The Intersection

Scalia Idiocy, Continued

This is just too much…so I’m taking time out from working on the book to bring you more. I’ve now seen the Supreme Court transcript and can provide actual passages of what Scalia said. It’s even worse than the previous post made it seem. To wit:

JUSTICE SCALIA: Mr. Milkey, I had — my problem is precisely on the impermissible grounds. To be sure, carbon dioxide is a pollutant, and it can be an air pollutant. If we fill this room with carbon dioxide, it could be an air pollutant that endangers health. But I always thought an air pollutant was something different from a stratospheric pollutant, and your claim here is not that the pollution of what we normally call “air” is endangering health. That isn’t, that isn’t — your assertion is that after the pollutant leaves the air and goes up into the stratosphere it is contributing to global warming.

MR. MILKEY: Respectfully, Your Honor, it is not the stratosphere. It’s the troposphere.

JUSTICE SCALIA: Troposphere, whatever. I told you before I’m not a scientist.

(Laughter.)

JUSTICE SCALIA: That’s why I don’t want to have to deal with global warming, to tell you the truth.

MR. MILKEY: Under the express words of the statute — and this is 302(g) — for something to be an air pollutant it has to be emitted into the ambient air or otherwise entered there.

JUSTICE SCALIA: Yes, and I agree with that. It is when it comes out an air pollutant. But is it an air pollutant that endangers health? I think it has to endanger health by reason of polluting the air, and this does not endanger health by reason of polluting the air at all.

MR. MILKEY: Your Honor, respectfully, I disagree, and there is nothing in the act that actually requires the harm to occur in the ambient air. In fact, some of the harm here does occur there.

JUSTICE SCALIA: Well, it talks about air pollution all the time. That’s what the, that’s what the thing is about, air pollution. It’s not about global warming and it’s not about the troposphere.

There are way, way more things wrong with this than I care to catalogue….Except that it’s clear Scalia knows nothing about the layers of the atmosphere. Science advice for the judiciary, anyone?

P.S.: Thanks to Mike of Crooks and Liars for linking this post and sending lotsa traffic my way….if any of you visitors are interested in the hurricane-global warming and what it means, that’s my next big thing.

Comments

  1. #1 Jared
    November 29, 2006

    Did you stop by the courthouse this morning, because I thought I saw you there?

  2. #2 BrianE
    November 29, 2006

    Is there some particular reason you expect 60+ year old judges, or any other layperson, to know a lot about the layers of the atmosphere? Ask your bright, witty aunt next time you meet her to name the layers of the atmosphere. Heck, just ask her to tell you the difference between the troposphere and the stratosphere. Ask her which of the following isn’t an atmospheric layer – the exosphere, the mesosphere or the endosphere.

    Which is why the Scalia quip is funny, not horrifying. Judges, almost by definition, cannot be subject matter experts on everything that comes before them. They may not even be reasonably up to speed on some of it. That’s one of the reasons why the higher levels (Appellate and Supremes) rely on the district courts to be “finders of fact” – with a large enough pool of lower court judges, you can find someone who is reasonably up to speed on some of it, and have them spend their time listening to the hired experts on each side opine on the subject at hand.

    The Supreme Court pretty much never decides the facts of a case – they determine, given the facts decided upon by the lower courts, whether the law was properly applied. They are legal experts, not omniscient beings.

    The Court should not be deciding how and to what extent CO2 emissions from automobiles modify the troposphere – it should be deciding if the Appellate court came to the right legal conclusion. Do the states have standing, and, if they do, does the act apply to activity that changes the ratio of a naturally occurring atmospheric component or simply to activities that introduce a not-naturally occurring compound to the atmosphere, i.e., what is “pollution” under the act?

  3. #3 Chris Mooney
    November 29, 2006

    Judges need to know the basic science in cases like this, and David Tatel at the DC Circuit clearly educated himself accordingly and it shone through in his dissent. So, yes, I expect much more of Scalia.

    Yes I stopped by the courthouse this morning but was not crazy enough to wait in that ridiculous line….

  4. #4 Roger Pielke, Jr.
    November 29, 2006

    Chris- You are absolutely correct that Justice Scalia doesn’t appear to understand climate science in any depth. Nor apparently does Justice Souter, or either counsel. See:

    http://sciencepolicy.colorado.edu/
    prometheus/archives/climate_change/001003quick_reactions_to_a.html

  5. #5 Alex
    November 30, 2006

    That isn’t, that isn’t — your assertion is that after the pollutant leaves the air and goes up into the stratosphere it is contributing to global warming.

    I’d expect anybody to know that you don’t leave the air when your plane reaches its cruise altitude.

  6. #6 Mark
    November 30, 2006

    It sounds to me as if Scalia is trying to distinguish between an atmospheric constituent (natural or manmade) that causes global warming as opposed to one that causes human harm through some direct effect on humans (what he calls a pollutant). Further, it sounds as if he wants to avoid having to deal with CO2 by putting it in the former category, thereby, in his view, removing it from the latter.

  7. #7 kevin v
    November 30, 2006

    Chris — it is unreasonable to expect Scalia or any justice in this case to become intimately familiar with atmospheric science for one case. That’s not their role. Their role is to listen to argument from the expert-advocates and decide the case on the merits of the arguments. What is reasonable is to expect the advocates to have a death-like grip on the facts and they clearly do not. The big problem here is that they were unable to correct Scalia or any other justice in a way that the justices could understand. That’s just shitty lawyering. It’s not Scalia’s fault that the wrong lawyers argued this case….

  8. #8 ponte
    November 30, 2006

    If Justice Scalia can’t be bothered to learn the most basic facts about the atmosphere before ruling on this case then it’s clear that he lacks the capacity to render judgement and should disqualify himself. Right wing anti-science ideology is rearing its ugly face again.

  9. #9 Aaron
    November 30, 2006

    Roger Pielke Jr:
    Your criticism of Souter is rooted in the vagaries of his statement, which seems to me to be an honest question that indicates a sincere intellectual curiosity about the impact of emissions reductions. It seems to me that you are shoehorning an open-ended question into a quantified model of your own interpretation. Scalia’s remark, on the other hand, shows a contempt for basic scientific facts.

  10. #10 Jon Winsor
    November 30, 2006

    I stopped by the courthouse this morning but was not crazy enough to wait in that ridiculous line….

    You should have gone the night before and brought your tent–

    http://gristmill.grist.org/story/2006/11/29/133341/95#3

  11. #11 Scott Koontz
    November 30, 2006

    I would think that in order to rule or judge, you may want to know something about the topic at hand. It is completely ridiculous to think Scalia can judge without the most basic facts under his belt. He doesn’t have to be a scientist, but he does have to know something about the case at hand. How can an attorney expect to get to the point without knowing how far back in middle-school (grade-school?) science he must venture? Waste of time.

  12. #12 Bill
    November 30, 2006

    Scalia appears to be trying to insert language into the law. He indicates that pollutants that directly cause harm to humans are intended to be regulated, but not those that indirectly cause harm. So, besides his coarse nature regarding dismissing science, I have two problems with his line of questioning. First, it isn’t remotely logical – it can be argued that a great many pollutants don’t cause direct harm, but rather act in chemical processes with the end product or the net result causing actual harm. Second, the law wasn’t written with this distinction, and if he wishes to write laws, he should become a legislator (judicial activism, legislating from the bench anyone, or does that only apply to liberal minded people?).

  13. #13 deep6
    November 30, 2006

    “Judicial activism” is a right-wing propaganda term and a GOP talking point meant to label and marginalize primarily appellate (but also trial) court judges who, on any issue, interpret the constitution to have some sort of protection for a minority group or who write/affirm a decision that goes against conservative legislation. I don’t like that term because it perpetuates their hold over political language and because (applied appropriately) it’s meaning is wholly different. The attack on the judiciary is largely a revolt against progressive voters not finding strong support in the executive or congress through the 1970s and 80s so in order to get their goals accomplished, progressives started looking to the judiciary and challenging laws (sometimes overt discrimination) in our courts and finding redress there.

    All branches of government are policy makers. The judiciary cannot “legislate from the bench”. Interestingly, with use of executive orders, the office of the president has more power to usurp the role of congress than the judiciary does, even if it wanted to, and actually does so quite frequently. It’s expected that the judicial branch is naturally going to have some role in policy making because it’s always dealing with the issue of what constraints the constitution puts on behavior of different actors in a federalist system.

    The lawyer for Massachusetts said he wasn’t asking the justices to pass judgement on the science of global warming, but everything about his case, and the defense of the EPA – required an understanding of climate change. The EPA’s defense is largely that they do not have the authority to regulate carbon dioxide emissions, and even if they did, they wouldn’t regulate CO2 under the Clean Air Act because they don’t believe the Act meant to address CO2 and because they haven’t come to a conclusion that limiting CO2 is going to definitively alter the course of global warming. The EPA even had to scrub scientific reporting provided to the court so that their case against the science of global warming would appear more valid. Crazy me, I thought they were tasked with defending the environment, rather than waiting around until it’s too late.

  14. #14 Keith Hagan
    November 30, 2006

    It isn’t the fact that he doesn’t know the different layers of the atmosphere. Who does? It is the fact that he is trying to circumvent the argument by delineating between “pollution” and “global warming.” If he can cause enough sustainable confusion between the two, he can deny the causal connection.

    Don’t misjudge him – Antonin is a very smart man, and I would argue the best writer on the court. He is playing word games in this instance in order to find an out so that he can legitimately rule against Milkey.

    Lucky for that side, however, Scalia is actually engaged in the oral arguments. If he had already made up his mind completely he wouldn’t have said a word. There exists a 0.00001% chance that he may find Jeebus and admit that gobal warming is a problem.

    If only Cheney would take him on a hunting trip again.

  15. #15 Dennis Savage
    November 30, 2006

    Looks like Scalia’s just as clear on science as he is on the Constitution.

  16. #16 Danø
    November 30, 2006

    The issue is muddled here in comments, IMHO.

    The issue is who has standing to sue. BushCo is doing its best to say there is no standing to sue.

    The science discussion by the Justices is arising out of deriving direct or indirect harm. Yes, the Justices may be remiss in their science knowledge. Their staffers can get them up to speed.

    The best analogy in my mind about standing comes from the 1996 Olympics in Atlanta: car traffic was reduced and asthma exacerbations treated in hospitals were reduced during that same period. Indirect harm came via the PM that irritated the alveoli of the asthmatics’ lungs. If an individual were to sue GA for, say, not enforcing the CAA and their asthma were made worse by car exhaust, the individual would have to be judged to have standing. Since they could likely show marginal harm, they have standing.

    Now. Same here at the USC. The justices are asking questions about marginal indirect harm – MA coastline impacts – to look for standing.

    In my view, and I think Keith H and Bill get at it above, a justice or two might be hand-waving to back up the scenario that deep6 outlines in their last para at 11-30 @3.00 PM.

    The tenor of the Justices’ questioning smacks to me of denial.

    Best,

    D

  17. #17 J.R.R. Ewing
    November 30, 2006

    Agree with Dano. Expecting the Justices to be keeping the layers of the atmosphere straight or even pretending that they can do and pay attention to the legal issues is asking a bit much.

    Scalia is doing nothing more than trying to find out if he can take BushCo’s side on this matter because Scalia associates environmentalism with dirty hippies and abuses of the commerce clause at the expense of state’s rights.

    So Scalia tries to argue that the writers of the statute never imagined that CO2 was an “air pollutant” because, hey, all that C02 is in the air right now and it ain’t hurting anybody. And the attorney correctly slaps Scalia down, pointing out that according to the statute an “air pollutant” is any chemical emitted into the ambient air which causes harm.

    All that’s left to do, really, is for the Justices to look at how many experts agree that C02 emissions are contributing to a rise in global temperatures, versus how many experts disagree, and whether any experts on either side are biased and less trustworthy for any reason.

    It’s pretty straightforward and if Scalia can get his moral compass adjusted and stop acting like an ignorant lying prick he can lightly slap his Republican enablers in their fat fundie faces.

  18. #18 Jeff Z
    November 30, 2006

    Scalia is struggling with whether the law applies to this case or not. The arguments people are making here are far more absurd and obtuse than anything Scalia said.

    The air pollution laws were written at a time when the spewing of chemicals into the air as waste exhaust from manufacturing, transportation, and energy-producing processes was much worse than it is now. There were distinct measusurements for specific chemicals identified as the results of certain activitities. Scalia–and others–may be stumbling, but the question they are trying to determine is whether CO2 emissions in regard to global warming come under that law.

    Clearly, they don’t. This is not a judgement on the science as a whole, but whether CO2 falls into that category. The acid rain point is a good one, but again, 1) the chemical in question was the result of man-made activity, not a common pre-existing component; 2) the effects were measurable; and 3) eliminating the problem would have a measurable effect. Like it or not, even the full success of this lawsuit would have only the most trivial and meaningless impact on the air’s CO2 content. Why should the court impose a pointless burden?

    As far as the discussion of the court’s making policy is concerned, this is hardly permission for it to do what it likes. After all, if you do beleive the court can make such far-sweeping policy beyind its alloted powers, then what are you complaining about? So it didn’t go your way? Well, that’s what life is like in a dictatorship. Maybe you should rethink your position.

    Same thing with CO2 harming people. Well, how about if the court disallows breathing…well, you can inhale, but…

    Scalia is trying to understand whether CO2 emissions fall under the existing air pollution laws and guess what? They don’t. You’ll just have to make a case and convince the people and the government–including the Chinese and Indian governments.

  19. #19 TokyoTom
    December 1, 2006

    The deep meaning of this case is it shows the obstructrutionism of the Bush administration, and thus getting this to the Supreme Court is an important win in and of itself.

    Even if the S Ct rules in favor of the states it will not force the EPA to take any action to regulated GHG emissions, although such a decision would still be a major rebuke to the EPA.

    And even if the EPA does take some positive action, the Congress will still need to pass more legislation.

    The science is really relevant now only in a very narrow sense of whether the EPA is positioned to grant any relief to the states at all, and thus whether the states have standing to sue the EPA.

  20. #20 Mirror
    December 1, 2006

    Actually, it is the every Justice’s responsibility and duty to review and attempt to understand the record handed up by the lower courts, a record which will include ample testimony by experts explaining the basic scientific issues in both complex and simple terms meant for laypersons to understand. There is a basic procedure set out for how judges review, interpret, and weight expert testimony. The settled law requires judges to rely on scientific experts to fill gaps in their knowledge.

    Scalia is deliberately playing the joker frat boy here to try to cut the scientists down a notch or two by insulting the very language of the discipline. What an insecure prick.

  21. #21 daenku32
    December 1, 2006

    I wonder how Scalia would infer Ozone? Since it’s HAZARDOUS in the troposphere but hugely beneficial in the stratosphere.

    I’m sure he would go nuts over it.

  22. #22 csdew2
    December 1, 2006

    Mirror’s right. Justice Scalia is undoubtedly capable of grasping the basic, and probably the nuanced, science of global warming. The naive among us who take this stuff seriously might even call this a “duty.” But his snide, sullen “questioning” of the petitioners’ attorney reveals that he had likely made up his mind on these issues before he read the first sentence of the appellate court’s record. He already knows how he’s going to vote. His clerks will write his opinion. He’s just toying with Mikey until lunch, or “whatever.”

  23. #23 Jim in STL
    December 1, 2006

    Expecting the Justices to be keeping the layers of the atmosphere straight or even pretending that they can do and pay attention to the legal issues is asking a bit much.

    It is NOT asking a bit much. It is asking the bare minimum for the Justices to have a junior high understanding of the atmosphere – that’s why this stuff is taught in school…informed understanding and dicission making and all that. This dismissal of being at least minimally informed with respect to the content of the subject at hand is ridiculous. I deal everyday with advising on technical issues and for me not to also be informed of pertinent legal aspects would be irresponsible, negligent and professional suicide. At a minimum, to be uninformed risks – invites – being misinformed and making bad and/or boneheaded and dangerous decissions. And, on a subject of such magnitude as global warming it’s lazy and shameful.

  24. #24 J.R.R. Ewing
    December 1, 2006

    “Scalia is trying to understand whether CO2 emissions fall under the existing air pollution laws and guess what? They don’t.”

    Uh, would it be too much to ask to see your support for this position? Lay it out for us clearly (more clearly than the government’s lawyers or Scalia).

  25. #25 "Q" the Enchanter
    December 1, 2006

    Whether or not Scalia has a duty in cases like these to understand the fundamentals of atmospheric science, it seems from this snippet that Scalia was the one who raised the issue. That being so, he should probably have had a much better handle on the basics.

    In any case, I’d agree with the sentiment expressed in comments above that Scalia’s attitude here reeks of antiscience. Scalia is not an economist any more than he is a scientist, for example, but you wouldn’t hear him sniffing about not wanting to deal with economic issues in an antitrust case because he’s “not an economist.”

  26. #26 rto
    December 1, 2006

    Scalia is not trying to understand anything — he’s looking for an outcome that fits his ideology. It doesn’t make a bit of difference that he’s not a master of atmospheric science or that he’s willing to make light of it. He’s already decided this case in his head and is looking for a legal argument to justify it.

  27. #27 D_Rumsfeld
    December 1, 2006

    Jeff Z said: “Clearly, they don’t. This is not a judgement on the science as a whole, but whether CO2 falls into that category. The acid rain point is a good one, but again, 1) the chemical in question was the result of man-made activity, not a common pre-existing component; 2) the effects were measurable; and 3) eliminating the problem would have a measurable effect. Like it or not, even the full success of this lawsuit would have only the most trivial and meaningless impact on the air’s CO2 content. Why should the court impose a pointless burden?”

    Jeff Z, you are wrong, wrong, and wrong on the three points made above. (1) Pollution is typically defined as an excess of a pollutant that causes adverse effects, not as natural or unnatural. Natural sources exist for most of the criteria pollutants currently regulated by the clean air act, including ozone, particulate matter, carbon monoxide, and nitrogen oxides. Carbon dioxide is analagous to all of these pollutants in that the natural levels are not problematic but the excess anthropogenic levels are. (2) The effects of carbon dioxide emissions on the atmosphere are very measurable and have been documented for over 40 years (see NOAA CMDL website for CO2 concentration graphs). (3) eliminating the problem would indeed have a measurable effect on global emissions. The United States has been the worlds largest emitter of carbon dioxide for many years now and will continue to contribute a large fraction of total emissions. Reductions in these emissions will slow the rate of accumulation in the atmosphere, thus slowing the rate of climate change as a result of this buildup. It will not stop or remove the problem, but the clean air act is meant to enable regulators to mitigate current problems and eventually reduce them as technologies become available. These technologies are almost exclusively developed in response to environmental regulations.

  28. #28 Fred Bortz
    December 1, 2006

    Did I miss something, or is the real culprit the EPA for not doing the “EP” part of of its title?

    Massachusetts is suing because the current administration is redefining Environmental Protection to exclude mitigation of global warming.

    No matter what the Supreme Court rules, a future EPA administrator could decide that the agency’s job does include mitigating global warming. In that case, who would have standing to sue?

    All this goes to prove that I don’t understand the law any better than Scalia seems to understand climate science.

  29. #29 Jeff Z
    December 1, 2006

    Good question, JRR. The lawsuit is based on CAA 202 paragraph a. (http://www.epa.gov/air/caa/caa202.txt) Here
    is the relevant section, 202.a.3.A:

    There are 3 disqualifying factors:
    1)CO2 is not covered
    2)The court cannot decide on its own to add a major new chemical class to cover
    3)The cost/effect ratio is insufficient.

    1] Is CO2 covered under this section? No:

    “(3)(A) In General.- (i) Unless the standard is changed as provided in subparagraph (B), regulations under paragraph (1)of this subsection applicable to emissions of hydrocarbons*, carbon monoxide**, oxides of nitrogen***, and particulate matter****”

    *CO2 is not a hydrocarbon (no hydrogen),
    **is not CO (one O short)
    ***is not an oxide of notrogen (no nitrogen)
    ****certainly not particulate matter (no solids)

    2] Can the court decide on its own to add a major new chemical class to cover? No:

    Titles IV & VI were added for acid rain and ozone depletion, respectively. When Congress wants to add to the CAA, the have shown now hesitation in doing so. IV and VI are only the largest and most relevant examples.

    3] Is it cost-effective? No:

    “(continuation of paragraph from 202.a.3.A above)…shall contain standards which reflect the greatest degree of emission reduction achievable through the application of technology which the Administrator determines will be available for the model year to which such standards apply, giving appropriate consideration to cost, energy, and safety factors associated with the application of such technology.”

    Stopping or cutting CO2 admissions would 1) be hugely expensive and 2) have no effect whatsoever on global warming. And this is what it all comes down to. No matter how angry you are, even should the US agree to the most stringent CO2 reduction measures imaginable, the only effect would be to cause a permanent deep economic recession, while the rest of the world continued merrily pumping CO2–and much worse, such as mercury–out.

    This why Kyoto failed in the senate 95-0 and why it doesn’t matter what the court rules anyway.

    To put it bluntly, as good as everyone’s intentions are, you’re being conned. The purpose of this lawsuit is to extract a ton of money from the auto, oil, chemical, etc industries as part of “carbon trading,” “environmental compensation” or whatever, and place into lawyers pockets and state treasuries. A look at what states are supporting the EPA and which are joining Mass will make that more obvious.

    Sorry.

  30. #30 Phobos
    December 1, 2006

    It’s sad to see a judge responding to a fact relevant to the case with a flippant “whatever”. I guess his mind is already made up and facts don’t matter.

  31. #31 Phobos
    December 1, 2006

    I don’t know how the law is worded, but a “pollutant” should not be limited to that which causes direct harm to people. Things which damage the environment (including a particular ecosystem or species) can also be considered a pollutant. At least, that’s how every federal or state environmental agency sees it. You may want to debate whether CO2 damages anything at current levels, but many environmental regulations are based on “background” (naturally occuring) concentrations and the scientific consensus seems to be that human activity is increasing CO2 levels to some degree. Since there’s no specific CO2 regulation, I suppose it comes down to how the law deals with non-listed pollutants.

  32. #32 Ichthyic
    December 1, 2006

    JeffZ in regards to comparing acid rain to global warming wrote:
    …1) the chemical in question was the result of man-made activity, not a common pre-existing component;

    amazing how you can spout off without the slightest clue of what you speak of.

    surely you could have done 10 seconds of research to find out that nitrates, phosphates and sulfates ARE in fact “common pre-existing components” of the atmosphere, and in fact are also produced by natural events, sometimes in excess, like volcanoes. In fact, it was in part due to studying the atmospheric effects of volcanic activity that it was determined that the increases of the same gasses from human activities can cause acid rain to begin with.

    so… the comparison between global warming and acid rain is right on target.

  33. #33 Jeff Z
    December 2, 2006

    Gosh, Ichthyic, with your discussion style, I don’t know why more people don’t listen to you guys…

    1) Yes, I know that these molecules are components in the atmosphere already, but the percentage increase in them from either the man-made causes the law was aimed at or the extraordinary events you mention is exponentially greater than that of the CO2 increase; furthermore, the targeted molecules had obvious, frankly visual consequences such as smog and darkened skies that the were apparent, measurable, provable, and most importantly. had already occured and the ameliorative effects of lowering emission produced a similarly obvious improvement.

    2) Your acid rain comment actually agrees with what I said; the congress took action, not the courts.

  34. #34 Dark Tent
    December 4, 2006

    The difference between a wise man and a stupid man is that the wise man will not weigh in on things he knows nothing about.

  35. #35 Dark Tent
    December 4, 2006

    ..and I might add that the man who recognizes his own ignorance but nonetheless proceeds to pass judgment on that which he knows nothing about is worse than the one who is completely ignorant.

  36. #36 MarkS
    December 27, 2006

    JeffZ said: “To put it bluntly, as good as everyone’s intentions are, you’re being conned. The purpose of this lawsuit is to extract a ton of money from the auto, oil, chemical, etc industries as part of “carbon trading,” “environmental compensation” or whatever, and place into lawyers pockets and state treasuries. A look at what states are supporting the EPA and which are joining Mass will make that more obvious.”

    I believe this is called ‘Ad Hominem’, and doesn’t contribute much to the discussion.

  37. #37 Matt
    April 8, 2008

    I’d expect anybody to know that you don’t leave the air when your plane reaches its cruise altitude.