Monday, January 16, 2017

Trust Everybunny, But Cut the Cards

Peter Finley Dunne has long been one of Eli's favorite observers of the human, especially the political condition.  Writing at the beginning of the 20th century in the voice of Mr. Dooley, a publican of the Irish persuasion, he instructed Eli in the necessary amount of jaundice needed to observe the world as it is.

So it was with that basic training that the Rabett wandered into a twitter exchange between ATTP and one Lucas Bergkamp who was mightily defending the reputation of one Wil Happer, a physicist of the Princetonian persuasion.

Again, to be honest, Eli knows somethings about the good Professor Happer, but that is almost entirely tangential to the tale of caution he will spin.  The question that soon arose in the mind of the Bunny was more, why is Lucas Bergkamp so adamant in defending Professor Happer's reputation and specifically why is Lucas Bergkamp so insistent on insisting that Professor Happer is such an independent guy in his denial of the threat posed by climate change.
As with all such thing, a good start is to figure out who Lucas Bergkamp is, and that isn't too hard by simply following his twitter ID to his place of employment.  Dr. Bergkamp is a partner at Hunton and Williams, a law firm that made its bones defending tobacco interests such as Philip Morris.  But what does that have to do with Wil Happer.

Wil Happer, it turns out (among other things) was a paidexpert witness for Peabody Coal in their losing action against the Minnesota Public Utilities Commission setting a social cost of carbon levy on power generated using coal.  Peabody lost, and Happer's testimony was, let Eli be nice and say destroyed, by John Abraham amongst others as the administrative law judge sided against Peabody in no uncertain terms.

In the nature of the thing, such rulings can be appealed and certainly the record from the hearing is available to other cases, so the reputation of Prof. Happer as an independent soul is of some value to any appeal against the ruling.

Dig a bit further and it turns out that Peabody Coal has been represented by Hunton and Williams, the firm of which Dr. Bergkamp is partner.  Eli can leave it there although others may wish to dig deeper, but it is clear that Dr. Bergkamp indeed has a horse in this twitter exchange.

Thursday, January 12, 2017

Acquired Reading


Shorter than a tweet, but an excellent review of ocean acidification from the National Academy.

Bio types can follow on to the next chapter.

Enjoy

Of course, this arose in one of those Dunning-Krugar things about acidification of the oceans, like how can you talk about acidification when then pH of the oceans is ~8.  Eli has had some words about that in the past (see also the comments by Kenneth Johnson and Bernard J).

The root of teh probelm dates back to Arrhenius (yes, him again) who was the first to define the chemical basis of acids and bases.  Since the Earth is a water world and in 1884 organic chemistry was the wild west and the properties of ions in solutions newfangled stuff that would win him a Nobel Prize in 1903, Svante A defined an acid as a source of H+ ions and a base as a source of OH- ions.  The problem is that there are other ions which are the sources of both via the hydrolysis of water.  For example, if you dump a bunch of carbonate (CO3)2- ions into water you get OH- via

H2O(l) + CO3(aq)2-  -->  HCO3(aq) - + OH(aq)-

Using the Arrhenius definition of acids and bases quickly gets a bunny into trouble when discussing what happens in complex aqueous solutions where there are a variety of ions, let alone solutions in solvents besides water, a trouble that was ameliorated by Brønsted and Lowry, who moved the attention of chemists to the behavior of hydrogen ions aka protons. 
In their view an acid was any molecule or ion that donates a hydrogen ion to another and a base any species that receives it.  In the reaction above, chemists would describe the water molecule (H2O(l)) as an acid because one of its hydrogens is donated to the carbonate ion CO32-to form the hydrogen carbonate ion  HCO3 -on the product side.  Similarly, the carbonate ion CO32-  is a base, because it receives the hydrogen ion.   

In the reverse reaction the OH(aq)- accepts a proton so it is the base and the HCO3(aq) - donates one so it is an acid. 

From the Brønsted Lowry point of view, OH(aq)- is nothing special, just another damned proton catcher. 
ADDED:  A useful example of this is neutralization of carbonic acid by carbonate ions.  Carbonic acid is formed when CO2(aq) reacts with water

H2O(l) + CO2(aq) -->  H2CO3(aq)
 
 The carbonic acid then can react with the carbonate ion to form two hydrogen carbonate ions

 H2CO3(aq) + CO3(aq)2-  -->  HCO3(aq)-  + HCO3(aq) -

there is no OH(aq)- generated in this reaction but the carbonic acid is neutralized by the  CO3(aq)2- which is the base.  In the reverse reaction one of the hydrogen carbonates is an acid (proton doner) and the other a base (proton acceptor).  FWIW water and  HCO3(aq) - can both catch and toss protons, so they are called amphoteric.
 
From this point of view alkalinity is defined as the capacity to neutralize acid, or if you will to catch protons.  

On the water world, this makes sense because the lakes, streams and oceans are filled with ions of weak acids like carbonic acid, which can hydrolyze water.  That is why alkalinity and especially the alkalinity of the oceans is defined as the concentrations (indicated by [] and see the link to the NAS pub above)

alk = [HCO3-(aq)] +2 [CO32-(aq)] + [B(OH)4-(aq)] + other minor bases

and not as just [OH(aq)-], [OH(aq)-] being just another minor base for ocean geochemists. 

Thursday, January 05, 2017

The most important political takeaway from the Mann defamation case against denialists

I've been slowly slowly making my way through the 111-page court decision. I agree with the main takeaways elsewhere - Michael Mann won some important-if-only-intermediary victories against the Competitive Enterprise Institute/Rand Simberg and National Review/Mark Steyn, completely lost a less-important and weaker argument against Rich Lowry/National Review, and the fight goes on.

The real takeaway is what the denialists have not said in their own defense. Take it away, DC Court of Appeals:


Appellants do not argue that Mr. Simberg’s article, if capable of conveying a defamatory meaning, is not actionable because the statements that Dr. Mann engaged in deception and misconduct are true.

The first line of defense you as a defendant can use in a defamation case, when you've done a good job, is that what you've said is true. They don't even attempt to make that argument for Simberg, jumping instead to a version of the 'well that's just my opinion, man' argument (apologies to The Dude). You can use the truth argument even if you haven't done a great job if it has a some plausibility. In Simberg's case at least, they don't even want to waste a tiny amount of the court's attention on a truth defense, because it's so weak that they would just detract from their overall credibility. And this is true regardless of what happens ultimately in this case.


Some random notes below:


Casual readers who may want to check out the case, may choose to skip the first 50-plus pages of procedural wrangling. That part is interesting to see how a case moves forward, though.

-----

There's some confusion around on legal fees, so a couple of notes:  the usual American rule is each side pays its own legal fees, with exceptions. When plaintiffs win, they don't get fees from defendants, but the plaintiff attorneys often get paid part of the winnings. An exception to the above is the anti-SLAPP procedures this appellate opinion decided. Anti-SLAPP wasn't designed for this situation, btw, it was designed to protect little people from being bankrupted by big corporations when they criticize the corporations. Still, Big Denialists get to use it here, and if they win the anti-SLAPP motion, then defendants get their appropriate legal fees. Defendants lost two and won one of their motions. As to the first two, they won't get legal fees (nor will Mann) no matter what happens from here on out. As to Lowry/National Review, they will - but National Review could be on the losing side of the Steyn case, so we'll just have to see how that works out in the end.

-----

This thing, originally filed in 2012, is far, far, from over. Yes, that's American justice for you. At least we're not Italy. Anyway, absent a settlement that could theoretically happen anytime, I'd guess two more years at the trial level, then maybe one or two more years on appeal, and then a short additional delay before the US Supreme Court refuses to hear a final appeal. All I can say in marginal defense of my field is that it can move faster when absolutely necessary, for example with child custody or otherwise to prevent future harm. Otherwise, and especially as in here where both sides have lots of resources and no innate requirement for speed, things move slowly.

----

A future, potential legal pitfall for Mann:
National Review takes a different position. It argues that it cannot be held liable for any of the statements made by Mr. Simberg or Mr. Steyn that appeared on its website. According to National Review, it is shielded from liability by the Communications Decency Act of 1996 (“CDA”), because its website is a “provider . . . of an interactive computer service” 49 that may not be “treated as the publisher or speaker of any information provided by another information content provider.” 50 47 U.S.C. § 230 (c)(1 ). Under the CDA “[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with” § 230 (c)(1). 47 U.S.C. § 230 (e)(3). This argument was not raised in the trial court and is not properly before us. See Akassy v. William Penn Apartments Ltd. P’ship , 891 A.2d 291, 304 n.11 (D.C. 2006) (“Generally, issues not raised in the trial court will not be considered on appeal.”).
This strikes me as a fairly weak argument, but still the appellate court is saying that now isn't the time for it to rule on this argument, so defendants can raise it again later in the proceedings.

----

Something that opens up some interesting lines for discovery against CEI and National Review:

There is, in this case, another factor that a jury could take into account in evaluating appellants’ state of mind in publishing the statements accusing Dr. Mann of misconduct and deception. As the articles that form the basis of Dr. Mann’s complaint make clear, appellants and Mr. Steyn are deeply invested in one side of the global warming debate that is opposed to the view supported by Dr. Mann’s research. Although animus against Dr. Mann and his research is by itself insufficient to support a finding of actual malice where First Amendment rights are implicated, bias providing a motive to defame by making a false statement may be a relevant consideration in evaluating other evidence to determine whether a statement was made with reckless disregard for its truth.

Discovery can explore how and why these organizations are so opposed to climate science. Let's see where that goes! I should probably note here that discovery isn't a blank check - you can only get to see evidence that's relevant to your case. Here the court is saying that motive is relevant - so let's see what they really believe and why they're doing this.


Tuesday, December 27, 2016

The Ethical Depravity of Wishing Coal and Oil on the Poor

Today being Boxing Day observed or maybe later, Eli brings the gift of ethical behavior to his coal tarred friends who remain not in this century but the one passed a hundred years ago, who demand the rest of us remember the poors by giving them the Gift (german usage) of coal.

Yet this is a tactic which reality has passed by, as solar and wind costs rapidly descend today to roughly the price of gas and below.


The perfect storm for oil and gas is the oversupply, to which the investment in renewables is providing additional pressure
Oil and gas woes are driven less by renewables than by a mismatch of too much supply and too little demand. But with renewable energy expanding at record rates and with more efficient cars—including all-electric vehicles—siphoning off oil profits at the margins, the fossil-fuel insolvency zone is only going to get more crowded, according to BNEF. Natural gas will still be needed for when the sun isn't shining and the wind isn't blowing, but even that will change as utility-scale batteries grow cheaper.  
Eli has quite enjoyed pointing out to the smug and self satisfied that you really have to hate the poor to condemn them to using expensive and unreliable coal and oil for power and heating.  In the poorest regions coal and oil are unreliable because supply chains are fragile and transportation expensive.  In the developed world fossil fuels are unreliable because of political game playing, as Europe which depends on Russia for gas often finds out

As a tactic crocodile tears for the poor depended on those of us who understand the threat of climate change, or indeed anything, having some regard for the less well off and offering a hand because of the costs.  Of course, if one says well, we can help the poor, those in denial say, not us boss.  Today with solar and wind costing less than fossil fuels the situation has changed for the less expensive renewables

As Tom Peterson put it, we are in a modern age
Eli has pointed out telephone poles cost money and so do fossil fuels.  Fossil fuels are an evil habit that drains the wallets of the poor.  In isolated villages lighting is provided by kerosene lamps, and kerosene costs money, a significant amount for billions of poor villagers in Africa and Asia and Latin America

Transportation into rural areas adds significantly to the cost.  On the other hand sunlight doesn't, which makes the payback time for a solar lantern that is much brighter than the kerosene lamp shorter.  Moreover, kerosene lamps  impose a health cost, solar lamps do not and after the payback time it is all solar lagniappe.

The situation with coal is even worse.  Dirtier, heavier to carry and leaving a poisonous ash behind, to demand that the poor use coal to satisfy the political wishes of the fat and happy deniers of human progress in the developed world is, well what you expect from the fat and happy deniers of human progress in the developed world.

Given the short payback time (8 months and falling) microloans, donations and real charity not fake politically driven croc tears can contribute to lighting the remaining dark corners of the world.


Saturday, December 24, 2016

When the North Pole Melts

Photo by William Yu
Eli, being an elf, or at least a bunny of good cheer would want to brighten your evening, when Santa is able to load up the sleigh and head for the chimneys.

When the young bunnies can look up in the sky and see the sleigh tracks.  When the ice is strong enough and there is enough of it that the Christmas adventure can begin.

But sadly things do not look very promising and the workshop will have to relocate soon. This is not a surprise.  Eli has been shouting pay attention for a couple of decades, but others predate even his awareness.

Back in 1988, the EPA Chorus recorded "When the North Pole Melts".  Yes sir, global warming was an obvious threat even then.

To hear the chorus click here

When the North Pole Starts to Melt?
What is gonna happen to his little elves?
Will they be too busy swimming to make the toys?
And what will Santa do?
If the North Pole melts too fast
Is this Christmas gonna be his last?
What will parents have to tell their girls and bays?


I used to snowski at Christmas time
But now I ski on a lake.
Scandinavia's now growing lemons and limes
And Quebec has rattlesnakes.
The Sahara desert now has grown
To the entire Continent.
But you do not have to lose your home:
Just trust the government!
But What Will Santa Do. . . . .

You may not believe my story because the ending's not very nice,
You may not believe in Santa Claus.
You may not believe in Christ,
But if you don't believe this warning
'Bout the climate and the ozone hole:
Look under your tree one Christmas morning
All you'll see are lumps of coal.
And that's what Santa will do

Well the world took care of the ozone problem, and tho the situation looks bleak politically about climate change, the elves of Zurich (the gnomes better cousins) are working that problem.  Eli will have something to say about that matter tomorrow

Thursday, December 22, 2016

Christmas Gifts for Michael Mann and Rich Lowrey

Lumps of coal for Mark Steyn and Rand Simberg send the elves from the DC Court of Appeals in a decision handed down today.  Of course, as everybunny knows the elves work long and hard, this little sack having taken more than two years after the hearing on November 25 2014 which Eli reported on and which other may need a refresher course.

As the articles that form the basis of Dr. Mann’s complaint make clear, appellants and Mr. Steyn are deeply invested in one side of the global warming debate that is opposed to the view supported by Dr. Mann’s research. Although animus against Dr. Mann and his research is by itself insufficient to support a finding of actual malice where First Amendment rights are implicated, bias providing a motive to defame by making a false statement may be a relevant consideration in evaluating other evidence to determine whether a statement was made with reckless disregard for its truth.
Concluding therefore that
We, therefore, affirm the trial court’s denial of the special motions to dismiss the defamation claims based on those articles and remand the case for additional proceedings in the trial court with respect to these claims.  We reverse the trial court’s denial of the special motions to dismiss with respect to Dr. Mann’s defamation claims based on Mr. Lowry’s editorial and the claim for intentional infliction of emotional distress.
The decision is a mixed bag for both sides  given the SLAPP law allowing costs for decisions of motions to dismiss against the losing side.  The DCCoA on the one side holds that Mann's case against Steyn, Simberg, CEI and National Review can go forward but remanding for dismissal the claims based on Rich Lowry's editorial (essentially saying bring it on to MM) and demanding to see the blood in order to allow Mann's claim of deep emotional distress for being compared to Jerry Sandusky
The complaint alleges that as a result of the defamatory statements “besmirching Dr. Mann’s reputation and comparing him to a convicted child molester,” Dr. Mann has suffered “extreme emotional distress,” “mental anguish,” and “personal humiliation.” From the statement itself, a jury could infer that the comparison to Sandusky was particularly hurtful. Dr. Mann’s requests for an apology and retraction, and his undertaking this litigation, would allow a jury to infer that he was so deeply aggrieved that he deemed it necessary to restore his public reputation. Dr. Mann has presented no evidence, however, that his understandable consternation met the high bar of “severe emotional distress,” which requires a showing beyond mere “mental anguish and stress” and must be “of so acute a nature that harmful physical consequences are likely to result.”
Pretty high standard.

On the other facts the DC CoA is not so kind to Simberg and Steyn
We conclude that Dr. Mann hurdled the Anti-SLAPP statute’s threshold showing of likelihood of success on the merits because the evidence he has presented is legally sufficient to support findings by the fact-finder that statements in Mr. Simberg’s and Mr. Steyn’s articles were defamatory, were published by appellants to a third party without privilege, and were made with actual malice.
discussing the nature of the attacks
But defamatory statements that are personal attacks on an individual’s honesty and integrity and assert or imply as fact that Dr.Mann engaged in professional misconduct and deceit to manufacture the results he desired, if false, do not enjoy constitutional protection and may be actionable.
and
Tarnishing the personal integrity and reputation of a scientist important to one side may be a tactic to gain advantage in a no-holds-barred debate over global warming. That the challenged statements were made as part of such debate provides important context and requires careful parsing in light of constitutional standards. But if the statements assert or imply false facts that defame the individual, they do not find shelter under the First Amendment simply because they are embedded in a larger policy debate.
Specifically the CoA analyzes why Simberg's article is defamatory
Mr. Simberg’s article does not specifically criticize Dr. Mann’s statistical techniques, except by calling him the “poster boy of the corrupt and disgraced climate science echo chamber.” The article’s focus is on Dr. Mann personally, alleging that he has engaged in “wrongdoing,” “deceptions,” “data manipulation,” and “academic and scientific misconduct.” The article calls Dr. Mann “the Jerry Sandusky of climate science,” comparing Dr. Mann’s “molest[ing] and tortur[ing] data in the service of politicized science” to Sandusky’s “molesting children.” The article also describes Dr. Mann as being, “like Joe Paterno,” a “rock star” at Penn State, who attracted millions of dollars to the University, and, like Bernie Madoff “at the height of his financial career,” “a sacred funding cash cow.”
This court recognizes a dog whistle when it hears it
Appellants contend that Mr. Simberg’s article is more reasonably understood as a criticism of the hockey stick graph and the research that underlies it. This seems to be a forced interpretation — and one that a jury could easily reject — because the article does not comment on the specifics of Dr. Mann’s methodology at all.
But when the phrase is used in conjunction with assertions that Dr. Mann engaged in “deception[],” “misconduct,” and “data manipulation,” and the article concludes that he should be further investigated, the cumulative import is that there are sinister, hidden misdeeds he has committed. These are pointed accusations of personal wrongdoing by Dr. Mann, not simply critiques of methodology of his well-known published scientific research. Cf. Milkovich, 497 U.S. at 21 (“This is not the sort of loose, figurative or hyperbolic language which would negate the impression that the writer was seriously maintaining that the petitioner committed the crime of perjury.”). We conclude that Mr. Simberg’s article is capable of conveying a defamatory meaning.
We note that in the article Mr. Simberg does not employ language normally used to convey an opinion, such as “in my view,” or “in my opinion,” or “I think.” The article’s assertions about Dr. Mann’s deception and misconduct are stated objectively, as having been “shown” and “revealed” by the CRU emails. Thus, Mr. Simberg’s article can fairly be read as making defamatory factual assertions outright.
The court handles the Steyn, not me boss argument with a handy quote from another case
Mr. Steyn first appears to retreat from the comparison to Sandusky, saying that he is “[n]ot sure” that he would have extended the metaphor “all the way into the locker-room showers,” but then adds that Mr. Simberg “has a point.” See Olinger v. Am. Savs. & Loan Ass’n, 409 F.2d 142, 144 (D.C. Cir. 1969) (“The law affords no protection to those who couch their libel in the form of . . . repetition . . . repetition of a defamatory statement is a publication in itself.”) (citation omitted).
and points out that politics does not free one from facts, a novel think these days
As with Mr. Simberg’s article, Mr. Steyn’s is not about the merits of the science of global warming, but about Dr. Mann’s “deceptions” and “wrongdoing.” Like Mr. Simberg, Mr. Steyn compares Dr. Mann’s alleged wrongdoing — “molesting” and “torturing” data to achieve a deceptive but desired result that will court funding for Penn State — to that of Sandusky, which suggests that their characters are similarly base.
On the other hand, they see Lowry's editorial as both protected opinion and a damage limiting exercise
Mr. Lowry’s editorial is clearly an attempt to distance Mr. Steyn’s article that appeared on National Review’s website from Mr. Simberg’s that appeared on CEI’s, and to express to National Review’s readers that it is confident of the success of the vigorous defense that it intended to mount in response to Dr. Mann’s threatened lawsuit. Because Mr. Lowry’s editorial for National Review does not repeat or endorse the actionable defamatory statements in Mr. Simberg’s and Mr. Steyn’s articles or contain defamatory assertions of fact that were provably false at the time they were made, the editorial is an expression of opinion protected by the First Amendment.
Interestingly, the DCCoA goes into detail in analyzing the investigations both in the US and UK of Michael Mann and the UEA emails,
The University of East Anglia Independent Climate Change Emails Review, Penn State University, the United Kingdom House of Commons, and the Office of the Inspector General of the U.S. National Science Foundation, all conducted investigations and issued reports that concluded that the scientists’ correspondence in the 1,075 CRU emails that were reviewed did not reveal research or scientific misconduct. Appellants do not counter any of these reports with other investigations into the CRU emails that reach a contrary conclusion about Dr. Mann’s integrity.
and smash the argument that these investigations had nothing to do with Michael Mann
Appellants argue that the investigatory reports could not be relied upon by a jury because the investigations Dr. Mann claims exonerate him of misconduct “take no ultimate position,” but only indicate that there was “no evidence” of fraud. This is a quibble about wording that does not call into question the import of the investigations’ conclusions. An investigatory body can report only on what it has found; a determination that there is “no evidence” of fraud is an ultimate conclusion that investigation has not turned up any evidence of misconduct.
There is much more about these validity of the investigations, but this post is long and Eli must go 

Don't feed the warhorses, and careful with the lightning rods

People may be sick of political introspection, but for those who can handle a little more, here's a list of old warhorse nominees:

H. Clinton
Gore
Dole
Bush Sr.
Mondale

Plausible additions, although not a perfect fit:
Romney
McCain

These are people that had been prominent for a long time and had done a lot of favors inside their party, so they had built alliances within the elites and started their campaigns with a fair amount of name recognition within their parties. They also didn't do very well in winning the Electoral College. Bush Sr is the only partial exception, going 1-for-2.

I suppose Reagan could be argued as a counter-example, but he wasn't very cozy with Republican elites in 1980, and that's also going back a ways in political history. Even if you did include him, the warhorse win-loss record is pretty bad.

Our political system, for worse rather than for better, values newness and "authenticity" over experience, compromises and baggage. I'm open to suggestions as to how that can change, but I'm not up for beating my head against the wall. The warhorses don't make good general election candidates, and Democrats shouldn't choose them in upcoming elections.

And good news, the only warhorses Ds have lying around these days are former nominees and Biden, none of them likely to run again. But the problem will return someday.

Second and related issue is prominent Democrats becoming lightning rods for Republican lies. Hillary was their target with the willing assistance of the New York Times and some other media. The result made her the second-most unpopular nominee in history.

Hillary wasn't the sole target of hate and lies - before her, it was Gore. While I hate to let the Republicans win their little game, maybe it's time for a little political judo - the Republicans are  spending all their lies on warhorses they see as future nominees, and those people aren't the best nominees anyway. So don't nominate the lightning rods that Republicans have been lying about, and use 2008 as a model. The Republicans had no coherent critique of Democrats, let alone a message of their own, and just had Hatred for Hillary. That let Obama define a completely different, hopeful, and moderately progressive alternative.

We'll see what the Republican game plan will be for 2020 - something tells me that it won't be a positive message based on a record of accomplishments. They also won't have 2008's McCain who tamped down on a new set of lies against Obama.

I'm not saying run from any candidate the Republicans start lying about, just to choose wisely instead.

Tuesday, December 20, 2016

We'll see




And in other news, I worried in July about the Trump Administration misusing the pardon power to allow the abuse of governmental power, but I underestimated how soon and how stupidly that might come into play.