Professor Robert C. Post, dean of the Yale Law School, appeared recently in the Washington Post defending investigations by state attorneys general into ExxonMobil and the Competitive Enterprise Institute (CEI), saying such investigations are standard operating procedure for addressing possible fraud. He dismissed the protests of the targets of these investigations, saying, “It is grossly irresponsible to invoke the First Amendment in such contexts.”
The subsequent withdrawal of both subpoenas issued by the Virgin Islands’ attorney general and counter-suits launched by both ExxonMobil and CEI suggest Prof. Post was wrong. But let’s try to understand his perspective.
Prof. Post seems to believe the common meme that “97% of scientists agree climate change is man-made and dangerous,” which leads him to believe the scientific debate is over (though when it ended isn’t clear), that ExxonMobil knew this (though when it knew isn’t clear), and since then ExxonMobil has sowed doubt by financing false and misleading research (although much of the research it funded was considered solid enough to be published in peer-reviewed science journals) in order to keep regulators from shutting it down and investors from selling its stock.
Believing all this, Prof. Post might then conclude that CEI and the 100 or so other organizations and individuals cited in the subpoenas (a list apparently cribbed from a Greenpeace website) may all be “shills” or “front groups” funded by ExxonMobil, and therefore their claims to be participating in a legitimate scientific debate are to be discounted. The attorneys general of Massachusetts, New York, and the Virgin Islands presumably all follow this same and somewhat tortuous path of reasoning.
If belief in the “consensus” meme is in fact driving Prof. Post and the attorneys general, then the whole premise of this litigation is false. Because in fact, there is no consensus, but instead a lively academic debate taking place.
The first chapter of The Heartland Institute’s newest book, Why Scientists Disagree About Global Warming, identifies and takes apart the four sources given by NASA as proof of a consensus: They were written by a socialist historian, two college students, and a wacky Australian blogger. The book then identifies surveys and abstract-counting exercises that show considerable disagreement within the scientific community, and then explains why scientists will probably never agree on this issue.
The rest of the book summarizes the perspective on climate change of the Nongovernmental International Panel on Climate Change (NIPCC), an international network of climate scientists who are much less alarmist than the experts relied on by the Obama administration. NIPCC’s findings, reported in a series of 1,000-page-plus books published by The Heartland Institute in the Climate Change Reconsidered series, are so credible they have been cited in more than 100 peer-reviewed articles. Part of that series was translated into Chinese and published by the Chinese Academy of Sciences.
Because there is a lively academic debate over the causes and consequences of climate change, this litigation has First Amendment implications. One side in a bona fide scientific debate is declaring, falsely, that the debate is over and therefore its opponents are engaged in a fraud. This baseless accusation is libelous: It damages the reputations and threatens the livelihoods of scientists who oppose the alarmist narrative and organizations that provide them with platforms from which they can be heard.
In light of this, it seems clear that the wrong individuals and organizations are being investigated. Greenpeace, the Union of Concerned Scientists, and similar groups that are the source of the false “consensus” meme ought to be put on trial for libeling groups that disagree with them. But nice people don’t sue people who disagree with them, so skeptics have rarely resorted to doing this.
There is a second and independent reason to view this litigation as a threat to First Amendment rights: This isn’t about potential consumer or investor fraud or even about climate science. It’s about restricting political free speech.
The AGs, with the encouragement of the U.S. Department of Justice, are entering this debate on the side of alarmists because the alarmists almost without exception are partisans. They are spokespersons for the Obama administration, or contributors to Mr. Obama’s political campaigns, or stand to benefit financially from the Obama administration’s war on fossil fuels (environmental advocacy groups, academics who have made their careers by exaggerating the threat of global warming, and the renewable energy industry angling to keep massive subsidies). Often, they are all three all at once.
Virtually every so-called expert or activist who “believes in global warming” is paid to hold that belief. Scratch the surface and their conflicts of interest are immediately apparent. Skeptics of the anthropogenic global warming theory, on the other hand, are most often financially independent and have no financial stake in the outcome of the debate. They are retired from academic positions or operate as scientists outside the academy. They “looked under the hood” at the science and saw there was nothing there. True believers never look under the hood. Why would they?
Businesses and organizations being targeted by the AGs are exercising their First Amendment right to “petition the Government for a redress of grievances.” It is not the possibility of harm to the public that led the AGs and DOJ to decide to enter into a wickedly complicated scientific debate, but the possibility of harm to the current administration in the White House.
Their objective is to silence opposition by ExxonMobil and CEI (and other nonprofit organizations similar to CEI) to this administration’s draconian energy policies. Proof of its partisan nature can be found in the fact that there was no talk of similar litigation during the administrations that preceded Obama … see for example this brief history by the Federalist Society.
It seems to me the basis of this litigation is an abuse of authority by the Obama administration and its cat’s paws in the states. They base their claims on a myth, readily disproven, that a scientific consensus exists on the causes and consequences of climate change.
Why anyone – least of all the dean of a prestigious law school – would dignify such a crude and corrupt assault on justice is a mystery, and very troubling to me.
Joseph L. Bast is president of The Heartland Institute, a nonprofit research and education organization based in Arlington Heights, Illinois. He can be contacted at firstname.lastname@example.org.