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.

Continue reading

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.

Continue reading

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.

Reply to Laden and Hughes on Sheep Mountain

A couple of days ago, Greg Laden published a response from Malcolm Hughes to my recent Sheep Mountain article. In today’s post, I’ll show that the “response” was both unresponsive and absurd. Continue reading

“Unprecedented” Model Discrepancy

Judy Curry recently noted that Phil Jones’ 2014 temperature index (recently the subject of major adjustments in methodology) might be a couple of hundredths of degree higher than a few years ago and alerted her readers to potential environmental NGO triumphalism. Unsurprisingly, it has also been observed in response that the hiatus continues in full force for the satellite records, with 1998 remaining the warmest satellite year by a considerable margin.

Equally noteworthy however – and of greater interest to CA readers where there has been more focus on model-observation discrepancy   – is that the overheating discrepancy between models and surface temperatures in 2014 was the fourth highest in “recorded” history and that the 5 largest warm discrepancies have occurred in the past 6 years.  The cumulative discrepancy between models and observations is far beyond any previous precedent. This is true for both surface and satellite comparisons.

In the figure below, I’ve compared CMIP4.5 RCP4.5 models to updated surface observations (updating a graphic used here perviously), adding a lower panel showing the discrepancy between observations and CMIP5 RCP4.5 model mean.



Figure 1. Top panel.  CMIP RCP4.5 model mean (black) and 5-95% percentile envelope (grey) compared to HadCRUT4 (red). Dotted blue – the projection of the hiatus/slowdown (1997-2014) to 2030; dotted red – a projection in which observations catch up to CMIP5 RCP4.5 model mean by 2030.  Bottom panel – discrepancy between CMIP5 RCP4.5 model mean and HadCRUT4 observations.  All values basis 1961-1990.


During the hiatus/slowdown, HadCRU changed their methodology:  the changes in methodology contribute more to the slight resulting trend in HadCRUT4 than the trend in common with the older methodology. But even stipulating the change in method, 2014 observed surface temperatures are somewhat up from 2013, but still only at the bottom edge of the confidence interval envelope for CMIP5 models.   Because the CMIP5 model mean goes up relentlessly, the 2014 uptick in HadCRUT4 is far too little to catch up to the discrepancy, which remains at near-record levels.  I’ve also shown two scenarios out to 2030. The dotted blue line continues the lower trend during the hiatus, while the dotted red line shows a catch-up to model mean by 2030.  Reasonable people can disagree over which of the two scenarios is more likely.  In either scenario, the cumulative discrepancy continues to build and reach unprecedented levels.

In the second graphic, I’ve done an identical plot for satellite temperature (RSS TLT), centering over 1979-1990 since satellite records did not start until 1979. The discrepancy between model TLT and observed TLT is increasingly dramatic.

ci_GLB_tlt_1920_twopanelF IGURE 2. As above, but for TLT satellite records.


Reasonable people can disagree on why the satellite record differs from the surface record, but the discrepancy between models and observations ought not to be sloughed off because the 2014 value of Phil Jones’ temperature index is a couple of hundredths higher than a few years ago.

The “warmest year”, to its shame, neglected Toronto, which experienced a bitter winter and cool summer last year. For now, we can perhaps take some small comfort in the fact that human civilization has apparently continued to exist, perhaps even thrive, even in the face of the “warmest year”.

Some readers wondered why I showed RSS, but not UAH. In past controversies, RSS has been preferred by people who dislike the analysis here, so I used it to be accommodating. Here is the same graphic using UAH.

Figure 3. As Figure 2, but with UAH.



Sheep Mountain Update

Several weeks ago,  a new article (open access) on Sheep Mountain (Salzer et al 2014 , Env Res Lett) was published, based on updated (to 2009) sampling at Sheep Mountain.

One of the longstanding Climate Audit challenges to the paleoclimate community, dating back to the earliest CA posts, was to demonstrate out-of-sample validity of proxy reconstructions, by updating inputs subsequent to 1980. Because Graybill’s bristlecone chronologies were so heavily weighted in the Mann reconstruction,  demonstrating out-of-sample validity at Sheep Mountain and other key Graybill sites is essential to validating the Mann reconstruction out of sample.

The new information shows dramatic failure of the Sheep Mountain chronology as an out-of-sample temperature proxy, as it has a dramatic divergence from NH temperature since 1980, the end of the Mann et al (and many other) reconstructions.  While the issue is very severe for the Mann reconstructions, it affects numerous other reconstructions, including PAGES2K. Continue reading

Anti-SLAPP Hearing Today

Mann v CEI, National Review, Simberg, Steyn and their amici is being argued today. Amici for Steyn, CEI, Simberg and NR include: American Civil Liberties Union, the Reporters Committee for Freedom of the Press, American Society of News Editors, the Association of Alternative Newsmedia, the Association of American Publishers, Inc., Bloomberg L.P., the Center for Investigative Reporting, the First Amendment Coalition, First Look Media Inc., Fox News Network, Gannett Co. Inc., the Investigative Reporting Workshop, the National Press Club, the National Press Photographers Association, Comcast Corporation, the Newspaper Association of America, the North Jersey Media Group Inc., the Online News Association, the Radio Television Digital News Association, the Seattle Times Company, the Society of Professional Journalists, Stephens Media LLC, Time Inc., Tribune Publishing, the Tully Center for Free Speech, D.C. Communications, Inc. and the Washington Post.

Disappointingly, Scott Mandia and the costumed vigilantes of the Climate Response Team elected not to appear as Mann amici. (Nor anyone else.)

New Data and Upside-Down Moberg

I’ve been re-examining SH proxies for some time now, both in connection with PAGES2K and out of intrinsic relevance.  In today’s post, I’ll report on a new (relatively) high-resolution series from  the Arabian Sea offshore Pakistan (Boll et al 2014, Late Holocene primary productivity and sea surface temperature variations in the northeastern Arabian Sea: implications for winter monsoon variability, pdf).  The series has considerable ex ante interest on a couple of counts. Alkenones yield temperature proxies that have a couple of important advantages relative to nearly all other temperature “proxies”: they are calibrated in absolute temperature (not by anomalies); and they yield glacial-interglacial patterns that make “sense”. No post hoc screening or trying to figure out which way is up.  In the extratropics, their useful information is limited to summer season, but so are nearly all other proxies. Though more or less ignored in IPCC AR5, the development of alkenone series has arguably been one of the most important paleoclimate developments in the past 10 years and is something that I pay attention to.

But there is a big conundrum in trying to use them for 20th century comparisons: all of the very high resolution alkenone series to date are from upwelling zones and show a precipitous decline (downward HS) in 20th century temperatures. See discussion here.  These precipitous declines have been very closely examined by specialists, who conclude, according to my reading, that this is not a “divergence” breakdown of the proxy-temperature relationship, but rather an actual decrease in local SST in the upwelling zone, attributed (plausibly) to increased upwelling.

Because upwelling zones form only a small fraction of the ocean (though an important fraction due to biological productivity),  it is important to obtain corresponding high-resolution alkenone series from non-upwelling zones. The Boll et al 2014 is the first such example that I’ve seen and, in my opinion, it sheds very interesting new light on the vexed issue of two-millennium temperature. Continue reading


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