The Last Place on Earth

Antarctica has been in the news quite a lot recently.  We have just passed the 100th anniversary of Amundsen’s and Scott’s attainment of the south pole.  Al Gore recently traveled to the continent as part of his Climate Reality Project.  And, most interestingly, Russian scientists finally pierced the 3.8-km-thick ice shield to penetrate the surface of Lake Vostok.  The project hopes to identify an ecosystem in a lake that has been isolated from the remainder of the planet by the Antarctic ice for some 15 million years.

There are any number of ideas floating around amidst the excitement, mostly centering on the potential for information obtained from Lake Vostok to inform us about patterns of evolution on our own planet and to provide further insight into the possibility that life could evolve on planets or moons having similar conditions.  The Jovian moon Europa, for instance, has an icy crust with a liquid ocean underneath that some astrobiologists have speculated could support life.

Work in Antarctica is highly seasonal, and with the current season now coming to an end, actual collection of water and sediment samples (perhaps using an underwater robot) will not be performed until the Antarctic summer of 2012 – 13.  The Russian research is also likely to be complemented by projects planned for that season by British and American scientists.  The British Antarctic Survey plans to cut through the icecap into Lake Ellsworth while the Americans plan to investigate Lake Whillans.

There is undoubtedly an element of competition among the Russian, British, and American teams that is perhaps reminiscent of the “race for the south pole” between the Norwegian and British teams led by Amundsen and Scott a century ago.  But at the same time, Antarctica is a place where it is easier to set aside national chauvinism in favor of an idealized cooperative approach to science undertaken by a singular humanity.  It is within this context that I want to discuss a question that has a superficially simple answer.

Who owns Lake Vostok?
The easy answer of “no one” is perhaps the answer most commonly given because no national territorial claims are enforced in Antarctica.  But a fuller answer is more complex.  While it is true that no national territorial claims are enforced, that does not mean such claims do not exist.  Indeed, during the early part of the twentieth century, seven nations asserted territorial claims, some of which overlap:  Chile, Argentina, France, Norway, Great Britain, New Zealand, and Australia.  Those claims still exist but have been “frozen” in accordance with a series of agreements that are collectively known as the “Antarctic Treaty System” (who says treaty makers do not have a sense of humor?).

The initial Antarctic Treaty went into effect in June, 1961 and included the United States and the Soviet Union in addition to the seven claimant nations, as well as Belgium, Japan, and South Africa.  While not claimant nations, the United States and the Soviet Union were given special status in Article IV of the treaty as reserving the right to make territorial claims in the future; nations that have subsequently ratified the treaty have agreed not to advance any claims of their own.

All of this continues to be relevant because Antarctica has importance that goes beyond its scientific value.  Fifty percent larger than all of Europe, Antarctica is believed to contain vast stores of mineral resources and — importantly — oil.  The original Antarctic Treaty said nothing about how to treat discoveries of such resources, but the Madrid Protocol, negotiated in 1991, places a 50-year moratorium on mining and oil-exploitation activities in the Antarctic.  That moratorium may be lifted earlier than the 50-year term if there is agreement among certain parties to the treaty.

The original territorial claims, which date back to Britain’s first claim in 1908, were based on traditional legal rationales for asserting sovereignty, including discovery, occupation, geographical proximity, and geographical affinity theories.  Since those territorial claims are merely “frozen” by the Antarctic Treaty System, many of the activities that take place in the Antarctic need to be viewed with a somewhat jaundiced eye.  There is no doubt that the scientific research that takes place is valid and important, but much of the national support of that research is funded with a greater objective of continuing to consolidate territorial claims.

Consider, for example, Emilio Marcos Palma, the first human being born on the continent of Antarctica.  An Argentine national, Palma’s birth was coordinated through the efforts of the Argentinean government as a form of colonization of the territory it claims.  He was born January 7, 1978, and eight years later, the Chilean government followed suit, arranging for the birth of Juan Pablo Camacho in Antarctica.  Both men were born in a part of the continent that is simultaneously claimed by each of Argentina, Chile, and Great Britain.  When I visited Antarctica last month, one of the residents of the British base at Port Lockroy explained to me, with characteristically wry British wit, “The Chilean and Argentinean governments each sent down a pregnant woman to have a baby.  But we Brits … we opened a post office!”  And indeed, the British do operate a post office out of Port Lockroy in that area.  Their greater motivation is almost certainly part of a plan to solidify their “frozen” territorial claim than out of a genuine need to provide postal services — which are almost entirely used by tourists to send postcards to friends and family.

The author enjoying one of his pastimes in Antarctica

Consider also that the United States operates a base at the South Pole (that also provides a post office), simultaneously straddling the territories of six of the seven claimant nations.  It also operates McMurdo Base between the Ross Sea and the Ross Ice Shelf; that base is a veritable small town, having a population of about 1000 in the summer months.  There is no doubt that a consideration in operating these bases is to establish a pattern of colonization that may serve for a future territorial claim by the United States in accordance with its reserved right under the Antarctic Treaty.

The presence of Russian bases in Antarctica is surely no different, and this fact has not escaped the attention of Australia.  Lake Vostok lies within the territory to which Australia has frozen claims, an area that encompasses about 42% of the Antarctic continent and that is almost the size of the Australian continent itself.  (How Australian does “Vostok” really sound, eh, mate?)  About six months ago, the Lowy Institute, a private Australian think tank, raised concerns about Australia’s ability to preserve its territorial claim, and suggested examining the possibility of involving military personnel in its Antarctic activities.  A copy of the paper can be read here.  The suggestion of involving the Australian military is delicate because of limitations imposed by the Antarctic Treaty (naval activity on the high seas is generally permissible but military activity on land or ice shelves is prohibited).

The Antarctic is one of few truly pristine parts of the planet remaining, and it encompasses a satisfyingly large part of the world.  Many idealistically wish that it will always remain so, and the romantic notion that it might has so far been possible because of its extreme inhospitality to human beings.  Lake Vostok, for instance, is near the southern “Pole of Cold,” which boasts the lowest temperatures on the planet, having once recorded a temperature as low as –89.2ºC (–128.6ºF).  But it is unrealistic to believe it will always remain so as technology continues to evolve and the resources that it houses become more potentially accessible and valuable to nations.  The frozen territorial claims are like a bear in hibernation — quiet, peaceful, and slumbering — but spring always eventually comes.

No Nation Was Ever Ruined By Trade

“Canada is a country whose main exports are hockey players and cold fronts.  Our main imports are baseball players and acid rain.”

                                                                                        Pierre Elliott Trudeau


One of the accusations frequently leveled at environmentalists is that they are, much like meteorologists, hopelessly fickle.  People remember widespread reports in the 1970’s about the possibility of global cooling and the potential imminent onset of another ice age, when now all the talk is about global warming.  Or they recall something of Paul Ehrlich’s dire predictions that agricultural production would be incapable of supporting the world’s population, which they watched grow by more than a factor of two in concert with the development of an obesity epidemic.  Or they remember how the controversy over acid rain became such an issue between the United States and Canada, so jeopardizing the Canada – U.S. Free Trade Agreement that Prime Minister Brian Mulroney cynically wondered whether it would be necessary to go to war with the United States over the issue. 

No one talks about acid rain these days, at least not the way they used to.  But what changed? 

The impression that many in the public seem to have is that acid rain became an issue in the early 1980’s, when images of dying forests and lakes were widely circulated, and then withered away as climatologists shifted their focus to other issues.  The reality is, of course, very different.  Ever since the dawn of the Industrial Revolution, the effects of acidity in precipitation have been noted, with the term “acid rain” being coined by Robert Angus Smith in 1872.  It is associated with the emission of sulfur-, nitrogen-, and carbon-containing gases as byproducts of industrial processes that produce acidic compounds when they react with water.  And the reason it is not discussed as widely as it once was is not because the issue mysteriously vanished or because climatologists are opportunistically fickle, but because actions were taken to reduce its impact.

It was George H. W. Bush who had pledged to become the “environmental president” and who in 1990 supported what was then an innovative approach to reducing targeted emissions.  The basic idea was one  that had been studied theoretically by economists and which attempted to adapt market mechanisms as an indirect form of regulation.  Rather than dictate through strict regulation how emissions should be reduced, the Clean Air Act was amended to put those market mechanisms in place by establishing what has since become known as a “cap and trade” system.  The basic idea was to limit the aggregate sulfur dioxide emissions from different sources, but to permit allowances to be traded so that the market would be involved in determining which sources were permitted to produce emissions within the limits and at what levels.  There were many criticisms of the approach, most notably from environmentalists who fretted that it allowed large polluters to flex their economic muscle in buying permission to pollute. 

But the program is largely acknowledged to have been a success, not only achieving full compliance in reducing sulfur dioxide emissions but actually resulting in emissions that were 22% lower than mandated levels during the first phase of the program.  This was also achieved at a significantly lower cost than had been estimated, with actual costs now determined to be about 20 – 30% of what had been forecast.  The annual cost of having companies figure out for themselves how to reduce acid-rain emissions has been estimated at about $3 billion, contrasted with an estimated benefit of about $122 billion in avoided death and illness, and healthier forests and lakes.  

The success of the acid-rain program is naturally being considered as a way of addressing carbon emissions that are associated with global climate change.  Thus far, the United States has rejected a national implementation of cap-and-trade for carbon emissions, causing California to decide to implement it itself in accordance with its Assembly Bill 32, a copy of which can be found here.  Signed by Governor Schwarzenegger in 2006, the bill requires California to reduce that state’s carbon emissions by 2020 to levels that existed in 1990.  A copy of California’s plan to do so using an implementation of cap-and-trade can be found here

Part of what California seeks to do is to improve on a generally failed cap-and-trade program in Europe that began in 2005.  One of the more significant problems with the European implementation was that governments began the program with an inadequate understanding of the level of carbon emissions in their countries.  Too many allowances were issued, causing market forces quickly to force the price of carbon to zero by 2007.  In addition, a number of tax-fraud schemes and a recent theft of carbon credits stored in the Czech Republic registry have resulted in justifiable concern about the program that some worry will affect the California program. 

It is no surprise that the California program has been the subject of litigation, and last week a ruling was issued by the Superior Court in San Francisco agreeing that alternatives to a carbon-market program had not been sufficiently analyzed.  A copy of the ruling can be read here and a copy of the (much more informative) earlier Statement of Decision can be read here

There is considerable interest in the California program.  It is decidedly more ambitious than the more limited program implemented by ten states in the northeastern region of the United States and is being considered by some Canadian provinces as well as by some South American countries.  While last week’s decision certainly derails implementation of cap-and-trade in California temporarily, it is difficult to imagine that it will not ultimately be implemented after deficiencies in the studies have been addressed.  There is too much interest in it as a regulatory scheme that can have less adverse economic impact than other forms of regulation even while achieving the same overall objectives.

Nature Cannot Be Fooled

Oh, the trouble that tiny Rhode Island can cause. 

During a period of time in 1841 and 1842, there were two governments vying for legitimacy in Rhode Island, the one that had been in existence from the time of the Declaration of Independence and another led by Thomas Wilson Dorr, who objected to the state’s voting requirements.  Originally, Rhode Island allowed only landowners to vote.  It was an acceptable enough system in a territory where almost all of the citizens were farmers.  But with increased industrialization and the migration of many to cities, the fraction of people eligible to vote became progressively smaller, concentrating power in the hands of a land-owning elite.  No women or blacks were eligible to vote and by the early 19th century only a minority of white men possessed that right. 

Unable to change the structure internally, people took matters into their own hands, prompting the Dorr Rebellion.  Rival constitutional conventions were held, leading to parallel elections, and to the separate election of both Dorr and Samuel Ward King as governor of the state.  On June 24th, 1842, the King government declared the state to be under martial law.  Martin Luther, who sided with Dorr, was alleged to be engaged in traitorous activity and the King government ordered him arrested.  Luther Borden effected the arrest, breaking into and searching Martin Luther’s home, and damaging his property in the process. 

Martin Luther sued, alleging trespass by Luther Borden.  Borden defended himself, claiming he was acting in his official capacity and with the authority of government.  Martin Luther countered, asserting that the King government was illegitimate. 

Who was to decide which government was the legitimate one?  The only possibility was the Supreme Court of the United States, which was confronted with the trespass claim in the famed case of Luther v. Borden.  It was in this case that the Supreme Court first articulated the “political-question doctrine.”  A copy of the Court’s decision can be read here.  Essentially, this doctrine asserts that there are some controversies that are simply not within the legitimate purview of the judiciary to decide.  The doctrine is not firmly defined and it has shifted in application over the years.  But it is not simply that an issue is controversial that can invoke the doctrine — after all, the Court did not hesitate to make rulings on abortion, racial desegregation, affirmative action, the death penalty, and even the infamous counting of Florida votes ten years ago — an issue that at first blush might seem to be the paradigm of a “political question.”  Rather, the federal courts must decline to make decisions in cases particularly where they lack sufficient standards to apply. 

The political-question doctrine is centrally at issue in American Electric Power v. Connecticut, which the Supreme Court agreed to hear last week.  The case is one of four prominent climate-change cases that relies on the legal theory of “public nuisance.”  A “nuisance” results when there is a substantial interference with the right to use and enjoy land that results from the defendant’s activitity, with a “public nuisance” being an unreasonable interference with a right common to the general public.  The interference need not be intentional, but can arise from negligence. 

The American Power case was brought against a number of power companies by several states — including pipsqueak troublemaker Rhode Island — as well as some private land trusts.  Application of the nuisance theory is the same in this case as it has been in the others:  The defendants engage in an activity that releases greenhouse gases into the atmosphere, impacting the climate and resulting in an interference with the public’s use and enjoyment of land. 

The theory is tidy and almost certainly correct in the abstract. 

But even so, every district court that has been presented with this nuisance theory has determined that it is not something the judiciary can rule on because it is a political question.  The reasons for doing so are, to me, compelling.  The devil is indeed in the details. 

Begin by considering the enormous difficulties involved in sorting out causation.  The Earth’s climate system is extremely complex:  it took roughly 100 years since Svante Arrhenius first quantified the relationship between temperature and atmospheric CO2 in 1896 for climate scientists to settle on a consensus that anthropogenic release of greenhouse gases is warming the planet.  And this factor does not operate in isolation, with a number of other natural influences having both warming and cooling impacts.  In addition, at least some of the greenhouse gases generated by humanity are absorbed by the oceans and by vegetation.  Indeed, it was once thought by many climate scientists that the oceans would provide a sufficient sink to accommodate any level of greenhouse-gas emissions that humans could conceivably produce. 

The result is a system in which it is truly impossible to correlate particular acts of generating CO2 or other greenhouse gases with particular climate events.  It is very much like Philip Merilees’ concoction of the “butterfly effect,” in which we recognize that the chaotic nature of weather might allow the beating of a butterfly’s wings in Brazil to set off a tornado in Texas.  But even with such an understanding, it is inconceivable that we could ever identify the butterfly who caused the problem.  Is the answer to condemn every winged insect on the planet? 

Those bringing these nuisance-based lawsuits accordingly rely on a theory of “contribution,” claiming that there must be liability on the part of power companies, petroleum companies, etc. because they contribute to the problem.  There is no question that they do.  But so does almost every single one of the 7 billion people on the planet as they engage in activities that contribute to the generation of greenhouse gases.  It is surely possible to single out power companies and assert that they contribute more than an individual like me.  But it is equally possible to single out any large group of people:  the residents of Los Angeles, Chicago, and Houston, say, or perhaps all people who choose to have children.  These large groups contribute greatly to the warming issue. 

It is, moreover, simplistic to suggest that power companies and petroleum companies should not engage in their business.  They are far too important to maintaining the standards of living that citizens expect and for providing a critically important sector of the world’s economies.  It seems plainly unwise to leave it to a small number of judges to decide how to balance the intricate interconnection of these issues — the risk to the environment, the effects on human health, the socioeconomic impacts, and many others.  It is better left to the policy determinations made by the legislative and executive processes of government, as imperfect as those may also be. 

Currently, the decision of the two judges on the Second Circuit Court of Appeals, who reversed the district court’s determination that the issue is a political question, stand alone in asserting that the judiciary may apply tort nuisance principles to the issue of climate change.  Their reasoning can be found here.  When I commented some months ago on the Comer v. Murphy Oil case in the Fifth Circuit (see here), I suggested that clear guidance from the Supreme Court would soon be needed.  I, for one, am eager to see what they decide.  

Rooftop of the World

“Glaciers in the Himalaya are receding faster than in any other part of the world and, if the present rate continues, the likelihood of them disappearing by the year 2035 and perhaps sooner is very high if the Earth keeps warming at the current rate. Its total area will likely shrink from the present 500,000 to 100,000 km2 by the year 2035.”

The quotation is from the Fourth Assessment Report issued by the Intergovernmental Panel on Climate Change (“IPCC”) in 2007. It’s a sobering statement about the impact and pace of global climate change — an astonishing vanishing of the glaciers of the Himalaya in only 25 years.

It is also wrong.

The categorical nature of the statement has caused much criticism and embarrassment for the IPCC, which has significant impact on the formation of laws to implement climate policies by nations around the world. It does, however, provide a fitting example of the role of scientific peer review and the sweeping impact that errors in that process can potentially have.

The IPCC was formed in 1988 by the World Meteorological Organization and the United Nations Environment Programme. Its principal role is to assess the scientific information available about climate change and to issue assessment reports that are used by governments in developing laws and policy. Together with former Vice President Al Gore, it was awarded the Nobel Peace Prize in 2007 for “efforts to build up and disseminate greater knowledge about man-made climate change, and to lay the foundations for the measures that are needed to counteract such change.” There is no doubt that when its credibility is tainted by bold statements that turn out to be false that it fails, at least in part, in achieving that goal.

The incorrect statement apparently has its origins in a statement made by Syed Iqbal Hasnain, an Indian scientist, in 1999. He claims he was misquoted in an interview with the science magazine New Scientist: “I had simply told the New Scientist in an interview that the mass of the glaciers will decline in 40 years…. The date (2035) was their invention.” He acknowledges that his statement itself was based on data published in the 1970’s.

When the IPCC was preparing its Assessment Report, it was subject to peer review, which is the process scientists use to evaluate statements before publication. Peer review is always important, but it is especially so when pronouncements are being made by a body with the influence that the IPCC has. That process failed in this case. But what is notable is that the statement about the Himalaya was noted and questioned by at least some of the peer reviewers — one of whom pointed out a glaring inconsistency: “100,000? You just said it will disappear.”

Another of the peer reviewers noted that the statement seemed to be at odds with other research suggesting that glaciers in the Himalaya are actually expanding, pointing out specific references that should be consulted in assessing its validity.

The end result is that the report failed to account for the criticisms of the peer reviewers and instead retained a statement that was not itself validated by peer review. In the time since the error has been pointed out, there have been numerous allegations whose veracity is hard to assess: that the statement was included deliberately, even knowing it was wrong, to prompt action by governments; that Hasnain is being untruthful when he claims not to have mentioned a date; that those involved with publication of the statement have financial interests that would be enhanced by concerns the Himalayan glaciers are rapidly disappearing; and others. Any of these would be cause for additional concern if substantiated, but my focus today is more narrow: The peer-review system worked up to a point, with peer reviewers identifying the weaknesses in the statements. But it takes attention and diligence on the part of all involved with that process for it truly to function the way it is intended.

Last week, the InterAcademy Council (“IAC”), a multinational organization of scientific academies, issued its Review of the IPCC. While it noted an “essential” need for “some fundamental changes to the process and the management structure,” its tenor was generally positive about the contributions the IPCC has made: “[T]he IPCC assessment process has been successful overall and has served society well. The commitment of many thousands of the world’s leading scientists and other experts to the assessment process and to the communication of the nature of our understanding of the changing climate, its impacts, and possible adaptation and mitigation strategies is a considerable achievement in its own right.” The full report can be read here (a discussion of the Himalayan glaciers statement begins on page 23).

Coincidentally, the U.S. Geological Survey released its image atlas on “The Glaciers of Asia” only about a week before the IAC’s report, providing evidence that the Himalayan glaciers are, in fact, receding, although there is still conflicting data about what is actually going on there. That atlas can be seen here.

There is no question that the credibility of the IPCC has been damaged and deservedly so. Himalayan glaciers are vital. Even Al Gore noted in his movie that the Himalayan ice sheet feeds seven of the world’s major river systems, providing water to some 40% of the world’s population. Statements about its demise should not be made lightly.

But at the same time, it is important not to lose an appropriate sense of context. Global climate change is incredibly complex to understand and the volume of information considered by the IPCC in issuing its assessments is large. Nations very much need a body to aid in the digestion of the scientific information and to provide carefully considered evaluations of the implications of that scientific information.

Mistakes can and do occur during peer-review processes, and it is very much my hope that those who see something more sinister than a simple error are mistaken. Long-time editor of the Applied Journal of Physics Steven J. Rothman, a man I knew and deeply respected, once provided a highly apt assessment of the system of peer review by paraphrasing Winston Churchill’s quip about democracy as a form of government: “It is the worst … except for all the others that have been tried.”

Eppur Si Muove!

The story alluded to by my title is apocryphal, but the full account of Galileo’s trial before the Holy Roman Inquisition is a matter of historical truth. 

Although he is sometimes mistakenly credited with the invention of the telescope, Galileo’s real contribution is to have used telescopes for celestial investigations.  He was about 40 years old when he learned of the Dutch invention and decided to build his own, pointing it at the moon, the stars, and the Sun.  He was the first to observe sunspots and their movement as they revolve with the Sun, conclusive evidence that prior teachings that the Sun was a perfect unchanging sphere were incorrect.  He was the first to see the moons of Jupiter and to witness their revolution around that planet, calling into question prior teachings about the perfection of the planets.  And perhaps most signficantly, he observed the crescent of Venus. 

This was critically important because the fact that Venus has celestial phases when observed from the Earth implies motion about the Sun.  A heliocentric model of the solar system in which the planets revolve about the Sun had been put forth many decades earlier by Nicolaus Copernicus.  Galileo had expressed private support for that theory as early as 1597, but remained hesitant about making his views public because of the consequences Copernicus had faced:  “I have not dared until now to bring my reasons and refutations into the open, being warned by the fortunes of Copernicus himself, our master, who procured for himself immortal fame among a few but stepped down among the great crowd.”  It was Galileo’s observations with the telescope that finally emboldened him to make his views public.  After all, anyone could take a telescope like he did, point it at the sky, and see the same conclusive evidence with their own eyes. 

Galileo’s publications began to assert the heliocentric nature of the solar system openly, notably in his Letters on the Solar Spots, which attracted the first attack from the Church.  Only the Aristotelian model could be correct, the Church asserted, because a heliocentric model was contrary to scripture.  Galileo’s writings were brought to the attention of the Holy Roman Inquisition by members of the clergy.  Things escalated, with more pressure being brought against Galileo to recant as he resolutely maintained that they should simply take a telescope and look for themselves rather than be shackled by doctrinal belief. 

In 1623, Galileo had six private audiences with the Pope, resulting in a compromise:  Galileo would write a book, presenting both views — hauntingly familiar to the demands we see today to present “both sides” of an issue even when there is no real scientific controversy.  His book, Dialogue Concerning the Two Chief World Systems, would be fateful.  Written as a dialogue among three people, Galileo cast Simplicio, a pompous fool, in the role of defending the Aristotelian model and presenting the view of the Pope. 

He was arrested and tried for heresy by the Inquisition.  Under threat of execution, he recanted the Copernican theory so that he could live the remainer of his life under house arrest.  But he is said to have uttered “Eppur si muove!” when he was sentenced — “And yet it moves!”  There is no real historical evidence that he said it, and the reality is that he was very probably broken by the experience.  Nonetheless, we romantically admire the defiance of a man with such conviction in the conclusions of his observations that he would maintain them against action so strong that it took his persecutors almost four hundred years to finally acknowledge his mistreatment, still centuries after his ideas became commonplace. 

While of course not rising to the level of the Galileo affair, the Commonwealth of Virginia has recently been engaging in activity that raises far too many questions about its motivation.  The Attorney General of Virginia, Kenneth Cuccinelli, was unsuccessful this week in his attempt to subpoena records from the University of Virginia as part of a fraud investigation into a grant supporting the research of Michael Mann.  Mann is a climate researcher who has — for reasons that can only be characterized as bizarre — become a focal point of efforts to discredit research that suggests human activity is causing global climate change.  I previously wrote about Mann and his exoneration in the “Climategate” allegations here.

The principal reason that the actions of Virginia are concerning is that the Attorney General has such little basis to support his actions, raising significant questions about his true objectives.  In April, he issued a civil subpoena demanding that the University of Virginia produce a swath of documents relating to Mann’s receipt of funds to support his research, including ten years of correspondence involving Mann and more than 40 other climate scientists.  The University resisted, noting the chilling effect that can result on academic freedom when private correspondence is baselessly subject to government review. 

There is controversy over Mann’s conclusions.  A small amount of this controversy is scientific, questioning his methodology, and deserves to be explored.  Unfortunately, most of the controversy surrounding Mann’s work has been generated by nonscientific interests who appear simply to dislike his conclusions and who are willing to intrude on the scientific process in a way that can inhibit scientists from publicizing their ideas. The proper avenues for resolution of the scientific controversy are the time-honored approaches that scientists have developed — publication, peer review, and debate.  Academics expect their research to be subjected to that scrutiny — and that scrutiny is ideally intense — but they also need to be able to interact with others in exploring initial thoughts, suspicions, and hypotheses without fear that every incomplete idea may be demanded by the government and examined out of context.  

In the abstract, scientific misconduct is a legitimate concern, but there still needs to be something that can be identified to justify an investigation beyond the fact that some research is controversial.  Otherwise, and as amici who filed briefs in the case correctly noted, “[s]eeking to avoid the stigma (not to mention legal costs) involved in a fraud investigation, professors would hesitate to research, publish, or even teach on potentially controversial subjects.”  And controversy is, in many ways, what drives scientific innovation fastest. 

Monday’s ruling by Judge Paul Peatross notes that “[w]hat the Attorney General suspects that Dr. Mann did that was false or fraudulent in obtaining funds from the Commonwealth is simply not stated….  [I]t is not clear what he did that was misleading, false or fraudulent in obtaining funds from the Commonwealth of Virginia.”  The complete ruling can be read here.   The Attorney General now has the opportunity to reframe his subpoena and articulate specific allegations if they exist. 

It is often noted that Galileo died the same year that Isaac Newton was born.  Newton, of course, would go on to invent a considerably better telescope design and to develop the theory of gravitation, which decisively confirmed the Copernican model of the solar system that Galileo espoused.  How our understanding of global climate change will develop in the years to come remains unclear.  But one thing is certain:  it will not advance at all if scientists are intimidated into suppressing their conclusions.