Judge deliberates in lawsuit against researcher who critiqued a scientific paper

By Joan Conrow

February 22, 2018

UPDATE: Mark Jacobson announced he has dropped the lawsuit.

Should a Stanford University professor be allowed to sue a researcher who published a scientific critique of his work in a leading journal? That question is now before a Washington, D.C. judge, who this week heard arguments for and against allowing a $10 million defamation lawsuit to move forward.

At issue is one of the tenets of the scientific process: vigorous expert debate on the merits of published research.

Stanford University Professor Mark Jacobson claims he was professionally damaged when the Proceedings of the National Academy of Sciences (PNAS) published a paper by energy researcher Christopher Clack that claimed to find significant errors in a 2015 paper Jacobson published in the same journal.

Jacobson’s original paper contended that the US electric grid could feasibly convert fully to renewables — wind, hydro and solar — by 2050, and has been widely cited by leading climate campaigners such as Al Gore.

In suing both National Academy of Sciences (publisher of PNAS) and Clack personally, Jacobson is seeking $10 million in damages and a retraction of the article, which maintained that Jacobson had made a significant modeling error and failed to explain a key assumption about how huge amounts of new hydro projects would be needed to balance the intermittency of renewables.

Attorneys for Clack and the National Academy of Sciences (NAS) filed separate motions to dismiss the lawsuit, which were heard in the District of Columbia Superior Court on Tuesday. They argued that Jacobson’s action was intended to silence a vocal critic, which is a violation of the District’s anti-SLAPP — strategic lawsuit against public participation — law.

Many in the scientific community have lined up behind Clack, saying Jacobson’s lawsuit will have a chilling effect on the scientific process by raising the risk of incurring legal damages and attorney’s fees if researchers scrutinize and critique one another’s work. Such debate is intended to occur in academic journals, they say, not civil courtrooms.

As E&E News reported, Clack’s attorney, Drew Marrocco, also raised that point:

“Is it really worth taking on a controversial position or taking on famous scientists?” Marrocco asked, describing the risk assessment researchers would have to make. Allowing this type of litigation to proceed would “basically grind scientific debate to a halt,” he added.

Jacobson’s attorney, Paul Thaler, countered that the anti-SLAPP law was intended to protect those with little power, such as consumers expressing opinions, from expensive lawsuits filed by powerful corporations. He said the law does not pertain to an individual scientist trying to protect his reputation from those who “knowingly published lies.”

Jacobson maintains he’s embroiled in a factual dispute, not a scientific dispute. In his complaint, Jacobson contends that he addressed Clack’s concerns about his hydro assumptions during a phone call and email exchange. Furthermore, Clack and his co-authors produced their paper without ever requesting to see Jacobson’s model output, he alleges.

The complaint further claims that Clack “knew and was informed prior to publication that many of the statements in the [paper] were false,” and that NAS “knowingly and intentionally published false statements of fact” in its PNAS journal despite being aware of Jacobson’s complaints.

Other scientists have criticized Jacobson’s decision to single out Clack, who was one of 21 co-authors on the paper, but is not a tenured professor or otherwise affiliated with an institution that would take on his legal defense. The critics include Danny Cullenward, who is an attorney, as well as a research associate with the Carnegie Institution for Science and energy economist at the Near Zero think tank.

“That means Dr. Clack is personally responsible for hiring a lawyer and paying for that,” Cullenward told the Stanford Daily. “And that’s where the chilling effect comes in. Even if you win in court, that can set you back many thousands of dollars.”

Clack runs a small energy consulting firm in Colorado.

Jacobson’s lawsuit prompted an online petition denouncing the legal action under the title “don’t sue science” which has garnered signatures from numerous countries around the world.