April 20, 2017

Water, water everywhere, but not a drop to drink, unless something is done: How science is used in legal cases to improve the environment

Hadley McIntosh and Ginni La Rosa

Scientists are not just scientists. We often work at the intersection of science, communication, policy, and law. Scientists deal with law in contracts, intellectual property rights, and privacy disputes, but we are also needed to provide evidence and testimony in judicial rulings. Over the last few classes, the “Science for Environmental Management” group has learned to disseminate the work we do to other audiences1,2. That theme continued on April 14th as we learned the importance of science as evidence in the courtroom. Three case studies were used to highlight recent lawsuits and litigation where science was put on trial.

Many sources of nutrients are overloading the Chesapeake Bay. By reducing nutrients through TMDL limits, improvements in water quality are expected in the Bay. (Image Source: VaBayBlues.org)

The first case study brought us into our backyard, the Chesapeake Bay. In 2010, the Bay was put on a “pollution diet” and total maximum daily load (TMDL) limits were enacted in an attempt to restore water quality. TMDL were put in place since the Bay was not meeting the water quality standards of the Clean Water Act. A case was quickly launched by the American Farm Bureau Federation and others against the U.S. Environmental Protection Agency (EPA) for the TMDL regulations to be discontinued.

The American Farm Bureau Federation made three complaints3: 1) the TMDL’s exceeded the authority EPA has under the Clean Water Act, 2) the science behind the limits was faulty and the models used for determining limits were wrong, and 3) the plaintiff did not have time to participate in the comment process for the TMDL. Judge Sylvia Rambo rejected all three arguments and “affirmed that the pollution limits EPA …[were] based on sound science”3.

In particular, the modeling done by EPA to estimate sediment and nutrient limits was considered entitled to deference under the 1984 Chevron deference ruling. Chevron deference requires that courts defer to the agency’s interpretation on matters that are highly technical and detailed. This was a win for science by upholding EPA’s selection of the models and data used to develop TMDL!

Depending on your stance, the implementation of the Clean Power Plan is either positive, by reducing greenhouse gas emissions and hopefully combating climate change, or negative, by impeding the ability of private industries to regulate themselves. (Image Source: Grist.org)

The second case study also involved the EPA, but this time concerning its ability to implement regulations based on the Clean Air ActMassachusetts v. EPA (2007)4 was a Supreme Court case ruling that allowed the EPA regulatory power of greenhouse gases from automobile emissions under the Clean Air Act. The Massachusetts v. EPA case involved 12 states and several cities filing suit against the EPA to regulate carbon dioxide and other greenhouse gases (i.e. methane, nitrous oxide)4. Perhaps surprisingly, in the U.S. two (or more) government authorities can sue each other for acts they believe are unlawful.

Following the 2007 ruling, an extensive review by EPA of over 100 published peer-reviewed studies was collated into a December 2009 “endangerment finding”5. Greenhouse gases were labeled as “endangering public health and welfare of current and future generations” by the EPA5. The “endangerment finding” prompted EPA to implement its Clean Power Plan in 2015. The Clean Power Plan aims to reduce carbon dioxide emissions from coal-fired power plants by 2030.

Opposition to the Clean Power Plan led 27 state attorney generals, several utilities, and labor unions to file suit against EPA to prevent further implementation of the new federal regulations6. As of today, a 2017 decision is pending in the U.S. Court of Appeals in the D.C. Circuit7. The science of climate change will continue to be debated and it is yet to be determined if these regulations enacted to reduce greenhouse gases will prevail.

The process of having the EPA regulate the reductions of greenhouse gas emissions within the U.S. had, has, and will have a trajectory as follows: legal decisions based on science4 -> technical analysis of the science (i.e. EPA Endangerment Finding of 2009)5 -> policy (i.e. Clean Power Plan) -> questions on the legality of Clean Power Plan6,7 -> possible future legal decisions in the U.S. Court of Appeals and the Supreme Court of the U.S (SCOTUS).

Thirdly, scientific evidence was used to set the penalties and fines following the Deepwater Horizon oil spill. For many of us in the class, the Deepwater Horizon oil spill was the largest environmental disaster during which we have been alive. While a tragedy for the Gulf of Mexico, this spill did not make the top 10 largest oil spills of all time.

Approximately 4.9 million barrels of oil were discharged during the spill in 2010. Massive response efforts attempted to keep the oil away from the fragile wetland and estuarine habitats along the coast and to remove it from the water column. Despite those attempts, substantial harm was inflicted upon the following8:

  • Planktonic and floating seaweed
  • Biota inhabiting the seafloor near the well head
  • Moderately to heavily oiled coastal marshes and mangroves, including the insects, crabs, shrimp, and fish that inhabit them
  • Birds, sea turtles and dolphins exposed to oil slicks

While a settlement was made for the criminal activities that led to the disaster, the U.S. Justice Department, Gulf states, and private individuals went to trial against BP and its partners, Transocean and Halliburton, under Clean Water Act violations and the Natural Resources Damage Assessment. The above environmental impacts were assembled in expert testimony8 during phase three of the U.S. v. BP Exploration & Production, Inc. et al.

Following litigation, a judge accepted settlement in 2016, and up to $8.8 billion will be paid by BP for natural resources damages. The large funds that will go towards continued study of the oil spill impacts, restoration, and adaptive management will indeed be beneficial, but it would have been better had the money not been needed at all.

The three-phase trial of U.S. v. BP Exploration & Production, Inc. et al. reviewed 1) negligence distribution between defendants, 2) the amount of oil spilled, and 3) the seriousness of the violation from an environmental standpoint. Here is how phase one of the trial played out. (Image Source: The Detroit News)

Science can be used in law in a variety of ways and before today’s discussion most of the students in the class had little to no training in law nor in the complexities of using science to defend environmental laws and regulations.

Providing scientific testimony is similar to communicating our science to the public, albeit within a more structured process. We should distill our science for a lay audience, while being technically accurate. We need to know our audience and write or speak to them, as best we can. The better we are at clearly and concisely presenting the science, the better chance for the desired outcome in the courtroom.

References:

1.  Ana Sosa and Jake Shaner. March 30, 2017, http://ian.umces.edu/blog/2017/03/30/the-real-art-of-the-deal-lessons-in-effective-science-advising/

2.  Juliet Nagel and Kavya Pradhan, April 13 2017. http://ian.umces.edu/blog/2017/04/13/journalists-and-scientists-forever-at-odds-or-a-perfect-pairing/

3.  Judge Rambo Ruling: American Farm Bureau, et al EPA, et al. Chesapeake Bay Foundation. www.cbf.org/document.doc?id=1749 3 pg.

4.  Massachusetts v. EPA. The United States Department of Justice. Updated May 14, 2015. https://www.justice.gov/enrd/massachusetts-v-epa

5.  Endangerment and Cause or Contribute Findings for Greenhouse Gases under Section 202(a) of the Clean Air Act. Federal Register under Docket ID No. EPA-HQ-OAR-2009-0171. December 15, 2009 https://www.epa.gov/sites/production/files/2016-08/documents/federal_register-epa-hq-oar-2009-0171-dec.15-09.pdf

6.  Magill, Bobby. April 12, 2016. Lawsuit Aims to Overturn Obama’s Clean Power Plan. Scientific American. https://www.scientificamerican.com/article/lawsuit-aims-to-overturn-obama-s-clean-power-plan/

7.  Clean Power Plan case resources. Environmental Defense Fund. https://www.edf.org/climate/clean-power-plan-case-resources

8.  EXPERT REPORT: Actual and Potential Harm From The Macondo Well Blowout Prepared by Donald F. Boesch, Ph.D., dated August 15, 2014. 01-22-2015. MDL 2179 Trial Docs – Phase Three. mdl2179trialdocs.com/releases/release201501200700000/TREX-013183.pdf

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About the author
This blog was produced by graduate students in the Science for Environmental Management course, part of the Marine, Environmental and Estuarine Science (MEES) program at the University System of Maryland. Bill Dennison and Don Boesch are teaching the course as a 'flipped' classroom so that classtime is spent discussing lectures and readings which are summarized in this blog series.
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Filed under: Science Communication,Applying Science — Tags: , , , , , — MEES Students - Science for Environmental Management @ 2:00 pm

11 Comments »

  1. Great job. After reading this blog, I think more or less training in law will be beneficial for us, whether for defending the status of science in environmental laws and regulations or protecting our own interests.

    Comment by Qiurui Zhu — April 20, 2017 @ 6:11 pm

  2. I agree with Qiurui. We environmental scientists ought to be more exposed to the inner workings of the legal process in addition to the history of environmental legislation we learn. Interestingly, I had just arrived at my Environmental Policy undergraduate class that morning when I first heard about the BP oil rig explosion. Little did I realize at the time what an impact it would have on environmental policy discussions seven years later.

    Comment by Ginni La Rosa — April 20, 2017 @ 10:37 pm

  3. Great blog, it covers our class discussion well. This was a really interesting topic, I found it fascinating to learn about the intersection of science and law, and see how it impacted decisions in actual ecological disasters such as the Deepwater Horizon oil spill. The term “ecosystem-level injury” is one that will stay with me.

    Comment by Juliet Nagel — April 21, 2017 @ 12:42 am

  4. You have really great formatting in this blog! Perfect amount and pacing of terms and images and bullets and such, very digestible – which is pretty exceptional since the TMDL and inter region legislation otherwise seem so complex and formidable!

    Comment by Stephanie — April 21, 2017 @ 9:20 am

  5. This was a great summary of the cases we looked at, and i really liked the diagram about the endangerment finding as a summary of that legal battle. Law is not something that I have been especially interested in, but the effects that it can have on the science that we perform (such as the legitimacy of our models that the Chevron deference upheld) is something that should be of interest to all scientists.

    Comment by Dylan Taillie — April 21, 2017 @ 9:28 am

  6. Nick work on the blog!
    One thing that struck me is class was that during the Deepwater Horizon trials was that they was able to distinguish between “actual harm” and “potential harm”. I think this really demonstrates that they were following the available scientific evidence rather trying to be alarmists and provides even greater confidence in their assessments of the impacts of the oil spill.

    Comment by Kavya Pradhan — April 21, 2017 @ 9:39 am

  7. Good job summarizing the cases. The figure you made really does seem like the classic trajectory. Providing testimony in cases emphasizes the need to know the audience, especially when the audience is made up of both those with a science background and those with a law background.

    Comment by Katie Martin — April 21, 2017 @ 9:39 am

  8. Awesome blog Hadley! At of all the graphics used, my favorite is the Chesapeake Bay “boat” and all of the nutrients spilling in from their different sources. It really put into perspective how large an effect agriculture has on nutrient input into the Bay, and why it is so important that ALL sources be regulated, even if far away!

    The last graphic on the Gulf Oil Spill also speaks volumes. For high environmental risk operations, like an oil refinery, clear ownership and responsibility needs to be laid out before processes begin; and not just up top, but all the down to the people working on the rig. And responsibility and ownership should be frequently revised/revisited in order to ensure that proper precautions are being taken.

    Comment by Alterra Sanchez — April 21, 2017 @ 9:47 am

  9. Great work. I like the cartoon in the blog. It is exactly described what is going on and who is responsible for the oil spill.

    Comment by Hao Wang — April 21, 2017 @ 9:49 am

  10. I liked how well-organized this blog is. You did an excellent job summarizing everything that we talked about, and including fun and informative figures. I would agree that some basic law training would greatly benefit environmental scientists, since we often have to work at the intersection between science and people.

    Comment by Annie Carew — April 21, 2017 @ 10:07 am

  11. Well written! Dealing with human interaction issues concerning marine mammals and sea turtles at work it is interesting to learn from our discussion about the role of scientists in official testimony. Usually I simply transfer evidence to NRP or NOAA officers, but they are informed in legal issues. It is an interesting point you make in realizing that judges and especially juries are lay people, which makes it important to use our science communication tactics.

    Comment by Jake Shaner — April 21, 2017 @ 10:25 am

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