You Say Troposphere, I Say Stratosphere

by David Rosner and Gerald Markowitz

Mr. Milkey (for the State of Massachusetts): Respectfully, Your Honor. It is not the stratosphere. Itâs the troposphere.

Justice Scalia: Troposphere, whatever. I told you before Iâm not a scientist.
(Laughter)

Justice Scalia: Thatâs why I donât want to deal with global warming, to tell you the truth. [PDF of arguments here]

We all know that our children lack basic understanding of science and how it works. The dearth of math and science majors in our universities and the huge percentage of kids who know little or nothing about evolutionary theory are illustrative. But when our Supreme Court Justices expose similar ignorance about the uncertainties that are basic to all scientific inquiry, the situation is truly frightening. Itâs not that all of us have to understand the differences between the troposphere and the stratosphere, as Justice Scalia plainly admits. But at least a basic understanding of the questions and issues that inform science would certainly be important in reaching judgments about critical issues that will affect the future of us all. No situation better exemplifies the potential catastrophes that may await us all due to this lack of understanding than the questioning by Justices Scalia, Alito and Roberts in the critical environmental suit Massachusetts v. Environmental Protection Agency.

A few weeks ago, the Supreme Court heard arguments in which the State appealed a decision by the Environmental Protection Agency to not consider curbing emissions from automobiles.  The EPA argued that reducing CO2, nitrous oxide, hydrofluorocarbons, and methane emissions and thereby slowing global warming was outside their jurisdiction since these gases did not fit a narrow definition of âair pollutants.â In contrast, the State argued that common sense dictated that without the reduction of these pollutants global warming would threaten the environment of the State, including Cape Cod and its low-lying coastline. Ironic and sad though it might be that EPA, a regulatory agency, argued against even considering regulation, the questioning by the Justices made it clear that there is a fundamental misunderstanding of science and the history of science at work here that is sadly being used to cover up essentially ideological opposition to the regulation of the industries that create the gases that threaten the planet.

Many of the questions asked by Justices Scalia and Roberts of the Stateâs attorney, James Milkey, were aimed at showing that scientists could not definitively say what harm would accrue to the State if global warming continued. The right to petition the EPA, Justice Scalia argued, demanded that âyou have to show harm is imminentâ and since neither the State nor the scientists could pin down exactly when harm would occur, the State was not entitled to challenge the decisions by the EPA to ignore the issue. Although the Attorney General pointed out that the State was not asking for the Court to decide on the validity of the data on climate change since no serious scientists still argued with the proposition that ocean levels would rise (thereby threatening the Massachusetts and the rest of the worldâs coastline), it was necessary that the EPA consider new standards for these emissions. But, without âproofâ of harm and proof that the actions of the EPA would reduce that harm, Justice Scalia suggested, the State lacked the âstandingâ to demand consideration by the EPA. âI gather that thereâs something of a consensus on warming,â Justice Scalia conceded, âbut not a consensus on how much of that is attributable to human activity.â
 
The discussion at the Supreme Court reflects an underlying confusion among those in the worlds of law and regulation about how to use uncertain scientific information. During the last thirty years, environmental awareness has significantly altered our understanding of disease causation and has spurred an important debate among public health officials, environmental scientists and doctors alike over how to address the vast unknowns. In general, the âconsensusâ that is now emerging is that we should be approaching these very new problems using the principle of precaution. If we suspect harm will occur, then we should act to prevent that harm before it occurs. In other words, we cannot demand of science highly specific proof of danger before acting to forestall it. In 1965, Harriett Hardy, an eminent environmental scientist, cogently argued that âAll scientific work is incompleteâ¦. All scientific work is liable to be upset or modified by advancing knowledge. That does not confer upon us a freedom to ignore the knowledge we already have, or to postpone the action that it appears to demand at a given time.â The precision that Justices Scalia and Roberts are asking for is beyond the scope of environmental science and the demand for consensus misses the point that if we wait for such a consensus we will never be able to address serious environmental issues in the future.

David Rosner, PhD is Professor of Sociomedical Science and History at Columbia University. Gerald Markowitz, PhD is Distinguished Professor of History at John Jay College and CUNY Graduate School. They are authors of the book Deceit and Denial: The Deadly Politics of Industrial Pollution and run the website DeceitandDenial.org.