Court Rulings Accept Climate Science
Viewers of certain television networks, readers of certain newspapers, and anyone visiting Capitol Hill would come away with the impression that there are serious questions about whether climate change is occurring and, if it is, whether it is mostly caused by human activity. One place where there are few such questions is the courts. In fact it appears that (with one lone exception in a dissent) not a single U.S. judge has expressed any skepticism, in a written opinion or dissent, about the science underlying the concern over climate change. To the contrary, the courts have uniformly upheld this science, and in one notable recent opinion a judge has gone so far as to suggest that those who accused a leading climate scientist of fraud may have acted with actual malice by making claims that are "provably false," potentially subjecting them to damages in libel.
This column begins by discussing the several litigations involving one embattled climate scientist, and then describes how other courts have dealt with issues of climate science.
Michael Mann Cases
Professor Michael Mann of Pennsylvania State University is a well-known climate scientist and the principal creator of what came to be known as the "hockey stick" graph. Based largely on the observed growth in tree rings, it shows Northern Hemisphere temperatures going back to the year 1000 where they exhibit a gradual decline until the late 19th century, and then begin a sharp upward spike, accelerating in the last decades of the 20th century and taking on the shape of a hockey stick. The graph, first published in 1998 and since refined and extended, is one of multiple lines of evidence showing that industrialization is warming the planet. It took on iconic status in the 2000s, and those who question climate science began a concerted effort to discredit its validity. In 2006 the National Research Council released a report that, while acknowledging some scientific uncertainty with the early data, essentially affirmed the thrust of Mann's findings.1 The attacks escalated in 2009 when a trove of emails among climate scientists was stolen by persons still unknown from a computer server at the University of East Anglia, U.K., and a few snippets of quotes were then depicted as showing that some of the underlying data had been falsified. Some branded this "climategate."
Multiple further inquiries were launched. They all absolved Mann and the other scientists of misconduct, though some shortcomings in recordkeeping and in communications were noted. Nonetheless, climate doubters and deniers continued to attack Mann.
One of those was Kenneth T. Cuccinelli II, the Attorney General of Virginia (and currently a Tea Party-backed candidate for governor). In 2010 he issued Civil Investigative Demands against Mann's former employer, the University of Virginia, under the Virginia Fraud Against Taxpayers Act, which prohibits presentation of "a false or fraudulent claim for payment or approval" to the Commonwealth of Virginia.2 He sought documents from the university about Mann's work on climate change. The circuit court dismissed the demands without prejudice, finding that "the nature of the conduct is not stated so that any reasonable person could glean what Dr. Mann did to violate the statute."3 The Virginia Supreme Court affirmed the dismissal of the demands, but it did so with prejudice and based solely on the grounds that the university is not a "person" under the relevant statute.4
Others continued their attacks on Mann. One blog run by the Competitive Enterprise Institute (CEI) went so far as to say that "Mann could be said to be the Jerry Sandusky of climate science, except that instead of molesting children, he has molested and tortured data in the service of politicized science that could have dire economic consequences for the nation and planet."5 National Review Online ran posts calling Mann "the man behind the fraudulent climate-change hockey stick graph, the very ringmaster of the tree-ring circus," and saying his work was "intellectually bogus."6
Mann brought a lawsuit in the District of Columbia Superior Court against CEI, National Review, and two of their writers for libel and intentional infliction of emotional distress. The defendants countered that they were shielded by the First Amendment, by the "Fair Comment" privilege, and by the District of Columbia Anti-SLAPP Act (Strategic Lawsuits Against Public Participation). Such statutes, which many states have enacted, are designed to protect citizens from being sued for exercise "of the right of advocacy on issues of public interest."7 In order to surmount this defense, Mann had to show that he was likely to succeed on the merits, and since he was something of a public figure, he needed to be able to prove that the defendants had acted with "actual malice"—that they made their accusations against him "with knowledge that it was false or with reckless disregard of whether it was false or not."8
In a decision issued on July 19, 2013, the court found that "several reputable bodies have investigated Plaintiff's work…and Plaintiff's work has been found to be sound. Having been investigated by almost one dozen bodies due to accusations of fraud, and none of those investigations having found Plaintiff's work to be fraudulent, it must be concluded that the accusations are provably false. Reference to Plaintiff as a fraud is a misstatement of fact."9
The court went on to find that there is "sufficient evidence to demonstrate some malice or the knowledge that the statements were false or made with reckless disregard as to whether the statements were false. Plaintiff has been investigated several times and his work has been found to be accurate. In fact, some of these investigations have been due to the accusations made by the CEI Defendants. It follows that if anyone should be aware of the accuracy (or findings that the work of Plaintiff is sound), it would be the CEI Defendants. Thus, it is fair to say that the CEI Defendants continue to criticize Plaintiff due to a reckless disregard for truth."10
The court went on to state: "The record demonstrates that the CEI Defendants have criticized Plaintiff harshly for years; some might say, the name calling, accusations and jeering have amounted to a witch hunt, particularly because the CEI Defendants appear to take any opportunity to question Plaintiff's integrity and the accuracy of his work despite the numerous findings that Plaintiff's work is sound."11
The court found the SLAPP defense to be inapplicable, and it directed the suit to proceed. Defendants' motion for reconsideration was denied. Defendants are seeking an interlocutory appeal.