A coalition of 27 state attorneys general have delivered a sharp rebuke to the Federal Judicial Center (FJC) for allowing proponents of the climate litigation campaign to author a critical document that is used to guide federal judges on climate science, and called for the manual’s withdrawal.
The FJC is a somewhat obscure federal entity that acts like a think tank for the judicial branch and is primarily funded by taxpayer dollars. The center recently published its Fourth Edition of its “Reference Manual on Scientific Evidence.” This little-publicized, but vital document is produced to guide judges and attorneys on complex scientific topics in what is supposed to be a neutral, unbiased manner.
However, as the state attorneys general highlight, the Reference Guide on Climate Science utilizes highly biased research and was written by two prominent attorneys who have been longtime spearheads of the climate litigation campaign that targets American energy companies.
Earlier this month, commentary in National Review first noted the influence of climate litigation supporters on the Reference Manual and reporting from Fox News earlier this week blew the story wide open.
“A gold-standard guide used by judges nationwide to address subjects they are not particularly versed in is drawing criticism over the latest edition’s inclusion of purported ideological bias focused on its climate section.
…Nonetheless, legal experts warned of the potential repercussions down the line of having such prominent contributors in what is supposed to be an apolitical anthology.”
Now, the coalition of state attorneys generals have written a letter to the Federal Judicial Center highlighting the inherit bias in the climate section and demanding a retraction:
“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.
“We ask that the Center immediately withdraw the inappropriate ‘Reference Manual on Climate Science’ included in the Fourth Edition. Judges should resolve these issues through the ordinary processes of litigation—not by way of a judicially driven, committee-led, quasi-amicus brief.” (emphasis added)
Written, Reviewed, and Cited by Litigation Proponents
The “Reference Manual on Climate Science” is deeply problematic, as the state attorneys general highlight, with the largest issue being that it was written by Jessica Wentz, a senior fellow at the Sabin Center for Climate Law at Columbia University, and Radley Horton, a professor at the Columbia Climate School.
The Sabin Center has served as a key ecosystem for years in the climate litigation campaign and Wentz has co-authored research aimed at assigning liability to energy companies. Wentz has encouraged the use of legal tools to seek “accountability” for individuals, such as executives or other representatives of energy companies.
As the attorney’s general note:
“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.’”
As the letter states, the bias of Wentz and Horton is as clear as day:
“The authors offer unsolicited, ex parte expert opinions on matters that they recognize are directly at issue in ongoing suits.”
Fox further reports that Wentz “Wentz is the topline expert at the Climate Judiciary Project (CJP) at the Environmental Law Institute (ELI),” an entity that is currently under Congressional investigation for improper attempts to influence federal judges.
In fact, just last week, Republican leaders sent four formal letters to judicial organizations and climate litigation leaders requesting detailed information surrounding their coordination with the CJP and its attempt to present biased information to judges in order to sway rulings.
Furthermore, the climate section was given feedback by Michael Burger, the Executive Director of the Sabin Center, and an attorney who continues to serve as counsel at Sher Edling, the plaintiffs law firm that represents many of the states and municipalities that have introduced climate lawsuits – and the firm which is currently the subject of another probe by congressional lawmakers.
Additionally, the climate section relies heavily on the Carbon Majors attribution research published by Richard Heede with the Climate Accountability Institute. As Energy In Depth has noted repeatedly, Heede’s work was financed by the Rockefeller network and is deeply flawed.
Heede’s own bias is well-documented, including a 2019 op-ed in The Guardian where he wrote that:
“The Climate Accountability Institute was formed in 2011 to confront fossil fuel companies. … We work with investigators, human rights commissioners, advocates and lawyers in an effort to curb the carbon industry’s enthusiasm for unabated fossil fuel development.”
Heede has inspired similar researchers to pursue attribution science with the intent of supporting litigation, yet even they admit it has failed in court.
More Investigations to Come?
The attorneys general highlight that if the bias in climate policy is allowed to permeate the Federal Judicial Center, then so too could prejudice surrounding other important judicial topics:
“Really, this issue transcends climate policy. If the Center can predetermine scientific questions in climate cases, what prevents it from doing the same for pharmaceutical liability, election disputes, or Second Amendment cases? The precedent is dangerous regardless of one’s views on climate change.
Given those consequences, we anticipate sharing this letter with congressional leadership so that they may examine whether the Center has exceeded its statutory mandate or otherwise overstepped.” (emphasis added)
If Congress were to probe bias within the Federal Judicial Center, it would add to an escalating series of Congressional investigations darkening the climate litigation campaign – from their coordination. to their dark-money funding, to the attorneys representing the cases, and even their influence in state AG offices.
Bottom Line: Climate activists with clear biases—and ties to organizations under congressional investigation—are once again attempting to improperly influence the federal judiciary. This time, they’ve done it through a taxpayer-funded guide that should be a gold-standard, neutral resource. After a decade of courtroom losses, activists have shifted from making their case to trying to rig their case.
