Sunday, March 21, 2010

Perry Mason and the climate change deniers

The fossil fuel lobby knows that much of the public's worldview is shaped by television, and television is filled with courtroom dramas. The vast majority of those dramas, however, are about criminal cases, not civil cases. (I'll come back to this difference later.)

Climate change activist and founder Bill McKibben alluded to this in a recent piece appearing on "The Huffington Post." But America's and perhaps the world's love affair with defense attorneys whose clients seem to have no chance whatsoever of an acquittal goes back much further than the O. J. Simpson murder trial which McKibben mentions.

Perhaps the best but certainly not the earliest example of the perpetual underdog defense attorney is Perry Mason, the main character of the eponymous television drama. Mason's fictional clients almost uniformly have the means, the motive and the opportunity to commit murder. And just as uniformly, Mason would unmask the real killer, often through clever cross-examination that exonerated his client. Combine this with the number of times television audiences have heard television judges explain to television juries that in order to convict they must find a defendant guilty beyond a reasonable doubt, and you get a public primed to accept that any doubt is sufficient for acquittal.

The fossil fuel lobby has used this persistent and decades-long instruction to good effect. Most fossil fuel industry propagandists no longer claim there is no climate change since this position has become untenable in the face of overwhelming evidence. Instead, like Mason they point the finger at so-called "natural" warming as the true murderer of climate stability. They do not present any evidence of their own because they have none. (All their money is spent on propaganda.) They merely cite research from bona fide climate scientists which documents previous periods of climate change unrelated to human activity. This, of course, proves nothing.

But it does set the stage for the second tactic, which is to focus on ambiguities and uncertainties in climate science. What the propagandists claim is that these ambiguities and uncertainties, which are a part of any scientific endeavor, are reason enough for an acquittal. Remember: By the standards of a criminal trial any reasonable doubt means the defendant should go free. It does not mean the defendant didn't commit the crime, only that the evidence is not sufficient to convict him or her.

This standard, however, was designed for individuals on trial for crimes. And, whatever one thinks of the actions of fossil fuel companies, their activities are not considered crimes under the law. If they were, we would all be implicated in those crimes since virtually every person on the planet uses some form of fossil fuel energy. But there is another standard upon which we make all sorts of decisions, not just legal ones, every day. That standard is called preponderance of the evidence. What it means is that evidence is weighed based on not just the amount of evidence on each side of an issue, but also the soundness of that evidence and the conclusions that can be drawn from it. It is how we ought to make public policy, and sometimes we actually do.

But the public is little aware of this standard. One reason is that television and movie dramas very rarely revolve around civil litigation for which the standard of proof is the preponderance of the evidence. This is because real civil litigation is almost always deadly dull. And, in those few dramas that do involve civil litigation such as A Civil Action and Erin Brockovitch, almost all the action takes place outside the courtroom. That's because the courtroom action behind these real-life dramas would include the endless, tedious questioning of experts painstakingly trying to explain highly complex technical and scientific information to a jury or a judge. Filmmakers and directors know that nobody would watch such a thing as entertainment.

If the climate change issue were litigated as a civil case--what a minute, it already has been! The results have been what one would actually expect in civil cases where virtually all the scientific evidence comes down on one side: namely, that climate change is real and that humans are the major cause of it. Based on that evidence the U. S. Supreme Court decided that the U. S. Environmental Protection Agency (EPA) wrongly refused to regulate greenhouse gas emissions as pollutants when it was petitioned to do so. The EPA is now preparing to do what the Supreme Court told it to do in 2007. In a related case, the Export-Import Bank of the United States and the Overseas Private Investment Corporation, two agencies of the U. S. government, were forced to begin evaluating the impacts of greenhouse gas emissions related to the projects they fund, establish an overall policy concerning climate change, and fund $500 million of renewable energy projects.

Other suits are getting started, and it is hard to say whether courts will allow individuals or groups to sue greenhouse gas emitters for damages. The questions so far have been 1) whether such litigants have standing to sue and 2) whether the court could proceed without guidance from the U. S. Congress about how to handle such cases. But where the question has been whether climate change is real and humans are responsible, government agencies have so far been forced to move ahead with new regulation and policy by the courts--courts that have been convinced by the overwhelming preponderance of the evidence presented in civil lawsuits.

So, we have a precedent for how climate change policy should be determined, not by the bogus logic that any hint of uncertainty in any of the climate science should be grounds for doing nothing, but rather that the overwhelming preponderance of the evidence demonstrating the human link to climate change should frame our actions.

Climate change activists are foolish from a rhetorical point of view to respond to every discrete piece of disinformation spread by the fossil fuel lobby and its legion of paid publicists and unpaid dupes. This just reinforces the idea that the standard for public policy ought to be one of beyond a reasonable doubt. By that standard we would never regulate anything. Instead, climate change activists need to focus on the overwhelming case for human-induced climate change and advance that as succinctly and clearly as they can. And, they need to put Perry Mason and his like back where they belong, on television and in movies and banished from the realm climate change policy.

P.S. If the climate change deniers continue to insist on using beyond a reasonable doubt as their standard, perhaps we should require that they apply this standard to the fossil fuel industry itself. The industry should be required to prove beyond a reasonable doubt that greenhouse gas emissions will NOT alter the climate. If it cannot, then by that standard the industry should be forced to cease extracting and burning all fossil fuels. Standards can be a double-edged sword. Be careful what you wish for.


Anonymous said...

Nice read! Maybe, a divorce suit between the industry and science must be filed, citing holy acrimony...

semper necessitas probandi incumbit ei qui agit

Robin Datta said...
This comment has been removed by the author.
mattbg said...


I don't think this is a legal issue at all, as you somewhat suggest and as you (correctly, I think) point out in saying that we are all users and beneficiaries of fossil fuel activity -- the activists included. In fact, the modern functioning of the legal system itself and most avenues of activism are dependent on fossil fuels. Even the guy who blows up the oil pipeline probably drove there to do it.

I think the energy companies know more about the energy business and probably know more about its ramifications than the activists do. They will of course be very one-sided in making their case, and so will the activists. But since there's no law being violated I don't know how a ruling can be made saying that a law has been violated, no matter what standard you put on the evidence.

I think climate change is a problem about which both activists and energy companies have to make their case to policymakers. The people who decide on action to be taken should be policymakers, not courts.

And policymakers should be able to prove that any actions we take will be prudent while not crippling the economy, since they are ultimately responsible to the people that elected them and I think that most people want to do their part but don't want to be thrown into economic chaos -- if there is a choice between the two, they will choose the economy.

Anonymous said...

Thanks for another great post. I wonder about the ramifications of fossil fuel depletion on climate change. Certainly coal substitution will be an initial response, but beyond that, it would seem as peak oil increases in severity, the economic response may in fact be levered to the downside. At least in the "developed" world a.k.a. USA.

Dunc said...

I've said on more than one occasion that all a defence attorney would need to do to persuade a jury of AGW denialists to acquit someone accused of arson would be to point out that other buildings have caught fire accidentally in the past.

Blazar said...

There are quite a few folks, I would guess a majority, that can't reliably describe the specific evidence of any current global warming being caused specifically by carbon dioxide emissions.

I would like to see a blog post on Resource Insights that is specifically referenced that includes evidence for and against global warming.

As a physician and a scientist there I can tell you that there is not a way to prove that global warming is actually caused directly by carbon dioxide emissions without a randomized controlled trial. A randomized controlled trial obviously cannot be performed on the planet of course. Bottom line the MOST a scientist could do is associate carbon dioxide and/or methane gas levels to levels of warming but causality will be IMPOSSIBLE to prove by any meaningful scientific method.

As I read the arguments for and against global warming, the science behind this issue is clearly not "settled" since it is impossible to "Settle" it. When I hear the language of supposed "scientists", I don't hear any real proof of anything. In fact scientists and politicians themselves are manipulating the language of science to imply a greater level of certainty than there actually is.

Also... I don't see the supposed "believers" in global warming making the drastic changes in their own lives that might be required. By my account, the president should already be a vegetarian for example. The president should conduct all business by teleconferencing. The president should be using LED light bulbs and solar thermal water heaters throughout the White House. Switching to a compact fluorescent lightbulb and calling it a day is just window dressing. Start a White House Humanure project and then I will take this more seriously in my own life.

I'm not even sure about global warming and I have already done these things from a energy perspective.

The hypocrisy on the global warming issue is stunning. By my account we should already all be living in tents to downsize our "footprint".
NOTHING the president has done so far makes me believe that HE BELIEVES in the global warming argument or supposed urgency. This goes for any and all the politicians and followers who favor the global warming argument in fact.

Kurt Cobb said...

Blazer illustrates perfectly my point about climate change deniers. He requires proof beyond a reasonable doubt for human-caused global warming and ignores the massive preponderance of evidence. As a physician, would he operate the same way? In fact, physicians, of necessity, practice using preponderance of evidence all the time as a guide. They also weigh the risks of treatment versus the risks of the disease. Apparently, this doesn't apply to climate change, only medicine.

Blazar shifts ground and refers to those who are concerned about climate change as "believers." He wishes this to be a theological argument rather than one based on evidence. But that is precisely what it is and practically all the evidence is on one side.

Finally, he engages in ad hominem attacks implying that the behavior of others somehow tells us something about the validity of evidence. Evidence of climate change is valid whether anyone who accepts it practices a low-energy lifestyle or not.

Blazar says, "I don't see the supposed 'believers' in global warming making the drastic changes in their own lives that might be required." Clearly he has surrounded himself with people who are doing little or nothing to change their consumption habits, probably because they believe that climate change is not an important issue. Just because he does not see it does not mean it isn't happening. I know people in all walks of life who have voluntarily reduced their energy consumption, some of them drastically, to help address climate change. Perhaps Blazar should get to know some of these people and then he might feel better.

Dunc said...

As a physician and a scientist there I can tell you that there is not a way to prove that global warming is actually caused directly by carbon dioxide emissions without a randomized controlled trial.

Would you apply the same rigour to the trajectory of a large anvil suspended above your head, should it be released? I mean, the Theory of Gravitation is only a theory, right? We can't be really sure that the anvil will fall unless we try it.

Physics is not like medicine. We can prove (in the mathematical sense) that increasing CO2 must result in a climate forcing, provided you accept the Laws of Thermodynamics and the Stefan-Boltzman Law. And if you don't, you have far bigger fish to fry...

Anonymous said...

Hey Blazar!
How much did you get from that?
US oil company donated millions to climate sceptic groups, says Greenpeace.

I hope you haven't been cheated and had a fair share for your excellent job :-)