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.

• American Farm Bureau Federation et al. v. Environmental Protection Agency, et al. – Chesapeake Bay TMDL
• Massachusetts v. EPA (2007)– Greenhouse Gases Endangerment Finding
• U.S. v. BP Exploration & Production, Inc. et al. – Deepwater Horizon Spill

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!

The second case study also involved the EPA, but this time concerning its ability to implement regulations based on the Clean Air Act. Massachusetts 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.

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.

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, /blog/the-real-art-of-the-deal-lessons-in-effective-science-advising/

2. Juliet Nagel and Kavya Pradhan, April 13 2017. /blog/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