Judicial Watch, a conservative group, has used the Freedom of Information Act (FOIA) to sue for the privileged email correspondence of nine climate scientists employed by the National Oceanic and Atmospheric Administration (NOAA). On January 27, 2017, the Climate Science Legal Defense Fund (CSLDF) filed a brief in the District of Columbia federal District Court urging the court to protect the communications between these scientists.
Why Do These Emails Matter?
In 2013, a leaked draft of an Intergovernmental Panel on Climate Change report stated that the rate of global warming had slowed between 1998 and 2012. Though the final report stated that “trends based on short records are very sensitive to the beginning and end dates and do not in general reflect long-term climate trends,” climate contrarians latched onto the idea of a “pause” in warming to bolster their position: If global warming has stopped, there is no need to curb fossil fuel use or take any other action to combat climate change.
The hiatus was rebutted in 2015 when Thomas Karl and his colleagues at NOAA published a paper in Science based on updated, more accurate data that demonstrated that there was no pause in global warming. In fact, warming from 2000 to 2015 was at least as great if not greater than that of the last half of the 20th century.
Other researchers have corroborated Karl et al.’s conclusions. Most recently, a 2017 Science Advances study by Zeke Hausfather, a climate scientist at Berkeley Earth, validated Karl et al.’s findings using independent data from satellites, buoys and free-floating Argo floats, and reached the same conclusions about the rate of global warming.
Soon after Karl et al. published their study, Rep. Lamar Smith (R-Texas), Chair of the House Committee on Science, Space, and Technology — who disputes the scientific consensus on climate change — subpoenaed the scientists’ documents and communications. He alleged that NOAA had readjusted historical temperature readings to suit the Obama administration’s political agenda, that the scientists had engaged in “suspicious” behavior, and that this had “broad national implications.”
NOAA supplied some documents to Smith, but refused to turn over the scientists’ confidential email correspondence.
In late 2015, Judicial Watch sued for the scientists’ emails under the Freedom of Information Act, a law designed to ensure transparency in government. Judicial Watch states it “is investigating how NOAA collects and disseminates climate data that is used in determining global climate change.”
The controversy over the Karl et al. study flared up again in early February 2017 when the Daily Mail published an article by David Rose — who has often inaccurately written about climate science — based on a blog post by retired NOAA scientist John Bates, who maintained that the study authors failed to disclose critical information about their data. Rose claimed that the authors exaggerated the rate of global warming and that the study was rushed into publication to sway the Paris Climate Accords. (Incidentally, Bates was administratively admonished and relieved of a supervisory position at NOAA at a time when Karl was in a leadership role; Bates denies that his complaints were driven by any animus.)
At a February 7 House Science committee hearing, “Making the Environmental Protection Agency Great Again,” Smith again attacked NOAA, accusing it of “falsifying data to justify a partisan agenda.” Conservative media outlets have seized on the Daily Mail story, using it as ammunition in their fight against climate science.
Bates, however, has since said in an interview with E&E News, “The issue here is not an issue of tampering with data, but rather really of timing of a release of a paper that had not properly disclosed everything it was.”
Irish Climate and Research Unit’s Peter Thorne, who worked on the underlying material for the Karl study but left NOAA before it was published, defended the study. “At no point was any pressure brought to bear to make any scientific or technical choices. It was insisted that best practices be followed throughout.”
CSLDF’s Involvement in the Case
CSLDF filed the brief in support of the NOAA scientists because we’re committed to safeguarding the confidentiality of communications between researchers. FOIA requests for scientists’ emails may ostensibly be made in order to verify research, but they can result in hindering research or intimidating scientists into downplaying risks or not publicly discussing their research.
These FOIA requests usually seek preliminary drafts, private critiques from other researchers, and the personal documents and email correspondence of scientists rather than the data, methodologies, or research results of scientific studies, which might help clarify or evaluate the science itself.
FOIA contains nine exemptions designed to protect certain categories of government records from indiscriminate release. Under Exemption 5, there is a deliberative process privilege for federal employees, including federal scientists, which allows them to withhold deliberative communications within or between federal agencies.
The purpose of this privilege is to encourage frank discussions between colleagues, protect against premature disclosure of proposed actions before they are finalized, and prevent public confusion that might result from the disclosure of proposals that were discarded and had no relation to the final decision.
What Happens Next?
Judicial Watch is scheduled to file its first legal brief to the U.S. District Court for the District of Columbia by February 20. Additional briefs from the plaintiff and defendant are due in March and April; the NOAA scientists’ emails are being defended by the Department of Justice and the Department of Commerce (NOAA’s parent agency).
CSLDF is committed to protecting the scientific endeavor, especially defending scientists from legal attacks; we will continue to participate in and monitor this lawsuit.
— Renee Cho is a blogger for the Earth Institute at Columbia University.