The Supreme Court cleans the air: legal and scientific standards for argument in Massachusetts v. EPA.

• Author: Von Burg, Ron
• Position: Essay

Introduction

Environmentalists celebrated the Massachusetts et al. v. Environmental Protection Agency (EPA) (549 U.S. 497 [2007]) decision as an important step in combating global warming (Barnes and Eilperin 2007; Egelko 2007). For the first time, the Supreme Court reviewed EPA's responsibility to address global warming under the Clean Air Act (CAA). Massachusetts et al. (the petitioners) brought suit against the EPA (the respondents) for not properly enforcing the CAA, arguing the EPA neglected to act on requests to regulate tailpipe emissions of new American-manufactured automobiles. Specifically, the petitioners argued the EPA's failure to render a judgment on climate change science, thus delaying action on the grounds of scientific uncertainty, undermined the mandates of the CAA to regulate air pollutants. Rendering judgments on scientific arguments, especially a complex issue such as climate change that engages numerous scientific communities and requires legislative and legal action to address, becomes even more complicated when non-scientists are asked to evaluate such arguments within a legal context that is often incongruous with the subtleties and uncertainties of scientific inquiry. As lawyers and judges concern themselves with putatively legal judgment and scientists adhere to the norms of scientific argument for the purpose of epistemic production, argumentation scholars are uniquely positioned at the intersections of these distinct argument spheres where competing norms are often hashed out in specific settings.

While some argumentation scholars express some misgivings about exporting legal understandings of proof burdens to non-legal argument spheres (Gaskins 1992; Godden and Walton 2007; Hahn and Oaksford 2007), I argue the Supreme Court's assessment of standing, a legal requirement for a petitioner's claim to be justiciable, in Massachusetts v. EPA demonstrates how fissures between scientific and legal argument spheres can yield judgments that accommodate the complexities and uncertainties of scientific argument. Determining standing rests on an amalgam of proof burdens, statutory constraints, and, in this case, competing standards of legal and scientific argumentation. The question of standing, as with many other dimensions animating this case, engages concepts that lie at the heart of argumentation studies. For example, adjudicating uncertainty within the context of judgment regarding scientific matters (Cummings 2009; Goodnight 1982; Paroske 2009) and tracing the migration of arguments across argument spheres (Goodnight 1982; Toulmin 1964) are both central to this case and to the determination of standing. Because, as Sunstein (1992) notes, standing has a complicated legal history and the standards for determining it remain open for interpretation, this essay explores how the Massachusetts v. EPA ruling frames standing as a legal proof burden compatible with the norms of scientific evidence. Furthermore, studying the Supreme Court's engagement with scientific argument and standing is uniquely important, as their ruling on navigating scientific argument within a legal format will have substantial influence on subsequent legal assessments of science.

Tschida (2012) argues that Massachusetts v. EPA helped resolve questions of scientific uncertainty by ruling the petitioners possessed standing. However, his engagement with standing focuses on legal explanations rather than more theoretical treatments of standing in resolving the differences between scientific and legal norms of argumentation. Therefore, this essay helps argumentation scholars better understand the role of standing in navigating scientific uncertainty and in adjudicating differences in legal and scientific standards of argumentation. This case demonstrates how characterization of harm recalibrates proof burdens when scientific arguments are evaluated within a legal framework. My analysis of the Massachusetts v. EPA ruling unfolds in four main sections. First, I examine how argument norms in various discursive fields treat scientific argument. Second, I discuss the role of standing as a proof burden for bringing a justiciable case. Third, I review the legal history of Massachusetts v. EPA, from the Federal Court of Appeals decision to the Supreme Court ruling, with particular attention to how the majority and the dissenting justices characterize scientific uncertainty in both the oral arguments and their respective opinions. Finally, I conclude the essay by offering some observations for argumentation scholars on how the Massachusetts v. EPA ruling on standing relates to broader questions of presumption and proof burdens on matters of scientific uncertainty. I argue evaluations of standing illuminate avenues for argumentation scholars to navigate differences and identify similarities across argument spheres that can shape scientific argument beyond applied legal settings.

Argumentative norms in scientific and judicial spheres

Unlike scientific communities, which expect epistemic uncertainties to drive inquiry, legal communities possess various procedural demands that seek to minimize the role of uncertainty when arriving at a final judgment. (1) Legal formats are very specific argumentative contexts, driven by legal and statutory requirements that are quite distinct from the context of scientific investigation. Because of the finality in judgment within legal arenas, the proof burdens, specifically as it relates to scientific evidence, for certainty are quite high and toleration for scientific uncertainty rather low. This is not to suggest legal spheres are intolerant of scientific uncertainty--reasonable doubt, probable cause, among others, are mechanisms for judgment when epistemic certainty is unavailable--rather, the legal treatments of perceived uncertainty within scientific communities become problematic when rendering judgment on scientific matters. As Hahn and Oaksford (2007) suggest, "[s]ience, for example, has no rules for terminating debate. Theories and results can always be subjected to further scrutiny. Furthermore, scientific arguments typically produce considerably less than certainty and science itself sits comfortably with degrees of conviction" (48). The lack of formal mechanisms to terminate scientific debate makes it difficult for judges, legislators, and other non-scientific decision-makers to assess scientific evidence when questions of uncertainty supposedly remain. (2) The complexity of climate change science, rife with varying degrees of uncertainty, renders it particularly difficult for global warming claims to meet narrow burdens of proof for legal standing. Focusing on the role of standing helps us better untangle how legal and scientific argumentative standards and proof burdens play out in assessing scientific uncertainty within a legal context.

Global warming skeptics can successfully cultivate scientific uncertainty with calls for further study, an argumentative technique often used to halt or delay regulatory action (Paroske 2009). However, the rhetorical techniques used by global warming skeptics to delay action and cultivate doubt are less salient in a judicial forum where rulings are rarely delayed in favor of further scientific study. While the standards for evaluating uncertainty vary across argument fields, judgment on uncertainty in one arena can have significant influence on the status of uncertainty in another. Despite a broad scientific consensus on the possible harms of anthropogenic climate change (IPCC 2013), global warming skeptics often gain traction in public arguments by suggesting that the specific economic harms of climate change legislation are more harmful than the supposedly scientifically uncertain long-term harms of global warming (Michaels 2004; Spencer 2009). Scientific uncertainty, therefore, presumes inaction as the responsible political course.

The question of how scientific enterprises treat uncertainty in knowledge production has long concerned philosophy, rhetoric, history, and sociology of science scholars (Fuller 1988; Gieryn 1999; Gross 1996; Kuhn 1996). The scientific process relies on complex rhetorical and sociological negotiations that influence the development of epistemic claims. The knowledge-making process features even further rhetorical and sociological dimensions as scientific controversies move into non-scientific spheres where various social, political, and cultural demands influence the process of scientific inquiry (Ceccarelli 2001; Hilgartner 1990; Lewenstein 1995).

Toulmin (1964) cautions us, "[arguments within any field can be judged by standards appropriate within that field, and some will fall short; but it must be expected that the standards will be field-dependent, and that the merits to be demanded of an argument in one field will be found to be absent (in the nature of things) from entirely meritorious arguments in another" (255). Such is the case, Gaskins (1992) argues, when scientific evidence and arguments are judged using legal standards. Legal assessments of science can invite mischaracterizations of scientific arguments by subjecting them to unattainable proof burdens. Jasanoff (1997) suggests the movement of scientific discourses across various spheres reveals a series of tensions between scientific and legal argument standards, especially when competing scientific arguments require adjudication within the legal arena. She notes, "[t]o serve its need for decisive endings, the law has devised a complex system of rules and practices for choosing what to believe when facts are uncertain; these rules and practices by definition are not 'scientific'" (10). The incongruity between legal and scientific standards of argument underscores how the assignment of proof burdens and presumptions can shape the resolution of a given debate. Standing, as I argue, resolves these tensions between legal and scientific argumentative...