NZ sceptics v. NIWA – summary of case

EDITORIAL NOTE: As an organ of the NZ Climate Science Coalition (NZCSC, or the Coalition), the NZ Climate Science Education Trust (NZCSET) was created especially to carry the Coalition’s legal suit against the National Institute of Water and Atmospheric Research Limited (NIWA). The creation of a subsidiary is common in such cases and carries the approval of the judge. References here to the Coalition include the Trust. As a member of the Coalition, I sometimes say “we”, meaning the Coalition. The following is based on notes and conversations with our legal team and should be fairly accurate. Any mistakes are mine.

The hearing of the case between the Trust and NIWA ended on Thursday, with no surprises emerging from the defence presentation.

The Coalition had three causes of action against:

(a) The original Seven Station Series (7SS) published in 1999.
(b) The Review of NIWA’s “Seven-Station” Temperature Series (which is now the official version of the national temperature record).
(c) The Eleven-Station Series that was unadjusted.

Note that the Eleven-Station Series was issued in 2009 solely to counter the Coalition’s paper, “Are we feeling warmer yet,” published on November 25, 2009. The hastily-prepared 11SS appeared just eight days later in rebuttal, but is still on the NIWA website as part of ‘the New Zealand Temperature Record.’

The thrust of our case was that NIWA has a duty under the CRI Act to “pursue excellence” and therefore must follow internationally-accepted best practice, when that’s clear from the scientific literature. They must at least give it their best shot. There was no argument that the Rhoades & Salinger (1993) paper was the recognised statistical method for making adjustments by way of neighbouring station comparisons. However, NIWA contended that the Hessell (1980) paper was out of date in saying that stations affected by shelter/UHI (especially Albert Park and Kelburn) should be excluded.

Major public consequences

In the case of the original 7SS, we contended that the adjustments were based on Salinger’s 1981 thesis, even though those methods were superseded by the Rhoades approach in 1993. We showed that using the internationally-accepted methods (i.e., RS93) reduced the 20th century warming by about two-thirds, down to about 0.26°C/century instead of NIWA’s 0.91°C/century. We also established that this difference had “major public consequences” because the (adjusted) temperature record was used to tune and validate the models which made all the temperature projections for the next hundred years. And those predictions drive all the climate change policies by both central and local governments.

Instead of defending their own work, NIWA mounted a major attack on the Coalition’s “Audit” of the Review. They hammered away on one aspect – claiming that Rhoades recommended their method of ±10-year ‘comparison periods’ as opposed to the ±2-year periods we had used. This seemed very strange as Rhoades gives only one worked example and that is ±2 years. The paper mentions only two periods in the text, being ±1 year and ±2 years. They said the Coalition was correct “in a formulaic way” but had been “too rigid”. This dispute finally ended in a draw, as both sides accepted that the judge couldn’t adjudicate a purely scientific debate.

NIWA claimed that Salinger, then at the MetService, had done a major homogenisation exercise in 1992, applying the method described in the draft Rhoades paper. David Wratt asserted that the 7SS had always been based on the 1992 revisions, not on the original thesis figures. Their big problem was that the 1992 revisions had gone missing and nobody has seen them anywhere since 1992. An email from Salinger to Renwick refers to “notes and drafts in boxes in recall storage” but NIWA says they don’t know what he is referring to. The only way anybody knows the work was even done is because there is a description of it in a 1992 Met Service report by Salinger.

Coalition case looking good

Under pressure from ACT, NIWA tabled in Parliament in February 2010 a schedule of adjustments and a Hokitika station report describing the methodology. These are quite obviously based on the 1981 thesis and don’t even mention the Met Service revisions. When the Coalition requested details under the Official Information Act, the answers harped on about the thesis, and the Met Service 1992 work never received a mention. There was further documentary evidence regarding the thesis, but none whatever for the theory that the 1992 revisions were the source. For one thing, the 1992 series (1920-90) only covered about half the 7SS series, so where did all those early adjustments come from? The NIWA evidence was simply the assertion by Dr Wratt that the 7SS was based on the 1992 updates.

With all this evidence, the Coalition case is looking very good on the plain facts. The threat comes from the need to prove that NIWA has a duty to apply good science. They deny this, and effectively say that Parliament has given them a free hand to do what they like. They argue that the obligation to pursue excellence is merely “aspirational”, being un-measurable and unenforceable. They would normally take notice of the scientific literature if it came to their attention, but they have no need to follow it and are entitled to practise what they think best. They don’t need to apply internationally-accepted techniques or recognised scientific opinion and the best methods mightn’t be affordable.

They even say that there is no such thing as a “New Zealand Temperature Record” and the extent that warming is occurring is simply a matter for their judgement. Remarkably, they believe that they’re not accountable to the Court or anybody else for the accuracy of their science.

If the Court is prepared to hold NIWA accountable, the Coalition case looks very strong. Personally, I am delighted with the way the evidence fell and the expert way Terry Sissons presented it.

But that might all founder if the court grants NIWA’s claim to subjectivity.

As a Crown entity, are they subject to the will of the crown? I must confess that I might be happier if they were truly independent. If they were wrong, or scientists disagreed with them, then correction or redress would be obtained solely through peer-reviewed literature.

But how tied is their present funding to their present obedience to their present political masters? If strongly, it corrupts and debases their “independence” to mere subservience and makes a mockery of their representations to the Court. For it could be that their right to self-determination is no more than a claim to public funding by virtue of their obedience.

If only funding were independent, then might scientific independence truly have a measure.

35 Thoughts on “NZ sceptics v. NIWA – summary of case

  1. Pingback: Niche Modeling » Summary: NZ Climate Science Coalition vs. NIWA

  2. Mike Jowsey on July 23, 2012 at 6:50 am said:

    But how tied is their present funding to their present obedience to their present political masters? If strongly, it corrupts and debases their “independence” to mere subservience and makes a mockery of their representations to the Court. For it could be that their right to self-determination is no more than a claim to public funding by virtue of their obedience.

    Was this line of reasoning presented to the Court? Imho it could have been, as it shows motive to pursue other than scientific methodology.

  3. Was this line of reasoning presented to the Court?

    Oh no, those are nought but my reflections. Motivation was not at issue.

  4. Richard C (NZ) on July 23, 2012 at 9:02 am said:

    “NIWA has a duty to apply good science. They deny this”

    Deniers!

    “As a Crown entity, are they subject to the will of the crown?”

    The Judiciary is the recourse for people who are convinced that something is wrong and must be righted. I don’t think it matters whether NIWA are subject to the will of the crown just so long as they are not performing a duty (one of their principles of operation) on behalf of the body of people that is collectively the NZ populace that is wrong and can be proved to be wrong by counsels for one or more of those people.

    18. Judicial Oath—The oath in this Act referred to as the Judicial
    Oath shall be in the form following, that is to say:

    I, , swear that I will well and truly serve Her [or His] Majesty
    [specify as above], Her [or His] heirs and successors, according to law,
    in the office of ; and I will do right to all manner of people
    after the laws and usages of New Zealand without fear or favour,
    affection or ill will. So help me God.
    Cf. 1908, No. 151, s. 4

    http://legislation.knowledge-basket.co.nz/gpacts/reprint/text/1957/se/088se18.html

    Note “without …. favour”

  5. I have provided this link to the SciBlogs podcast page
    http://sciblogs.co.nz/tosp/2012/07/20/podcast-science-on-trial/

  6. Richard C (NZ) on July 23, 2012 at 11:37 am said:

    “Feel free to add the following link to the show notes”

    Nice one Andy.

  7. david sapiane on July 23, 2012 at 11:51 am said:

    I’m very late on parade and am following all this with interest. NZ does not have a temperature record? Is that what they said? I’m a member of AMS. The state of the climate is published yearly. This you’ll find interesting. In the section for the New Zealand report in 2008 I quote HJ Salinger ” the national average temperature in 2008 was 12.9C,0.3 above the 1971-2000 normal.
    I just received the 2011report. GH Griffiths reporting for NZ says ” the nationwide average temperature for 2011 was 12.8C, 0.3 above the 1971-2000 annual average”.

  8. cohenite on July 23, 2012 at 5:21 pm said:

    Thank you for your excellent work Richard. I look forward to reading the Judgement as soon as it is issued.

    This case will be a reference point for other cases in other countries irrespective of esoteric aspects of Judicial precedence.

  9. Alexander K on July 23, 2012 at 5:31 pm said:

    Having been a State Servant ( teaching in Primary and High Schools) for a considerable number of years, I seriously doubt if any of my past line managers would have been sympathetic if I had attempted to defend poor or unsuccessful teaching practices by saying that I had no duty to my employer to use ‘best practice’ and could work in any manner I saw fit. NIWA’s notion of their professional obligations seems like applied lunacy to me and a sure road to our politicians getting away with spouting any old rubbish re the climate and ETS and getting away with it.

  10. NZ does not have a temperature record? Is that what they said?

    Not quite, but worse than that. They said the temperature record is not “official”, they have no obligation to create or maintain it and while dealing with it they have no obligation to pursue excellence or to use the best methods known.

    Which might make sense to lawyers and scientists but is self-defeating gobbledygook to the average man.

    The state of the climate is published yearly.

    Do you have a link? I might comment on this nonsense.

  11. Yes, I tend to agree with you, on an immediate reading of it. However, I do want my scientists to be completely independent, and perhaps that means they must be free to explore methods and avenues of study that lie outside the consensus. That is, outside the peer-reviewed literature.

    That said, how can we ensure a common-sense approach to matters such as the quality of the national temperature record?

  12. val majkus on July 23, 2012 at 11:00 pm said:

    Richard thank you for that informative summary
    Just in relation to the point you make ‘The threat comes from the need to prove that NIWA has a duty to apply good science’ I’m assuming you’re referring to ‘internationally accepted methodology’ rather than going off on a frolick of its own when homogenising data or doing the stroking and tweaking that results in an adjusted temperature record

    I’ve had a look at NIWA’s site looking for some guidance on that aspect because it does seem extraordinary that NIWA should not be subject to best practice standards

    On the organisational responsibility page http://www.niwa.co.nz/about/organisational-responsibility for example it says:
    NIWA is committed to the principles of operation stated in section 5 of the Crown Research Institutes Act 1992, which require:
    that research undertaken by NIWA should be undertaken for the benefit of New Zealand;
    that NIWA should pursue excellence in all its activities;
    that in carrying out its activities NIWA should comply with any applicable ethical standards;
    that NIWA should promote and facilitate the application of the results of research and technological developments;

    One of its missions is to ‘Be.. recognised for our integrity, skill, and professionalism in conducting all aspects of the company’s business’

    One of the key requirements stated for a Crown Research Institure http://www.niwa.co.nz/about-niwa/our-company is to ‘pursue excellence’

    If all the above is to have any meaning other than pretty words on a web site there should be no reasonable doubt that NIWA has an obligation to use internationally accepted techniques and if it does not do so then it should be obliged to do so if the words ‘pursue excellence’ are to have the commonly accepted meaning

  13. Clarence Kay on July 24, 2012 at 1:05 am said:

    I assume different methods produce different results.

    If each climate archivist is free to pursue whatever methods happen to appeal (on the day) then the national historical temperature trend will be purely a matter of whim and opinion. If she leaves, and is replaced by another who fancies different methods, then the record will change to a new figure. Another day, another dollar, another temperature trend??

    Surely, this can’t be “science”? It sounds much more like art.

    If Rhoades is the right answer, doesn’t that mean that any non-Rhoades method must be the wrong answer?

  14. Doug Proctor on July 24, 2012 at 4:04 am said:

    Regulated industries are routinely required to demonstrate they employ “best practices” in environmental areas, practices that are not specified and taken economics and practicality into account. There is a subjectivity to such things, but the standards are still understood in a legal sense.

    A “best pracitice” definition would include the idea that there are numerous ways to address an issue but only a few that satisfy the desire to produce a worthwhile result. In the case of science, a worthwhile result is one that accurately represents a difficult to determine situation or event, and one that is reproducible by other means with similar data. Even though the courts cannot say that NIWA follows specific adjustment techniques, the courts could consider a best-practice concept is applicable to a government-funded agency whose purpose is to provide said government with reliable and reasonably accurate data on which policies will be based.

    If the courts were to find that the techniques that NIWA used produced results significantly different from other (Coalition proposed) techniques that other agencies endorsed as their best way of determining the “truth” of temperature changes, then NIWA could be found deficient in employing “best practices” not in a manner of incompetence or malfeance but in a one of inadequate representation of certainty. NIWA has said “this is so” without saying that it is so only when viewed in this way, which is not the way others view it.

    If the courts were to say that NIWA does not have an obligation to study temperature changes in a way that all parties agree it should, few would disagree. But if they were to say that alternate but reasonably coherent ways of looking that produce materially different results must be identified, perhaps both NIWA’s face-saving requirements and the Coalition’s questioning of government position could both be satisfied.

    It strikes me that NIWA’s position that it does not need to follow a best-practice policy is relevant only if NIWA is conceeding that following such a policy would result in different and prejudical result from those produced to-date. In order to declare that they are not required to do other than what they prefer also suggests that they have, indeed, done what is proposed by the Coalition, and do no like the results. In other words, the Coalition’s efforts are reproducible and cannot be challenged scientifically as inferior to their own. This would bring uncertainty into what is claimed to be settled and certain.

    It is NIWA’s claim to settledness and certainty that is central to the case – and central to the government’s application of NIWA’s finding to policy. Should the Coalition’s case be deemed even somewhat reasonable, then the Precautionary Principle (ironically applied here) says that caution should be exercised in instituting social and economic disturbing changes in response to the perceived chance of dangerous environmental effects of human created CO2 discharges.

    Legal arguments tiptoe around the real questions here:

    1) does the Coalition’s view of how NIWA creates an interpretation of local climate changes for the Government’s use in creating and instituting policy have technical validity? If so, how much? If not, why? and

    2) if the Coalition’s position has validity to some extent, how would the inclusion of the Coalition’s view of methodology change either the certainty or the content of what was presented to the Government by NIWA?

    One expects “best efforts”, to use another ill-defined but instantly recognizable concept, from all who are paid by one party to provide services to another. Professionals are held to a higher level than tradesmen, but sloppy or uninformed work can be challenged by anyone. You can get your money back if the lawn-cutter only does what is visible from the street; you should be able to get your money back from NIWA if NIWA doesn’t perform a reasonable amount of due diligence in determining what the temperature history of New Zealand was or might have been.

  15. val majkus on July 24, 2012 at 8:48 am said:

    Richard can I ask what expert witnesses did the parties call and can you put up Court
    documents now that the case is finished
    If so …
    and did you ever get a response to the FOI request

  16. david sapiane on July 24, 2012 at 9:48 am said:

    Richard, This is from a supplement to the Bulletin of the American Meteorological Society, Vol 93,No7, July 2012. Title: State of the Climate in 2011. The earlier was Vol 90, No.8, August 2009 Titled State of the Climate in 2008.
    They say can be downloaded:
    http://www.ncdc.noaa.gov/bams-state-of-the-climate/
    Regards,
    David

  17. The evidence was by affidavit from several people per side. Key figures were Bob Carter for the Coalition and Kevin Trenberth for NIWA. I’ve applied to the court for access to the documents and I’m waiting for a decision on that. Some of the documents, such as the statements of claim and defence, which changed late in the piece, are a matter of public record but I think there are others. I haven’t established exactly which ones. When I have, I’ll make them available.

    I sent an OIA request to NIWA on 1 Jan 2011 asking for copies of the Review documents sent between NIWA and the BOM from 1 September, 2010 to 18 December, 2010. That request was declined on 4 February 2011.

    I subsequently asked NIWA for “copies of all exchanges (being letters, emails, faxes, attachments, enclosures, reports or other documents) which occurred between NIWA and the BoM during the period 18 December 2010 to 18 May 2011, inclusive. In particular, my request includes the 15 documents addressed by NIWA to the BoM (numbered 142-9 and 155-61) and shown in the BoM’s schedule.” That request was declined on 6 July last, the week before this hearing began.

    On 5 February 2011 I complained to the Ombudsman about NIWA’s refusal of the first request. Nothing has happened since then. Complaining to that office is like hurling toilet paper at a sandstorm.

  18. Richard C (NZ) on July 24, 2012 at 10:39 am said:

    RT, the figure Griffiths provides comes from NIWA’s annual National climate update and summary:-

    http://www.niwa.co.nz/sites/default/files/ann2011_summary_final.pdf

    I’ve just assumed 7SS composite values and update my NZT7 spreadsheet accordingly. 2011 12.8 and 2010 13.1.

  19. val majkus on July 24, 2012 at 10:48 am said:

    sandstorm is a good way of describing the transparency in NIWA’s excellence search

  20. Richard C (NZ) on July 24, 2012 at 11:09 am said:

    Yes Doug, accuracy of representation and holding out (for want of better term) of it to the public is the key aspect (along with the professionalism, integrity etc). I even go to the extent that the linear trend imposed on the NZT7 by NIWA (and followed on by NZCSET for comparison) is misleading and statistically inappropriate and could also have been challenged in court. Judges have guidance in statistics and the use of trends and presentation of graphs etc as a result of medical, phama and similar suits, cases so the judge could rule on that but it’s another story unfortunately.

    You say:-

    “….perhaps both NIWA’s face-saving requirements and the Coalition’s questioning of government position could both be satisfied”

    I think this is a very realistic outcome from a list of speculative judgment options. The NiWA 7SS does not get set aside but the judge requires qualification of it in terms of NIWA’s interpretation and application of R&S93, NZCSC’s ‘Statistical Audit’ gets cited by the judge as arriving at a different result using a more stringent interpretation and application of R&S93.

    NIWA’s ‘Report on the Review’ already has 3 citations even though it was not published in any journal or suchlike and the NZCSET ‘Statistiacal Audit’ is no different in form. Therefore, if the judge finds that the NZCSET series has validity by virtue of the audit and the review of that by three professional statisticians and cites the ‘Statistical Audit’ in his opinion (judgment), then BOTH temperature series will have equal standing and BOTH (Review and Audit) will have been cited and it will be up to the user to select from interpretation and application of R&S93.

    May even provoke a slew of papers.

  21. Alexander K on July 24, 2012 at 11:10 am said:

    Doug, you have set out the ‘best practice’ notion very neatly and have, in the process, made it clear that freedom to choose which method or way of working to follow in any trade or profession, does NOT mean carrying out work in sloppy or ‘unprofessional’ ways.
    Any competent person should have this freedom of choice, a freedom which brings a very powerful set of moral imperatives with it.

  22. Richard C (NZ) on July 24, 2012 at 11:30 am said:

    Correction “…[a] judge could rule on that” (in the hypothetical case).

  23. david sapiane on July 24, 2012 at 12:06 pm said:

    A bit sloppy not to review what was documented previously. Arithmetic does not seem to be a strong point.

  24. Richard C (NZ) on July 24, 2012 at 2:46 pm said:

    Could be rounding I think David. The ‘Seven-station’ series temperature data is to 2 decimal places, the spreadsheet of it to 2010 can be downloaded from this page:-

    http://www.niwa.co.nz/our-science/climate/information-and-resources/nz-temp-record/review/changes/seven-station-series-temperature-data

  25. Richard C (NZ) on July 24, 2012 at 2:56 pm said:

    The odd thing as you can see is that the trend they talk about starts at 1909 with 4 stations, the series only has 7 stations from 1913, the series starts with 1 station at 1900 but the graph they show on that web page starts around 1853ish.

    Note too that the linear trend applied is an un-statistical representation of the series.

  26. Andy on July 24, 2012 at 3:49 pm said:

    Note too that the linear trend applied is an un-statistical representation of the series.

    Another masterpiece of understatement Richard C

  27. Andy on July 24, 2012 at 4:38 pm said:

    and also feel free to join in on the comments. We have the usual suspects giving us a hard time

  28. Alexander K on July 25, 2012 at 12:03 pm said:

    I realise this is way OT, but I cannot find anywhere relevant to post it – Auntie Herald, in Monday last’s edition, published a piece about the Olympic athlete(s) from Tuvalu, along with a pic of the edge of the airfield that the US built on one of the larger atolls that comprise Tuvalu during WWII. The caption for the pic stated, and this was totally irrelevant to the piece, that ‘Tuvalu is under threat from global warming’. Anyone can research the mess the Tuvaluans have made of their environment, which has absolutely nothing to do with global warming, real or imaginary and everything to do with too many people attempting to cope with a crowded environment.

    Thanks for this report, Alexander. I’d like to follow this up. I’ve just created a “Pacific” page, so would you mind terribly resubmitting this comment to that page, please? Then I’ll delete this comment. Because, even with all my super powers as uber-blog fuhrer and all that, I’m unable to craft a comment as though from someone else. I can move comments, but only between pages or between posts – not from post to page. Sometimes I’m pushed from pillar to post and it’s not nice! Sorry for the inconvenience and everything.

  29. Richard C (NZ) on July 25, 2012 at 12:46 pm said:

    There was a ‘Pacific’ page in Open Threads but now it’s Not Found. RT may have taken it down.

    More likely I neglected to create the page from your original list in comments – I haven’t deleted it. It now exists, and I invite Alexander to resubmit his comment to that page.

  30. Alexander K on July 25, 2012 at 3:06 pm said:

    Richard, I would comply if I could find it!!

    I cannot reject such a heartfelt plea. Try this (it works for me): http://www.climateconversation.org.nz/open-threads/climate/regions/pacific/. Thanks.

  31. Alexander K on July 26, 2012 at 9:00 am said:

    Thanks! Found it, done it.
    (Brevity inspired by memories of Offagain, Onagain, Finnegan)

  32. Pingback: Breaking: Courtroom Chaos as New Zealand Skeptics Rout Government Climatists | johnosullivan

  33. Pingback: How NIWA added lots of warming in New Zealand – and got away with it – so far « Tallbloke's Talkshop

  34. Richard can I ask what expert witnesses did the parties call and can you put up Court
    documents now that the case is finished
    If so …
    and did you ever get a response to the FOI request.

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