Andrew Weaver: Libel Chill or Libel “Polar Vortex”

Andrew Weaver has been taking a victory lap following the recent decision in his favor by rookie judge Emily Burke. In previous commentary about Mann v Steyn, I’ve made some snide remarks about the competence of D.C. trial court judge Combs-Greene, either implying or stating that Canadian courts have higher standards. I take it all back.  As a Canadian, it’s embarrassing to discuss Judge Burke’s disorganized and muddled decision with readers from other countries. Unsurprisingly, beneath the muddled prose, there are (what appear to me) some bright-line legal errors over and above quixotic and often grossly incorrect findings of fact.

In fairness to Judge Burke, she was astonishingly inexperienced to have been assigned a relatively complicated libel case. She had been appointed as a judge on May 13, 2014 (h/t Hilary Ostrov) and the Weaver v National Post trial began in the first week of June 2014, only a few weeks after Burke’s appointment.  Her resume shows that her professional experience over the previous 20 years had been as a labour arbitrator, with no apparent evidence of previous experience in libel law. It was very unfortunate that she was assigned this case.

If Burke’s decision accurately reflects Canadian libel law, then for opinion writing in Canada (including Climate Audit), it is more of a polar vortex than mere libel “chill”.   To borrow a phrase, it would be a travesty if National Post did not appeal this decision.

In today’s post, I’ll set out an overview of the main issues. As CA readers are aware, I am not a lawyer and my article does not contain legal advice.   However, I know the factual context very well and have familiarized myself with the relevant case law.  I plan to re-review the “facts” with the legal context in mind, but will also comment on the legal implications.  Readers should keep in mind that I also commented at the time (e.g. here) on some of the same events as National Post and that, at the time, I , like the National Post opinion columnists, believed that Weaver believed that the fossil fuel industry was responsible for the UVic break-ins that Weaver had asked the national and international community to be interested in.

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Marotzke and Forster’s circular attribution of CMIP5 intermodel warming differences

A guest post by Nicholas Lewis


A new paper in Nature by Jochem Marotzke and Piers Forster: ‘Forcing, feedback and internal variability in global temperature trends’[i] investigates the causes of the mismatch between climate models that simulate a strong increase in global temperature since 1998 and observations that show little increase, and the influence of various factors on model-simulated warming over longer historical periods. I was slightly taken aback by the paper, as I would have expected either one of the authors or a peer reviewer to have spotted the major flaws in its methodology. I have a high regard for Piers Forster, who is a very honest and open climate scientist, so I am sorry to see him associated with a paper that I think is very poor, even as co-author (a position that perhaps arose through him supplying model forcing data to Marotzke) and therefore not bearing primary responsibility for the paper’s shortcomings.

In putting together this note, I have had the benefit of input from two statistical experts: Professor Gordon Hughes (Edinburgh University) and Professor Roman Mureika (University of New Brunswick, now retired). Both of them regard the statistical methods in Marotzke’s paper as fatally flawed.

The Marotzke and Forster paper analyses trends in simulated global mean surface temperature (GMST) over all 15- and 62-year periods between 1900 and 2012, and relates them to contemporaneous trends in model effective radiative forcing (ERF) and to measures of model feedback strength (alpha) and model ocean heat uptake efficiency (kappa).

The paper is very largely concerned with the behaviour of climate models, specifically atmosphere-ocean general circulation models used in the CMIP5 simulations. In discussing relevance to the actual climate system, it ‘assumes that the simulated multimodel ensemble spread accurately characterizes internal variability’.

The authors’ principal conclusions are:

The differences between simulated and observed trends are dominated by random internal variability over the shorter timescale and by variations in the radiative forcings used to drive models over the longer timescale. For either trend length, spread in simulated climate feedback leaves no traceable imprint on GMST trends or, consequently, on the difference between simulations and observations. The claim that climate models systematically overestimate the response to radiative forcing from increasing greenhouse gas concentrations therefore seems to be unfounded.

Marotzke claims to have shown that in model simulations the structural (alpha and kappa) elements – which encapsulate model GMST responses to increases in CO2 forcing – contributed nothing even to recently-ending, longer-term GMST trends. It is difficult to see how that can be so if the models work properly. It is certainly possible (in fact likely) that over the period 1900–2012 the combined contribution of alpha and kappa to model GMST trends was largely obscured by countervailing variations in model ERF trends: high sensitivity models tend to have more negative aerosol forcing than lower sensitivity models, enabling both to match 20th century GMST trends. But aerosol levels have changed little over the last 35 years and higher sensitivity models have been warming much faster than observed GMST over that period.

In order to show why the paper’s conclusions are not justified, I need to explain what Marotzke has done.

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Important New North American East Coast Proxy Data

One of my long-standing interests is the location of ocean sediment series that enable apples-to-apples comparison of the 20th century to the mid-Holocene.   These are not nearly as common as one would think.   Ocean sediment series covering the Holocene typically stop prior to the 20th century due to core recovery problems and, on the other hand, high-resolution series (especially from box cores) that provide detailed 20th century information are not necessarily accompanied by corresponding Holocene information (even on “intermediate” resolution.)

Last week, Sicre and coauthors archived two very high resolution alkenone series from Placentia Bay and Bonavista Bay, offshore Newfoundland (5 and 9 years respectively), covering the last two millennium, with their most recent portion dated through the 20th century.   While the proximity is not ideal, the cores do appear to be close enough to three Holocene alkenone SST series from Sachs et al 2007 to compare 20th century and mid-Holocene SSTs on the North American East Coast, an exercise that I will carry out in today’s post.  The exercise has some added interest because the three Sachs 2007 series were used in Marcott et al 2013 (though their recent portions were foolishly re-dated by Marcott.)  As high resolution ocean SST data over the past two millennia, the new Sicre data is also relevant to the popular two-millennium reconstruction period, but the new data is about as opposite to a Hockey Stick as one can imagine.  Unsurprisingly, the new data was not press released and has thus far attracted no attention. Continue reading

Ground-truthing Marcott

The MD99-2275 core offshore Iceland is a very high-resolution ocean sediment core, results of which over the past millennium have been discussed here from time to time. Alkenone and diatom results for the last millennium have been available for about 10 years. MD99-2275 results were used in PAGES2K Arctic and Hanhijarvi 2013, also Trouet et al 2009, but not Marcott et al 2013.  Because of their high resolution and because of their extension through box cores into the 20th century,  it’s gratifying that high resolution results are now becoming available through the Holocene.  In 2012, alkenone results were extended back at high resolution to 4500 BP and last week, Jiang et al archived their diatom results back to 9271 BP in the early Holocene. In today’s post, I’ll show the new results from Jiang et al and show an interesting comparison to Marcott.

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More Mann Grafting

Jeff Norman draws attention to Figure 1 in a new Mannian tirade, a variation of Mann’s stump speech in which he, as usual, tries to blame his own errors and tricks (the censored directory, verification r2 of 0, upside-down Mann, hide the decline) on right-wing interests.  Amusingly, his new Figure 1 unapologetically splices proxy and instrumental data, an issue that ties to a central issue in Mann v National Review et al. Continue reading

Mann and the Legacy of “Bogus”

One of the most bizarre conclusions of D.C. Judge Combs-Greene were her findings that it was actionable to  “question [Mann’s] intellect and reasoning” and that calling his work “intellectually bogus” was “tantamount to an accusation of fraud”.  These absurd findings are all the more remarkable because, as National Review pointed out in their written brief, Harry Edwards, then Chief Judge of the U.S. Court of Appeals for the D.C. Circuit, used exactly the same term (“bogus”) in an academic article that severely criticized statistical analysis of the D.C Court.  Edwards’ article not only questioned his opponent’s “reasoning”, but, in effect, accused his opponent of data manipulation, an accusation that his opponent,  Richard Revesz, a prominent law professor, sharply disputed.

Edwards, who had written the opinion in Moldea II, a leading case  (C.A. D.C. Circuit) cited frequently in the pleading of Mann v National Review et al, clearly did not think that his language was libelous under D.C. law. Nor seemingly did Revesz, who seemed to have concluded that the appropriate response was through rebuttal rather than libel litigation.

Ironically, the article to which Edwards was responding claimed that decisions of Edwards’ court, the U.S. Court of Appeals for the D.C. Circuit (h/t Mark Kantor for correction from D.C. C.A) were influenced by political ideology. Edwards, a strong advocate of collegiality and whose ambitions for D.C. jurisprudence reached beyond it being the sort of home field for NGOs and environmentalists that Alabama had provided to segregationists in the days of NYT v Sullivan, contested the statistical analysis of his opponents, with some of his statistical arguments being familiar to CA readers (though in somewhat different terminology.) Continue reading

One of Carvin’s Gaffes

In some recent posts, I’ve observed that Carvin made a couple of astonishing gaffes in his oral argument.  In today’s post, I’ll comment on the worst one.  First, I’ll report the exchange without context.  I presume that 99.99% of Climate Audit readers will spot the gaffe immediately.  Read and react to Carvin’s words before reading my comments below the fold, where I’ll give my take on Carvin’s goof.

The first part of Carvin’s rebuttal was spent wiping the egg off his face for an earlier gaffe arising from Carvin’s total misunderstanding of the word “falsification”  as it is used in codes of research misconduct, an incident that I’ll return to. In that cringeworthy exchange, the judges’ attention had been drawn to the NSF Inspector General report which listed the four (“synthesized”) issues supposedly addressed by the Penn State Inquiry Committee.

The second item on this list pertained to Mann’s direct or indirect role in the destruction of emails.    This incident caught the eye of one of the judges, who asked Carvin a softball question about the email deletion incident (Audio 2 ~ minute 16):

Judge: if I may turn to Simberg’s article. There is a quotation from the Inspector General. He [Mann] was criticized for statistical technique, which was the basis for his “unscientific method”, but more importantly, then we have a quote, whether Mann deleted emails as requested by Phil Jones. In other words, some kind of cover up, an instance of a factually ascertainable event.

An invitation from the judges to talk about the destruction of emails. What an opportunity.  Now here’s Carvin:

Carvin: That has nothing to do with the Hockey Stick. It has nothing to do with our accusation that the Hockey Stick was fraudulent or intellectually bogus. This was about a related campaign to intimidate people who disagreed with them.

There were two things going on. One was the misleading portrayal of earth’s temperature. The other thing was that a group of people at East Anglia started sending out emails attacking their critics. That’s what we’re talking in the second case. I don’t believe that it has  anything to do with the allegedly defamatory statements of Mr Simberg. Certainly nothing to do with National Review or Steyn.

There are two disputes : one is whether the hockey stick is misleading, the other is whether they ostracize people who disagreed with them.

Unf-ing believable.

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Oral Argument 2: EPA on “Fraud” Allegations

Towards the end of Carvin’s mostly cringeworthy rebuttal,  he seemed to score on EPA’s rejection of complaints against Mann’s own defamatory accusations of “scientific fraud”.  EPA had found that Mann’s use of the term “fraud” meant no more than he believed the articles to be “scientifically flawed” and that, in such circumstances, Mann’s language was “appropriate”.  That Carvin brought this point up at all, after omitting it in his written brief and after mangling his rebuttal remarks on falsification and email deletion so badly, was a small miracle, but he managed to draw the judges’ attention to the issue and it’s one that seems to me to be a very big obstacle to Mann’s case.

The defendants had, of course, been long familiar with Mann’s own repeated defamatory statements, including accusations of “fraud”, but, if the Court is expected to show deference to EPA on scientific matters, EPA’s finding on the use of the term “fraud” by scientists will be hard to distinguish.  In addition, as I’ll try to argue below, one of the governing principles of New York Times v Sullivan was that citizens should have the same rights and privileges in their criticism of public officials, as the public officials themselves possess.  So if the EPA acquiesces in or permits Mann to accuse critics of his work as an IPCC Lead Author of “fraud”, it is hard to see a principled basis for Mann having a right to make such accusations that is unavailable to his critics.

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Oral Argument 1: Context

I have an audio copy of the oral argument in Mann v Steyn, which I’ve posted up (see link at the end of this post). One of things often under-estimated by those readers (especially at WUWT) who are bloodthirsty for litigation as a means of settling scores is that it’s not easy for litigation lawyers to fully assimilate a complicated history. In the oral argument of the anti-SLAPP motion, both the lawyers and judges seem too often to be playing blind man’s bluff with the facts, making a decision both unpredictable and probably somewhat random.

I plan to do separate posts on the oral arguments of each lawyer. John Williams, Mann’s lawyer, frequently misrepresented the facts (as he did in the written brief). Michael Carvin, National Review’s lawyer, was not only too ignorant of the facts to stuff the misrepresentations of Mann’s lawyer, but made some bizarre gaffes that made me cringe listening to it. In my opinion, Carvin’s representation was only passable when he was tub thumping about the First Amendment in a context that did not require knowledge of the facts in this case. Andrew Grossman, CEI’s lawyer, seemed to me to be the person who understood the facts reasonably well, but he got sidetracked onto technical issues of evidence and, unwisely in my opinion, let Carvin handle the rebuttal for both parties.

In preparing notes on the oral argument, I got diverted into the need for explication on several fronts.

Most of the legal concepts involved in libel defence are unfamiliar to readers. On the other hand, the judges are unfamiliar with the facts, which, unfortunately, are sometimes either poorly represented or not represented at all in the briefs.

The leading cases (Malkovich, Moldea, Guilford, Harte-Hanks) are common ground to the lawyers and judges, but not to readers.  In this series, I’ll include some discussion of the main libel defences in play in this proceeding. Because Mann’s lawsuit claims libel not simply from the term “fraudulent”, but also from epithets ranging from “ringmaster of the tree ring circus”, “intellectually bogus” to “data manipulation” and data “torture”, the suit necessarily involves a wide range of libel law.

With all the attention paid to “Mike’s Nature trick” and “hiding the decline”, you’d think that the relevant procedures would have been carefully explained in the briefs. But they haven’t. Three different diagrams are involved in the various controversies (the WMO 1999 cover, the IPCC 2001 spaghetti graph and the Mann et al 1998-99 hockeystick diagram).  In my opinion, CA posts are not only the most authoritative source on these procedures, but the only source which carefully describes the procedures, free of disinformation.  Carvin, on behalf of National Review, completely failed to understand the differences between the diagrams and thus his factual statements tend to be unintelligible or uninterpretable. (Carvin did forcefully made some First Amendment arguments, but, in doing so, too often failed to observe that various opinions were not only permitted, but reasonable.)   During the closing phases of the rebuttal argument, the judges turned their attention to important questions of disclosure, issues that were not addressed in the written briefs as clearly as they might have been.

Assertions from John Williams, Mann’s lawyer, are even less reliable. His overt misrepresentations about the findings of various inquiries has been documented in previous CA posts.  Unnoticed in the oral argument and reply briefs was that Williams had slipped an untrue and deceptive characterization of “Mike’s Nature trick” into their most recent written brief, which otherwise mostly tracked his original January 2013 (almost word for word in many sections). I’ll discuss this new disinformation in a separate post.

While much of the recent controversy (including some of Simberg’s references) focused on issues regarding the “trick”, Steyn had described Mann’s particular hockey stick as “fraudulent” as long ago as 2006 (h/t David Appell). In Steyn’s earlier criticism, Steyn had specifically referred ing to Mann’s (undisclosed) use of a biased algorithm in the production of his original Hockey Stick . Inter-related were  contemporary controversies about Mann’s withholding of adverse verification statistics and misrepresentation of the supposed robustness of his reconstruction to presence/absence of tree rings, especially stripbark bristlecones.   These issues are not directly mentioned in any of the “eight” inquiries that Mann and his lawyers listed as ones that the defendants ought to have been aware of, though they were touched on in the 2006 NAS panel and Wegman report, neither of which were listed as inquiries of which the defendants ought to have been aware of.  As noted in the past, Mann lied to the NAS panel about not calculating the verification r2 statistic.

Mann’s brief prominently cited the 2007 IPCC Assessment Report in support of the claim that various criticisms of his Hockey Stick didn’t matter.  CA readers will recall that the language of the 2007 IPCC Assessment was not an “independent” assessment, but resulted from surreptitious correspondence between Eugene Wahl, then a close associate of Mann’s, and IPCC Lead Author Keith Briffa (of East Anglia) and that the destruction of this correspondence was carried out by Wahl shortly after receiving an email from Mann containing Jones’ notorious request to destroy the emails.  This topic came up in the closing stages of the oral argument and Carvin’s uninformed and incompetent response about the destruction of emails and their relevance to Steyn’s accusation simply beggars belief.

Because Steyn and National Review have parted ways, Carvin and National Review seem to have been unaware of the long backstory and more or less presented the dispute (from National Review’s perspective) as little more than a purely academic controversy over the validity of tree rings as a temperature proxy, leaving the judges completely mystified on why Mann, as opposed to any one of hundreds of scientists, was at issue.  I do not see how the judges could possibly understand the articles without understanding Mann’s distinctive role in the Climategate emails and that the widespread calls for misconduct investigations were not “commissioned by” either CEI or National Review, nor did either institution play any role in prompting the investigation at Penn State that was the topic of Simberg’s commentary. Nor did either institution play any role in the formation of any of the other inquiries, such as they were, other than CEI’s petition for reconsideration of the EPA Endangerment Finding.

The only misconduct inquiry to take evidence from Mann himself appears to have been the one at Penn State, an institution, which, as is well known, subsequently received intensely unfavorable publicity for its failure to properly investigate misconduct by Jerry Sandusky.  Simberg’s article was written on the remarkable occasion of former FBI director Louis Freeh recommending criminal charges against Penn State president Graham Spanier for his failures in connection with the investigation of Sandusky’s misconduct.  CEI’s written brief discussed this context,  but, in retrospect, much less forcefully than it might have, while National Review ignored it.

Recently, misconduct and misconduct investigations have been widely publicized in the recent U.S. controversies about police misconduct and police misconduct investigations. No one seriously contends that a report of a misconduct inquiry necessarily puts an end to discussion or controversy.  It is hard to contemplate the amount of controversy that would result if an external review of procedures in a police misconduct investigation resulted in a police chief being charged criminally for obstruction.  Further, if a police chief was charged in respect to one misconduct investigation, one can presume that there would be vociferous demands that other misconduct investigations be re-examined. Although these analogies seem obvious, they were not pursued in the briefs or oral argument.

In the case of the Mann misconduct investigation, major defects in the procedure were already known.  For example, there was the astonishing communication from a member of the Penn State Inquiry Committee that William Easterling, who was said to have “recused” himself due to conflict of interest, had actually interfered with the Inquiry Committee to prevent them from interviewing me. Or that it was Graham Spanier who re-assured the Penn State community about the supposed thoroughness of the investigation into Mann’s conduct.

While CEI’s brief took note of one aspect of academic misconduct, they overlooked Penn State policy AD-47, which was actually at issue for the Investigation Committee. In the oral argument, Carvin did not appear to understand the scope of academic misconduct investigations and, bizarrely, did not appear to understand how the term “falsification” is defined in academic codes of conduct, a confusion that led him into a particularly cringeworthy gaffe.

The definition of academic misconduct as it applies to this case needs to be reviewed and I’ll do that separately.

In my prior commentary on this case, I mostly focused on Mann’s misrepresentations in regard to the various investigations, as it seemed to me that the case could be decided most easily on Mann’s failure to demonstrate “actual malice”.  As a result, I haven’t commented on the “actionability” of the various epithets.  While WIlliams has attempted to assimilate all terms as accusations of “fraud”, it seems to me that there are very large differences between allegations of “ringmaster of the tree-ring circus”, “intellectually bogus”, “data manipulation”, “data torture”, “academic misconduct” and “fraudulent hockey stick” and that these very different allegations cannot be armwavingly assimilated. This distinction is particularly relevant to CEI and Simberg, who did not use the word “fraud”.

Rather than trying to deal with the language on an overall basis, it seems worthwhile to look at each epithet individual.  Both Grossman and Williams commented in oral argument about the term “data manipulation”, with Williams’ reply appearing to me to be a major gaffe.  I’ll also discuss an interest precedent regarding use of the word “bogus” that was cited in the National Review brief. (The word “bogus” was one of a number of epithets used by Harry Edwards, then the Chief Judge of the D.C. Circuit, in an academic article responding to critics of the D.C. Circuit).  In Carvin’s closing, Carvin forcefully reminded the judges of EPA’s finding in relation to the word “fraudulent” in respect to charges against Mann, reminding them EPA determined that the term when applied to the arguments of Mann’s opponents, meant no more than that those arguments were “scientifically flawed” – a point previously noted in CEI’s reply brief. Though very late in the proceedings, this point seemed to give some pause to the judges.

While there are many interesting and complicated issues pertaining to the actionability of the language,  it seems to me (as it has for a long time) that it is relatively easy to decide the case on Mann’s failure to establish “actual malice” as understood in U.S. libel law.  In my own commentary to date on this case, I’ve focused on the flagrant misrepresentations of the findings of the various inquiries in Mann’s brief and the dependence of his actual malice argument on those misrepresentations. Mann’s lawyer offered only a single case in support (Harte-Hanks), but it can be trivially distinguished from the facts in the present case.

If a Canadian court were approaching this matter (using the style of Canadian decision given U.S. law), if it could decide the case on Mann’s failure to show evidence of “actual malice” as defined under U.S. law (as I believe to be required on what Mann has produced to the court), a Canadian court would, in many cases, abstain from decision or commentary on actionability issues, lest it make a bad precedent on controversial facts that were poorly argued by the lawyers, but would dismiss Mann’s case on the narrowest issue of his failure to provide evidence supporting “actual malice” as defined in U.S. libel law. Such a decision would, in this case, leave everyone disappointed – an outcome that might well appeal to the D.C. judges as well as being just.

The link to the audio is in two parts: Part 1; Part 2.  Stay tuned for more discussion. On those topics where I’ve indicated an intent to comment in more detail, I’d prefer that commenters wait for this more detailed commentary rather than pre-empting a more detailed exposition.

IPCC Lead Author and the Nazca Vandalism

nazca linesIPCC Lead Author Sven Teske, as alertly observed by Shub Niggurath, was one of the leaders of the vandalism of the Nazca lines during the recent Lima conference.

Several years ago, I had criticized Teske in his role as IPCC Lead Author, a criticism also taken up by Mark Lynas.

Like the Nazca vandalism, Teske, a Greenpeace employee and activist, had promoted the Greenpeace scenario in the IPCC special report on renewables. Teske had been Lead Author of the chapter responsible for critical assessment of the feasibility of the Greenpeace renewables scenario – an assessment that was not carried out in the chapter or report, despite expectations of policy-makers and the public.

The Greenpeace scenario was then equally uncritically promoted in the IPCC press release, from which the following statement was widely distributed:

Close to 80 percent of the world‘s energy supply could be met by renewables by mid-century if backed by the right enabling public policies a new report shows.

WG3 Co-Chair Ottmar Edenhofer defended Teske at the time as having been nominated by the German Government:

Sven Teske was nominated as an author by the German government and selected by the WGIII as Lead author in the IPCC’s continuous effort to draw on the full range of expertise, and this includes NGOs and business as well as academia.


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