The research community has warned for decades about the potential environmental and health costs of burning coal, oil, and natural gas, often pointing out that those costs can be measured in real dollars. But now the U.S. court system, as it begins to validate the science informing the social cost of carbon, seems to be listening.
“America is a nation of laws,” or so said John Adams, the second president of the United States. And though a ruling on the law may not end the political debate on the cost of a high carbon-based energy economy, it does provide a benchmark – for governing and for carrying out day-to-day life in a civil society.
And it is for that reason that some observers believe a 7th U.S. Circuit Court of Appeals ruling in August could be very important. In this case, the Court was asked to review a narrow question on the U.S. Department of Energy’s (DOE) use of metrics for analysis in standards for commercial refrigeration equipment. This may seem, at first blush, like an obscure matter, but of the numerous technical challenges that came up in the case, one bubbled to the top: the U.S. Chamber of Commerce’s concerns about the Obama administration’s estimate of the social cost of carbon, a metric that represents the long-term damage to society, in U.S. dollars, from each incremental ton of carbon dioxide released into the atmosphere.
In fact, the specific challenge to the Court, mounted by the Air-Conditioning, Heating and Refrigeration Institute, the North American Association of Food Equipment Manufacturers, and small business Zero Zone Inc., centered on the DOE’s analysis of this regulatory standard. Senior Judge Kenneth Ripple, an appointee of President Reagan, wrote the opinion in the case as a part of unanimous three-judge panel decision, stating that the DOE metric was “neither arbitrary nor capricious” and affirmed the legality of the social cost of carbon calculation (see decision here). That calculation came from a working group of federal agencies and was revised in 2015 to be $36 per metric ton of carbon dioxide. It will rise to $50 a metric ton in 2030 and $69 a metric ton in 2050. (These increases account for changes in net agricultural productivity, human health, property damages from increased flood risk, and changes in energy system costs).
The appellate court decision affirming these metrics means that the social cost of carbon is legally deemed a reasonable standard and can be applied by DOE and other federal agencies in public policy settings. In other words, this “nation of laws” has now, in the judicial arena at least, recognized the costs of continuing to burn fossil fuels for energy.
U.S. Congress, Scientific Truth, and Environmental Law
The ruling on social carbon begs larger questions, such as how elected officials might be called upon to measure scientific truth for building public policy in the future. Thirty scientific organizations, for example, recently sent a letter to the U.S. Congress – factions of which still deny the existence of climate change – urging climate action. And Adam Frank, a professor of astrophysics at the University or Rochester recently penned his own commentary on what he calls the “gap between opinions and facts,” writing:
Observations throughout the world make it clear that climate change is occurring, and rigorous scientific research concludes that the greenhouse gases emitted by human activities are the primary driver. This conclusion is based on multiple independent lines of evidence and the vast body of peer-reviewed science.
In other words: if action from federal policymakers continues to be absent despite the scientific evidence on climate change, will the courts increasingly be in the position to provide clarity for climate policy?
