The mock trial was the final event at the ABA Section of Environment, Energy, and Resources Law Summit held at the Sheraton New Orleans this past week. We had a good turnout, with approximately 200 attorneys there to watch the show.
The mock trial was patterned after the Comer vs. Murphy Oil lawsuit, in which the plaintiffs claim that the greenhouse gas emissions of energy companies in the U.S. made Hurricane Katrina worse.
I was the testifying expert for the evil, GHG-spewing industry side, while a PhD ecologist, Mark Laska, represented the IPCC “scientific consensus” side.
We were fortunate to have U.S. District Court Judge Eldon E. Fallon (of Vioxx and Chinese drywall litigation fame) presiding. Judge Fallon provided advice and insights as the mock trial progressed, not so much for the participants’ benefit, but for the audience of attorneys, some of whom anticipate being involved in future climate-related litigation.
I must confess, I had fun. Mike Freeman, of Balch & Bingham, LLP, the defense attorney on my side of the case, did an excellent job with his opening remarks and cross examination of Dr. Laska. Over the last few weeks, Mike quickly developed a good understanding of the key science shortcomings of global warming theory (as I see them, anyway), and was able to turn that knowledge into effective lines of questioning.
In fact, many of us ‘skeptical’ scientists have been waiting for years to see the science of global warming exposed in a trial setting. People like Al Gore can no longer hide behind claims of supposed scientific consensus and appeals to authority.
It’s time to put up, or shut up.
Even though this wasn’t the real thing, I was able to find out how an experienced trial lawyer (Allan Kanner) would handle such a case with his opening statement, direct examination of Dr. Laska, and cross-examination of me.
Without going into a blow-by-blow account of what transpired at the mock trial, I do want to briefly address what I now recognize will be a central problem with the expert testimony in any future climate-related litigation.
There will be no end to the amount of irrelevant climate science which can be used to hoodwink a jury
In our very brief academic exercise, it became immediately apparent to me that one tactic will be the attempt to claim the scientific high ground.
For example, Mr. Kanner and Dr. Laska spent an inordinate amount of time describing the scientific method. You know, forming hypotheses, testing those hypotheses with observational data, modifying the hypotheses accordingly, etc.
This totally irrelevant exercise was an apparent attempt to imply that our side does NOT employ the scientific method. At least I think that’s what they were attempting….it never was clear exactly why they went down this Mom-and-apple-pie road.
What is really ironic about this tactic is that it is the IPCC scientific consensus side that has abandoned a cornerstone of scientific investigation — exploring alternative hypotheses for global warming. As I have previously discussed ad nauseum, there has never been a serious research effort directed toward exploring the role of natural, internal climate cycles as a potential cause of most of the recent warming we have measured.
I have also noticed over the years that it is those who do not actually perform climate research who tend to clothe themselves in the scientific method as some sort of shiny coat of armor which they hope will make them impervious to criticism. Sheesh.
During Mr. Kanner’s cross examination of me, he invoked the Tragedy of the Commons in an apparent attempt to get me to agree that, even though the defendants’ greenhouse gas emissions are a small portion of global emissions, the defendants are still just as responsible for climate change (and, presumably, the intensification of Hurricane Katrina) as everyone else is.
But I refused to accept the premise that there is even a ‘tragedy in the commons’ when it comes to global warming. In my view, none of the participants in the emission of greenhouse gases have caused a tragedy. If you’ve got a problem with Hurricane Katrina and what it did, take it up with Mother Nature.
After all, the vast majority of the most intense hurricanes to hit the U.S. occurred before 1970, and so occurred before the main period of “global warming”. Yes, Katrina was a tragedy. But a hurricane disaster has been predicted for New Orleans long before global warming ever became fashionable.
And as we now close out the 5th Atlantic hurricane season since Katrina, it looks like this will be the first 5 year period without a Cat 3 or stronger hurricane hitting the mainland since 1910-1914! What a difference five years can make to scientific ‘truth’.
In fact, if one surveys the recent literature, it is no longer obvious that warming has led to more intense hurricanes — let alone warming being the fault of mankind.
Mr. Kanner also alluded to the alleged cover-up of global warming science by executives in the petroleum or coal industry. I assume that we are supposed to equate any such behavior to the tobacco industry. Exactly how anyone could hush Al Gore or NASA’s James Hansen, I don’t know.
Every grade school student has heard of the 37 different ways we are all going to die from global warming. Has Exxon Mobil managed to cover up the 38th way we will die? Gasp!
But I do know that anything that energy industry executives did or didn’t do is totally irrelevant to the issue at hand: Have mankind’s greenhouse gas emissions caused any measurable change in the climate system or weather systems?
And I suppose this will be the Achilles’ heel of climate-related litigation: Causation. The case for mankind (versus Mother Nature) causing climate change is so weak, that only through scientific incompetence (or a jury’s bias against big business) should the plaintiffs prevail in these lawsuits.
To me, I don’t care whether another climate expert is the equivalent of Mother Theresa, or a member of the Nazi Party. All I care about is what they can demonstrate scientifically.
I don’t know much about legal issues or the law, so maybe my views are naive. But I do know that it will be essential for judges and lawyers to be able to separate the wheat from the chaff in expert testimony.
This is no small task, since most of the experts in this field are rather muddled in their own thinking on the subject anyway. Climate change science covers a wide range of complex and interrelated sub-disciplines, and the challenge will be to separate the 95% of the science that supports the theory of anthropogenic global warming from the 5% that can trump all the rest, potentially causing the IPCC’s house of cards to collapse.