In a recent post, I observed that Mann’s Statement of Claim contained a bizarre misrepresentation about the nature of Mann’s research, as it falsely credited Mann with being “one of the first” to document the increase in 20th century temperatures. Reader PhilH, a retired judge, observed that, on its own, the misrepresentation was merely odd and that it would have significance for the pleadings only if it could be connected to the narrative of the case. In today’s post, I’ll try to do exactly that.

The “money quote” chosen by Mann’s lawyers as supposed evidence of his “exoneration” by the “inquiries” is an EPA statement that manipulation of “temperature data and trends” is a “myth”. This quotation connects to the paragraph 2 misrepresentation, but not to Mann’s actual research. It’s a massive whiff by Mann’s lawyers.

In their initial memoranda to dismiss, CEI and NR lawyers paid no attention to this irrelevant quotation. This sent Mann’s lawyers into an apoplectic rage: in their Reply Memorandum, they made wild, almost deranged, accusations that CEI and National Review had “misled” the court by ignoring their irrelevant quotation about temperature data. None of this makes any sense unless Mann’s lawyers were misled by their own misrepresentation about Mann’s research into “temperature data”. The belligerence of Mann’s lawyers on the topic, can perhaps be explained (but not condoned) by hypothesizing that they, like Sarah Palin, believed that Climategate was about temperature data.

The CEI Petition for Reconsideration

Before discussing Mann’s Statement of Claim and the Reply Memorandum, I first wish to briefly summarize the CEI petition for reconsideration of the EPA Endangerment Finding, as this was repeatedly cited by Mann’s lawyers and plays a central role in their narrative. This petition was filed by CEI in February 2010 (jointly with the Science and Environmental Policy Project and the NIPCC), together with a supplement soon after. Although Mann’s pleadings suggest that the EPA was responding primarily to CEI’s petition, CEI was relatively small beer in the dispute, which was led by states (especially Texas and Virginia) – see here.

The CEI petition did indeed make a variety of allegations about manipulation of the temperature record, which is the largest section of CEI’s petition. CEI entitled their section on temperature: “it is clearer than ever that EPA’s claim of unequivocal warming is scientifically indefensible”. It based this claim on supposed “manipulation” of temperature data by CRU and others. One of its primary issues was the dropping of many stations from the GHCN dataset. CEI argued that none of the three major temperature institutions had provided a “scientific explanation” for the discontinuance, that the temperature statistics were “highly compromised” by the discontinuance and are “likely to have strong warming biases” and that EPA’s reliance on them was not “scientifically defensible”. CEI had contested the same issues in October 2009 shortly before Climategate, following CRU’s admission that it had not preserved original data. Its earlier petition had been rejected on the grounds that the other two indices (GISS, NOAA) showed similar results. In its February 2010 petition, CEI returned to this issue, claiming that all three indices relied on the same supposedly “compromised” GHCN dataset. In addition, while the Climategate emails scarcely mentioned temperature data, the Harry Readme, included among the documents in the Climategate dossier, raised questions about the quality of CRU work (though the Harry Readme was shown fairly quickly to relate to the CRU TS data, rather than CRUTEM.) Mann has nothing to do with temperature data and CEI did not mention Mann’s name in connection with this section.

CEI’s petition also recited a variety of then topical criticisms of IPCC AR4 (e.g. Himalaya glaciers, Amazon rain forest, African agriculture). In its discussion of IPCC, it included a bullet point about “hide the decline”, but thoroughly botched its presentation of the issue, mixing up AR3 in which Mann was involved and AR4 in which Briffa (responding grudgingly to my review comments) coopered up the disclosure defects of AR3. I discussed the CEI allegation and EPA response in respect to this incident at length in a previous article here – I urge interested readers to review this earlier blog post.

In summary, CEI did not associate Mann with its allegations of “manipulation” of the temperature data nor did Mann feature prominently in their petition, Mann being mentioned only in connection with the hide-the-decline incident.

Mann’s Statement of Claim

Given that Mann’s research did not involve instrumental temperature data, the emphasis on “temperature data” both in his Statement of Claim and Reply Memorandum (January 2013) are really rather startling.

As noted several days ago, paragraph 2 of Mann’s Statement of Claim, introducing Mann’s research, made the bizarre misrepresentation that Mann was “one of the first” to document temperature increases in the 20th century. In the original Statement of Claim (the italicized sentence was deleted in the Amendment in July 2013), Mann even claimed that the Nobel prize supposedly awarded to “Dr Mann and his colleagues” was “as a result of this research” [showing 20th century temperature increases]. This misrepresentation was so gross that even Nick Stokes agreed.

2. Dr. Mann is a climate scientist whose research has focused on global warming. Along with other researchers, he was one of the first to document the steady rise in surface temperatures during the 20th Century and the steep increase in measured temperatures since the 1950s. As a result of this research, Dr. Mann and his colleagues were awarded the Nobel Peace Prize. [italicized deleted in Amended Statement of Claim]

In contrast to this association of Mann’s research with temperature data, the Statement of Claim nowhere mentions “proxy reconstructions” or Mann’s use of tree ring data for proxy reconstructions.

Later in the Statement of Claim, Mann and his lawyers reproduced an extended EPA quotation (though its provenance appears to be incorrectly attributed to the EPA Decision Document rather than accompanying press kit prepared by the EPA press office). The extended quotation purported to show that allegations that “temperature data” had been manipulated were a “myth”. Mann’s lawyers represented this declaration as, at least in part, responsive to the CEI petition. The complete except is given below:

22. Notably, in July 2010, CEI, a defendant in this case, and others, filed a request entitled Petitions to Reconsider the Endangerment and Cause or Contribute Findings for Greenhouse Gases under Section 202(a) of the Clean Air Act. In response, the Environmental Protection Agency published a summary of its findings, entitled “Myths vs. Facts: Denial of Petitions for Reconsideration of the Endangerment and Cause or Contribute Findings for Greenhouse Gases under Section 202(a) of the Clean Air Act,” which stated: Myth: The University of East Anglia’s Climatic Research Unit (CRU) emails prove that temperature data and trends were manipulated. [my bold] Fact: Not true. Petitioners say that emails disclosed from CRU provide evidence of a conspiracy to manipulate data. The media coverage after the emails were released was based on email statements quoted out of context and on unsubstantiated theories of conspiracy. The CRU emails do not show either that the science is flawed or that the scientific process has been compromised. EPA carefully reviewed the CRU emails and found no indication of improper data manipulation or misrepresentation of results. Myth: The jury is still out on climate change and CRU emails undermine the credibility of climate change science overall. Fact: Climate change is real and it is happening now. The U. S. Global Change Research Program, the National Academy of Sciences, and the Intergovernmental Panel on Climate Change (IPCC) have each independently concluded that warming of the climate system in recent decades is “unequivocal.” This conclusion is not drawn from any one source of data but is based on multiple lines of evidence, including three worldwide temperature datasets showing nearly identical warming trends as well as numerous other independent indicators of global warming (e. g., rising sea levels, shrinking Arctic sea ice). Some people have “cherry- picked” a limited selection of CRU email statements to draw broad, unsubstantiated conclusions about the validity of all climate science. U.S. Environmental Protection Agency, “Decision Document, Denial of Petitions for Reconsideration of Endangerment and Cause or Contribute Findings for Greenhouse Gases under Section 202(a) of the Clean Air Act” (July 29, 2010). Available at http://epa.gov/climatechange/endangerment/petitions/decision.html

Later, in the segue from background to discussion of the disputed blog articles (paragraph 25), Mann referred back to the “money quote” in paragraph 25 as having found that:

“CEI’s claims of data manipulation were labeled a “myth” by the EPA in 2010”.

On its own, the paragraph 2 misrepresentation might perhaps have been incidental. However, in combination with the EPA quotation supposedly rebutting allegations regarding “temperature data and trends” and its association with CEI petition complaints about supposed manipulation of temperature data, the paragraph 2 misrepresentation connects to a central narrative of the Statement of Claim. This narrative emphasis on temperature data is easily overlooked by people who (like CA readers) understand the nature of Mann’s research, but the distinction between temperature data and proxy reconstructions is not necessarily appreciated by people new to the dispute, such as Sarah Palin in 2009 and apparently Mann’s lawyers. (Mann, of course, knew that he was not “one of the first” to document the increase in 20th century temperatures and, while the form of errors suggest that they were introduced by his lawyers, Mann is responsible for misrepresentations in his pleadings.)

The Memoranda for Dismissal, December 2012

In December 2012, both CEI and National Review submitted memoranda in support of their motions to dismiss.

In their memorandum, National Review did not mention EPA’s seemingly irrelevant statement about “temperature data and trends”. Perhaps, National Review’s then counsel were so mystified by Mann’s invocation of such an irrelevant EPA statement that they didn’t feel it necessary to respond.

The CEI memorandum observed that Mann’s Statement of Claim had failed to provide a single quotation from seven of the reports and asserted that its EPA excerpts (also NSF) did not “actually contradict” any CEI statements:

So too is the assertion that those reports’ contents contradict any of the challenged statements made by the CEI Defendants. Compl. ¶¶24-25. Indeed, the Complaint fails to quote a single word or cite a single page from seven of those reports, and the brief excerpts of two that it does set forth [EPA, NSF] do not actually contradict any of the CEI Defendants’ challenged statements. Compare Compl. ¶¶22-23 with Compl. ¶26.

And indeed, CEI’s lawyers were exactly right on these points. The quoted EPA statement on “temperature data and trends” was not relevant to Mann’s research and did not contradict any actual statements in the CEI article.

CEI’s position in their memorandum was also completely consistent with their earlier response to Mann’s lawyers’ letter, in which they had observed (correctly in my opinion) that most of the supposedly exonerating investigations “did not examine Professor Mann’s conduct or even mention him”.

Penn State Professor Michael Mann’s lawyer claims that nine investigations of academic fraud have all exonerated Professor Mann. Most of these investigations did not examine Professor Mann’s conduct or even mention him, and Penn State University’s investigation was typical of that institution’s unfortunate tendencies.

Mann’s Reply Memoranda, January 2013

In January 2013, Mann filed two nearly identical reply memoranda, one to CEI and one to National Review. Given that Mann’s Reply Memoranda were produced by professional counsel, their vituperation and choler are quite startling. In our first submission to Nature in 2004, one of the reviewers (later identified as Ian Joliffe) said that he was unimpressed by Mann’s tactic of merely trying to “shout” “louder and longer” in his response, but this tactic has generally seemed to work well for Mann, and he definitely seems to have found kindred spirits in his lawyers.

Conspicuously, the Reply Memorandum did not provide support for (or repeat) the false Statement of Claim assertion that Mann was “one of the first to document the steady rise in surface temperatures during the 20th Century and the steep increase in measured temperatures since the 1950s”. This time, it more plausibly characterized MBH98-99 as studies that “applied new statistical techniques in an attempt to reconstruct temperatures over past centuries from “proxy” indicators”. The Reply Memorandum discussed (page 18) “hide the decline” and, in that discussion, distinguished between temperature data and proxy reconstructions.

However, in their section on the EPA inquiry in their Reply to CEI (page 22), Mann’s lawyers once again conflated statements about temperature data as somehow relevant to Mann’s work, stating:

A central argument by the petitioners [CEI] was their contention that Dr. Mann and other scientists had distorted, concealed, and manipulated certain temperature data, which fundamentally called into question EPA’s endangerment finding. In their petition, CEI stated that Dr. Mann’s proxy data which was included in IPCC’s assessment report “was artfully truncated” so as to give the “false impression that the tree ring data agree with reported late 20th Century surface temperature data, when in fact they did not.”[47 – CEI petition] CEI went on to explicitly accuse Dr. Mann of “artful deceit” and “deliberate” “deception,” even attaching an exhibit to their petition titled “An Explanation of How Michael Mann Hid the Decline.”[48- CEI petition] In response, the EPA thoroughly investigated each and every e-mail and found that there was no evidence of data manipulation or fraud. [49 – Response to Petitions, volume 1].

As discussed in the above section on the CEI petition, CEI had not alleges that “Mann and other scientists” had “distorted, concealed, and manipulated certain temperature data”; Mann was nowhere named in their discussion of temperature data. As also discussed above, CEI had indeed made allegations about Mann’s role in “hide the decline”. As I reported previosuly, the EPA did discuss this incident (mainly RTP Response 1-5), but they did not there state that there “was no evidence of data manipulation or fraud”; they took the narrower (and legally astute) position that EPA had (wisely) not cited the criticized AR3 graphic in its Endangerment Finding and therefore that the issue was moot for the purposes of reconsideration – an entirely different conclusion. Nor did they conclude that there was “no evidence of data manipulation” in connection with the contemporary 1999 WMO graphic discussed in the notorious Jones email, but only that it was an “issue for WMO to address”, as the graphic had likewise not been relied upon in the EPA Endangerment Finding. This was clever lawyering by EPA, but not an exoneration of Mann’s hide the decline in AR3.

Later in the section on EPA, Mann’s lawyers went well outside the bounds of acceptable belligerence, making an accusation that CEI and National Review counsel had made a “deliberate attempt to hide information” from the Court (page 24). The “information” that the defendants had allegedly attempted to hide was the “existence of the EPA inquiry” and that his “inquiry” had been requested by CEI. Once again, Mann’s lawyers reproduced the extended EPA Myths versus Facts quotation about “temperature data and trends” that they had cited in the Statement of Claim, this time claiming that this quotation demonstrated that EPA had “categorically rejected the fraud allegations” against Mann:

Remarkably, and in what can only be characterized as a deliberate attempt to hide information from this Court, Defendants do not even bother to disclose the existence of the EPA inquiry, and in particular the fact that this inquiry was requested by CEI. In any event, EPA categorically rejected the fraud allegations against Dr. Mann as a “myth” Myth: The University of East Anglia’s Climatic Research Unit (CRU) emails prove that temperature data and trends were manipulated. Fact: Not true. Petitioners say… [the rest of the quotation is as in the Statement of Claim quotation above]

Obviously, this wild claim by Mann’s lawyers is untrue or misleading on multiple levels. The existence of the EPA “inquiry” had not been “hidden” from the court, as it had already been prominently featured in Mann’s Statement of Claim. Although its inclusion as an “inquiry” is questionable (and questioned by Ross McKitrick, the author of a lengthy review on the Climategate inquiries), CEI had nonetheless commented on Mann’s EPA quotation, observing that it did not contradict anything that they had written. (While their text did not refer to EPA by name, it is clearly identifiable as one of the two agencies from which quotations were reproduced in the Statement of Claim.) Nor did the proffered EPA quotation show that allegations against Mann were a “myth”. The quotation, which is hardly revealed truth and which CEI and NR were entitled to contest, only commented on “temperature data and trends”, topics that had nothing to do with the Mann litigation.

Conclusion

In my opinion, Mann’s wild and reckless allegation that CEI and National Review had made a “deliberate attempt to hide information” does not have a shred of justification.

On the other hand, Mann and his lawyers falsely claimed that Mann had been “one of the first to document the steady rise in surface temperatures during the 20th Century and the steep increase in measured temperatures since the 1950s” and that “as a result of this research, Dr. Mann and his colleagues were awarded the Nobel Peace Prize.” (The latter false representation has been removed in the Amendment, but not the former.) These claims connected with a narrative that later prominently featured an EPA statement concluded that allegations that “temperature data and trends” were a “myth”, a statement that might also have been inconsequentially irrelevant, except for the prior misrepresentation of Mann’s research as being about temperature data. Further, Mann’s lawyers also purported to connect allegations in the CEI petition of manipulation of temperature data to controversy about Mann by falsely claiming that CEI had included Mann in their accusation of manipulation of “temperature data”.

That Mann’s lawyers have made misrepresentations to the Court is beyond dispute. (Even Nick Stokes concedes the misrepresentation about the nature of Mann’s work.)

But whereas Mann’s lawyers made the further defamatory allegation that CEI and National Review had “deliberate[ly]” attempted to hide information from the Court, it seems more charitable to presume that Mann’s lawyers did not “deliberately” mislead the Court about the nature of Mann’s research or the supposed links between EPA statements about “temperature data and trends” and Mann’s work, because they incorrectly believed that Mann’s research was about temperature data. After all, Sarah Palin made the same mistake about Climategate emails.

Appendix: EPA Decision, Press Kit and the “Myths and Facts” Webpage

The extended EPA quotation in paragraph 22 of the Mann Statement of Claim did not come from the (gazetted) Decision or RTP documents, but from a webpage entitled “Myths versus Facts” that was one of three “Resources” accompanying the denial decision. The other two “resources” (see here) were a Press Release and a Factsheet, suggesting that all three “resources” originated in the EPA press office and were not prepared by the authors of the denial decision or RTP documents.

In the Statement of Claim, Mann attributed the extended quotation to a “summary” of the EPA findings entitled “Myths vs. Facts”, but providing the following citation for this “summary” later in the paragraph (rather than correctly referring readers to the “resources” provided by the EPA press office.

U.S. Environmental Protection Agency, “Decision Document, Denial of Petitions for Reconsideration of Endangerment and Cause or Contribute Findings for Greenhouse Gases under Section 202(a) of the Clean Air Act” (July 29, 2010). Available at http://epa.gov/climatechange/endangerment/petitions/decision.html

The EPA decision itself is a formal document that was clearly drafted by lawyers. The purpose of the decision was the narrow issue of whether the petitions had established the need to reconsider the Endangerment Finding, not whether various scientists had committed academic misconduct. The decision was accompanied by three supporting volumes (RTP volumes), in which EPA purported to synthesize comments from the 10 petitions and provided responses to them. In my opinion, the synthetic comments frequently omit relevant nuance and the responses read too much like inline comments at Real Climate than findings of an impartial tribunal, but that’s a story for another day. Nowhere in the documents are the authors or reviewers identified. (It seems entirely possible to me that Gavin Schmidt, who had been an external reviewer of the Endangerment Finding, would have been one of the reviewers of the RTP volumes.) Nor, as Ross McKitrick has observed, did EPA seek submissions for their supposed “inquiry” into the conduct of Mann and others or, to my knowledge, interview any of the supposed subjects or their critics.

The three “Resources” documents contain many claims and assertions that go well beyond the four corners of the formal decision and RTP documents – always in a more lurid direction of environmentalism.

For example, the Press Release included a statement by EPA Administrator Lisa Jackson about “clean energy”,”green jobs”, “oil addiction” and “national security”, concepts that, whatever their merits, are hardly germane to the investigation of academic misconduct and which do not correspond to findings within the decision document itself:

Defenders of the status quo will try to slow our efforts to get America running on clean energy. A better solution would be to join the vast majority of the American people who want to see more green jobs, more clean energy innovation and an end to the oil addiction that pollutes our planet and jeopardizes our national security.

The Press Release included a list of claims and responses, the first of which claimed that petitioners had alleged a “conspiracy” to “manipulate global temperature data”:

Claim: Petitioners say that emails disclosed from the University of East Anglia’s Climatic Research Unit provide evidence of a conspiracy to manipulate global temperature data. Response: EPA reviewed every e-mail and found this was simply a candid discussion of scientists working through issues that arise in compiling and presenting large complex data sets. Four other independent reviews came to similar conclusions.

While many of the petitions were critical of temperature data (the Harry Readme was then much in the news), the word “conspiracy” does not appear to have been used by any petitioners. (I have not located any allegations of “conspiracy” in the petitions themselves but most are not available in a searchable form.) Nor did the denial decision or RTP documents state that petitioners had alleged such a “conspiracy”. This Lewandowsky-style allegation appears to be concocted by the EPA press office and disseminated by them. Nor did the decision document or RTP documents find that the Climategate emails were “simply a candid discussion of scientists working through issues that arise in compiling and presenting large complex data sets” – no such language occurs anywhere in the formal documents. This language owes more to Real Climate than to the express language of the Decision itself.

The “Myths versus Facts” webpage also appears to have been prepared by the EPA press office. It too contains language and findings that go well beyond the denial decision and RTP documents. The first “myth” on the webpage concerned the supposed manipulation of “temperature data and trends” – the paragraph which Mann reproduced so prominently in his pleadings:

Myth: The University of East Anglia’s Climatic Research Unit (CRU) emails prove that temperature data and trends were manipulated. Fact: Not true. Petitioners say that emails disclosed from CRU provide evidence of a conspiracy to manipulate data. The media coverage after the emails were released was based on email statements quoted out of context and on unsubstantiated theories of conspiracy. The CRU emails do not show either that the science is flawed or that the scientific process has been compromised. EPA carefully reviewed the CRU emails and found no indication of improper data manipulation or misrepresentation of results.

As noted above, none of the petitions that I’ve examined allege “a conspiracy to manipulate data”. Nor did either the denial deision or RTP documents contain a finding that “media coverage” was based on “email statements quoted out of context and on unsubstantiated theories of conspiracy”. And while there were some “unsubstantiated theories of conspiracy” in the media in the wake of Climategate, for the most part, these theories (e.g. speculation that the leaking of the Climategate dossier had been sponsored by fossil fuel interests, perhaps in concert with Russian security services) were propounded by climate scientists, rather than their critics. The other statements also go well beyond the express language of the denial Nor did the EPA decision document directly state that they “found no indication of improper data manipulation or misrepresentation of results”. After all, “hide the decline” was, at minimum, an “indication of improper data manipulation or misrepresentation of results” and had been flagged by both the Oxburgh and Muir Russell panels though they had pointed away from CRU (towards Mann). As noted above, EPA cleverly avoided confronting “hide the decline” by declaring that the issue was moot for the Endangerment Finding itself.

Other examples of inconsistency between the press kit and “official” documents abound.

Given that ACLU et al have vigorously argued that US citizens are not obliged to recognize findings of even formal government institutions as “facts”, one presumes that this principle would apply even more forcefully to mere press statements and webpages from activists in the EPA press office.



