Time to sue climate change deniers?

In recent months there has been a sharp drop in public faith in climate science.  The collapse is not, as is sometimes suggested, in the scientific consensus that human-caused climate change is occurring.  As West Coast has previously pointed out, despite embarrassing errors and some arguably unprofessional e-mails, the science itself is as clear now as it has ever been: human caused global warming is occurring.  The damage caused by the e-mails and errors is a sharp decline in the public’s perception that there is a scientific consensus. 

BanffGlacier_pubdom.jpgOf course, it wasn’t just the e-mails and errors.  Credit where credit is due – it was also the very effective work of what has been called the “climate change denial industry.”  It’s mind blowing that climate change critics, many of whom have received millions of dollars from the petro-chemical industry, who have been unable to produce any peer-reviewed scientific studies challenging climate science, have nonetheless managed to convince a significant portion of the public that scientists are manipulating data for a handful of government grants.  How’s that for turning the phrase “follow the money” on its head? 

I’m not going to use this post to document the questionable tactics used by climate change deniers.  I use here the word “deniers” not to refer to individuals who have been persuaded that there is still a scientific debate about global warming, but individuals and groups that are funded to question the reality of climate change.  The history of the efforts to discredit climate change are well documented by DeSmogBlog and in Climate Cover-up, by Jim Hoggan, as well as in Greenpeace’s just released report, Dealing in Doubt.  These tactics are far more shocking, better documented and less reported, than any of the scandals currently dogging the International Panel on Climate Change (IPCC) or individual climate scientists.

A recent New York Times article informed us that climate scientists are “taking steps to defend work on climate.”  The article describes the efforts of climate scientists to counter their critics in the public debate.  Although West Coast Environmental Law’s focus is on law reform to fight climate change, and not civil litigation, I keep wondering when climate scientists will turn to the courts for vindication. 

In bashing global warming science, climate change deniers also end up bashing a lot of global warming scientists and activists.  Indeed, some of the scientists involved are now receiving death threats as a result of the repeated attacks on their reputation. The law does recognize the rights of those individuals to protect their private reputation: the law of defamation. Defamation is a lawsuit against a person for statements that tend to lower another person’s reputation.

I won’t understate the cost and legal difficulties of bringing such a claim.  The law gives some latitude to individuals commenting about public figures and the recent trend is to expand protections for comments on public issues.  In some cases the deniers carefully avoid mentioning particular scientists.  But, at the same time, if it could be shown that a denier was recklessly publishing untruths or intentionally misleading the public about the work of particular scientists, bringing a defamation claim is certainly an option, at least under Canadian law. 

One could also sue the corporations and organizations that funded or otherwise assisted the denier in publishing their defamatory statement, alleging a conspiracy between the two.  The existence of a conspiracy has already been raised in climate change litigation – in the Kivalina lawsuit brought on behalf of a village in Alaska.  But in a defamation context the link between the alleged conspiracy and the damage claimed (harm to a scientist’s reputation) is much more direct than in the Kivalina case.

To date defamation law has been used by critics of climate science to attack those who question their credentials, as documented in Climate Cover-up.  Brian Martin gives another interesting account of such a lawsuit against climate scientist Mark Diesendorf.  A couple of years back climate change denier, John Coleman, said in an interview that he wants to sue Al Gore for “fraud” (if anyone follows that link here’s the background on the so-called 30,000 scientists), although that threat has never gone anywhere and it was likely political posturing. 

Climate change scientists and activists seem to have been reluctant to turn to defamation and conspiracy claims.  There are probably several reasons for this, including: 

  • the cost of such a lawsuits; despite claims to the contrary, most climate scientists do not have deep pockets;
  • the desire to focus on the scientific debate, rather than their personal reputation: going to court shifts the debate from damage to the planet to the question of damage to one scientist’s reputation;  and
  • Concern about giving climate deniers a platform to raise their issues and allow them to play the martyr. 

Consider the possible upsides, however:

  • Discovery – Under the rules of court the defendant could be forced to disclose the sources of their funding and to explain where their information comes from;  Climate change deniers have historically been reluctant to reveal their funding sources. 
  • Court ruling on the credibility of attacks on climate change science – A court is likely to hold that the climate change denier cannot prove his/her statements on a balance of probabilities or is actually misleading the public.
  • Potential for a damages award – In addition to damages to the scientist’s reputation (likely nominal, if no financial loss was suffered), the court could award aggravated damages.  While the amount of the award, at least in Canada, would probably not be huge, the message sent would be priceless.  In other jurisdictions there may be potential for more significant damages awards.
  • Targeting the funders – A conspiracy claim could name funders of climate change deniers, drawing them into the spotlight – which is where they do not want to be. 

There are risks and downsides of turning to civil litigation, but keeping the focus on the public debate has not defeated climate change deniers.  The reputations of a number of very credible scientists are being dragged through the mud on the basis of very dubious attacks.  It’s resulting in personal abuse and (as mentioned) death threats.  It seems likely that at some point a climate scientist is going feel that they have nothing to lose by turning to the courts.