change.”

Amicus Prof. F. Sherwood Rowland is the Bren

Research Protessor of Chemistry and Earth System Science

at the University of California Irvine. He has a Ph.D. in

Chemistry from the University of Chicago in the field of

Physical Chemistry. He has been involved in the study of

dd

~ ABRUPT CLIMAT! CHANG#, supra, note 4.

5

the atmosphere since 1973, and received the 1995 Nobel

~ Prize in Chemistry (with Mario Molina and Paul Crutzen)

for his “work on atmospheric chemistry, particularly

concerning the formation and decomposition of ozone.'

He is a member of the National Academy of Sciences, and

received the Roger Revelle Medal of the American

Geophysical Union. He is a member of the Board on

Atmospheric Sciences and Climate of the National

Research Council, and served on the National Research

Council's Committee on Climate Change Science that

reviewed the state of climate science for President Bush

and produced the 2001 NAS/ NRC Report.’

Amicus Joellen L. Russell is an Assistant Professor of

Geosciences at the University of Arizona. She received her

B.A. in Environmental Geoscience from the Department of

Earth and Planetary Sciences at Harvard University in

1993, and her Ph.D. in Oceanography from the Scripps

Institution of Oceanography at the University of

California, San Diego, in 1999. Her research focuses on

biogeochemical dynamics, the interactions between the

biological, geological and c hemical components of Earth's

environment.

Amicus Scott R. Saleska is an Assistant Professor of

Ecology and Evolutionary Biology at the University of

Arizona. He received a B.S. in Physics from the

Massachusetts Institute of Technology in 1986 and a Ph.D.

in Energy and Resources from the University of California

at Berkeley in 1998. His research focuses on how climate

interacts with plant physiology, demography, and

ecological processes to influence or control biogeochemical

cycling from local to global scales.

Amicus John M. Wallace is a Professor in the

Department of Atmospheric Sciences at the University of

Washington. He has a Ph.D. from the Massachusetts

Institute of Technology in the field of meteorology. He has

been involved in the study of climate variability and

change since 1980 and his research involves El Nino and

~ CLIMATE CHANGE SCIENCE, supra, note 3, .

6

other patterns of climate variability. He served on the

National Research Council’s Committee on Climate

Change Science that reviewed the state of climate science

for President Bush and produced the 2001 NAS/NRC

Report."” He is a member of the National Academy of

Sciences and served on the NAS/ NRC Committee on

Abrupt Climate Change: Science and Public Policy.'

Amicus Steven C. Wofsy is the Abbott Lawrence Rotch

Professor of Atmospheric and Environmental Science at

Harvard University. He has been involved in the study of

atmospheric science since 1971 and his research focuses on

climate and the global carbon cycle. He serves on many

scientific advisory groups of the federal government.

Amici curiae Climate Scientists are concerned about the

possible, likely and virtually certain impacts on the Earth’s

climate from manmade emissions of GHGs. They are also

concerned about the legal interpretation of concerns about

scientific uncertainty on this issue and_ the

misinterpretation of relevant scientific conclusions in the

decision below.

The Climate Scientists submit the attached Statement

(Appendix) and this brief to assist this Court in

understanding the nature and extent of scientific

uncertainty related to human induced climate change.

Amici Curtae support the position of petitioners and urge

that this Court grant certiorari to review the decision of the

Court of Appeals for the District of Columbia.

SUMMARY OF ARGUMENT

The Court should grant certiorari to review the decision

of the Court of Appeals on the issue of global climate

change--a matter of great importance under both the Clean

Air Act and a treaty to which the United States is a party.

As the appended Statement by the Climate Scientists

demonstrates, the Ea rth’ s climate i is changing in ways that

CLIMATE CHANGE SCIENCE, supra note 37

ABRUPT CLIMATE CHANGE, supra note 4.

7

are significantly increasing the risk of adverse impacts on

public welfare. Time is of the essence because delay in

greenhouse gas regulation will only accelerate global

climate change. EPA must begin regulating greenhouse

gas emissions from motor vehicles now to slow climate

change in time to reduce the risk of adverse impacts.

This Court should also grant certiorari because the

Court of Appeals ignored this Court's decisions directing

a reviewing court to conduct a searching inquiry of the

facts upon which the agency relied, and directing that

reviewing courts not simply accept the agency's

invocation of scientific or technical uncertainty as the basis -

for their decision. The Court of Appeals assumed that

EPA has the statutory authority to regulate greenhouse

gas emissions from motor vehicles, but decided that EPA

had properly exercised its discretion in refusing to

regulate the se emissions. The Court of Appeals clecision,

however, siuiply summarized the areas of lesser certainty

without even discussing areas of greater certainty.

Contrary to the understanding of the Court of Appeals,

there is reasonable scientific certainty that emissions of

carbon dioxide and other greenhouse gases from mobile

sources and other anthropogenic sources have already had

an effect on the Earth’s climate and will continue to affect

climate in the future.

In addition, the Court of Appeals ignored this Court's

decisions requiring agencies to follow the plain language

of their statutory delegation, and prohibiting agencies

from adding factors not enumerated in the statute.. In so

doing, the Court of Appeals ignored the plain language of

Section 202(a)(1) of the Clean Air Act, 42 U.S.C.

§ 7521(a)(1), allowed EPA to consider factors that are not

contained in the statute, and seriously devalued the

scientific advice that the government had requested in the

first place. This Court should grant certiorari to require

EPA to make a decision based on the plain language of

Section 202(a)(1) and based on the science that the

government requested from the National Academy of

Sciences. This conclusion is reinforced by Article 3,

8

paragraph 3, of the United Nations Framework

Convention on Climate Change, U.N. Doc. A/ AC 237/18

(1992), reprinted ii 31 LL.M. 849 (1992) [UNFCCC], which

the United States has ratified, and which directs parties

not to employ “lack of full scientific certainty” as a reason

to postpone measures to address climate change.

ARGUMENT

THE COURT SHOULD GRANT CERTIORARI TO

REQUIRE EPA TO FOLLOW THE CLEAN AIR ACT

AND SETTLE A GLOBALLY SIGNIFICANT ISSUE

REGARDING THE IMPACT OF GREENHOUSE

GASES ON THE EARTH’S ENVIRONMENT.

I. The Court of Appeals Ignored Reasonable

Scientific Certainty That Emissions of Carbon

Dioxide and Other Greenhouse Gases from

Mobile Sources and Other Anthropogenic Sources

Have Already Had an Effect on the Earth’s

Climate and Will Continue to Affect Climate in

the Future.

A consensus of scientists now working on climate

change holds that it is likely that emissions of carbon

dioxide and other greenhouse gases from mobile sources

and other anthropogenic sources have already had an

effect on the earth's climate and are changing the Earth's

climate in ways that are significantly increasing the risk of

adverse impacts on public welfare. That consensus was

contained in the 2001 NAS/NRC report that the federal

government requested to provide the Bush Administration

with an assessment of the areas of greater and lesser

certainty in climate change science.'- EPA said: “We rely

in this decision on NRC’s objective and independent

assessment of the relevant science.” 68 Fed. Reg. 52,922,

32,930 (Sept. 8, 2003) (adding that nothing received d uring

~ Letter from John M. Bridgeland and Gary Edson to Bruce Alberts

(May 11, 2001), reprinted in id. at 27.

9

the public comment period “causes us to question the

validity of the NRC’s conclusions”).

In its decision upholding EPA, however, the Court of

Appeals significantly misrepresented the findings of the

2001 NAS/ NRC Report by emphasizing uncertainties in

climate change science while failing even to mention the

existence of fundamental areas of certainty or consensus.

Massachusetts v. EPA, 415 F.3d. 50, 57 (D.C. Cir. 2005). The

Court then used scientific uncertainty (which it had

misrepresented) as a basis for upholding EPA’s decision.

Id, at 58. As this Court has made clear, however,

reviewing courts are obliged to conduct a “searching and

careful” review of the facts to determine whether “there

has been a clear error of judgment,” Citizens to Preserve

Overton Park v. Volpe, 401 U.S. 402, 416 (1971), and to

determine, even in cases of scientific or technical

uncertainty, whether the agency has adequately explained

the available evidence and offered a “rational connection

between the facts found and the choice made.” Motor

Velticle Manufacturers Ass‘n ov. State Farm Mutual Automobile

Ins. Co., 463 U.S. 29, 43 (1983), citing Burlington Truck Lines,

Mic. v. United States, 371 U.S. 156, 168 (1962). By not

conducting that kind of review of EPA’s decision, the

Court of Appeals decision so departs from this Court's

decisions as to warrant a grant of certiorari .

To provide this Court with an understanding of the

areas of greater and lesser certainty, the Climate Scientists

(including many of the authors of the Report c ited by EPA

and the Appeals Court) state the followi ing:!

The Antici Climate Scientists characterize scientific uncertainties

using the same system employed by the Intergovernmental Panel on

Climate Change. INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE

IPCC’), CLIMATE CHANGE 2001: THE SCIENTIFIC BASIS 2 fn. 7 (2001) :

“the following words have been used where appropriate Lo indicate

judgmental estimates of confidence: virtually certain (greater than 99%

chance that a result is true); very likely (90-99% chance); likely (66-

90% chance); medium likelihood (33-66% chance); unlikely (10-33%

chance); very unlikely (1-10% chance); exceptionally unlikely (less than

I" chance).”" Thus, lindings that are virtually certain, very likely and

likely, all meet the “more likely than not" standard and many

determinations of "medium" likelihood are "more likely than not."

10

1. The basic physics underlying the greenhouse effect

is firmly established. Two principles in particular are

as certain as any phenomena in planetary sciences.

First, certain atmospheric gases absorb radiation that

otherwise would be lost to space (thereby making a

planet with those gases in its atmosphere warmer than

it would be without them). Second, greater

atmospheric concentrations of greenhouse gases, all

other things being equal, cause higher temperatures at

the surface of a planet. The Earth is habitable for its

current life forms in part because natural levels of

greenhouse gases in the atmosphere warm the planet.

2. Over the last two centuries, it is virtually certain

that human activities have increased the amount of

greenhouse gases in the atmosphere to a level not seen

in all of human experience, and likely not seen for at

least 3 million years. ~

3. It. is likely or very likely that human-induced

increases in greenhouse gases are already causing

global climate to change. The average global surface

temperature has risen (human activities likely caused

most of the approximately 0.6°C -- 1.1° F -- rise over

the 20" century), global average sea level has risen (by

0.1 to 0.2 meters -- 1/3 to 2/3 feet -- over the 20"

century), snow cover and ice extent in the Arctic has

decreased by about 10% and 25%, respectively, since

the late 1960s, and stratospheric temperatures have

dropped (a virtually certain consequence of both

stratospheric ozone depletion and greenhouse gas

increases). A variety of other related climate factors

are changing in a way that is consistent with

greenhouse gas- -induced planetary warming. By

contrast, it is very difficult to find global scale

measures of climate that indicate cooling.

4. It is virtually certain that what has been observed

so far is only the beginning, and that continued

greenhouse gas emissions along current trajectories

will cause additional warming of the earth system as a

whole, and very likely that such perturbation would

cause the rate of surface warming and sea level rise in

the 21" century to be substantially larger and faster

than that experienced in the 20" century and without

precedent in the past 10,000 years.

5. Although the general link between increased

greenhouse gases in the atmosphere and increased

warming of the earth system is virtually certain, the

complexity of the climate system means that

predictions of specific details that follow from this

general link are subject to varying degrees of certainty.

Among the more certain future 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 then rose no further, the

long-term warming response of global average

surface temperature (the "climate sensitivity") would

be in the range of 1.5° to 4.5° C (2.7° - 8.1° F).

b. In the absence of emissions reductions, however,

carbon dioxide and other greenhouse gases in the

atmosphere are very likely to much more than

double, and the consequent rise in global average

temperature during the 21st century, projected to be

2.5° to 10° C (4.5° to 18° F), will likely continue rising

well bevond 2100.

c. This amount of warming is very likely to drive

steady melting of arctic ice sheets and further

increases in global average sea level, which is

projected to reach an additional 0.1 - 0.9 meters (1/3

- | foot) by 2100, and to continue rising to much

higher levels in the decades to millennia following

2100.

d. This amount of sea level rise, especially when

combined with likely increases in hurricane

intensities, would exacerbate storm surges and have

negative impacts on health and welfare in the United

States, and globally. These negative impacts would

12

be concentrated in low-lying coastal regions, such as

Boston or Cape Cod, Massachusetts, the

Louisiana/ Mississippi Gulf coast, and southern

Florida.

e. Rising temperatures are also likely to lead to

increases in extreme weather events (e.g. heat waves)

and altered patterns of rainfall (e.g. droughts) that

will disrupt natural and agricultural ecosystems, and

increase the risk of extinction of animal and plant

species.

f. Ocean acidity is 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.

6. The possibilities of the above-mentioned climate

changes have been carefully and extensively assessed,

and there is a broad scientific consensus that these

changes are likely or very likely." The exact timing of

the climate change and the exact magnitude of the

impact are harder to determine, because the climate

system has a great deal of inertia (especially in the ice

sheets and oceans), and greenhouse gases already in

the atmosphere will continue to contribute to future

warming. [his inertia heightens the threat to human

welfare because continuing unregulated greenhouse

gas emissions commit us to large-scale, long-term

(centuries) climate change consequences before the

exact nature of those consequences can be known with

greater certainty.

7. Apart from the likely, very likely, and virtually

certain gradual climate changes outlined in points 4

and 5, there is also an as vet unquantifiable probability

that continued greenhouse gas emissions will trigger

abrupt climate change surprises that could very

rapidly impose large impacts on ecosystems and

> Jd: CLIMATE CHANGE SCIFNCF, supra note 3.

13

human societies.'” We know that such abrupt climate

changes (e.g. large local cooling or warming,

widespread droughts, shifts in hurricane intensity or

flood regimes that occur in only a decade or so) are

possible because they have happened in the past,

before recorded human history began. Such abrupt

shifts were triggered when gradual changes pushed

the earth system across a_ threshold, abruptly

switching the climate system into a new state. We do

not understand these switches very well, but it is very

likely that they exist within the climate system, and

there is a significant but unknown risk that continued

emission of greenhouse gases will trigger some kind

of climate change surprise.

8. An example of surprise in global change science is

the problem of stratospheric ozone depletion and the

Antarctic “ozone hole.” Models predicted that the

emission of chlorofluorocarbons (CFCs) and other

chlorinated halocarbons by human activities would

gradually deplete stratospheric ozone, but no model

predicted the stratospheric ozone hole in advance of

its discovery in the mid-1980s. The reality of ozone

depletion turned out to be worse than even the worst-

case modeled scenario because none of the models

anticipated the novel chemistry of ozone depletion via -

polar stratospheric clouds above the south (and north)

poles.

Il. The Court of Appeals Erred in Not Requiring EPA

to Apply the “Reasonably Be Anticipated to

Endanger Public Health or Welfare" Standard in

Section 202(a)(1) of the Clean Air Act.

Section 202(a)(1) of the Clean Air Act provides:

The Administrator shall by regulation prescribe (and

from time to time revise) in accordance with the

> ABRUPT CI IMATE CHANGE, supra note 3.

14

provisions of this section, standards applicable to the

emission of any air pollutant from any class or classes

of new motor vehicles or new motor vehicle engines,

which in his judgment cause, or contribute to, air

pollution which may reasonably be anticipated to endanger

public health or welfare.”

42 U.S.C. § 7521(a)(1) (emphasis added). EPA’s judgment

under the statute extends only to the narrow questions of

whether motor vehicle emissions cause or contribute to air

pollution and whether such air pollution may reasonably

be anticipated to endanger health or welfare. See e.g.,

BedRoc Ltd., L.L.C. v. United States, 541 U. 176 183 (2004)

(“Thus our inquiry begins with the statutory text, and

ends there as well if the text is unambiguous.”). The

statutory language does not contemplate the injection of

other considerations.'° See Whitman v. American Trucking

Assit., 531 U.S. 457, 467 (2001) (EPA is prohibited from

considering factors not expressly mentioned ina statutory

delegation). Congress did not authorize EPA to consider

such elephantine factors as how regulation of GHGs from

mobile sources "interface[s] with fuel economy standards,"

68 Fed. Reg. at 52929, or differs from the President's

climate change policy, id. at 592930. Although EPA could

elect not to regulate if it reasonably found that emissions

from motor vehicles did not contribute to the air pollution

in question or if the agency found that, in its judgment, the

air pollution could not reasonably be anticipated to have

an adverse effect on welfare, neither finding was made

here.

This was a serious mistake. Failure to make such

findings, and to measure them against the statutory

standard means that EPA, in deciding not to regulate,

never properly applied the science that the 2001

NAS/ NRC Report provides, and failed to carry out its

Because petitioners in this case seek a decision from this Ceurt that

the other factors upon which EPA relied were impermissible, it follows

that, upon remand, EPA would be obliged to consider the climate

science without reference to these other factors.

_

15

statutory obligation under section 202(a)(1). The Court

should grant certiorari to require EPA to carry out its

statutory obligation. As explained by the Climate

Scientists, EPA’s failure is not without significant

consequence. Had EPA properly limited its discretion to

the statutory standard and applied that standard to the

facts of climate change science, it likely would have

concluded that regulation is warranted:

9. Scientific Knowledge is usually developed

incrementally, using experiment and observation to

test and prove or disprove hypotheses. To ensure that

new knowledge is really knowledge and not opinion,

scientific norms require a high level of certainty about

the accuracy of new information. But there is no such

thing as absolute certainty in climate science, just as

there is no absolute certainty in medicine. Indeed, a

large part of the work of science is directed at

understanding and carefully quantifying such

uncertainties, and accurately reporting them.

Likewise, scientific uncertainty is a double-edged

sword: outcomes may turn out better than our current

prediction, but it is just as possible that they will turn

out worse (as in the case of stratospheric ozone

depletion cited in point 8). Thus, it is a mistake to

infer that because a prediction of an undesirable

outcome is uncertain, that the risk posed by that

undesirable outcome is low.

10. The absence of absolute certainty in science does

not by itself provide a rational reason for avoiding

policy action on a scientifically identified public risk

(like global climate change), any more than the

absence of absolute certainty prevents decisions or

actions in other areas such as health care, financial

decisions, or national security. Similarly, low

probability of a potentially large harm does not by

itself rationally justify inaction any more than the low

probability of dev astating fire rationally justifies non-

purchase of home insurance policies.

16

11. We would not de line to regulate a likely, or very

likely, cancer-causing agent being emitted into the

atmosphere, and wait 20 years to observe if cancer

cases begin to occur. But this appears to be the

approac h being taken with respect to greenhouse gas

emissions. Regulated chemicals are usually believed

to be likely, or very likely, carcinogens based on non-

human tests and on theory, but direct tests of human

harm are not required.

12. In the face of scientific uncertainty, a decision

about whether to take steps to mitigate climate change

cannot be a purely scientific question, but requires a

standard of risk (derived from policy, economic, legal

and/or political considerations) against which the

scientifically determined risk or uncertainty can be

compared.

13. Section 202(a)(1) of the Clean Air Act provides

such a standard for comparison. In our judgment, the

level of certainty is more than strong enough to

conclude that greenhouse gas emissions “may

reasonably be anticipated to endanger public health or.

welfare,” based on the effects enumerated in

paragraphs | through 7.

14. Because responsible scientific reports generally

depict both the high and low ends of uncertainty

ranges, it is possible to selectively quote from such

reports to make the scientific findings appear either

more or less certain than they actually are. We are

concerned that the lead opinion of the Appeals Court

in Massachusetts v. EPA cites the 2001 National

Academy of Sciences/ National Research Council

(NAS/NRC) report on climate change’ in ways that

emphasize uncertainties in the details while n neglec ting

fundamental areas of certainty or consensus, giving

the impression that climate science is more uncertain

than it actually is.

For example, the lead opinion of the Court of

CLIMATE CHANGE SCIFNCE, supra note 3.

17

Appeals includes six citations to the 2001 NAS/ NRC

report, all of them presented and interpreted in a way

that will likely leave a reader with the mistaken

impression that the connection between greenhouse

gas emissions/concentrations and climate change

consequences is fundamentally uncertain. Though the

NAS/ NRC report also reviews many areas where the

science shows that this connection is strong, these

areas are not cited by the lead opinion, giving a

misrepresentation of what the NAS/NRC report

actually says. The lead opinion also writes that "The

National Research Council [NAS/NRC] concluded

that ‘a causal linkage’ between greenhouse gas

emissions and global warming ‘cannot be

unequivocally established", id. at 57, perhaps giving

the mistaken impression that the NAS/ NRC report is

characterizing as fundamentally uncertain the link

between greenhouse gases and warming in general.

In fact, as we (including those of us who were

members of the 2001 NAS/NRC panel) emphasize

above (point 1), this general link is virtually certain,

and even the narrower linkage to which the

NAS/NRC report is actually referring (between

human activities and_ the observed 20" century

warming"), while not “unequivocally established,"

was nonetheless considered "likely" by that report. To

quote the NAS/ NRC report's full summary statement

on this question, "The changes observed over the last

several decades are likely mostly due to human

activities, but we cannot rule out that some significant

part of these changes are also a reflection of natural

variability.” Since publication, the evidence has only

reinforced the NAS/NRC report finding that most

recent climate changes are likely caused by human

activities: the five warmest vears since pre-industrial

times were 1998, 2002, 2003, 2004, and 2005 (2005 is the

© Ie. at 17.

“i lad al l.

18

warmest overall), and the reduction of ice cover in the

Arctic has accelerated.

Section 202(a)(1)’s constraint on EPA’s regulatory

discretion is reinforced and supported by a treaty to which

the United States is a party, the United Nations

Framework Convention on Climate Change, which

entered into force in 1994, see UNFCCC website at

http:/ / unfecc.int/ parties_and_observers/ parties / items

/2228.php. In ratifving the Convention, the parties agreed

not to invoke scientific uncertainty as a ground for failing

to take regulatory action on greenhouse gases where there

is a “threat” of serious damage:

The Parties should take precautionary measures to

anticipate, prevent or minimize the causes of climate

change and mitigate its adverse effects. Where there

are threats of serious or irreversible damage, lack of full

scientific certainty should not be used as a reason for

postponing such measures, taking into account that

policies and measures to deal with climate change

should be cost-effective so as to ensure global benefits

at the lowest possible cost.

United Nations Framework Convention on Climate

Change, art. 3, 4 3 (emphasis added); see also id., art. 4,

* 4(a) (“Each of these Parties [the developed nations] shall

adopt national policies and take corresponding measures

on the mitigation of climate change, by limiting its

anthropogenic emissions of greenhouse gases and

protecting and enhancing its greenhouse gas sinks and

reservoirs.” ). Ratified treaties, along with the Constitution

itself and United States laws, are “the supreme Law of the

Land.” U.S.CONST. art. VI, 82. Thus, an” act of Congress

ought never to be construed to violate the law of nations

if any other possible construction remains...” Murray 0.

Schooner C miter = tsy, 6 U.S. 64, 118 (1804); | Vemberger

v. Rossi, 456 U.S. 25, 32 (1982); Hartford Fire Ins. Co. 0.

California, 309 U.S, hod $14-15 (1993) (Scalia, J., dissenting);

19

~

Spector v. Norwegian Cruise Line, Ltd., 545 U.S. 119, _, 125

S.Ct. 2169, 2185 (2005) (Ginsburg, J., concurring). Section

202(a)(1) thus should be construed to prevent EPA from

using scientific uncertainty to delay action.

After describing scientific uncertainties concerning

climate change and planned scientific work to reduce

uncertainties, 68 Fed. Reg. at52930-31, EPA explained that

“establishing GHG emission standards for U.S. motor

vehicles at this time would require EPA to make scientific

and technical judgments without the benefit of the studies

being developed to reduce uncertainties and advance

technologies.” /d. at 52930. In invoking scientific

uncertainty as a ground for postponing regulation of

mobile sources under section 202(a)(1) of the Clean Air

Act, EPA has done what the Framework Convention

directs parties not to do.

Section 202(a)(1) of the Clean Air Act, therefore, mist

be interpreted to preclude EPA’s reliance on scientific

uncertainty as a ground for refusing to regulate mobile

emissions of greenhouse gases in the present context. The

Statement by the Amici Climate Scientists makes it clear

that the nature of scientific uncertainty regarding climate

change would not, as a matter of law, warrant the deferral

of regulatory action either under the clear standard in

section 202(a)(1) of the Clean Air Act or the Framework

Convention.

20

CONCLUSION

For the foregoing reasons, this Court should grant

certiorari to review the decision of the Court of Appeals,

reverse that decision and direct that the matter be

remanded to EPA to make appropriate findings

employing the standard for scientific uncertainty required

by Section 202(a)(1) of the Clean Air Act and Article 3,

paragraph 3, of the Framework Convention.

Respectfully submitted,

JOHN C. DERNBACH ROBERT B. MCKINSTRY, JR.*

WIDENER UNIVERSITY PENN STATE UNIVERSITY

LAW SCHOOL 432 FOREST RESOURCES

3800 V ARTAN WAY BUILDING

HARRISBURG, PA 17106 UNIVERSITY PARK, PA 16802

(717) 541-1933 (484) 467-3207

“Counsel of Record

KIRSTEN H. ENGEL

UNIVERSITY OF ARIZONA

COLLEGE OF LAW

_ 1201 E. SPEEDWAY BLVD.

TUSCON, AZ 85721

(520) 621-5444

Counsel for Amict Curtae Climate Scientists

May 15, 2006

Al

A ndix

STATEMENT OF CLIMATE

SCIENTISTS ON GLOBAL CLIMATE CHANGE:

DAVID BATTISTI, CHRISTOPHER FIELD, INEZ FUNG,

JAMES E. HANSEN, JOHN HARTE, EUGENIA KALNAY,

DANIEL KIRK-DAVIDOFF, PAMELA A. MATSON, JAMES C.

MCWILLIAMS, JONATHAN T, OVERPECK, JOELLEN

RUSSELL, F. SHERWOOD ROWLAND, SCOTT R. SALESKA,

JOHN M. WALLACE, AND STEVEN C. WOFSY

The science of global climate change has become an

issue in a legal dispute about whether the US.

Environmental Protection Agency should ——T

greenhouse gas emissions from motor vehicles.

particular, leading and dissenting opinions in the case now

being appealed to the Supreme Court quote from a 2001

National Academy of Sciences report on Climate Change

in support of their arguments.” As practicing scientists in

fields relevant to understanding climate change, we here

provide a brief summary of the state of climate change

science that the Court may find useful in deciding whether

to hear this case. We will address the question as to

whether the current state of climate science allows us to

conclude that greenhouse gas emissions “cause, or

contribute to, air pollution which may reasonably be

anticipated to endanger public health or welfare” Section

202(a)(1) of the Clean Air Act, or lead to “effects on soils,

water, crops, vegetation, manmade materials, animals,

wildlife, weather, visibility, and climate.” Jd. at § 302(h).

' Massachusetts v. Environmental Protection Agency, 413 F.4d 50 (DC.

Cir. 2005).

> NATIONAL RESEARCH COUNCIL, CLIMATE CHANGE SCIENCE: AN

ANAL YSISOF SOME KEY QUESTIONS (2001) (“CLIMATE CHANGE SCIENCE”

or “2001 NAS/NRC Report’).

A2

limate Chan ~ience

1. The basic physics underlying the greenhouse effect is

firmly established. Two principles in partic ular are as

certain as any phenomena in planetary sciences. First,

certain atmospheric gases absorb radiation that

otherwise would be lost to space (thereby making a

planet with those gases in its atmosphere warmer than

it would be without them). Second, greater

atmospheric concentrations of greenhouse gases, all

other things being equal, cause higher temperatures at

the surface of a planet. The Earth is habitable for its

current life forms in part because natural levels of

greenhouse gases in the atmosphere warm the planet.

2. Over the last two centuries, it is virtually certain that

human activities have increased the amount of

greenhouse gases in the atmosphere to a level not seen

in all of human experience, and likely not seen for at

least 3 million years.

3. It is likely or very likely that this human-induced

increases in greenhouse gases are already causing

global climate to change. The average global surface

temperature has risen (human activities likely caused

most of the approximately 0.6°C -- 1.1° F -- rise over the

20" century), global average sea level has risen (by 0.1

to 0.2 meters -- 1/3 to 2/3 feet-- over the 20" century),

snow cover and ice extent in the Arctic has decreased

by about 10% and 25%, respectively, since the late

1960s, and stratospheric temperatures have dropped (a

virtually certain consequence of both stratospheric

‘We here characterize scientific uncertainties using the same system

as found in the Intergovern mental Panel on Climate Change Working

Group | summaries: "the following words have been used where

appropriate to indicate judgmental estimates of confidence: virtually

certain (greater than 99% chance that a result is true); very likely

(W0- 99% chance); likely (66-90% chance); medium likelihood (33-66%

chance); unlikely (10-33% chance); very unlikely (1-10% chance);

exceptionally unlikely (less than 1% chance)." INTERGOVERNMENTAI

PANEL ON CLIMATE CHANGE, CLIMATE CHANGE 2001: THE SCTEN THEI

Basis 2 fn. 7 (2001).

A3

ozone depletion and greenhouse gas increases). A

variety of other related climate factors are changing in

a way that is consistent with greenhouse gas-induced

planetary warming. By contrast, it is very difficult to

find global scale measures of climate that indicate

cooling.

. Itis virtually certain that what has been observed so far

is only the beginning, and that continued greenhouse

gas emissions along current trajectories will cause

additiona warming of the earth system as a whole, and

very likely that such perturbation would cause the rate

of surface warming and sea level rise in the 21“ century

to be substantially larger and faster than that

experienced in the 20" century and without precedent

in the past 10,000 years.

. Although — the general link between increased

greenhouse gases in the atmosphere and increased

warming of the earth system is virtually certain, the

complexity of the climate system means that predictions

of specific details that follow from this general link are

subject to varying degrees of certainty. Among the

more certain future 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 then rose no further, the

long-term warming response of global average

surtace temperature (the "climate sensitivity") would

be in the range of 1.5° to 4.5° C (2.7° -8.1° F).

b. In the absence of emissions reductions, however,

carbon dioxide and other greenhouse gases in the

atmosphere are very likely to much more than

double, and the consequent rise in global average

temperature during the 21st century, projected to be

2.5° to 10° C (4.5° to 18° F), willlikely continue rising

well bevond 2100.

c. This amount of warming is very likely to drive

steady melting of arctic ice sheets and further

increases in global average sea level, which is

A4

projected to reach an additional 0.1 - 0.9 meters (1/3

- | foot) by 2100, and to continue rising to much

higher levels in the decades to millennia following

2100.

d. This amount of sea level rise, especially when

combined with likely increases in hurricane

intensities, would exacerbate storm surges and have

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

Boston or Cape Cod, Massachusetts, the

Louisiana/ Mississippi Gulf coast, and southern

Florida.

e. Rising temperatures are also likely to lead to

increases inextreme weather events (e.g. heat waves)

and altered patterns of rainfall (e.g. droughts) that

will disrupt natural and agricultural ecosystems, and

increase the risk of extinction of animal and plant

species.

f. Ocean acidity is 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.

6. The possibilities of the above-mentioned climate

changes have been carefully and extensively assessed,

and there is a broad scientific consensus that these

changes are likely or very likely.’ The exact timing of

the climate change and the exact magnitude of the

impact are harder to determine, because the climate

system has a great deal of inertia (especially in the ice

sheets and oceans), and greenhouse gases already in the

atmosphere will continue to contribute to future

warming. This inertia heightens the threat to human

welfare because continuing unregulated greenhouse

gas emissions commit us to large-scale, long-term

(centuries) climate change consequences before the

* Jd: CLIMATE CHANGE SCIENCE, supra note 2

Ad

exact nature of those consequences can be known with

greater certainty.

7. Apart from the likely, very likely, and virtually certain

gradual climate changes outlined in points 4 and 5,

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 societies.” We

know that such abrupt climate changes (e,g, large local

cooling or warming, widespread droughts, shifts in,

hurricane intensity or flood regimes that occur in only

a decade or so) are possible because they have

happened in the past, before recorded human history

began. Such abrupt shifts were triggered when gradual

changes pushed the earth system across a threshold,

abruptly switching the climate system into a new state.

We do not understand these switches very well, but it

is very likely that they exist within the climate system,

and there is a significant but unknown risk that

continued emission of greenhouse gases will trigger

some kind of climate change surprise.

8. An example of surprise in global change science is the

problem of stratospheric ozone depletion and the

Antarctic “ozone hole.” Models predicted that the

emission of chlorofluorocarbons (CFCs) and other

chlorinated halocarbons by human activities would

gradually deplete stratospheric ozone, but no model

predicted the stratospheric ozone hole in advance of its

discovery in the mid-1980s. The reality of ozone

depletion turned out to be worse than even the worst-

case modeled scenario because none of the models

anticipated the novel chemistry of ozone depletion via

polar stratosphere clouds above the south (and north)

poles.

Decision-making in the face of Scientific Uncertainty

NATIONAL RESEARCH COUNCIL, ABRUPT CLIMATE CHANGE:

INFVITAB! F SURPRISES (2002) [ABRUPT CI IMATE CHANGF].

9.

10.

A6

Scientific knowledge is usually developed

incrementally, using experiment and observation to test

and prove or disprove hypotheses. To ensure that new

knowledge is really knowledge and not opinion,

scientific norms require a high level of certainty about

the accuracy of new information. But there is no such

thing as absolute certainty in climate science, just as

there is no absolute certainty in medicine. Indeed, a

large part of the work of science is directed at

understanding and carefully quantifying such

uncertainties, and accurately reporting them. Likewise,

scientific uncertainty is a double-edged sword:

outcomes may turn out better than our current

prediction, but it is just as possible that they will turn

out worse (as in the case of stratospheric ozone

depletion cited in point 8). Thus, it is a mistake to infer

that because a prediction of an undesirable outcome is

uncertain, that the risk posed by that undesirable

outcome is low.

The absence of absolute certainty in science does not by

itself provide a rational reason for avoiding policy

action on a scientifically identified public risk (like

global climate change), any more than the absence of

absolute certainty prevents decisions or actions in other

areas such as healthcare, financial decisions, or national

security. Similarly, low probability of a potentially

large harm does not by itself rationally justify inaction

any more than the low probability of dev astating fire

rationally justifies non-purchase of home insurance

policies.

We would not decline to regulate a likely, or very likely,

cancer-causing agent being emitted into the

atmosphere, ard wait 20 vears to observe if cancer cases

begin to occur. But this’appears to be the approach

being taken with respect to greenhouse gas emissions.

Regulated chemicals are usually-believed to be likely, or

very likely, carcinogens based on non-human tests and

on theory, but direct tests of human harm are not

required. fi

12

A7

2.In the face of scientific uncertainty, a decision about

whether to take steps to mitigate climate change cannot

be a purely scientific question, but requires a standard

of risk (derived from policy, economic, legal and/or

political considerations) against which the scientifically

determined risk or uncertainty can be compared.

13. Section 202(a)(1) of the Clean Air Act provides such a

14.

standard for comparison. In our judgment, the level of

certainty is more than strong enough to conclude that

greenhouse gas emissions “may reasonably be

anticipated to endanger public health or welfare,”

based on the effects enumerated in paragraphs 1

through 7.

Because responsible scientific reports generally depict

both the high and low ends of uncertainty ranges, it is

possible to selectively quote from such reports to make

the scientific findings appear either more or less certain

than they actually are. We are concerned that the lead

opinion of the Appeals Court in Massacliusetts v. EPA

cites the 2001 National Academy of Sciences / National

Research Council (NAS/NRC) report on climate

change® in ways that emphasize uncertainties in the

details while neglec ting fundamental areas of certainty

orconsensus, giving the impression that climate science

is more uncertain than it actually is.

For example, the lead opinion of the Court of Appeals

includes six citations to the 2001 NAS/ NRC study, all

of them presented and interpreted in a way that will

likely leave a reader with the mistaken impression that

the connection between greenhouse gas

emissions/concentrations and climate change

consequences is fundamentally uncertain. Though the

NAS/NRC study also reviews many areas where the

science shows that this connection is strong, these areas

are not cited by the lead opinion, giving a

misrepresentation of what the NAS/NRC report

actually says. The lead opinion also writes that "The

National Research Council [NAS/ NRC] concluded that

* CLIMATE CHANGE SCIFNCF, supra note 2

A8

‘a causal linkege' between greenhouse gas emissions

and global warming ‘cannot be unequivocally

established", id. at 57, perhaps giving the mistaken

impression that the NAS/ NRC report is characterizing

as fundamentally uncertain the link between

greenhouse gases and warming in general.

In fact, as we (including those of us who were

members of the 2001 NAS/NRC panel) emphasize

above (point 1), this general link is virtually certain, and

even the narrower linkage to which the NAS/NRC

report is actually referring (between human activities

and the observed 20" century warming), while not

"unequivocally established," was nonetheless

considered "likely" by that report. To quote the

NAS/NRC report's full summary statement on this

question, "The changes observed over the last several

decades are likely mostly due to human activities, but

we cannot rule out that some significant part of these

changes are also a reflection of natural variability."”

Since publication, the evidence has only reinforced the

NAS/NRC report finding that most recent climate

changes are likely caused by human activities: the five

warmest years since pre-industrial times were 1998,

2002, 2003, 2004, and 2005 (2005 is the warmest overall),

and the reduction of ice cover in the Arctic has

accelerated.

15. The authors of this Statement are David Battisti, Inez

Fung, James E. Hansen, John Harte, Daniel Kirk-

Davidoff, Pamela A. Matson, James C. McWilliams,

Jonathan T. Overpeck, F. Sherwood Rowland, Scott R.

Saleska, John M. Wallace, and Steven C. Wofsy

(hereinafter “Climate Scientists”).’ The Climate

Scientists are individual climate scientists who are

~ Id. at 17

Std at 1.

~ The Climate Scientists make this Statement in their individual

capacities and not as representatives of any institution with which any

of them is affiliated.

AY

actively involved in research on changes to the Earth’s

climate that are being caused by anthropogenic

emissions of carbon dioxide, methane, nitrous oxide,

sulfur hexafluoride, hydrofluorocarbons, and

perfluorocarbons (“greenhouse gases” or “GHGs”) and

the effects of those changes. Many of these scientists

are members of the National Academy of Sciences,

and/or have served on two recent National Ac ademy

of Sciences / National Research Council (“NAS/ NRC”)

panels that have reviewed the state of the science on

climate change and the impacts of human activities on

climate.'” The NRC, the Academy’s principal operating

arm, was formed in 1916 to further scientific and

technological knowledge and to advise the federal

government. NATIONAL RESEARCH COUNCIL, CLIMATE

CHANGE SCIENCE: AN ANALYSIS OF SOME OF THE KEY

QUESTIONS, preface (2001).

David Battisti is the Tamaki Professor of Atmospheric

Sciences at the University of Washington. He has a

Ph.D. from the University of Washington in the field of

atmospheric sciences. He has been involved in the field

of climate dynamics and climate change since 1984 and

his research involves climate variability (El Nino,

drought in the Sahel, decadal variability in the climate

system), paleoclimate (abrupt climate change during

the last glacial period), and climate change. He served

for three years on the NAS Committee for Climate

Research and for six years was co-chair of the United

States Climate Variability and Predictability Science

Steering Committee.

Christopher Field is the founding director of the

Department of Global Ecology of the Carnegie

CLIMATECHANGE SCIENCE, supra note 2; ABRUPTCLIMATE CHANGE,

supra note 5. The NAS “is a private, nonprofit, self- Fle ear

sociely of distinguished scholars engaged in scientific and engineering,

research, dedicated to the furtherance of science and technology and

Lo their use for the general welfare. Upon the authority of a charter

granted to it in 86% the Academy has a mandate that requires it to

advise the federal government on scientific and technical matters.’

CLIMATE CHANGE SCIENCE, supra note 2, preface.

Al0

Institution of Washington and Professor of Biological

Sciences at Stanford University. He has a Ph.D. from

Stanford University in the field of biological sciences.

He has been involved in the study of climate change

impacts and the global carbon cycle since 1988. He is a

member of the National Academy of Science.

Inez Fung is Professor of Atmospheric Science and Co-

Director of the Berkeley Institute of the Environment at

the University of California at Berkeley. Dr. Fung

received her Sc.D. from the Massachusetts Institute of

Technology. Her research expert.se is in large-scale

numerical modeling of biogeochemical cycles and their

interaction with climate. Her research also includes

climate change, remote sensing of earth systems,

investigations of atmosphere-ocean interactions, and

atmosphere-biosphere interactions. She is a member of

the National Academy of Sciences, a Fellow of the

American Geophysical Union, and a recipient of the

Roger Revelle Medal of the American Geophysical

Union, and she served on the National Research

Council's Committee on Climate Change Science that

reviewed the state of climate science for President Bush

and produced the 2001 NAS/ NRC Report."

James E. Hansen is head of the NASA Goddard

Institute for Space Studies. Dr. Hansen received his

Ph.D. from the University of lowa. His research

interests include radiative transfer in planetary

atmospheres, development of global climate models,

current climate trends from observational data, and

projections of man’s impact on climate. He is a member

of the National Academy of Sciences and a Fellow of

the American Geophysical Union. He served on the

National Research Council's Committee on Climate

Change Science that reviewed the state of climate

science for President Bush and produced the 2001

NAS/ NRC Report."

' CLIMATE CHANGE SCIFNCE, supra, note 3.

- dd

All

f

4

John Harte is a Professor in the Energy and Resources

Group and the Ecosystem Sciences Division of the

College of Natural Resources at the University of

California at Berkeley. He received a B.A, in phy sics

from Harvard University in 1961 and a Ph.D.

theoretical physics from the University of Wisconsin in in

1965. He has been involved in the study of earth

system science since 1973 and his research currently

focuses on the ecological consequences of climate

change and the climate consequences of ecological

changes. He has served on six different panels of the

National Academy of Sciences/ National Research

Council.

Eugenia Kalnay is a_ Distinguished University

Professor at the University of Maryland. Previously she

was Director of the Environmental Modeling Center at

the National Weather Service and Head of the Global

Modeling Branch at the NASA Goddard Space Flight

Center. She has a Ph.D. in meteorology from MIT. Her

research expertise is in numerical modeling of the

atmosphere, data assimilation and predictability, El

Nino prediction, and applications of satellite remote

measurements to weather and climate problems. She is

a member of the National Academy of Engineering, and

has served on many panels of the National Academy of

Sciences / National Research Council.

Daniel Kirk-Davidoff is an Assistant Professor in the

Department of Meteorology at the University of

Maryland. He received a Ph.D. in Meteorology from

the Massachusetts Institute of Technology-in 1997. He

is a climate dynamicist with interests in the

stratospheric water vapor budget, paleoclimate

modeling, satellite climate monitoring, and the use of

satellite data to improve climate models.

Pamela A. Matson is the Richard and Rhoda Goldman

Professor of Environmental Studies at Stanford

University. She has been involved in the study of

global change for more than 20 years, focusing on land

use change, greenhouse gas production from

7

Al2 —

agricultural ecosystems, and interactions of forest and

agricultural ecosystems with the atmosphere and water.

She has served on the National Research Council's

Board on Global Change, and is currently co-chair of

the NAS Roundtable on Science and Technology for

Sustainability. Dr. Matson is not an amicus curtae only

because of the timing of her request to participate.

James C. McWilliams is the Louis Slichter Professor of

Earth Sciences at University of California, Los Angeles.

He has a Ph.D. from Harvard University in the field of

applied mathematics. He has been involved in the

study of oceanic and atmospheric circulations and

climate since 1970. He is a member of the National

Academy of Sciences and a Fellow of the American

Geophysical Union. He served on the National

Research Council's Committee on Climate Change

Science that reviewed the state of climate science for

President Bush and produced the 2001 NAS/NRC

Report."

Jonathan T. Overpeck is a Professor of Geosciences

and a Professor of Atmospheric Sciences at the

University of Arizona. He has a Ph.D. from Brown

University in the field of geological sciences. He has

been involved in the study of climate science since 1979.

His research focuses on using models and the climate

record of the past million years to understand climate

variability and future change. He has served on the

NAS/ NRC Committee on Abrupt Climate Change."

F. Sherwood Rowland is the Bren Research Professor

of Chemistry and Earth System Science at_ the

University of California Irvine. He has a Ph.D. in

Chemistry from the University of Chicago in the field of

Physical Chemistry. He has been involved in the study

of the atmosphere since 1973, and received the 1995

Nobel Prize in Chemistry (with Mario Molina and Paul

Crutzen) for his “work on atmospheric chemistry,

le

ABRUI'T CLIMATE CHANG+#, supra, note 5.

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particularly concerning the formation and

decomposition of ozone." He is a member of the

National Academy of Sciences, and received the Roger

Revelle Medal of the American Geophysical Union. He

is amember of the Board on Atmospheric Sciences and

Climate of the National Research Council, and served

on the National Research Council’s Committee on

Climate Change Science that reviewed the state of

climate science for President Bush and produced the

2001 NAS/ NRC Report. .

Joellen L. Russell is an Assistant Professor of

Geosciences at the University of Arizona. She received

her B.A. in Environmental Geoscience from the

Department of Earth and Planetary Sciences at Harvard

University in 1993, and her Ph.D. in Oceanography

from the Scripps Institution of Oceanography at the

University of California, San Diego, in 1999. Her

research focuses on biogeochemical dynamics, the

interactions between the biological, geological and

chemical components of Earth's environment.

Scott R. Saleska is an Assistant Professor of Ecology

and Evolutionary Biology at the University of Arizona.

He received a B.S. in Physics from the Massachusetts

Institute of Technology in 1986 and a Ph.D. in Energy

and Resources from the University of California at

Berkeley in 1998. His research focuses on how climate

interacts with plant physiology, demography, and

ecological processes to influence or control

biogeochemical cycling from local to global scales.

John M. Wallace is a Professor in the Department of

Atmospheric Sciences at the University of Washington.

He has a Ph.D. from the Massachusetts Institute of

Technology in the field of meteorology. He has been

involved in the study of climate variability and change

since 1980 and his research involves El Nino and other

patterns of climate variability. [le is a member of the

National Academy of Sciences, a Fellow of _ the

American Geophysical Union, and a recipient of the

° CLIMATE CHANGE ScIFNCE, supra, note 2

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Rossby Medal of the American Meteorological Society

and the Roger Revelle Medal of the American

Geophysical Union. He served on the National

Research Council's Committee on Climate Change

Science that reviewed the state of climate science for

President Bush and produced the 2001 NAS/NRC

Report." From 2000 to 2001, he served on the

NAS/NRC Committee on Abrupt Climate Change:

Science and Public Policy."

Steven C. Wofsy is the Abbott Lawrence Rotch

Professor of Atmospheric and Environmental Science at

Harvard University. He has been involved in the study

of atmospheric science since 1971 and his research

focuses on climate and the global carbon cycle. He

serves on many scientific advisory groups of the federal

government.

> CLIMATE CHANGE SCIENCE, supra note 2

~ ABRUPT CLIMATE CHANGE, supra note 35.