16 Thoughts on “High Court hearing finished

  1. Jim McK on 19/07/2012 at 10:27 pm said:

    Thanks Richard for your efforts and lets hope reason prevails over legalism.

  2. Andy on 20/07/2012 at 8:05 am said:

    Thanks to Richard and to Bob for all your efforts.

  3. Andy on 20/07/2012 at 1:32 pm said:

    Some more press-

    “Decision reserved in Niwa data case” ODT Friday


  4. Richard C (NZ) on 20/07/2012 at 3:10 pm said:

    I’m wondering if the judge might leave the NiWA series as is but require a version like NZCSET be published too e.g.

    Strict application of R&S93

    Loose application of R&S93

    • That’s a matter of science, RC, which he won’t touch with a ten-foot pole. Sorry, a 3048 mm pole.

    • Richard C (NZ) on 20/07/2012 at 7:08 pm said:

      It’s the basis of each series that’s in question. NIWA’s criticism of Bob D’s series was that “he was too strictly formulaic and too rigid in using K=2, or two years before and after in comparing stations”.

      What basis does the judge accept, Bob D’s strict and rigid basis or NIWA’s – shall we say – flexible application, or both on their respective merits?

      Neither of which is a question of science but on interpretation of what constitutes an acceptable approach that will result in production of a temperature series. BOM found NIWA’s approach acceptable from the outset and didn’t review the technicalities of it (the science or the statistics) by their own letter. The NZCSET series if reviewed by BOM would presumably get the same treatment because the approach is essentially the same just more strict and rigid.

      Therefore there are two different outcomes using two different approaches, both of which are acceptable to their respective proponents.and the common reviewer (BOM, real and hypothetical).

    • Richard C (NZ) on 20/07/2012 at 7:43 pm said:

      I’m guessing the judge would look for precedents. My only brushes with law in that respect are academic and I was never exposed to that level but I’m sure there will be something.

      For example but only remotely related, in USA where there is a competitive railway environment a judge was asked to rule on pricing (customer charges) for a branch line when only one operator was able to service the customer (this also applicable as a precedent in electricity supply cases). The judge asked the question: “what would a hypothetical efficient rail operator charge?” (or words to that effect). That hypothetical charge (determined by the judge’s research I think) became the price. Note that the judge did NOT have to be an expert in rail operation to make the determination.

      So there’s another possibility, the judge may reject both the NIWA series and the NZCSET series and ask: what methodology and how strict the application of it would a hypothetical good practice (not necessarily best) meteorological organization use?

      The judges answer – like it or not for all concerned – may be what is handed down as the approach to use and just as in the rail example, Justice Venning does not have to be an expert climate scientist or meteorologist to make the determination

    • Richard C (NZ) on 20/07/2012 at 8:36 pm said:

      Precedents and this type of guidance:-

      Reference Manual on Scientific Evidence
      Second Edition
      Federal Judicial Center 2000


      Summary Table of Contents
      A detailed Table of Contents appears at the front of each chapter
      v Preface,
      Fern M. Smith
      1 Introduction,
      Stephen Breyer
      9 The Supreme Court’s Trilogy on the Admissibility of Expert
      Testimony, Margaret A. Berger
      39 Management of Expert Evidence,
      William W Schwarzer & Joe S. Cecil
      67 How Science Works,
      David Goodstein
      83 Reference Guide on Statistics,
      David H. Kaye & David A. Freedman
      179 Reference Guide on Multiple Regression,
      Daniel L. Rubinfeld
      229 Reference Guide on Survey Research,
      Shari Seidman Diamond
      277 Reference Guide on Estimation of Economic Losses in Damages
      Awards, Robert E. Hall & Victoria A. Lazear
      333 Reference Guide on Epidemiology,
      Michael D. Green, D. Mical Freedman & Leon Gordis
      401 Reference Guide on Toxicology,
      Bernard D. Goldstein & Mary Sue Henifin
      439 Reference Guide on Medical Testimony,
      Mary Sue Henifin, Howard M. Kipen & Susan R. Poulter
      485 Reference Guide on DNA Evidence,
      David H. Kaye & George F. Sensabaugh, Jr.
      577 Reference Guide on Engineering Practice and Methods,
      Henry Petroski

      Thomas Henry Huxley observed that “science is simply common sense at its
      best; that is, rigidly accurate in observation and merciless to a fallacy in logic.”
      This second edition of the Reference Manual on Scientific Evidence furthers the goal
      of assisting federal judges in recognizing the characteristics and reasoning of
      “science” as it is relevant in litigation. The Reference Manual is but one part of a
      series of education and research initiatives undertaken by the Center, in collaboration
      with other professional organizations, and with support by a grant
      from the Carnegie Corporation of New York, to aid judges in dealing with
      these issues. The Reference Manual itself responds to a recommendation of the
      Federal Courts Study Committee that the Federal Judicial Center prepare a
      manual to assist judges in managing cases involving complex scientific and technical

    • Richard C (NZ) on 20/07/2012 at 8:43 pm said:

      The first edition of the Reference Manual was published in 1994, at a time of heightened need for judicial awareness of scientific methods and reasoning created by the Supreme Court’s decision in Daubert v. Merrell Dow Pharmaceuticals, Inc.3 Daubert assigned the trial judge a “gatekeeping responsibility” to make “a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.”

    • Jim Mck on 20/07/2012 at 9:29 pm said:

      Hi Richard C,

      Once the judge is sequestered, or what ever the term is, we just have to prepare ourselves for the range of possible outcomes and wait.

      I hate it it as much as you do

    • Richard C (NZ) on 20/07/2012 at 9:39 pm said:

      From the Reference Guide on Statistics

      B. Varieties and Limits of Statistical Expertise

      Statistical expertise is not confined to those with degrees in statistics. Because
      statistical reasoning underlies all empirical research, researchers in many fields
      are exposed to statistical ideas. Experts with advanced degrees in the physical,
      medical, and social sciences—and some of the humanities—may receive formal
      training in statistics. Such specializations as biostatistics, epidemiology, econometrics,
      and psychometrics are primarily statistical, with an emphasis on methods
      and problems most important to the related substantive discipline.
      Individuals who specialize in using statistical methods—and whose professional
      careers demonstrate this orientation—are most likely to apply appropriate
      procedures and correctly interpret the results.

      C. Individual Measurements
      1. Is the Measurement Process Reliable?
      There are two main aspects to the accuracy of measurements—reliability and
      validity. In science, “reliability” refers to reproducibility of results.59

      2. Is the Measurement Process Valid?
      Reliability is necessary, but not sufficient, to ensure accuracy. In addition to
      reliability, “validity” is needed.

      5. What Comparisons Are Made?
      Finally, there is the issue of which numbers to compare. Researchers sometimes
      choose among alternative comparisons. It may be worthwhile to ask why they
      chose the one they did. Would another comparison give a different view?

      C. Does a Graph Portray Data Fairly?
      Graphs are useful for revealing key characteristics of a batch of numbers, trends
      over time, and the relationships among variables.93
      1. How Are Trends Displayed?

      [the linear trend on NZT7 should not be used IMO – R squared values]

      IV. What Inferences Can Be Drawn from the
      The inferences that may be drawn from a study depend on the quality of the
      data and the design of the study. As discussed in section II, the data might not
      address the issue of interest, might be systematically in error, or might be difficult
      to interpret due to confounding.

      2. What Is the Standard Error? The Confidence Interval?

      So judges have considerable scope and guidance on questions of science, complexity and most relevant – statistics.

      I rest my case.

    • Richard C (NZ) on 20/07/2012 at 9:44 pm said:

      “…prepare ourselves for the range of possible outcomes”

      That’s what I’m doing.

      “I hate it it as much as you do”

      I can assure you Jim, that with the modicum of legal study that I have, I certainly don’t hate it In fact I find it extremely stimulating.

      The US EPA ruling was a similar experience, visit “USA” on this blog for that.

    • Richard C (NZ) on 20/07/2012 at 10:31 pm said:

      The EPA decision was 82 pages. I don’t expect this decision will be that extensive but I think a lot of people will be surprised by what the judge hands down in terms of its scope. I’m thinking Greenpeace cindy at Hot Topic in particular.

      United States Court of Appeals
      Argued February 28 and 29, 2012 Decided June 26, 2012
      No. 09-1322


  5. SkylerSam on 20/07/2012 at 4:38 pm said:

    Long time lurker/non contributor, but I wanted to say a sincere thank you to you all for your efforts in this case.
    Well done, you are true champions, and I wish all the success you certainly deserve.

  6. Richard C (NZ) on 21/07/2012 at 10:12 am said:

    So for those who wish to ruminate (me), what realistic outcome possibilities can we expect? The High Court Rules state:-

    11.2 Types of judgment

    A judgment may—

    (a) be interim; or
    (b) be final; or
    (c) deal with any question or issue; or
    (d) order any accounts, inquiries, acts, or steps that the court considers necessary.


    From the NZCSET SOC, they seek:-

    WHEREFORE the plaintiff seeks:

    A. A declaration that the New Zealand Temperature Record is not a full and accurate record of changes in the average surface temperatures recorded in New Zealand since 1900;

    B. An order setting aside NIWA’s decision to base the New Zealand Temperature Record on the Seven-Station Temperature Series;

    C. An order preventing NIWA from using the NZTR (or information originally derived from the NZTR) for the purposes of advice to any governmental authority or to the public until it has been scientifically re-determined and independently peer reviewed.

    D. An order requiring NIWA to publish a full and accurate climate record of changes in the average surface temperatures recorded in New Zealand since 1908.

    E. Such further order as may be just.

    F. Costs.


    So I’m guessing it will be something of the following:-

    # Dismissal in full

    # Dismissal in part

    # Upheld in full

    # Upheld in part

    # Clean slate A) – 7SS set aside, no further judgment.

    # Clean slate B) – 7SS set aside and a new series ordered with guidance as to determination and review.

    # Referral – NZ Temperature record referred to an organization other than NIWA for compilation.

    # Dual series – both NIWA and NZCSET 7SS stand with qualification as to application of R&S93.

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