The Law, Lawsuits, And Climate Change

Guest Opinion: Dr. Tim Ball

“Let us always remember that he does not really believe his own opinion, who dares not give free scope to his opponent.” Wendell Phillips

David Schnare wrote about how the progressive left intends to use the courts to harass those who don’t agree with them on the climate. His focus was on corporations and special interest groups using such legal devices as RICO to intimidate, harass, and even silence those with different opinions. The reality is they are all tantamount to suppression of speech, which creates the paradox of using the law to defeat free speech; the most fundamental of human rights.

Free Speech is the first amendment to the US Constitution for a reason. The second amendment is to allow citizens to defend the first amendment. The Founding Fathers knew the greatest threat to citizen’s free speech was their own government. The US is the only nation in history that put free speech as the primary, unassailable, right of a citizen. There is no compromise. Americans need to understand the value of totally unrestricted free speech and resist any attempts to modify or legally evade its importance. They must consider what happens in countries without free speech protection to realize the value.

Scientific skepticism.

The use of climatology and science for a political agenda as practiced is wrong. It is true that science is ideally amoral and apolitical. It is also true that everything is political to a greater or lesser degree. However, the difference with the use of climate was its deliberate selection for a political agenda. Proof that it was deliberate is found in the failure to follow the scientific method. This was reinforced by planned deception, manipulation of the data, and computer models programmed to predetermine the outcome.

Instead of trying to disprove the anthropogenic global warming (AGW) hypothesis they set out to prove it. As Douglas Yates said,

“No scientific theory achieves public acceptance until it has been thoroughly discredited.”

Besides the scientific manipulation, their strategy required marginalizing those trying to practice the proper scientific method. This involved isolating them as dangerous outliers by name-calling, including ‘global warming skeptic’, and ‘climate change denier’. They knew the public didn’t know that a scientist must be a skeptic. As Thomas Huxley noted,

“The improver of natural knowledge absolutely refuses to acknowledge authority, as such. For him, skepticism is the highest of duties; blind faith the one unpardonable sin.”

They also knew that the public didn’t know how much climate changes naturally all the time. All the so-called deniers knew, and most have careers teaching people the extent of the change. They are anything but deniers, but the accusation shows the ill-informed nature of the accusers. The marginalizing is a form of ad hominem attack, which occurs when you begin to lose an argument.

The switch in terminology from ‘skeptic’ to ‘denier’ was deliberate. Up to about 2000, it was global warming and skeptic, then, as CO₂ continued to increase but temperatures stopped increasing, it became climate change and denier. A 2004 leaked CRU email from the Minns/Tyndall Centre on the UEA campus tells the story

“In my experience, global warming freezing is already a bit of a public relations problem with the media.”

Swedish Chief Climate Negotiator Bo Kjellen replied,

“I agree with Nick that climate change might be a better labelling than global warming.”

All IPCC predictions (projections) failed from the first Report (FAR) in 1990 to the 2013 Report (AR5). Skeptics knew about the failures, but they and the failure were ignored. Alarmists knew the politicians and the public didn’t know or understand. When the switch from warming to climate change occurred, the failed forecasts became a bigger issue and a greater threat to the deception. Hostility to scientists practicing skeptical science increased. The leaked emails from the Climatic Research Unit (CRU) revealed that in December of 2004 Michael Mann and Gavin Schmidt created the web page Realclimate to counteract the skeptics and their ‘false’ stories.

Other actions were in progress to silence skeptics. I was privileged to give a keynote lunch presentation to the first Heartland Climate Conference in New York in 2008. The privilege was enhanced by sharing the keynote platform with Dr. Fred Singer. We greeted each other, and Fred asked how I was doing. I said I am fine but just received a lawsuit. Fred said McConchie was still at it then? I asked how he knew the name of the lawyer. He replied that he threatened him and others with lawsuits.

Roger McConchie filed my first lawsuit on behalf of Gordon McBean, Assistant Deputy Minister of Environment Canada. McBean chaired the meeting that formulated the IPCC in Villach Austria in 1985. He was also in charge at EC when, according to the Auditor General, EC spent $6.8 billion from 1997 to 2005 on climate change. Contrary to funding policy almost all went to people and programs supporting the government position. Diversion of funding to climate change left other legislated requirements incomplete. It became so bad that public complaints about poor service triggered an internal investigation by The Impact Group. They hired Price Waterhouse, who carried out public hearings. I attended the Vancouver meeting and much later received the report shown in Figure 1.

Figure 1

In a review of the Impact Group Report, Ken Green wrote,

Elements of an “Action Plan for Climate Science Research at Meteorological Service of Canada (MSC)” (obtained through an Access to Information request) indicate that Canada’s climate change science program is being driven by a predetermined political agenda with a clear disregard of scientific needs.

After discussion with my wife, we decided the cost of defending was too high. I discovered that McConchie also filed the lawsuit against the publisher. They were not willing to defend and were willing to print a retraction. I withdrew the article.

Ironically, in my opinion, this served to influence the next two lawsuits because it appeared to create the impression I would withdraw from future lawsuits and thus be easily silenced. McConchie filed the second lawsuit on behalf of Andrew Weaver, now head of the British Columbia (BC) Green Party and sitting member in the BC legislature. At the time, he was a computer modeler at the University of British Columbia and four-time contributing author for the IPCC Reports, (1995, 2001, 2007 and 2013).

My wife and I decided that it was time to fight back even though it cost all of our savings. I discovered that the publisher agreed, without consultation with me, to print a retraction written by McConchie. I withdrew all of my publications from that internet news outlet.

Since you have to respond to a lawsuit within a very brief period, I quickly retained a defamation lawyer. While that was in progress, I went to Winnipeg and made a public presentation that included an explanation of the ‘hockey stick’ and how it rewrote climate history. After the presentation, I was asked about my view of Michael Mann and his work. I gave my flippant response. I returned home and within hours the second lawsuit arrived. They were filed nine days apart.

Lawsuits filed to silence free speech are known as Strategic Lawsuits Against Public Participation (SLAPP). Politician’s and lawyers realized these lawsuits were contrary to the objectives of free speech and as a result, 48 of the 50 US States introduced anti-SLAPP legislation. Eight of ten Canadian Provinces also wrote such legislation. British Columbia planned to pass legislation but an election intervened, and the new government did not pursue it. Hence, BC became a place where such lawsuits are within the law.

Consider the implications of the Mann lawsuit. It was filed in the BC Supreme Court against a Canadian citizen by a Canadian lawyer on behalf of an American citizen for an incident that occurred in the Canadian Province of Manitoba. Apart from two of the US States, it is unlikely the lawsuits against me would happen. I say this because I wrote the Foreword to the book Green Gospel and the author received a lawsuit filed on behalf of Gavin Schmidt in Washington State. The author informed me that the legal advice was just tell them to go away.

When charged with defamation in Canada there are two options. You can claim it was ‘fair comment.’ If you choose that option, there is no discovery, that is you cannot demand disclosure of documents. The advantage is that if you lose the penalty is small; I understand the biggest assessment was $20,000. The second option is to claim what I said was ‘the truth’. This allows discovery, which in the Michael Mann case especially, is important. However, if you lose, as I understand, there is no limit to the penalty, including loss of all assets. After a family discussion, we decided that the ‘truth’ defense was the only option.

It is now over five years since the Weaver lawsuit was filed and nothing has happened. On a recent radio program, Weaver was challenged by the host saying this proves it is a SLAPP lawsuit. Weaver disagreed but did not explain why there was no action. Meanwhile, McConchie advised my lawyer that the Michael Mann case that was filed after the Weaver case will go to court on February 20, 2017. I am currently advising witnesses to set the time aside.

People ask why I didn’t countersue Michael Mann like Mark Steyn, author of “A Disgrace to The Profession” subtitled “The World’s Scientists – in their own words – on Michael Mann, his Hockey Stick, and their damage to science.” As I understand from my lawyer, this is possible in the US as a constitutional tort or civil wrong. It is not allowed in Canada where all I can do is file a separate suit on a different issue. The irony of Steyn’s countersuit was that Mann asked the courts to determine if it was unlawful under the anti-SLAPP legislation. The last I heard was this decision is still tied up in the courts.

Interestingly, Karl Popper, who wrote extensively about the scientific method, considered the implications of the interaction between science and politics. In his book The Poverty of Historicism, he wrote the following.

We all have an unscientific weakness for being always in the right, and this weakness seems to be particularly common among professional and amateur politicians.  But the only way to apply something like scientific method in politics is to proceed on the assumption that there can be no political move which has no drawbacks, no undesirable consequences.  To look out for these mistakes, to find them, to bring them into the open, to analyze them, to learn from them, that is what a scientific politician as well as a political scientist must do.  Scientific method in politics means the great art of convincing ourselves that we have not made any mistakes, of ignoring them, of hiding them, of blaming others for them, is replaced by the greater art of accepting responsibility for them, of trying to learn from them, and of applying this knowledge so that we may avoid them in the future.

Those using climate for a political agenda have convinced themselves and others that they are not making any mistakes, not ignoring or hiding them or blaming others. They are not accepting responsibility or learning from them. To do this, they have used many techniques such as creating false studies claiming that 97% of scientists agree. They also carry out personal attacks on those who challenge them, such as those on Willie Soon and Sallie Baliunas by John Holdren. Personal attacks include using the law in contradiction to its purpose to limit free speech.