RealClearEnergy first published this opinion piece.

The Federal Judicial Center’s Reference Manual on Scientific Evidence is supposed to help federal judges understand scientific evidence and methodologies. Judges increasingly confront complex scientific questions and need reliable tools to evaluate expert testimony. The reference manual is one such tool—or at least most of it is.

At the request of 27 states’ attorneys general, the Federal Judicial Center recently removed the manual’s chapter on climate science because it did more to influence judicial outcomes than to help federal judges evaluate scientific evidence. And the reference guide’s chapter called “How Science Works” is guilty of a similar offense.

Judicial reference manuals should teach judges how to evaluate scientific evidence—not tell them which scientific conclusions to draw. Unfortunately, “How Science Works” does a lot more telling than teaching, putting a green-agenda thumb on the scales of justice. So, as The Buckeye Institute and other concerned public policy organizations expressed in a letter to the Federal Judicial Center, the dubious chapter has to go.

In a very anti-scientific turn, and without catching the irony, “How Science Works” misleadingly suggests that broad consensus—not reason, test results, or repeatability—constitutes “the highest level of certainty science has to offer.”  It then asserts that the hypothesis of man-made climate change has reached such “scientific consensus,” despite that hypothesis’s many contested, untested, and controversial claims. The chapter goes on to contravene important legal authorities and doctrines that govern expert testimony.

Federal Rule of Evidence 702, for example, requires courts to determine whether expert testimony rests on sufficient facts or data, results from reliable principles and methods, and reflects a reliable application of those principles and methods to the facts of the case. The rule emphasizes that applying an expert’s methodology to the facts is critical to whether scientific evidence gets admitted in court. Similarly, in Daubert v. Merrell Dow Pharmaceuticals, a unanimous U.S. Supreme Court explained that science’s method of generating hypotheses and testing them to determine whether they can be falsified is what distinguishes science from other forms of inquiry. Daubert ruled that when it comes to scientific evidence, the quality of an expert’s methodology should trump consensus or “widespread acceptance.” The court may be surprised—and not amused—to learn that the federal Reference Manual on Scientific Evidence dismissively calls the scientific method’s authoritative role a “myth.”

Elevating a so-called consensus over rigorous methodology when weighing scientific evidence in the courtroom risks serious, real-world consequences for litigants, especially in the energy sector. What federal judges read about scientific evidence in judicial reference guides will influence how they evaluate scientific evidence at trial, and those evaluations may mean billions of dollars in unwarranted liability.

As climate-related litigation marches across America and energy companies defend themselves and their business decisions against the charge of inflicting climate change, judges and juries should not be encouraged to rely on agenda-driven “consensus” to render their verdicts. Courts may be asked, for example, whether a particular climate model establishes causation; whether an attribution methodology supports a particular claim for damages; or whether an expert’s assumptions justify imposing liability on an energy company. Those questions should not be answered with “four-out-of-five scientists agree,” as if judges were shopping for a new toothpaste.

Instead, the Federal Judicial Center should remove the “How Science Works” chapter from its reference manual, or else rewrite it to conform with Daubert and the center’s own historical approach to judicial guides. When the first edition of the manual was published, the center explained that it was providing the bench with primers on scientific methods and identifying issues on which experts might disagree. The current edition strays far from that circumspect position, all but telling judges what to think rather than how to think about a contested scientific conclusion.

In October, the U.S. Supreme Court heard arguments in Suncor Energy Inc. v. Boulder County, a case in which climate activists hope to impose a very expensive net-zero carbon agenda nationwide. The parties and the country should hope that the Suncor decision adheres to science derived by the scientific method and eschews today’s “widely held beliefs” that may or may not be so widely held tomorrow.

American energy depends on sound, objective science to fuel the future. And American litigants deserve an objective judiciary not primed with politically predetermined conclusions presented as scientific fact.
 
David C. Tryon is the director of litigation at The Buckeye Institute.