Punishing “Climate Change Deniers” – Legality Be Damned
There is a growing clamor in some circles to do something about “Climate Deniers”. The clamor arguably began more than 10 years ago, as documented here. However, it has reached a “fever pitch” in the United States over the past year. Repeated searches have not uncovered any demands for “stoning”, or “burning at the stake”, or “drawing and quartering”, or “crucifixion”. However, it is still early times.
The focus of those experiencing this “fever” is not actually “climate denial”, or “climate change denial”, or “anthropogenic climate change denial”, or even “catastrophic anthropogenic climate change denial”. Rather, their focus is simple catastrophic anthropogenic climate change skepticism; that is, merely questioning whether climate change, especially the anthropogenic contribution to climate change, is likely to result in a catastrophic change in the climate of the earth.
Pursuing the Evil Sources Funding “Climate Change Deniers”
On November 5th, 2015, New York State Attorney General Eric Schneiderman subpoenaed 40 years of records regarding climate change from Exxon Mobil. This is a “What did they know?”, “When did they know it?”, “What did they tell the SEC?”, “What did they tell shareholders?” and “What did they tell the public?” fishing expedition. The period of interest extends back to before the mid-70s “global cooling” scare.
On April 4th, 2016 the Attorney General of the US Virgin Islands subpoenaed the Competitive Enterprise Instutute in connection with the Exxon Mobil investigation being conducted by the Attorney General of New York State. This subpoena covers only the period from 1997 to 2007.
Cooler(?) Heads Prevail – Potential Legal Approach – RICO
There has been much recent discussion, from a number of sources, regarding potential prosecution of “Climate Change Deniers” under the federal Racketeer Influenced Corrupt Organization (RICO) law. The most vocal of the advocates of RICO prosecution is Senator Sheldon Whitehouse (D, VT). He has been joined by Senators Diane Feinstein (D, CA) and Edward Markey (D, MA).The most recent occurred during congressional testimony by US Attorney General Loretta Lynch, who stated that she had referred the issue to the FBI to determine whether adequate basis existed for action.
The RICO Statute
The RICO statute was passed into law in 1961, primarily as a vehicle to deal with the activities of organized crime syndicates involved in the commission of a variety of actions which were already in violation of existing law. The statute was clearly not intended to apply to individuals and organizations which questioned the validity of scientific studies or the positions taken by government based on those studies; or, to individuals or groups which conducted scientific research which reached conclusions different from the conclusions of previous studies, or questioned the validity of positions taken by government based on previous scientific studies. Stated differently, the RICO statute did not and does not render the practice of science and the pursuit of the scientific method illegal.
When RICO Applies – What Must Be Proven
Applying RICO in cases of scientific disagreement would appear to require that the individuals or organizations funding the scientific studies and/or the individuals or groups conducting the scientific studies, funded or conducted those studies with the intent of producing fraudulent results. It would not be sufficient merely to demonstrate that these studies produced results which differed from the results of studies conducted by other scientists, since falsifiability of results is one of the principal foundations of science.
Applying RICO against companies which failed to alert their stockholders to the potential adverse impacts of the companies’ activities, or the potential adverse impact of government actions based on the government’s assessment of the impacts of the companies’ activities would appear to require that the companies KNEW the nature and extent of the adverse impacts or KNEW the nature and extent of the potential government actions. However, it is clearly not possible to KNOW the future, though it is possible to hypothesize about the future.
Applying RICO against companies or organizations which funded research studies which reached conclusions differing from the conclusions of previous research would appear to require that these studies were funded and performed with the intention to defraud the public regarding the implications of their activities. In this case, it would appear to be necessary to prove fraudulent intent, rather than merely demonstrating that the companies’ or organizations’ interests would be supported or advanced by the results of the studies.
So Who’s on the “Hit List”
Climate Change Deniers Hit List:
Companies involved in exploration, production and distribution of fossil energy
Organizations involved in climate change which have received fossil energy industry funding
Researchers in climate change who have received fossil energy industry funding
Researchers who have performed studies with results inconsistent with the “consensus”
Researchers and statisticians who have questioned studies consistent with the “consensus”
Scientific journals which have published studies with results inconsistent with the “consensus”
Web bloggers critical of the “consensus”
Journalists critical of the “consensus”
Why Limit RICO to “Deniers? – Potential “Climate Affirmer” Targets
Interestingly, though not surprisingly, there has been no such discussion regarding individuals and organizations which might be referred to as “Climate Change Affirmers” for purposes of symmetry; or, more accurately, as catastrophic anthropogenic climate change promoters. These include US EPA, NOAA, NASA, NCAR, NCEI and a host of other federal bureaucracies; and, individuals such as James Hansen, Thomas Karl, Kevin Trenberth, Michael Mann, Al Gore, etc.
The RICO statute apparently does not conceive of the possibility that the federal government, or an agency of the federal government, could participate in racketeering or be a corrupt organization; or, that an individual or organization conducting scientific research funded by the federal government could be corrupt, or acting under the influence of racketeers. Federal government funding of climate change research is apparently assumed to be “as pure as new fallen snow”, while private funding of similar research is apparently viewed as day old slush.
Former US Vice President Al Gore is a consistent “climate change affirmer”. He has fronted a movie entitled “An Inconvenient Truth” regarding climate change. The movie, which has been used to propagandize school children in the US and other countries, was determined to contain scientific errors by a British High Court. The film has not been revised to correct those errors; and, therefore, showings of the film in British schools must be accompanied by a review of the noted errors.. Gore’s efforts regarding climate change have enriched him significantly, while propagating inaccurate science.
Professor Michael Mann is the creator of the “Hockey Stick” representation of potential future temperature change. While Mann still defends the “Hockey Stick”, it has been broadly criticized regarding the source of some of the data and the statistical techniques used to create the “Hockey stick”. The “Hockey Stick” was prominently featured in the IPCC AR3 and AR4 reports, but was reduced in prominence in AR5 report. Mann is currently suing the Competitive Enterprise Institute, National Review and author Mark Steyn regarding Steyn’s description of the “hockey Stick” as a fraud. Mann is currently “slow walking” the legal process, apparently in an effort to delay discovery, increase defendants’ legal costs and force a settlement. Steyn has since countersued Mann for $10 million, just to make it interesting.
Climategate illustrates one potential situation in which government agencies conspired to exclude certain researchers and research studies from inclusion in the reports produced under the auspices of the United Nations Framework Convention on Climate Change (UNFCCC), by the International Panel on Climate Change (IPCC). While the UN representatives and their staffs appear to be protected by diplomatic immunity, scientists employed by government agencies and scientists working on government-funded research do not appear to have such immunity.
The reports produced by the IPCC were then relied upon by US EPA in developing the CO2 Endangerment Finding, despite the requirement in the Clean Air Act that EPA fund and conduct its own research. Arguably, this reliance constitutes influence by a corrupt organization.
Government also funds numerous environmental NGOs, many of which then lobby EPA for more restrictive environmental regulations. In some cases, EPA assists the NGOs in their lobbying efforts. In other cases, the NGOs sue EPA to achieve their desired results; and, EPA settles the suits by developing and implementing the desired regulations. Certainly no hint of corruption in these activities.
The Essential Difference between Denying FACTS and Questioning Hypotheses
The primary, potentially catastrophic, manifestations of climate change of concern to those experiencing this “fever” are increasing near-surface temperatures, rising sea levels and an increase in “extreme weather events”. The singular focus regarding causation is on emissions of “greenhouse gases”, primarily carbon dioxide and, to a lesser extent, methane. The primary focus regarding emissions sources is on the fossil fuel industry, with secondary focus on agriculture and animal husbandry.
The factual evidence for global warming is limited to the record of temperature change over time, which consists of early proxy records and the instrumental temperature record. There is also factual evidence of changes in atmospheric chemistry and sea level, which are correlated with temperature change, though no causative relationship has been proven.
The primary focus of the climate science community regarding temperature change is on the near-surface temperature records and the sea surface temperature records, largely to the exclusion of the high altitude balloon/radiosonde and satellite temperature records. This primary focus is quite strange, since the effects of increased infrared absorption resulting from increased concentrations of infrared absorbers in the atmosphere would appear first in the atmosphere, which the balloon/radiosondes and satellites measure directly.
The data provided by the near-surface and sea surface temperature records is tainted by a number of factors, including non-uniformity of distribution, lack of comprehensiveness of coverage, instrument selection, instrument degradation and siting issues. The siting issues with the near-surface temperature evidence include installation of the measuring stations in non-ideal locations and encroachment of urban environments on measuring stations installed in previously ideal or near-ideal locations.
The data provided by the near-surface temperature records has been “adjusted” for the stated purpose of correcting for the issues which taint the data, as listed above. This action constitutes data tampering. The data has been adjusted by multiple producers of global near-surface temperature anomaly records, using differing “adjustment” methods and producing differing results. The same is true of the sea surface temperature records. As the result of these “adjustments”, we are no longer dealing with data, but rather with estimates of what the data might have been, had they been collected timely from properly selected, calibrated, sited, installed and maintained instruments.
Further, NASA GISS “infills” temperature estimates for areas for which data does not exist, making coverage appear more comprehensive. This action constitutes fabrication of “data”.
The questionable quality of the tainted climate change data and the questionable treatment of the data of climate change by the organizations collecting, tampering with, fabricating and analyzing the data would appear to justify skepticism on the part of climate scientists and others frequently referred to as “Climate Change Deniers”. It might also justify investigation of the actions of the organizations and individuals collecting the tainted data, tampering with that data, fabricating missing data; and, using that data to support scenarios of catastrophic climate change which appear to demand national and international action.
The concerns regarding climate catastrophe are based on the scenarios output by the various climate models, which vary by model and by the assumptions input to drive the modeled scenarios. These models have clearly demonstrated that they are not accurately modeling the real environment. Rather, they are used to create numerous hypothetical future outcome scenarios. None of the models have been verified, so their various output scenarios cannot be construed as FACTS, nor can the future(s) they output be considered as KNOWN. Therefore, those who question the modeled scenarios cannot be fairly accused of denying FACTS or KNOWN outcomes, but merely of being skeptical of the hypothetical scenarios output by the models.
Today, rather than being falsified by research studies conducted by skeptical scientists funded by skeptical funding sources, the climate models are being falsified by the passage of time and their failure to model even the “adjusted” temperature data collected by the government-funded climate science community. Meanwhile, the IPCC continues to profess increasing certainty regarding their conclusions, in the face of increasing divergence of even the “adjusted” data and the modeled scenarios. Therefore, despite the feverish efforts to discredit and potentially punish the skeptics and those who fund their research, the skeptics and their funders are merely guilty of pointing out that “the emperor has no clothes”. That is hardly justification for RICO prosecution of the observing skeptics, though it might be grounds for such prosecutions of those who “fabricated” the emperor’s new clothes.