Climate Change is Heating Up in Courts


By: Peter Rottgers, Senior Staff Member

Climate change is a hot topic that is apparently getting steamier. The big questions posed by the issue of climate change still loom large. What is the cause, what is going to happen, and what should we do? The Environmental Protection Agency (EPA) states that the global temperature increased somewhere between 1.0 and 1.7 degrees Fahrenheit last century.[1] Depending on which reputable scientist you ask, this is either no big deal[2], or a prelude to the worst parts of the Bible.[3]

In addition to the fact that climate change might threaten the welfare of the entire human race, a lot of money is at stake. When a lot of money is at stake, people litigate. While the economic impacts of climate change are broad, two of the parties that seem to be most directly affected are the industries that produce greenhouse gases (GHGs) and climate change scientists. Industries that extract and combust fossil fuels are one of the primary producers of GHGs.[4] Of the GHGs produced by fossil fuel combustion, coal accounts for approximately 25% of all emissions.[5] Because the coal industry will be affected, Kentucky will be too.

The coal industry employs over 17,000 Kentuckians directly, and claims to have created over 53,000 total jobs.[6] The latter number represents about 2.5% of the state’s workforce.[7] Kentucky coal is sold to 30 states and four foreign countries, bringing in billions of dollars and generating millions in tax revenue.[8] If coal remains a viable energy resource, Kentucky will remain a major player in the energy industry because only 17% of the state’s coal supply has been extracted.[9] Coal means a lot to the people of this state.

Climate change might mean as much to the scientists that research it. Government grants awarded to scientists specializing in climate research have risen significantly in recent years.[10] Some scientists saw up to 600% increases in grants received last decade compared to those received in the 1990s.[11] Additionally, some have alleged that the scientific community has behaved in an uncharacteristically uncivil manor in regards to these grants.[12] Accusations of dissenting scientists being blackballed by the scientific community are far from uncommon.[13] Because there is large monetary incentive for scientists and green science supporting organizations to achieve certain results in the field of climate change, some have called the conclusions reached into question.[14] The issue has found its way into courts.

The Supreme Court of Virginia has recently taken such a case.[15] Attorney General Ken Cuccinelli, a climate change skeptic, filed a request under the state’s Fraud Against Tax Payers Act for the research documents of climate scientist Michael Mann, who was employed by the University of Virginia.[16] Similar requests have been made of other climate scientists through the use of the Freedom of Information Act.[17] Cuccinelli suspects that the climate science produced by Mann is baseless, and therefore Mann has defrauded the Commonwealth of Virginia by using public money to produce junk science in an effort to secure grant money .[18] The University of Virginia claims it is immune from such requests because it is an agent of the Commonwealth and not an individual.[19]

Some argue that if Cuccinelli’s request were granted, it would set a precedent that could hinder academic freedom.[20] It could also be a tool for opponents of green science to harass their adversaries.

Litigation can be a powerful weapon, and its use could have significant impact on the climate change debate. The prospect of being dragged into court might deter researchers from generating junk science to get bigger paychecks, but litigation against climate scientists might also be used to bully honest researchers out of doing important work on an issue that affects every living and unborn person. Fortunately, the green community has stepped up to the plate. In an effort to ensure a fair fight, the Climate Science Legal Defense Fund (CSLDF) has recently affiliated with Public Employees for Environmental Responsibility.[21] The CSLDF provides funding for legal representation to climate scientists facing the prospect of litigation.[22]

Hopefully, initiatives like the CSLDF will ensure that questions regarding the validity of climate research are properly answered when they are litigated. The future policies on climate change need to be based on the best information possible because so much is at stake. If good science suggests that further regulation and downsizing of industries like Kentucky coal is necessary for the welfare of the human race, then those actions should be taken, but the people of Kentucky should not have to endure further regulation, or even an eventual moratorium, on their most valuable natural resource based on faulty theories.

[1] U.S. Environmental Protection Agency (EPA), (last visited Feb. 1, 2012).

[2] See U.S. Senate Minority Report: More Than 700 International Scientists Dissent Over Man-Made Global Warming Claims, Scientists Continue to Debunk “Consensus” in 2008 & 2009 (2009), available at

[3] EPA, supra note 1.

[4] World Coal Association, (last visited Feb. 1, 2012).

[5] Id.

[6] Kentucky Office of Energy Policy & Kentucky Coal Association, Kentucky Coal Facts I (10th ed. 2008) available at

[7] See Press Release, Bureau of Labor Statistics, Regional and State Employment and Unemployment Summary (Jan. 24, 2012) available at

[8] Kentucky Office of Energy Policy, supra note 6, at i.

[9] Id.

[10] Bret Stephens, Climategate: Follow the Money, Climate change researchers must believe in the reality of global warming just as a priest must believe in the existence of God. Wall St. J. L. Blog (Dec. 1, 2009, 10:40 AM),

[11] Id.

[12] Id.

[13] Id.

[14] Id.

[15] Jim Nolan, Va. Supreme Court Takes Up Climate Case, Richmond Times-Dispatch, Jan. 13, 2012, available at

[16] Id.

[17] Id.

[18] Id.

[19] Id.

[20] Nolan, supra note 15.

[21] Andrew C. Revkin, A Legal Defense Fund for Climate Scientists, Dot Earth N.Y. Times Blog (Jan. 15, 2012, 6:46 AM),

[22] Id.