A friend and former colleague of mine, the late Jay Lehr, Ph.D., longtime science director at The Heartland Institute, used to say with regard to environmental lawsuits, “If the law is on your side, pound the law; if the facts are on your side, pound the facts; if neither are on your side, pound the table.”
The mob and some well-heeled defendants have long had a fourth solution, one less open to chance: bribe a juror.
Climate alarmists and environmental lobbyists have found still another backdoor way to get a favorable verdict, facts and law be damned: lie to, mislead, or “educate and train” the judiciary about how to think about climate change.
Dozens of lawsuits have been filed against multinational oil and gas companies and the lobbying groups that represent them across the United States, by state and, primarily, local governments and some private parties. In truth, none of these lawsuits, with their novel and indeed unprovable notions of legal liability, should have ever made it through the courtroom door. In the U.S. Constitution, Congress and the president are given sole authority to regulate interstate commerce, which trade in and the use of oil, gas, and coal certainly are.
The courts are simply not the proper legal, constitutional forum for hashing out the relative benefits and costs of fossil fuel development and use. Consequently, each of these cases should have been barred at the courthouse door before the first pleading. That’s neither here nor there, however, because they have been allowed, and while some have been dismissed, others are still proceeding.
Climate Change Weekly, and Environment & Climate News when it was still in publication, have covered the progress of these cases, documenting the many dismissals and losses suffered by the plaintiff-activists pushing these lawsuits. Almost every dismissal was based on the federal preemption and interstate commerce issues I noted above.
Since the law doesn’t favor these lawsuits, and the facts and equities are a matter for Congress (as acknowledged in the cases that have reached final resolution so far), climate lawfare groups are attempting an end around by misleading the judiciary, as with a recent case in Oregon, and attempting to “train” judges to think the “right way” about climate change.
The attempt to train judges to think the “right way” about climate change is not new. The Environmental Law Institute (ELI) has been hosting climate change education/litigation retreats and seminars for judges for more than a decade. Judges’ travel, lodging, meals, and materials are covered. The ELI is explicitly an advocacy organization, whose “mission is to foster innovative, just, and practical law and policy solutions to enable leaders across borders and sectors to make environmental, economic, and social progress.”
The ELI says it does this in part by “training judges around the world . . ..”
Judges, however, are not charged with innovating: they are charged with enforcing existing laws on the books as they were written and enacted by the duly elected representatives of the people. The courts are not the place to develop novel legal theories in pursuit of some particular judge’s or clique of judges’ ideas about social, economic, or environmental justice.
Although the ELI is not a party to the climate lawsuits filed around the country, its training materials cite and lend support to research by the same “experts” and legal theories and positions the plaintiffs in these lawsuits use in the ongoing cases. ELI’s position is that climate change is a “major environmental and public health problem” driven by “carbon pollution, largely from fossil fuels,” which is “dramatically altering the climate and putting people in harm’s way.” The ELI does not acknowledge the existence of a legitimate debate about the causes and consequences of climate change.
ELI is telling judges what they should think about climate science, what evidence is good, the value of consensus, and who is trustworthy. When those same experts and sets of studies are presented as evidence, the judges now have ELI’s training in the backs of their minds concerning who and what to believe. So much for justice being blind.
Concern about ELI’s climate seminars and their potential to bias the judiciary, compromising its independence and fealty to the Constitution and written law, has prompted an investigation by the U.S. House Judiciary Committee. Committee Chairman Jim Jordan (R-OH) and Rep. Darrell Issa (R-CA), chairman of the panel’s Subcommittee on Courts, sent four letters to judicial groups and lawyers asking for more information on communications with the Environmental Law Institute, Fox News reported on January 14:
The Committee on the Judiciary is investigating allegations of improper attempts by the Environmental Law Institute (ELI) and its Climate Judiciary Project (CJP) to influence federal judges. Public reports have documented concerns around apparent efforts by ELI and CJP to influence judges who potentially may be presiding over lawsuits related to alleged climate change claims,” the letter to the Judicial Conference of the United States (JCUS) read.
These efforts appear to have the underlying goal of predisposing federal judges in favor of plaintiffs alleging injuries from the manufacturing, marketing, use, or sale of fossil-fuel products.
Additional concern about the co-opting of the judiciary was raised with the release of the Fourth Reference Manual on Scientific Evidence from the Federal Judicial Center (FJC). For the first time, the manual has an entire section devoted solely to climate change—and no sections on biology (when we have a Supreme Court justice who can’t even define what a woman is), chemistry, or physics.
Founded in 1967, the FJC is the research and education agency of the judicial branch of the U.S. Government. The Center claims to support “the efficient, effective administration of justice and judicial independence [by] provid[ing] accurate, objective information and education and to encourage[ing] thorough and candid analysis of policies, practices, and procedures” (emphasis mine).
The law establishing the FJC makes the Chief Justice of the U.S. Supreme Court the chair of its board.
It is the accuracy and objectivity of the climate change section that is at issue. The FJC science manual is a reference guide used by judges nationwide on scientific subjects they have no special expertise in. (And why should they have such expertise? They are supposed to be adjudicating based on laws on the books, not scientific pronouncements.) The climate science addition is not neutral or unbiased: it was written by activist lawyers and academics actively involved in climate lawsuits filed across the nation, plus plaintiffs, advisors, and climate experts participating in those trials.
Among those cited in the FCJ’s climate science guide is climatologist Michael Mann, who was recently sanctioned by a federal court for lying in a climate lawsuit he filed, and environmental activist academic Jessica Wentz, as Fox News reports:
Wentz is the topline expert at the Climate Judiciary Project at the Environmental Law Institute.
Wentz, who is also a senior fellow at Columbia’s Sabin Center for Climate Law, is listed as chief author of the section, along with fellow university faculty Radley Horton, on page 1561.
She served as a witness for the plaintiffs in Juliana v. U.S., where youth activists accused the U.S. government of violating their constitutional rights by failing to implement their preferred climate change policies.
She also signed an amicus brief supporting the Obama administration’s environmental regulations after multiple states filed lawsuits against the EPA in 2016.
The Fox News story quotes Michael Fragoso of Torridon Law as questioning the ethics behind the guide:
“The whole section of the guide is shockingly inappropriate—and if you look at the organizational meeting at the National Academies, intentionally so,” Fragoso said.
“But when you dig into it, it only gets worse. The section on attribution ‘science,’ for example, was lifted in large part by a previous article written by the two authors and Michael Burger, who is himself a climate-plaintiff lawyer.”
“Given that attribution is at the heart of these lawsuits, it’s shocking that the Judicial Center would let a plaintiff lawyer ‘explain’ it to judges. It’s even worse that it’s hidden in a random footnote,” Michael Fragoso of Torridon Law, told Fox News.
The acceptance of attribution studies as legitimate science in the FJC science manual is especially egregious because, as explained across dozens of Climate Realism posts, attribution science rejects the scientific method. Attribution studies are rushed to publication within days of an extreme weather event. They assume what they are meant to prove: that climate change is causing or contributing to a particular event, the only question being how likely the recent extreme event would have been to occur at the same severity without climate change, and then the authors use climate models (with long-noted flaws) to produce a counterfactual scenario of the weather absent CO2 emissions—assuming CO2 is the driver of weather—compared to climate model outputs with CO2.
Models aren’t science, facts, or data; they are tools, and they are only as accurate as the assumptions built into them are accurate. Climate modelers don’t understand all climate drivers well, and the models’ outputs are valuable only if they accurately reflect real-world data and show reliable predictive capabilities. Climate models do neither, yet in the climate portion of the FJC manual they are treated as if they are data and produce reliable results.
Being written by a public advocate of climate lawsuits, while citing materials and using whole sections written by an attorney for climate lawsuit plaintiffs, should have been sufficient to disqualify the climate science document from inclusion in the FJC science manual. It represents a direct conflict of interest: judges using one side’s point of view about climate change as a reference guide for how to decide cases where the science is at issue.
This inherent bias has not gone unnoticed. Led by West Virginia Attorney General John B. McCusky, 27 states’ attorneys general delivered a letter rebuking the FJC for including the clearly biased climate science section in its reference manual.
The state AGs are incensed by the fact that interested parties to various climate lawsuits helped shape, write, and inform the material included in the reference guide, and by its treatment of attribution science, a very new field of research, as if it represents settled science. The AGs’ letter states,
Whatever one might say about past editions, the recently issued Fourth Edition cannot claim such restraint. It does more than address undisputed scientific principles. Instead, the Fourth Edition places the judiciary firmly on one side of some of the most hotly disputed questions in current litigation: climate-related science and “attribution.” Such work undermines the judiciary’s impartiality and places a thumb on one side of the scale. It does so even as these issues are pending before the Supreme Court and other parts of the federal judiciary.
The problems in the climate reference section seem to have started in selecting its authors. Jessica Wentz and Radley Horton are both connected with climate studies programs at Columbia University. And Columbia and its research partners have long viewed lawsuits against States, traditional energy producers, and others as “opportunities” to “resolve” what they see as “the pressing dangers created by climate change.” Wentz and Horton themselves have applauded litigation as a tool to advance their preferred political objectives, complaining that the “political sphere in the United States continues to be clouded with false debates over the validity of climate change.” …
In one discussion of potential expert testimony in climate- and energy-related cases, for example, the authors offer a cursory defense of “novel” attribution methods—sweepingly reassuring judges that these methods “[i]n many cases” are not “novel” at all. Later, in canvassing so-called attribution science, the authors declare that certain aspects of that evolving field are actually “unequivocally” established—leaving a litigant who dares to take a different view effectively doomed from the start.
Because of these and other problematic aspects identified by the AGs with the FJC’s Reference Manual on Climate Science, the AGs request that the FJC withdraw that manual immediately, “out of fidelity to the Constitution it serves. The Center should also establish procedures to prevent similar advocacy-based chapters in future editions.”
The facts couldn’t be clearer. Many of the claims made in the FJC climate science reference manual and at ELI climate retreats portrayed as settled science are not settled but under active debate. The document itself was not objective, but rather written by and referencing the arguments of active supporters and participants in climate lawsuits—which should disqualify them as authors of a document meant to present climate science objectively and in an unbiased manner to judges who may have active cases before them with climate science at issue, or may have such cases before them in the future.
The manual undermines the honesty of outcomes and the appearance of fair decisions in pending litigation, deserves derision, and should be withdrawn. If the FJC doesn’t understand this fact and withdraw the climate-science section of the manual, perhaps Congress should halt funding for the FJC and publication of the Science Reference Manual until it comes to its senses.
Sources: Federal Judicial Center; Fox News; Energy in Depth; West Virginia Attorney General; House Judiciary Committee; Environmental Law Institute; AG Letter
This piece originally appeared at Heartland.org and has been republished here with permission.
