Court Rules that Bush Admin. Unlawfully failed to produce Scientific Assessment of Global Change

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A Federal judge says the Bush Administration has violated the Global Change Research Act by failing to produce a national global change research plan that was due by July 2006; and a scientific assessment of global change that was due in November 2004. The last scientific assessement, the US National Assessment of the Potential Consequences of Climate Variability and Change, was submitted to Congress in November 2000. Climate Science Watch has long maintained that the Bush administration’s suppression of official use of the first National Assessment report and its termination of the national climate change assessment process for connecting scientists to policymakers and society is the central climate science scandal of the administration. Ruling on the lawsuit filed by the Center for Biological Diversity et al, U.S. District Judge Sandra Brown Armstrong has ordered the Administration to produce both the plan and the assessment no later than the end of May 2008.

The lawsuit [PDF] was filed on November 14, 2006, against Dr William Brennan (Acting Director, Climate Change Science Program), the U.S. Climate Change Science Program, John Marburger III (Director, Office of Science and Technology Policy), the Office of Science and Technology Policy, and the Federal Coordinating Council on Science, Engineering, Technology (now known as the National Science and Technology Council). Joining the Center for Biological Diversity as plaintiffs were Greenpeace and Friends of the Earth. Senator Kerry and Congressman Jay Inslee filed a memorandum of Amici Curiae [PDF] on 17 April 2007. Rick Piltz (Climate Science Watch director; formerly with the Climate Change Science Program) filed a declaration in support of the Kerry and Inslee intervention; and Mike MacCracken (Chief Scientist for Climate Change
Programs with the Climate Institute) filed a declaration in support of the plaintiffs. Mike MacCracken was Executive Director of the National Assessment Coordination Office from 1997
through 2001. The lawsuit, amicus brief and declarations are available are available along with other material related to the case on the Center for Biological Diversity Web site.

In their lawsuit, plaintiffs charged that the Administration had failed to produce a global change research plan and scientific assessment. They asked that the court declare the defendants in violation of the law, and that the court order the Administration to produce the documents “by a date certain,” and that the court “retain jurisdiction over this action to ensure compliance with the Court’s decree.”

On 20 March 2007, the plaintiffs followed up by filing a motion for summary judgment (see definition). They asked that the court grant their motion and that it order the Bush Administration “to produce the required updated Research Plan and
Assessment within nine months of this Court’s Order on Plaintiffs’ Motion.” The Court’s Order issued on 21 August 2007 by U.S. District Judge Armstrong granted the plaintiff’s motion.

Judge Armstrong found that “there are no disputed facts, making this action particularly well-suited for summary adjudication.” She continues:

The GCRA mandates that “a revised Plan shall be submitted at least once every three years . . . .” 15 U.S.C. § 2934(a). The last Research Plan issued was in July 2003, and the defendants make no claim that a revised plan was submitted by July 2006, or since that time. The defendants have
therefore unlawfully withheld action they are required to take—producing an updated National Global
Research Plan at least every three years […]

In addition, the defendants are in violation of 15 U.S.C. § 2936, which dictates that “On a
periodic basis (not less frequently than every 4 years), the Council, through the Committee, shall prepare
and submit to the President and the Congress [a Scientific] assessment.” It has been almost seven years
since the last Scientific Assessment was published on October 31, 2000 and submitted to Congress in
November 2000, triggering a due date for a subsequent Scientific Assessment in November 2004.
Again, the defendants do not dispute this. The defendants have not adhered to the text of the statute or
its mandates.

The Judge noted that the plaintiffs’ “requested relief includes an injunction
compelling the defendants to produce the Research Plan and the Scientific Assessment by a date certain.
They have suggested nine months from the date of the Court’s order.” Judge Armstrong writes:

As the Research Plan is now more than a year overdue, the Court ORDERS that a summary of
the revised proposed Research Plan be published in the Federal Register no later than March 1, 2008,
and that the proposed Research Plan itself be submitted to Congress not later than 90 days thereafter.
This date allows the defendants six months to prepare the summary of the Plan, and then 90 days for
public comment and revision provided for by the GCRA.

In her order, the judge emphasized the importance of public consultation in developing the research plan. “The opportunity for public participation is in the Research Plan, limited or not, is a Congressional dictate,” she says.

Judge Armstrong’s order on the scientific assessment of global change was complicated by the Administration’s assertion that six of the reports from an ongoing series of 21 “synthesis and assessment” reports being produced by the Climate Change Science Program will satisfy the substantive requirements of 15 U.S.C. § 2936 (section 106 of the Global Change Research Act). Of the six reports, only one (S&A report 2.1) has been published, but the Administration claims the rest (S&A Reports 4.3, 4.4, 4.5, 4.6, 4.7) will be completed by the end of the year. The judge notes that the plaintiffs…

“…have expressed concern with the defendants’ stated plan to issue twenty-one
separate reports rather than a single Scientific Assessment. The Court appreciates this concern
and to the extent the defendants suggest these twenty-one reports will be disseminated over the course of several years, the Court agrees this contravenes the time frame imposed by Congress. The plaintiffs have not, however, specifically requested the Court to order the production of a single Scientific Assessment, so the Court does not reach this issue. Moreover, while the Act
specifies the time for submitting the Assessment, as well as particular elements to be analyzed
and evaluated, Congress has not likewise clearly dictated the form the Assessment must take. Thus, while the report(s) must be submitted within the period directed by statute, the precise organization of the report(s) is left open by the Act.”

Though she did not rule out the possibility that a series of reports might ultimately meet the requirements of the GCRA, Judge Armstrong did say that “the Scientific Assessment must in some manner
integrate, evaluate, and interpret the public comments of the Research Plan.” Section 106 of the GCRA actually says that the Administration must produce an assessment that “integrates, evaluates, and interprets the findings of the Program”[emphasis added]. However, Judge Armstrong says “‘[f]indings of the Program” encompasses “all the science developed as a result of the program, including the Research Plan.” The judge tightly links the research plan — informed by public engagement — to the scientific assessment, saying that “if there is no consultation or comment period in the development of the Research Plan, the Scientific Assessment will not integrate, evaluate, and interpret the findings of the Program as required.”

Based on that analysis, the Court ordered that the Scientific Assessment be produced no later than May 31, 2008 –a date that falls after public comments have been received on the summary of the research plan, and that roughly coincides with the deadline for submission of the plan to Congress. This creates a fundamental problem for the Administration, since most if not all the “synthesis and assessment” reports it identifies as satisfying the GCRA’s assessment requirement are supposed to be completed before the conclusion of the public comment period and before the new research plan is completed. To meet the requirements of the court order, the Administration ultimately will have to produce another assessment report beyond those that will have been completed without the benefit of the new research plan. Considering the possibility of compliance issues, Judge Armstrong finally ordered “that the Court will retain jurisdiction over this action to ensure
compliance with the Court’s decree.”

In addition to granting the plaintiff’s motion for summary judgment, Judge Armstrong denied a motion by the Bush Administration to dismiss the case; and denied the motion by Senator Kerry and Congressman Inslee to intervene. The Judge rejected the intervention partly because she ruled that Kerry and Inslee had “other means to protect their stated interests.” Judge Armstrong wrote:

The intervenor-applicants, as Congressional leaders in the global change arena, are in a unique
position to persuade their colleagues to convene oversight hearings on why the terms of the GRCA are
not being followed by Executive Branch actors; to issue subpoenas compelling the defendants to testify
to their non-compliance with the Act; and/or use the power of appropriation as leverage upon the
Executive Branch to comply with the GCRA. See, e.g., Watkins v. United States, 354 U.S. 178, 187
(1957) (“The power of the Congress to conduct investigations is inherent in the legislative process. That
power is broad.” ) ; McGrain v. Daugherty, 273 U.S. 135, 175 (1927) (affirming the Senate’s right to
enforce its power of inquiry by subpoenaing witnesses for information relevant to its legislative
concerns). The intervenor-applicants might also lead a call to Congress to amend the GCRA in several
ways to allow for greater judicial review for interested citizens or organizations. The GCRA could be
amended to provide for citizen-suits, a provision found in many environmental statutes. The GCRA
could also be modified to explicitly state that the general public is entitled to the information of both
the final draft of the Research Plan and the Scientific Assessment. This would afford members of the
public stronger basis for standing to pursue claims of recalcitrant compliance with the GCRA and
enforce public dissemination of the final versions of these documents. These various “political arrows”
may be drawn and released by the intervenor-applicants at any time to protect their interests.

Online resources:

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