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Issue more regulations, court tells agency

May 17, 2016:- Today the Supreme Judicial Court (SJC) told the Massachusetts Department of Environmental Protection (DEP) that it has to issue more regulations in order to comply with the Global Warming Solutions Act, which the Legislature enacted in 2008. In Kain v DEP, the SJC ruled in favor of the Conservation Law Foundation and held that the DEP’s current regulations do not comply with the statute’s requirement of “declining aggregate [greenhouse gas] emissions limits.”

More to follow. In the meantime, two questions for diligent readers:

(1) By how much have our commonwealth’s greenhouse gas emissions declined since 2008?

(2) For bonus points, what is the main reason for the decline?

Justin Sargent 6
Peter Vickery, Esq.

Climate Control

defamation_mudslingingAs an ongoing case in the District of Columbia demonstrates, what other people think about us really does matter, whatever our parents may have said to the contrary when we were schoolchildren. Because each individual’s pursuit of happiness and a livelihood depends, to varying degrees, on the opinion of neighbors and colleagues, our reputations have value, which is why the law protects them against some forms of attack.

What degree of protection? The case I discuss below might surprise you. But first some background:

The First Amendment covers many forms of expression – such as parody, protest, and pornography – but not statements that are false and damaging. Intentionally saying something untruthful and damaging about another person orally (slander) or in permanent form (libel) constitutes defamation.

Most of us understand that there is a permanent, uncomfortable tension between free speech and freedom from harmful speech. We also appreciate that conversing in the public sphere is a civic virtue, even when the conversation turns critical or crude. But we are not always sure about where, exactly, speech slips across the boundary from civil to slanderous, from lawful to libelous. What is the precise location of that line? It shifts, according to the status of the plaintiff and the state of mind of the speaker.

One factor is whether the plaintiff is a public figure as opposed to an ordinary citizen who has not actively sought the spotlight. Public figures suing for defamation carry a heavy burden. They have to prove that the speaker knew that the statements were false or showed reckless disregard for their truth or falsity, a standard known as “actual malice.” Hyperbole and harsh opinions are endemic to meaningful discussion, and in this self-governing republic we prefer our debate heated, not chilled. If public figures do not like the heat they know where to find the kitchen door.

Using lawsuits to go after political opponents for what they have said deters people from participating in public discussion. Strategic lawsuits against public participation (the source of the acronym SLAPP) tend to chill speech so, to prevent such lawsuits, state legislatures across the country have enacted anti-SLAPP statutes. Among those jurisdictions is the District of Columbia, whose anti-SLAPP law requires a court to dismiss any claim that arises from “an act in furtherance of the right of advocacy on issues of public interest” unless the plaintiff “demonstrates that the claim is likely to succeed on the merits.” D.C. Code §16-5502.

Together, the “actual malice” requirement and anti-SLAPP statutes place significant hurdles in the path of public figures seeking to silence their critics. So if a public figure – a famous scientist, for example, who had joined the public debate around a controversial policy – came to my office after suffering harsh criticism impugning his integrity and competence and asked whether to sue for defamation, I would probably demur.

On the other hand, if he showed me a stack of published statements describing him as a careless, irresponsible, hypocritical, paranoid conspiracy theorist with a cavalier attitude to data analysis, guilty of planting crimes on other scientists, and whose employers should conduct an investigation of him, I would think again.

Those are the exact terms – including the phrase “planting crimes on others” – various critics have employed to describe Richard Lindzen, the atmospheric physicist who taught at MIT until his retirement last year. As a scientist, albeit retired, Richard Lindzen might wonder whether some of those statements were actionable.

But Richard Lindzen is not the scientist who is suing for defamation. That scientist is Michael E. Mann.

As readers may recall, back in 2009 somebody misappropriated emails from the University of East Anglia’s Climate Research Unit occasioning a scandal of sorts.  One of the emails mentioned Michael Mann and referred to one aspect of his work, rather ambiguously, as a “trick.” Professor Mann’s employer, Penn State University, investigated Mann (or, at least, interviewed him) and cleared him of three out of four charges. But a later investigation by the National Science Foundation criticized Penn State for “not adequately review[ing] the allegation” against Mann and for failing to interview critics of his work.

In 2012, writing in the conservative National Review Online, Mark Steyn quoted Rand Simberg’s previously published comment about Professor Mann, comparing Penn State’s investigation of Mann to its investigation of Jerry Sandusky:

“Mann could be said to be the Jerry Sandusky of climate science, except that instead of molesting children, he has molested and tortured data in the service of politicized science that could have dire economic consequences for the nation and planet.”

Mann sued Simberg, Steyn, and the two entities that published their statements. The defendants filed a motion to dismiss under the D.C. anti-SLAPP statute. The judge denied the motion. That threshold decision means that the case will go forward, with all parties incurring significant legal fees and the defendants facing the risk of a large damages award. Alternatively, the defendants may choose to pay Professor Mann to settle the matter short of trial.

According to the judge, Mann’s defamation claim is “likely to succeed on the merits.”  In stating that Mann had “molested and tortured data” Simberg and Steyn did more than express an opinion through rhetorical hyperbole, said the judge. Rather, they made “statements based on provably false facts.”  Therefore, the judge reasoned, Professor Mann would likely prevail at trial, meaning the court should deny the writers’ and publishers’ anti-SLAPP motion. The decision is troubling: not because falsely accusing scientists of deceptive practices is right, but because muzzling contrarians is wrong.

When applied to a distinguished scientist and his data, the words “molest” and “torture” may strike some readers as vulgar and others as amusing. Either way, the words are disparaging. Of course, any reasonable reader would understand that Simberg and Steyn were using a metaphor to convey an opinion. Data are not sentient beings, after all. They are capable of being tortured and molested only figuratively, not literally. But clearly the writers meant their statements to denigrate Professor Mann by implying that he had distorted the facts to suit his agenda, an allegation similar to the one Richard Lindzen’s critics throw about.

Does that mean the government, in its role as guarantor of Michael Mann’s reputational interests, should effectively ban them? If Richard Lindzen sued, should the government silence his critics too?

Perhaps climate science is the sole area of study where we already know all there is to know, where we have incontrovertible proof about not only what has already happened but also what will happen. Perhaps, but probably not.

From what I have read, it is beyond reasonable doubt that Earth’s climate is changing and that humans are contributing to that change. Assessments of the climate’s sensitivity and predictions about future global temperatures, however, do not seem quite so clear cut. Still less obvious are the most effective ways to adapt human behavior so as to reduce the risk that the changing climate poses to the species. This aspect of the climate-and-energy policy debate is not an open-and-shut case. Answers will emerge, if at all, through rigorous exchanges in the metaphorical marketplace of ideas.

Free speech begets better policies than censored speech. So when we favor some speech rights at the expense of others, there are trade-offs and real costs. For example, in copyright and trademark law we sacrifice some free speech in exchange for encouraging creativity and preventing consumer confusion. In attempting to strike the right balance courts use use the doctrine of fair use. Similarly, in the realm of reputation, in order to promote robust debate we require that public figures accept a greater degree of uncompensated denigration than private citizens have to endure. In the language of economics, when public figures endure ignominy and absorb its cost, society as a whole acquires a positive externality.

The trade-offs here are considerable. We can hold climate scientists harmless and insulate their reputations even when their predictions serve as the basis for policy decisions that could cause more damage than they prevent. That is the decision the judge made in Professor Mann’s case. We know that Simberg, Steyn, and their publishers are paying a heavy price. But what price will fall on society as a whole?

Simberg and Steyn wrote words that undermined the reputation of a famous scientist. They expressed an opinion that seems to fly in the face of the facts. If the case goes to trial, the central question for the court will be whether their allegations were baseless. But the deeper question for all of us is this: Should the law accord Simberg and Steyn’s speech the same level of protection it gives pornography, or a lower level; as much as flag-burning receives, or not so much; safeguards equal to those it grants the open advocacy of ethnic cleansing, or less than equal?

As we ponder these questions, it is worth bearing in mind whether our answers would be different if the aggrieved scientist was not Michael Mann but Richard LIndzen.

Right’s attack on NLRB continues

Employees and small business owners alike in Western Massachusetts need to know whether the current controversy around the National Labor Relations Board (NLRB) will affect their legal rights. The source of the uncertainty is the recent decision in Noel Canning v. NLRB, which involved a dispute between a Pepsi-Cola bottling and distribution company and the union representing the plant employees, Teamsters Local 760. Filing amicus briefs in support of the company were House Speaker John Boehner, Senate Republican Leader Mitch McConnell, and the Landmark Legal Foundation.

john-boehner-mitch-mcconnell
Speaker Boehner and Leader McConnell

The NLRB ruled in favor of the union, but on appeal United States Court of Appeals reversed the decision. Why? The court said that the NLRB’s order was void because it had no quorum. And why did the court say there was no quorum? Because it held that President Obama’s three recess appointments to the NLRB were invalid. The court agreed with the Republicans leaders who had argued that when President Obama made the appointments the Senate was in session rather than in recess.

Somewhat more absorbing than the recondite issue of when a recess is not really a recess is the question of how this became a contested issue in the first place. Spoiler alert: The answer involves large amounts of money.

Many of the people who are going after the NLRB are also attacking climate science. It’s no secret that ultra-conservatives fund climate-change denialists. To its credit, the Landmark Legal Foundation is quite candid about its opposition to the “extreme environmental groups” that spread “global warming hype” and receive Environmental Protection Agency (EPA) grants. Under the moniker Greenwatch, the foundation provides a handy database for concerned conservatives that “identifies the location, leadership and membership of each profiled group.”

But if you happen to be an anti-green sleuth trying to follow the money from the EPA to the Vast Climate Change Conspiracy, don’t pin your hopes on the Greenwatch database. Its keyword search couldn’t even locate any EPA grantees with the words “green” or “climate” in their names. You’d be better offer using the EPA’s own grant site or (almost needless to say) Google.

Greenwatch’s funders include the Charles G. Koch Charitable Foundation and the Scaife Family Foundations. I learned this from Right Wing Watch, a project of People for the American Way. Presumably I could turn to Left Wing Watch or Secular Humanist Watch if I wanted to uncover the names and faces behind People for the American Way. Alternatively I could just read the organization’s Form 990, which it posts online.

But why are the Charles G. Koch Charitable Foundation and the Scaife Family Foundation helping pay for the courtroom assault on the NLRB?

Irking the people who write the checks for the Landmark Legal Foundation are decisions like Hispanics United of Buffalo. In that case, the employer fired workers who had engaged in an online discussion about their job performances. One worker had been critical, and others responded. The NLRB sided with the employees. It ruled that the workers were “taking group action to defend themselves against the  accusations they could reasonably believe [the critical employee] was going to make to management.” So in preparing to engage in mutual aid and protection, their Facebook comments constituted “concerted activity” within the meaning of the National Labor Relations Act, Section 7.

The NLRB’s Hispanics United decision set “a low threshold” for concerted activity, to the chagrin of attorneys who work on the employer side of the aisle. So the company, with help from the Republican congressional leadership plus the Koch and Scaife foundations, challenged the legitimacy of the NLRB itself. Now they and their allies contend that the Court of Appeals decision in Noel Canning casts doubt on all the NLRB’s recent decisions, which they characterize as “pro-Bog Labor rulings,” e.g. Hispanics United.

So what does all this mean for workers and small business owners in Western Massachusetts? First, it’s important to bear in mind that the National Labor Relations Act (NLRA) does not cover all workers. Non-federal public employees in Massachusetts are covered by the state equivalent of the NLRA (M.G.L. c. 150E), as are some unionized employees in the private sector (M.G.L. c. 150A). So the Hispanics United and Noel Canning decisions, which interpret federal law, do not have a direct effect on these workers.

Second, most private-sector employees in this part of the world are at-will. Union members are in the minority. Employers can fire at-will employees for no reason, so long as the underlying purpose is not discriminatory or retaliatory. For my short video on this subject, just click here.

Third, focusing on situations like Hispanics United where employees are communicating online about their rights at work, several different state laws may offer varying degrees of protection. For example, the Right-to-Know Law (M.G.L. c. 111F) protects workers who work with toxic or hazardous substances. Employers that punish employees for exercising their rights under this statute could face suit in Superior Court. If workers use Facebook to discuss whether they should refuse to work unless the employer complies with the applicable regulations (450 CMR 21.00) would the employer be free to terminate them? That would be a very risky decision on the employer’s part.

Similarly, the state’s whistleblower law (M.G.L. c. 149, S. 185) is supposed to safeguard any employee who “discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer, or of another employer with whom the employee’s employer has a business relationship, that the employee reasonably believes is in violation of a law, or a rule or regulation promulgated pursuant to law, or which the employee reasonably believes poses a risk to public health, safety or the environment.” The statute also protects employees who object to policies and practices of that kind. If at-will employees organized their whistleblowing via Facebook, could their employer fire them? Again, that would be a very risky decision.

While keeping in mind that we should never post online anything we would not be happy reading on the front page of the newspaper, we should not let the Noel Canning case chill legitimate online discussions about workplace health and safety and the environment. After all, that is precisely what the people behind the Landmark Legal Foundation and Greenwatch would like.

Rain, Reggi, and a Reminder

I enjoyed today’s annual conference on Environmental, Land Use & Energy Law in Boston and came away suitably edified. Without getting into the weeds of recent and upcoming zoning decisions (other than to say watch out for disputes about medical marijuana dispensaries) I would like to share my three key learnings.

1. Rainfall: Kenneth Moraff from the EPA put the agency’s new national stormwater rule in its climate context. He pointed out that since the 1940s it has been the six New England states that have seen the most dramatic increase in the frequency of extreme rainfall. This report from Environment Massachusetts provides all the statistics, but the figure I won’t forget in a hurry is 85%: that’s the percentage increase for intense snowstorms and rainstorms in New England since 1948.

2. Reggi: The Regional Greenhouse Gas Initiative (RGGI, pron. Reggi) was the nation’s first cap-and-trade scheme. Through RGGI the participating northeastern states and Canadian provinces stage auctions where polluters buy permits to emit green-house gases. The money helps fund energy efficiency programs, which has proved a boon to many Massachusetts communities. But DEP Commissioner Kenneth Kimell mentioned a shortcoming: The original allowances are too high. Because power plant emissions of CO2 have dropped since the natural gas boom, the allowances now exceed what the companies need, and the price for CO2 allowances is as low as it can go. I’ve voiced my criticisms of RGGI before, so shall refrain from echoing myself here.

3. Reminder: Sue Reid, director of the Conservation Law Foundation, reminded us about an important provision in the Global Warming Solutions Act of 2008. Under Chapter 30, Section 61, all state agencies have to take climate change impacts into account when making decisions about permits and licenses. This is  an important requirement that has yet to work its way fully into all nooks and corners of state government, but I think it has extraordinary potential.

Kudos to the staff and volunteers at Massachusetts Continuing Legal Education for organizing yet another informative event.