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Global warming on trial?

Despite a lack of precedent or applicable law, the U.S. Chamber of Commerce wants a hearing to make the EPA provide evidence that climate change endangers Americans.

August 26, 2009

The U.S. Chamber of Commerce, seeking to make monkeys of the legions of scientists who have suggested that climate change is a significant problem, wants to put them on trial. Specifically, it wants the Environmental Protection Agency to stage a "Scopes monkey trial" for the 21st century, appointing a judge to hear evidence on the question of whether global warming endangers Americans' health.

It's an intriguing idea. Congress is considering legislation aimed at fighting climate change that would force the country to reinvent its entire energy infrastructure. Separately, the EPA is weighing an "endangerment finding" that would authorize the agency to regulate greenhouse gas emissions. Thus the federal government may be embarking on a very expensive course -- all to head off a threat that many Americans don't understand or don't believe to be a threat at all. Wouldn't it be great if we could just stage a big trial, weigh the evidence and decide whether any of this makes sense? Maybe we could even get Judge Judy to preside.

Yet the trouble with the chamber's petition, which it filed Tuesday with the EPA, is that it has little basis in precedent or law. It's true that the EPA sometimes holds hearings before administrative law judges when the legality of its regulations is challenged, but the chamber wants it to hold such a hearing before any regulation has been approved, and the judge to rule not on a law but on the scientific basis for making a law. This has a whiff of a political stunt designed to fail -- and when it does, to give the chamber a pretext for accusing the Obama administration of not giving a fair hearing to scientific arguments that challenge mainstream climate-change theory.

Courts and judges are for resolving questions of law, not of science. Though the 1926 Scopes trial is often remembered as a contest between evolution and creationism, it actually concerned the legality of a Tennessee law forbidding the teaching of Charles Darwin's theory.

Environmentalists can be dismayingly smug about climate change, sometimes claiming that the science is "settled" and there's nothing left to argue about. Scientific theories are very seldom settled; they are continually tested and revised based on the latest findings. That's why regulatory decisions are best made by consulting the scientific literature, not judges or juries (or environmental activists). The weight of scientific evidence suggests very strongly that the globe is getting warmer, that greenhouse gases emitted by humans are the cause and that the health and welfare of future generations are under serious threat. That might make for a lousy show on Court TV, but it should be enough to prompt action by the EPA.

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