Note 1: late in the afternoon on November 20, 2010, Mr. Anthony Watts of the highly popular science blog WattsUpWithThat.com included most of what follows in a post titled "Surreality: CARB contemplating a “skeptical science” regulation with penalties."
California's Air Resources Board, ARB or sometimes CARB, this past week sent an email to those on a number of listserves to alert them that CARB proposes to have enacted a regulation that, among other things, would make it illegal to willfully and knowingly make any materially false statement or representation to the Board (ARB) or the Board's staff. Penalties for violating the new regulation are not as yet specified. The proposed regulation may be found here.
The proposed regulation is presented in part below:
"Proposed 17 CCR §95020
Prohibition on false statements
(a) In any matter within the jurisdiction of the Board, no person may knowingly and
willfully do any of the following when transacting any business with or communicating
in any manner with the Board or the Board’s staff:
(1) falsify, conceal, or cover up by any trick, scheme, or device a material fact;
(2) make any materially false, fictitious, or fraudulent statement or representation;
(3) make or use any false writing or document knowing the same to contain any
materially false, fictitious, or fraudulent statement or entry; or
(4) omit material facts from a communication with an intent to mislead."
This appears to be based on a similar Federal law (18 USC 1001), that provides for a fine and up to 5 years imprisonment for knowingly and willfully providing false information of a material fact, among several other things, to any part of the Federal government. (paraphrased). see e.g. http://vlex.com/vid/sec-statements-entries-generally-19190798
As just a sample of the issues, the key words are:
“Knowingly”
“Willfully”
“False”
“Material”
Each of those words has a specific meaning, usually hammered out in court cases. CARB cannot just arbitrarily choose definitions of such words, to suit their purpose. They must comply with the law and legal precedents. Where this gets very, very interesting is in the definition of “false.” The issue is dealing with scientific information, and science is fairly fuzzy. There are uncertainties in data measurements, to name merely one of several problem areas, as well as experimental design errors, choice of data analysis methods, interpretation of results, etc.
There are almost always factions of scientists that can be found to support almost any view – although a few viewpoints are appropriately discredited as crackpot - such as perpetual motion, or efficiencies greater than 100 percent. The fact is that new data is discovered or developed; new and better explanations for old data are developed; old theories discarded and new theories put forward, showing that science is not settled and that the definition of “false” is slippery when applied to a statement related to science.
There are other problems with a criminal falsity statute, such as applicability to various situations, and exemptions, also conformity with the Constitution and various standards embodied there. In addition, there are fraud claims that can arise if funding for scientific research led to false statements based upon the research findings.
The word "Knowingly" is the topic of much debate and investigation in criminal matters related to similar statutes. The popular media such as newspapers, TV, radio, and internet expend many words on the issues of who knew what, and when did they know it. In this context, as science is continually changing, it would be not only unfair but an injustice to penalize a person for holding a view that later turns out to be wrong.
Also, this could easily be turned around on CARB, by asserting that the “science” they relied on in many of their regulations was false information, knowingly and willfully presented.
A regulation such as this may be considered similar to a criminal statute, where, for each element of the alleged crime, the prosecution must offer admissible evidence for and prove each element to the required standard. Stated another way, if any element cannot be adequately proven, there can be no conviction. That is the reason I chose to focus on the “false” requirement, as that one will be very difficult to prove for the reasons I gave above.
An element of a crime, in this context, is each thing that must be proven for the accused person to be convicted of the crime.
However, there is the issue of whether the communication to CARB was a statement, or was it a question, or an opinion? Also, was the communication actually a fact, or was it dressed in language to indicate there are a range of uncertainties?
The proposed statute also uses the word fraudulent, which has in itself a long list of elements that must be proven. In short, a charge of fraud is very difficult to prove because the accused’s intent must be proved.
This regulation could very well have the effect of intimidating dissenters such that they will not speak or communicate to CARB. That fact, alone, could result in the law being challenged in court as a chilling effect on what should be Free Speech under the U.S. Constitution.
It would be an interesting case, as even if all the other elements are proven to the appropriate legal standard, the “false” element may be a matter of opinion, not fact. When reputable scientists disagree, which one is to be labeled “false,” and the other “fact?” When one group agrees, and they are scientists, is another group of non-scientist dissenters not allowed to speak? The entire Climategate scandal illustrates this point. If non-scientists were muzzled, where would we be?
In addition, the proposed regulation raises U.S. Constitutional issues, particularly, impermissible restriction of Free Speech based on content. While an exhaustive discussion on this very important matter is beyond the scope of this blog post, it should be noted that the issue has been raised and handled before. see e.g. these articles.
What is required is some brave organization, or person, who is willing to risk the penalties, whatever they turn out to be, if convicted, to make the case before CARB that their IPPC-following science is wrong. The 60′s are upon us again. Many a protester went to jail in the 60′s in the USA to prove the strength of their beliefs.
Disclaimer: nothing written above is intended to be, nor is it, legal advice. Anyone requiring legal advice should consult a qualified attorney. It is merely a private opinion discussing general aspects of a legal issue.
Note 2: I would like to acknowledge the proof-reading and editing of those of you who cleaned up some of what I had originally written before its posting on WUWT. Thank you for that. Although you are un-named here, I believe it reads much better with those minor edits.
Roger E. Sowell, Esq.
Marina del Rey, California
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