Attorney Brooks Harlow and climate scientist Roy Spencer opine.
Harlow and Spencer write in “An Inconvenient Burden Of Proof? CO2 Nuisance Plaintiffs Will Face Challenges In Meeting The Daubert Standard“:
Litigation regarding “climate change” allegedly caused by emissions of “greenhouse gases” – primarily CO2 – has been winding its way through the federal court system for more than half a decade. The Supreme Court has now issued two opinions in climate change cases. The first opinion, in Massachusetts v. EPA, upheld a challenge to EPA’s decision not to regulate CO2 emissions and has led the EPA to begin rulemaking on greenhouse gases. The second, Connecticut v. AEP, shut the courthouse doors on cases seeking to enjoin CO2 emissions under federal common law nuisance claims but left the door open to state law claims and possibly damages claims.
With the doors to the federal courthouses still open at least a crack, and a spate of recent state complaints, climate litigation seems to be a new fact of life. As the initial challenges to justiciability are overcome, the next line in the sand may be challenges to the admissibility of plaintiff’s scientific evidence. This article focuses on the admissibility of scientific testimony on causation in common law nuisance damages cases under the Daubert standard, which is followed in all federal courts and about half of the states’ courts. The authors have collaborated to blend an analysis of scientific theories and legal principals. They conclude that based on the current state of climate science and the principles of Daubert, climate change theories are not yet well enough established to hold CO2 emitters liable for damages in a court of law.