Coda to Eli's UVa post

See Eli's previous post.

Eli's right about ruling from the bench, as opposed to listening to the lawyers babble, ask some questions, and then taking the matter under submission to re-emerge weeks later with an opinion.  Ruling from the bench means the judge was very confident about who was right, and nothing in the four hours of oral argument preceding the ruling made the judge waver and consider delaying action to review the written briefs.  It's a smack-down of the side that loses.

Getting fees from the losing side when the losing side is a private entity is very unusual in America, so unfortunately I doubt that'll happen in this case.  OTOH, it's all a matter of state law, so maybe Virginia law might have something that would help.

A grain of salt about the accuracy of the summary by the losing side.  Maybe it's accurate, but don't bet the farm.  They make it sound like Mann's side lost some backup arguments they were trying out in case the main argument failed.  Losers are putting on a brave face, but they can't help noticing that they lost.  I expect there may be cross-appeals from Mann's side about their backup arguments, assuming he has the legal resources available to put in the effort.

It would be interesting to know if the judge ruled from the bench while reading a carefully-prepared statement or spoke more colloquially.  The former would probably carry more weight on appeal.

I read somewhere that 14 or so other states have similar provisions in their laws.  If the ruling is appealed and sustained, then the appellate court precedent could be persuasive elsewhere.  If it's not appealed, the decision by a lower court like this one has little or no persuasive authority.  Bad guys get to decide whether to double down on the issue.

Denialists denied by judge in New Zealand lawsuit

Via John Mashey, there's a blog post by Gareth on yet another attempt by climate denialists to muddy the record on climate change, this time by suing New Zealand's National Institute for Water and Atmospheric Research for publishing a temperature record that shows New Zealand warming up over the last century.

Definitely check out Gareth's post, or if you have time, the ruling itself.  Skimming it, seems like the denialists didn't have very good lawyers at first (or none at all) and then found someone more reasonable to help them.  A lawyer can't make magic out of bad material though, so in the end they got shut down completely (to be a fly on the wall and hear what their new lawyer told them about their prospects, or to see what document the lawyer required them to sign acknowledging those prospects).  Kind of fun to see my old friend Bob Carter get the skeptical treatment he's earned for himself.

And also these results:

[172] In summary on this point, the Trust [denialist group -ed.] alleges generally that NIWA failed to properly deal with the UHI/shelter issue which had the effect of other stations acquiring derivative warming from the inclusion of the Albert Park (Auckland) and Kelburn (Wellington) sites. Dr Wratt disagrees. He says that the excess temperature trend identified by the Trust for the Auckland series is incorrect. Further, even if it was correct, the effect it would have on the other sites would be negligible. Dr Wratt is of the view that Dr Carter has misinterpreted the scientific literature in making the claims he does.
....
[178] NIWA refers to eight lines of evidence that indicate New Zealand has warmed significantly over the period 1909 to 2009: 

• the consistent results of the recalculated 7SS following the review, which was consistent with the results recorded in the original 7SS series based on the Salinger 1992 work, plus subsequent annual updates; 
• peer review for the pre-2010 versions of 7SS, including by the editors of International Journal of Climatology; 
• the analysis and calculation of the trends using the Salinger post-1992 7SS by a separate set of scientists within NIWA; 
• trends from the independent 11SS, which disclosed that with no homogenisation the warming trend was 1.0 degrees Centigrade for 1931 to 2008; 
• results from the 21+3 station series; trends from ship measurements and surrounding oceans;52 retreat of New Zealand glaciers; 
• observed global climate changes. The IPCC 2007 assessment concludes warming of the climate system is unequivocal. It reports the 100 year linear trend (1906 to 2005) and global surface temperature is +.74 degrees Centigrade ±0.18.

Someone is judicially unimpressed with the ubiquitous urban heat island argument, and with the other arguments ignoring the mountain of evidence showing us that we're warming.

Should be interesting to see whether the agency will get its costs covered as the judge ordered.  Like Gareth, I wonder if the non-profit trust created to bring the lawsuit, instead of the denialist Climate Science Coalition, will be found to be a mysteriously asset-free husk capable of paying its own lawyer in advance, but otherwise broke.

One final note:  while Americans are legitimately criticized as litigious, this type of ridiculous lawsuit can't be done here.  It was just a scientific report - if you don't like it, then go do your own scientific report and argue it out.  You can only sue here over an action taken on the basis of a report, not to suppress the report itself (on the federal level at least, I can't vouch for Red states).  We did just barely dodge this bullet - industry groups snuck a two-paragraph rider into a budget bill in 2000 called the Information Quality Act or Data Quality Act as a means of gumming up the works and preventing exposure of their misdeeds.  Chris Mooney included it in his Republican War on Science book, but courts have generally told industry groups to go away when they tried to sue with it as a tool.  So that's one thing we've done right, at least.

Court to Repubs: kill EPA climate regulations and you'll get blowback

The headline is my takeaway from this Jonathan Adler post at the Volokhs, although it may not be his. Here's the appellate court ruling, about whether actions risking the spread of the invasive species, Asian carp, require a preliminary injunction against a public nuisance:

. . . In our view, the plaintiffs presented enough evidence at this preliminary stage of the case to establish a good or perhaps even a substantial likelihood of harm – that is, a non-trivial chance that the carp will invade Lake Michigan in numbers great enough to constitute a public nuisance.... That does not mean, however, that they are automatically entitled to injunctive relief. The defendants, in collaboration with a great number of agencies and experts from the state and federal governments, have mounted a full-scale effort to stop the carp from reaching the Great Lakes, and this group has promised that additional steps will be taken in the near future. This effort diminishes any role that equitable relief would otherwise play. Although this case does not involve the same kind of formal legal regime that caused the Supreme Court to find displacement of the courts’ commonlaw powers in American Electric Power, on the present state of the record we have something close to it. In light of the active regulatory efforts that are ongoing, we conclude that an interim injunction would only get in the way. We stress, however, that if the agencies slip into somnolence or if the record reveals new information at the permanent injunction stage, this conclusion can be revisited.

(Emphasis added.)

American Electric Power was the attempt to bring a public nuisance case against a variety of companies for greenhouse gas pollution. The Supreme Court, with the support of the Obama Administration, threw the case out because the EPA was regulating greenhouse gas anyway. I argued a while back that the Obama Admin positioned itself this way to provide a disincentive to Republicans for killing (or more likely, defunding) Clean Air Act climate regulations and enforcement, that doing so would revive the public nuisance lawsuits.

Now we have a similar issue, expressly citing AEP, that warns that "somnolence" can bring about public nuisance injunctions. As I said in my previous argument, I'd rather have a public nuisance case and EPA regulations, but there is a reason behind Obama's strategy.

Somewhat tangential: Adler is an interesting type, btw. Previously I would've classified him as a delayer/lukewarmist, and dismiss as unimpressive his position of semi-supporting little other than a politically infeasible carbon tax. I think he may have shifted a bit, though, along with a few other conservative intellectuals who are having troubles with the anti-science positions on their side of politics.

EPA climate regulation, the budget, and Obama's nuanced-but-wrong view on climate lawsuits

One under-reported aspect of the Obama budget compromise is that EPA's regulation of climate change gets to move forward, although grants and other programs to directly fight climate change were killed. This seems to me to be an important victory - EPA has another year to get more detailed regulations developed, polluters have to spend a year in compliance and begin their adaptation to regulation. Most importantly, the climate rejectionists only have one more shot to kill EPA regulation in the 2012 budget before the November 2012 elections. New regs should be finished by the time the 2013 budget rolls around, and if we're lucky, the Republican majority in the House will be much smaller (although the same is likely true for the Democratic majority in the Senate, where 2 Dems are up for re-election for every Repub in that cycle). Budgets, not direct overturning of EPA authority, are the things we have to worry about.

Of course, the EPA climate regulations aren't exactly earthshaking, but they are progress. I also expect lawsuits by the enviro community sometime after the regulations are in place - not to suspend them, but to keep them in place while enviros litigate for tougher ones. Comprehensive climate legislation would of course be better, but this is the hand we've got until at least 2013, and quite possibly two or four years later given the difficulty overcoming the filibuster in the Senate.

I think this all plays a role in Obama's nuanced-but-wrong attempts to strike down climate change lawsuits in the courts. It went to oral argument last week, and things don't look good. Lawprof Jonathan Zasloff excoriated Obama for taking the polluters' side last fall, while I took a nuanced-but-critical view in the comments to Jonathan's post. Obama is arguing the climate-as-a-public nuisance is displaced by the Clean Air Act, as long as the EPA is acting to enforce the law:

in the 15 months since the court of appeals issued its decision, EPA has taken several substantial actions pursuant to its CAA authority to address greenhouse-gas emissions. EPA finalized the proposed rule that the court of appeals discussed—the “endangerment finding” (i.e., that greenhouse-gas emissions are reasonably anticipated to endanger public health and welfare). It also adopted standards governing emissions of greenhouse gases from certain motor vehicles. As a result of those regulations, which took effect on January 2, 2011, carbon dioxide is now a “pollutant subject to regulation under [the CAA].” 42 U.S.C. 7475(a)(4).

On December 23, 2010, EPA announced a proposed settlement agreement, under which it would commit to complete, by May 26, 2012, a rulemaking relating to NSPS for greenhouse gases emitted by fossil-fuel-fired electric-utility steamgenerating units (i.e., the category of stationary sources at issue in this case).

Thus, EPA’s actions have triggered a regulatory cascade that will result in the application of PSD requirements to new and modified stationary sources that emit greenhouse gases.

(p. 10)

In other words, if the Republicans take away enforcement, the nuisance case has a strong reason to come back. Obama figures this will reduce the level of Republican incentive to gut the EPA on climate change.

I'm not saying I agree with this, but just that it's a workable strategy. It's a strategy aimed at promoting EPA regulation. If all you wanted was new climate legislation in Congress then you wouldn't do this, you'd instead keep the nuisance suits viable absent any legislation and then offer to kill them in the new legislation as a concession to the rejectionists.

I think it's bad law, in that it basically denies the role of courts in adjudicating public nuisances like they've done for generations, but there's reasoning behind it.

Denialist Attorney General shot down in Round 1

Virginia's Attorney General Cuccinelli attempted to investigate Michael Mann for fraud because Cuccinelli (let's call him Cooch) didn't like Mann's views on climate change, but that's hit a road block. A judge thinks the investigatory demand should spell out what the fraud was before Cooch can legally require the University of Virginia to open all of Mann's computer files to Cooch investigators. From the opinion (p. 3-4):

In order for the Attorney General to have "reason to believe" [that fraud may have occurred], he has to have some objective basis to issue a civil investigative demand, which the Court has power to review.

....

What the Attorney General suspects that Dr. Mann did that was false or fraudulent in obtaining funds from the Commonwealth [of Virginia] is simply not stated....

Cooch really has two problems here: first, he couldn't figure out how to say "I think Mann may have intentionally misrepresented data in order to show compliance with grant funding that he had received." That's the first-year law student mistake which has received deserved ridicule.

Second and more important IMHO is that Cooch needs an "objective basis" for suspecting fraud: a little thing called "evidence." Absent that, Cooch is just doing a little thing called "witch hunting." Restating the demand to actually suspect a fraud also requires a reason to suspect fraud, and the judge could decide if the reason is ridiculous.

There's more to the opinion, mostly against Cooch, a little in support of him. The University's lawyers went for the approach of "try any argument that could potentially win" instead of limiting to a few arguments that show Cooch was making frivolous claims, so Cooch did win a few of the subsidiary battles while losing this round. My guess then is that this judge wouldn't sanction the Attorney General for making a frivolous demand, unfortunately.

Unless he's foolhardy, Cooch won't revise his demand or appeal. OTOH, maybe he thinks there are more judges in Virginia whose understanding of the law matches his own.

University of Virginia shows how many ways Cuccinelli doesn't have a case

Eli Rabett links to University of Virginia's decision to fight back against the denialist idiot state Attorney General's effort to harass the university and climate researchers (context here, the basic idea is to demand every document produced by researcher Michael Mann to see if they can claim a mistake equals fraud). It's just a petition asking the court to tell Cuccinelli to jump in a lake, and full briefing arguments will have to wait. Several things stand out, though.

As Eli had noticed elsewhere, four of the five grants used as the basis of the document demand weren't from the state but from the feds, so the university says the state fraudulent claim law is inapplicable. The fifth, state-funded grant was awarded in 2001, two years before the state law came into effect. Also, the investigative demand failed to state the nature of the conduct constituting the alleged violations of false claim (fraud) law, as required by the law.

The problems listed above may by themselves be enough to let UVa prevail, and they're certainly proof of embarrassing legal work by an incompetent hack (especially that last one). They may be fixable, though. If the federal grants "passed through" UVa instead of being a direct grant to Mann, then the state might be able claim an ownership interest in those grants. If the unversity-funded grant lasted longer than two years, the state might be able to claim the "fraud" occurred when the state law was in effect. Finally, the AG office could red-facedly reissue the demand that meets the letter of the law by stating what conduct constituted fraud.

I've left out the two best reasons for shutting down Cuccinelli, though. The investigative demand can only be issued if the AG has "reason to believe" that UVa has information relevant to a potential fraud, and the demand cannot be so broad as to be burdensome. Cuccinelli has no basis to believe that fraud has been committed and couldn't articulate a basis for fraud when asked. Demanding virtually every document Mann produced, in addition to being burdensome, is evidence that the AG doesn't have a claim and instead is on a fishing expedition to find something.

Cuccinelli might curl up and quit at this point, or he might fight it out. I don't know Virginia legal procedures, but the petition might already be assigned to a particular judge, so they can try and figure out what that judge is likely to do. Best case scenario is the judge/appellate judges write scathing decisions shutting Cuccinelli down for using his political power to harass scientific and political viewpoints he dislikes. Those opinions would be Exhibit 1 in an ethics complaint filed with the Virgina Bar Association. Get this joker disbarred.

UPDATE: Another potential consequence is for UVa to ask the presiding judge to sanction the AG for the frivolous investigative demand, and to repay UVa's attorney fees. Easier to get than an ethics action and embarrassing to the AG, but quite as consequential (UPDATED UPDATE: meant to write "not quite as consequential").

Even skeptics see the VA Atty General as another McCarthy

(I was going to write about rock-climbing in Yosemite, but I guess that'll have to wait.)

Today a few people who might otherwise get the term denialists have earned the skeptic moniker for a day, for opposing the Virginia Attorney General fishing expedition that seeks virtually all records held by the University of Virginia regarding a former researcher Michael Mann who believes in climate change, while AG Cuccinelli doesn't.

More info at Deltoid, including a list of some skeptics who've done the right thing. I'd add, with reservations, the climate action diversionist Roger Pielke Jr. Reservations stem from the fact that Roger can't resist stabbing Mann in the face a few times during the blog post condemning Cuccinelli and offering his "support" for Mann.

The fishing expedition request is here. Timpanogos has a good link roundup. Regarding his thought that the statute of limitations has been exceeded, I don't think so - the section he quotes only applies to actions by private parties, not the AG. There's this section of the law, though:

§ 8.01-216.12. Civil investigative demands; protected material or information.

A civil investigative demand issued under this article shall not require the production of any documentary material, the submission of any answers to written interrogatories, or the giving of any oral testimony if such material, answers, or testimony would be protected from disclosure under (i) the standards applicable to subpoenas or subpoenas duces tecum issued by a court of this Commonwealth to aid in a grand jury investigation or (ii) the standards applicable to discovery requests under the Rules of the Supreme Court of Virginia, to the extent that the application of such standards to any such demand is appropriate and consistent with the provisions and purposes of this article.

I'm thinking this could provide a reason for UVa to stand up to the AG, if they wanted to, just like they could fight any unreasonable subpoena. The AG isn't going after anyone else though, not Mann directly (Roger missed this part) so only the university has a choice. I think.

Would be useful to have lawyers who practice in these fields to weigh in on this stuff.

UPDATE: Ed Darrell of Timpanogos found a better link showing the statute of lims section does apply to the Attorney General. OTOH, my not-super-informed opinion is that the reference for those "responsible to act" means the Attorney General, not the officials supervising Mann, so either that provision applies, or the end of Mann's work in 2004-2005 comes under the six-year limit.

Scientist versus denialist defamers, part 2

(Part 1 here., all about a defamation lawsuit by a climatologist filed against denialists.)

Continuing through the writ:

Writ page 20: the National Post said Weaver's calling for replacement of the IPCC leadership, when he says he specifically told the reporter he's not. Again, a question of interview tapes or credibility. Here's a sidenote: I think the question of the National Post's accuracy as editors or as reporters can be brought into question as a general matter if they're going to defend themselves by asserting that they're accurate and Weaver's lying. Totally unrelated claims by people that the National Post had a pattern of misrepresenting them after being interviewed could be introduced as evidence. I think. Could make for some fun impeachment of witness credibility at open trial, and even more fun depositions, discovery of internal email/documents, etc.

Pp 20-21: Weaver says he's been consistently cautious about linking current weather events to global warming. This will be an interesting/potentially important. Defendants will say any description of a potential link, no matter how cautious, is sensationalizing, while a court that's had enough of the defendants might decide otherwise. For some reason, the public seems to listen to judges, so a court decision on this issue could be good PR. Also, the 'screams global warming' fake quote is a pretty good claim in that it seems tied to specific weather events and not the long term increase in temps.

I'm skipping some defamatory claims that were the same as above but repeated in later publications.

So that's the most interesting and important stuff, IMHO. One other thing I'll add is that Weaver's lawyer, Roger McConchie, appears to specialize in this field, so he's likely to get good representation. This could be very interesting.

Scientist versus denialist defamers, part 1

I'm celebrating Earth Day here by going through the defamation case filed in Canada by a climatologist against some misleading defamers that was made in the Canadian tabloid press.

The 48 page writ and other docs are here, I've only got time to look at part of it, but I will pull out the best claims and the most important claims for comments.

Standard disclaimer: not exactly my legal field, not my country.

I'm seeing contrary info on whether Canada/British Columbia applies the same higher bar that England apparently has for a public figure to establish defamation. Whether the plaintiff Andrew Weaver qualifies as a public figure under BC law is yet another question. Those two issues are likely the most important ones in the success of the case, and I have no idea how they'll play out. Let's ignore them!

Moving on, the good stuff begins on pages 10-12 of the pdf (pages 5-7 of the writ): two defamatory claims - that Weaver claimed the fossil fuel industry was behind two break-ins in his office, and that he doesn't understand "solar climate theory". The first one is a really good claim depending on evidence, while the second is the important claim.

Weaver denies he ever linked fossil industry to the breakins, so it's a simple factual dispute. The question is what does the evidence show - if there's a tape of the interview and he doesn't make the link, he's won the case (or this part, anyway). If there's no tape but his interviewer alleges he did make the connection, then it's a matter of who seems more credible.

Worth noting here that Canada has a "responsible communication" defense - even if the interviewer lied or negligently screwed up, no other co-defendant (besides that defendant's employer) is also liable unless they also practiced negligent journalism. Knowingly employing someone who's a bad journalist probably isn't responsible journalism though.

The interesting and important second claim major claim is that Weaver was defamed by the assertion that he doesn't understand "solar climate theory," something that a climatologist who studies climate change would be expected to understand if he were at a basic level of competence. This could go beyond fair comment/expression of opinion, something where the defendant better have some evidence on his side. The other interesting thing is I'll bet there's well-defined case law on to what extent you can allege a professional is incompetent, and when the false allegation gets specific enough to be defamatory. Obviously there's no precedent for climatologists, but that doesn't matter - similar cases made by doctors, could provide guidance.

On writ page 8, the claim that "models are all falling apart" when they're not, is also important. Mainly because it could get a judge to weigh in on computer models. The issue might get tossed as simple opinion, though.

The anonymous posters on page 11 and 12 may have defamed Weaver, especially the second one, but it's harder to see whether anyone would take them seriously, meaning their defamation wasn't capable of causing much reputational damage because they're obviously just two boneheads.

Page 14 "Doc Weaver was publicly blaming the oil industry" for the break-ins. Someone made a very big mistake by putting that word "publicly" in the article, because it doesn't matter then whether the interviewer claims Weaver blamed the oil industry. If they don't have a public expression somewhere to cite to, they're in trouble. Best claim I've seen so far. (UPDATE: thought about it some more - if the the interviewer will claim that Weaver made the connection speaking to her, then the defendants will say that counts as public. Kind of a thin reed.)

Kind of fun, on the same page, is the claim that McIntyre "broke Mr. Weaver's hockey stick". Weaver says (p. 15) that he had nothing to do with the Hockey Stick temperature record, and that puts the defendants in a bind: if a court says the hockey stick isn't broken, then they've defamed him, and even if the court somehow says it was broken, they've defamed him by blaming him for something he didn't screw up. Some wiggle room though with defendants claim that Weaver supports the Hockey Stick, and it's all just opinion, anyway.

That's enough for now, I'll have to come back later for more fun.

(One addition - the Deltoid link at the very top has a discussion of a case where Fox News was legally allowed to lie (allegedly). It's not a defamation case though, so it's not relevant to this discussion.)

UPDATE: second half here.