Following the Science: Judicial Review of Climate Science

~ ELUL

Maxine Sugarman

*This post is the lastof three entries, each of which were winners of the Environmental and Law Use Law Section’s award for the best law review notes or articles related to environmental or land use law. This post includes an abstract and introduction; for the entirety of the article, please visit the Washington Law Review.

Climate change is the greatest existential crisis of our time. Yet, to date, Congress has failed to enact the broad-sweeping policies required to reduce greenhouse gas emissions at the rate scientists have deemed necessary to avoid devastating consequences for our planet and all those who inhabit it. In the absence of comprehensive legislative action to solve the climate crisis, the executive branch has become more creative in the use of its authorities under bedrock environmental statutes to develop new climate regulations. Environmental advocates, states, and industry groups that oppose such regulations or assert that agencies could accomplish more under existing statutory authorities often turn to litigation as a remedy. As more climate-related cases are litigated, judges will be tasked with evaluating an increasing volume of scientific research and factual determinations by federal agencies that inform environmental regulations. Many judges, however, are generalists, and may lack the scientific expertise to navigate climate science presented by parties without additional resources.

This Comment examines how judges can be responsive to science when issuing opinions and orders in climate litigation. It identifies the conundrum that arises when generalist judges are tasked with reviewing technical, political, and sometimes uncertain climate science. This Comment explores the standard of judicial deference that judges may provide to federal agencies. It also discusses potential tools judges could rely on when conducting a “hard look” review of agency science. This Comment concludes that to follow the best available science, judges may need to use a variety of tools to review agency science and afford the appropriate level of judicial deference to agencies. Parties advocating for climate action should keep these different tools and approaches in mind when pursuing climate litigation.

INTRODUCTION

In 1856, Eunice Newton Foote’s breakthrough experiment identified the heat-trapping effects of carbon dioxide.1 More than a century later, in 1988, Dr. James Hansen testified before Congress on behalf of the National Aeronautics and Space Administration and warned policymakers that “the greenhouse effect has been detected, and it is changing our climate.”2 Today, the effects of anthropogenic greenhouse gas emissions are unequivocally clear: climate change is real, it is caused by humans, and it is the greatest existential threat of our time.3

Despite overwhelming scientific evidence4 and countless scientists raising the alarm for immediate action,5 efforts to translate scientific consensus about the climate crisis into comprehensive policies to reduce greenhouse gas emissions have been largely unsuccessful.6 Legislative attempts to provide federal agencies with more regulatory authority for limiting emissions have stalled in Congress.7 But there is some hope. The recent enactments of the Inflation Reduction Act8 and the Bipartisan Infrastructure Package9 include substantial wins for climate activists.10 President Biden characterized the Inflation Reduction Act as “the biggest step forward on climate ever.”11 The bill puts the United States on track to reach substantial emissions reductions by 2030.12 Ultimately, however, the final bill reflects a legislative compromise.13 It advanced through the United States Senate reconciliation process, which limited its scope and prevented the inclusion of many regulatory policies to directly limit greenhouse gas emissions.14

As a result of the hurdles in Congress in enacting comprehensive climate policies, environmental advocates have looked to different levers of power. Once such lever stems from the powers federal agencies have to promulgate rules under bedrock environmental statutes.15 Environmental advocates and industry groups often seek judicial review of agency action or inaction.16 Judges, many of whom are generalists without specialized scientific expertise,17 are then tasked with parsing climate science and law.

In evaluating agency climate science, judges frequently turn to the principles of judicial deference.18 Historically, judges have used administrative law to provide significant deference to federal agency experts in scientific decision-making,19 interpretations of environmental statutes,20 and interpretations of environmental regulations.21 More recently, however, the United States Supreme Court has been less deferential to agencies, particularly agencies developing environmental regulations.22 But what is perhaps most alarming about this shift away from significant deference to agency experts is that the Court’s recent decisions overriding agency rulemaking lack any reference to the science motivating agency actions.23 In the dissenting opinion in West Virginia v. Environmental Protection Agency,24 a case regarding the Environmental Protection Agency’s (EPA) authority to regulate greenhouse gas emissions from existing coal-fired power plants, Justice Kagan noted:

Whatever else this Court may know about, it does not have a clue about how to address climate change. And let’s say the obvious: The stakes here are high. Yet the Court today prevents congressionally authorized agency action to curb power plants’ carbon dioxide emissions. The Court appoints itself—instead of Congress or the expert agency—the decision-maker on climate policy. I cannot think of many things more frightening.25

Justice Kagan eloquently identifies the issue: generalist judges, without scientific expertise, overriding the expertise of federal agencies and the will of the people, as expressed through bedrock environmental statutes, to ultimately undermine climate progress. The stakes could not be higher.

Yet, in the absence of comprehensive action from Congress to limit greenhouse gas emissions in the near term, pressure will likely remain on federal agencies to enact creative regulations under existing statutes to solve the climate crisis.26 The future of such regulations may be uncertain given the Court’s recent skepticism of agency expertise.27

Administrative law provides judges with some flexibility in their review of agency climate science.28 Judges may choose to take a “hard look” review of agency science supporting such regulations.29 A “hard look” review, however, may further exacerbate the conundrum of generalist judges evaluating scientific determinations.30 Alternatively, judges may apply a level of “super deference” to agency science.31 Although such deference may often be the best course of action, it provides parties seeking a legal challenge with little recourse, especially if an agency’s science is flawed or an agency takes an anti-science position in its decision-making.32 As a result, generalist judges may need to rely on other tools to evaluate agency scientific determinations before affording agencies deference.

With an increasing number of climate-related cases on the horizon given the scale of the crisis and the levers of government power at play in response, how can judges without scientific expertise follow the leading climate science when issuing orders and opinions? This Comment makes a normative assumption that grounding judicial decisions in knowledge that is scientifically sound is in the public interest. Based on this assumption, this Comment analyzes the spectrum of deference judges afford to agency climate science.

Part I identifies the conundrum that arises when generalist judges analyze technical, political, and sometimes uncertain climate science. In response to this conundrum, Part II describes the standards judges rely on in deferring to agency factual determinations and reasoning. Part III explores tools judges may consider in conducting a “hard look” review of agency climate science, including: reliance on the precautionary principle, the appointment of scientific experts to advise the court, the use of science tutorials, and the creation of a specialized environmental court. Part IV analyzes the advantages and limitations of “super deference” to agency science and potential tools judges may rely on when conducting a “hard look” review of that science. Ultimately, this Comment concludes that judges will likely need to use some combination of all available tools to parse and translate science and law. Additionally, to effectively advance climate action, parties challenging agency climate science must be aware of the different approaches judges may take when reviewing scientific determinations and reasoning.

I. THE CONUNDRUM: AGENCY CLIMATE SCIENCE IN THE COURTS

[For the rest of this article, please visit the Washington Law Review.]

  1. Notably, this discovery was several years before John Tyndall published their work, which is typically credited as “the foundation of climate science.” See Ayana Elizabeth Johnson & Katharine K. Wilkinson, Begin, in ALL WE CAN SAVE: TRUTH, COURAGE, AND SOLUTIONS FOR THE CLIMATE CRISIS, at xvii (Ayana Elizabeth Johnson & Katharine K. Wilkinson eds., 2020); see also John Schwartz, Overlooked No More: Eunice Foote, Climate Scientist Lost to History, N.Y. TIMES (Apr. 27, 2020), https://www.nytimes.com/2020/04/21/obituaries/eunice-foote-overlooked.html (last visited Oct. 1, 2023) (describing Eunice Newton Foote’s research); Gillian Brockell, Did the ‘Father of Climate Science’ Steal His Discovery from Eunice Newton Foote?, WASH. POST (Nov. 17, 2021, 7:00 AM EST), https://www.washingtonpost.com/history/2021/11/17/eunice-newton-foote-john-tyndall/ [https://perma.cc/R5TN-53HS] (describing how Eunice Newton Foote’s research is often overlooked). ↩︎
  2. Greenhouse Effect and Global Climate Change: Hearing Before the S. Comm. on Energy & Nat. Res., 100th Cong. 40 (1988) (statement of Dr. James Hansen, Director, National Aeronautics and Space Administration, Goddard Institute for Space Studies). ↩︎
  3. See IPCC, Summary for Policymakers, in CLIMATE CHANGE 2021: THE PHYSICAL SCIENCE BASIS 3, 4–6 (2021). ↩︎
  4. See generally id.; U.S. GLOB. CHANGE RSCH. PROGRAM, FOURTH NATIONAL CLIMATE ASSESSMENT (2018) [hereinafter FOURTH NATIONAL CLIMATE ASSESSMENT]; U.S. GLOB. CHANGE RSCH. PROGRAM, FIFTH NATIONAL CLIMATE ASSESSMENT (2023). ↩︎
  5. See, e.g., UNION OF CONCERNED SCIENTISTS, Scientists & Experts Want Climate Action: An Open Letter to the White House, https://www.ucsusa.org/scientists-experts-want-climate-action-white-house [https://perma.cc/C7SS-KBHK] (noting calls from the scientific community for Congress to act on climate). ↩︎
  6. See, e.g., Emily Cochrane & Catie Edmondson, Manchin Pulls Support from Biden’s Social Policy Bill, Imperiling Its Passage, N.Y. TIMES (Mar. 28, 2022), https://www.nytimes.com/2021/12/19/us/politics/manchin-build-back-better.html (last visited Oct. 10, 2023) (describing how the Build Back Better Act stalled in the United States Senate). ↩︎
  7. See, e.g., American Clean Energy and Security Act, H.R. 2454, 111th Cong. (2009) (a climate bill that passed the United States House of Representatives but stalled in the United States Senate); Leah Stokes & Sam Ricketts, This Popular and Proven Climate Policy Should Be at the Top of Congress’s To-Do List, VOX (Feb. 4, 2021, 10:10 AM EST), https://www.vox.com/22265119/biden-climate-change-renewable-energy-clean-electricity-standard-congress [https://perma.cc/8W3E-9TLG] (calling on Congress to pass a federal Clean Energy Standard). ↩︎
  8. Inflation Reduction Act, Pub. L. No. 117-169, 136 Stat. 1818 (2022). ↩︎
  9. Infrastructure Investment and Jobs Act, Pub. L. No. 117-58, 135 Stat. 429 (2021). ↩︎
  10. See generally THE WHITE HOUSE, BUILDING A CLEAN ENERGY ECONOMY: A GUIDEBOOK TO THE INFLATION REDUCTION ACT’S INVESTMENTS IN CLEAN ENERGY AND CLIMATE ACTION (2023), https://www.whitehouse.gov/wp-content/uploads/2022/12/Inflation-Reduction-Act-Guidebook.pdf [https://perma.cc/5JFF-9H5A]; Fact Sheet: Climate and Resilience in the Bipartisan Infrastructure Law, U.S. DEP’T OF TRANSP., https://www.transportation.gov/bipartisan-infrastructure-law/fact-sheet-climate-and-resilience-bipartisan-infrastructure-law [https://perma.cc/3J2N-M3VH] (last updated July 5, 2022). ↩︎
  11. President Joseph R. Biden, Remarks by President Biden at Signing of H.R. 5376, The Inflation Reduction Act of 2022 (Aug. 16, 2022), https://www.whitehouse.gov/briefing-room/speeches-remarks/2022/08/16/remarks-by-president-biden-at-signing-of-h-r-5376-the-inflation-reduction-act-of-2022/ [https://perma.cc/GKY3-M6VM]. ↩︎
  12. OFF. OF MGMT. & BUDGET, EXEC. OFF. OF THE PRESIDENT, OMB ANALYSIS: THE SOCIAL BENEFITS OF THE INFLATION REDUCTION ACT’S GREENHOUSE GAS EMISSION REDUCTIONS, https://www.whitehouse.gov/wp-content/uploads/2022/08/OMB-Analysis-Inflation-Reduction-Act.pdf [https://perma.cc/T2SN-VB25] ↩︎
  13. See Press Release, Senator Joe Manchin, Manchin Supports Inflation Reduction Act of 2022 (July 27, 2022), https://www.manchin.senate.gov/newsroom/press-releases/manchin-supports-inflation-reduction-act-of-2022 [https://perma.cc/E7VP-3UJC]. ↩︎
  14. See CleanLaw, IRA and Clean Energy Implications with Jody Freeman and Greg Dotson, HARV. L. SCH. ENV’T & ENERGY L. PROGRAM, at 13:25–15:54 (Aug. 25, 2022), https://eelp.law.harvard.edu/2022/08/cleanlaw-the-ira-and-clean-energy-implications-with-jody-freeman-and-greg-dotson/ (last visited Nov. 17, 2023). ↩︎
  15. See, e.g., Light-Duty Vehicle Greenhouse Gas Emission Standards and Corporate Average Fuel Economy Standards, 75 Fed. Reg. 25324 (May 7, 2010) (codified at 40 C.F.R. pts. 85, 86, 600 and 49 C.F.R. pts. 531, 533, 536, 537, 538) (describing regulations on light-duty motor vehicle emissions); National Emission Standards for Hazardous Air Pollutants: Coal- and Oil-Fired Electric Utility Steam Generating Units Review of the Residual Risk and Technology Review, 88 Fed. Reg. 24854 (proposed Apr. 24, 2023) (proposing regulations for coal and oil-fired utilities under the National Emission Standards for Hazardous Air Pollutants) ↩︎
  16. See, e.g., Massachusetts v. EPA, 549 U.S. 497, 505 (2007) (noting that plaintiffs sought judicial review of the EPA’s failure to act to regulate greenhouse gas emissions under the Clean Air Act). ↩︎
  17. See Stephen Breyer, Science in the Courtroom, ISSUES SCI. & TECH. (2000), https://issues.org/breyer-science-courtroom [https://perma.cc/5K8G-5RU3]. ↩︎
  18. See, e.g., Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842–44 (1984) (describing the two-part test for judicial review of an agency’s interpretation of a statute that it administers) ↩︎
  19. See infra section II.B. ↩︎
  20. See Chevron, 467 U.S. at 842–43. ↩︎
  21. See Kisor v. Wilkie, 588 U.S. __, 139 S. Ct. 2400, 2415–18 (2019) ↩︎
  22. See West Virginia v. EPA, 597 U.S. __, 142 S. Ct. 2587 (2022) ↩︎
  23. In West Virginia v. EPA, the majority sidestepped a scientific analysis to ultimately conclude that “it is not plausible that Congress gave [the] EPA the authority to adopt on its own such a regulatory scheme . . . of such magnitude and consequence.” See id. at 2616. Similarly, in Sackett v. EPA, the majority neglected to acknowledge that “[t]he scientific evidence overwhelmingly demonstrates that wetlands separated from covered waters by those kinds of berms or barriers, for example, still play an important role in protecting neighboring and downstream waters, including by filtering pollutants, storing water, and providing flood control.” See 598 U.S. __, 143 S. Ct. 1322, 1368 (2023) (Kavanaugh, J., concurring). ↩︎
  24. 597 U.S. __, 142 S. Ct. 2587 (2022) ↩︎
  25. Id. at 2644 (Kagan, J., dissenting). Justice Kagan recently raised the same concern about “the Court’s appointment of itself as the national decision-maker on environmental policy” in the context of a Clean Water Act case regarding the definition of “waters of the United States.” Sackett, 143 S. Ct. at 1361–62 (Kagan, J., concurring). ↩︎
  26. See, e.g., New Source Performance Standards for Greenhouse Gas Emissions from New, Modified, and Reconstructed Fossil Fuel-Fired Electric Generating Units, 88 Fed. Reg. 33240 (proposed May 23, 2023) (noticing the Biden Administration’s proposed rule to reduce emissions from fossil fuel-fired power plants); Multi-Pollutant Emissions Standards for Model Years 2027 and Later Light-Duty and Medium-Duty Vehicles, 88 Fed. Reg. 29184 (proposed May 5, 2023) (noticing the Biden Administration’s proposed rule to revise greenhouse gas emission standards for light-duty and medium-duty vehicles) ↩︎
  27. See West Virginia, 142 S. Ct. at 2615 (“But just because a cap-and-trade ‘system’ can be used to reduce emissions does not mean that it is the kind of ‘system of emission reduction’ referred to in Section 111 [of the Clean Air Act].”). ↩︎
  28. See infra section II.B ↩︎
  29. See Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (“[T]he scope of review under the ‘arbitrary and capricious’ standard is narrow and a court is not to substitute its judgment for that of the agency. Nevertheless, the agency must examine the relevant data and articulate a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made.’ In reviewing that explanation, [a court] must ‘consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.’” (first quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962); and then quoting Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971))). ↩︎
  30. See Emily Hammond Meazell, Super Deference, the Science Obsession, and Judicial Review as Translation of Agency Science, 109 MICH. L. REV. 733, 743 (2011) (describing judicial review of a scientific administrative record). ↩︎
  31. See id. at 734–38. ↩︎
  32. See id. at 752–53. ↩︎
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