The New York Times has a feature today, “In Weighing Death Penalty, a Flaw in Fact.” It is notable for the manner in which it comes right out and admits that new information has given them pause about an opinion – applying capital punishment for child-rape is unconstitutional – with which the Grey Lady otherwise would agree: “It turns out that Justice Kennedy’s confident assertion about the absence of federal law was wrong.”

Hmmm. Yes, he might occasionally be that. But what is the Times’s support justifying such second-guessing?

“A military law blog pointed out that a central part of the Supreme Court’s analysis leading it to rule against capital punishment for child rape was based on incorrect information.”

Team RatherGate, take a bow, the Times has dignified your work! Pajama-clad bloggers of the world, unite! And, send your URLs to Times reporters. They really value your opinion.

This prompted an atmospheric scientist to email with a point:

This NYT story quotes blog-published analysis claiming – correctly — that a SC decision was likely based on bad information.Does this set a precedent?
I could publish an analysis showing that last year’s SC decision on CO2 [Mass. v. EPA] was based on a flawed affidavit [see below] and other incorrect information.
Would the NYT then report on my analysis? And wouldn’t this be an important story — in view of the current EPA-WH impasse?

What could he possibly be thinking about that might help guide EPA’s soon-to-be-published Advanced Notice of Proposed Rulemaking addressing their possible declaration that man-made CO2 endangers human health and the environment? Data revealing that CO2-warming theory has been debunked, possibly?

It should be said that, particularly when litigants appear on a brief together, lawyers often find themselves limited in what arguments the client will collectively agree to. But in the instant case one lawyer who argued the case for the (losing) states, claims that “the existence of the military provision simply eluded everyone’s research.” SCOTUS rules allow 25 days to ask for a reconsideration, the success of which is as unlikely in practice as it sounds.

In the matter of the fallout from Mass. v. EPA, we are dealing more with the emergence of a changed understanding of reality. One might even call it a changed reality. Sure, by the time we briefed the case in 2006 (I filed an amicus on behalf of scientists) the seven-year cooling was underway — which is utterly incompatible, while CO2 emissions continue to climb, with the underlying notion that CO2 drives climate…warmer. The cooling has since become pronounced, and has accelerated.

Further, numerous other potential and key forces have also emerged: to wit, we know that the North Pole experienced warming but the South Pole did not, and CO2-warming theory says they both would warm; meantime, volcanoes have been discovered under and around the area experiencing melt. Highly relevant. Oceans, which are supposed to be warming, aren’t, and in fact are cooling. Serial other affirmations that the models on which the entire case rests are so flawed as to be risibly unsuited for policymaking.

So, back to the scientist’s question. EPA is unlikely to read blogs on its way to deciding whether and how to pretend the gentle ministrations of bureaucrats can control the weather. But he and everyone else has 90 days, beginning any moment now, to respond to EPA’s request for comment.

The “flawed affidavit” referred to is a Declaration submitted by former U.S. Government climate modeler Michael MacCracken (available here, p. 220, PDF p. 225).

MacCracken, FYI, was instrumental in rushing out the incomplete “National Assessment on Climate Change” as the 2000 election loomed, a document which later succumbed to litigation by CEI, Sen. James Inhofe, and others, to a disclaimer for not having been subjected to the requirements of the Data Quality Act. The Court defers to his expertise as a “climatologist” – which he is not, though he did not claim to be in his Declaration — (p. 12/PDF p. 18) and a “climate scientist” (p. 18/24), first for the proposition that achievable reductions would have an impact, and that a consensus exists about the horrible consequences if we do nothing).

The Court expressly relied upon his Declaration for various propositions that add up to its conclusion, paraphrased, that “the parade of horribles is likely and can be mitigated by reducing emissions.”

So the majority opinion opened its “causation” discussion with the fact that EPA doesn’t contest this. The majority serially repeat this unfortunate truth, in text and footnotes. Yet of course, EPA could have challenged McCracken’s claim in several ways, even late in the game by noting GISS’s “Y2K” error. Consequences of such dereliction include the majority saying in a footnote that it appears that only the 4 dissenting Justices contest this. What a proud moment for the solicitor’s office, as with the failure to dispute the notion offered in argument that X5 reduction in emissions will save X percent of Massachusetts’s coastline. Sigh.

The Court leaned heavily on the “uncontested” nature of the affidavits (as a crutch, sure, but that they were allowed to do so is the problem). That led to the majority saying up front “Given EPA’s failure to dispute the existence of a causal connection between man-made greenhouse gas emissions and global warming, its refusal to regulate such emissions, at a minimum, contributes to Massachusetts’ injuries.”

This brings us back to the Court’s ruling:

In short, EPA has offered no reasoned explanation for its refusal to decide whether greenhouse gases cause or contribute to climate change. Its action was therefore “arbitrary, capricious, . . . or otherwise not in accordance with law.” 42 U. S. C. 7607(d)(9)(A).We need not and do not reach the question whether on remand EPA must make an endangerment finding, or whether policy concerns can inform EPA’s actions in the event that it makes such a finding. Cf. Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc.,467 U. S. 837, 843-844 (1984). We hold only that EPA must ground its reasons for action or inaction in the statute.

Or possibly in a blog post.