Litigating Environmental Issues Outside of Conventional Environmental Law

Lauren Kurtz

Environmental law is typically thought of as statutory regulation and related common law doctrines—but the notions of what constitutes environmental law are shifting. As the environmental landscape has become more complicated and more contentious, so too has the legal one. One Nature journal article has described the increasingly combative legal and political scene over climate science as an emerging “street fight.”

In particular, a new legal tactic has emerged: legal actions made directly against climate scientists. Unfortunately, self-styled “climate skeptics” have harnessed the legal system to go after scientists with whom they disagree. Ideologically motivated groups, seeking to bypass legitimate scientific debate, have instead resorted to records litigation, tort suits, and other legal battles.

Misuse of Open Records Laws

The most common legal attack on climate science has been through using—or, more accurately, misusing—open records laws, which allow citizens to request copies of government documents. Under the rationale that these laws apply to publicly funded scientists (e.g., government or public university researchers), massive open records requests have been made for scientists’ entire files, including personal emails. In contrast to the vast majority of legitimate open records requests, this subset of extremely invasive requests has been described by the Union of Concerned Scientists as “harassment” designed to “curb the ability of researchers to pursue their work, chill their speech, and discourage them from tackling contentious topics.” Scientists have been subjected to huge time and financial drains to address open records requests seeking scores of otherwise private documents.

One example is Dr. Michael Mann, a Penn State climate scientist. In 2011, Dr. Mann received open records requests for nearly all emails and other documents written or received throughout his six years of previous employment at the University of Virginia. (The group seeking these emails, the American Tradition Institute, has been described as “a free-market think tank that wants the public to believe human-caused global warming is a scientific fraud,” and its tactics include “filing nuisance suits to disrupt important academic research.”) Dr. Mann and UVA released some documents and litigated to withhold others protected under Virginia law. The Virginia Supreme Court ultimately agreed in 2014 that the state’s open records protections included safeguarding research and academic “free thought and expression.”

A virtually identical case is currently underway in Arizona by the same group, since renamed E&E Legal, which has openly admitted it wants to comb for information it could use to embarrass researchers. The trial court ruled in March that the University of Arizona properly protected scientists’ private files, but only after tremendous time was spent by U of A and the two scientists targeted. E&E Legal has since appealed this case. There have also been similar disputes over the files of climate scientists in New York, DC, Texas, and Illinois.

Tort Battles

Other skirmishes include tort lawsuits this year against climate blogger and computer scientist Dr. John Mashey. The lawsuits were filed in retaliation for Dr. Mashey’s work to uncover academic misconduct by several authors of a Tea Party-commissioned Congressional report, which attempted to disprove scientific evidence of climate change. Dr. Mashey exposed plagiarism, falsifications, and errors in the report, as well as funding misuse by the authors; two of the authors then sued Dr. Mashey, claiming that he caused them to be fired from their academic positions and thus, incredibly, he committed “tortious interference with contract” and “conspiracy.” The lawsuits were ultimately withdrawn without explanation, but not before costing Dr. Mashey tens of thousands in legal bills (which, perhaps, was part of the goal).

Another tort claim at play is defamation. For example, last year, threats of a defamation suit prompted the journal Frontiers in Psychology to retract a peer-reviewed paper linking those who reject the scientific consensus on climate change with “conspiracist ideation.” The retraction stated that the journal had no “issues with the academic and ethical aspects of the study . . . but the legal context is insufficiently clear.” The journal was widely criticized by the scientific community for “tossing authors under a bus.”

This proliferation of legal attacks on climate scientists is troubling to say the least, and it looks likely to only increase. But it also shows that conventional notions of environmental law do not always apply in today’s world. Attorneys of all fields can and do work on cases involving environmental issues, and in fact, legal expertise outside of traditional environmental law is an increasingly valuable skill in this developing street fight.

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Lauren Kurtz

Lauren Kurtz is the executive director of the Climate Science Legal Defense Fund.