Andrew Weaver: It was “defamatory” to say that he called for Pachauri Resignation

One of the more startling aspects of Andrew Weaver’s libel case was Weaver’s claim that it was defamatory in Canada to say, even in an opinion column, that Weaver had called for Pachauri’s resignation or even a change in leadership at IPCC.   It was even more startling that novice judge Emily Burke found in Weaver’s favour on this point. Given the controversies surrounding Pachauri in 2010, one might ask of Weaver: if you didn’t call for Pachauri’s resignation, why didn’t you?    The absurdity of Weaver’s libel claim on this point became particularly stark when Pachauri was charged in India with sexual harassment and finally resigned as IPCC chairman.

J Burke’s absurd acceptance of Weaver’s claim arose, in my opinion, from multiple legal errors, which I’ll summarize in the conclusions.  To get there, I’ll briefly discuss the background of the Himalaya glacier controversy, which proves to be considerably more complicated than a single factoid error in an enormous report.  Although today’s post is long, the material, closely examined, goes in many directions and is voluminous and the post in no way covers all the potential issues.

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Revkin’s Source

In Andy Revkin’s article about Pachauri’s resignation, Revkin, apparently without awareness of the irony, included the following quotation from Grist (from The Hindu in India).

Some in India are also calling for Pachauri to step down from The Energy and Resources Institute (TERI), where he is currently on leave. “To safeguard the interest of global climate science Pachauri should step down immediately from the Chairmanship of IPCC and TERI,” Iqbal S. Hasnain, a former professor of environmental studies, told The Hindu.

The surname of Revkin’s informant ought to have attracted his interest.

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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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