The Law, Lawsuits, And Climate Change

Guest Opinion: Dr. Tim Ball

clouds-of-justice

“Let us always remember that he does not really believe his own opinion, who dares not give free scope to his opponent.” Wendell Phillips

David Schnare wrote about how the progressive left intends to use the courts to harass those who don’t agree with them on the climate. His focus was on corporations and special interest groups using such legal devices as RICO to intimidate, harass, and even silence those with different opinions. The reality is they are all tantamount to suppression of speech, which creates the paradox of using the law to defeat free speech; the most fundamental of human rights.

Free Speech is the first amendment to the US Constitution for a reason. The second amendment is to allow citizens to defend the first amendment. The Founding Fathers knew the greatest threat to citizen’s free speech was their own government. The US is the only nation in history that put free speech as the primary, unassailable, right of a citizen. There is no compromise. Americans need to understand the value of totally unrestricted free speech and resist any attempts to modify or legally evade its importance. They must consider what happens in countries without free speech protection to realize the value.

Scientific skepticism.

The use of climatology and science for a political agenda as practiced is wrong. It is true that science is ideally amoral and apolitical. It is also true that everything is political to a greater or lesser degree. However, the difference with the use of climate was its deliberate selection for a political agenda. Proof that it was deliberate is found in the failure to follow the scientific method. This was reinforced by planned deception, manipulation of the data, and computer models programmed to predetermine the outcome.

Instead of trying to disprove the anthropogenic global warming (AGW) hypothesis they set out to prove it. As Douglas Yates said,

“No scientific theory achieves public acceptance until it has been thoroughly discredited.”

Besides the scientific manipulation, their strategy required marginalizing those trying to practice the proper scientific method. This involved isolating them as dangerous outliers by name-calling, including ‘global warming skeptic’, and ‘climate change denier’. They knew the public didn’t know that a scientist must be a skeptic. As Thomas Huxley noted,

“The improver of natural knowledge absolutely refuses to acknowledge authority, as such. For him, skepticism is the highest of duties; blind faith the one unpardonable sin.”

They also knew that the public didn’t know how much climate changes naturally all the time. All the so-called deniers knew, and most have careers teaching people the extent of the change. They are anything but deniers, but the accusation shows the ill-informed nature of the accusers. The marginalizing is a form of ad hominem attack, which occurs when you begin to lose an argument.

The switch in terminology from ‘skeptic’ to ‘denier’ was deliberate. Up to about 2000, it was global warming and skeptic, then, as CO2 continued to increase but temperatures stopped increasing, it became climate change and denier. A 2004 leaked CRU email from the Minns/Tyndall Centre on the UEA campus tells the story

“In my experience, global warming freezing is already a bit of a public relations problem with the media.”

Swedish Chief Climate Negotiator Bo Kjellen replied,

“I agree with Nick that climate change might be a better labelling than global warming.”

All IPCC predictions (projections) failed from the first Report (FAR) in 1990 to the 2013 Report (AR5). Skeptics knew about the failures, but they and the failure were ignored. Alarmists knew the politicians and the public didn’t know or understand. When the switch from warming to climate change occurred, the failed forecasts became a bigger issue and a greater threat to the deception. Hostility to scientists practicing skeptical science increased. The leaked emails from the Climatic Research Unit (CRU) revealed that in December of 2004 Michael Mann and Gavin Schmidt created the web page Realclimate to counteract the skeptics and their ‘false’ stories.

Other actions were in progress to silence skeptics. I was privileged to give a keynote lunch presentation to the first Heartland Climate Conference in New York in 2008. The privilege was enhanced by sharing the keynote platform with Dr. Fred Singer. We greeted each other, and Fred asked how I was doing. I said I am fine but just received a lawsuit. Fred said McConchie was still at it then? I asked how he knew the name of the lawyer. He replied that he threatened him and others with lawsuits.

Roger McConchie filed my first lawsuit on behalf of Gordon McBean, Assistant Deputy Minister of Environment Canada. McBean chaired the meeting that formulated the IPCC in Villach Austria in 1985. He was also in charge at EC when, according to the Auditor General, EC spent $6.8 billion from 1997 to 2005 on climate change. Contrary to funding policy almost all went to people and programs supporting the government position. Diversion of funding to climate change left other legislated requirements incomplete. It became so bad that public complaints about poor service triggered an internal investigation by The Impact Group. They hired Price Waterhouse, who carried out public hearings. I attended the Vancouver meeting and much later received the report shown in Figure 1.

image

Figure 1

In a review of the Impact Group Report, Ken Green wrote,

Elements of an “Action Plan for Climate Science Research at Meteorological Service of Canada (MSC)” (obtained through an Access to Information request) indicate that Canada’s climate change science program is being driven by a predetermined political agenda with a clear disregard of scientific needs.

After discussion with my wife, we decided the cost of defending was too high. I discovered that McConchie also filed the lawsuit against the publisher. They were not willing to defend and were willing to print a retraction. I withdrew the article.

Ironically, in my opinion, this served to influence the next two lawsuits because it appeared to create the impression I would withdraw from future lawsuits and thus be easily silenced. McConchie filed the second lawsuit on behalf of Andrew Weaver, now head of the British Columbia (BC) Green Party and sitting member in the BC legislature. At the time, he was a computer modeler at the University of British Columbia and four-time contributing author for the IPCC Reports, (1995, 2001, 2007 and 2013).

My wife and I decided that it was time to fight back even though it cost all of our savings. I discovered that the publisher agreed, without consultation with me, to print a retraction written by McConchie. I withdrew all of my publications from that internet news outlet.

Since you have to respond to a lawsuit within a very brief period, I quickly retained a defamation lawyer. While that was in progress, I went to Winnipeg and made a public presentation that included an explanation of the ‘hockey stick’ and how it rewrote climate history. After the presentation, I was asked about my view of Michael Mann and his work. I gave my flippant response. I returned home and within hours the second lawsuit arrived. They were filed nine days apart.

Lawsuits filed to silence free speech are known as Strategic Lawsuits Against Public Participation (SLAPP). Politician’s and lawyers realized these lawsuits were contrary to the objectives of free speech and as a result, 48 of the 50 US States introduced anti-SLAPP legislation. Eight of ten Canadian Provinces also wrote such legislation. British Columbia planned to pass legislation but an election intervened, and the new government did not pursue it. Hence, BC became a place where such lawsuits are within the law.

Consider the implications of the Mann lawsuit. It was filed in the BC Supreme Court against a Canadian citizen by a Canadian lawyer on behalf of an American citizen for an incident that occurred in the Canadian Province of Manitoba. Apart from two of the US States, it is unlikely the lawsuits against me would happen. I say this because I wrote the Foreword to the book Green Gospel and the author received a lawsuit filed on behalf of Gavin Schmidt in Washington State. The author informed me that the legal advice was just tell them to go away.

When charged with defamation in Canada there are two options. You can claim it was ‘fair comment.’ If you choose that option, there is no discovery, that is you cannot demand disclosure of documents. The advantage is that if you lose the penalty is small; I understand the biggest assessment was $20,000. The second option is to claim what I said was ‘the truth’. This allows discovery, which in the Michael Mann case especially, is important. However, if you lose, as I understand, there is no limit to the penalty, including loss of all assets. After a family discussion, we decided that the ‘truth’ defense was the only option.

It is now over five years since the Weaver lawsuit was filed and nothing has happened. On a recent radio program, Weaver was challenged by the host saying this proves it is a SLAPP lawsuit. Weaver disagreed but did not explain why there was no action. Meanwhile, McConchie advised my lawyer that the Michael Mann case that was filed after the Weaver case will go to court on February 20, 2017. I am currently advising witnesses to set the time aside.

People ask why I didn’t countersue Michael Mann like Mark Steyn, author of “A Disgrace to The Profession” subtitled “The World’s Scientists – in their own words – on Michael Mann, his Hockey Stick, and their damage to science.” As I understand from my lawyer, this is possible in the US as a constitutional tort or civil wrong. It is not allowed in Canada where all I can do is file a separate suit on a different issue. The irony of Steyn’s countersuit was that Mann asked the courts to determine if it was unlawful under the anti-SLAPP legislation. The last I heard was this decision is still tied up in the courts.

Interestingly, Karl Popper, who wrote extensively about the scientific method, considered the implications of the interaction between science and politics. In his book The Poverty of Historicism, he wrote the following.

We all have an unscientific weakness for being always in the right, and this weakness seems to be particularly common among professional and amateur politicians.  But the only way to apply something like scientific method in politics is to proceed on the assumption that there can be no political move which has no drawbacks, no undesirable consequences.  To look out for these mistakes, to find them, to bring them into the open, to analyze them, to learn from them, that is what a scientific politician as well as a political scientist must do.  Scientific method in politics means the great art of convincing ourselves that we have not made any mistakes, of ignoring them, of hiding them, of blaming others for them, is replaced by the greater art of accepting responsibility for them, of trying to learn from them, and of applying this knowledge so that we may avoid them in the future.

Those using climate for a political agenda have convinced themselves and others that they are not making any mistakes, not ignoring or hiding them or blaming others. They are not accepting responsibility or learning from them. To do this, they have used many techniques such as creating false studies claiming that 97% of scientists agree. They also carry out personal attacks on those who challenge them, such as those on Willie Soon and Sallie Baliunas by John Holdren. Personal attacks include using the law in contradiction to its purpose to limit free speech.

98 thoughts on “The Law, Lawsuits, And Climate Change

    • Having seen an aerial photo of this village, it can only be wondered why any building ever took place in an area which is clearly barely above sea level. The same ‘blame game’ is being pursued by residents of housing developments which,were allowed to be built on flood plains.

      • The village and a railway has been there since around 1895. So “wonder” away.
        It could be properly protected for a tiny fraction of the costs of Ruinable Energy.

      • The village is on the coast of Cardigan bay – where the land has been rising for centuries and still is rising. The bay is lined with “morfas” – former sea marshes – which have been reclaimed for farming, forestry or housing as the sea has retreated. One has an airfield with a 2,285 metre asphalt runway- see Llanbedr Airfield in Wiki.

      • The village of Fairbourne is only 25 miles from Harlech Castle. When the castle was built in the late 13th century and it has a water-gate and a long flight of steps which lead to shore so the castle could be resupplied by sea during sieges. However, since its construction the land has risen so the castle is now quite far from the sea. Scroll down the web page below to see a photo of Harlech Castle with the sea in the distance.

        Castles in North Wales
        http://www.croeso.org/castlesnorth.html

  1. “Lawfare” is an apt term. Venue shopping is a very real problem, and in both the US and Canada it requires national legislation. Canada seems to be in a worse situation with a new PM, Trudeau, but the US has at least a chance for a real change of government, barring either Democrat winning.

    • Well those thoughtful good American citizens who in 2008, and 2012 couldn’t think of better reason for casting their ballot, than to become a part of history, will be remembered for their thoughtfulness by their children and grandchildren.

      Also by the rest of us.

      We are about to reap the reward of your attention to your civic duties.

      Thank you.

      G

      • george e. smith February 12, 2016 at 5:11 pm
        Well this sounds like a wonderful group of legal scholars.

        I would heartily recommend that they convene another such focus group for the purpose of studying the Constitution of the United States of America, and discussing the specific constraints that it places on the powers assigned to the Government of the United States of America, as enumerated in that clearly written document. I believe it is actually written in the English language, instead of in that mediaeval Roman mumbo Jumbo that lawyers normally use to miscommunicate with. Article nine of the Bill of Rights, is my all time favorite section.

        It says that we the people retain all of our rights that we have not consigned to the Government, by way of that Constitution (in order to form a more perfect union).

        I like that; we have ALL of our rights except those mentioned in the Constitution, as being ceded to the Government

        G

        Dahlquist February 12, 2016 at 7:09 pm
        @george e. smith

        Hi George. I appreciate most all of your thoughts and contributions to this site… So, pardon me if I misunderstand your post above about convening another focus group for studying the U.S. Constitution. Are you saying that the comments posted previously about the ‘progressive left using courts’, etc. has no place in this forum? If I misunderstood, I apologize.

        I do think that pointing out the fact that so called ‘progressives’ who are using the legal system to shut down discussion of climate change is absolutely relevant to the topic of this post and that defining who these people ‘really are’ is also important. There are many ‘sheep’ who follow a cause simply based on what the “cause” names itself. ‘Progressive” sounds like a good title for a sheep to follow, and so they do, without much thought. Many people become immune to the titles which a ’cause’ or group chooses to use for itself and simply accept the title because hearing it so often makes an association in many peoples minds without knowing that the cause behind it is entirely different or even opposite to the word they associate the cause or group with. I am simply pointing this out and in hopes that more people will scrutinize the titles and definitions which these groups or causes choose to use for themselves and hope that more people will become more aware and innoculate themselves to it. I may be off track here because of the skeptical nature of most of the folks who follow WUWT and I’m preaching to the choir, but I know that I have a tendency to sometimes fail to identify the BS for what it is.

      • @george e. smith
        I took what you wrote to heart and thought your post was directed at a couple of the commenters, including me. I apologize sincerely. When my wife gets moody, I get emotional too … ; )

    • National legislation would make no difference- judges do what ever they feel like anyway. Just look at SCOTUS- why do you need 9 judges- because they don’t follow the law and the law is an ass.

    • To Dr Ball : In your article you said: “The marginalizing is a form of ad hominem attack, which occurs when you begin to lose an argument.” I wonder if you meant to say “If THEY begin to lose an argument”? (Scientific Skepticism paragraph 6).

  2. A nit: it is not true that “Free Speech is the first amendment to the US Constitution.”

    The first thing protected in the First Amendment was the then-widespread “establishments of religion” — i.e., the official town and State churches. (This one is now ignored.)

    The second thing protected in the First Amendment was the free exercise of religion. (This one is under constant assault by the Left.)

    The third thing protected in the First Amendment was freedom of speech. (This one is under constant assault, too, mostly by the Left.)

    The fourth thing protected in the First Amendment was freedom of the press. (The press has been pretty successful defending this one from encroachment.)

    The fifth thing protected in the First Amendment was “the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” (This one is largely respected.)

    • In other words, “Government” is not allowed to dictate and control the ideas and beliefs of the individual or the communication to others of those ideas and beliefs.
      “Government” enters in when those rights are being hindered, to prevent the hindering.
      Sad to say that today it is “Government” doing the hindering.

    • Dave,

      The first amendment was not written to apply to the state or local governments. Virginia had an established church at the time and only abandoned it because it was not viable, not because the constitution forbade it. It was to prevent the establishment of a “Church of the United States” run and chartered by the US Congress that the first amendment addressed. The Bill of Rights was not thought to apply to the states until after the Civil War and the passing of the 14th amendment. It took a while for the courts to apply the other amendments even after the 14th was firm law. Many of the states had their own Bills of Rights written into their constitutions and it was these rights that applied to the state governments. The current understanding really didn’t gel until the 1950s and 1960s.
      ,

      • Owen, If I remember correctly, the language is something like “Congress shall make no law respecting an establishment of religion….” Seems to me that could be reasonably understood to mean that Congress could not interfere with local establishments, as Dave suggests, as well as preventing a national establishment, as you point out..

    • In a greater sense, all the things you mention are speech. You will not be compelled by the government to speak in only a certain manner in religion, you may speak in any manner you wish, you may speak freely, the press may speak freely, you may gather to speak freely. A nit perhaps, but they are all about speech.

      Sadly, all the above are being abridged by the current escathological cargo cult of the CAGW.

    • Re freedom of the press in today’s context: Freedom to do what? I think the framers thought it self evident that the press would practice due diligence and truthfulness.

      • The “Establishment Clause” of the First Amendment prohibits federal interference with the then-commonplace State and local government establishments of religion. It says that:

        “Congress [the only federal law-making (legislative) authority] shall make no law [so there can be no federal law made] respecting [i.e., having to do with] an establishment of religion [i.e., an official government church].

        That language prohibits the creation of a official national church, and prohibits federal interference with the official State and local churches which were common in America at the time.

        Note that the United States consisted of 14 States when the First Amendment was adopted, the new State of Vermont having just been admitted — and having just established its official State Congregational Church, shortly before they ratified the Bill of Rights.

        These days, the courts thumb their noses at the intended meaning of the first part of the First Amendment. They pretend that it means almost the exact opposite of its intended meaning. The Courts dishonestly use the First Amendment as an excuse for prohibiting the local establishments of religion that it was written to protect, and even for prohibiting the free exercise of religion in many venues, such as schools.

        The gradual disappearance of official establishments of religion in America came because popular opinion about the desirability of State Churches shifted against them. It had nothing to do with an imaginary Constitutional requirement. Justice Potter Stewart summarized the meaning and history of the Establishment Clause, as follows:

        “As a matter of history, the First Amendment was adopted solely as a limitation upon the newly created National Government. The events leading to its adoption strongly suggest that the Establishment Clause was primarily an attempt to insure that Congress not only would be powerless to establish a national church, but would also be unable to interfere with existing state establishments. See McGowan v. Maryland, 366 U.S. 420, 440-441. Each State was left free to go its own way and pursue its own policy with respect to religion. Thus, Virginia from the beginning pursued a policy of disestablishmentarianism. Massachusetts, by contrast, had an established church until well into the nineteenth century.”

        Note that the “existing state establishments” of official churches also included local establishments of religion. Even long after Massachusetts became the last State to disestablish its official (Congregational) Church at the State level, 44 years after the First Amendment was passed by Congress, and 41 years 11 months after the First Amendment was ratified, many towns still had official church establishments. A handful of Amish communities persist to this day.

        In those days, the right of people of faith to establish communities of their own faith was a cherished fundamental aspect of religious freedom. Indeed, it is what the Pilgrims sought when they migrated to America.

        Until the 20th century, no American was offended by the existence of Amish towns, Mennonite towns, Moravian towns, etc. It is impossible to imagine that the Framers of the U.S. Constitution thought they were writing a document that could someday be used to infringe the freedom of American citizens to create such communities of faith.

  3. So who was the sleazebag in Winnipeg who reported your remark? It is hard to imagine that anyone could stoop so low.

  4. Free Speech is the first amendment to the US Constitution for a reason. The second amendment is to allow citizens to defend the first amendment.

    Thanks Doc, that goes on my wall. Too few here in the U.S. understand that and, as you said, it is under assault.

    • Well actually it is about to really come under assault. Maybe you can kiss both of those goodbye thanks to the thoughtful voters of 2008 and 2012 who wanted to be a part of history.

      G

  5. “Meanwhile, McConchie advised my lawyer that the Michael Mann case that was filed after the Weaver case will go to court on February 20, 2017. I am currently advising witnesses to set the time aside.”
    Dr. Ball, hope for a US Republican President and Republican Congress after December elections. Cruz and Lamar Smith may deal with Mann as well as Karl and Schmidt, and thus relieve you and your witnesses of the trouble. In any event, as with Steyn, Mann will not submit e-mails etc. under discovery, so it will be a case of prolonging to try and bleed you dry. As Steyn wrote, the case is the punishment. Mann has apparently financial backers.

    • Election Dayfor the US Presidency always falls on the first Tuesday following the first Monday in November. So It’s a done deal by December. January 21 is inauguration Day.

  6. Tim Ball wrote,

    “ . . . the author [of the book ‘Green Gospel’] received a lawsuit filed on behalf of Gavin Schmidt in Washington State. The author informed me that the legal advice was just tell them to go away.”

    I was unaware that Gavin Schmidt was easily duped into the Mann-like litigation sickness. But, it does not surprise me much at all.

    John

  7. Justice Scalia has passed and we have lost a great legal mind. Obama will get another appointment. A sad day indeed.

    • He will now use the courts to get what he was denied on constitutional grounds if he is allowed by the Senate to appoint a replacement for Scalia. It is more than a sad day. Our republic could actually fall over this one loss. The Supreme Court will soon be hearing arguments on the over reach of the EPA. If the ruling goes against the states bringing suit there will be a rush to see how far all federal departments can go against our constitutional law.

      • I think it has to be Trump! With him, there is nothing too big to fail and that is the kind of job that must be done or incrementalism will deliver you to the Marxbrothers. Don’t fear Trump. This guy has a bad habit of thinking out loud on the hustings, but he knows the need to seek expert counsel on issues before leaping. Years ago, he told New York City that he was going to fix the skating rink in Central Park after numerous flubs and breakdowns of the attempts by city officials. He did exactly that. How? He asked New York Rangers people who made the best hockey rinks in the world. The reply was a gentleman (I can’t remember his name) who built the rink for the Toronto Maple Leafs. He got him to come down and look at the set up. The world’s best rink maker said all the things that were wrong with the C.P. rink and that it needed to be redone from scratch. Trump engaged him and he built a beautiful rink.

        You see, he knew that the city officials obviously didn’t know what they were doing. He of course didn’t know anything about it but, like a top manager of anything, he knew there were people who did know what they were doing and he went for the best. This is a very telling thing about Trump that gives me no hesitation in saying he will manage the US with same philosophy. And don’t forget the ad hominems that Reagan had to endure and he ended the Cold War and gave Americans back their self esteem, lost during the Vietnam War divisiveness and the ignominy of losing it on top of it. How’s that for a grade B actor who was chided as being a costar with Bonzo.

    • With Scalia’s death ending the even small previous 5-4 rational majority, we will see “political” decisions only from every liberal/progressive/socialist-appointed judiciary and DOJ/FBI appointed position.

  8. What are they so afraid of. That’s a rhetorical question. “Those using climate for a political agenda have convinced themselves and others that they are not making any mistakes, not ignoring or hiding them or blaming others.” I wonder if at least some people, scientist and laymen alike, have committed themselves so strongly to the belief in AGW that they can’t bring themselves to admit they’re wrong even in the face of mounting evidence against it. As Tolstoy once wrote, “I know that most men, including those at ease with problems of greatest complexity, can seldom accept even the simplest and most obvious truth if it be such as would oblige them to admit the falsity of conclusions which they delighted in explaining to colleagues, which they have proudly taught to others, and which they have woven, thread by thread, into the fabric of their lives”. Was that a run-on sentence? Anyway, if the preceding is not the reason alarmists are not at least modifying their position on AGW, then the only other possibility is that they are knowingly and deliberately falsifying or omitting data that doesn’t support their position.

      • Well the American people always get the Government they deserve, and want.

        So if you wanted to be a part of history in 2008, and again in 2012, well now you are.

        G

      • D.B. — Precisely. Sure hope that his family will demand that their own medical expert be, at the very least, present for the entire procedure and given copies of all lab results, etc… . When your loved one dies, however …. you just don’t care, sometimes… . Sure hope the family will listen to some wise advice, nevertheless, and that someone who cares will act on their behalf to make sure the autopsy is: 1) complete; 2) honestly and competently performed; and that 3) the results are fully shared with the family.

        After my initial deep dismay, that was my first thought: “Sure hope they get an autopsy.” Your thought went one better… .

        While he was, after all, 79, I expected Antonin Scalia to live to be 90, at least. The timing is definitely convenient for the enemies of our Constitutional rights… . Hm.

      • When he heard that Scalia died in Texas while on a hunting trip, my ultra-liberal brother in law wondered if Dick Cheney’s whereabouts were known.
        I think he died in his sleep. I do not personally suspect foul play was involved.
        Just an awful tragedy as the relentless reaper catches up with another one of us.
        Rest In peace Nino.

      • The court only stop the EPA acting until the suit can be heard. If they rule against the states because of an Obama appointment this country is finished.

      • Bubba, there are potentially three cases I am aware of in the time frame if next fall’s docket. American Farm Bureau v. EPA (manure spreading–definition of maximum daily load under the Clean Water Act) is up for conference on whether to accept for review. IMO, it will be. Might even land on this,spring’s docket. A North Dakota judge has stayed the EPA’s crazy new Clean Waterway Plan regulations, and the EPA is appealing the stay. That will go fast, either way, and could land in the fall term. And the Appellate hearing on the constitutionality of the EPA Clean Power Plan has been expedited to June. Expect a fast ruling because already expedited. So the constitutionality of CPP could also reach SCOTUS in the fall. Big stakes.

      • Kokoda is correct…tie means lower court ruling stands.
        Any ruling stands unless and until it is overturned.

    • My reaction also. Just came in from walking the dog to read this really bad news. Strict construction has lost its greatest advocate.
      But Obumer’s nominee may have a difficult time getting approved in the Senate unless he picks a moderate centrist with proven good judicial instincts. There are a number of them at the federal appellate level that come to mind. His last two appointments were clearly not of that sort. Elena Kagen, really? So could mean the vacancy goes unfilled until after the next President is sworn in. The upcoming election just became even more important.
      In the present 8 person court, there could be a lot of hung decisions unless somebody decides to get less ‘political’ and more judicial. CJ Roberts has a lot more on his plate than he did

      BTW, the CPP stay was tactically brilliant on Roberts part. By custom, he could have issued the stay himself. But since a general regulation had never been stayed pending appeal before (and the EPA had already shot itself in the foot by bragging that SCOTUS overturning its new mercury rule did not matter, since during the litigation power plants had already been forced to comply) getting a 5-4 vote to stay, given stay requirements, sends an incredibly strong ‘unconstitutional’ signal to the appellate court.

      • It brings into focus several points, it seems to me.
        One is how important the Presidency is beyond the four year term decided by one election.
        Shame on anyone who stays home because their perfect candidate is not the nominee.
        Another is the senate races this fall…according to Sabato, there are two seats that are likely R to D, none that are likely D to R, and three toss ups. Republicans could lose majority in the senate if things go badly.
        And the third is the age of some of the candidates. In past years this was considered an important consideration, but as medical science has progressed and life expectancies have become longer and longer, it has become a less discussed issue in elections. No one wants a President to die while in office…under any circumstances it is hugely disruptive. Sanders, if elected, would be 80 before his first term expires. Trump is 70 and will be 71 before the election, Hillary is 69. Biden, who has been mentioned as someone who will be called upon if Hillary is indicted, is nearly as old as Sanders at 74.
        Carson is 65, Kasich 64, and Jeb just turned 64 as well.

      • I am not an expert but on FOX news Brad Baird had a gentleman on explaining that Obama CAN actually appoint a new Judge while the houses are in recess by mutual consent ( I don’t know if one rep stays behind if that is possible) but the interview was very well done and very clear. It is a mess but apparently that tactic has only been done once in 1956. http://www.foxnews.com/politics/2016/02/13/obama-has-rare-parliamentary-window-to-make-recess-appointment-to-succeed-scalia.html?intcmp=tre

  9. The real irony is that the US now has the SPEECH Act, which makes foreign defamation judgments unenforceable here if the defendant wasn’t given all the speech protections we enjoy in the US. Thus, “forum shopping” outside the US is no longer practical if a US person is the defendant, but an American can still get away with a SLAPP suit filed in Canada against a Canadian. Oy!

  10. Dr. Ball, as a licensed lawyer I am very sympathic to your plight. And apologize for the venality of some lawyers. The law is abused all the time, whether ambulance chasers going after doctors, or warmunists going after you and Steyn. Truth prevails, even in Canada. And Mann has not got a leg to stand on after McIntyres eviseration of his work, and Steyn’s book. Be of good cheer. You did the right thing, and will prevail.

    • IANAL. I followed SCO vs. ‘the whole darn world’ on Slashdot and Groklaw from the beginning of the cases until the cases fizzled out and Groklaw ceased publishing new stories. I have some observations:

      1 – Even practicing lawyers have trouble predicting the outcome of cases.

      2 – SCO eventually lost but they were able to spin the misery out over a decade.

      3 – The process is the punishment. IBM was able to withstand the cases and the astronomical legal bills. Novell was seriously harmed.

      I admire, but do not envy, Dr. Ball.

      I envy Michael Mann even less. In going after Mark Steyn, Mann has grabbed a tiger by the tail. Because Steyn has countersued, Mann will probably have to eventually produce discovery (if there is any justice in the world, IANAL, etc). If the discovery shows that Mann’s hockey stick was a deliberate and premeditated deception then there is a possibility that he will indeed end up in state pen.

  11. If scientists were funded almost exclusively to find evidence of natural climate change, then there would be a 97% consensus on that. Almost all funding of science in the U.S. has political bias in the background, driving what the government wants to have funded, and how the announcements of opportunity are phrased.

    Most scientists would be willing to blindly follow where the evidence takes them, but putting food on the table is a higher priority.

    • Oh, Michael. Oh. This is a great loss.

      “Associate Justice Antonin Scalia was found dead of apparent natural causes Saturday on a luxury resort in West Texas, federal officials said. … .”

      “http://www.mysanantonio.com/news/us-world/article/Senior-Associate-Justice-Antonin-Scalia-found-6828930.php

      No one can ever replace Antonin Scalia. Pray hard that whoever succeeds him has even HALF his intelligence and wisdom and commitment to upholding the Constitution of the United States of America.

  12. Tim Ball, thank you for the background, perspective and status of the integrity-challenged litigation by the befuddled Don Quixote of Penn State’s Earth Science Center (aka Michael E. Mann).

    I haven’t seen an update recently by Steyn on his situation regarding old PSU Quixote sponsored legal windmill tilting.

    John

  13. okay it is to late. You need a year and a half for a Supreme court appointment . In a lovefest its possible in 6 months. President Obama’s nomination will sit in committee.
    I love my country and am ready to sing out the Star Spangled Banner. (No Sarc)

    Checks and Balances.
    The heat of course is up now as to who wins the election.

    No prisoners
    michael

    • Re: appointment of successor to Justice Scalia

      Also…. good chance the Dems will WANT this for an election issue, “If you don’t elect us (so we can appoint the next justice), you’ll have all this HORRIBLE stuff happen to you!!”

      So, even more likely, that there will be no “done deal” until at least 2017.

      Pray!!!!

      • Yes, Mr. Smit, however, Barack Hussein can only recess-appoint a SCOTUS justice temporarily:

        ” … less than two years ago, the Supreme Court severely narrowed the flexibility of such temporary {recess} appointment power, and strengthened the Senate’s capacity to frustrate such a presidential maneuver. ***

        The presidential authority at issue in this possible scenario exists, according to Article II, when the Senate has gone into recess and the vacancy a president seeks to fill remains. Such an appointment requires no action at all by the Senate, but the appointee can only serve until the end of the following Senate session. The president (if still in office) can then try again during a new Senate session, by making a new nomination, and that must be reviewed by the Senate. ***

        in National Labor Relations Board v. Noel Canning {http://www.scotusblog.com/case-files/cases/national-labor-relations-board-v-noel-canning/ } … The Court expanded the concept of when the Senate would be in recess so that the president could make a temporary appointment, but it also gave the Senate more control over when it does recess and how long the recesses last. ***

        The bottom line is that, if President Obama is to successfully name a new Supreme Court Justice {i.e., who will sit longer than just the end of the following Senate session}, he will have to run the gauntlet of the Republican-controlled Senate, and prevail there. The only real chance of that: if he picks a nominee so universally admired that it would be too embarrassing for the Senate not to respond.”

        (Source: http://www.scotusblog.com/2016/02/is-a-recess-appointment-to-the-court-an-option/#more-238235 )

        ********************
        Hope all is well up there! #(:))

        And I hope that you and Mrs. Smit have a delightfully loving Valentine’s Day tomorrow.

        Take care,

        Janice

        way

        down

        here

    • Unlikely, then, that one “Milodon Harlani” will show up, either, eh? And is he ALSO “BusterBrown?”

      How many names does that guy have??

      • His name is John, I think. And I THINK there is only one of him… . lol, he gets absolutely LIVID if you bring up Intelligent Design Theory (even without bringing a god into it). Then, oh, boy! Mention God and he startls to snarl and froth at the mouth — sad, really. I’ve been praying for him for over 2 years, now. So, we shall see! :)

  14. Anthony wrote: “The US is the only nation in history that put free speech as the primary, unassailable, right of a citizen. There is no compromise.”

    That’s exactly right: NO compromise.

    • Well, it’s not the primary, unassailable right. That honor goes to the habeas corpus – part of the original constitution, thus more Primary than any right in an amendment. Habeas, of course, is the right to trial if accused of crimes. It is more fundamental, otherwise, people could simply exercise all the Free Speech they want – behind bars, with no trial.

    • Well it would be nice to have proof of causation (or not) but I guess failing that, the lack of correlation , is a fairly strong argument against causation. So we’ll take what we can get.

      But when they switch from going in the same direction, to going in opposite directions, it gets pretty laughable to claim a causative link.

      G

  15. The Dems won’t get in the next election. However, I hope the Repubs know that there is a need for a lot of overlapping boilerplate to be riveted on to the constitution. It no longer seems to be unequivocal in its meanings and intent, or, at best, it has proven vulnerable to assaults that probably weren’t expected. Maybe a new amendment is needed to make impossible to bypass Congress and the Senate on issues like those raised by the government’s actions at the Paris conference. Sovereignty itself needs greater protections than apparently are already there. A redefinition of how an anti-American organization should be defined. Use the incursions and intents of the UN as a model.

    And finally, education should also be accorded protection from manipulation for political purposes. It should be prescribed that science, history, current affairs or whatever they might be called, should be taught without propagandized or brainwash formulation. Current theories or interpretations should be served up with prominent opposing views included so that uncertainties and weaknesses are not hidden. Historical examples of “settled science” like the geocentric theory and its overthrow by the heliocentric theory should be discussed and the ugly reaction of the status quo in these upheavals in theory detailed. Logic should be taught. Ethics should be taught. Students should be taught in such a manner that governments have a tough time in dealing with its citizenry and have to adhere to the highest standards. Wow, then we would be really “progressive” and not subject to the inferior, elitist, category that goes by by this name.

    • @ Gary Pearse. I could not agree more, but with the teaching core mostly indoctrinated and hamstrung by unions themselves, who is going to teach? I realize from reading this site that there are still many “good guys” Here is just a thought maybe WUWT should be in the curriculum!

  16. This upcoming case is why Justice Scalia was so very important to the court:

    Using the King’s Star Chamber to Smack Down America’s Private Property Rights
    canadafreepress.com/article/using-the-kings-star-chamber-to-smackdown-private-property-rights

  17. Obama’s retribution on SCOTUS for staying his Climate War on the peoples of the US was swift with the death of Justice Scalia.

    And now Obama has leeway to appoint Himself or HillyBilly Clinton.

    Appointing himself would give him leverage to fight Congress in January as the next President dismisses all of Obama’s Executive Orders.

    Appointing HillyBilly save the Democratic Party from a blistering Convention but not defeat.

    The fun never ends in DC.

    Ha ha

  18. There are useful contrasts to be made between the treatment of Pons and Fleischmann, whose only misdemeanour was to go public before peer review, and Climategate. It is not hard to see that what Mann &co were up to was infinitely worse, in terms of improper scientific conduct. Yet, they got away with it.

    Pons and Fleischmann have since been vindicated; their findings were basically correct. Yet, Wikipedia still calls their work ‘pathological science.’ You wonder how the Wikipedia editors get away with this.

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