NOAA researchers have faced unprecedented requests for access to their unpublished research from conservative groups and politicians. Credit: Getty Images
As researchers strive to keep their unpublished work private, many brace for more anti-science government interference under Donald Trump...
Three scientific advocacy groups have filed a legal brief in support of federal climate scientists who are being sued by the conservative organization Judicial Watch.
Judicial Watch has sought to force the National Oceanic and Atmospheric Administration (NOAA) to release 8,000 pages of researchers' communications regarding a peer-reviewed paper published in the journal Science in June 2015.
The study debunked the notion of a global warming "hiatus" between 1998-2012, an argument used by those who dispute the scientific consensus on climate change. A recent paper by a different group of researchers affirmed NOAA's findings, one of several confirmations.
Ordering the release of agency employees' emails "would harm (or halt altogether) government scientists' ability to collaborate with colleagues, damage the government's ability to recruit or retain top scientists, and deter critically important research into politically charged fields like climate change," said the amicus brief from the Climate Science Legal Defense Fund (CSLDF), American Meteorological Society and Union of Concerned Scientists.
The anxiety of climate scientists because of the NOAA litigation has intensified since the start of the Trump administration. Charges against NOAA were revived this weekend in the Daily Mail, a British tabloid, and echoed by conservative media (followed by several refutations). Climate information has been deleted from federal websites and administration officials have clamped down on communications at federal scientific agencies.
"Now more than ever, it is critical that we defend climate scientists and their research," Lauren Kurtz, executive director of CSLDF, said in a statement. "Forcing the disclosure of scientists' private emails is invasive, unnecessary, and hugely detrimental to the scientific method."
The amicus brief notes the lawsuit is part of a decade-long trend where "groups across the political spectrum have attempted to discredit scientific studies they dislike...by seeking to use the scientists' emails and preliminary drafts against them."
In 2011, for instance, the American Tradition Institute (now called the E&E Legal Institute) requested thousands of emails from climate scientist Michael Mann. The case led to a Virginia Supreme Court decision that exempts university scientists' unpublished research from the state's Freedom of Information Act.
The Judicial Watch lawsuit was inspired by a Congressional subpoena from Rep. Lamar Smith (R-Texas), chairman of the House Committee on Science, Space and Technology, who denies the science of global warming and the need to take action. He accused the NOAA authors of "alter[ing] data" to "get the politically correct results they want."
Judicial Watch calls itself a "conservative, non-partisan educational foundation" that routinely uses the Freedom of the Information Act (FOIA) to promote "transparency, accountability and integrity in government, politics and the law."
Founded in 1994, Judicial Watch gets much of its funding from the Scaife Foundation, a leading donor to the conservative movement's think tanks and causes. Tom Fitton, president of Judicial Watch, said his organization has no stance on climate science.
The group sued for the emails in 2015 under FOIA. The case is before the U.S. District Court for the District of Columbia. Judicial Watch is scheduled to file its first detailed legal brief by Feb. 20. Additional briefs from the plaintiffs and defendants are due in April.
The Department of Justice, which is representing the NOAA scientists, told the court in December, in the final weeks of the Obama administration, that the documents fall under Exemption 5 of FOIA. That exemption allows agencies to withhold records related to the "deliberative process"—discussions that take place before a final decision.
The withheld documents include drafts of the research paper, email discussions among study authors and peer review comments on early versions of the study.
It's unclear, however, whether or how the Trump administration would defend the researchers. NOAA and the Justice Department declined requests for comment.
But Kurtz and Michael Halpern, deputy director of the Center for Science and Democracy at the Union of Concerned Scientists, speculated that the Justice Department may end up defending NOAA. That's because a win for Judicial Watch would make it easier for the media and the public to FOIA internal records from the Trump administration. Given the new administration's antagonistic attitude toward government transparency, they "might not want to set a precedent that all government information should be public," Halpern said.
Fitton said NOAA's refusal to release the documents is an example of the government's tendency to "withhold too much information under the deliberative process exemption."
Judicial Watch has also recently used FOIA to request documents about former attorney general Eric Holder's new job with the California legislature, and the costs of former President Obama's family vacations. It has mostly targeted Democratic politicians—with a particular focus on Hillary Clinton—but GOP lawmakers are not immune from scrutiny.
Since the election, Judicial Watch has criticized the House GOP attempt to terminate the Office of Congressional Ethics, and Secretary of State Rex Tillerson's close ties to Russia as top executive at ExxonMobil.
House Science Committee Digs In
The NOAA-led study gained national attention in July 2015, when Smith demanded all records associated with it. NOAA provided his office with related scientific data but refused to disclose internal emails. Smith responded with a Congressional subpoena, prompting harsh criticism from scientists and the ranking Democrat on the House Science Committee.
Two weeks later, Judicial Watch submitted a FOIA request asking for virtually the same documents. Fitton said the FOIA was intended to help Smith's request, but he said his group did not collaborate with Smith's office.
"Perhaps if we'd known the details of that fight earlier on, we could've sought a FOIA earlier," Fitton said.
Judicial Watch followed with a lawsuit in December 2015 when NOAA failed to provide the records. After negotiations, NOAA released about 200 pages of communications, but continued to withhold 8,000 pages under Exemption 5.
Exemption 5 is "designed to protect frank discussions within government agencies," said Alexander English, an environmental attorney who is owner and managing member of GreenSpring Legal, a Maryland-based law firm.
FOIA exemptions "exist for good reasons," but they've been abused by government agencies as an excuse to withhold more documents than they should, said Alex Howard, deputy director of the Sunlight Foundation, a nonpartisan group that advocates for transparency in government.
In NOAA's case, however, a victory for Judicial Watch risks "weaponizing" FOIA in a way that could intimidate agency scientists and drive them away from government service, Howard said.
Fitton said the FOIA exemption applies only to deliberations about policy, not science, and that NOAA's use of Exemption 5 for scientific documents is "not necessarily one the law provides for."
Bradley Moss, a national security lawyer who frequently handles FOIA litigation, said he wasn't aware of any distinction in how policy and science documents are treated under that FOIA exemption.
Moss said Fitton's argument could be more persuasive once Judicial Watch files its next legal brief, which should elaborate on Fitton's position.
If the court rules for Judicial Watch, that decision "has the potential to dramatically narrow the scope" of the FOIA exemption, English said.
"Considering the apparent policy of non-disclosure of the [Trump] administration, it seems like it would be in their best interest...to actually defend [NOAA] in this particular instance."
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