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Klimate Kraziness: A California Judge Holds A "Tutorial" On Climate Science

Francis Menton

You may recall that back in January I identified a group of lawsuits filed by municipalities in California (as well as a copycat case filed by the City of New York) as candidates for "the stupidest litigation in the country."    These are the cases that accuse five major oil companies (Exxon Mobil, BP, Shell, Chevron, and ConocoPhillips) of "nuisance" for supposedly causing global warming, that is supposedly causing the sea level to rise, that is supposedly going to cause damage to the California municipalities some time in our great grandchildren's lifetimes, maybe.  I particularly got a good laugh out of the lack of any credible scientific basis for the claims.

Those cases have since had a somewhat complicated procedural history.  The defendants started by seeking to "remove" the cases from state courts to federal court.  Since there were multiple cases filed in different counties, there were multiple "removals," that ended up before different judges.  One federal judge (Chhabria) decided that there was no basis for federal jurisdiction, and sent several cases back to the state courts.  But another judge (Alsup), who got the cases brought by the cities of San Francisco and Oakland, found (some might say "discovered") a basis for federal jurisdiction, and decided to keep those two cases.  In his next move, on February 27 Judge Alsup ordered the parties to present to him a "tutorial" on climate science, to be held on March 21.  On March 8 the good judge went another step and presented a list of questions that he wanted the parties to answer at the March 21 "tutorial."

If you take a look at the judge's questions, you may immediately note that he starts from a fundamental misapprehension of what "science" is.  Take, for example, his question 8: "What are the main sources of heat that account for the incremental rise in temperature on Earth?"  I guess the idea is that you must address these kinds of questions to "scientists," because after all "scientists" are the true knowers of this kind of a body of esoteric knowledge.

Unfortunately, Judge Alsup did not think to pose the one question that is fundamental to real science, which is that, if you claim that some hypothesis has been established (here, that human CO2 emissions are the principal cause of dangerous global warming), then can you kindly demonstrate that credible empirical data prove that the null hypothesis must be rejected?  Here, the null hypothesis would be that something other than human greenhouse gas emissions -- which could include such natural factors such as the sun, ocean circulations, or volcanoes -- might be causing most or even all of any observed warming.    

The plaintiffs were only too happy to oblige with answers to the judge's questions.  However, they presented their answers to the judge's questions via "expert" testimony at the hearing, to which I do not yet have a link.  

But then there was the response of the defendants.  Four of the five defendants chose to sit mute and say nothing at the tutorial.  They did not offer an explanation for their conduct, although I think the reason is apparent.  These four defendants all made motions on the previous day (March 20) to dismiss the case based on lack of personal jurisdiction over them.  The theory of those motions is that these defendants are not sufficiently based in California to enable this lawsuit to proceed against them in that jurisdiction; instead it must be brought in their "home" jurisdictions (such as Texas for Exxon Mobil).  There is a good deal of law out there for the proposition that if you are going to assert lack of personal jurisdiction in a case, you can't do anything else in your defense or you will have waived that defense.  So I can understand where these defendants are coming from.

The one remaining defendant, Chevron, which is based in California, had no colorable personal jurisdiction defense.  So it was left up to Chevron to put on the only "tutorial" for the defense.  Chevron then presented a slide show to illustrate its position.  Here is a link to Chevron's slides.   

Unbelievably, instead of making an actual presentation on science, Chevron just bought one hundred percent into the idea that "science" is whatever the officially designated highest high priests of official orthodoxy declare to be the established truth.  The designated high priests in this instance consist of the tight clique of the Intergovernmental Panel on Climate Change (IPCC).  So Chevron's presentation mostly just leads the court through the IPCC's processes and conclusions.  The key conclusion is set forth on page 2 of Chevron's slides:

“It is extremely likely that human influence has been the dominant cause of the observed warming since the mid-20th century.” 

How could Chevron be so dumb as to concede this point?  Got me.  And what is the demonstration that the null hypothesis must be rejected?  Unfortunately, that's missing.  At page 8 we do find this admission of uncertainty from the IPCC's first report way back in 1990:

The size of this warming is broadly consistent with predictions of climate models, but it is also of the same magnitude as natural climate variability. Thus the observed increase could be largely due to this natural variability. . . .  

But then they follow that with a march through the conclusions of the next four IPCC reports, each expressing more and more certainty in the determination that human greenhouse gas emissions just have to be the main cause of observed warming.  But guys, what changed in the interim to increase the certainty that human emissions are causing dangerous climate change?  Isn't the magnitude of any observed warning still well within the range of "natural climate variability"?  And if so, how has it been possible to reject the null hypothesis?  I guess these questions are just out of order.  The high priests have spoken!

At this point, you are probably wondering, what is Chevron thinking?  These are guys with all the money in the world to hire scientists to collect the best data and run mathematical tests to see if the effect of human emissions can be sufficiently isolated from other factors to require rejection the null hypothesis.  It's not a simple job, but it certainly is well within the scope of what a big company like Chevron ought to be able to hire competent people to do.  However, in a move that I find completely incomprehensible, they didn't do it.  Perhaps they felt constrained by previous statements made by the company that they were not at liberty to contradict.  

So the completely unproven and almost certainly false proposition that human CO2 emissions are established as the main cause of dangerous global warming now stands conceded by the only defendant in this case that has spoken on the issue.  Worse, the whole idea that actual science requires forming and testing hypotheses rather than just agreeing to what seems plausible because everybody else thinks so has gone completely out the window.

Let me now say that I, and apparently several others, saw this coming.  We have read the websites of the defendant oil companies.  All of them have made repeated ridiculous statements of mea culpa, if not mea maxima culpa, over the last several years, in one place or another, promising to reduce their emissions and begging for forgiveness for their imagined sins.  Guys, do you realize that you are in the oil business?  Really, it has been nothing short of embarrassing.  Anyway, in the days running up to the March 21 court "tutorial," suddenly three separate groups filed "amicus" submissions with the court on the science.  All were from the skeptical side.  The three were:

I am one of the lawyers for the last group.

Not to downplay the work of my co-amici, but we are the one of the three groups that emphatically made the essential scientific point that the most credible data as to world temperatures, properly analyzed, preclude rejection of the null hypothesis that natural factors are the predominant if not only cause of the observed warming.  As stated in our submission:

The conclusion of the work is that each of EPA’s “lines of evidence” has been invalidated by the best empirical evidence, and therefore the attribution of any observed climate change, including global warming, to rising atmospheric CO2 concentrations has not been established. 

And, further on in our presentation:

[T]hese natural factor impacts fully explain the trends in all relevant temperature data sets over the last 50 or more years. This research, like Wallace (2016), found that rising atmospheric concentrations did not have a statistically significant impact on any of the (14) temperature data sets that were analyzed.  Wallace 2017 concludes that, “at this point, there is no statistically valid proof that past increases in atmospheric CO2 concentrations have caused what have been officially reported as rising, or even record setting, temperatures.”  

As they say, read the whole thing.

Meanwhile, you might be asking, how do Chevron and the other oil companies plan to defend these cases now that they have conceded that human CO2 emissions are causing dangerous global warming.  They do have one thing left, which is that the municipal plaintiffs in the cases seem to have put out bond prospectuses, including within the past 12 months, conceding that they have no idea whether or not global warming is going to result in sea level rise, and if so in what amount.  Thus, the Chevron presentation includes the following quotation from Oakland's bond prospectus of August 2017:

The City is unable to predict when seismic events, fires or other natural events, such as searise or other impacts of climate change or flooding from a major storm, could occur, when they may occur, and, if any such events occur, whether they will have a material adverse effect on the business operations or financial condition of the City or the local economy. 

OK, it's pretty good -- these plaintiffs are definitely weasels.  But why would you concede the science when you are so clearly one hundred percent right?  I can't answer that question.

UPDATE, March 29:  A reader emails to inform me that several of the links in this piece don't work.  He's right.  If you want to read something about the California case and can't find a link, here are some that work (at least as of today):