Bush-Cheney Administration spins a sound legal defeat into an affirmation of their illegal actions


On August 22, a spokesperson for the White House Office of Science and Technology Policy (OSTP), Kristin Scuderi, released an official statement of reaction to the court case, Center for Biological Diversity et al. v. Dr. William Brennan et al (see related post).  The ruling by Judge Saundra Brown Armstrong was clear:  by failing to meet deadlines to produce a research plan and climate change impacts assessments, the Administration is in violation of the law,  and now is under an enforceable court order to comply. However, the inaccurate and grossly misleading OSTP statement "attempts to spin a complete legal defeat into an affirmation of their illegal actions” says the lead attorney for the plaintiffs, Brendan Cummings with the Center for Biological Diversity (CBD).   We list OSTP’s claims and Cummings’ point-by-point rebuttals.

While there is some evidence of shifting views on climate change within the Administration, the White House response serves as a reminder that fundamental problems remain.

  • The Administration has not and apparently will not broadly engage the American public in an ongoing assessment process, one that meets both the letter and the spirit of the law. The failure to do so prompted this lawsuit. It also has led members of Congress to propose alternatives to the 1990 Global Change Research Act (GCRA) that more specifically compel the government to engage the public in a continuous, ongoing assessment process that is responsive to the needs of the country.
  • The Office of Science and Technology Policy (OSTP), under the direction of John H. Marburger, III, continues to assume a central role in the Administration’s evasive failure to fully inform and engage the American public. Marburger oversees the National Science and Technology Council (NSTC), which under the GCRA is responsible for the Climate Change Science Program (CCSP). This is why Marburger himself was one of the defendants in this case. Virtually every major publication issued by the CCSP is published under John Marburger’s signature and the OSTP seal. That includes the Strategic Plan and annual reports in which references to the National Assessment of the Potential Consequences of Climate Variability and Change –compiled by hundreds of U.S. scientists — were systematically removed and otherwise discouraged. This dismal record raises questions about relying on OSTP to oversee the CCSP and its scientific assessment activities without constant, attentive, and independent oversight. It also raises doubts about a recently enacted law that calls upon OSTP to develop and enforce "an overarching set of principles to ensure the communication and open exchange of data and results" from Federal scientists and to "prevent the intentional or unintentional suppression or distortion of such research findings" ( Section 1009, Release of Scientific Research Results, of the America Competes Act).
  • Rather than publicly acknowledging and accepting factual information that undermines tightly held policies or views, Administration officials have a propensity to simply deny any discordance between the facts and those policies and views. This reluctance at the top levels of the Administration to accept the facts, to acknowledge errors and to abandon failed policies frustrates efforts to prepare the nation for a rapidly changing climate.

Below are the statements released by OSTP along with the critical responses from Center for Biological Diversity’s Brendan Cummings.  

Bush Administration statement on the ruling of the case, Center for Biological Diversity et al. v. Dr. William Brennan et al, disseminated by Kristin Scuderi, spokesperson for the White House Office of Science and Technology Policy:

“Yesterday the U.S. District Court for the Northern District of California issued its ruling in the case concerning the Administration’s compliance with certain reporting requirements under the Global Change Research Act of 1990.  We are pleased the court accepted the Administration’s means of compliance with the Act.  Though the court imposed certain deadlines, they are consistent with currently planned schedules.

The case focused on the Administration’s compliance with the requirement that a "scientific assessment" of global change research findings be produced every four years.  The Administration committed to complete the peer-reviewed reports that comprise the “scientific assessment” by the end of 2007.  The court ordered these reports be produced by May 31, 2008 – a deadline five months later than the Administration’s current schedule.

Also at issue was the development of a new research plan to govern the research program, which the Act requires be produced every three years.  Again, the court accepted the Administration’s statement that preparations had begun, but ordered a new summary research plan to be completed by March 1, 2008 (and the final plan by 90 days later).

Whether to appeal the court’s ruling is under discussion.  Nonetheless, the court’s deadlines are consistent with the Administration’s current plans.”

Rebuttal prepared by Brendan Cummings, attorney for the plaintiffs (the quotes are extracted from the court decision [LINK]) :

The Administration states that they “are pleased the court accepted the Administration’s means of compliance with the Act.”  While we doubt the Administration is “pleased” by the Court’s ruling, the important point is that the Court in no way “accepted the Administration’s means of compliance with the Act.”

The court explicitly found the administration in violation of the statute:

“Pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201, the Court finds the defendants are in violation of sections  2934 and 2936 of the Global Change Research Act, and that declaratory judgment in the plaintiffs’ favor is warranted.” [page 31]

With regard to the National Assessment (also called Scientific Assessment):

“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.” [page 30]

Additionally, while not directly ruled upon by the Court, the Court noted that the Administration’s plan for doing multiple reports in lieu of a single assessment also violated the law:

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. [page 38]

With regard to the Research Plan, the Administration statement that “the court accepted the Administration’s statement that preparations had begun” implies that the Court agreed with the Administration’s approach to preparing the Plan.  This is simply not true.  The Court explicitly rejected the Administration’s “preparations” as being sufficient or legally relevant:

“The defendants’ only substantive response is that the Court ‘should defer to the CCSP’s decisions related to the manner of compliance [with the GCRA].’ Docket No. 49, at 29. They posit that ‘[ i]n Defendants’ appropriate exercise of its judgment, it has determined only recently that the initiation of a process to revise the Research Plan has become necessary and advisable.’ Id . at 30. In fact, the defendants go so far as to assert, somewhat incredulously, that “the GCRA grants Defendants substantial discretion in the manner in which they may produce and submit periodic Scientific Assessments and Research Plans.” Id . at 33. The premise of this argument is that the defendants have discretion in determining the manner in which to comply with the GCRA reporting requirements, which the defendants define as including the time for compliance. See id. at 24, 29-30. The defendants are wrong. [page 30]

Moreover, the Court also rejected the timelines suggested by the Administration for the Research Plan:

“The defendants offer no definitive statement of when they intend to complete the revised Research Plan that was due in July 2006. Somewhat vaguely, they offer the assertion that they have “initiated the process for producing a revised Research Plan.” Docket No. 49, at 2. Defendant Dr. William Brennan states, under a heading of “Development of Research Plan,” that in “2002 the CCSP [Climate Change Science Program] began the process of developing its 10-year Strategic Plan with the goal of providing the best possible response to the requirements of the GCRA.” Docket 49, Ex. 3 (Brennan Decl. at ¶ 9). The following paragraph of the declaration suggests that Brennan is using the designation “Strategic Plan” as an interchangeable reference to the “Research Plan” of the Act. Id. at ¶ 10. If this is correct, the defendants plan to release a revised Research Plan sometime in 2012. This is far afield the mark set by Congress.”

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