In its conclusion the UNITED STATES DISTRICT COURT FOR THE DISTRICT OF VERMONT recognized that in: “Massachusetts v. EPA, the Supreme Court recognized for the first time the phenomenon of global warming and its potentially catastrophic effects upon our environment.” and “First, EPA clearly has the authority and flexibility to address lead time concerns in the waiver process. Second, automakers describe intensive efforts to develop and utilize new technologies to increase fuel efficiency and reduce emissions.” Dr. James Hansen, Dir. NASA/GISS (LINK – Dr. Hansen’s Testimony) The courts OPINION and ORDER contains a history of decisions, arguments, and progression regarding the case. The challenges are between what one might called reasonable cause to project cause and effect and reticence to change with out facts in evidence. Editors note: It is important to realize that this problem can not be solved in a few years, it will likely be centuries. The longer we wait the more difficult it will be. That much is reliably obvious at this point. It seems the evidence some are seeking, may be faster sea level rise and more severe weather causing droughts, floods, food shortages (linked directly to global warming, and human factors relating to Greenhouse gas emissions). The problem of waiting is due to inertia, if we wait too long, we will only be more severely challenged with greater economic and environmental challenges. If anyone wants a preview of what the future has in store you don’t need to be a scientist. Just read the news and look at the global trends. This is not a problem that will begin 50 or 100 years from now, it has already begun to change the global environment and its effects are already causing an economic impact.
Dated at Burlington, Vermont this 12th day of September, 2007. William K. Sessions III Chief Judge U.S. District CourtNotes from document:
- Congress had defined “air pollutant” very broadly to include “any air pollution agent or combination of such agents, including any physical, chemical, biological, radioactive . . . substance or matter which is emitted into or otherwise enters the ambient air.” 42 U.S.C. § 7602(g).
- …the Supreme Court noted that “EPA does not dispute the existence of a causal connection between man-made greenhouse gas emissions and global warming,” but “does not believe that any realistic probability exists that the relief petitioners seek would mitigate global climate change and remedy their injuries.” Id. at 1457.
- The Court disagreed: “[j]udged by any standard, U.S. motor-vehicle emissions make a meaningful contribution to greenhouse gas concentrations and hence, according to petitioners, to global warming.” Id. at 1457-58.
- The Court refused to debate the wisdom of EPA’s “laundry list” of policy judgments justifying its refusal to regulate, but noted that EPA’s reasons were irrelevant to the statutory question of whether it is able to form a judgment that GHG emissions from new motor vehicles contribute to climate change. Id. at 1462-63. In the absence of a reasoned explanation for its refusal to regulate, grounded in the statute, EPA acted arbitrarily, capriciously and otherwise not in accordance with law. Id. at 1463.
- In response to the Supreme Court’s decision in Massachusetts v. EPA, President Bush issued an executive order calling for cooperation among the agencies to protect the environment with respect to GHG emissions from motor vehicles. Exec. Order No. 13,432, 72 Fed. Reg. 27,717 (May 14, 2007). He renewed his call to reduce gasoline usage by twenty percent in ten years, first presented in his State of the Union address in January 2007.
- The ‘302 plaintiffs move under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), to exclude the expert testimony of three witnesses called by Defendants: Dr. James Hansen, Dr. Barrett Rock and Mr. K.G. Duleep. There is no debate as to the adequacy of these experts’ credentials; rather, the plaintiffs have moved to strike their testimony on the grounds that it is not reliable scientific evidence and does not assist the trier of fact.
- Proffered testimony must be based upon “sufficient facts or data.” Fed. R. Evid. 702. This sufficiency analysis is quantitative rather than qualitative, and “facts or data” may include reliable opinions of other experts and hypothetical facts that are supported by the evidence. See id. advisory committee’s note. The expert opinions offered must be the product of reliable principles and methods that have been reliably applied to the facts of the case. Fed. R. Evid. 702. While the testimony must be reliable, its subject need not be “‘known’ to a certainty; arguably, there are no certainties in science.” Daubert, 509 U.S. at 590. Experience alone, or experience combined with other knowledge, skill, training or education, may be the basis for expert testimony under the Rule. Fed. R. Evid. 702 advisory committee’s note.
- James Hansen, Ph.D. The ‘302 plaintiffs contend that Dr. Hansen’s opinions are inadmissible as unreliable. They seek to exclude his testimony regarding the impact of the regulation, and more specifically his “tipping point” theory, including his testimony regarding ice sheet disintegration. They apparently do not seek to exclude his testimony regarding species extinction and regional effects of global warming, except insofar as these effects are presented as consequences of the Earth passing a “tipping point.”
- Reliability of Hansen’s testimony: The ‘302 plaintiffs assert that Hansen’s testimony does not meet Rule 702’s reliability requirements, arguing that his opinions “arise out of pure speculation.” Pls.’ Renewed Mot. to Exclude Test. of Hansen 1 (Doc. 485). As to the Daubert factors, they argue that Hansen’s testimony “meets none of Daubert’s criteria for reliability: his “technique certainly has no known error rate and his hypothesis has not been, and cannot be, tested; the scientific community has explicitly considered and rejected his view as lacking scientific support; and his projections regarding the tipping point and sea level rise find no objective support in the scientific literature.” Id. at 7.
- Plaintiffs did not produce any evidence to contradict Hansen’s testimony on likely species extinctions and devastating regional impacts of global warming other than ice sheet disintegration. In addition, they do not address that testimony in their Motion. Therefore, the Court assumes that their motion seeks the exclusion of Hansen’s testimony as to the concept of a “tipping point” and as to his predictions regarding ice sheet disintegration and sea level rise, but does not seek the exclusion of his testimony as to the effects of global warming on species extinction or regional impacts.
- Hansen’s testimony is based on sufficient facts and data and reliable methods, applied reliably to the facts. Hansen cited abundant data in support of his theories regarding climate change, including historical data gathered from a number of sources including measured temperatures, ice cores and ocean cores, as well as modeling results. He also cited substantial data regarding the likelihood of ice sheet disintegration, including satellite imagery and the GRACE satellite’s gravitational field data showing recent losses of mass in Greenland and Antarctica, increases in ice quakes in Greenland, recent accelerations in ice streams flowing off Greenland, and historical data on sea level rise at other warm periods in paleoclimate history. As the ‘302 plaintiffs note in their motion to exclude Hansen’s testimony, historical data is not a perfect predictor of what will happen in our current climate. Id. at 9. The unprecedented nature of current human-made forcings means that history is not a perfect guide. However, that the situation is unprecedented does not mean that scientists may not testify reliably as to global warming’s likely effects.
- Conclusion In Massachusetts v. EPA, the Supreme Court recognized for the first time the phenomenon of global warming and its potentially catastrophic effects upon our environment. The Supreme Court described human-generated contributions to global warming, including carbon dioxide emissions from motor vehicles, and concluded that EPA has the authority to monitor and regulate such emissions under Section 202 of the CAA. That authority derives from EPA’s responsibility to protect the public health and welfare, a responsibility it shares with each of the states. NHTSA has the authority to regulate fuel economy standards under EPCA. The Supreme Court concluded that EPA’s authority to regulate GHG emissions and NHTSA’s authority to set fuel economy standards overlap but do not conflict, and that the agencies have the duty to work together, particularly with regard to emissions standards that affect fuel economy.
- ORDER For the reasons given above, judgment is ordered for Defendants on Count I (express and implied preemption under the federal fuel economy laws) and Count IV (preemption under the foreign policy of the United States and the foreign affairs powers of the federal government) of the Complaint in Docket No. 2:05-cv-302. Count II (preemption under the CAA) is dismissed as moot. Counts III, V, and VI were dismissed by Plaintiffs before trial. Judgment is ordered for Defendants on the First Claim (preemption under the federal EPCA) of the Complaint in Docket No. 2:05-cv-304. The Second Claim (preemption under the Clean Air Act) is dismissed as moot.
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