An Esper Divergence Problem

The NAS Panel used Esper et al 2002 as a comfort series in their spaghetti graph, but did not perform any due diligence on it. As some of you may recall, I’ve had prolonged correspondence with Science, after being stonewalled by Esper, and, as a result of that, have obtained versions of the chronologies used by Esper for all but one site (Mongolia). I’ve been unable to obtain any sort of coherent explanation of Esper’s methodology. However, any robust result should be valid under an average of the site chronologies. This is what I’ve done here, adding in the Mongolia version used in Osborn and Briffa 2006. A simple re-scaled average fits the Esper reconstruction well up until the late 20th century when they diverge.

I’va also showed the foxtail impact separately. Esper uses two foxtail sites despite them being extremely close to one another – this does not happen anywhere else. As noted elsewhere, foxtails interbreed with bristlecones; Graybill collected strip-bark foxtail sites. The Esper foxtail sites are from Graumlich rather than Graybill but no information is provided which permits one to conclude that strip-bark forms have been avoided. The two sites used here are reported in Bunn et al 2005 and are the two sites with the largest HS. The graph below shows my emulation of Esper’s results (red dashed) together with my estimate of results in which foxtails are excluded.

 

 Figure 1. Esper et al 2002 reconstruction. Archived, emulation and without foxtails.

The Esper reconstruction is unusual in that it is the only one that uses a series from the Polar Urals area not calculated by Keith Briffa. Here Esper uses the Polar Urals Update rather than Briffa’s Yamal Substitution or the predecessor Briffa MXD series.

My emulation of Esper obviously has a substantial Divergence Problem – which becomes a twofold Divergence Problem: a divergence between ring widths and temperature and a divergence between results as archived by Esper and as emulated. Esper has been totally unresponsive to any attempts to examine his data and methodology beginning long before climateaudit existed. It is hard not to draw an unfavorable impression from this obstinacy, especially when there are major discrepancies between archived results and replicable results.


50 Comments

  1. TCO
    Posted Sep 20, 2006 at 2:45 PM | Permalink

    How bad is it if it is not robust? Robust “sounds good” but has a technical meaning (which you are using) which is independent of the good connotation. Aren’t there a lot of phenomena (Pareto principle) where removal of outliers changes the story?

  2. bender
    Posted Sep 20, 2006 at 3:12 PM | Permalink

    That warming trend from AD910-990 appears to be “unprecedented”.

  3. TCO
    Posted Sep 20, 2006 at 3:45 PM | Permalink

    How would the book publishing business’s margins look if we subtracted best sellers?

  4. Dave Dardinger
    Posted Sep 20, 2006 at 4:06 PM | Permalink

    re:#3

    Not good. But what if the best sellers were so only because they were bought by the author (at little profit to the publisher) to give to his workers or party members or as a premium in a box of cereal?

  5. Steve McIntyre
    Posted Sep 20, 2006 at 4:39 PM | Permalink

    Also see my post http://www.climateaudit.org/?p=220 on Bunn et al regarding foxtail sites, where they conclude that CO2 fertilization is not a problem for their sites because similar results are obtained in MBH98.

  6. Ken Fritsch
    Posted Sep 20, 2006 at 4:45 PM | Permalink

    re: #1

    How bad is it if it is not robust? Robust “sounds good” but has a technical meaning (which you are using) which is independent of the good connotation. Aren’t there a lot of phenomena (Pareto principle) where removal of outliers changes the story?

    The first instinct of this layman is to say here we go again and stay away from loaded questions.

    The Pareto principle of which I am aware says in effect that a problem can be caused by the contribution of multitude of effects but that the top 3 to 5 effects often contribute most (lets say 80%) to the total effect with remaining more numerous effects making a much smaller contribution to the total. It is a practical tool used to prioritize on which effects to concentrate efforts in order to reduce the problem most efficiently.
    Robust is a term that is often used in the sense that Steve M is using it here to determine what happens to a total effect when just one item is removed. If that removal negates all of the effect or conclusion, or nearly all, most everyone would agree that the concluded effect was not robust.
    Relating a reconstruction process to the Pareto principle does not seem to me to be using the Pareto tool properly, but if one did, it would be like finding that one effect was nearly 100% controlling. In that case one would ask why bother with all the other effects and specifically why not attempt to make the case with BCPs alone. I think we already know the answer to that question.

  7. Steve McIntyre
    Posted Sep 20, 2006 at 5:10 PM | Permalink

    there are two things going on here. The foxtails are, in a way, secondary. The non-replicability of Esper’s results is pretty stark. My antennae are definitely up on this one. Another guy with secret non-replicable methods. It looks like it might be another fiasco.

  8. John Hekman
    Posted Sep 20, 2006 at 5:27 PM | Permalink

    Regarding the problem of getting the data from people like Esper, I wonder if there will be any attempt in some of the “global warming litigation” to get discovery of some data.

    For example, where California is suing automakers and claiming that auto emissions are responsible for global warming, can the automakers claim the charges are based on junk science as defined by the Supreme Court in Daubert?

    here is the story on the lawsuit:

    http://today.reuters.com/news/articlenews.aspx?type=businessNews&storyid=2006-09-20T175818Z_01_N20199499_RTRUKOC_0_US-ENVIRONMENT-AUTOS.xml&src=rss&rpc=23

  9. ET SidViscous
    Posted Sep 20, 2006 at 5:42 PM | Permalink

    Now that Ford has stepped down from Ford (that sounds a bit odd) there might be a little more strength on the automakers side.

    Chevy is playing the corporate responsibility game, so they may lay down. Who knows what the Japanese and the Germans will do.

    More likely they’ll argue that the technology isn’t there yet. They won’t want to fund the AGW fight, because the other side will fight hard and dirty, and that will cost the automakers money. No matter what some will say, automakers don’t care one way or the other. They’d love to come up with a 300mph carburetor (not that it is even remotely possible) because it will give them an advantage.

    They’ll just want to get out of this for the least amount of money possible, what they do have to pay out they’ll just pass on to you and I anyways. Since it’s all of them, none of them will loose out, those with the greatest cash reserves will work out best.

    There’s a possibility here, but I think it is unlikely. Be nice if Steve M can get some consulting money to point them in the right direction. Hell if he’s going to be accused of it might as well. may as well be hung for a wolf as a sheep.

  10. Will J. Richardson
    Posted Sep 20, 2006 at 6:31 PM | Permalink

    Re: 8 How much CO2 does each person in California emit per year compared to automobiles?

  11. Earle Williams
    Posted Sep 20, 2006 at 7:30 PM | Permalink

    The number 1 kg/day quoted at http://cdiac.ornl.gov/pns/faq.html but no source given. No factor was applied for Californians!

  12. TCO
    Posted Sep 20, 2006 at 10:03 PM | Permalink

    Ken your post is verbose and pompous and without good content. As usual. Steve, your comment is good. You are still ducking me.

  13. TCO
    Posted Sep 20, 2006 at 10:27 PM | Permalink

    #7. My take also…

  14. Nicholas
    Posted Sep 20, 2006 at 10:54 PM | Permalink

    Steve, I’ll do my best TCO emulation and recommend that you publish a paper documenting your results here.

    I don’t think it would be hard to write up a few pages about what you want to do (replicate this statistical study), the efforts you went to, the data and methods you received and understand, how you went about replicating it, and then wondering aloud why your results seem to match theirs so well up until the 20th century. You should also prominently mention that this study uses a questionable proxy for temperature, but try to avoid that taking away from the main point, which I think is the inability to replicate results.

    I think real scientists will sit up and listen to you once again. It will perhaps embarass the authors into providing the data to you. I know it’s work but the graph is pretty compelling and humans respond well to graphs.

  15. Nicholas
    Posted Sep 20, 2006 at 10:57 PM | Permalink

    Also I think it would be nice if we could see a graph comparing only their version and your version. The spaghetti makes it a bit hard to read. From what I can tell your emulation is pretty good, but it could be made clearer if there were only two lines.

  16. Jean S
    Posted Sep 21, 2006 at 7:57 AM | Permalink

    Oh dear!! Once in a while it happens that you really can not believe your senses. This happended to me yesterday while I was watching the Finnish National TV (YLE). Finnish media has been for years almost 100% pure AGW, and basicly a “climite skeptic” is an unknown thing here. Now, yesterday suddenly they broadcast this 2,5 minute newsflash. Guess who was interviewed … Jan Esper! The newsflash is so amazing in the context of Finnish TV and relates to the very topic of this post, so I just had to translate the Finnish part for the wider audience (so everyone gets the proper context for Esper’s comments). Enjoy:

    (newsreader) Then finally something about nature. A part of international forest researchers believe that the climate warming that begun in 1970s is natural and it is not caused by human action. The world leading lusto [a specific Finnish word for a tree ring, not very well known among general public]-researchers, that is the tree ring researches, have got acquainted themselves with ancient forests in Kolari, where 1000 years ago the climate was warmer than at present time.

    (reporter) The world leading lusto, that is a tree ring, -specialized forest researchers agree on that the current warming of the world’s climate is also part of very old variations of the climate. Last time strong warm periods were 5000 and 1000 years ago, and at that time it was warmer than at present time.

    (Mauri Timonen, researcher, Finnish Forest Research Institute) This warm period may last even 500 years from today on without humans necessarily having anything do with it … it relates to natural variability. I do believe, like Russian researchers believe, that we are strongly heading towards a new ice age … yes. According to them the next new ice age would begin already after 4000 years.

    (reporter) The ancient forests that have avoided logging in Lapland are a unique part of tree researchers’ worldwide network. In Lapland, it has been found out, by inspecting tree rings, the temperature variations of the climate during the last 7638 years.
    During this week the directors of one of the leading forest research institutes in the world, Switzerland’s Dendo Science unit, compared their knowledge with Finnish and Russian knowledge.

    (Jan Esper) (In English, see the video ;) )

    (reporter) According to the researchers, the forest tree-line in Alps was 2000 years ago 200 meters higher than today, and the same way over there [pointing] at Kesàƒ⣮ki -fjeld the tree-line was much higher 5000 years ago.

    (Timonen) The ancient forest line was as much as 200 meters higher than the present and even 80 kilometers northern than the present.

    (reporter) According to the forest researchers, the warming that begun in 1970s has been seen overly onesided as to be caused by human alone.

    (Esper) (in English)

  17. Ken Fritsch
    Posted Sep 21, 2006 at 9:18 AM | Permalink

    I think real scientists will sit up and listen to you once again. It will perhaps embarass the authors into providing the data to you. I know it’s work but the graph is pretty compelling and humans respond well to graphs.

    I would think it is a much more difficult course for Steve M to get published than some of these “real scientists” and particularly those better known in this field. Where have these real scientists been in the debate up to the present time?

  18. Steve McIntyre
    Posted Sep 21, 2006 at 9:42 AM | Permalink

    One of the main outcomes of the NAS and Wegman panels is that these sort of replication studies now become practical. There’s an economics journal that has a replication section, where the editor is very intrigued with my work and expressed interest in my contributing a replication article. This might be a good example.

  19. bender
    Posted Sep 21, 2006 at 9:43 AM | Permalink

    Re #17:
    Ken, are you suggesting there will be a bias out there against Steve M’s name? If so, then just publish under a pseudonym. After all, it’s the publication of the ideas that counts, not the name of the person who who came up with them.

    The challenge, which I’ve mentioned before, is not going to be his name. It’s going to be the fact that his tone, content, and scientific approach tend toward the confrontational and destructive. (Even with a pseudonym, his style is so distinctive it will give him away to many (but not all) reviewers. My advice would be: eliminate all traces of McIntyrism.) This is where TCO’s constant message has some validity: the proper attitude is “helpful & constructive”, not “tendentious”.

    Sensitivity analysis is a marvelous way of systematically destroying someone’s argument because it is readily sold as an intelligent, objective analysis. All TCO is asking for, really, is formal sensitivity analysis. It’s synthetic, it’s coherent, it’s traditional, it’s publishable.

    If the Mannonatic methods are non-robust (i.e. fragile to perturbation) – and I believe the are just that – then the formula is simple: perturb & document.

  20. bender
    Posted Sep 21, 2006 at 9:48 AM | Permalink

    Re #18
    Yes, I agree: Wegman & NAS have created an niche-market appetite for replicative studies & sensitivty analysis. Now someone has to fuel that appetite. If the Mannomatic methods are as fragile as we suspect, then the appetite for debate will grow as reconstruction uncertainty systematically increases.

  21. Posted Sep 21, 2006 at 10:02 AM | Permalink

    #20. Interestingly perturbation methods are also able to be biased. For example, a recent paper (Steve will remember) purturbed reconstructions by deleting each series in turn. This results in little change in the result, compared to deleting a specific series (i.e. Bristlecones). Steves argument has been that the result depends on a specific set of series being included — a different kind of non-robustness.

  22. John Hekman
    Posted Sep 21, 2006 at 10:09 AM | Permalink

    Jean S
    That was a really interesting article from Finland. Shocking, really, that they would so casually offer something so opposite to the conventional wisdom.

    I had a 7′ Finn in one of my classes at North Carolina years ago–Timo Makkonnen, who was on the same championship basketball team at UNC with Michael Jordan. Timo was a sweet guy.

  23. Steve McIntyre
    Posted Sep 21, 2006 at 10:38 AM | Permalink

    #21. David, I agree that the sensitivity studies have to be appropriate to the situation. In the case of Osborn and Briffa, there has been so much “data snooping” prior to proxy selection, that the proponents have no business using any statistical terminology in their report.

    As to commenting on the “other” studies, I have no interest in reporting my conclusions in such a circumspect way that it’s almost impossible to decode the conclusion. I’d rather find a niche market and am quite confident that I can find the appropriate niche. It may be a little different than people expect but so what.

  24. Ken Fritsch
    Posted Sep 21, 2006 at 10:42 AM | Permalink

    re: #19

    Ken, are you suggesting there will be a bias out there against Steve M’s name? If so, then just publish under a pseudonym. After all, it’s the publication of the ideas that counts, not the name of the person who who came up with them

    Perhaps as a layman in these issues I do not appreciate all the nuances of publishing and being “heard” in certain scientific fields. I would never, without nearly complete proof, put forth a conspiracy theory to explain the reactions of groups of people. I do think that there is such a thing as egos and to a lesser extent group think operating even in scientific fields and I would image they can get in the way of “hearing” the entire story.

    My point is that Steve M and Ross M have done a rather complete job of pointing to the statistical inadequacies of the temperature reconstructions as outsiders to the field and now I would expect, but haven’t really seen to any significant extent, the responses from within the field that acknowledge that these reconstructions have a number of problems that necessitates redoing them with proper methodologies. I seriously wonder if further publications by MM alone will stem the reconstruction tide without others from within the establishment admitting the mistakes made and not merely attempting to apparently save as much of the reconstruction conlusions possible with more flawed studies. Using regressions with R^2 near zero in these reconstructions just does not make sense to me nor does accepting the results from them under that condition alone.

    I also think that, since the HS in graphical form without consideration of the error bars, even as calculated much less the proper ones applied, put forth such a vivid picture of AGW and poster child policy tool, the finding of fatal flaws was (and is) going to be resisted to say the least.

  25. TCO
    Posted Sep 21, 2006 at 11:07 AM | Permalink

    23. The so what is that I’m concerned the analysis will be incomplete and skewed. If this blog is anything to go off of. I think the rigors of academic publishing, would push you to a better product.

  26. Posted Sep 21, 2006 at 11:22 AM | Permalink

    #23. Yes Osborn and Briffa, sorry I have been out of it a bit. I think the core of the issue, prior to all analysis, is the ‘representativeness’ of the proxies, the authority of the series to stand in as proxies for the temperature. The ‘divergence problem’ is important as it reflects badly on the authority of series to stand in as proxies. Similary imposibility of replication reflects badly on authority of the studies themselves to convey the conclusions. Sensitivity studies seem to me not to offer a definitive resolution.

  27. TCO
    Posted Sep 21, 2006 at 11:34 AM | Permalink

    I think 23 is another book hint. All the howler monkeys jumped on me when I figured this out a while ago, but we will see who is right in the end…

  28. Steve McIntyre
    Posted Sep 21, 2006 at 11:41 AM | Permalink

    No plans for a book. Just articles.

  29. TCO
    Posted Sep 21, 2006 at 11:49 AM | Permalink

    ok.

  30. Paul Penrose
    Posted Sep 21, 2006 at 12:31 PM | Permalink

    I don’t blame Steve for not wanting to battle it out in the big “mainstream” journals where he would have to compete with well funded professors supported by big universities and small armies of graduate students. He is doing this at his own expense for fun and scientific curiosity, not to single-handedly refute AGW. In his situation it would probably be better, and much less work, to target friendly specialty journals instead, and in the long run just let science, and society, work it all out.

  31. Jim Edwards
    Posted Sep 21, 2006 at 3:28 PM | Permalink

    #8 Re: litigating AGW in California – Not Likely.

    The Auto companies have much easier ways of winning this lawsuit and probably don’t want the negative press from disputing AGW. Imagine the press – “I told you so, it’s a vast denial conspiracy between GM, Enron, Dick Cheney, the Saudi Royal family and the evil oil companies – it must be true…”

    One defense is likely to be that damages are speculative. Since California is asking for money damages, the Atty Gen’l will have to demonstrate what the state’s actual damages attributable to AGW are – and what portion is allocable to the individual automakers. This is an impossible task. The automakers don’t have to claim AGW doesn’t exist or is not bad – they merely have to assert that nobody can demonstrate the extent of the ill effects in California.

    The ability to use state ‘police power’ to assess administrative fines / fees for decades-past ‘pollution’ was upheld in the Sinclair Paint case for lead paint. The CA Supreme Court required that the fines in that case – which were specifically authorized by an Act of the Legislature – be proportionate to the actual damages created by the offending company in order to be constitutional.

    The Atty Gen’l has no statute authorizing a fine be assessed, so he is asking the court to do the dirty work for him. The courts won’t want to be part of this mess – especially since this industry is already heavily regulated by the Feds and State – and there is a separate lawsuit to determine whether the State has power to regulate CO2 emissions by cars.

    The press reports say the automakers have created a ‘public nuisance’. Aside from money damages for past bad behavior, this would potentially allow the Atty Gen’l to seek a court injunction to cease creating a nuisance. If the nuisance is burning gas in cars the automakers don’t own, it seems all the state can ask for is that no new cars be sold in California in the future. [not likely - the Legislature has already made a determination on this matter re: how many zero emission vehicles should be sold and when.]

    I have no case law to back it up, but it seems strange to sue the automakers anyway. It’s the individual resident-voter-taxpayers who actually made the CO2. The Atty Gen’l doesn’t want to sue them, even though they would seem to be the obvious defendants. Holding the automakers accountable seems like suing the building contractor for building a factory that a subsequent owner used to pollute a river. The manufacturers can’t control the fuel consumption habits of their customers any more than they can stop those customers from drinking and driving. In legal terms, the manufacturers can claim there is no ‘proximate causation’ because the link between their behavior and any harm is too attenuated.

  32. Ken Fritsch
    Posted Sep 21, 2006 at 4:43 PM | Permalink

    As to commenting on the “other” studies, I have no interest in reporting my conclusions in such a circumspect way that it’s almost impossible to decode the conclusion.

    Well said, Bad Boy of climatology.

    In his situation it would probably be better, and much less work, to target friendly specialty journals instead, and in the long run just let science, and society, work it all out.

    Well put, Paul Penrose.

  33. Ken Fritsch
    Posted Sep 21, 2006 at 4:56 PM | Permalink

    I have no case law to back it up, but it seems strange to sue the automakers anyway. It’s the individual resident-voter-taxpayers who actually made the CO2. The Atty Gen’l doesn’t want to sue them, even though they would seem to be the obvious defendants. Holding the automakers accountable seems like suing the building contractor for building a factory that a subsequent owner used to pollute a river. The manufacturers can’t control the fuel consumption habits of their customers any more than they can stop those customers from drinking and driving. In legal terms, the manufacturers can claim there is no “proximate causation’ because the link between their behavior and any harm is too attenuated.

    You argue rationally, but don’t recent past experiences in US tort law indicate that trial lawyers have been allowed to go after the deep pockets regardless of fault and that less than reasonable/informed juries have found them responsible or at least sufficiently so to collect huge damages?

  34. Jim Edwards
    Posted Sep 21, 2006 at 7:46 PM | Permalink

    #33 Can juries and attys assign large awards when the facts dictate otherwise ? Absolutely – think the multi-billion award for silicone breast implants.

    On the one hand here we have the State Atty Gen’l – who usually gets what he wants when he picks somebody to milk. On the other hand we have the law.

    This case will likely be decided on the basis of law, not facts. Juries can find an innocent defendant negligent as the finder of fact and appellate courts will be loathe to overturn that decision – as long as some facts were presented to demonstrate damages. It is sufficient that products liability is a legally cognizable theory of recovery. The appellate courts don’t care so much whether the jury ‘got it right’ in regards to the facts of McDonalds coffee or Dow-Corning implants. The trial court had the power to award the damages, that’s what they’re mainly concerned with.

    A jury cannot find a defendant guilty / negligent where there is no legally cognizable theory for recovery, however. Many wrongful death cases have been brought against handgun manufacturers because their legally-distributed products were used by suicide or crime victims. Even government attys can’t win these cases in appellate court. Juries may award millions, but these cases [arguably similar to use of Ford cars to 'pollute'] are always shot down at the appellate stage for lack of proximate causation. Even if the ‘facts’ implicate Smith & Wesson, the ‘law’ won’t extend liability.

    The Atty Gen’l will argue the court should find proximate causation b/c it was ‘reasonably foreseeable’ that Ford’s cars would emit CO2 and thereby cause an injury to Calif. The manufacturers could argue here that, whatever the damages due to AGW will be, it is only recently that the damages began to be speculatively quantified by a ‘consensus’ of scientists – so they couldn’t reasonably foresee any injury.

  35. John Hekman
    Posted Sep 22, 2006 at 11:17 AM | Permalink

    Re: 34. I agree that “A jury cannot find a defendant guilty / negligent where there is no legally cognizable theory for recovery”

    It seems to me that the AG will argue here that the auto companies “knew” that C02 was a threat, and that they could have produced cars that got higher mileage and emitted less of it. Thus the amount of emissions on which to calculate damages would be the difference between current models’ emissions and some “ideal” standard (based on expert testimony).

    The problem is then how to get the damages per unit of emissions. I don’t see how this could be done. As an attorney, do you see some way based on the law of nuisance or something?

  36. Jim Edwards
    Posted Sep 22, 2006 at 12:54 PM | Permalink

    35 – I just took the Bar in July; I’m not an atty, yet – so my opinions are simply my opinions and shouldn’t be relied upon by the automakers or persons thinking of dealing in securities.

    There’s a famous case where two fellows shooting upland game each shot toward their friend, simultaneously. Because you can’t do ballistics tests on birdshot, it was impossible to determine which of the two actually shot the victim in the face [50 % chance either did it]. This is a legal problem because the plaintiff must prove > 50% probability that the defendant caused the injury. The courts allow recovery from both / either party in this case as long as both behaved in a negligent manner [joint and several liability]. So if the courts went ahead and found that the automakers as a whole were negligent and caused injury to Calif, total CO2 emitted through cars could be estimated through gasoline sales, presumably, and the % allocated to each manufacturer could be approximated by # of cars registered and C.A.F.E. standards reported.

    The allocation wouldn’t have to be correct, only reasonable. If Toyota was assessed too much, it would be Toyota’s responsibility to sue GM for contribution – not California’s job to absolutely prove what % of the CO2 was produced by Toyota engines.

    The bigger question is, even though Calif. can show what Honda’s share of CO2-induced ‘damage’ is, what is the total amount of damage ? i.e. – 3% of what ?

    This is what I think is impossible. Hypothetically, Calif would have to bring in expert testimony to state that the XYZ fire, the ABC flood, and the Coolsville crop failure were probably caused by AGW attributable to increased CO2. It doesn’t seem like there are many ‘experts’ who are willing to attribute individual events to AGW – only warn that ‘we should expect to see more of these disasters.’ I’m not up on the scare-mongering enough to know of anybody who’s claiming that actual predicted events within California will require $X to mitigate against. Much of the correction I’m reading in the press is that it’s climate change, not uniform warming – and that there will be winners and losers. Who’s to say Calif. will be a loser ? Courts don’t like to give money for future damages unless they can be reasonably ascertained. [e.g.- future med expenses for a 50 yr old amputee based on actuarial tables.]

    If, instead of a lawsuit, the Calif Legislature had stated “It is our determination that Calif. will incur $Y billion in costs from AGW and, therefore, the Board of Equalization may assess a fee…” the courts would probably show a lot of deference.

  37. Douglas Hoyt
    Posted Sep 22, 2006 at 1:06 PM | Permalink

    There are also manufacturers of 18 wheelers, combines, tractors, lawnmowers, motorcycles, emergency generators, and so forth that are not being sued. It doesn’t make sense from the point of view of logic to omit them and I wonder why they did.

  38. Ken Fritsch
    Posted Sep 22, 2006 at 1:34 PM | Permalink

    re: #36

    Hypothetically, Calif would have to bring in expert testimony to state that the XYZ fire, the ABC flood, and the Coolsville crop failure were probably caused by AGW attributable to increased CO2. It doesn’t seem like there are many “experts’ who are willing to attribute individual events to AGW – only warn that “we should expect to see more of these disasters.’

    Thanks for the insightful preview of how you think that the AGW case might be argued by both sides. It seems you are saying that a lack of any previous attempts to attribute AGW to damages that can be potentially estimated and the difficulty in doing it would keep the courts from finding for damages.

    If the state of CA is willing to proceed in this matter they must have a strategy well in mind and one that has some likelihood of success given the current precedents in tort law. Wouldn’t such a case cost CA (and the auto companies) a great deal of money in preparation? Tort law, as I understand its origins from and as part of common law, is an evolving law and why would not there be motivations by the judicial system to make “new” law to cover this never before broached legal area? Or is there case law that is directly applicable to this case?

    Is not “expert” testimony rather liberally allowed in courts these days and could not sufficient experts be found to make an “educated” guess at what the “general” damage has been to CA from AGW or more specifically in this case, carbon dioxide and other GHGs, and as a consensus, without “hard” direct evidence, pass muster with the right judge(s)?

    These questions are offered not to be argumentative but to set myself straight with regards to the legal system vis a vis AGW and you seem like the right person to ask.

  39. fFreddy
    Posted Sep 22, 2006 at 2:02 PM | Permalink

    Would a legal case such as you envisage allow the defence to sub poena Michael Mann and his team, and subject them to proper cross-examination, where they actually have to give straight answers ?

  40. John Hekman
    Posted Sep 22, 2006 at 2:25 PM | Permalink

    Re: 38. As mentioned in my original post (#8), courts have been trying to get away from “liberally allowing” testimony such as this. The Supreme Court in Daubert and Kumho Tire set down standards that, among other things, required that the science use generally accepted methods, etc. This is where I was saying that the surface temperature record could be questioned, because of Phil Jones’ refusal to show how they are calculated.

    Re: 39. Could they subpoena Mann? They could say that the attribution of warming to CO2 relies on Mann and that Wegman’s report has shown it to be faulty. I’m not a lawyer so I don’t know if the judge could order the data and code of Mann to be produced.

  41. Steve McIntyre
    Posted Sep 22, 2006 at 2:28 PM | Permalink

    There is an Amicus brief in the Massachusetts case that was noted up by Roger Pielke. I make a thread on this.

  42. Jim Edwards
    Posted Sep 22, 2006 at 3:23 PM | Permalink

    #39 – probably not. If I sue John Public, that doesn’t usually give either of us the right to compel somebody to testify under oath unless they are somehow connected to the circumstances [like a witness or a partner of a party to the suit...]. As a matter of administrative efficiency, courts generally limit the amount of testimony that is given – so trials don’t go on forever. The parties wouldn’t waste time ‘trapping’ Mann or other scientists because it probably wouldn’t help either side’s case. Calif courts also have no power to issue subpoenas outside the state to persons not connected to the state. Mann doesn’t live or work in Calif., so he probably couldn’t be forced to show up even if somebody wanted him to testify. There’s are rules of evidence that allow certain scholarly or government documents to be admitted without a witness on the stand to vouch for them. It’s likely that the Atty Gen’l could simply submit the IPCC TAR as evidence [and certain other papers / reports]; an expert would then explain the significance of various findings to the jury. Somebody on the ‘Team’ probably lives in Calif, and would be subject to the court’s jurisdiction. The defense might, hypothetically, be allowed to depose them – if it were alleged that they were involved in a conspiracy. Not likely, I think. Our Legislature has already stated AGW is real and must be counteracted. Courts not likely to allow a fishing expedition.

    #38 – Yes, damages must be quantifiable, you can’t pull them out of a hat. Here’s where some part of the ‘Team’s’ work might come into play. If the Atty Gen’l submits 10 different computer models showing what the future holds for Calif, then the defense could point out the ‘experts’ disagree with each other. Defendants could also have an expert witness testify that these predictions are mere guesses. Conflicting expert testimony tends to cancel out, I’m told.

    Juries and trial attys may be crazy sometimes, but I believe the courts are more responsible than people often give them credit for. Especially the higher courts. They are generally very reluctant to extend liability to a whole class of behavior based upon the facts of one case. This especially the case when it looks like the Legislature has shown interest in crafting a solution.

    I’m guessing that the chances Calif will win at trial are very good. It’s at the appellate stage I’m betting they lose. Some appeals may occur in the middle of the trial.

    There are a lot of potential problems for the state here. I believe the case was filed in Fed Court. The court may choose not to hear the case because of justiciability problems. If the court doesn’t want to deal with the case at this time, it could be be defined as lacking ‘ripeness’ b/c damages haven’t occured, yet. This might be different if the state were seeking an injunction, rather than money damages.

    The Atty Gen’ls office is filled with very talented, dedicated attys. I’m sure you’re right, and they believe they can make the case. They wouldn’t have filed, otherwise. It seems I’ve talked to a lot of businessmen who have been pursued by zealous gov’t attys even though they were acting legally, however. I imagine the Atty Gen’ls office is used to people rolling over and passing costs to customers.

    As to litigation strategy, who knows ? I’m no litigator, and I haven’t read the actual lawsuit. I read an editorial that suggested the suit was filed for political gain. If the suit is expensive enough to defend, and the Atty Gen’l willing to settle for a small enough amount, a settlement could be forthcoming even if it ends up being repeated in 49 states.

    #37 – If John, Jane, and Joan each throw a rock at me, I can choose to sue any one, two, or three. The plaintiff is the master of the complaint, and generally won’t be required to sue anybody he doesn’t want to. This makes sense when you consider litigation is very expensive and many defendants have too few assets to pay a judgment. The Atty Gen’l gets more bang for the taxpayers buck when he goes after the biggest manufacturers.

  43. Steve Bloom
    Posted Sep 22, 2006 at 4:01 PM | Permalink

    Re the CA legal case: I think it makes sense to consider this lawsuit to be basically a countersuit to the auto manufacturers’ own suit against the CA CO2 reduction law. Of course there is a very large political component to all of this, and from that point of view the AG’s attorneys may be very happy if the only thing they get out of their own suit are documents showing that the industry has intentionally obfuscated the science. This seems like a good strategy given the effect of the production of similar documents by the tobacco industry.

  44. Barney Frank
    Posted Sep 22, 2006 at 5:27 PM | Permalink

    I’m not a lawyer either but i have spent a great deal of time in California civil courts over the years. One of the charms of living here and owning real estate.

    #37,
    In a recent issue of Road and Track Dennis Simantis, the technical editor, noted that a single large freighter chugging into Long Beach Harbor produces as much air pollution as 300,000 new automobiles.

    #38
    If the state of CA is willing to proceed in this matter they must have a strategy well in mind and one that has some likelihood of success given the current precedents in tort law.

    As a gun dealer and former board member of a non profit I am also thoroughly familiar with Bill Lockyer our endearing AG. He is an ambitious and quite unscrupulous pol who has no need of a legal strategy involving tort law. As Steve B alludes to in #43, albeit for the wrong reasons, the only precedent is the one of extorting money from deep pockets(tobacco companies) by the power of the essentially unlimited state threatening titanic legal costs. After tobacco, various states and localities attempted to do the same to gun manufacturers around the nation and have so far failed in court but have succeeded in bankrupting a few smaller manufacturers.

    This is about neither the law nor the facts. Its about extorting money and making political hay by utilizing the power of the state essentially for people’s personal political beliefs and benefit. Any non profit engaged in such behavior would be hauled into court by the AG. But on the public’s dime its perfectly acceptable for him to do it to others.

    Not sure what any of this has to do with Esper and Foxtail pines BTW.

  45. Jim Edwards
    Posted Sep 22, 2006 at 5:36 PM | Permalink

    #43 – I don’t think so. The other case you mentioned is a commerce clause case. It is not about whether cars should be regulated, but who has the power to do the regulating. This case has nothing to do with it and can’t be described as a countersuit.

    Liberal Democrats have done as much they can to centralize regulation and law-making in the U.S. The problem with an all-powerful central gov’t is the other guy can get control of it and start using power the ‘wrong’ way. That’s why the founders gave us a federal system, not a parliamentary system – to allow a minority to escape to a state where people agreed with him, and avoid the tyranny of the majority. [This is the font of the mis-monikered 'states rights' argument - states have powers, individuals have rights] The Supreme Court Justice who has most consistently opposed emasculation of states is perhaps the one most reviled by Democrats – African-American Clarence Thomas. Note all the Liberal Justices voted California could not allow medical marijuana and Thomas had the most compelling dissent.

    Once liberal Democrats used their decades-long control of Washington to assert the power of the central government, they can’t seriously argue that states should be able to trump federal law. Under the expanded vision of federal government developed by FDR, states can only regulate activity until the federal government begins to regulate. Then states are prohibited from regulating at all unless Congress grants them permission. That’s the LAW; thank the Democrats.

    The only question in the regulation case is whether Congress, in developing CAFE and other emission standards, was implicitly taking a position on the regulation of CO2, also. If so, the states lose. End of story.

    The tobacco companies spent many millions and funded entire institutes related to tobacco health studies, and actively stated there were no adverse health effects. The carmakers may have lobbied to reduce CAFE standards, but there is no evidence of the same sort of disinformation scheme involving countless alternative scientists to discredit AGW. It’s a pipe dream to imagine anything exciting coming out of discovery.

  46. bender
    Posted Sep 22, 2006 at 5:39 PM | Permalink

    Barney, since you mention pines, I take the opportunity to send you this reference on GW & pine beetles in response to an earlier question about forest decline.

  47. Barney Frank
    Posted Sep 22, 2006 at 6:07 PM | Permalink

    #46,

    Thanks bender. I actually understood that one.
    BTW, white pine blister rust also effects other species. Parts of the Sierra have had their Sugar Pine populations severly impacted by it. The region near my property in Tulare county is kind of eerie. In a sea of green there are thousands of white spikes sticking up which are large Sugar Pine snags either killed directly by the rust or made susceptible to beetle attack.

    On some of my property further north, beetles ravaged pine stands during the mid seventies drought. But thirty years later they’re coming back. The resilience of the forest to pests is pretty amazing, especially when viewed by time other than our lifespans. I have to occasionally laugh at some environmentalist type who will be throwing a fit over some ‘ancient’ forest they’re trying to save. Often if you look a little closer you see a good many giant stumps decomposing and the ancient forest is 90-100 years old. At least its that way in CA and the NW where the growth is much faster than inland.

  48. Steve Sadlov
    Posted Sep 22, 2006 at 6:35 PM | Permalink

    RE: #43 – I bet you know quite a bit about the specific work that went into this bogus lawsuit. After all, your office took a major role in helping the AG to prepare, at least based on what I’ve heard.

  49. Pat Frank
    Posted Sep 28, 2006 at 8:21 PM | Permalink

    #48 — I went to the CA attorney general web site describing that suit, and looked at the list of consultants they engaged to prepare their case. You can find that list linked at experts at the bottom of the page. The first name was Dan Kammen from the UC Berkeley Energy Resources Group, which is an AGW partisan organization and the remaining five merely represent climate-alarmist NGOs. There’s an impartial panel of experts. It’s very lawyerly to cherry-pick data that support your case, but the Attorney General is supposed to be a public officer representing the interests of the electorate. In this case, the CA Attorney General is clearly a scoff-duty.

  50. Jim Edwards
    Posted Sep 18, 2007 at 10:35 AM | Permalink

    California’s lawsuit against the automakers was tossed out, according to the Sacramento Bee. The article cites the rationale for dismissing the suit as being similar to what I predicted in #31, above.

    U.S. District Court Judge Martin J. Jenkins ruled that the issue must be left to legislators. “Policy decisions concerning the authority and standards for carbon dioxide emissions lie with the political branches of government, and not with the courts,” he wrote. He also said it would be nearly impossible to calculate how much of the blame for climate change should be pinned on the carmakers.

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