People play dirty when they can’t win by playing fair. This is, more or less, the story of climate change denial in the United States.
Scientists overwhelmingly agree that humans are altering the climate, reaping changes with potentially catastrophic consequences. Climate deniers can’t dispute the data. They can’t win on facts. Instead, they impugn the credibility of scientists, a tactic which has proved both ugly and effective.
Right-wing groups are using open records laws to obtain scientists’ emails, and then misrepresenting the content of those emails to question the integrity of researchers and cast doubt on their findings, all of which has a chilling effect on scientific inquiry. But scientists have earned powerful allies in the fight to protect their research — including, by a strange set of circumstances, the Trump administration.
“Climategate” led to a wave of harassment
The current spate of invasive records requests back to “Climategate,” a 2009 controversy that erupted when a hacker obtained more than 1,000 emails sent and received by climatologists at East Anglia university in the United Kingdom. Parts of some emails, taken out of context, suggested scientists had manipulated data to exaggerate the warming trend.
I think anyone who looks at the whole ‘Climategate’ manufactured controversy understands now that it’s bogus, but that’s the rationale that they’ve used.
Lauren Kurtz, executive director, Climate Science Legal Defense Fund
Climate deniers harped on the leaks to paint climate scientists as ideologically motivated and dishonest. Though an official inquiry into the matter exonerated scientists, the damage was already done. Their calls for universities to investigate climate scientists prompted institutional probes that hampered research efforts. Today, conservative advocacy groups point to “Climategate” when making open records requests.
“I think anyone who looks at the whole ‘Climategate’ manufactured controversy understands now that it’s bogus, but that’s the rationale that they’ve used,” said Lauren Kurtz, executive director of the Climate Science Legal Defense Fund, a nonprofit working to protect researchers threatened by legal attacks.
The Energy & Environment Legal Institute (E&E), a conservative think tank with ties to coal and oil companies, cited “Climategate” as the impetus for its “transparency project.” In 2011, the group sued to obtain more than 10,000 emails written or received by Michael Mann, a researcher at the University of Virginia and one of the scientists implicated in “Climategate.” The Virginia Supreme Court sided with Mann, who lamented the “coordinated assault against the scientific community by powerful vested interests.”
That same year, E&E requested more than a decade of emails from University of Arizona climate scientists Jonathan Overpeck and Malcolm Hughes, another researcher ensnared by “Climategate.” E&E’s legal brief alleged there is a “climate scientific-technological elite” which has “behaved badly” in the past, a reference to “Climategate.”
In a gesture of surprising candor, E&E acknowledged that it was searching for emails to “embarrass both Professors Hughes and Overpeck,” whom it characterised as “academic climate alarmists.” That suit continues to this day.
The University of Arizona case volleyed back and forth between the trial court and the appellate court, which recently determined the trial court had failed to consider a statute that protects “unpublished research data, manuscripts, preliminary analyses, drafts of scientific papers” and other documents produced by researchers at Arizona public universities.
Now the case will go back to the trial court, which will reevaluate the records request in light of this statute. The ruling is a pyrrhic victory for researchers and the university, who must dedicate even more time and money to fighting off E&E. “That’s basically as good as we could have hoped for,” Kurtz said. Even when scientists win, they lose.
The lawsuit has taken a hefty toll on Overpeck and Hughes. Overpeck said he spent six weeks of his sabbatical sorting through 90,000 pages of emails, explaining the case was a “grave distraction” from his work and family. Hughes spent an entire summer collecting emails, failed to attend to his work and lost a research grant as a result.
These injuries are temporary. More worrisome is the long-term effect that records requests have on research. Hughes noted that, due to his involvement in the case, other scientists have been reluctant to email him. While Hughes is nearing the end of this career, he said that, were he a young man, he would “consider a different line of work or another institution.”
Even if E&E loses in the trial court — and it most likely will — the group will have nonetheless succeeded in bullying climate scientists. This, rather transparently, was the point. If E&E had concerns about the empirical rigor of climate research, it could have scrutinized the findings of specific studies. Instead of interrogating the final product, it went after the hastily scribed emails exchanged between colleagues.
“I have taught, researched and administered in academia for more than 40 years and have not seen a time in which freedom of inquiry has been more needed, or more imperiled than it is now,” Hughes wrote in a letter to University of Virginia president Teresa Sullivan when E&E was working to obtain Mann’s emails.
“Nothing is more likely to quash the creativity of America’s scientists than the ever-present ear of a hostile listener intent on finding, at all costs, the appearance of malfeasance. Nothing is more calculated to discourage research into topics that may challenge power interests.”
Today, some states are enacting policies to protect scientists. Rhode Island and North Dakota recently passed laws guarding academic freedom. The Rhode Island statute specifically shields “drafts, notes, impressions, memoranda, working papers and work products” from open records requests. Kurtz hopes more states follow suit.
Climate scientists have an unlikely ally in the Trump administration
At the federal level, the issue becomes more complicated. The legal protections that guard the emails of federally-funded climate scientists also shield government employees, including those working for the president. As a result, climate scientists have an unlikely ally in the Trump administration.
In 2015, the conservative nonprofit Judicial Watch made a FOIA request to obtain the emails of climate scientists at the National Oceanic and Atmospheric Administration (NOAA). Judicial Watch has a history of harassing opponents with records requests — most notably Hillary Clinton. Its president, Tom Fitton, claimed the NOAA documents requested would show “the Obama administration put politics before science to advance global warming alarmism.”
“This case is interesting because it was actually started under the Obama administration, but the Trump administration continued it, I think, because the Trump administration recognises that it’s important to maintain these open-records protections,” Climate Science Legal Defense Fund’s Kurtz said.
There is little reason to believe that President Trump is interested in protecting researchers. His EPA transition team included lawyers David Schnare and Christopher Horner, both of whom have a history of harassing climate scientists with open-records requests. Rather, the Trump administration is committed to secrecy.
EPA chief Scott Pruitt offers a prime example. Pruitt, who recently installed a $25,000 soundproof booth in his office, has been sparing in his use of email, partly as a response to a 2014 open-records request that revealed his close ties with the fossil fuel industry. “The Trump administration, I don’t think, is eager to be turning things over under open-record laws,” Kurtz said.
This story was published with permission from Nexus Media. Read the full story.