# Amicus Curiae Brief — Massachusetts v. EPA

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0245%3A08

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2007
- **Citation:** 549 U.S. 497

## Text

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

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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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0245%3A08. Public record. Not legal advice.