Climate Assessment Delayed? Plus, High Court To Hear Enviro FOIA Case

October 21, 2020

WatchDog Opinion: Climate Assessment Delayed? Plus, High Court To Hear Enviro FOIA Case

By Joseph A. Davis


1. Trump Admin Tries To Bury, Delay National Climate Assessment.  Again.
2. Supreme Court (Plus Barrett?) Tees Up Endangered Species FOIA Case


1. Trump Admin Tries To Bury, Delay National Climate Assessment.  Again.

Suppression of climate science is alive and well. Signs are that the Trump administration is trying to stifle and sabotage the Fifth National Climate Assessment.

A 1990 federal law requires executive branch agencies to prepare a report every four years on how climate change would impact people in the United States. 

Above, the Fourth National Climate Assessment. A new, legally mandated fifth assessment is reportedly being held up. Image: U.S. Global Change Research Program. Click to enlarge.

It’s a potentially powerful influence on public awareness and concern about climate. That’s why Republicans, fossil fuel industries and anti-regulatory ideologues want to kill it.

We know this because, historically, we have already seen several attempts to torpedo it.

The last (fourth) national assessment came out in 2018. The next (fifth) is due in 2022. But the Trump administration has delayed starting work on it, scientists complain. That has now become a controversy — and news.

One of the earliest accounts of the sabotage of the Fifth National Assessment came from Scott Waldman at E&E News. Waldman’s Oct. 5 piece cited a previously involved scientist saying that the Trump team was late in calling for scientists to work on the Fifth Assessment.

That’s important because the assessment has always been a huge collaboration of hundreds of experts in many fields, from both government and private sector, from all regions of the country and from most of the many federal agencies that study climate. 

Blowing the schedule could mean no report or a late report.

It’s also important because the assessment gives a vivid picture of how climate change will worsen the lives of people all over the nation. It raises public concern and motivates people to act on climate. 

That is why the Trump administration, supported by fossil fuel interests and in denial about the science, opposes it.


History of GOP resistance

The First National Assessment was prepared under the Clinton administration. It was not published until November 2000, quite late in the Clinton tenure, just after the election. 

The coal industry and conservatives almost immediately started campaigning to get the incoming George W. Bush administration to un-publish it (subscription required). Or at least, since it was already published, to stop using or mentioning it. 


If this were the dating world, 

rather than science, 

we could call it ‘ghosting.’


If this were the dating world, rather than science, we could call it “ghosting.”

It’s a long story that few remember, but the Bush administration decided that it would not do another assessment, and had to be dragged, kicking and screaming, into producing one. The story involves lawsuits and Congressional hearings. 

But it’s telling that a key actor in the campaign to bury the First Assessment was Myron Ebell of the Competitive Enterprise Institute. Yes, that Ebell, the one who led the Trump administration’s U.S. Environmental Protection Agency transition team.

By the time Trump took office in 2017, it was too late to stop the Fourth Assessment. That document, started under Obama and involving too many agencies and actors to suppress effectively, posed a stark warning (may require subscription) of the devastating consequences of climate change. 

Unable to suppress the Fourth Assessment, the Trump administration released it on Nov. 23, 2018, the Friday after Thanksgiving, when most of the overstuffed news media would not be at work (may require subscription).

The story of the delay of the Fifth Assessment was advanced when the Center for Biological Diversity filed a Freedom of Information Act request with the National Oceanic and Atmospheric Administration, seeking records about the delay. 

The Center, an advocacy group, had gone to court to free up previously suppressed versions of the assessment. It has not yet gotten records responsive to the new request.

It’s important to see this suppression of information about the science of climate change and its effects on people as part of the Trump administration’s larger campaign. 

After release of the Fourth Assessment, which it was unable to suppress, Trump officials announced (may require subscription) they would shorten the time horizon of the next assessment and eliminate the use of worst-case scenarios.

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2. Supreme Court (Plus Barrett?) Tees Up Endangered Species FOIA Case

Almost unnoticed beside the forthcoming Supreme Court argument over Obamacare is another case important to environment journalists: this one on the Endangered Species Act.

Even before the Nov. 10 arguments on Obamacare, the court will hear arguments on Nov. 2 — the day before the election — on an important Freedom of Information Act case. 


As the Senate rushes to confirm Trump nominee 

Amy Coney Barrett to the Court, it’s possible that 

she will be sitting as a justice to hear those arguments.


It’s still unclear, but as the Senate rushes to confirm Trump nominee Amy Coney Barrett to the Court, it’s possible that she will be sitting as a justice to hear those arguments.

The case scheduled to be heard is U.S. Fish and Wildlife Service v. Sierra Club, which will test what documents must be made public when federal agencies are considering rules under the Endangered Species Act.

It may also be a decisive test of the scope of FOIA’s exemption for some materials that are “predecisional” or “deliberative.” 

The exemption, set out in the FOIA statute (not to mention reams of court decisions and agency rulemakings), has been steadily widened over a period going back at least to the beginning of the George W. Bush administration. 

And it may reveal Barrett’s predilections on government transparency and FOIA.


Origins of case

The case goes back to a 2011 U.S. Environmental Protection Agency proposed rulemaking over industrial cooling water intakes. 

Power plants and other industrial facilities suck in cooling water through intakes which often kill or injure aquatic life. In some cases the creatures killed may be endangered species. Mortality can be reduced with certain technologies.

As the EPA was developing its rulemaking proposal, it conducted extensive back-and-forth communications with NOAA Fisheries and the U.S. Fish and Wildlife Service (which usually has lead authority on the Endangered Species Act). 

During those discussions, EPA’s draft finding that some species would be endangered was eventually changed, resulting in a “biological opinion” or finding that there would be “no jeopardy” to endangered species.

The Sierra Club, an environmental advocacy organization, sought records documenting that discussion under FOIA. The Fish and Wildlife Service denied the request, citing the deliberative exemption. 

The Sierra Club went to court, and eventually won a ruling (subscription required) from the 9th U.S. Circuit Court of Appeals (based in San Francisco) upholding its right to the records. The Trump Fish and Wildlife Service appealed that decision to the Supreme Court.

The Society of Environmental Journalists has joined 28 other news media organizations, led by the Reporters Committee for Freedom of the Press, in filing an amicus curiae brief in August supporting FOIA disclosure of the requested documents. 

Another group engaged in the case includes the American Civil Liberties Union. Plus, find more documents on the case itself.

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Joseph A. Davis is a freelance writer/editor in Washington, D.C. who has been writing about the environment since 1976. He writes SEJournal Online's TipSheet, Reporter's Toolbox and Issue Backgrounder, as well as compiling SEJ's weekday news headlines service EJToday. Davis also directs SEJ's Freedom of Information Project and writes the WatchDog opinion column and WatchDog Alert.

* From the weekly news magazine SEJournal Online, Vol. 5, No. 38. Content from each new issue of SEJournal Online is available to the public via the SEJournal Online main page. Subscribe to the e-newsletter here. And see past issues of the SEJournal archived here.

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