One Law for Me, Another for Thee

The controversy over the Gleick affair is related to the legal fight over EPA’s greenhouse gas regulations by more than just general subject matter (climate change) or the happenstance that both are in the news.

The root cause of both controversies is a by any means necessarymindset, a ‘one law for thee, another for me’ mentality, that is inimical to democracy and scientific integrity alike.

Climate scientist Peter Gleick, an expert in scientific ethics, stole fund raising and budget documents from the Heartland Institute under false pretenses (identity theft) and very likely forged the phony ‘confidential climate strategy memo’ touted by DeSmog Blog and other blogs as exposing a Koch-funded, ‘doubt is our product’ ‘denial machine.’

Gleick still denies he authored the strategy memo, but you don’t have to be a climate skeptic to distrust the self-serving plea of a confessed liar and thief. DeSmog Blog still claims the memo is genuine, despite several lines of evidence to the contrary:

(1) The digital footprint shows that the memo was created in the Pacific time zone, where Gleick lives, rather than in the Central time zone, where all the bona fide Heartland documents (except the IRS 1099 form) were created.

(2) The strategy memo contains an allegedly incriminating phrase — “anti-climate” – often used by warmists to describe skeptics but never by skeptics to describe themselves.

(3) The memo proposes to keep “Peter Gleick” and other “opposing voices” out ofForbes magazine. How on earth could Heartland pull that one off? Is Heartland the think tank-tail that wags the financial empire-dog? The strategy memo implies that when Heartland President Joe Bast says “jump,” Steve Forbes says “how high?” The strategy memo doesn’t pass the laugh test.

(4) The memo proposes to pay Dr. David Wojick $100,000 to develop a K-12 global warming curriculum. Why? To show that, “climate change is controversial and uncertain – two key points that are effective at dissuading teachers from teaching science.” In other words, Heartland wants to spend $100k to develop curricular materials so that – teachers won’t use them! To believe this, you also have to believe that Heartland produces phone book-sized assessments of the peer-reviewed scientific literature so that people won’t read them.

(5) The ersatz strategy memo boasts that Koch funded Heartland’s climate science program to the tune of $200,000 in 2011. In reality, as Heartland’s 2012 Fund Raising Plan shows, Koch donated $25,000 in 2011, not $200,000, and for Heartland’s health care program, not its climate science program. Heartland seeks a $200,000 donation from Koch in 2012 — for its health care program, not its climate program. Heartland sent the Fund Raising Plan to all members of the organization’s board. Why would Heartland also send board members a memo that gets the amount, type, and year of Koch’s past and projected contributions stunningly wrong? It makes no sense.

Rather than condemn Gleick for behavior beyond the pale, DeSmog Blog lauds him as a whistle blower. Gleick tries to blame the victim, claiming he acted out of “frustration” at Heartland’s efforts to “prevent this debate.” Yet we now know Heartland invited Gleick to debate climate change and Gleick declined – weeks before he published the stolen documents. James Garvey argues that the righteousness of Gleick’s cause – damaging Heartland’s reputation and funding – should be considered an extenuating circumstance. In the 17^th Century, religious partisans invoked the “No faith with heretics” doctrine to justify lying and worse. Gleick and his apologists preach a ‘no faith with skeptics’ doctrine. Medievalism lurks not far beneath the surface of these would-be defenders of science.

Michael Mann and six colleagues suggest that Heartland merely got its comeuppance for cheering the release of the Climate Research Unit (CRU) emails that sparked the Climategate controversy. That, too, is nonsense.

The CRU is a tax-funded organization; thus, its research and work-related emails are subject to freedom of information laws. Heartland is a privately-funded organization; thus, its planning documents are not subject to such laws. As we know from the Climategate emails, CRU scientists stonewalled FOIA requests for years to prevent independent researchers from checking their data and methods. That was a bona fide scandal, not only because evading FOIA is unlawful, but also because scientists who deny independent researchers the opportunity to reproduce (invalidate) their results attack the very heart of the scientific enterprise.

Leaking the CRU emails — for all we know the work of a genuine whistle blower — was the only way to (a) produce documents responsive to valid FOIA requests, (b) expose CRU’s willful evasion of FOIA, and (c) subject CRU research products to the indispensable scientific test of reproducibility.

Fakegate and Climategate are profoundly similar in one respect: both expose scandalous behavior by prominent members of the climate science establishment. As atmospheric scientist Judith Curry observes, “There is the common theme of climate scientists compromising personal and professional ethics, integrity, and responsibility, all in the interests of a ’cause’.”

The ‘by any means necessary’ mentality animating Gleick and the Climategate schemers is also at the heart of the litigation that became Massachusetts v. EPA, the Court’s decision in the case, and the Obama Administration’s climate policy and fuel-economy power grabs.

Whatever the outcome of Coalition for Responsible Regulation v. EPA, the following facts are hard to dispute. (1) EPA and the California Air Resources Board's (CARB) motor vehicle greenhouse gas emission standards implicitly regulate fuel economy. (2) Under the statutory scheme Congress created, one agency – NHTSA – regulates fuel economy through one set of rules – Corporate Average Fuel Economy – pursuant to one statute – the Energy Policy Conservation Act (EPCA). Today, three agencies – EPA, NHTSA, and CARB – regulate fuel economy through three sets of rules pursuant to three statutes – the Clean Air Act (CAA), EPCA, and California Assembly Bill 1943. (4) The CAA provides no authority for fuel economy regulation, and EPCA specifically prohibits states from adopting laws or regulations “related to” fuel economy. (5) Congress never intentionally authorized EPA to de-carbonize the U.S. economy.

The last point deserves further comment. Congress declined to give EPA explicit authority to regulate greenhouse gases in 2010, when Senate leaders pulled the plug on cap-and-trade legislation. That was after nearly two decades of global warming advocacy. Note that a key selling point of the Waxman-Markey bill was that it would preempt EPA regulation of greenhouse gases under several CAA provisions.

If instead of introducing a cap-and-trade bill, Reps. Waxman and Markey had introduced legislation authorizing EPA to do exactly what it is doing now (i.e., regulate greenhouse gases via the CAA as it sees fit), the bill would have been dead on arrival. The notion that Congress gave EPA such expansive authority when it enacted the CAA in 1970, years before global warming was even a gleam in Al Gore’s eye, defies both history and logic.

It is unrealistic to hope that the D.C. Circuit Court of Appeals will undo the damage that judicial and regulatory activists have done to our constitutional system of separated powers and democratic accountability. Congress can restore the balance of powers but only if it has the will to do so. Only one chamber of Congress has the will today. That may change in November.