Climate litigation: big oil must fight on the science or die

By Christopher Monckton of Brenchley

• This will be a long posting. You have been warned.

The news that the Ninth Circus in California has decided that global warming is a State rather than a federal matter highlights a costly and now potentially ruinous strategic failure on the part of big oil.

Two loony-Left cities brought a case in the District Court for Northern California alleging that the oil corporations were causing a nuisance by engaging in their trade – a lawful and necessary trade at State as well as Federal law – of extracting, processing, distributing and selling petroleum products.

The oil corporations made the strategic mistake of opting to defend the case purely on procedural grounds. They made practically no attempt to argue the case on the substantive ground of the scientific truth that global warming is not a global emergency, even though the judge at first instance had specifically held a brief-me-on-the-science session to give them the opportunity to do so.

In effect, they cravenly caved in to the climate extremists on the science. Now that they have been defeated on their foolishly-chosen procedural grounds, they will urgently have to rethink their defense against the rising tide of vexatious litigation by Leftward-inclined climate busybodies worldwide. If they cannot find the courage and determination confront the green blob on the science, they will be driven out of business. The world will be a poorer, slower, sicker place without them.

Two interesting precedents will show how successful is the approach of meeting extremist lobby groups head-on when it comes to the science. For whatever one may think about our dandruff-shouldered, cobweb-infested, custard-faced judges, the courts are the perfect forum in which to pin down the untutored fanatics and cross-examine them until their tissue of fancies and fabrications shrivels and crumbles away.

By the very nature of that disciplined and generally even-handed forum, both sides must be fully and fairly heard, and each can cross-examine the other. There is virtually no other forum where such a debate between the skeptics and the cultists can take place. For the latter, having lost just about every face-to-face debate that has been held on the climate question, go to elaborate lengths to avoid debate with the former. They know their shoddy case cannot withstand examination.

Since climate lobbyists routinely compare big oil’s approach to global warming with big tobacco’s approach to lung cancer, the first precedent concerns tobacco. Unlike the tenuous link between rising CO₂ concentration and catastrophic global warming that is not occurring, the link between smoking and lung cancer is well established. Sir Richard Doll’s epidemiological research study on doctors who smoked found that they were 26 times more likely to die of lung cancer than doctors who did not. Not 26% more likely, but 26 times more likely. Now, that’s a result.

However, the link between passive smoking (breathing air polluted with other people’s cigarette smoke) and lung cancer is every bit as tenuous as that between CO₂ and catastrophe. In 1993 the EPA issued a finding to the effect that passive smoking causes cancer, falsely describing secondhand smoke as “a Class A carcinogen”.

Big tobacco did not cravenly retreat on the science, as big oil has been doing. They got their act together. Before the late District Judge William Lindsay Osteen, they sued the EPA in the North Carolina Federal District Court.

The late Judge William Lindsay Osteen, EPA’s nemesis

The case took five years, because they fought the EPA not only on legal procedure but also on the pseudo-scientific substance of its ruling, and the EPA wriggled and ducked and dived and dithered and delayed.

EPA largely won on the procedural grounds, just as the climate extremists have done in the California global-warming case. The tobacco corporations had argued that EPA had imaginatively extended the construction of the Radon Research Act, whose primary purpose was to find out how accumulation of radon gas inside poorly-ventilated homes was dangerous to health.

EPA, said big oil, had ingeniously construed the Act as permitting it to investigate all sources of indoor air pollution and to issue risk assessments evaluating the effects of all such sources – implicitly including secondhand smoke – on human health.

On this point, Judge Osteen agreed with the EPA. For the Act says, at §402(4)(a): “The [EPA] shall establish a research program with respect to radon gas and indoor air quality. Such program shall be designed to (1) gather data and information on all aspects of indoor air quality in order to contribute to the understanding of health problems associated with the existence of air pollutants in the indoor environment; … (3) assess appropriate Federal Government actions to mitigate the environmental and health risks associated with indoor air quality problems.”

Furthermore, at §402(4)(b), the Act says: “The research program required under this section shall include (1) research and development concerning the identification, characterization and monitoring of the sources and levels of indoor air pollution … (2) research relating to the effects of indoor air pollution and radon on human health; … (6) the dissemination of information to assure the public availability of the findings of the activities under this section.”

EPA was, therefore, explicitly empowered by Congress to conduct risk assessments on secondhand smoke indoors, such as that which it had published in 1992. Big tobacco lost the procedural argument, just as big oil has lost it in California.

EPA is 50 years old this year. Will America survive another 50 years of it?

So to the science. Judge Osteen’s judgment should be read by the lawyers acting for every oil corporation. It is a ringing, stinging, 100-page, root-and-branch condemnation of the EPA’s pseudo-science.

If anyone doubts the competence of the courts to decide upon disputed questions of science – a doubt frequently and nervously expressed by climate lobbyists desperate to avoid thorough judicial scrutiny of their preposterous position on global warming – that doubt is dispelled by Judge Osteen’s masterly consideration of the substantive scientific merits of EPA’s case.

The burden of the oil corporations’ response was that EPA’s biological-plausibility analysis was flawed because it had disregarded evidence that directly-inhaled and indirect tobacco smoke are dissimilar; it had failed to identify the criteria it had used in evaluating each type of smoke; and it had disregarded evidence that even directly-inhaled smoke has an exposure threshold below which it has no adverse effect.

Note in passing that EPA, in its ruthless ambition to expand its empire of regulatory terror, very frequently disregards the question of exposure thresholds. It had previously made precisely this elementary scientific mistake in considering the influence of pollution from small particulate matter in the air, and separately from nuclear radiation. In both these instances, there is a considerable body of evidence that exposure to lowish concentrations is harmless and even beneficial.

Similar considerations apply in the climate debate. What is the ideal global mean surface temperature? Climate “science” has been extremely careful not to ask, let alone answer, that question. The fact that it has not asked the question demonstrates that its stance is at root political, not scientific. The fact that it has not answered the question shows that it has no basis for its contention that warmer weather worldwide will be anything other than beneficial.

This is one of many parallels between the tobacco case and the substantive case that the oil corporations would handsomely win if they would only disregard their lawyers and listen to the scientists who will be all too willing to assist them.

For the essence of the global warming hysteria is that trifling increases in global temperature – increases that are well within natural variability and have been repeatedly demonstrated to be net-beneficial – will somehow cause net harm.

Right off the bat, the judge demonstrated a competence in assessing scientific questions outwith his own field that makes his judgment a paradigm of administrative law. When I give tutorials on this highly specialist but fascinating domain of jurisprudence, I recommend that my students should read this judgment in full and savour the deadpan ruthlessness with which the EPA’s pseudo-scientific case is hooked, stunned and skinned, filleted, sliced and fried.

The judge reached the following conclusions:

“EPA relied upon similarities between mainstream smoke and environmental tobacco smoke to conclude that it is biologically plausible that environmental tobacco smoke causes cancer. EPA terms this theory its “a priori hypothesis” in justifying [its] methodology. [Its] methodology allowed EPA to demonstrate a statistically significant association between exposure to environmental tobacco smoke and lung cancer … [Its] analysis rests on the validity of the biological plausibility theory. It is circular for EPA to now argue the epidemiology studies support the Agency’s a priori theory. Without the theory, the studies would likely have done no such thing.”

In short, EPA was guilty of the ancient Aristotelian logical fallacy of argumentum ad petitionem principii, or affirmation of the consequent.Again the parallel with climate “science” is visible, for climatologists tell the models there will be strong CO₂-driven warming; sure enough, the models tell the climatologists the same; and the climatologists cite the outputs of the models as purported justification for the article of faith that they had built into the models in the first place. Judges, unlike most scientists, are versed in formal logic. That is yet another reason why the notion of catastrophic anthropogenic global warming would not withstand gimlet-eyed judicial scrutiny.

The judge found that in different chapters of the risk assessment the EPA had used different and sometimes mutually incompatible risk-assessment criteria, so that –

“the court is faced with the ugly possibility that EPA adopted a methodology for each chapter, without explanation, based on the outcome sought in that chapter. This possibility is most potent where EPA rejected similarities between mainstream smoke and environmental tobacco smoke to avoid a ‘cigarette-equivalents’ analysis in determining carcinogenicity of exposure to [the later]. Use of cigarette-equivalents analysis might have led to a conclusion that environmental tobacco smoke is not a class A carcinogen. It is striking that mainstream smoke and environmental tobacco smoke were [treated as] similar only where such a conclusion promoted finding environmental tobacco smoke a carcinogen …”

The judge continued:

“The court finds one review particularly relevant – a review conducted within EPA on the environmental tobacco smoke risk assessment. EPA’s risk criteria office, a group of EPA risk assessment experts, concluded that EPA failed to reasonably explain how all relevant data on environmental tobacco smoke, evaluated according to EPA’s … causality criteria, can support a Group A1 classification.”

Next, the judge found it “disturbing” that the EPA had cherry-picked the peer-reviewed studies on second-hand smoke that it had used for its meta-analysis. [And where have we seen that before?] The judge cited a leading case to the effect that it is the EPA’s “actual reasoning that … must prove reasonable, not the post hoc rationalization devised during litigation.”

The judge then found that –

“… in conducting a risk assessment under the [Radon Control] Act, EPA deliberately refused to assess information on all aspects of indoor air quality … EPA steps outside the court’s analysis when information becomes incidental to conducting a risk assessment.” In short, to hell with the data. The EPA’s aprioristic attitude here is identical to that of climate “science”.

The judge went on to cite one of EPA’s own assessors, who had criticized EPA’s switching “in midstream” from 95% to 90% confidence intervals:

“The use of 90% confidence intervals, instead of the conventionally used 95% confidence intervals, is to be discouraged. It looks like an attempt to achieve statistical significance for a result that would not otherwise achieve significance.” This, too, is a trick that is repeatedly used in climate “science”.

Here, then, is a further point relevant to the climate debate. Best scientific practice – such as the procedure followed in prospective., randomized, double-blind clinical trials – is to state the statistical and other criteria for success or failure in advance, and to get an appropriate review board to agree those criteria before the trial is conducted. That is what “prospective” means. EPA did not follow this practice. Climate “science” generally does not follow it either.

A very rare exception was the NOAA State of the Climate report issued in 2008, which said that 15 years or more without global warming would demonstrate that the models were falsely exaggerating the amount of warming to be expected. By October 2015 there had been 18 years 9 months without global warming. Yet climate “science” continues to rely on these failed models.

Next, the judge turned to EPA’s decision to base its Group A classification on a hazard ratio of only 1.19 [i.e., that non-smokers’ negligible risk of contracting lung cancer was increased by a mere 19% if they repeatedly exposed themselves to other people’s tobacco smoke] –

“… without adequately explaining why the Agency had required every other Group A carcinogen to exhibit a much higher relative risk, or why it had recently found relative risks of 2.6 and 3.0 insufficient to classify other agents in Group A. All of the 15 chemicals or compounds previously classified by EPA as Group A carcinogens have higher relative risks than environmental tobacco smoke. Again, EPA’s own epidemiologist had told it: An association is generally considered weak if the odds ratio [the relative risk] is under 3.0 and particularly when it is under 2.0, as is the case in the relationship of environmental tobacco smoke and lung cancer.”

The EPA tried to wriggle out by saying that the diluted concentration of environmental tobacco smoke in the atmosphere accounts for the low strength of association (another argument we have heard from climate “science”). The judge gave it short shrift:

“The record and EPA’s explanations to the court make it clear that, using standard methodology, EPA could not produce statistically significant results with its selected studies. Analysis conducted with a 0.05 significance level and a 95% confidence interval included relative risks of 1. Accordingly, these results did not confirm EPA’s controversial a priori hypothesis. In order to confirm its hypothesis, EPA maintained its standard significance level but lowered the confidence interval to 90%. This allowed EPA to confirm its hypothesis by finding a relative risk of 1.19, albeit a very weak association. … EPA cannot show a statistically significant association between environmental tobacco smoke and lung cancer … This should have caused EPA to re-evaluate the inference options used in establishing its plausibility theory.”

The judge stated bluntly:

“Instead of disclosing information, the Agency withheld significant portions of its findings and reasoning in striving to confirm its a priori hypothesis.”

Michael Mann, other hokey-stick supporters et hoc genus omne, please note.

The secondhand smoke case, like the global warming case, is one in which the near-unanimous establishment opinion supports the official viewpoint. Yet in the tobacco case the judge was willing to disregard the official view and actually to hear each side presenting its case and cross-examining the other, and then to understand and consider the evidence, and then – mirabile dictum – to find against the official position. It. Can. Be. Done.

Carol Browner, then EPA administrator, at first tried to defy this crushing judgment by saying: “The important thing that people should understand is that secondhand smoking is a real health risk.”

Carol Browner found Judge Osteen’s decision uncongenial

On the evidence supplied by the EPA, though, the judge had found that the additional risk was negligible. The EPA had made the elementary mistake of forgetting that, since the risk of lung cancer in non-smokers is minuscule, the marginal increase in that risk in those inhaling secondhand smoke is also negligible. The judge quoted one of EPA’s own scientists to the effect that a hazard ratio of less than 2 should not be regarded as a secure basis for policy rulemaking, and that a hazard ratio less than 3 was iffy.  Contrast the EPA’s 1.19 with Sir Richard Doll’s 26. Since the Osteen judgment, it has become a whole lot harder for non-smokers with lung cancer to sue the tobacco corporations and win.

The second precedent that every oil corporation lawyer should study is one in which I was directly involved. It was the case brought by Stewart Dimmock, a British trucker, against the Department of Education for its decision in 2007 to buy 20,000 copies of Al Gore’s sci-fi comedy horror movie about global warming (at full retail price – well, it’s only taxpayers’ money, so They didn’t bother to negotiate a wholesale discount) and to distribute the fatuous propaganda movie to every school in England.

Trucker trounces Veep

Mr Dimmock had two children in school. He did not want them compulsorily exposed to Gore’s sub-Marxist drivel. The wealthy businessman funding the case telephoned me and asked how he should proceed. I told him that judicial review of the Government’s administrative decision to circulate the movie to schools was the right approach. I advised him to instruct his lawyers to lodge the case that day, for there is a three-month time-bar on judicial review cases, and very nearly three months had passed since the Education Department had announced its decision.

The next day the businessman – a quarry-owner – rang me back. His lawyers, he said, had refused to lodge the case on the ground that The Science Was Settled and that, therefore, there was no prospect of success. One suspects that this ignorant, defeatist attitude is widely shared among oil corporations’ lawyers, as well as among the Tillersons and suchlike faintheart executives who have carelessly and expensively sold the pass on the science of global-warming panic.

I advised the businessman to give the plainest possible instructions to his lawyers that they were to lodge the proceedings that very day and provide proof to him that they had done so. “But what if they refuse?” he asked. “Tell them you will invite the regulators to strike them off for failing to carry out their client’s lawful instructions. And when they have filed the case, fire them and never use them again for any purpose.”

The lawyers tried to refuse their client’s instructions and were told they would be struck off if they did. They duly filed the case – one hour before the three-month deadline expired – and were then duly and deservedly dismissed.

The new lawyers came to see me and said they were going to fight the case on procedural grounds, because there was no prospect of victory on the science. They proposed to found their case on a section added to the Education Acts by Margaret Thatcher that forbade politicization of schoolchildren’s education. The film concerned a political subject: therefore, their argument ran, it was unlawful.

I told the lawyers that approach would not work. I explained that I had done some of the preparatory work that would eventually lead to the insertion of that provision in the legislation. The new law was not intended to prevent all discussion of politics in schools: merely to prevent anything that smacked of political indoctrination.

I said: “You will need proper scientific testimony providing a well-referenced, point-by-point refutation of the numerous outright scientific falsehoods in the movie. You will then need to show that every one of the falsehoods either invents a problem where none exists or magnifies one that may exist. Thus, and only thus, can you demonstrate that Gore’s movie constitutes propaganda contrary to the Education Act.”

The lawyers thought they knew best. They went ahead without any scientific testimony – and lost. The judge refused even to give us a hearing, on the ground that we had offered no scientific testimony to counteract the near-unanimous consensus among published scientists.

On behalf of the lorry-driver, I advised the lawyers to write to the judge who had thrown out our case and ask him whether he had actually watched Gore’s movie before writing his judgment. They refused. “Those are your client’s instructions,” I said. Through gritted teeth, and with much muttering and whingeing and warning of dire cost consequences if Monckton was wrong, they complied. The judge did not reply.

The lorry-driver instructed the lawyers to write to the court asking for a new judge. “We can’t do that,” they said. “The only route available to us is appeal” (which would have earned them millions).

“Those are your client’s instructions,” I said. So, albeit with more weeping and gnashing of dentures, they sent to the court a letter drafted by me saying that the judge had refused to state whether he had seen the movie and had refused to give us the hearing to which we were entitled under Article 6 of the European Human Rights Convention. Therefore, we were entitled to a new judge, so that justice would not only be done but be seen to be done.

Within 24 hours, a new judge was appointed and the case was listed for hearing. The lawyers, who said that the appointment of a new judge after a case had been decided was quite without precedent, came back to me with their tails between their legs and asked for some scientific testimony. Within a week, I had supplied them with an 80-page, point-by-point refutation of Gore’s movie.

“But we can’t use this,” said the lawyers. “You see, you’re not a scientist. You have no qualifications. The court will not recognize you as an expert.” I get that a lot. Classics and journalism degrees. No piece of paper to certify that I, who have made a fortune out of mathematics (which is more than most mathematicians can say), have received appropriate Socialist training in doing sums. O how the hard Left are offended if anyone strays from his allocated métier.

Professors Bob Carter (left) and Richard Lindzen (right). This is what real experts look like.

So I contacted the two most eminent scientists I knew: Professor Richard Lindzen of MIT and the late Professor Robert Carter from Australia. Both these fine gentlemen agreed to sign the testimony I had drafted, with minimal changes to the text. The lawyers’ eyes were like saucers when they saw the resumes of the two professors. They agreed that the court would recognize the Professors as experts.

And the rest is history. The moment the Government received the scientific testimony, it folded and agreed to pay half a million dollars’ costs to the truck-driver, and to circulate the movie only if it was accompanied by 77 pages of corrective guidance.

Gore’s sci-fi comedy horror movie – gone for a Burton

Mr Justice Burton found that on nine points of fact the movie was defective. His judgment was epitomized by his finding on Gore’s claims of a 20 ft sea-level rise by the end of this century:

“The Armageddon scenario that he depicts is not based on any scientific view.”

And he accepted our argument that the odds against all nine errors falling by mere inadvertence on the side of suchlike egregious exaggeration were worse than 1 in 500. Therefore, the judge concluded that the intent behind the movie was political. He made a point of saying that, without the corrective guidance, he would unhesitatingly have banned the movie to protect our schoolchildren.

What, then, should be the oil corporations’ line of attack? First, they should demonstrate that in 1990 the giant climate models on which the entire case for alarm about worldwide warmer weather is unsoundly founded predicted about twice as much warming by now as has been observed.

At that time, IPCC effectively predicted medium-term warming of a third of a degree of warming every decade. The outturn has been a harmless sixth of a degree per decade:

The same models then predicted the long-term, equilibrium warming from doubled CO₂, roughly equivalent to the warming we might cause by 2100, would be 3 degrees. They should have halved that prediction to 1.5 degrees per CO₂ doubling or per century. Instead, they have increased it by a third to about 4 degrees. Otherwise, this fatuous scare would have collapsed.

Next, the oil corporations should show that climatologists have relentlessly and profitably exaggerated the damage caused by warmer weather. Sea level, after deducting the fictitious “glacial isostatic adjustment” (whatever else it is, it is not a real sea-level rise) and after allowing for regional isostatic displacement of the seabed, is rising everywhere at about 1.1 mm per year, equivalent to little more than four inches per century. If anything, it is rising more slowly than it has during most of the past 150 years.

Not even enough to cover m’ spats, Jeeves! Pass the glacial isostatic adjustment.

The Arctic ice that was supposed to be gone by 2013 is still there. There are seven times as many polar bears as 80 years ago. Hurricane activity has decreased. Ditto droughts. Ditto forest fires. Floods are much as they always were. Lives lost to extreme weather have plummeted. Ocean “acidification” is barely detectable, and is of so little concern to scientists that to this day no oceanwide system of pH measurement has been undertaken.

Next, the oil corporations should insist that not only the imagined harms but also the real benefits from more CO₂ in the air should be considered by the court. CO₂ fertilization has increased the total green biomass on Earth – the net primary productivity of plants – by 15-30% in recent decades. Crop yields are well up and can be expected to continue to rise thanks to more CO₂ in the air. Deserts are receding because more CO₂ allows plants to survive with fewer water-losing stomata on the undersides of their leaves.

What is more, the oil corporations will not find it in the least difficult to convince a fair-minded court that the benefits of oil production in affordable personal transportation and in a wide range of useful oil-based products far outweigh any properly-assessed net welfare loss from somewhat warmer weather worldwide.

Next, they should put forward some of the scientific reasons why the models are wrong. High climate sensitivity in models is derived near-exclusively from a large overestimate of the water-vapor feedback (all other feedbacks self-cancel in IPCC’s understanding).

But the doubling of the tropical surface warming rate in the mid-troposphere that the models predicted is not occurring, not least because, contrary to models’ predictions, there is less, not more, water vapor at that crucial altitude, which is why every one of a hundred models examined by John Christy and Roy Spencer have greatly over-predicted mid-troposphere warming.

#me-too

Related to that error there is climatology’s erroneous definition of feedback, which leads it to imagine, in effect, that the unit feedback response to greenhouse-gas enrichment exceeds the unit feedback response to the fact that the Sun is shining by an altogether untenable 2 orders of magnitude. Without that exaggeration, equilibrium sensitivity is a harmless 1.5 degrees, not 4 degrees.

The oil corporations should also calculate (and if they don’t know how to do this I shall do it for them, for my paper of 2011 on the subject is still, to this day, the only peer-reviewed paper that actually works it out) the unit welfare loss per ppmv of reducing CO₂ concentration, and compare it with the negligible welfare gain.

The bottom line, which is robustly demonstrable, is that the cost of mitigation, discounted to present value, exceeds that of adaptation by 2 orders of magnitude. CO₂ mitigation strategies that are inexpensive enough to be affordable will be ineffective; strategies that are expensive enough to be effective will be unaffordable.

In administrative law, arguments such as this are strictly relevant: for on these figures compulsorily “investing” taxpayers’ money in global-warming mitigation is unlawful on grounds of its egregious irrationality.

Finally, the oil corporations should point out that most of the world’s highest-emitting nations are exempt from the Paris climate agreement and that, therefore, proceeding against the oil corporations in one of the few countries that are not exempt and which, if Mr Trump wins his second term, will within days become exempt, is pointless.

As the tobacco corporations discovered in the secondhand-smoke case, and as we discovered in the Al Gore case, the courts are an ideal forum for pinning down the far-out Left fanatics and their gruesome billionaire paymasters.

None of their usual propaganda methods work in court. They cannot avoid debate as they usually do, for they can be cross-examined. They cannot no-platform the skeptics. Attempting to ridicule skeptics with personal attacks on their reputations is not allowed. They cannot exaggerate or make stuff up, as they usually do, for cross-examination will expose the falsehoods and contradictions in their case.

The fanatics will lose, and lose big. But first, the oil corporations must recover the backbone to stop playing futile procedural pat-a-cake in court and rediscover the wits and the guts to meet their mortal enemies in hand-to-hand combat on the one, the only battlefield that will ensure the victory of the free market over the totalitarian extremists who loathe and fear the liberty and prosperity, the Christianity and democracy that are the hallmarks of the West – the battlefield that is science itself.