Tuesday, November 25, 2014

Pro Se CEI NR Michael Mann


So Eli went down to the DC Court of Appeals to listen to CEI and NR tell why they are allowed to tell lies (or at least opinionated prefabrications) about Mike Mann in the pursuit of the First Amendment.  The First Amendment was hiding out in the coffee shop across the street hoping not to be recognized.  There was some interesting stuff, not all of it concerning climate change.

The Court of Appeals is housed in the original city hall which has been fantastically restored.

Before Eli gets to fillet the arguments a brief aside about the first case to be heard, an an appeal Vasile Graure vs. the United States.  Graure, after being tossed out of a strip club came back and set the bouncer Vladimir Djordjevic on fire, gravely injuring him.  Graure was convicted and sent to jail for essentially forever, but when Djordjevic died two years later Graure was tried on a charge of murder.  Seems like Mark Steyn is not the only one to think representing himself was a good idea, and Graure did.

The appeal of his conviction was on a strange ground.  It seems that at trial, when Graure was being transported from the jail, the marshall only allowed him to take one inch of paper from the bankers box in which he was storing his material.  The attorney representing Graure on appeal took this to be a reversible error (there was a few minutes of muttering at the end about whether the murder charge was double jeopardy but no one took that very seriously.  Anyhow, turns out that the judge offered Graure a couple of choices, to have someone else move the box every day, or for him to get copies from the prosecution and Eli forgets the third.  Somehow Graure's attorney forgot to mention that in her presentations.  Eli has learned to his cost that you listen to what lawyers don't say, not to what they do say, which is the point of this small digression.  The only prediction of the day that the Rabett will offer is that  Graure will spend the rest of his life in jail and that is no problem.

Which brings us to Competitive Enterprise Institute and National Review vs. Mann.  The court was not jam packed but about a third filled with lots of folks in suits and a few scraggly bloggers, Eli amongst them, so you may be hearing more of this elsewhere.  As a marker of how the law has changed, the three judges and the three lawyers in the first case were all women.  The three judges stayed the same, but the second case was argued by Andrew Grossman, and Michael Carvin, for CEI and NR and John Williams, for Michael Mann.  Williams was accompanied by a woman lawyer but she did not present.  For those of you interested in change of life issues, Eli suggests the twitter hashtag #feministhackerbarbie cause this is just gonna be same old same old.

What was impressive was how well informed the judges were about the general issues surrounding the case, perhaps not the science part but certainly the public to and fro.

There was a short digression while Mumbles from the DC Government made a presentation about whether the Court was correct in hearing a direct appeal of a ruling based on the DC Anti-Slapp Statute.  He said yes, but the judges were much more interested in talking about what the standard should be for granting such a motion for dismissal based on the law.  There was back and forth about smell tests, likelihood to prevail criteria and more.

This got hammered in the presentations by the others.  CEI made an interesting claim that in the interest of First Amendment Freedom to tell lies (or at least prefabrications) the DC Council accepted that some valid law suits would be quashed that would have prevailed if allowed to come to trial.  CEI also conceded that where material facts are in dispute the trial judge will have to weigh the evidence.  Something that the trial judges specifically did in denying the Anti-SLAPP motion.

Everyone pretty much agreed that no matter what the standard for allowing a libel suit to go forward, the standard for proving malice should be much higher.  Frankly no one actually had a cut and dried answer for what the standard should be, and this is something the Court of Appeals is going to have to settle if it allows (and it seems it has based on some earlier cases) appeals from Anti-SLAPP statute cases to go forward.  The court kept trying to get a clear statement, asking for comparisons with the standards for other motions to dismiss and frankly got nowhere.  They are going to have to do it themselves probably settling for preponderance.

To give a flavor of the back and forth, CEI asserted that there was nothing to distinguish Simberg from any other pundit in the newspapers or on the internet.  That what he wrote was a matter of subjective interpretation, and over there the Climategate Emails.

One of the judges broke in and pointed out that Simberg said Mann was a falsifier, to which the CEI lawyer hemmed: "Not really".  The judge then pointed out that the trial judge has said as much in his ruling, receiving in return the haw that what Simberg wrote was a subjective interpretation of facts.  The judge asked if subjective interpretation was opinion, and was told that interpretation was too subjective.  The CEI lawyer was then asked if the distinction was that opinion required a factual basis.

The reply to this was that opinion is supportable when the writer reveals the facts on which the opinion is based and this immunizes the writer from libel suits.  We then went down the Climategate Email hole for a while.  The Court asked if the Emails were the facts.  CEI responded that the Emails were evidence of conspiracy and pulling tricks.  The Court pointed out that this reply was the equivalent of accusing Mann of fraud, and the response was read the Emails, which, of course was not a response because, as the bunnies will see, most of CEI and NR's pleading is that juries should not be asked to draw conclusions about such things because they are matters of dispute not facts.

NR was next up, and FWIW, the NR lawyer, called NR hereafter, was much better at pleading his case.

To give nothing away, Eli heard time and again that NR was not claiming that Michael Mann falsified the data, rather that he messed with it.  Of course, a constant reprise of how dishonest Mike's trick, joining the dendrology data to the instrumental record, was.  No one pointed out that the instrumental data is the most reliable data we have.  NoNoNo, and the Court appeared to miss this too, also that the instrumental data shown in the various figures extended back to 1880 or so.   This is rather an own goal because both NR and CEI in their pleadings denied that there has been any change in global temperature since like forever, or a millennia (OK, lawyers, not bloggers).

The Court pointed to a couple of places where whether writing by Steyn and Simberg on its face claims that Mann has committed provable fraud, but with a charitable reading would only be a caustic claim of opinion.  Much back and forth on this, an injection from NR that if their appeal is not granted, that their writers frequent claims that Obama committed this or that would clog the courts.  Besides which Climategate and Michael Mann distorted and cherry picked the data,

Since this is an appeal against the denial of relief under the anti-SLAPP statute, the court asked, ok, why not let a jury decide if this was distortion or not?  NR said that, well we don't let juries decide about whether one opinion or the opposite is correct and then the Court brought the hammer, pointing out that Rich Lowry had written in NR challenging Mann to meet NR in court so what are they doing here in the Court of Appeals.

Well harumphed the NR, these are not objectively verifiable things, or at least not objectively verifiable as a matter of opinion, and in that case as far as the law is concerned they are not objectively verifiable and therefore cannot be decided by a jury.

The Court had some thoughts on the matter, for example, does that take science out of court, well yes says NR.  Does that mean there is a First Amendment exception for science asks the Court, well only for matters of public concern.  The Court points out that accusations of academic misconduct and calling for investigations are not debates about science.  NR says, yes they are.  The Court demurs softly.  NR goes full Climategate and says anyhow, the stuff they imagine in those Emails, whether that happened or not is not for juries to decide.

So thence comes John Williams (JW) who has 30 minutes, and a good lawyer he is.  Speaks slowly but continually which limits the opportunity of the Court to throw questions at him, and frankly they appeared less interested in doing so than for the other two.  Williams starts by pointing out that the NSF IG report specifically cleared Mann of "falsifying data, concealing, deleting or otherwise destroying emails, information or data, misusing privileged information or seriously deviating from accepted practices for proposing, conducting or reporting research and other scholarly activities", which, of course NR and CEI in their presentations did accuse him of, well maybe not the first.

JW pointed out that Simberg continuously said the nasty about Mann and that CEI's complaints to the EPA about Mann were accusations of mopery and more.  So what about all those investigations asks the Court.  NR and CEI believes they are all whitewashes.  JW points out that in their briefs neither CEI or NR argue that their charges against Mann are true.  Well, he says a bit later in response to the Court pointing out that neither NR or CEI believe that humans cause climate change, that does not immunize them.  Purposeful avoidance of truth is sufficient to establish actual malice.

The rebuttal by NR degenerated into table pounding on the WMO report cover, perhaps a sign that he knew they were in trouble, but the Court needs sufficient background to see through it.

And so to bed.

Sunday, November 23, 2014

Black's Lament

Eli, having grown up in a neighborhood where certain words were used as nouns, verbs, adjectives and adverbs as well as conjunctions and pronouns, often in a single sentence, was not quite as observant about Louis Black's rant on Republican not climate scientists.

The bunny was quite surprised by the response.

So to show you what Eli hears, here is Louis Black on climate change again (maybe the last couple of minutes tomorrow).  There is a rhythm to it.
Republicans who aren't scientists when it comes to climate
I love the fact that they say that “I am not a scientist”
Well, I'm not a doctor.
That's why we have scientists 
As soon as you say that "I am not a scientist, but . ."
That's why we have them
You don't have to do it
We don't expect you to do it 
What I do expect leadership to do is to listen to the scientists
I expect that because they, like us, went through an education process
And then we got to chemistry, like I did
And I said I can't do this 
I burned my hand on a Bunsen burner
Titrate?  What's titrate? 
They're scientists.
I hear this time and again and I am tired of it
It's an argument that comes up time and time again 
96% of the world's scientists agree there is climate change
That, whether you like it or not
It's a fact 
I have spent way to much time researching this
It is exhausting as a comedian when I have to look this stuff up 
Forty times to get forty things
And then people tell me that it is not true
And you tell me your 4% is right 
Look it's scientists, not a coven of witches
They are not back there double double toil and trouble
Newt of eye, you fool 
You know what they know how to do
They know how to do the metric system
Something you could learn. 
There is climate change
I don't argue it anymore
I don't discuss it anymore 
When I watch the chunk of one of the poles just drop off and float away
And didn't even  say goodbye
Greenland is down by 20%
Greenland icy Greenland cold Greenland 
Even if they are wrong
Even if they are wrong.

One of the things we might want to do as a people is to treat the planet
In a fashion that we care for it 
I don't know about these people
I know that I read the Bible
And the Bible told me 
And even though I might not believe in a lot of it
One of the common sense things is that 
This is a garden that we were given to care take
But if you need a profit
If you need to get that profit
Just barrel through 
Don't worry about your children
Or your children's children 
Worry about how much money they are going to have
Because they are going to need that money to pay for the damage
That we're doing now 
The effects of human induced climate change are being felt in every corner of the United States
With water growing scarcer in dry regions
Torrential rains increasing in wet regions
Heat waves becoming more common and more severe
Wild fires growing worse
And forests, forests dying under the assault of heat loving insects 
That's the one that worries me
I do not know that insects experienced the emotion of love
How scary is that
And not even for another insect
For heat

Friday, November 21, 2014

How to Talk to Someone Who Denies People Are Driving Climate Change


Well, Louis Black is a bit pithier than Eli, there are some words here that the young bunnies should not hear


UPDATE:  See Black's Lament  for a translation from the vernacular that you can read to the young ones.

Thursday, November 20, 2014

And Then There Was Golf


ATTP is threatening to leave blogging for more time on the links and in the lab.  Eli understands he got a call from Rachel M and some other friends.




Mike Nichols did

Sunday, November 16, 2014

The Right Celebration


Prof. Monica Grady of the the Open University shows the right way to celebrate her lifetime investment when Rosetta's Philae probe landing on Comet 67P Churyumov-Gerasminko



Planetary missions and space missions in general, are a lifetime of work with a probability not zero of crashing and burning.  A lifetime of pent up hopes and a huge investment of time and reputation.  

The Sausage Grinders Tale

Friends of the GREP will be happy to ply their trade on what emerged in the G20 final statement as compared to yesterday's leaks, but Eli is interested too in the preceding paragraph, emphasis added

18. Improving energy efficiency is a cost-effective way to help address the rising demands of sustainable growth and development, as well as energy access and security. It reduces costs for businesses and households. We have agreed an Action Plan for Voluntary Collaboration on Energy Efficiency, including new work on the efficiency and emissions performance of vehicles, particularly heavy duty vehicles; networked devices; buildings; industrial processes; and electricity generation; as well as work on financing for energy efficiency.  We reaffirm our commitment to rationalise and phase out inefficient fossil fuel subsidies that encourage wasteful consumption, recognising the need to support the poor.
This really rocked Tony Abbott's boat, as reported in the Sydney Morning Herald
Mr Abbott gave an impassioned defence of coal and, reportedly, argued against inserting a line in the communique recommending the abolition of fossil fuel subsidies, an objective of the G20 for many years.
further
Mr Obama is understood to have spoken forcefully against Mr Abbott's position on fossil fuel subsidies. The final communique calls on G20 members to "rationalise and phase out inefficient fossil fuel subsidies".  
Mr Abbott had support from Saudi Arabia and Canada, but countries led by the US and Europe remained steadfast. 
"The most difficult discussion was on climate change," an EU official told reporters on condition of anonymity, Reuters reported. 
"This was really trench warfare, this was really step by step by step. In the end we have references to most of the things we wanted." 
The communique included references to taking practical measures to combat global warming and an explicit endorsement of the climate fund. 
The inclusion of a detailed passage on climate change comes despite the issue not being on the formal agenda of the G20 summit and Mr Abbott's insistence that the focus of discussions should be on economic reform.
The final text inserted and deserted some things from the leaked version that Eli blogged on yesterday in the true spirit of sausage grinding.   Interestingly in that contentious last sentence which made it in, including the green climate fund slightly changed to such as the Green Climate Fund.  Full text below
19.  We support strong and effective action to address climate change. Consistent with the United Nations Framework Convention on Climate Change (UNFCCC) and its agreed outcomes, our actions will support sustainable development, economic growth, and certainty for business and investment. We will work together to adopt successfully a protocol, another legal instrument or an agreed outcome with legal force under the UNFCCC that is applicable to all parties at the 21st Conference of the Parties (COP21) in Paris in 2015.  We encourage parties that are ready to communicate their intended nationally determined contributions well in advance of COP21 (by the first quarter of 2015 for those parties ready to do so). We reaffirm our support for mobilising finance for adaptation and mitigation, such as the Green Climate Fund.

Saturday, November 15, 2014

Sausage Making

Somebunny on the inside has been feeding the Guardian drafts of the G20 communiques.  The part on climate change started out a week ago as

We support strong and effective action to address climate change, consistent with sustainable economic growth and certainty for business and investment. We reaffirm our resolve to adopt a protocol, another legal instrument or an agreed outcome with legal force under the United Nations framework convention on climate change that is applicable to all parties at the 21st conference of the parties in Paris in 2015 
which, weak as it was, was forced through against the wishes of the Australian hosts.  This has now morphed into
We support strong and effective action to address climate change, consistent with the United Nations framework convention on climate change and its agreed outcomes. Our actions will support sustainable development, economic growth and certainty for business and investment. We will work together to adopt successfully a protocol, another legal instrument or an agreed outcome with legal force under the United Nations framework convention on climate change that is applicable to all parties at the 21st conference of the parties [COP] in Paris in 2015. We encourage parties that are ready to communicate their intended nationally determined contributions well in advance of COP21 – by the first quarter of 2015 by those parties ready to do so.
with negotiations now on a final sentence
We reaffirm our support for mobilising finance for adaptation and mitigation, including the green climate fund.
The Australians are not happy.

UPDATE from the Guardian:  In another example of how bad the environmental situation in China is
the Finance Minister Zhu Guangyao, told reporters at the G20 on Saturday that China would work hard to ensure its emissions peaked before 2030. He said that if the Chinese economy developed too fast for the environment to sustain “we must make adjustments to our policies in a timely way so we can minimise the impact on our environment”
Coal is the plague.

Tuesday, November 11, 2014

Breaking-US and China Reach Agreement on Limiting Greenhouse Gas Emissions

The US and China have reached agreement on limiting greenhouse gas emissions.  The bottom lines (and they are of necessity different) is that China will cap emissions by 2030 or earlier and generate 20% of its energy without fossil fuels.  The US has agreed to cut emissions by 26 to 28% below 2005 levels by 2025.

The devil is always in the details, but this is an interesting first step towards a Montreal solution to limit climate change which, of necessity, must be asymmetric.  Each country takes a step forward, mostly but not exactly, in the same direction.  In the US, negotiations with Republicans appear more difficult.

The Whitehouse press release made some interesting points:

3.     Today, the Presidents of the United States and China announced their respective post-2020 actions on climate change, recognizing that these actions are part of the longer range effort to transition to low-carbon economies, mindful of the global temperature goal of 2℃
David Victor and Charles Kennel enjoyed that one
5.     The global scientific community has made clear that human activity is already changing the world’s climate system. Accelerating climate change has caused serious impacts. Higher temperatures and extreme weather events are damaging food production, rising sea levels and more damaging storms are putting our coastal cities increasingly at risk and the impacts of climate change are already harming economies around the world, including those of the United States and China. These developments urgently require enhanced actions to tackle the challenge.
Hmm, guess there is a consensus about the science that the policy makers have figured out
6.     At the same time, economic evidence makes increasingly clear that smart action on climate change now can drive innovation, strengthen economic growth and bring broad benefits – from sustainable development to increased energy security, improved public health and a better quality of life. Tackling climate change will also strengthen national and international security.
and the economics.

There is a  fact sheet on the agreement