State Of Fear

State Of Fear Page 11

"I have no doubt that we will win this case," Balder said. "No doubt whatsoever. But I don't want my people thinking that way! I want them worried as hell. I want my team running scared before any trial. And especially this one. We are bringing this suit against the EPA, and in anticipation of that, the agency has retained outside counsel in the person of Barry Beckman."

"Whew," Evans said. "Big guns."

Barry Beckman was the most famous litigator of his generation. A professor at Stanford Law School at twenty-eight, he left the university in his early thirties to go into private practice. He had already represented Microsoft, Toyota, Phillips, and a host of other multinationals. Beckman had an incredibly agile mind, a charming manner, a quick sense of humor, and a photographic memory. Everyone knew that when he argued before the Supreme Court (as he had done three times already) he cited document page numbers as he answered the Justices' questions. "Your honor, I believe you will find that in footnote 17 on the bottom of page 237." Like that.

"Barry has his faults," Balder said. "He has so much information at his fingertips that he can easily slip into irrelevance. He likes to hear himself talk. His arguments drift. I have beaten him once. And lost to him, once. But one thing is sure: We can expect an extremely well-prepared opposition."

"Isn't it a little unusual to hire an attorney before you've even filed?"

"It's a tactic," Balder said. "The current administration doesn't want to defend this lawsuit. They believe they will win, but they don't want the negative publicity that will accompany their brief against global warming. So they hope to intimidate us into dropping the case. And of course we never would. Especially now that we are fully funded, thanks to Mr. Morton."

"That's good," Evans said.

"At the same time, the challenges are significant. Barry will argue that there is insufficient evidence for global warming. He will argue that the supporting science is weak. He will argue that the predictions from ten and fifteen years ago have already been shown to be wrong. And he will argue that even leading proponents of global warming have publicly expressed doubts about whether it can be predicted, whether it is a serious problemand indeed, whether it's occurring at all."

"Leading proponents have said that?"

Balder sighed. "They have. In journals."

"I've never read anything of that sort."

"The statements exist. Barry will dig them out." He shook his head. "Some experts have expressed different views at different times. Some have said rising carbon dioxide isn't a big problem; now they say it is. So far, we don't have a single expert witness that can't be turned. Or made to look very foolish on cross."

Evans nodded sympathetically. He was familiar with this circumstance. One of the first things you learned in law school was that the law was not about truth. It was about dispute resolution. In the course of resolving a dispute, the truth might or might not emerge. Often it did not. Prosecutors might know a criminal was guilty, and still be unable to convict him. It happened all the time.

"That's why," Balder said, "this case is going to hinge on the sea-level records in the Pacific. We are collecting all available data records now."

"Why does the case hinge on that?"

"Because I believe," Balder said, "that this is a case we should bait and switch. The case is about global warming, but that's not where the emotional impact is for a jury. Juries aren't comfortable reading graphs. And all this talk about tenths of a degree Celsius goes right over their heads. It's technical detail; it's the quibbles of experts; and it's incredibly boring for normal people.

"No, the jury will see this as a case about helpless, victimized, impoverished people being flooded out of their ancestral homelands. A case about the terror of sea levels rising precipitouslyand inexplicably with no conceivable cause unless you accept that something extraordinary and unprecedented has affected the entire world in recent years. Something that is causing the sea levels to rise and to threaten the lives of innocent men, women, and children."

"And that something is global warming."

Balder nodded. "The jury will have to draw their own conclusions. If we can show them a convincing record of rising sea levels, we will be on very strong ground. When juries see that damage has been done, they are inclined to blame somebody."

"Okay." Evans saw where Balder was going. "So the sea-level data is important."

"Yes, but it needs to be solid, irrefutable."

"Is that so hard to obtain?"

Balder cocked an eyebrow. "Mr. Evans, do you know anything about the study of sea levels?"

"No. I just know that sea levels are rising around the world."

"Unfortunately, that claim is in considerable dispute."

"You're joking."

"It is well known," Balder said, "that I have no sense of humor."

"But sea level can't be disputed," Evans said. "It's too simple. You put a mark on a dock at high tide, measure it year after year, watch it go up amp;I mean, how difficult can it be?"

Balder sighed. "You think sea level is simple? Trust me, it's not. Have you ever heard of the geoid? No? The geoid is the equipotential surface of the earth's gravitational field that approximates the mean sea surface. That help you?"

Evans shook his head.

"Well, it is a core concept in the measurement of sea levels." Balder flipped through the stack of papers in front of him. "How about glacio-hydro-isostatic modeling? Eustatic and tectonic effects on shoreline dynamics? Holocene sedimentary sequences? Intertidal foraminifera distributions? Carbon analysis of coastal paleoenvironments? Aminostratigraphy? No? Not ringing a bell? Let me assure you, sea level is a fiercely debated specialty." He tossed the last of the papers aside. "That's what I'm working through now. But the disputes within the field give added importance to finding an unimpeachable set of data."

"And you are obtaining this data?"

"Waiting for them to arrive, yes. The Australians have several sets. The French have at least one in Moorea and perhaps another in Papeete. There is a set that was funded by the V. Allen Willy Foundation, but it may be of too short a duration. And other sets as well. We will have to see."

The intercom buzzed. The assistant said, "Mr. Balder, it's Mr. Drake on the line, from NERF."

"All right." Balder turned to Evans, extended a hand. "Nice talking with you, Mr. Evans. Again, our thanks to George. Tell him any time he wants to have a look around, he can drop by. We are always hard at work here. Good luck to you. Close the door on your way out."

Balder turned away, picking up the phone. Evans heard him say, "Well, Nick, what the fuck is going on at NERF? Are you going to fix this for me, or not?"

Evans closed the door.

He walked out of Balder's office with a sense of nagging unease. Balder was one of the most persuasive men on the planet. He had known Evans was there on behalf of George Morton. He knew Morton was on the verge of making a huge contribution to the lawsuit. Balder should have been totally upbeat, radiating confidence. And he had, indeed, begun that way.

I have no doubt we will win this lawsuit.

But then, Evans had heard:

The challenges are significant.

I do not have a single expert witness who can't be turned.

This is a case we should bait and switch.

This case will hinge on sea-level records.

Sea level is a fiercely debated specialty.

We will have to see.

It certainly wasn't a conversation calculated to raise Evans's level of confidence. Neither, for that matter, was the video session he'd had with Jennifer Haynes, discussing the scientific problems the lawsuit would face.

But then, as he considered it, he decided that these expressions of doubt were actually a sign of confidence on the part of the legal team. Evans was an attorney himself; he had come to learn the issues surrounding the trial, and they had been forthright with him. It was a case they would win, even though it would not be easy, because of the complexity of the data and the short attention span of the jury.

So: would he recommend that Morton continue?

Of course he would.

Jennifer was waiting for him outside Balder's office. She said, "They're ready for you back in the conference room."

Evans said, "I'm really sorry, I can't. My schedule amp;"

"I understand," she said, "we'll do it another time. I was wondering if your schedule was really tight, or whether there was time for you and me to have lunch."

"Oh," Evans said, without missing a beat, "my schedule isn't that tight."

"Good," she said.

Chapter 13

CULVER CITY

TUESDAY, AUGUST 24

12:15 P.M.

They had lunch in a Mexican restaurant in Culver City. It was quiet. There were a handful of film editors in the corner, from nearby Sony Studios. A couple of high school kids necking. A group of older women in sunhats.

They sat in a corner booth and both ordered the special. Evans said, "Balder seems to think the sea-level data is key."

"That's what Balder thinks. Frankly, I'm not so sure."

"Why is that?"

"Nobody's seen all the data. But even if it's high quality, it needs to show a substantial sea-level rise to impress a jury. It may not."

"How could it not?" Evans said. "With glaciers melting, and breaking off Antarctica"

"Even so, it may not," she said. "You know the Maldive Islands in the Indian Ocean? They were concerned about flooding, so a team of Scandinavian researchers came in to study sea levels. The scientists found no rise in several centuriesand a fall in the last twenty years."

"A fall? Was that published?"

"Last year," she said. The food came; Jennifer gave a dismissive wave of her hand: enough shop talk for now. She ate her burrito with gusto, wiping her chin with the back of her hand. He saw a jagged white scar running from her palm down the underside of her forearm. She said, "God, I love this food. You can't get decent Mexican food in DC."

"Is that where you're from?"

She nodded. "I came out to help John."

"He asked you?"

"I couldn't turn him down." She shrugged. "So I see my boyfriend on alternate weekends. He comes out here, or I go back there. But if this trial goes forward, it will be a year, maybe two years. I don't think our relationship will make it."

"What does he do? Your boyfriend."

"Attorney."

Evans smiled. "Sometimes I think everyone's an attorney."

"Everyone is. He does securities law. Not my thing."

"What's your thing?"

"Witness prep and jury selection. Psychological analysis of the pool. That's why I'm in charge of the focus groups."

"I see."

"We know that most people we might put on the jury will have heard of global warming, and most will probably be inclined to think it is real."

"Jesus, I'd hope so," Evans said. "I mean, it's been an established fact for the last fifteen years."

"But we need to determine what people will believe in the face of contrary evidence."

"Such as?"

"Such as the graphs I showed you today. Or the satellite data. You know about the satellite data?"

Evans shook his head.

"The theory of global warming predicts that the upper atmosphere will warm from trapped heat, just like a greenhouse. The surface of the Earth warms later. But since 1979 we've had orbiting satellites that can continuously measure the atmosphere five miles up. They show that the upper atmosphere is warming much less than the ground is."

"Maybe there's a problem with the data"

"Trust me, the satellite data have been re-analyzed dozens of times," she said. "They're probably the most intensely scrutinized data in the world. But the data from weather balloons agree with the satellites. They show much less warming than expected by the theory." She shrugged. "Another problem for us. We're working on it."

"How?"

"We think it'll prove too complex for a jury. The details of MSUsmicrowave-sounding units, cross-track scanners with four-channel radiance analysisand the questions about whether channel 2 has been corrected for diurnal drifts and inter-satellite offsets, time-varying nonlinear instrumental responses amp;We hope it will make them throw up their hands. Anyway. Enough of all that." She wiped her face with her napkin and again he saw the white scar that ran down the underside of her arm.

"How'd you get that?" he said.

She shrugged. "In law school."

"And I thought my school was tough."

"I taught an inner-city karate class," she said. "Sometimes it went late. You want any more of these chips?"

"No," he said.

"Shall we get the check?"

"Tell me," he said.

"There's not a lot to tell. One night, I got in my car to drive home, and a kid jumped in the passenger seat and pulled a gun. Told me to start driving."

"Kid from your class?"

"No. An older kid. Late twenties."

"What'd you do?"

"I told him to get out. He told me to drive. So I started the car, and as I put it in gear I asked him where he wanted me to go. And he was stupid enough to point, so I hit him in the windpipe. I didn't hit him hard enough, and he got off a round, blew out the windshield. Then I hit him again with my elbow. Couple, three times."

"What happened to him?" he said.

"He died."

"Jesus," Evans said.

"Some people make bad decisions," she said. "What're you staring at me like that for? He was six-two and two-ten and had a record from here to Nebraska. Armed robbery, assault with a deadly weapon, attempted rapeyou name it. You think I should feel sorry for him?"

"No," Evans said quickly.