In recent months, Climate Change Weekly has extensively covered the twists and turns of the saga of the National Academies of Sciences, Engineering, and Medicine (NASEM) efforts to bias the nation’s judiciary in climate lawsuits filed by dozens of cities and counties against fossil fuel producers for “climate damages” (here, here, here, and here, for example). The prime example of this effort was NASEM’s insertion of an extremely biased climate science chapter into the Federal Judicial Center’s (FJC) Fourth Reference Manual on Scientific Evidence. The chapter was written with and referenced and quoted attorneys and scientists actually involved in representing and/or advising the plaintiffs in those lawsuits.
Two new twists that have arisen in recent weeks merit coverage.
First, a letter sent to Congress and federal agencies by a coalition of 25 state attorneys general calls on Congress to investigate the NASEM and for Congress and the agencies to examine whether to contract with and fund further research by the NASEM and affiliated scholars in light of its apparent bias in climate science and legal matters.
The attorneys general allege NASEM’s climate-related work ignored substantial conflicts of interest in the FJC report and a subsequent report on “attribution science.”
The AGs argue these reports went through an opaque or murky peer-review process, with the reviewers seemingly comprising allies of those involved on the plaintiffs’ behalf in the climate lawsuits, and that the reports were timed specifically to influence the Supreme Court’s decision in Suncor Energy v. Boulder County, a case on the court’s docket for the fall.
In that case, Boulder County and the City of Boulder are suing Suncor Energy and ExxonMobil, seeking damages for alleged harms caused by climate change, under Colorado’s tort law. The companies argue states cannot use tort law to regulate alleged harms arising from interstate and international greenhouse-gas emissions, because energy and climate policy are governed by federal law, specifically Congress’ exclusive power to regulate interstate commerce and the federal government’s exclusive jurisdiction over foreign treaties and obligations.
Specifically, the AGs’ letter states,
[T]his review appears to be a sham, as demonstrated by NASEM’s secrecy around all aspects of the review process. A truly independent review would appoint an external panel; use reviewers who are not activists, litigation participants, or NASEM employees; publish the review process and findings; identify the review’s scope; and ensure the review’s scope addresses the material criticisms of the Chapter.
The timing of the Report’s release allowed plaintiffs’ amici in Suncor to cite the Report, but prevented critiques from defendants’ amici, whose filing deadline had passed.
Notably, one amicus organization supporting plaintiffs in Suncor bragged about the Report’s timing, cited the Report over and over on ten of its pages, and received $100 million to ‘accelerate climate action’ from the Bezos Earth Fund—which also funded NASEM’s Report.
Taxpayer money should not be funding NASEM’s biased actions, which warrant suspension or debarment. If NASEM continues to lend its imprimatur to litigation-driven advocacy, then Congress should find another source for objective analysis and consider revoking the 1863 charter that designates the Academies as an adviser to the federal government.
As I noted in previous CCW posts, the state AGs are not the first public officials to put direct or indirect pressure on the NASEM to disavow the climate chapter in the FJC manual, end its climate advocacy, and return to serving as a neutral conductor and examiner of science. Perhaps the AG letter served as the final push needed to make the NASEM reexamine its climate advocacy or at least take stock of its actions, to diplomatically cover its hind end should it still, as I suspect it will, endorse the “science” organization’s reports.
Why do I say so? The FJC was quick to drop the climate chapter from its report, unable to defend it. The NASEM, by contrast, having taken the lead in its creation and insertion into the document, not only maintained it on its website but its then-president, Marcia McNutt, defended it publicly in a letter to the Wall Street Journal, writing,
… critiques of the chapter inaccurately describes a chapter on climate science in our Reference Manual on Scientific Evidence as biased.
In fact, it was developed under rigorous procedures of the National Academies of Sciences, Engineering, and Medicine to ensure that the chapter, like all chapters in the manual, reflects the best available scientific evidence.
McNutt’s ill-considered, reflexive defense of the chapter and the opaque procedures that produced it were among her last actions as president, undercut in less than two months when the NASEM announced it was pulling the climate chapter from its website and initiating a formal investigation into the process by which it was written.
McNutt didn’t have a leg to stand on, and evidently the new NASEM president, Neil H. Shubin, recognizes that and wants to quickly distance the organization from the process that produced the document. I doubt this disavowal will extend to the scientific claims made in the chapter, but it’s a start.
During a podcast appearance, Shubin finally acknowledged that the chapter’s authors were closely “associated” with plaintiffs in climate lawsuits, giving people “good reason” to view the chapter as biased. “We know the outcome was perceived—and for some, in good reason—as one-sided, because the authors were associated more with the plaintiff’s side than the defense side,” said Shubin. “That outcome deserves a fresh look.” To be clear, none of the authors were affiliated with the defense side at all: they were all working with or advancing the plaintiffs’ position.
“This is a major admission from NAS leadership—and blows a hole in efforts to dismiss concerns about the chapter’s neutrality as nothing more than partisan criticism,” wrote a reporter for Energy in Depth’s (EID) coverage of the story.
“We looked at the process—just a very cursory look at the process behind this—and it turns out this was a book chapter that followed a very different process than the reports we do,” Shubin said, undercutting McNutt’s previous defense of the production process and peer review as in keeping with the NASEM’s standard procedures for its research. “The reports we do are—I hate to use the word ‘gold standard,’ but they’re our top-of-the-line sort of thing,” said Shubin.
“They have numerous committees that weigh in on conflict of interest, committees that weigh in on peer review,” Shubin said. “There’s a strong level of oversight that seeks to produce the most impartial, nonpartisan, free of conflict of interest … reports. [This] book chapter had none of that.”
Former Texas state Rep. the Hon. Jason Isaac, CEO of the American Energy Institute, was interviewed for EID’s story on the scandal, opining, “Accountability must go FAR beyond just a review.”
“To rebuild trust, the NAS needs to examine how this happened, how to prevent it from happening again, and how to stop critical resources from being hijacked by activist propaganda,” said Isaac.
That’s what we’ve been saying in CCW for months. Let the review begin, but to ensure credibility, as the AG’s letter suggests, it must be undertaken by outside researchers with unfettered access to the NASEM’s files and emails related to the FJC chapter and its study promoting climate attribution “science.” Its behavior until now instills no confidence that an internal review will be honest, or at least be perceived as honest by those who rightly called for the climate chapter to be withdrawn from the start; the people Shubin acknowledges have good reason to believe it was biased in favor of a particular judicial outcome in a court case.
This piece originally appeared at Heartland.org and has been republished here with permission.
