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3 Mich. J. Envtl. & Admin. L. 1 (2013-2014)

handle is hein.journals/michjo3 and id is 1 raw text is: ADAPTATION AND THE COURTROOM: JUDGING CLIMATE SCIENCE Kirsten Engel* and Jonathan Overpeck Climate science is increasingly showing up in courtroom disputes over the du- ty to adapt to climate change. While judges play a critical role in evaluating scientific evidence, they are not apt to be familiar with the basic methods of cli- mate science nor with the role played by peer review, publication, and training of climate scientists. This Article is an attempt to educate the bench and the bar on the basics of the discipline of climate science, which we contend is a distinct sci- entific discipline. We propose a series ofprinciples to guide a judge's evaluation of the reliability and weight to be accorded a given climate scientists' claim or opin- ion. The principles are designed to aid a judge in evaluating whether the expert's testimony complies with the Daubert test for the admissibility of scientific evi- dence but are broadly applicable to a judge's evaluation of agency science-based decisions. INTRODUCTION................................................. 2 I. BACKGROUND ...................4.... ...............4 A. The Litigation Context for Disputes over Climate Science.............4 B. Applicable Standards of Judicial Review.......................7 1. Federal Rules of Evidence ................... ......7 2. Judicial Review of Agency Action ..........................10 II. CHARACTERISTICS OF THE FIELD OF CLIMATE SCIENCE RELEVANT TO LITIGATION ......................... ......12 A. Climate Science as a Distinct Scientific Discipline.......... 12 1. The Methods of Climate Science. ...................14 2. Peer-Reviewed Publications .......................18 * Associate Dean for Academic Affairs and Professor of Law, University of Arizona College of Law. The authors wish to recognize the extremely helpful feedback provided by J.B. Ruhl, David Markell and by the contributors to this volume in helping to shape our focus and our understanding of the role of judges vis-a-vis climate science. They also would like to acknowledge the insight gained at the 2011 National Science Foundation - Expert Witness Training Academy, hosted by the William Mitchell College of Law. Additionally, preparation of this Article would not have been possible without the generous financial support provided by the Center for Public International and Comparative Law at the Uni- versity of Queensland where Kirsten Engel served as a Visiting Distinguished Fellow January-June 2012 and from the University of Arizona Law College Association. ** Professor, Department of Geosciences, Department of Atmospheric Sciences, and Co-Director, Institute of the Environment, University of Arizona. 1

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