A REPORT FROM THE FRONT LINES:
THE MICHAEL MANN V. NATIONAL REVIEW
LAWSUIT AND THE FUTURE OF
COMMUNICATING CLIMATE CHANGE RISK
The Climate Change debate
A Quick Review
1990’s the world became convinced climate change posed a great risk,
culminating in the Kyoto Protocol (1997)
U.S. signs but does not ratify Kyoto because: (1) developing countries
excluded from GHG reduction mandates; and (2) could harm U.S.
competitiveness and economy. Byrd Hagel Resolution passes Senate
95-0 opposing Kyoto signing.
1998-99 Geophysicist Michael Mann publishes what has become the
face of climate change: the “hockey stick” graphs.
1998 was also the hottest year on record….
The Hockey Stick Graphs
Skepticism or Denial?
• “Debate” surrounding climate change soon transformed
from a purely economic concern to an attack on the
underlying science propelled by the internet.
• The “skeptics” (or “deniers”) effectively use the internet,
advocacy groups to dispute validity of climate science.
• Use methods fair and foul: stolen e-mails, unfounded
conspiracy theories, lawsuits and investigations,
surrogate “scientists,” and most importantly, the inherent
complexity of climate science.
The making of a lawsuit
Attacks on climate scientists get personal:
2009 University of East Anglia e-mail theft provide fodder
Virginia Attorney General attempts to subpoena Prof. Mann’s e-mails
and records pursuant to the Virginia Fraud Against Taxpayers Act (court
rejects) to determine “whether or not fraud has been committed.” See,
Cuccinelli v. University of Virginia, 722 S.E. 2d. 626 (2012).
Mann accused of “data manipulation,” being “corrupt” and guilty of
“academic and scientific misconduct” by a Competitive Enterprise
Institute critic. Openmarket.org (July 13, 2012)
“Michael Mann was the man behind the fraudulent climate change
hockey stick graph.” National Review Online (July 15, 2012)
The scientist strikes back
• Prof. Mann demands a retraction and apology from the
Competitive Enterprise Institute and National Review or
he will take legal action against them. In response, they
welcomed the suit (want to see Mann’s e-mails).
• October 2012 Mann files suit against the authors, the
National Review Online and the Competitive Enterprise
Institute alleging libel and intentional infliction of emotional
distress claims.
• Mann v. National Review, Inc., et al. Superior Court of the
District of Columbia, Case No. 0008263-12
Libel in U.S. Courts
• Claims of libel concerning press reports on public figures
require plaintiff to prove actual malice. N.Y. Times v.
Sullivan, 376 U.S. 254 (1964)
• ‘Actual malice’ is knowledge of falsity or reckless
disregard for the truth.
• Washington D.C. has an “anti-SLAPP” law protecting free
speech and public participation on issues of public
concern.
Anti-SLAPP protection
• At the beginning of the lawsuit, plaintiff must establish that
his claim is “likely to succeed on the merits” (D.C. Code
16-5502) by showing:
1. Statement is defamatory
2. Factual assertion, not matter of opinion
3. False statement
4. Made with ‘actual malice’
• Defendants move to dismiss, claiming statements were
opinion or “rhetorical hyperbole” or “exaggerations.”
Trial Court Opinion
• Two trial court judges found Prof. Mann met this burden
and was “likely to succeed on the merits.” (Ruling is now
on interlocutory appeal and discovery stayed).
• “Defendants consistently claim that Plaintiff’s work is
inaccurate (despite being proven as accurate) then there
is a strong probability that (Defendants) disregarded the
falsity of their statements and did so with reckless
disregard.” (emphasis added)
• Opinions are actionable if based on or imply false fact(s).
Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990)
Importance of Prof. Mann’s suit
• Is climate science on trial? Or is climate “skepticism”?
BOTH:
• Prof. Mann must prove his “hockey stick” graph is sound
(as found by 10 separate investigations and at least a
dozen similar studies), i.e. no evidence of wrong-doing
• Defendants must show the factual basis for their claims:
they did not recklessly disregard the truth….
• Most important: Discovery. Defendants will have to
release their e-mails discussing climate change – What
will those e-mails contain?
Proponents vs. The “Skeptics”?
• Progressive free speech organizations (including the
American Civil Liberties Union or ACLU) are supporting
defendants in their appeal.
• Environmental Law Professors Jonathan Adler and Dan
Farber have asserted that defendants’ comments are
protected by the First Amendment
• What could be the result if Prof. Mann is vindicated in this
suit?
Be careful what you wish for…
Prof. Mann apologizes for a tweet where he accused
journalist Andrew Bolt of being paid by Rupert Murdoch to
“lie” about climate change, removes from his twitter feed.
Others:
“(G)lobal warming deniers are now on par with Holocaust
deniers…”
“(W)e should have war crimes trials for these bastards –
some sort of climate Nuremberg.”
“(T)he current wave of climate change skepticism smacks
of 1930’s appeasement.”
If this is a war, we are losing
• 2011 AngusReid Public Opinion Poll: 42% of Americans
and 48% of Great Britain respondents believe either
global warming is an unproven theory or it is due to
natural causes.
• 2013 Pew Research Poll: Bare majority (54%) in world
survey believe climate change is a threat to their country
(Only Latin America consistently ranks climate change as
most important threat to their country)
• 2014 Gallup Poll: only 36% of Americans believe global
warming poses a serious threat in the near future
How can we turn the tide?
“Do not swallow bait offered by the enemy”
“The rule is, not to besiege walled cities if it
can possibly be avoided.”
Sun Tsu, The Art of War
“Skeptics” hide behind the formidable walls
of climate science opacity
Select the terrain of battle
Climate science is opaque, RISK IS NOT
• Employed by insurers, banks, militaries and governments,
i.e. non-environmental organizations
• Concept simple, readily understood:
magnitude x likelihood = risk
• Forces “skeptics” into untenable position: certainty that
the risk is zero or close to it (professional risk assessors
are wildly inaccurate)
Sun Tsu says it best
You can be sure of succeeding in
your attacks if you only attack
places which are undefended …
You can ensure the safety of your
defense if you only hold positions
that cannot be attacked.