The Climate Wars Get Ugly


On the one side of the climate debate are the “alarmists.” To this group, the only question is what should be done to contain the problem of climate change. To be sure, there is ample evidence of climate change, and even some evidence showing that some fraction of it is caused by humans. But from this modest claim, one cannot infer that all or even a majority of this change is attributable to the use of fossil fuels, or that any and all temperature increases carry with them a threat to the natural world. But these alarmists, skeptics claim, exaggerate the supposed threat of global warming to bring an end to the fossil fuel industry and force excessive and premature reliance on expensive and unreliable solar and wind energy.

On the other side are the “deniers,” who dare to ignore the well-established truth that climate change is occurring. To them, the claim that 97 percent of climate experts believe in man-made global warming is wholly misleading, if not downright fraudulent. After all, scientists who agree that humans contribute to global warming could have huge disagreements on the source, magnitude, and consequences of the effect. Understanding the climate change literature requires some heavy legwork to take into account the interactive effects of human actions and natural events.

The climate skeptics have a point. An incident from a decade ago shows how tricky the analysis of the science can get. Professor Naomi Oreskes, then at the University of California, analyzed some thousand papers on global warming and concluded that over 75 percent of them backed the view that global warming was largely attributable to human intervention. But when Dr. Benny Peiser of Liverpool University looked at the same data, he concluded that only one-third could be read to support the consensus view, and that, of those, only one percent did so explicitly. Oreskes’s paper has been cited from President Obama on down while Peiser’s paper has been rejected not because it was wrong, but because its conclusions were, so it was said, already widely known. More recent studies in line with Peiser’s have been met with a similar skeptical response.

In principle, it should be possible to separate the scientific issues from the political ones. But in today’s overheated political environment, that is difficult to do. The latest example of the politicization of climate change comes via twenty state Attorney Generals, led by New York State Attorney General Eric Schneiderman, who are bringing civil and criminal legal actions against ExxonMobil. A similar course of action has been proposed by Rhode Island Senator Sheldon Whitehead, who advocates investigations of fossil fuel companies for possible violations of the civil and criminal law.

To folks like Schneiderman, progressive forces of good must vanquish the reactionary forces of evil, like ExxonMobil. In articulating his view at a press conference recently in New York, Schneiderman starts from a position of legal strength because the 1921 New York Martin Act, passed to deal with financial manipulation, gives the state Attorney General exceptional powers to sue to stop fraudulent behavior in financial markets. The distinctive feature of the law is that it dispenses with the need of the New York Attorney General to prove three of the five elements of common law fraud—scienter (knowledge), reliance and damages—so that all that is left to prove is a false statement of some material fact.

Yet even the Martin Act has its limitations. Some material false statements are easy to spot: consider the CEO who publicly states that his corporation has gold in its safe when the safe is empty. But it is a very different matter to claim that arguments about the complex causes of the current climate trends, and projections of future climate, are “facts” that can easily be branded as false. The usual way in which to hash these matters out is to have an intelligent debate on the pros and cons of each side. And a debate over these matters should receive the highest level of constitutional protection, given that it would be about finding the truth, and using that information to guide political action. The Martin Act aside, a theory of freedom of speech that denies an opportunity for scientific and political debate restricts the core of “high value” speech that is entitled to constitutional protection. Given its endless set of interlocking presumptions, the Martin Act may well be unconstitutional on its face.

Yet Schneiderman does not see the world that way. In his view, “The First Amendment, ladies and gentlemen, does not give you the right to commit fraud.” The Martin Act conveniently gives the New York Attorney General enormous leverage by allowing him to speak out of both sides of his mouth. In court, he can take advantage of the expansive liability under the Act. But in public discussions, he can brand the companies he opposes as fraudulent.

The most notable attendee of Schneiderman’s press conference was Al Gore, who insisted that Hurricane Sandy was in part caused by climate change—and, specifically, by abnormally high temperatures over the Atlantic Ocean. But there have been major hurricanes for decades, if not centuries, so it is unclear if the natural variability in weather could explain this particular event. In any case, the attempt to infer from long-term climate trends a causal role for particular weather events is deeply problematic.

Gore also attracted attention by saying, “temperatures are breaking records almost every year now. 2015 was the hottest year measured since instruments had been used to measure temperature. 2014 was the second hottest. 14 of the 15 hottest have been in the last 15 years.” But note that there are no actual temperature figures in this statement, probably because temperature increases have plateaued, albeit at a high level, over the past 18 years, notwithstanding substantial increases in carbon dioxide emissions.

Indeed, one troublesome part of this debate is the weak correlation between temperature increases and the rise in carbon dioxide concentrations. Data presented by climate scientist John Christy shows that the standard models have not done well against actual data for the past 37 years. These climate models have predicted temperature increases three-fold that of those that have been observed, and the greatest errors in the models were where the increases in carbon dioxide concentrations were the largest. Models, as Christy warned, “are properly defined as scientific hypotheses or claims—model output cannot be considered as providing proof of the links between climate variations and greenhouse gases.” That is especially true for models whose predictions have been falsified over a forty-year period. It seems even clearer that these models should never be used as the basis of criminal prosecutions or civil investigations.

Which brings us back to ExxonMobil. Shortly after the 20 Attorney Generals met in New York to renew their pledges against climate change, Claude Earl Walker, Attorney General of the United States Virgin Islands, hired the crack law firm of Cohen Milstein to mount a huge civil investigation of ExxonMobil’s activities in the area of climate change. The suit was especially piquant since ExxonMobil does no business in the Virgin Islands. The gist of the charges was that ExxonMobil systematically misled the public over the past forty years in order to improve its ability to extract oil and gas around the globe.

A moment’s reflection reveals how bizarre this fraud suit is. First, it is unlikely that the company adopted any kind of consistent policy over a forty-year period. Second, it is difficult to believe that policymakers have been misled by the company’s alleged misrepresentations. For years now, the opponents of fossil fuels have denounced ExxonMobil and other companies for their perfidy—and these firms have been under close scrutiny as a result. It is odd to think that any corporate scheme could have duped political leaders who were inundated day after day with information intended to expose the falsehoods that ExxonMobil is said to have perpetuated.

In this connection, moreover, I am somewhat unhappy that the ExxonMobil defense rests in part on the view that it has cooperated with government officials in dealing with global warming. That may well be true, but it is also beside the point for the First Amendment analysis. The company is entitled to express its own views, even if they are in opposition to the government’s. Nonetheless, to its lasting credit, ExxonMobil has chosen to counterattack. Normally, the demands for discovery, no matter how onerous, are met with a variety of defensive motions. But in this instance, ExxonMobil took to the offense by bringing its own action for declaratory relief in Texas State District Court, in which it insisted that the entire effort by the Virgin Islands (and its lawyers) ran afoul of a variety of constitutional guarantees, including those involving freedom of speech, protection against unreasonable searches and seizures, and violations of procedural due process.

The common theme behind these defenses is that this sprawling issue is not amenable to litigation, but only to debate. It is simply impossible to have a fair debate on any question if one side to the dispute is able to haul its opponents into court with potential civil or criminal litigation. Ominously, for example, Walker is also going after think tanks. He served a subpoena to the Competitive Enterprise Institute, demanding that it turn over a large collection of documents relating to its climate change work between 1997-2007, which is done clearly with the desire to sniff out potential criminal activity from an organization that has published a number of powerful critiques of government action. If this is not a violation of free speech, then I don’t know what is. Climate change may be real, but the First Amendment should not be pushed aside by the high political theater of ideologues like Eric Schneiderman and Charles Earl Walker.

© 2016 by the Board of Trustees of Leland Stanford Junior University

Published in Environment, Law, Politics
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  1. Dan Hanson Thatcher
    Dan Hanson

    Great article.

    The ‘vast consensus’ of scientists is not just a manufactured statistic,  but its scope is limited to the proposition that the Earth is warming, and that man is most likely responsible for part of that warming.   That’s it.

    Anyone who has actually read the IPCC science reports (as opposed to the summary for policy makers)  will see that the science is shot through with uncertainty.  For example,  the IPCC still rates cloud feedback as being important for estimates of future warming,  but also says that the consensus in the scientific community over cloud feedback is low and that cloud feedback in general is poorly understood.   This is just one of many uncertainties called out in the report.

    Furthermore,  the actual estimates of the future have huge error bars.  They are broken down by various scenarios for different amounts of CO2 emissions (which itself requires us to predict what the economy, energy requirements, and technology will look like over the next 85 years)

    The scenarios are called Representative Concentration Pathways,  and themselves are just models of what the future concentration of CO2 might be.   They use a very simplistic model that simply assumes that CO2 emissions are proportional to economic growth,  under the specious logic that the correlation has been true in the past.  RCP 2.6 is one where we undertake all kinds of emissions reduction methods, AND that we have low economic growth (of course,  serious emission reductions would result in low economic growth…).  RCP 8.6 assumes nothing at all is done,  plus that we have robust economic growth and high population growth.

    This is what the IPCC predictions are:

    0.3°C to 1.7°C under RCP2.6,

    1.1°C to 2.6°C under RCP4.5,

    1.4°C to 3.1°C under RCP6.0

    2.6°C to 4.8°C under RCP8.5

    So even if their scenarios made sense,  if we took the median scenario and the median value within it as the most likely path,  we’re looking at temperature increases on the order of 2-3 degrees over the next 85 years.  This assumes no technological breakthroughs,  no changes to the economy that might make it less energy intensive,  no major recessions/depressions,  no ‘peak oil’, and no feedbacks that aren’t currently known (even though we find new ones every year).

    Estimates of harm from temperature increases on the order of 2 degrees are essentially zero.  Damages to the equatorial regions would be offset by improvements in agriculture and lower heating costs in the northern regions,  opening of the Northwest passage, etc.

    So even going by the IPCC’s own reports it’s certainly not clear that we should be doing anything about climate change other than preparing for the regional impacts it may have.  And the IPCC reports themselves are based on tuned models of complex behavior that have an abysmal track record for predictive ability.

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  2. PHenry Member

    I would think that a scientific finding that had the level of support and the overwhelming evidence the climate change advocates claim would have very little need to intimidate and persecute opponents.  That they have resorted to this shows me they do not have the evidence, and they know it.  Since for many, environmentalism has taken the form of a religious belief, what they are really advocating is blasphemy laws to prosecute anyone who insults their god.

    The climate has always, and will always change.  For someone to claim they 1. know the cause and  2. can control it  is akin to the old rainmakers during the dust bowl.  They are trying to profit from peoples fears, and they are not really doing anything to solve the ‘problem’.  They couldn’t if they tried.

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  3. Don Tillman Member
    Don Tillman

    Back in the 1980’s there was a lot of work on Chaos Theory, and how the behavior of systems with certain characteristics could not be predicted without knowing the initial conditions to an infinite, and thus impossible, level of precision.

    This applies to the earth’s weather and climate.

    So much so that it was even dubbed The Butterfly Effect, with the metaphor of the movement of a butterfly’s wings in one location causing a hurricane in another.

    So, *science* says it’s not possible.  Don’t even try.

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  4. Don Tillman Member
    Don Tillman

    You can’t fight “climate science”, there’s simply too much money in it.  And fighting it doesn’t get you anywhere.  Don’t even try.

    Instead, I recommend a Jujitsu Strategy of redirecting the opponents’ strength against themselves.

    Simply note that all of the environmental and climate change programs have measurably contributed pollutants known to cause climate change, and the simplest, easiest, and most effective solution is to shut them down.  If the climate alarmists really cared about this stuff they would be on board.

    Examples include carpool lanes that increase congestion, fuel consumption and exhaust emissions, corn ethanol that takes from the food supply and requires more energy to refine than it supplies, biofuels that pollute more than gasoline, the MTBE additive that contaminated the groundwater, the EPA regulations that replaced domestic factories with higher-polluting factories off shore, barring incandescent lamps that can be 100% efficient in practice, and so forth.

    All of these “green” programs have had negative environmental effects, and the climate change folks should be able, and even eager, to assist if they really believed that stuff.

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  5. Phil Turmel Coolidge
    Phil Turmel

    Richard Epstein: On the other side are the “deniers,” who dare to ignore the well-established truth that climate change is occurring.

    On this statement, I strongly disagree.  Not whether climate change is occurring, but on the label “deniers”.  The alarmists clearly and consistently use the label to denigrate anyone who denies there’s a climate crisis.  Like me.  I do believe climate is changing, and is likely somewhat influenced by human activity.  I completely deny there’s any crisis over it.  The error bars on the link between GHGs and temperature place even even the polarity of correlation in question.

    The definitive resource for the math-inclined is Climate Audit — operated by Steve McIntyre, one of the scientists who busted the hockey stick over a decade ago.  { I’ve been following it quite a while — from before climategate #1. }

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  6. Front Seat Cat Member
    Front Seat Cat

    Years ago I read a comment from one of the big global think tanks like The Trilateral Commission that was part of long term goals and it said, “We have to “create a crisis” like climate change that the world can rally around”. I remember it verbatim – because it was odd that they said create a crisis.

    I responded to a story written by a professor who summed up that wealth and success were wrong, unless it was redistributed or you changed your lifestyle to minimize your global footprint. I am sure she taught her students the same.  Here is my letter called Our Earth’s Keepers:

    Harvard letter

    Yes here we are 6 years later and now there are penalties that countries will have to pay in the form of $$ unless they abide by the new agenda.

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  7. Man With the Axe Inactive
    Man With the Axe

    Take your Wayback Machine to the year 1916 and imagine what nonsense it would be to ask those people to imagine the problems of today and do whatever it takes, including impoverishing themselves forever, in order to solve the problems of 2016. “Stop using those horse-less carriages,” one might urge.

    Then consider how equally stupid it is to assume that with our current (lack of) knowledge of the problems and available technologies of 2116 that we know best how to solve those problems, namely, by no longer using fossil fuels.

    This is the hubris of the climate alarmists (or as I prefer to call them, hysterics.)

    • #7
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