John Kerry and climate change: Recalling a federal lawsuit against the Bush administration


In August 2007 a federal court ruled the Bush administration was in violation of the Global Change Research Act and ordered it to produce a years-overdue national climate assessment. Sen. John Kerry, who had called on the administration to produce a new assessment, filed an amicus brief along with Rep. Jay Inslee in support of this successful lawsuit brought by the Center for Biological Diversity against administration officials. My Declaration, part of that brief, laid out in detail how the Bush White House had suppressed the first National Assessment and the process it had initiated.

As John Kerry takes up his new position as Secretary of State, I recall a few experiences with Kerry and his staff on climate change and the Bush administration during his time in the Senate.  This is a companion to an earlier post: Recalling an exchange with Sen. John Kerry about climate change and the Bush White House.

Sen. Kerry was well-aware of the problem of political interference with climate change science communication by the Bush White House and administration officials, which I and others had brought to public attention. In March 2006, Kerry and his colleagues Sen. Frank Lautenberg and Sen. Daniel Inouye called for all government reports dealing with climate change to be audited by the National Academy of Sciences, in an effort to prevent future reports from being altered by White House political aides (Senators call for National Academy auditing of government reports on climate change). They called on James Mahoney, the Assistant Secretary of Commerce for Oceans and Atmosphere and Director of the U.S. Climate Change Science Program/Global Change Research Program, to put in place procedures that would give the NAS oversight for future government climate science reports — including the annual Our Changing Planet report to Congress, which I edited for nine years.*

In an August 2006 letter to Bush administration officials, Sen. Kerry called for the production of a then two-years-overdue second National Climate Assessment (Sen. Kerry calls for new National Climate Change Assessment). Knowing how the administration had politically suppressed official use of the first National Assessment of Climate Change Impacts, completed in 2000, Kerry also called on the administration to promote the use of the existing 2000 National Assessment in decisionmaking by federal departments and agencies. This was in line with the National Academy of Sciences, which had criticized (to no avail) the Climate Change Science Program for essentially making the first National Assessment disappear.  The Academy called it a significant, pioneering work. In an October 2006 story in Greenwire on the continuing controversy over the administration’s decision to kill the 2000 National Assessment (The unfinished business of the National Climate Change Assessment scandal) I called this the central climate science scandal of the Bush administration.

In November 2006, the Center for Biological Diversity, along with Greenpeace and Friends of the Earth, filed suit in federal district court in California against the Bush administration for refusing to conduct a second U.S. National Climate Change Impacts Assessment, as required by the Global Change Research Act of 1990 (Conservation groups file suit against Bush administration to compel second National Assessment).  The suit named William Brennan, acting director of the U.S. Climate Change Science Program, and John Marburger, director of the White House Office of Science and Technology Policy, as defendants.

In its news release on the lawsuit, the Center for Biological Diversity noted that, not only had the administration failed to issue an updated National Assessment, but it had worked to bury the findings of the 2000 assessment.  They pointed to the resignation in 2005 of Philip Cooney of the White House Council on Environmental Quality, who had ordered the suppression of the 2000 National Assessment. Cooney resigned and went to work for ExxonMobil after the New York Times ran a front-page story, based on information I had provided, about his editing of portions of climate reports in order to minimize global warming and its implications.

Senator Kerry issued a statement supporting the lawsuit against the administration filed by the Center for Biological Diversity, Greenpeace, and Friends of the Earth (Sen. Kerry statement in support of lawsuit on National Assessment of Climate Change Impacts). He said:

“For too many years, action on global climate change has been stopped dead in its tracks by government foot-dragging, hiding information, and smothering science. Americans are way ahead of where this city has been on taking climate change seriously. In the old Congress they even trotted out the author of Jurassic Park as an expert witness to argue that climate change is fiction. This is Stone Age science. It’s the right time to push Washington to grapple with this issue. We can’t respond to climate change if we can’t make the government comply with the laws already on the books. This lawsuit sends an important message not just to follow the Global Change Research Act, but also to pass legislation imposing mandatory and substantial cuts in our greenhouse gas emissions. Let’s get serious.”

Sen. Kerry and then-Rep. Jay Inslee (then D-Washington, now Governor of the state of Washington) filed a Memorandum of Amici Curiae (and here) in support of the plaintiffs. I drafted a 12,000-word Declaration that was filed in support of the Kerry-Inslee brief and the plaintiffs. Michael MacCracken (Executive Director of the coordination office for the 2000 National Assessment and now Chief Scientist for Climate Change
 Programs with the Climate Institute) also filed a Declaration in support of the plaintiffs.  The lawsuit, federal court order, Kerry-Inslee brief and Declarations are available, along with other material related to the case, on the Center for Biological Diversity website. The Kerry-Inslee brief and my Declaration, along with 25 supporting exhibits, is posted on the Stanford University Law School Environmental Law Clinic website. The Declaration is in PDF format here.

In August 2007 a judge in U.S. District Court in California ruled in favor of Center for Biological Diversity et al., finding that the Bush administration had violated the Global Change Research Act by failing to produce a scientific assessment of global change that was due in November 2004, as well as a national global change research plan that was due by July 2006 (Court Rules that Bush Administration Unlawfully failed to produce Scientific Assessment of Global Change). U.S. District Judge Sandra Brown Armstrong found that “there are no disputed facts, making this action particularly well-suited for summary adjudication,” and ordered the administration to produce both the plan and the assessment no later than the end of May 2008.

“Given the seriousness of climate change, we need a full picture of the problem and the damage it is inflicting on our country — luckily the court has ruled to protect that information and the public’s right to know,” said Kerry in a statement on the court’s decision (Inslee, Kerry Applaud Decision Forcing Administration to Comply with Climate Change Law).

At a November 2007 Senate hearing on federal climate change science research, Kerry interrogated President Bush’s science adviser John Marburger on several issues pertaining to needed reforms in the climate science research program (Climate Change Science Program assessment failures aired at Senate Commerce oversight hearing). He followed up on the court ruling in favor of the Center for Biological Diversity lawsuit:

Sen. Kerry:  Are we going to get a single document by May 31, 2008?  That’s what the judge directed you to do:  to give us a research plan by March 31, and a scientific assessment by May 31st.

Marburger:  We will obey the law.

Since the administration had no intention of ever allowing the federal program to produce a new National Climate Assessment, and thus since no groundwork for such an integrated piece of work had been laid prior to the August 2007 court ruling, it was safe to expect that whatever the program might scramble together by May 31, 2008, wouldn’t be even close to what the country needed. And that’s essentially how it turned out.

The Bush administration came into what could be seen as pro forma compliance with the court order when, at the end of May 2008, the White House Office of Science and Technology Policy released Scientific Assessment of the Effects of Global Change on the United States. The report, a conventional 261-page review of the scientific literature, offered nothing new, although it was a respectable piece of work for what it was allowed to be. Although it was an official U.S. Government report, unlike normal scientific assessments it listed no authors. However, the report did acknowledge the reality of anthropogenic climate change and align its discussion with the relevant conclusions of the Intergovernmental Panel on Climate Change and various reports commissioned by the U.S. Climate Change Science Program. It summarized evidence of global climate disruption, the harmful impacts it is already having on society and the environment, and future projections of potential damages. In its late stage, the Bush administration began to allow the publication of reports that acknowledged scientific reality on the impacts of climate change (New climate report counters Bush administration record of denial, disinformation, cover-up and delay).

Of course, the Bush administration did nothing either to promote or to use the report, which was essentially shelved, along with all the other scientific reports produced during the 2000-2008. The 2008 report, which is, technically speaking, the second National Climate Assessment, was buried even deeper under the Obama administration. It does not turn up on the Global Change Reports and Assessments page of the current U.S. Global Change Research Program website, which identifies the report Global Climate Change Impacts in the United States, published in 2009, as the second national assessment. The 2008 version is still accessible on the Bush-era Climate Change Science Program website, which is now archival.

In 2009-2010 Sen. Kerry proposed comprehensive legislation that would have created a statutory framework for a substantial national climate change policy. In addition, over the years he has shown a concern for maintaining a strong scientific research and assessment program on climate change – something to which few members of Congress pay much attention – both in proposed legislation and in calling out political interference with climate science communication. Credit to him for that.

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*The Academy has reviewed climate science assessment and strategic research planning reports developed by the U.S. Global Change Research Program. To my knowledge they don’t review Our Changing Planet, a program report that, by law, is supposed to accompany the President’s budget request. The USGCRP has not issued an Our Changing Planet report to accompany the President’s Fiscal Year 2013 budget, which was issued a year ago. This report is long, long overdue. In this particular, the U.S. Global Change Research Program under the Obama administration appears to have become even more dilatory than before in sending this report to Congress in a timely fashion.

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2 Responses to John Kerry and climate change: Recalling a federal lawsuit against the Bush administration

  1. Perry Tanko says:

    So is Obama really Bush 2.0 ???

    • Rick - Climate Science Watch says:

      On climate change policy, support for the research program, and scientific integrity his administration is better, but not above criticism, which we have been doing when we think it’s needed.

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