The climate science chapter is gone from the judges’ manual. The scandal behind it is not.
Controversy over the Federal Judicial Center’s latest edition of the Reference Manual on Scientific Evidence shows no sign of slowing down, even after both the FJC and its co-publisher, the National Academies of Sciences, Engineering, and Medicine, agreed to remove the contentious chapter on climate science.
But in September, a House Judiciary Committee report revealed that the chapter was quietly shaped by a plaintiffs’ attorney the FJC had barred from writing it. Additionally, it detailed how the Environmental Law Institute’s Climate Judiciary Project has improperly targeted the judges most likely to hear climate lawsuits with one-sided “education” seminars. The revelations are shocking and demand accountability.
Emails, interviews, and other materials related to the seminars and the reference manual make clear the overarching goal of both efforts: to legitimize “attribution science,” which purports to prove that a specific company’s historical emissions caused a specific extreme weather event. To prevail in tort suits, plaintiffs must prove this chain of causation, so they need judges to accept it. Not only is it not established science, but it is contentiously debated. Even the United Nations’s Intergovernmental Panel on Climate Change says its “usefulness or applicability … remains subject to debate.”
How bad is it really?
One name appears again and again in the report: Michael Burger, who is both of counsel at Sher Edling (the law firm suing Big Oil in about 20 states for hundreds of billions of dollars) and the executive director of the Sabin Center for Climate Change and Law at Columbia Law School. Put another way, his law firm represents climate plaintiffs in Honolulu, Delaware, and New York — Burger’s name is specifically on their complaints — and leads a legal think tank whose “core mission” is to “develop and promulgate legal techniques to combat the climate crisis” and “train the next generation of leaders in the field.” This training apparently extends to judges.
As the House Judiciary Committee report reveals, NASEM asked Burger to author the chapter in 2022, but the FJC withdrew the offer given his role in active climate cases. Two of his Sabin Center colleagues became the authors instead, and Burger assured them he would keep contributing “behind the scenes.” He did. A significant portion of the published chapter was copied word-for-word from a prior paper of his, and the report’s appendices show that he edited the chapter extensively. Yet, he is not credited as an author.
Why hide an author with such an impressive background? Perhaps because an active plaintiff’s attorney with potentially billions to win didn’t want that to discredit the entire chapter? Surely plaintiffs’ attorneys demanding billions in damages wouldn’t try to put a finger on the scale, would they?
For activists seeking to fundamentally upend a pillar of the world economy, getting legislation passed is a tough row to hoe.
So, they’ve switched tactics. In the words of CJP founder Dr. Paul Hanle, they are using “back-channel” efforts to influence judges. After all, why go through the laborious effort of influencing all those congressmen and senators when all you need is one weak link on the bench?
In addition to the attempt at creating a climate science chapter in the judges’ manual, CJP has also developed educational programs where they target key judges in key states who are likely to hear a climate lawsuit. According to the House Judiciary report, over 140 federal judges have attended CJP’s seminars, most of whom were specifically targeted as potential future judges in climate cases. This is clearly an attempt to influence judges before opposing counsel gets involved.
So how do we fix it?
The DC Bar Rule of Professional Conduct 3.5 prohibits attorneys from talking with judges about a case outside the presence of opposing counsel and prohibits any activity that would improperly influence a judge about a pending matter. So, technically, talking to a judge about a possible future matter is not prohibited. Should it be?
The House Judiciary report states that “a cornerstone of the American legal system is an impartial judiciary composed of unbiased and impartial federal judges.” Yet beyond pulling the chapter, nothing has been done to correct this obvious assault on judicial independence. Activists in every space remain free to influence judges, whether through “education” programs or “back-channeling” influence.
We cannot pretend that this chapter in the judges’ manual was an accident. It sure looks like an attempt by climate activists to undercut future cases, and it cannot be tolerated. Supreme Court Chief Justice John Roberts is the chairman of the FJC. He has an obligation to set the record straight and issue guidance to all judges that they must remain impartial and must be cautious about the training they attend.
ONLY PART OF EARTH’S TEMPERATURE STORY IS BEING TOLD
The American Bar Association needs to issue clear ethical guidance on this type of judicial manipulation and the failure to disclose the true author behind the climate science chapter. Medical journals require all authors to be listed for the purposes of identifying any bias. Legal publications should do the same. Additionally, all donors to any project that impacts judicial opinions must be easily identifiable.
While this controversy is about climate science, what is stopping activists for any political cause from doing the same thing? Our courts are not for sale, and they must be transparent. Roberts, the ABA, and state bars need to put an end to judicial manipulation and restore America’s confidence in an unbiased judiciary.
Christina Bobb is an attorney and former official with the Trump post-2020 and 2024 campaigns and the Republican National Committee.
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[ H/T Washington Examiner ]
