State attorneys general from around the country have asked congressional leaders to investigate whether climate litigation advocates improperly influenced a key judicial reference document used by federal judges, raising concerns that courts are being steered toward one-sided outcomes in climate cases.
At issue is the Federal Judicial Center’s Reference Manual on Scientific Evidence, a resource judges consult when evaluating complex scientific evidence. Critics argue that any bias in the manual – especially on contested issues like climate attribution – risks prejudicing courts before they hear from both sides.
In a letter led by Nebraska Attorney General Mike Hilgers and joined by 21 other attorneys general, the officials take aim at the manual’s climate science chapter. They argue that the section was authored, reviewed, and sourced by supporters of climate litigation – some of whom are actively involved in litigation against U.S. energy companies.
The attorneys general call on House Judiciary Chairman Jim Jordan, Subcommittee on Courts Chairman Darrel Issa, and Senate Judiciary Chairman Chuck Grassley to investigate what they describe as an “inappropriate attempt to rig case outcomes in favor of one side.”
The request follows a separate letter sent last week to the director of the Federal Judicial Center calling for the withdrawal of the controversial chapter. The attorneys general argue that the manual should provide neutral science guidance to judges, a standard they say the climate chapter fails to meet.
Biased Authors with Clear Conflicts of Interest
The letter reiterates concerns with two co-authors of the climate science chapter – Jessica Wentz of the Sabin Center at Columbia Law School and Radley Horton at Columbia’s climate school. As EID Climate previously highlighted, both have publicly promoted litigation as a tool to advance climate policy and participated in programming for the Environmental Law Institute’s Climate Judiciary Project (CJP), an initiative already under congressional scrutiny for allegedly attempting to shape judicial views on climate claims.
Monday’s letter also calls out that Michael Burger, executive director of the Sabin Center for Climate Change Law and a central figure in the climate litigation campaign, reviewed the controversial chapter. Burger represents Honolulu in its climate lawsuit and is of counsel at Sher Edling, the firm representing most of the plaintiffs in these climate cases. As the attorneys general point out, this is hardly the unbiased perspective that should be included in a neutral handbook:
“In other words, the Federal Judiciary manual’s climate change chapter was reviewed by, and relies on, a plaintiffs’ attorney in pending climate change cases.” (Emphasis added)
The chapter also cites multiple experts who have recently submitted expert declarations or amicus briefs in active climate cases, including Naomi Oreskes, Richard Heede, and Friederike Otto. The letter argues this creates the appearance that one side’s experts effectively shaped a resource judges may rely on before hearing from both sides in court:
“Not surprisingly given the strong biases of its authors, reviewers, and sources, the climate change chapter presents as settled the very methodologies that plaintiffs rely on to impose liability on fossil-fuel defendants.”
AGs Call on Congress to Expand ELI Investigation
The attorneys general explicitly urge the committees to expand their ongoing inquiry – previously focused on the Environmental Law Institute’s Climate Judiciary Project – to include the development of the FJC’s climate science chapter, including potential coordination and conflicts of interest. Some legal commentators, they note, have even suggested reconsidering the FJC’s $35 million appropriation if objectivity cannot be assured.
West Virginia Solicitor General Michael R. Williams told a Federalist Society panel this week that he was encouraged the FJC to promptly acknowledge receipt of the AGs’ letter raising concerns about the manual and suggested a temporary withdrawal of the chapter could be wise should the FJC be called to explain itself before congressional appropriators:
“If I were them, and I were a member of the board, I would ask for at least a temporary withdrawal for the purposes of evaluating the content in the manual … That at least shows a degree of good faith that I think is going to make life a lot easier for them if they get called before any of the appropriators.”
Another panelist, Michael Frogroso, former Chief Counsel to Sen. Mitch McConnell, noted the FJC has yet to openly promote the new chapter, indicating it is possible the FJC could be open to transparently addressing the concerns raised by state AGs. Otherwise, he argued, the ball is firmly in Congress’s court:
“If [the AGs] wind up getting sort of a ‘brush off’ … then I think the ball is firmly in Congress’s court. At the end of the day they have to take Congress a bit more seriously … Congress has the power of the purse and could shut down the whole thing tomorrow if it wanted to.”
BOTTOM LINE: The FJC’s reference manual blurs the line between neutral scientific guidance and advocacy, with authors and reviewers who are actively supporting climate lawsuits in court. This letter escalates pressure on the FJC to address transparency concerns – or face congressional scrutiny and potential funding consequences.
