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Delusions on Trial - 04/20

By Rich Trzupek
  A coalition of Democratic attorneys general from a number of states are going after selected organizations that refuse to submit to global warming orthodoxy and energy companies that supposedly fund those organizations, using the court system to do so. I’ll go on record as predicting that this effort will end up being a spectacular, and embarrassing, waste of taxpayer dollars.
  The theory, such as it is, suggests that energy companies like Exxon-Mobil are funding organizations like the Competitive Enterprise Institute and the Heartland Institute (I volunteer my expertise to the latter as a policy advisor) to knowingly disseminate the lie that the dangers of long-term climate change have been vastly overblown by people like Al Gore and Michael Mann.
  They cite, as precedent, the settlement that the government entered into with the big tobacco companies for allegedly knowingly paying others (chiefly the Tobacco Institute) to lie about the dangers of their product.
  It’s an attractive theory and I can see why so many Democratic AGs have signed on. But it’s also a deeply-flawed theory, as those AGs are going to find out. Since US courts have accepted EPA’s views on climate change, the AGs seem to expect that the courts won’t hesitate to slap down anyone who disagrees with those views.
  The courts reluctance to challenge EPA on the scientific background of the climate change issue is not surprising. In my experience, the courts are very reluctant to make any sort of scientific judgements. Instead, they traditionally defer to the experts and they are inclined to use experts employed by the government as their experts of choice unless there are very compelling reasons to do otherwise. 
  I’ve testified as an expert witness in cases where the opposing EPA expert was – in my professional opinion – clearly wrong from a technical perspective, but the court deferred to the Agency none-the-less. Even when Anton Scalia slapped down the EPA over the greenhouse gas tailoring rule, he did so on the basis that EPA had exceeded its authority, rather than calling into question whether regulating GHGs made scientific sense. 
  There are individual judges who are personally sympathetic to AGW orthodoxy, but in general I don’t think the judiciary’s scientific/political opinions come into play here. Their primary concern is about fair adherence to process, not the results of the process.
  The basic argument in the tobacco cases – one that I don’t necessarily agree with – was that the tobacco companies knowing and willfully introduced and promoted a dangerous product into the marketplace, all the while knowingly misrepresenting the risks they were aware of. The winning argument was that the RJ Reynolds’ of the world were selling something akin of cyanide by telling the public it was actually aspirin and thus reaped enormous profits as a result of their willful deception. 
  I’m not sure how the Dem AGs can make the same sort of case – one that a court would accept – when it comes to global warming skepticism. First, the AGs need to prove that the alleged conspirators were disseminating lies and that they were knowingly do so in order to glean some sort of personal or corporate profit. 
  The actual strategy that energy companies have adopted over the last 20 years varies between appeasement and outright surrender. You would be hard-pressed to find an organization that donates more to “global warming research” and that is more careful to distance itself from skeptical organizations than Exxon-Mobil. That’s just one example. The energy industry learned from the tobacco industry example and, at a corporate level, do whatever they can to conform with environmental orthodoxy in every case. 
  Their attitude has been “yep, we know our product is bad for the environment, so look at all the stuff we’re doing to help fix the problem!” Privately, many of the hard-working people at the refineries, terminals and all the rest of our energy infrastructure resent how corporate rolls-over for the Green Machine, but most recognize the necessity of doing so.
  Second, the Dem AGs won’t be able to produce evidence that suggests that individuals or organizations that expressed opinions in opposition to AGW orthodoxy did so because moneyed conspirators directed them to do so. I can’t see the courts ruling that a conspiracy exists when there is no money-trail – or any other evidence – to support the theory since, as I know as one intimately and actively involved in the skeptical community, there is no conspiracy.
  Third, the Dem AGs won’t be able to prove that nothing has been done to reduce US GHG emissions, since the fact is that tons of stuff has indeed been done to reduce GHG emissions and EPA data clearly shows that GHG emissions in the US have in fact been massively reduced. How can one allege a conspiracy to prevent something from occurring when it has in fact already occurred?
  I think the Dem AGs are flying under the mistaken impression that since the courts have been sympathetic to EPA’s global warming position, they will be equally sympathetic to applying racketeering statutes. I think they are in for a rude awakening, but not before wasting a whole bunch of taxpayer dollars in this pointless pursuit.
  E-mail: rich@examinerpublications.com



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