Guest essay by Roger E. Sowell, Esq. reposted with permission from Sowell’s Law Blog

In the past month, several articles appeared calling for the jailing of those who provide financial support for research into climate science with an objective of proving that man-made climate change does not exist. An overview is provided at WattsUpWithThat (see link). Responses to the call for jailing are numerous.

The background on this is that three sides exist in the climate change argument: one, the warmists, those who fervently believe that man’s activities by

burning fossil fuels will drive up the Earth’s temperature and cause all manner of horrible happenings; two, the skeptics, those who understand that the science simply does not support the warmists’ view, that any increase in global temperature is related to natural cycles but not to man’s fossil fuel consumption; and three, lukewarmers, those whose views fall in between the warmists and the skeptics. Disclosure: my own view after long and careful study and based on engineering, science, and mathematics, is that of a confirmed skeptic with a full understanding that carbon dioxide, CO2, does indeed absorb and emit thermal radiant energy.

My previous articles on SLB outline my views. (see My Journey, Warmists are Wrong, Chemical Engineer Takes on Warming, Cold Winters, Climate Science is Not Settled, and others). The leading climate scientists whose views most close approximate my own include Dr. S. Fred Singer of University of Virginia, and Dr. Richard Lindzen of MIT, who stated that “The claims that the earth has been warming, that there is a greenhouse effect, and that man’s activities have contributed to warming, are trivially true and essentially meaningless in terms of alarm.”

The basis for the jailing of skeptics is that many, perhaps millions, of human deaths will occur inevitably if drastic action is not taken immediately to prevent additional fossil fuel use. By fossil fuel use, what is meant is the burning of coal and natural gas in power plants and process plants, plus burning petroleum products as transportation and heating fuel. The supposed legal theory is that a person can be found criminally negligent if his (or her) actions cause serious harm or death to another. In this particular case, the assertion is that those who promote research into climate change to show that no alarm is justified will cause the death of millions of people due to events such as ice caps melting, subsequent sealevel rise and coastal inundation, droughts, and heat waves. It is criminal negligence, they assert, to try to prevent the alarm from being sounded when the consequences are so dire.

With that as background, it is necessary to examine the legal requirements of a criminal negligence case. There are two possible crimes, first is Involuntary Manslaughter with criminal negligence as an element, the second is Voluntary Manslaughter. Under existing California law, the following must be proven.

Involuntary Manslaughter

To prove that the defendant is guilty of Involuntary Manslaughter, the State must prove that:

1. The defendant committed a lawful act in an unlawful manner;

2. The defendant committed the act with criminal negligence; and

3. The defendant’s acts caused the death of another person.

Criminal negligence involves more than ordinary carelessness, inattention, or mistake in judgment. A person acts with criminal negligence when:

1. He or she acts in a reckless way that creates a high risk of death or great bodily injury; and

2. A reasonable person would have known that acting in that way would create such a risk.

In other words, a person acts with criminal negligence when the way he or she acts is so different from the way an ordinarily careful person would act in the same situation that his or her act amounts to disregard for human life or indifference to the consequences of that act.

With the legal rules for Involuntary Manslaughter set forth, it is possible to examine the claim that it is criminal negligence to support research into climate change to show no reason for alarm exists.

First, was there a lawful act? The answer must be yes, conducting research into climate change is lawful.

Next, was the research done in an unlawful manner, meaning with criminal negligence? To prove criminal negligence, two things must be proven: the acts were performed in a reckless way that creates a high risk of death or great bodily injury; and those acts caused the death of another person.

The act of conducting climate research from a skeptic view might be held to be performed recklessly and to create a risk of death or great bodily injury, but only if the research chose only data that confirmed the pre-conceived conclusion, or improper analyses were performed, or unwarranted conclusions were drawn from the data and analysis, or some combination of all the above. It is notable that the peer-review process exists to eliminate, or at least minimize, such research techniques because they lead to bad science and poor policy decisions when those policy decisions are informed by the bad science. The trial attorneys would identify and present evidence to show what the skeptic climate research used as data, the analysis techniques, and the conclusions. It seems more likely that the skeptics have an excellent claim to performing good science, with the many hundreds of peer-reviewed publications that support the claim of no alarm is justified. Indeed, the NIPCC reports show exactly such skeptical publications.

Third and finally, the research must have caused the death of another person, but in this case, as discussed below in Voluntary Manslaughter, linking any human deaths to research into climate change is extremely unlikely. Even though the concentration of carbon dioxide continues to increase in the atmosphere, severe weather events are declining in number and intensity.

The crime of Involuntary Manslaughter, by criminal negligence, would very likely not be provable beyond a reasonable doubt. First, there are no deaths that can be causally linked to such research, and second, the research has not been conducted in a reckless manner designed to create a risk of serious bodily harm or death.

Voluntary Manslaughter

In California, Voluntary Manslaughter has the following elements that must be proven beyond a reasonable doubt, for a conviction to be had.

1. The defendant intentionally committed an act that caused the death of another person;

2. The natural consequences of the act were dangerous to human life;

3. At the time he acted, he knew the act was dangerous to human life; and

4. He deliberately acted with conscious disregard for human life.

Causation

In California, an act or omission causes injury or death if the injury or death is the direct, natural, and probable consequence of the act or omission, and the injury or death would not have happened without the act or omission. A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, the jury is to consider all the circumstances established by the evidence. There may be more than one cause of injury or death. An act or omission causes injury or death only if it is a substantial factor in causing the injury or death. A substantial factor is more than a trivial or remote factor. However, it does not have to be the only factor that causes the injury or death.

See: California Pen. Code § 192(a); People v. Rios (2000) 23 Cal.4th 450, 463, 469 [97 Cal.Rptr.2d 512, 2 P.3d 1066].

With the legal rules above set forth, it is possible to examine the claim that it is criminal negligence to support research into climate change to show no reason for alarm exists.

First, did defendant, who supported climate research to show no reason for alarm exists, intentionally commit an act that caused injury or death to another person?

It must be determined if there were any deaths. If no deaths exist, then there is no need to examine any of the additional elements. At this writing, first quarter of 2014, there appear to be no human deaths that are attributable to man-made climate change. However, a World Health Organization study from 2009 concluded that 140,000 human deaths per year are attributable to increased warming since the 1970s. The events that caused the deaths are rather vague, but it appears the WHO claims events such as floods, severe storms, and a 2003 heat wave in Europe. Yet, the same organization admits that measuring the health effects of climate change can only be very approximate. WHO also states that there are benefits to human life from warming, as fewer deaths occur that can be attributed to cold weather. see link

Allowing for the WHO estimate to be true, that is, 140,000 deaths occurred each year from various weather events, the question to be answered is then, is there a causal link between the severe weather events and the almost trivial increase in global temperatures? A jury would be presented with expert testimony on the subject, most likely that no credible scientist holds the view that there is any link between the trivial amount of warming and weather events. In fact, almost every form of weather event can be shown to be either decreasing, such as tropical storms or hurricanes, or to be no worse today than those that occurred in the past. Droughts, floods, heat waves, all have been much worse in the past compared to today.

From the definition of Causation above, “an act or omission causes injury or death if the injury or death is the direct, natural, and probable consequence of the act or omission, and the injury or death would not have happened without the act or omission.”

Two questions then must be asked, first, were the 140,000 weather-related deaths the direct, natural, and probable consequence of research into climate change to show that no cause for alarm exists? And, second, would the 140,000 weather-related deaths have happened without research into climate change to show that no cause for alarm exists?

To answer the first question, on deaths being the direct, natural, and probable consequence of climate research, it must be established whether those who died did so because they had no idea that the weather events would be more severe, more intense, and more deadly. If the only word issuing from the climate researchers was that there is no cause for alarm, that proposition might be true. However, the alarmists from above have for many years clogged the media, the airways, and the internet blogs, with dire predictions of doom. The fact is, and this would be introduced in a trial, that warmists claim almost a consensus exists that global warming is not only real, but man’s fossil fuel consumption is the cause. That alleged consensus is found in print, in broadcasts, and electronically on the internet. It is unlikely that a jury would concluded that any weather-related deaths were the result of skeptical climate research. The fact that, for example, hurricanes have decreased in intensity and number over the past 40 years is not debatable, it is a fact. Similarly for tornadoes, droughts, and heat waves. see link and “Global Hurricane Frequency”

From the causation definition, the jury is to consider all the circumstances established by the evidence. This means that the conclusions by the leading warmists, the IPCC, must be considered. The IPCC admits that there is no conclusive evidence to link severe weather events with global warming. Indeed, it would be hard to conclude otherwise, with the hard evidence that hurricanes are less frequent and less intense, and all the other severe weather simply not matching known events from earlier years. The key evidence on this is the warmists’ admission that events that occurred before 1970 were not related at all to man’s fossil fuel consumption; instead, they were entirely of natural causes. Thus, all heat waves such as the long and strong heat wave of the 1930s, all droughts including the severe drought of the 1950s, and the many strong hurricanes pre-1970 all were natural occurrences.

It must be concluded, then, that element 1 from above is not true; it cannot be proven beyond a reasonable doubt. Even if defendant intentionally performed skeptical climate science research, that research could not have caused the death of another person.

In a criminal trial, the accused is acquitted if any element is not proven beyond a reasonable doubt. However, the defense attorney cannot know which, if any, of the elements will be found not proven to that standard, so he continues on to the other elements. One never knows what a jury will decide until the verdict is read.

Moving then to the second element, the State must prove that the natural consequences of the act were dangerous to human life. As above, the act is skeptical climate research. What are the natural consequences of skeptical climate research? As time has shown, skeptical climate research has produced many hundreds of peer-reviewed and published scholarly papers that show there is no cause for alarm due to man’s fossil fuel consumption. Also, since there is no causal link between such research and human deaths, there can be no danger to human life. The element, too, must fail in the State’s case. (see link) (and this link to hundreds of peer-reviewed skeptical papers)

The third element of Voluntary Manslaughter is: at the time he acted, he knew the act was dangerous to human life. Again, the act is performing skeptical climate research. The jury would be told that the results of the skeptical climate research is that there is no danger. The reasons for that conclusion would be explained in great detail, with large and colorful graphs and visual displays to emphasize each point. The defendant, who performed the skeptical climate research, would know quite the opposite: he would know that there was no danger to human life. Element three then would also fail in the State’s case.

Finally, the fourth element is: he deliberately acted with conscious disregard for human life. On this point, the State must prove that defendant performed his skeptical climate research knowing that human life would be at stake, and consciously disregarded that threat to life. Quite the contrary exists, however. Skeptical research has shown that there is no cause for alarm, for the reasons outlined above.

The inevitable conclusion, then, would be a verdict of Not Guilty on a charge of voluntary manslaughter for those who perform skeptical climate research. Each of the four required elements is found in the negative, that is, the State cannot prove the element exists beyond a reasonable doubt.

It is interesting, however, that those who seek an arrest and conviction for criminal negligence, or voluntary manslaughter, want the crime to be charged before the victims are dead. The usual cry from the alarmists uses the future tense, as polar ice caps WILL melt, and sea levels WILL rise. Or, more often, the conditional form is used, saying sea levels COULD rise by 20 feet in 100 years.

There are some crimes where a conviction may be obtained without a death, such as attempted murder, but there is no crime in California of conspiracy to commit murder ( People v. Iniguez (2002) 96 Cal.App.4th 75). There is also a crime of attempted voluntary manslaughter, but it requires the fact of heat of passion that does not arise in the climate research context (People v. Van Ronk (1985) 171 Cal.App.3d 818).

Conclusion:

The facts related to the conduct of climate research that results in a conclusion of no alarm is warranted do not yield a conviction on a charge of voluntary manslaughter, or criminal negligence as described above. The facts show that, even if some people have died from violent weather events, those weather events are in no way connected with man-made global warming that results from the consumption of fossil fuels. The clear evidence shows that hundreds of peer-reviewed scholarly papers have been published that show there is no reason for concern, indeed, the leading body of warmist scientists also conclude there is no link between global warming and severe weather. For a criminal conviction, each element of a crime must be proven beyond a reasonable doubt. Here, each element of the charge would be shown to be discredited, not proven at all. The exception is that a lawful act, climate research, was committed, however, that act was performed in a lawful manner.

The above is written to provide an overview of a general area of the law, and is not intended, nor is it to be relied on, as legal advice for a particular set of facts. Specific legal advice is available from Mr. Sowell and anyone who seeks such advice is encouraged to contact Mr. Sowell.

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