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Open Parachute: High Court ruled on integrity – not science

High Court ruled on integrity – not science

Ken Perrott Sep 10

There is a lot of local internet debate about the High Court decision on the Judicial Review of NIWA’s New Zealand temperature record. Some of it is poorly informed as it assumes that the Judge ruled on the correctness of the science. That the ruling confirmed that the scientific consensus on global warming is “legally” correct. This would be silly and deplorable, if true, because it’s hardly the place for the High Court to decide scientific truth.

Justice Venning saw no reason to review the science – he found the appellant’s arguments inadequate or false.

In fact the ruling was not on the science – but on the scientific integrity of NIWA scientists who produced the science. The appellants (the NZ Climate Education Trust) could not prove their effective claim that NIWA’s scientists were guilty of fraud. That the methods used to get the temperature record were faulty or jerry rigged. That being the case the request for a judicial review of the science was rejected.

Justice Venning did decide that “in principle, the remedy of judicial review is potentially available” to the appellants. But:

“Unless the decision maker has followed a clearly improper process, the Court will be reluctant to adjudicate on matters of science and substitute its own inexpert view of the science if there is a tenable expert opinion.” And “unless the Trust can point to some defect in NIWA’s decision-making process or show that the decision was clearly wrong in principle or in law, this Court will not intervene. This Court should not seek to determine or resolve scientific questions demanding the evaluation of contentious expert opinion.”

(Quotes are from Justice Venning’s Judgement).

Clearly the trust were unable to give any acceptable or convincing evidence of defects in NIWA’s work. Therefore the “application for judicial review is dismissed and judgment entered for the defendant.” And he awarded costs to NIWA.

NIWA’s reaction

NIWA also clearly interpret the judgement as endorsing their integrity. Their official comment (see Endorsement of NIWA’s science welcome) states “High Court Judge Justice Venning was unequivocal in his findings, reinforcing NIWA’s professionalism and credibility in this important area. “ And “NIWA Chairman, Chris Mace, said, “High Court Judge, Justice Venning’s ruling is a comprehensive reinforcement of the professionalism and credibility of NIWA’s science and scientists.”

The emotions of loss

Of course, those in denial are now trying to claim victory because no ruling was made on the temperature record itself (it wasn’t considered so couldn’t be ruled on) and getting all falsely indignant because others have pointed out that in effect they were charging that NIWA had acted fraudulently and this had been rejected (see “Leading climate scientists” make false allegation).

I can appreciate these local climate change deniers are a bit emotional at the moment. They have fallen to arguing amongst themselves.  They are busy smearing Judge Justice Venning (which I would think has its own legal dangers) and blaming everyone else for their defeat. But a simple glance at the history of this dispute shows that they have, in effect, been accusing NIWA scientists of fraud and justifying that accusation with untenable claims, which, in the end, were not seen as credible by the High Court.

A brief history

The Judgement illustrates the start of this sorry saga with:

[118] On 26 November 2009 members of the Coalition published on their website a paper entitled “Are We Feeling Warmer Yet”? The paper claimed that “New Zealand’s temperature had been remarkably stable for a century and a half” and that the Coalition had “discovered that the warming in New Zealand over the past 156 years was indeed manmade, but had nothing to do with the emissions of CO2 – it was created by manmade adjustments of the temperature. It’s a disgrace.” The Coalition advanced the theory that the trend shown by the 7SS disagreed with historical temperature measurements recorded in NIWA’s climate data base.

Avoiding the F word but dog whistling fraud.

This is the only real reference to that document and the quote is significant as it illustrates that these groups were really accusing the NIWA scientists of manipulating adjustments to obtain a warming trend (see New Zealand’s denier-gate). In this document they also claimed that scientists:

“created a warming effect where none existed.” . . . “the shocking truth is that the oldest readings were cranked way down and later readings artificially lifted to give a false impression of warming.” (My emphasis).

Although they have been careful to avoid the word “fraud” in their public pronouncements, their claims and charges have really just been dog whistling the same message. As has the tone of their supporters in on-line discussions.

Subsequently the authors of this document changed their story. This came after NIWA reviewed the work, carried out an independent analysis and produced a temperature record basically the same as the previous one (see Painted into a corner?). Without in any way acknowledging the incorrectness of their claim that no adjustments were necessary for site changes of the weather stations the climate change deniers/contrarians/sceptics then started to argue about the nature of these adjustments. And they later produced another analysis where they did use adjustments.

This is a weird situation – they still stand by both reports yet they are effectively saying two different things – (a) no site adjustments are necessary and (b) site adjustments are necessary but NIWA is doing it wrong! No wonder Justice Venning concluded they had no expertise in the subject.

Anonymous “science team” becomes “expert” witness

The authors of this first report were Richard Treadgold and Manfred Otto Dedekind. The latter author was originally kept anonymous (Richard Treadgold claimed they had a “scientific team” which wished to remain anonymous see my email correspondence with Richard on this) but turns up as one of the “expert” witnesses in the High Court action (see Shy climate denier in “science team” reveals himself). He claimed to be an expert in statistical analysis – yet a simple statistical analysis of the data he presented in “Are we getting warmer yet?” would have clearly shown site effects which required adjustments! (Bugger me – a simple glance at plots for the different stations would have shown that fact! – See below for Wellington).

“Are we getting warmer yet?” declared no adjustments were required in merging data from these three stations!

The judgement called attention to the “limited nature of his expertise” (as also for one of their other witnesses, Terry Dunleavy), rejected their claims of “impartiality,” and found “substantial passages” of their evidence inadmissable because their comments and opinions on “NIWA’s application of statistical techniques . . . is of little assistance to the Court.”

What were the trust’s claims?

The Trust had attempted to show “a clearly improper process,” incompetence, scientific fraud, or whatever you wish to call it, by making three accusations:

Breach of statutory duty:

“[180] The plaintiff alleges that by departing from recognised scientific opinion NIWA breached its statutory obligations, including its obligation to pursue excellence.”

Failure to consider mandatory considerations and Mistake of fact:

“[181] Next, the Trust says that NIWA failed to consider mandatory relevant considerations in departing from recognised scientific opinions.”

“[182] For the same reasons the allegation of a mistake of fact based on departure from recognised scientific opinion” or the “alternative proposition, that the decision to publish the review was based on mistaken belief it had been compiled using internationally recognised scientific methodology.”


“[183] Finally, the plaintiff alleges that in deciding to publish the review without following recognised scientific opinion and without an independent peer review NIWA acted unreasonably.”

The Climate Education Trust and its “expert” witnesses were unable to support either claim and they were all rejected.

“Recognised scientific opinion”

A lot of the appellant’s arguments relied on their interpretation of “recognised scientific opinion.” They claimed NIWA, in its review of the temperature record did not use the methodology described in a 1993 paper. NIWA agreed and countered the “recognised scientific opinion” argument with:

[80] NIWA does not accept that there is such a concept as an “officially recognised scientific opinion”. Dr Wratt accepts that the science community has well developed processes for addressing debates about scientific methods and interpretation through scientific conferences, and publications in the scientific literature. Dr Wratt does not consider however that there is one absolutely standard global methodology for calculating adjustments in temperature series to account for site shifts that is immutable. He supports that opinion by reference to Petersen et al (1998) which describes various methodologies. He says, as a matter of logic that must be so otherwise there would be no development. Dr Trenberth is also supportive of Dr Wratt’s approach. In his opinion:

There is no one ‘correct’ way to calculate the specific adjustments which need to be made. …

NIWA’s position is surely the same any  credible research scientist would hold. The Trusts claim of an infallible, for all time and all situations method, is extremely naive and opportunistic. It’s not surprising that Justice Venning concluded they did not have the expertise to be taken simply on the word as the source of a “recognised scientific opinion”. Indeed, Professor Carter, a geologist appearing as an expert witness for the trust did “not directly support the Trust’s definition of recognised scientific opinion.” In his evidence he argued that:

“Applied science in any field must take into account the current state of knowledge as attested by the peer-reviewed literature.”

It’s no wonder the Climate Education Trust lost this case. They were unable to support their arguments. In fact their arguments were extremely naive and opportunist.

The question of costs

It remains only for the costs to be calculated (surely these characters are not silly enough to seriously consider an appeal?). These will be substantial and morally legitimate considering the cost of this case, and the ongoing public attacks on the integrity of climate scientists by these people. Costs which otherwise fall on the public.

I find interesting the fact that the Climate Education Trust when it was first formed registered as a charity. The implication was that they would rely on public donations to cover their costs (the Trust was formed purely as a front group for the legal action). However, the registration seems to have been withdrawn. One can only assume that they envisage covering their costs through corporate donations, and not through public charity. Or that they wish to avoid the finial accountability that comes with charity registration.

A bit of much-needed humour

Hitler Finds Out Climate Change is Real

Yes, I know. Bit of a cheap shot and these Hitler videos are getting a bit tiresome. However, when I first saw this I thought it might illustrate the emotional bickering in the local climate change denial/contrarian/sceptic community when they lost their High Court case against NIWA.


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