Topic: The admissibility of climate science as evidence
Presenter: Professor Kirsten Engel - University of Arizona
Although few so far, U.S. courts and courts around the world, including Australia, are likely to see more challenges to the validity and reliability of climate science. This shift will be fueled by an increase in the number of cases challenging the manner in which regulators and even private parties have (or have not) taken reasonable measures to adapt to increased drought, sea level rise and more intense storm events. In such cases, the admissibility and weight accorded climate science, a quickly-developing area of scientific research often fraught with uncertainty, will be a key factor.
This paper examines the applicability, to climate science (and other relevant science fields), of the Frye "general acceptance" and the Daubert tests employed by U.S. state and federal trial courts to exclude evidence deemed unreliable or irrelevant. I argue that the current tests apply poorly to a non-laboratory science, such as climate science. More importantly, I argue that the growing practice of Judges to apply scrutiny to scientists' conclusions, as opposed to the validity of their methods, will make climate science predictions especially susceptible to ad hoc judicial exclusion. Because much scientific testimony focuses on applying a method to a particular set of facts, this practice invites ad hoc judicial decisionmaking that inappropriately usurps the role of the scientific expert.
I argue that courts should limit the current admissibility tests to the methodology employed by a scientist and permit scientists to testify unhindered as to their conclusions provided the court is satisfied the scientist is schooled in the method and is in good standing within a field that itself adheres to standards of quality. This approach respects the expertise of scientists and is arguably the most appropriate role for generalist judges with respect to increasingly specialized fields of inquiry such as climate science.
This seminar is presented by the TC Beirne School of Law Research Seminar Series, and the Centre for Public, International and Comparative Law. All welcome, no RSVP required.
Contact: Beth Williams, ph: 334 69350, email: events@law.uq.edu.au
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