Column: A Stanford professor didn’t just debate his scientific critics — he sued them for $10 million
In 2015, Mark Z. Jacobson of Stanford and several colleagues predicted that wind, solar and hydroelectric power could provide 100% of the energy demand in each of the 48 contiguous American states, “at low cost,” by about 2050.
When their conclusions were published in the prestigious Proceedings of the National Academy of Sciences, they created a sensation. Jacobson seemed to have produced a road map toward a power grid based on fully renewable sources, without even using “natural gas, biofuels, nuclear power, or stationary batteries,” his paper stated.
Jacobson was widely quoted in the scientific and law press. Climate activists including Sen. Bernie Sanders and actor Mark Ruffalo picked up on his vision. He boasted of having laid to rest all the usual doubts about wind, solar and water power.
“What we’ve shown is that all the claims that moving to 100% renewables is just too expensive, it’s impossible, the lights are gonna go out — they’re just not true,” Jacobson, a professor of civil and environmental engineering at Stanford, told MIT Technology Review.
There’s an important scientific debate that should be happening.... It’s not happening, because this guy decided to sue the National Academy of Sciences.
David Victor, UC San Diego
If it seemed too good to be true, it’s because, a new report stated, it was. A critical paper published in the same journal in June, which listed 21 environmental experts as authors, picked apart Jacobson’s conclusions and his methods in painstaking detail. Jacobson was granted space to come back at his critics in the very same issue.
So far, so good. That’s the way peer-reviewed research journals are supposed to work: with claims, counterclaims and data, all laid out in public to be judged by the scientific community at large.
But then the dispute took an ugly turn. On Sept. 29, Jacobson sued the National Academy of Sciences and the lead author of the critical paper, environmental scientist Christopher T.M. Clack, for defamation. In the lawsuit, filed in a Washington, D.C., court, he’s demanding $10 million in damages from the Academy. Responses from the defendants are due in court Monday.
The Jacobson lawsuit is only the latest example of a scientific dispute leaching into the court system. Typically, these lawsuits involve corporations targeting scientists whose research uncovers shortcomings in the companies’ products and are designed to intimidate, rather than establish the truth.
That was the case with a lawsuit filed last year by supplement maker Hi-Tech Pharmaceuticals against Pieter A. Cohen of Harvard Medical School, who had published a peer-reviewed study identifying an illegal amphetamine-like substance in the company’s products. Cohen prevailed after a seven-day jury trial in federal court in Massachusetts. By then, the FDA already had ordered Hi-Tech to recall the products.
“Litigation in the scientific domain raises serious issues of freedom of scientific inquiry,” says Nicholas Bagley, a University of Michigan law professor who co-wrote a recent analysis of such cases with Cohen and Aaron Carroll of Indiana University. “It can make it harder to do controversial research that has real-world resonance that people actually care about.”
Litigation instantly raises the stakes in any dispute. It can force a settlement, but it also can make reaching an out-of-court settlement harder. In a case like this, which involves scientific data that by their nature are subject to conflicting interpretations, the chances that a jury or judge can resolve the disagreement are nil.
On the surface, the Clack paper made assertions about Jacobson’s methods and models that may be verifiably false, though it’s another matter entirely to say they were made “maliciously,” as Jacobson’s lawsuit asserts. That’s not to say the Clack critique was tactful. Indeed, it was withering, asserting that the Jacobson paper “contains modeling errors; incorrect, implausible, and/or inadequately supported assumptions; and the application of methods inappropriate to the task.”
The National Academy, furthermore, did publish Jacobson’s detailed rebuttal, and there’s no reason to doubt that its journal and other peer-reviewed publications would have hosted further exchanges between the two sides.
But it’s disingenuous for Jacobson to argue that he’s not litigating science. Science is at the heart of the dispute between Jacobson and Clack, who was listed as a scientist at the National Oceanic and Atmospheric Administration when the paper was published and is currently CEO of Vibrant Clean Energy, a Colorado firm he founded in 2015.
“A large part of the substantive debate is about what we identified as a series of errors and misunderstandings [in Jacobson’s paper] about how hydro dams operate in the real world,” David Victor, an expert on energy and environmental law at UC San Diego and coauthor of the Clack paper, told me. (Victor isn’t a defendant in Jacobson’s lawsuit.) Unused hydro capacity can’t be exploited to the extent Jacobson proposes, he says. “Hydro is renewable, but it’s not completely environmentally benign, and when you look at it in the real world, it’s hard to scale.”
It’s not hard to see why Jacobson’s original paper fostered so much excitement. As he observed in Technology Review, the major rap against wind and solar power is that they’re intermittent — they generate electricity only when the wind blows or the sun shines. That means keeping electricity flowing would require massive, expensive batteries in one form or another. Jacobson argued that these drawbacks could be overcome in part by more hydro power.
Jacobson’s lawsuit underscores how litigation stifles scientific debate. He and Clack both declined to comment on the case or the underlying dispute, referring me to their lawyers instead. Clack’s Washington lawyer, Drew Marrocco, sent me a statement saying that Clack “stands behind the integrity of the paper he submitted” and that he will “oppose any attempt to use the litigation process to silence respected scientists and experts.”
UCSD’s Victor says the lawsuit has had a chilling effect on the very debate at its core. “Even when I’m talking with other scientists in an on-the-record setting, I find myself being careful about that I say because there’s the threat of legal action out there,” he told me. “That’s the exact opposite incentive that you want in science. Science is about disputes and debates over the facts and the analysis of the facts. When you put the shadow of a $10-million lawsuit over that, people can’t focus on the facts.”
Jacobson’s lawsuit, like others over scientific claims, places the court system itself in a delicate position. “We don’t want to categorically foreclose the possibility of a lawsuit that might be directed at scientists who abuse their trust,” Bagley says. “But we also don’t want scientists routinely to be pulled into court over bona fide scientific disputes, however heated they may get.” It’s up to judges, he says, to weed out frivolous claims that boil down to scientific disagreements, but it’s not easy for them to know where to strike the balance.
All that’s clear in the Jacobson case is that the focus is now on legal technicalities, not the techniques or the knowledge of scientists.
“There’s an important scientific debate that should be happening here,” Victor says. “And it’s not happening, because this guy decided to sue the National Academy of Sciences and the lead author of the paper.”