Geosciences and geo-scientists lawyer-up.

The news these days constantly reminds us that Earth scientists, however reluctantly, are finding themselves drawn into the legal arena. This week, Washington Post articles included stories on the following:

Va. Supreme Court rules for U-Va in global warming FOIA case. Unpublished research by university scientists is exempt from the Virginia Freedom of Information Act, the Virginia Supreme Court ruled Thursday, rejecting an attempt by skeptics of global warming to view the work of a prominent climate researcher during his years at the University of Virginia…

Court upholds EPA emission standards. A federal appeals court on Tuesday upheld the Environmental Protection Agency’s first emission standards for mercury and other hazardous air pollutants from coal- and oil-fired power plants.

In its ruling, the court rejected state and industry challenges to rules designed to clean up chromium, arsenic, acid gases, nickel, cadmium as well as mercury and other dangerous toxins…

The Washington Post also ran stories and published comment on political inaction on climate change, disputes over fracking, the Keystone pipeline, and lastly, on environmental justice:

Pollution is segregated tooStudies dating back to the 1970s have pointed to a consistent pattern in who lives near the kinds of hazards —  toxic waste sites, landfills, congested highways — that few of us would willingly choose as neighbors. The invariable answer: poor people and communities of color.

This pattern of “environmental injustice” suggests that minorities may contend every day with disproportionate health risks from tailpipe exhaust or coal plant emissions. But these health risks are harder to quantify than, say, the number of power plants in a city. And most of the research that has tried to do this has been limited to a single metropolitan area, or to those few places that happen to have good monitoring data on pollution.

Now, however, researchers at the University of Minnesota, writing in the journal PLOS ONE, have created a sweeping picture of unequal exposure to one key pollutant — nitrogen dioxide, produced by cars, construction equipment and industrial sources — that’s been linked to higher risks of asthma and heart attack. They’ve found, all over the country, in even the most rural states and the cleanest cities, that minorities are exposed to more of the pollution than whites…

These latter stories may not deal with the legal cases per se, but clearly, in each instance, litigation, if not criminal prosecution, is close at hand.

All this, from just one week, in one newspaper. Earth scientists, not just in the United States, but worldwide (as in the 2012 jailing of Italian seismologists) are finding that as their skills improve, as their work begins to have value and at the same time grows more costly – that they are increasingly being held legally accountable for how they obtain and use that funding, how they reach and present their conclusions, how they influence and are influenced by others, and more. As natural resource use tightens, as property loss and business disruption due to hazardous weather rise, and as environmental degradation accelerates, scientists’ legal exposure will only grow. After catastrophes ranging from floods and drought to tsunamis and landslides, oil spills and air-quality exceedances, scientists will join political and business leaders under the legal spotlight, facing questions like, “What did you know, and when did you know it? Why did you subsequently act – or fail to act – in the way that you did?”

Inevitably much of the learning of the new rules of the road that will govern this testier, more contentious, more rigorous future will come the hard, expensive, painful way. But here and there are fledgling efforts to help scientists see what’s coming, and prepare, offline – in a more thoughtful, rigorous fashion.

One good example? The Expert Witness Academy (EWTA), a 1-week training workshop held each August since 2011 at the William Mitchell College of Law, an independent law school in St. Paul, Minn. The American Geophysical Union’s publication Eos (Vol. 95, No. 15, 15 April 2014) covers the topic in an article entitled Effective communication in legal and public policy hearings. Some brief excerpts:

Scientists play a special role in legal debates and public policy decisions. The challenge for scientists who serve as expert witnesses is to communicate effectively in various legal forums, including litigation and legislative hearings. Expert witnesses must not advocate for one side or the other but must be able to convey the meaning as well as the quality and accuracy of their work.

At a basic level, expert witnesses need to explain themselves and their science to people who are not scientists and who lack understanding of complex scientific principles. They also must understand the complex scrutiny that they are under when they testify at trial or participate in public policy discussions. To be effective communicators, they need to be familiar with the legal system and the role lawyers play…

The EWTA workshops are grounded in extensive research and experience in educat- ing adults to be clear and effective communicators. Each workshop is limited to just 20–25 scientists to ensure that every participant receives one-on-one instruction and coaching.

The workshop methodology applies two core assumptions: scientists learn best by doing rather than just listening and observing and scientists more fully understand the role and responsibilities of expert witnesses by also learning about and playing the role of lawyers…

Each participant plays various roles in an elaborate simulation, which is loosely based on the 1972 Rapid City flood, where record rainfall occurred just after controversial cloud-seeding experiments were conducted by defendants in a subsequent lawsuit. The simulation forces participants to answer questions about cloud seeding, massive rainfall, and who is responsible for the disaster.

Through this exercise, participants assume the role of experts in various mock legal proceedings that stem from the flood , including a legislative hearing, depositions, arbitration, and a full-fledged trial complete with a jury played by local community members. Along the way, participants receive feedback from the faculty and watch video of their individual performances…

In EWTA workshops, participants not only practice and play the role of expert wit- nesses but also practice and play the role of attorneys. By taking on these roles, partici- pants see the logic and perspective of the lawyers, judges, and jurors in various forums and develop a deeper understanding of effective communication in different legal processes[1].

The EWTA workshops break new ground, but expect them to be widely emulated, as professional societies and universities turn to the task of equipping scientists to cope effectively in an increasing litigious world. Of course, growing more responsible about the legalities of our work is just one challenge facing Earth scientists as our discipline matures and grows more useful to society.

More on this topic Monday.

[1] The program is funded by the Paleoclimate Program at the National Science Foundation (NSF), which covers all participant costs.


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2 Responses to Geosciences and geo-scientists lawyer-up.

  1. James Marusak says:

    I didn’t know they did this here in the twin cities. thanks for bringing light to it. I have to admit, that may make for an interesting meeting topic next year or so for the local AMS/NWA chapter here, given that meteorologists and other scientists are called on from time to time to testify (and a few make that part of their living).

  2. Bill:-

    I long to see greater accountability for scientists (physical and social) – especially academics. As I read the Italian case, the scientists were indicted because of their rather cavalier statements at public meetings with local residents about the risks of an earthquake – in effect, their actions and words implied there was no risk and encouraged the populace to do nothing.

    The flip side is the current cottage industry of scaremongering about climate change. How frequently do we hear someone proclaiming that the latest extreme weather event is due to “global warming,” or “climate change,” as if it was an unassailable fact that man is at fault. And yet we know that the climate is always changing, and that it is only he who stands on the heights of hubris who dares to leap to such conclusions from the predictions of the inaccurate models we have.

    And, worse, the good intentions of the alarmists [I’m being charitable today!] as reflected in the policies they espouse would ineluctably lead to a world in which the poor had fewer chances, and the unscrupulous greater opportunities to create mischief. Look no further than the NewForests movement forcing poor Africans off their land so that NewForests can profit from carbon credits.

    While I agree with the VA court that a scientist’s unpublished work should be confidential, I also hope that we as scientists will accept that we are responsible for both the good and the ill that come from our published works. This might engender a bit more humility, and a lot less ideology, in our published pronouncements.

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