The Missing Link

Eoanthropus dawsoni.

This is one of the most famous hominids ever discovered. But certainly for the wrong reasons.

It was 1912. Very few hominid fossils had so far been found. Neanderthal Man in 1856; Cro Magnon Man in 1869; Java Man in 1890; Peking Man in 1903; Heidelberg Man in 1908. Each of these discoveries had added a small piece to the great puzzle of modern man’s origins, but there was still no clear species that represented a clear link in the evolution between ape and man.

In a way, that changed with the 1912 discovery of the fossil remains of a hominid — identified as eoanthropus dawsoni after the man who discovered them — that clearly showed a mix of features between ape and man. Found in quarries in Sussex, England, the skull was similar to that of modern man, but would hold only a brain about two-thirds the size of a modern brain. And the jawbone was decidedly more apelike. The combination supported the theory that the evolution between ape and man would begin with the brain so that the skull would evolve before the jaw into a form closer to what exists today.

There were skeptics, mostly among French and American paleontologists. But there were also those who saw the discovery as a critically important one, particularly British paleontologists in a pique of nationalist pride. But as time went on and further hominid fossils were discovered, it became increasingly difficult to fit eoanthropus dawsoni into the developing framework of human evolution. Experts perhaps puzzled over it at times, recognizing it as anomalous.

It would be forty years before the discovery of the fossils — made in the quarries of Piltdown — would be discovered to be a fraud. It was an elaborate hoax perpetuated by someone whose identity remains a mystery today, even though there are various theories about who it might have been. Certainly the fossils had been carefully prepared to make them look far older than they actually were, and it was with the use of much more modern dating techniques that the fraud was ultimately exposed. The preparations clearly required knowledge about the techniques that paleontologists would use in analyzing the fossils, making the hoax seem elaborate and almost sinister.

The four-decade episode of Piltdown Man is an instructive one, exposing the limits that may exist with scientific analyses and the ability of some to exploit those limits to mislead.

The more recent episode of “Climategate” is an attempt to suggest that a similar hoax is being perpetuated by some climate scientists today. The episode began in November of last year when a variety of emails and documents were hacked from the University of East Anglia’s Climatic Research Unit computers. Through a rather selective citation of isolated phrases out of context from stolen documents, a scandal was orchestrated, accusing the scientists who were quoted of colluding in a campaign to withhold scientific information, to manipulate data, and to interfere with the peer-review process in order to perpetuate a hoax of increasing global temperatures.

One particular focus of the allegations has been language in an internal email related to the famous “hockey stick” graph that shows sharply increasing global temperatures in modern times. It is a private email written between two scientists and needs to be understood in that context. It undoubtedly refers to a “trick” used to “hide the decline.” But scientists use the word “trick” to describe something clever or insightful to deal with a difficult issue — not as something deceptive. And the decline that is referred to is well-known in dendroclimatology in which the properties of annual growth rings of trees are used to infer temperature changes.

The fact is that since about 1960, tree-ring data has tended to suggest a decline in global temperatures at a time when direct instrumental measurements of temperatures show that it has clearly increased. Before 1960, tree-ring proxy measurements are consistent with other proxies for temperature change at least back to about 1600 AD. Something is obviously amiss with tree-ring proxy measurements, at least after 1960, although the reason for the divergence is not understood. What the Climategate scientists were referring to in their exchange was a known way of dealing with this inconsistency. It is important to recognize that they were not “fooling” anyone — the anomaly with tree-ring data is well-known among climate experts, as is the statistical “trick” used to legitimately reconcile the different types of data.

Yesterday, a British panel exonerated the scientists involved in Climategate, even as it criticized them for some reluctance to release computer files supporting their work. “[W]e find that their rigour and honesty as scientists are not in doubt,” the review states. This is the third review to clear the scientists of allegations of fraud and the vice-chancellor of the university has now expressed his hope that this will “finally lay to rest the conspiracy theories, untruths and misunderstandings that have circulated.”

The history of Piltdown man reminds us that we need to be on guard against scientific misconduct and fraud. But we also need to be on guard against unwarranted allegations of such misconduct when there is no sustainable evidence to show it is there.

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.