We’re All Going to Die

We knew the world would not be the same. A few people laughed. A few people cried. Most people were silent. I remembered the line from the Hindu scripture, the Bhagavad-Gita. Vishnu is trying to persuade the prince that he should do his duty and, to impress him, takes on his multiarmed form and says “Now I am become Death, the Destroyer of Worlds.” I suppose we all thought that, one way or another.

These were the words that J. Robert Oppenheimer used to describe the reactions of those who were present at the Trinity test site in New Mexico on the morning of July 16, 1945 when the first nuclear-fission bomb was detonated. One of the issues that had been considered when that bomb was being developed was whether there was any potential for catastrophic results, far beyond the level of devastation that was in fact witnessed when similar fission bombs were deployed a month later in Japan. Edward Teller, who would go on to promote the development of a fusion bomb, had raised the possibility that the temperatures produced by the explosion of a fission bomb would be sufficient to ignite the atmosphere, and thereby result in global catastrophe. The scientists involved in the Manhattan Project to develop the bomb concluded that such an occurrence was, in fact, impossible, and proceeded with the development of a device that still in many ways haunts the political environment of the planet.

More recently, a similar kind of concern has been raised with a different scientific project and in a different context. The Large Hadron Collider (LHC), recently built by the European Organization for Nuclear Research (CERN), is the most powerful particle accelerator ever constructed at a cost of some US$9,000,000,000. Expectations for its potential to shed light on some very fundamental questions in physics about the nature of matter are high, and of much interest in their own right. In particular, scientists hope that the LHC may eventually resolve one of the most important questions about the generation of mass through the Higgs mechanism by producing and detecting the so-called Higgs boson. Experimental identification of the Higgs boson has the potential for largely confirming the Standard Model of elementary particle physics.

But despite its scientific importance — or perhaps because of that importance — there have been a number of legal challenges to operation of the LHC, based mostly on the suggestion that the energies involved might produce small black holes that could swallow up the Earth. It is the stuff that makes up the plots of science-fiction thrillers and while those at CERN are hopeful that the accelerator could produce mini black holes, the danger has been dismissed by particle physicists because the black holes would survive only for very small fractions of a second.

The fact is that the various lawsuits have uniformly failed and on March 30, 2010, the LHC achieved record energy levels in colliding protons together without a hint of catastrophic results. This week, on June 28, 2010, CERN announced that the LHC had doubled the previous record for particle-beam collisions — it was previously held by the Tevatron at Fermilab in Illinois. The LHC is still running at only half the energy it was designed for, but it is hoped it will run at its full energy by sometime in 2013.

What does this say about the intersection of law and science? Scientists complain all the time that lawyers and judges lack the technical expertise to make decisions about which view of the science is correct. Indeed, they feel that far too often, legal decisions are made on the basis of an incorrect, biased, and alarmist view of the science. At the same time, the public is often distrustful of scientists because it believes that scientists get too caught up in the intellectual interest of a project, diminishing legitimate public concerns because they dislike interference in what they are doing. Robert Oppenheimer himself acknowledged this fervor that scientists can have in talking about the Manhattan project: “When you see something that is technically sweet, you go ahead and do it and you argue about what to do about it only you have had your technical success. That is the way it was with the atomic bomb.”

So what are judges who are confronted with such issues to do? To handcuff scientists in response to ignorant and irrational fears is clearly too drastic, especially given the historic benefits that science has had to Mankind. But it is equally too drastic to give scientists an unfettered license to investigate whatever they wish in the name of advancing knowledge when the risks are real and legitimate.

The best answer at the moment is to adhere to the centuries-old principles that have developed in deciding cases. Require that the challengers demonstrate the legitimacy of their concerns and apply balancing tests that evaluate the real level of risk — knowing that what we are talking about is risk and not certainty — against the potential benefit. This is precisely what the judges in the various lawsuits against the LHC have done, finding that the risk identified by the challengers is remote enough and the benefits provided by the LHC are great enough that it would be a mistake to shut it down.

Ill Seed, Ill Weed

Ever since Justice Stevens announced his retirement several weeks ago, I have been trying to think of the perfect subject to talk about in this blog — some pivotal case, perhaps, where Stevens wrote the opinion and addressed some scientific issue. There have been several, of course. It is difficult for there not to have been many scientific issues that have come before the court during his 34-year tenure, the third longest in the history of the Supreme Court. There was, perhaps, his majority opinion in Massachusetts v. Environmental Protection Agency, the only Supreme Court case really to address an issue related to global climate change. Or maybe his majority opinion in Reno v. ACLU, the case that held the Communications Decency Act unconstitutional, having a great impact on the content that is available on the Internet. Or I could have written a speculative blog about In re Bilski, the case that is expected any day now to decide once and for all whether business methods are patentable; there is widespread speculation that Stevens will author a unanimous opinion of the court in that case.

But Monday, the court released its ruling in Monsanto Co. v. Geertson Seed Farms, a case that considers deregulation of a genetically engineered variety of alfalfa produced by Monsanto. The case is interesting to me in talking about Justice Stevens for several reasons. First, it is related to an important scientific issue — the release of genetically modified plants into the environment. It is the first time the Supreme Court has considered a controversy over a genetically modified organism. Second, Justice Stevens is highlighted by the case because he was the only one to dissent from the court’s ruling. One is naturally led to the question: Is Stevens simply out of touch with scientific issues or is the court about to lose a lone voice of reason about scientific issues?

“Roundup Ready Alfalfa” has been genetically engineered to be tolerant of glyphosate, which is the active ingredient in the herbicide Roundup. In 2005, the Animal and Plant Health Inspection Service (APHIS) deregulated Roundup Ready Alfalfa and some 220,000 acres were planted in 48 of the U.S. states, forming part of the crops raised by some 3000 farmers. But the deregulation occurred without an Environmental Impact Statement being completed.

The concern is that the introduction of a genetically modified plant into the environment allows the engineered genes to contaminate other plants. In particular, weeds may acquire the gene and also become resistant to Roundup, requiring the use of other, more powerful, herbicides to produce a viable crop. To guard against negative environmental impacts, the National Environmental Policy Act of 1969 (NEPA) requires that agencies prepare a detailed “environmental impact statement” that can be considered by the public. If the agency finds, based on an abbreviated statement called an “environmental assessment” that the proposed action will not have a significant environmental impact, it may take that action without completion of the environmental impact statement.

In 2004, APHIS prepared the abbreviated environmental assessment and received 663 public comments, of which 520 opposed deregulation of Roundup Ready Alfalfa. In addition to concerns about contamination of other plants, concerns were expressed by farmers and scientists that the engineered gene could contaminate nonengineered alfalfa, thereby impacting the export market for alfalfa because of restrictions imposed on the sale of genetically modified food in other countries. Nevertheless, APHIS concluded that there would be no significant impact and proceeded with deregulation.

In 2007, in response to a challenge brought by farmers and environmental groups, the district court determined that APHIS’s reasons for concluding that the risk of genetic contamination was low were “not convincing.” It enjoined further planting of Roundup Ready Alfalfa until the full environmental impact statement could be prepared and evaluated. The injunction was fashioned to take account of the fact that many farmers had already planted the seeds, permitting those who had already done so to harvest, use, and sell the resulting crops and to permit those who had already purchased seeds to proceed with planting.

But the district court rejected APHIS’s proposal to proceed with a partial deregulation in which some Roundup Ready Alfalfa could be planted under conditions that would isolate it from the greater environment at the same time that the detailed environmental impact statement was being prepared. This was the central issue before the Supreme Court — should such a partial deregulation be permitted under those conditions or should there be a complete ban on the planting of Roundup Ready Alfalfa until the full procedure for deregulation has been completed?

Only Justice Stevens sided with the district court, with the other members of the court accepting the partial-deregulation scheme. I admit to some sympathy with Justice Stevens’s position. The Court admits that voluminous evidence was presented both that the risk of gene flow would be insignificant under the proposed partial-deregulation scheme and that suggested the opposite, highlighting the very real disagreement that exists among scientific experts on the issue. The dissent’s view is one that would afford the district court discretion to take the more cautious approach in light of the scientific disagreement.

It seems unlikely that Justice Steven’s dissent in Monsanto will ultimately be viewed as little more than a footnote when historians examine his career on the Supreme Court. He is more likely to be remembered for the opinions he wrote in cases addressing social issues — such as his majority opinion in Wallace v. Jaffree striking down an Alabama statute mandating a minute of silence in public schools “for mediation and prayer” or for his majority opinions in Rasul v. Bush and Hamdan v. Rumsfeld that constrained executive treatment of detainees in the so-called “war on terror.”

But sometimes there is meaty stuff also in the footnotes.

Come On! Jesus Murphy!

The National Hurricane Center sets the “official” start of the hurricane season as today, June 1.  At the moment, all eyes are on the Gulf of Mexico and the failure of “top kill” to stop oil from spilling into the sea.  There will undoubtedly be many legal actions developing from that oil spill, and there is no doubt that the possibility of hurricanes developing in the Gulf during the next several months that the spill may continue is on people’s minds. 

In that case, though, there are very definite parties to identify as having potential culpability:  the oil company BP, certainly; perhaps some subcontractors of BP; at a stretch, maybe certain officials in the current government Administration. 

But consider the case of Comer v. Murphy Oil, which arose from Hurricane Katrina’s devastation five years ago, the memory of which is still fresh in people’s minds.  Canal-levee breaches that flooded more than 80% of New Orleans.  Thousands housed in barely livable conditions in the Superdome, with reports of fighting and rapes.  Widespread looting and a breakdown of law enforcement, communications, and transportation infrastructures. 

In Comer, a class of a dozen Mississippi property owners sued a range of about 30 corporate defendants involved in the energy and chemical industries for compensation for the damage caused to them by Hurricane Katrina.  Incidentally, one of the defendants was BP, the company struggling to control the Gulf of Mexico’s current oil spill.  Their liability theory is essentially as follows:  the defendants’ operation of their industries caused the emission of greenhouse gases, which in turn contributed to the climate change that is currently underway on the Earth, which in turn caused the hurricane to be more ferocious and devastating, which resulted in the destruction of their property. 

That the Earth’s temperature is increasing as a result of human activity is not seriously disputed.  It is, in fact, one of the most widely accepted conclusions that science has reached, certainly among those scientists who have examined and evaluated the evidence directly.  But any discussion of the Earth’s climate is necessarily a complex one and the Earth is sufficiently large that the impact of human activities on its climate proceeds relatively slowly.  These two factors — the complexity of the system and the slowness of its response — make it difficult to point to any particular event and establish the precise link to what human beings have done or are doing. 

The lower court in Comer dismissed the case.  One of its bases for doing so was that the issue was a “political question.”  This doctrine is one that courts use in implementing the separation of powers that defines the government structure in the United States.  Just as there are issues decided by the judiciary that the legislative and executive branches of government cannot interfere with, so too there are questions that are beyond the purview of the courts.  Such “political questions” require resolution by the other branches of government. 

It is difficult to fault the district court’s determination.  Fossil fuels provide a critically important source of energy that drives the national economy and alternative sources of energy are not as well developed at this point in time.  There are consequences to limiting the use of such energy sources that are significant and far-reaching.  And there are consequences to failing to limit the use of such energy sources that are equally significant and far-reaching.  Furthermore, the United States does not even have control itself over the level of greenhouses gases within its borders — the use of fossil fuels elsewhere on the planet also raises the concentration of such gases in the United States so that even if the U.S. did take some action unilaterally, the positive impact on its own atmosphere may be far less than the negative impact on its economy. 

It seems very much that the appropriate way to reach a solution to the issue is through the democratic mechanism of government.  It is through that structure that the collective thinking of the many different groups impacted by any approach may at least be considered, even if any solution will garner criticism.

But the panel on the appellate court for the Fifth Circuit disagreed with the district court, reversing its dismissal, and essentially telling the plaintiffs that they are at least entitled to present their evidence in a court to determine whether there is liability on the part of the defendants for the damage to their property. 

Where things became especially interesting procedurally in Comer was when the full court decided to hear the case en banc.  Each of the federal appeals courts has a relatively large number of judges — somewhere around 15 — and most appeals are heard by three-judge panels of the court.  When an issue is of significant importance, it is possible for the entire court to hear the case and render a decision.  There was considerable interest in Comer because of its potential in bringing some clarity to the ability of plaintiffs to sue oil companies and other large emitters of greenhouse gases for damage to property caused by severe weather. 

But several of the judges recused themselves from the case.  While the specific reasons for the recusals are not publicly known, the likelihood is that each of those judges had some investment in one of the defendant corporations so that he or she could not ethically participate in a decision.  Initially, seven of the sixteen judges of the court recused themselves.  This left a quorum that vacated the panel decision when the court agreed to rehear the case en banc.  But then an eighth judge also recused himself, leaving only eight judges on the court — a number insufficient to establish a quorum.

 On Friday, just before the Memorial Day weekend began, the court issued its order, dismissing the appeal and refusing to hear oral arguments or decide the case on its merits because of the lack of a quorum.  This leaves the case in a sort of limbo.  The original district court decision stands, meaning that the plaintiffs are not entitled to have their case heard on the merits unless an appeal to the Supreme Court of the U.S. is heard. 

In a strongly worded dissent, one of the judges of the Fifth Circuit described the action of the court as “shockingly unwarranted” and “deeply lamentable,” providing a number of reasons why the court should hear the case.  Options such as having the Chief Justice appoint another judge from another circuit to hear the appeal or of applying the so-called Rule of Necessity to allow the judges who recused themselves to set aside their recusals, were options that he felt should have been taken. 

The dissent argued that the court has “an absolute duty to hear and decide the appeal,” a position that is difficult to disagree with.  The issue of climate change and its legal ramifications is a critically important one.  What is at issue at the moment is not so much whether oil companies should be liable for damage caused by our changing climate — although that could potentially be the issue that ultimately arises — but whether the courts should be involved in hearing such cases at all.  Clarity is needed, and a clear decision by the full court would have had impressive weight in moving towards such clarity. 

The idea that the effects of climate change do indeed represent a “political question” is a compelling one.  While the plaintiffs in Comer may have suffered from an especially dramatic storm, all of us feel the effects of global climate change — and all of us contribute to it by using fossil fuels to power our automobiles and trucks or to heat our homes.  Can someone sue his neighbor for hail damage to his roof because the neighbor drives a car?  When severe weather damages a home in Hawaii, can a salmon cannery in Alaska be sued because it emits greenhouse gases?  These questions appear silly at first blush, and the havoc that could result if such suits were entertained is plain.  But they differ from the argument in Comer only by a matter of scale and degree, not in underlying principle.

The time is soon coming when the Supreme Court of the U.S. will need to step in and provide some clarification, particularly if intermediate courts are going to punt.  It feels instinctively right that authoritative clarification is deserved.