Scientific Complexity, Not Uncertainty

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Global warming issues are moving into litigation - and before they move into the courts, the backroom battles and law school squabbles are yielding legal opinions just as fierce as public opinion.   The Berkeley-based Ecology Law Quarterly published a paper declaring these global warming nuisance cases as hopeless to win in the courts.   This opinion is authored by lawyers representing the automobile industry. I admit that I had trouble following all the legal language - because right off the bat I got stuck and fired up about one simple phrase: scientific complexity.  To me this is denialist language designed to dismiss this crucially important area of litigation.

So I sent the following to:  ecologylawcurrents@boalt.org

To the Editor, and to the authors,

I must take serious issue with one simple phrase in the foundation arguments of your important paper on Global Warming Tort Litigation  Volume 35 Number 2  of Ecology Law Currents.  http://elq.typepad.com/currents/2008/09/currents35-11-boutrous-2008-0915.html

“Whatever one thinks about global warming and its causes, it cannot be denied that it is an issue of public and foreign policy fraught with scientific complexity, as well as profound political, social, and economic consequences.”    http://elq.typepad.com/currents/pdf/currents35-11-boutrous-2008-0915.pdf


Who let you get away with that statement?  This most certainly is NOT fraught with scientific complexity. 

Any high school chemistry student or first year student in physics can have a confident understanding of the science of anthropogenic global warming.  A quick review of vetted and accepted science can impart an understanding sufficient to reach fundamental conclusions.

And certainly any dedicated citizen can understand the essentials.  I am sure that effort by a second-chair legal team could yield a full understanding sufficient to sway a jury.  One can find more scientific complexity in IP and contract law - especially involving subjects like nuclear energy, military contracts, aeronautics, the chemical industry, and issues in the computer and biopharmaceutical industries.   By comparison, anthropogenic global warming appears straightforward and easily comprehensible.

I am astounded that any lawyer would fall into such a trap.   I will resist thinking that your representation of automobile makers (GM) in any way clouds your objectivity in writing this paper.

One point of the Kivalina nuisance suit is to clearly describe the multi-decade and well-funded effort to influence public opinion.  The goals of this campaign are to deny anthropogenic global warming, to delay any public policy reaction, and promote fear of the science by encouraging skepticism and doubt.   These PR tactics are directly borrowed from, and implemented by the same PR firms that well served the tobacco industry in the “we can’t be sure cigarettes cause cancer” campaigns that extended that industry market for decades.   This organized dilatory denialism is well documented from original sources ranging from Exxon-Mobil, to university studies, to formal studies of media influence, to sources mentioned in the Kivalina suit.

The science is significantly less complex than you would expect - or perhaps want. It seems that the “scientific complexity” issue is a central foundation to your entire argument.   And with well-established scientific certainty much of your argument crumbles.  I am further dismayed that any attorney worth his or her billables would shrug at the prospect of both public-interest litigation and deep pockets, claiming that the underlying issue is just “too hard” to understand.   Were that true, there would never be a successful insider trading suit. It is also the kind of excuse we do not accept when our pre-teens complain about difficulties with Algebra homework.

I can refer you to many sources for assistance with the science - any university can help. Here in Seattle, the University of Washington has a Department of Atmospheric Sciences.   Also you might try the web sites of Scientific American, Union of Concerned Scientists, NOAA, and other US government sites.  Most have excellent presentations.   Perhaps the most current and respected site is RealClimate.org which is fully dedicated to anthropogenic global warming discussions between the scientist and the layperson.

Presuming you know how to vet proper and acceptable information sources, I estimate that a few hours of study is enough to garner a fundamental scientific understanding of global warming science.

Finally, even though the science behind anthropogenic global warming remains solid, measurements on the rates of change in these processes is constantly scrutinized - and the rate of change is increasing.   What science measures is uncomfortable to see, and points to a future that is unsettling to ponder.  I ask you to note that most all your case law precedent comes from an age of relatively pleasant climate stability. We are inexorably marching toward predicted global changes described by scientific modeling; including sea level rise, desertification, fresh water problems, heat waves, drought, flooding, species extinction, increased opportunistic diseases, climate refugees, and weather anomalies that will be both stronger and more common.

In a too-near future, domestic and international law will be called upon to support social civility in increasingly stressful times.   The courts must have current, precise, and understandable scientific observations to engage with these issues.  Courts can and will understand the science necessary to properly adjudicate; it is up to the lawyers to find the right experts for the issues, and bring them forward.

Since there may be other legal points in the paper that could be challenged, I hope after an appropriate scientific review you can solicit another opinion.



Richard Pauli is a citizen troublemaker with no legal training - living in Seattle, Washington  He has been following global warming issues for the last few years, and blogs at http://theboywhodeniedwolf.com

2 Comments

I think that the issue w/ the phrase "scientific complexity" is more
clear. The issue *is* "fraught with scientific complexity". It is
also, however, chock full of scientific *consensus*. The climate is
complex. No denial there. But just because it's a complex system
does not imply that we can't be in overwhelming consensus about the
factual contribution of anthropic carbon (etc.) to the final outcome.

There is almost complete consensus among reputable, peer reviewed
scientific literature that our (human) impact is a significant
contributor to the (also agreed by the aforementioned sources to be
real) condition of global warming.

Perfect comment, spot on. - rp

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