by Shannon L. Goessling


Goessling is executive director and chief legal counsel for Southeastern Legal Foundation, a constitutional public interest law firm and policy center founded in 1976.

The “truth” about climate change is just that – the climate is changing.  Always has been, and always will.

So it comes as no surprise that, despite recent protests challenging whether scientists in the 1970s did, in fact, warn of global cooling, the climate change phenomenon has haunted the imagination of scientists, policymakers, environmentalists and, now, lawyers.

“Global warming” as a scientific concept is now in the philosophical ascendancy, with public debate raging over whether human activity is a cause of the phenomenon.  It wasn’t always so.  Contrary to the Monday-morning global warming quarterbacks who now assert that “global cooling” wasn’t really a massive, legitimate concern among the world’s scientists, the 1970s and 80s were filled with dire predictions from many of the same sources that would go on to offer an opinion about today’s global warming concept.  A 1976 BusinessWeek article summarizes the state of affairs in that decade: 

            Climatologists have advanced a number of theories to explain why the world's

            climate is getting worse. The dominant school maintains that the world is

            becoming cooler, resulting in a loss of arable land at the higher latitudes and

            major shifts in rainfall patterns. A second school believes the world is warming,

            with equally serious consequences.

            --Business Week, "The world's climate is getting worse" August 2, 1976


In the 1970s, major news publications, like TIME, Newsweek and National Geographic, and significant scientific journals published reports about global cooling.  The reports warned that global cooling – a “new ice age” – would devastate food supplies, slash growing seasons across the globe, and would result in widespread famine.  Leading scientific organizations, from the National Academy of Sciences to the National Oceanic and Atmospheric Administration’s Center for Climatic and Environmental Assessment, warned of unknown dangers related to the cooling phenomenon.

So serious was the threat that innovative thinkers developed plans to melt Arctic glaciers by covering them in black soot.  Additional plans were offered to divert arctic rivers in the hope that water flows would spread the cooling effect over a broader area.  No less a scientific luminary than Carl Sagan, the world-famous physicist who hosted the popular 1980s science series Cosmos, suggested the burning and clear-cutting of forests might lead to a new ice age.  His suggestion:  the intentional release of greenhouse gas emissions to counteract the cooling.

Needless to say, the Great Debate continues.  Esteemed scientific bodies with acronym monikers float reports and analysis suggesting both cooling and warming.  Within the past six months, according to experts, the globe has experienced record-setting warming and record-setting cooling (enough to offset the past 100 years of warming, according to meteorological measures).  So, what’s a person to do?

According to former U.S. Vice President Al Gore, “the debate is over.”  He believes – along with a large number of his co-Nobel Prize recipients who participated in the UN’s Intergovernmental Panel on Climate Change (IPCC) report – that his version of human causation-driven global warming has carried the day.  All mounting evidence to the contrary has been pilloried as corporate-driven falsehoods designed to maintain the status quo.

Some top scientists, however, beg to differ.  Whether under the auspices of academia, or in government, many scientists are pointing to faulty computer models that “predict” global warming calamity.  Add to that, global cooling is back on the table, thanks in large part to the world’s four top climate monitoring centers, which registered record cold over the past few months.  And let's not forget, many IPCC-reporting scientists vocally disagree with the conclusions in the final report that greenhouse gas emissions are responsible for current global warming trends.

Isn’t this exactly what is supposed to happen?  Aren’t we supposed to have public debate over the big issues, with competing viewpoints and evidence introduced to influence not only public opinion, but also (and especially) the opinions of our government lawmakers and regulators?

Not according to the lawyers representing the Alaskan Eskimo village of Kivalina.  If they have their way, there will be no dispute, no counterarguments, no public debate on global climate change.  In short, there will be silence – at the point of the proverbial gun held by the U.S. courts.

The Kivalina lawyers have alleged the 24 energy producers they’ve sued are engaged in a robust, clandestine conspiracy to promote ‘bad science’ and to cover up their global warming liability.  Every industry trade group, business association, and public policy organization that expresses any opinion, cites any scientific evidence, or dares to question the assumptions of the Al Gore-driven global warming model is part of the conspiracy.  As such, the company-defendants and the organizations are potentially liable.  Legally liable.  Subject to damage awards.  Subject to court-ordered cease-and-desist orders.  Subject to court-enforced silence.

And why is silence so important to the lawyers?  The give-and-take of public debate on the science and policy of global climate change gets in the way.  After all, you can’t declare unconditional victory when the other side remains vocally in the mix.

As the venerable Supreme Court Justice Louis Brandeis wrote decades ago, “[The Founding Fathers] believed that freedom to think as you will and speak as you think are means indispensable to the discovery and spread of . . . truth . . . the remedy to be applied is more speech, not enforced silence.”

With mega-lawsuits, pending legislation, and a daily news barrage on climate change, this is the best time for public debate.  The more information available - good and bad - the better the chance for responsible long-term policymaking.  The less information available - good and bad - the chances increase dramatically that knee-jerk, short-term policies will intervene.  The climate change stakes are huge - hundreds of billions in potential damages, millions of jobs lost and new jobs created, the future of "energy independence" for the U.S., and the development of environmental policies that address the "whole picture."  In this case, with this issue, silence is not golden.