Justiciability of Scientific Questions II: Mass. v. EPA

This post is a follow-up to -- you guessed it -- to Justiciability of Scientific Questions.

Until now, the courts have largely managed to duck the scientific issues in monkey trials (Judge Jones could have easily ducked the scientific issues but chose not to) but the day may come when the courts may have to squarely face those scientific issues.

The justiciability of scientific questions was raised in the recent case of Mass. et al. v EPA, which was about whether the EPA should regulate "greenhouses gases" -- including CO-2 -- as pollutants that contribute to global warming. The majority opinion in Mass. v. EPA said,
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To ensure the proper adversarial presentation, Lujan holds that a litigant must demonstrate that it has suffered a concrete and particularized injury that is either actual or imminent, that the injury is fairly traceable to the defendant, and that it is likely that a favorable decision will redress that injury. . . .

. . . . . Nor can EPA avoid its statutory obligation by noting the uncertainty surrounding various features of climate change and concluding that it would therefore be better not to regulate at this time. See 68 Fed. Reg. 52930–52931. If the scientific uncertainty is so profound that it precludes EPA from making a reasoned judgment as to whether greenhouse gases contribute to global warming, EPA must say so.

So the majority opinion in Mass. v. EPA said that "a litigant must demonstrate that it has suffered a concrete and particularized injury that is either actual or imminent," and it is questionable that "mental displeasure" (Justice Scalia's words in another decision) at the teaching of "pseudoscientific" criticism of Darwinism in the public schools would qualify as a "concrete and particularized injury." And even if the court holds that mental displeasure is sufficiently "concrete and particularized," the court is likely to hold that such injury is not sufficiently severe to justify the extreme and undesirable action of ruling definitively on a contentious scientific issue. Global warming potentially could have disastrous physical consequences whereas issues of evolution education only concern a non-existent "right" to not be offended. Despite (1) those potentially disastrous physical consequences of global warming and (2) the central importance of global warming theory in Mass. v. EPA, the Supreme Court declined to make a definitive ruling on the merits of that theory but instead conceded that there is "uncertainty surrounding various features of climate change." Presumably the Supreme Court would be even more reluctant to decide contentious scientific issues in an evolution education case where there is no more at stake than a non-existent "right" to not be offended.

Wikipedia says of Mass. v. EPA,

This case has become notable because of a widespread perception that the truth or falsehood of theories of global warming will be decided by the courts, not unlike the Scopes Monkey Trial on evolution [actually, the Scopes trial did not actually decide the truth or falsehood of evolution]. While this could eventually occur in later proceedings, the questions before the U.S. Supreme Court here were much more narrow, and legal in nature.

One of several reasons that the EPA Administrator declined to regulate carbon dioxide is uncertainty about whether man-made carbon dioxide emissions causes global warming. This has attracted great attention to the case (See "Update" link below.) However, the Supreme Court only decided whether the Administrator's reason is a valid reason within the CAA [Clean Air Act]. The Supreme Court did not explicitly decide if it is true or untrue that man-made carbon dioxide emission causes global warming, although high-profile comments by Justices during oral argument are likely to affect the public debate.

The Petitioners argued that scientific uncertainty is not a valid basis for the EPA Administrator to decline to regulate. The question before the High Court was not whether the causation is true or untrue, but whether it is a valid reason for the Administrator to not regulate a pollutant.

Also, I have found that the term "nonjusticiable question" is often associated with the term "political question." One legal dictionary gives the following definition of "political question":

political question:

n. the determination by a court (particularly the Supreme Court) that an issue raised about the conduct of public business is a "political" issue to be determined by the legislature (including Congress) or the executive branch and not by the courts. Since 1960 the U.S. Supreme Court has been willing to look at some questions previously considered "political," such as "one-man-one-vote," as constitutional issues.

However, IMO the two terms have different meanings and should not be confused. IMO a political question is a kind of nonjusticiable question.
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