Sunday, March 21, 2010

Perry Mason and the climate change deniers

The fossil fuel lobby knows that much of the public's worldview is shaped by television, and television is filled with courtroom dramas. The vast majority of those dramas, however, are about criminal cases, not civil cases. (I'll come back to this difference later.)

Climate change activist and founder Bill McKibben alluded to this in a recent piece appearing on "The Huffington Post." But America's and perhaps the world's love affair with defense attorneys whose clients seem to have no chance whatsoever of an acquittal goes back much further than the O. J. Simpson murder trial which McKibben mentions.

Perhaps the best but certainly not the earliest example of the perpetual underdog defense attorney is Perry Mason, the main character of the eponymous television drama. Mason's fictional clients almost uniformly have the means, the motive and the opportunity to commit murder. And just as uniformly, Mason would unmask the real killer, often through clever cross-examination that exonerated his client. Combine this with the number of times television audiences have heard television judges explain to television juries that in order to convict they must find a defendant guilty beyond a reasonable doubt, and you get a public primed to accept that any doubt is sufficient for acquittal.

The fossil fuel lobby has used this persistent and decades-long instruction to good effect. Most fossil fuel industry propagandists no longer claim there is no climate change since this position has become untenable in the face of overwhelming evidence. Instead, like Mason they point the finger at so-called "natural" warming as the true murderer of climate stability. They do not present any evidence of their own because they have none. (All their money is spent on propaganda.) They merely cite research from bona fide climate scientists which documents previous periods of climate change unrelated to human activity. This, of course, proves nothing.

But it does set the stage for the second tactic, which is to focus on ambiguities and uncertainties in climate science. What the propagandists claim is that these ambiguities and uncertainties, which are a part of any scientific endeavor, are reason enough for an acquittal. Remember: By the standards of a criminal trial any reasonable doubt means the defendant should go free. It does not mean the defendant didn't commit the crime, only that the evidence is not sufficient to convict him or her .

This standard, however, was designed for individuals on trial for crimes . And, whatever one thinks of the actions of fossil fuel companies, their activities are not considered crimes under the law. If they were, we would all be implicated in those crimes since virtually every person on the planet uses some form of fossil fuel energy. But there is another standard upon which we make all sorts of decisions, not just legal ones, every day. That standard is called preponderance of the evidence. What it means is that evidence is weighed based on not just the amount of evidence on each side of an issue, but also the soundness of that evidence and the conclusions that can be drawn from it. It is how we ought to make public policy, and sometimes we actually do.

But the public is little aware of this standard. One reason is that television and movie dramas very rarely revolve around civil litigation for which the standard of proof is the preponderance of the evidence. This is because real civil litigation is almost always deadly dull. And, in those few dramas that do involve civil litigation such as A Civil Action and Erin Brockovitch , almost all the action takes place outside the courtroom. That's because the courtroom action behind these real-life dramas would include the endless, tedious questioning of experts painstakingly trying to explain highly complex technical and scientific information to a jury or a judge. Filmmakers and directors know that nobody would watch such a thing as entertainment.

If the climate change issue were litigated as a civil case--what a minute, it already has been! The results have been what one would actually expect in civil cases where virtually all the scientific evidence comes down on one side: namely, that climate change is real and that humans are the major cause of it. Based on that evidence the U. S. Supreme Court decided that the U. S. Environmental Protection Agency (EPA) wrongly refused to regulate greenhouse gas emissions as pollutants when it was petitioned to do so. The EPA is now preparing to do what the Supreme Court told it to do in 2007. In a related case, the Export-Import Bank of the United States and the Overseas Private Investment Corporation, two agencies of the U. S. government, were forced to begin evaluating the impacts of greenhouse gas emissions related to the projects they fund, establish an overall policy concerning climate change, and fund $500 million of renewable energy projects.

Other suits are getting started, and it is hard to say whether courts will allow individuals or groups to sue greenhouse gas emitters for damages. The questions so far have been 1) whether such litigants have standing to sue and 2) whether the court could proceed without guidance from the U. S. Congress about how to handle such cases. But where the question has been whether climate change is real and humans are responsible, government agencies have so far been forced to move ahead with new regulation and policy by the courts--courts that have been convinced by the overwhelming preponderance of the evidence presented in civil lawsuits.

So, we have a precedent for how climate change policy should be determined, not by the bogus logic that any hint of uncertainty in any of the climate science should be grounds for doing nothing, but rather that the overwhelming preponderance of the evidence demonstrating the human link to climate change should frame our actions.

Climate change activists are foolish from a rhetorical point of view to respond to every discrete piece of disinformation spread by the fossil fuel lobby and its legion of paid publicists and unpaid dupes. This just reinforces the idea that the standard for public policy ought to be one of beyond a reasonable doubt. By that standard we would never regulate anything. Instead, climate change activists need to focus on the overwhelming case for human-induced climate change and advance that as succinctly and clearly as they can. And, they need to put Perry Mason and his like back where they belong, on television and in movies and banished from the realm climate change policy.

P.S. If the climate change deniers continue to insist on using beyond a reasonable doubt as their standard, perhaps we should require that they apply this standard to the fossil fuel industry itself. The industry should be required to prove beyond a reasonable doubt that greenhouse gas emissions will NOT alter the climate. If it cannot, then by that standard the industry should be forced to cease extracting and burning all fossil fuels. Standards can be a double-edged sword. Be careful what you wish for.

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