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of powers at an early stage of the proceedings. None of these three cases was resolved on the merits of global warming science. Nevertheless, the cases are troublesome. First, the language of the two Court of Appeals decisions indicates the courts are lopsidedly leaning in favor of the plaintiffs, which telegraphs that they are likely to lean in their favor on the merits as well. Second, if these initial cases succeed, such cases will proliferate, and the entire energy industry will be subjected to trillions of dollars of potential liability and regulatory costs not warranted by the scientific evidence. For both those reasons, a decisive rejection of these pioneering cases is critical to avoid burdening the energy industry. This may not be as difficult as it sounds. Challenging the science on which these cases are based is the most effective way to defeat them. There are two ways to accomplish this. First, the U.S. Supreme Court in Daubert banned the use of “junk science” in federal court and requires judges to ensure that expert scientific evidence is reliable. A pretrial Daubert motion to limit or bar the admissibility of the science allegedly showing manmade carbon dioxide emissions are responsible for global warming, brought early in the proceedings, could be extremely effective. Second, if the pace of revelations that global warming is based on “junk science” continues, a motion under Rule 11 of the Federal Rules of Civil Procedure, which bans frivolous litigation, could be brought; again best done early on. If successful, such a motion could result in sizeable financial sanctions against the plaintiffs. There is plenty of evidence demonstrating the lack of sound science behind the manmade global warming claims. For one thing, it is increasingly doubtful that global warming is taking place at all. In late 2009, emails were released from the Climate Research Unit (CRU) american coal council

at the University of East Anglia written by leading scientists who control the Intergovernmental Panel on Climate Change, previously viewed as the “gold standard” of pro-global warming data. These emails show a pattern of skewed and missing data, distortion of the scientific method, and suppression of contrary academic views. Among other things, CRU prepared a database of temperature data alleged to show warming over the past 150 years. The same data is used by the National Oceanic and Atmospheric Administration and the National Aeronautics and Space Administration. All three have dropped numerous weather reporting stations from colder areas of Russia and Canada, which casts doubt on claims that the climate is warming. In fact, because Russia includes 12.5 percent of the world’s landmass and the omitted data is so significant, the Russian Institute of Economic Analysis has called for the temperature data to be recalculated. In mid-February, Phil Jones, head of the CRU unit until after the emails became public, made several crucial concessions. First, he said CRU has lost track of the raw data, so that the database compilation cannot be verified. Second, he said it was possible medieval temperatures in the world were warmer than in modern times, which would totally discredit the claim that global warming is manmade. And third, he admitted that there has been no “statistically significant” warming in the past 15 years. This data is only a small fraction of the science demonstrating that global warming is cyclical and natural. In these public nuisance cases, the best defense is a good offense based on a thorough understanding of the science.  u Maureen Martin is senior fellow for legal affairs at The Heartland Institute.


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Profile for American Coal Council

American Coal Issue 1 2010  

American Coal Issue 1 2010