May 10 2016

Criminalizing Climate Change Denial

Temp_anomalyHere is a non-controversial topic – some attorneys general in the US are exploring the idea of criminal charges against certain climate change deniers. This round of the climate debate was triggered by New York Attorney General Eric Schneiderman who issued a subpoena to ExxonMobil for financial records, e-mails, and other documents. This was followed by Attorney General Claude E. Walker of the U.S. Virgin Islands who issued a subpoena to the Competitive Enterprise Institute (CEI) for their documents related to their climate research and policy activity.

Investigation of oil companies is partly financial, did they mislead investors and overvalue their companies by ignoring the financial costs of climate change and the potential of having to leave fossil fuel assets in the ground?

Investigation of the CEI has a different focus, are they engaged in a conspiracy to mislead the public and affect public policy by knowingly manufacturing false doubt about the science of climate change?

Bill Nye was dragged into this conflict when he was askedto comment. He said:

“Was it appropriate to jail the guys from Enron?” Mr. Nye asked in a video interview with Climate Depot’s Marc Morano. “We’ll see what happens. Was it appropriate to jail people from the cigarette industry who insisted that this addictive product was not addictive, and so on?”

“In these cases, for me, as a taxpayer and voter, the introduction of this extreme doubt about climate change is affecting my quality of life as a public citizen,” Mr. Nye said. “So I can see where people are very concerned about this, and they’re pursuing criminal investigations as well as engaging in discussions like this.”

In my opinion, that is a pretty soft response. He is asking questions and saying, “We’ll see what happens.” You can conclude from this that he is open to the idea, but he is not taking a strong stance. (As an aside, I will have an opportunity to ask Bill about this at NECSS this weekend.)

Pro and Con

Here are what I see as the arguments for and against this approach to the climate debate, starting with the con side. Essentially the arguments against criminal investigation for climate change denial come down to free speech. People have a right to be wrong, to advocate for whatever position they wish, no matter how misguided.

Scientists also need to have the freedom to pursue whatever ideas or notions they feel are worthy (and for which they can find funding). They certainly should be free to express their opinions on their area of expertise.

In addition the right to lobby the government for your own interests is protected in the Constitution.

Bringing the debate about climate change to the level of a criminal investigation will have a chilling effect on open debate. Whichever side or nuanced position you feel has the most merit, we should let the free marketplace of ideas sort it out.

In favor of such criminal investigations is the possibility that some companies or organizations have been acting in bad faith. The tobacco industry is the obvious historical example – it was demonstrated in court that certain tobacco companies knew that their product was both addictive and a health risk, but they engaged in a deliberate campaign to deceive the public and manufacture doubt about the science in order to continue to sell their harmful and addictive product.

I don’t think anyone can reasonably argue now, given all the information that has come to light, that criminal and civil cases against tobacco companies were wrong because they had a chilling effect on tobacco research or that legal action violated the free speech of tobacco company executives, or even private citizens who for whatever reason doubted the connection between smoking and cancer.

At this time no criminal charges have been filed, only subpoenas for information. If there is a smoking gun showing similar bad faith, that oil company executives hid scientific information from their investors and the public, or engaged in a deliberate campaign of deception to protect their interests, I think the analogy to the tobacco industry is fairly solid.

If, on the other hand, they just honestly disagree about the science, they should have nothing to worry about.

I also have to point out that it is massively hypocritical to complain about subpoenas having a chilling effect, after those FOIA requests harassing climate scientists by trolling through their e-mails looking for anything that could be twisted into the appearance of a conspiracy.


People are generally adept at defending their “tribe.” For those who doubt climate change, the FOIA requests were reasonable and the subpoenas a travesty. For those who accept the consensus on climate change, the reverse is true.

For the record, I completely accept the scientific consensus that burning fossil fuels and other human activity (making cement, for example, is a huge contributor) are releasing green house gases into the atmosphere and forcing a warming of the planet. And yes, there is a robust consensus.

I have looked carefully at the arguments of those who do not accept this consensus, and in my opinion they clearly follow a pattern of dedicated science denial. They do not have any compelling arguments on their side, they distort the science, and make invalid arguments. They also are clearly aligned with an ideological agenda.

I would not advocate pursuing any sort of civil or criminal charges against people just for being wrong on the science, and I don’t think anyone else is either.

Right now there is just an investigation, with clear questions – did these companies deliberately mislead investors, did they deliberately mislead the public? Were they acting in bad faith to cover up the science, to cast doubt on the science, and to essentially put their thumb on the scale of transparent science and open debate in order to protect their corporate interests?

It is more than a little ironic that those criticizing the investigation are citing transparency and open debate as the reason. They appear to be missing the point entirely.

I think Bill’s response, “We’ll see what happens,” was perfectly reasonable.

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