Was Michael Mann Absolved by the Post-Climategate Inquiries as Inferred by DC Appeals Court?

Foreword

I have followed climate matters for a long time and have been aware of the inquiries that followed Climategate. So, instinctively, when Michael Mann claimed that Climategate inquiries exonerated him, I believed the claim was incorrect.

There were four inquiries that the Appellate Court focused on (See p. 96 of court opinion which referred to “four separate investigations”) which accepted Mann’s argument that he had been exonerated. See link to the opinion: https://cei.org/litigation/michael-e-mann-v-national-review-and-cei-et-al

The Court’s identification of the inquiries was confusing, but I will focus on the main reports that seem to be the basis for the Court’s conclusion. Having reviewed the inquiries closely, my opinion is still that the investigations did not exonerate Mann.

Some of the emails are misleading, and the various reports and graphs that are important to the resolution of this case are very hard to keep track of. If one attempts to dive in the middle of this dispute without having a clear idea of the background, it is easy to get sucked down a rathole of confusing and overlapping studies, graphs, emails, and inquiries.

The point of this blog post is to create an accurate reference work that is comparatively easy to follow. So, although it is somewhat tedious, I have gone into a good amount of detail on what would otherwise be minor details.

Concise Summary of Findings

Although the Court was not always clear as to what four studies it was looking at (See *** at end of this post), here is a brief description of my findings pertaining to the studies most relevant to the Court opinion.

1. Muir Russell Report (also called the Independent Climate Change E-mails Review (ICCER): This report was commissioned by the University of East Anglia (UEA) to look at issues that arose concerning the UEA following the release of 1073 UEA emails. Although Mann was mentioned in some of the emails, the real focus was on the academic integrity of the UEA. It could not exonerate Mann. The House of Commons reviewed Muir Russell, and the Court subsumed Muir Russell under the United Kingdom House of Commons Report.

2. Oxburgh Report (formally known as the “Science Appraisal Panel of Climatic Research Unit of University of East Anglia): This report was reviewed by the House of Commons report. It didn’t even mention Mann or any of his publications.

3. Penn State Two Stage Inquiry: These reports did not closely examine scientific criticism of Mann’s work, and Penn State totally flubbed the investigation into whether, at the very least, Mann indirectly took part in an email deletion scheme when he forwarded an email from Phil Jones to Gene Wahl asking for the deletion of emails pertaining to the Fourth Assessment Report (AR4) of the IPCC.

4. National Science Foundation (NSF) Close-Out Memo regarding Penn State investigation of Michael Mann. This Memo is completely unsubstantiated; it is not clear who wrote the memo or did the underlying work. Also, although it is widely believed that it is referring to Penn State and Mann, it never explicitly names either.

5. EPA Reconsideration of Endangerment Finding: On p. 83 of the opinion, the Court referred to the EPA as having found that the science underlying the Hockey Stick was valid. When the EPA did look at Mann specifically, it downplayed his contributions, and he was only mentioned once in the Reconsideration Report. (See p. 85 of the report) Since the EPA’s consideration of Mann was so skimpy and was only briefly mentioned by the Court, I will not discuss it further.

Overview of Important Science and Email Issues Useful to Understanding the Legal Dispute

I. Problems with Tree Proxies (Divergence)

Around 1960, tree proxies which seemed to be accurate indicators of rising and falling temperatures began showing declines (less growth and density), when the instrumental records were showing rising temperatures.

There seems to be no doubt that a number of tree proxies were simply inaccurate after 1960. See https://climateaudit.org/2008/11/30/criag-loehle-on-the-divergence-problem/

Thus, to the extent that tree proxies were known to be inaccurate, it is sometimes reasonable, with full DISCLOSURE, to splice together old tree proxies from, say 500 years ago up to 1960 with instrumental records. If you continued with tree proxies known to be defective, it would obviously be wrong.

The problem with tree proxies raises a huge issue. If they aren’t accurate now, how do we know that they were accurate four or eight hundred years ago? The answer is that we don’t know.

However, for some reason, a lot of skeptics place the vast majority of their focus on the instrumental temperatures and not the fairly easy question dealing with the apparent unreliability of proxies.

It seems to me that the only way anyone can say that today’s global average temperatures (for example) are, let’s say 2.5 degrees C higher than those in the 10th century is to preface that statement with the qualifier, my best guess is….

II. The Misleading “Hide the Decline” Email

From Phil Jones: “I’ve just completed Mike’s [Mann’s] Nature trick of adding in the real temps to each series for the last 20 years (i.e., from 1981 onwards) and from 1961 for Keith’s to hide the decline.”

From: Phil Jones [November 1999]
To: ray bradley ,mann@xxxxx.xxx, mhughes@xxxx.xxx
Subject: Diagram for WMO Statement
Date: Tue, 16 Nov 1999 13:31:15 +0000
Cc: k.briffa@xxx.xx.xx,t.osborn@xxxx.xxx

Dear Ray, Mike and Malcolm,
Once Tim’s got a diagram here we’ll send that either later today or
first thing tomorrow.
I’ve just completed Mike’s Nature trick of adding in the real temps
to each series for the last 20 years (ie from 1981 onwards) amd from
1961 for Keith’s to hide the decline. Mike’s series got the annual
land and marine values while the other two got April-Sept for NH land
N of 20N. The latter two are real for 1999, while the estimate for 1999
for NH combined is +0.44C wrt 61-90. The Global estimate for 1999 with
data through Oct is +0.35C cf. 0.57 for 1998.
Thanks for the comments, Ray.

Cheers
Phil

Prof. Phil Jones
Climatic Research Unit Telephone +44 (0) xxxxx
School of Environmental Sciences Fax +44 (0) xxxx
University of East Anglia
Norwich Email p.jones@xxxx.xxx
See https://climateaudit.org/2009/11/20/mike%e2%80%99s-nature-trick/

(See also Climate Audit: “The Jones trick has been explained in previous CA posts … and consists of replacing the tree ring data with temperature data after 1960 – thereby hiding the decline – and then showing the smoothed graph as a proxy reconstruction.) https://climateaudit.org/2009/12/10/ipcc-and-the-trick/

When you first hear the phrase “hide the decline,” it is easy to believe that the speaker is talking about hiding a real decline in instrumental temperatures. Instead what Jones is talking about is hiding the decline evident in tree proxies after approximately 1960.

However, if you are going to attempt to have 1,000 year or 1,400-year temperature reconstructions, just a little bit of thought will make it clear that the tree ring proxies have to be dropped after 1960.

On the other hand, there is a large question as to whether it is worthwhile to do 1,000-year reconstructions when the proxies used are known to be unreliable in today’s world; how is it really possible to know that proxies were reliable 1000 years ago?

It is true that before the 1998 Hockey Stick introduced by Mann, the divergence problem was openly discussed in the literature.

What Jones was doing when he spoke of “hide[ing] the decline” was attempting to gloss over the divergence problem and the decline in temperatures that would be shown by continuing to use tree proxies when extrapolating temperatures as shown in a paper written by Keith Briffa of University of East Anglia [UEA] who was part of the Climatic Research Unit (CRU).

III. Mike’s Nature Trick

Understanding this requires a knowledge of statistics, and the ability to compare Mann’s work in his Nature paper with what Jones was doing for the WMO.  In light of my limited knowledge of statistics, I am punting on this.

See, for instance, https://climateaudit.org/2011/03/29/keiths-science-trick-mikes-nature-trick-and-phils-combo/

Analysis of “Exoneration” Part of Court of Appeals Decision

The Court of Appeals issued a lengthy, 111-page opinion, holding that Michael Mann had a valid defamation case to present against Rand Simberg, Rich Lowry, the National Review, the Competitive Enterprise Institute, and inferentially, Mark Steyn. (Who did not appeal, but whose case would rise and fall in the case of the others).

The portion of the opinion that I am focusing on is from p.82 to p.97 in which the Court heavily relied on four investigations to reach the conclusion that the defendants could have acted with actual malice in criticizing Mann for the research he did.

My basic conclusion is that the four “investigations/endeavors” did not thoroughly investigate Mann and that the Court made a clear mistake when it incorrectly relied on the investigations to allow Mann’s lawsuit to proceed.

Read rest of analysis at The Blackboard