Federal judicial manual contains climate-advocacy materials biasing judges, coalition of AGs says

A coalition of 27 Republican attorneys general is joining a growing chorus of criticism over climate activists providing one-sided material to judges that’s presented as an impartial scientific resource to train the judges in climate science. 

The coalition, which is led by West Virginia Attorney General JB McCuskey, is demanding that material dealing with climate science be removed from a manual that’s utilized by thousands of federal judges and published by a federal agency. The coalition members argue the material is ideologically biased in favor of plaintiffs suing energy companies over climate change. 

Reference manual 

The Federal Judicial Center, an educational and research agency for the federal courts, publishes the “Reference Manual on Science.” In a letter to the FJC, the attorneys general argue that the material on climate science isn’t adhering to the FJC’s purpose of the manual, which is to “describe the basic principles of major scientific fields” without instructing judges about what “evidence should be admissible.” 

Instead of addressing undisputed scientific principles, the letter states, the material is predisposed toward one side of many debated questions concerning the science of climate change and the attribution of extreme weather to global warming. 

The FJC provides the manual to over 3,000 judges, and it’s been cited in over 1,700 opinions. The Supreme Court has also cited the manual multiple times to explain principles in science and math, and all this makes neutrality of the manual vital, the letter argues. 

The issues the coalition raises in its letter are similar to the criticisms of the Environmental Law Institute’s Climate Judiciary Project. The project has provided training to thousands of judges and while the institute insists its training is impartial, the materials presented in the training exclude perspectives that would be favorable to defendants in climate cases. 

Selection of authors

Among the issues raised in the letter is the selection of authors for the material on climate science. They include Jessica Wentz and Radley Horton, each connected with climate studies programs at Columbia University. They co-authored a paper that advocates for litigation as a means to advance climate policy, which hasn’t been successful through legislative bodies. 

The authors state that the “political sphere in the United States continues to be clouded with false debates over the validity of climate science. The issue appears far clearer in the courtroom, where to our knowledge no judge has questioned the scientific basis for the global community’s shared understanding of the causes and effects of climate change.” 

Contrary to the assertion of the authors, climate science is full of uncertainties and nuance, especially when it comes to the impacts of carbon dioxide emissions on extreme weather. 

Lawyered-up research

Wentz and Horton authored the paper with Michael Burger, who is counsel for the city of Honolulu in its ongoing litigation against energy companies, seeking damages it alleges the companies have caused. 

Burger is also of counsel with the law firm Sher Edling. The House Committee on Oversight and Accountability in 2023 launched an investigation into the firm, seeking more information on the “wealthy liberals” who are funding the lawsuits “aimed at bankrupting oil and gas companies.” 

In the firm's response, it argues that bankrupting the companies wouldn’t be in their interest, since the companies wouldn’t be able to pay the settlements. The firm also argued that its clients are not seeking damages for all the effects of climate change, only the ones caused by the companies’ alleged deception.

Burger’s work is cited four times in sections addressing climate litigation frameworks, attribution of responsibility, judicial treatment of climate science and the role of the courts in addressing alleged climate harms. 

At no time does the manual disclose that the cited material comes from a lawyer involved in litigation that would benefit from the perspectives being presented, nor does it disclose his association with a law firm that’s spearheading a nationwide climate litigation campaign.

The materials also cite research from climatologist and geophysicist Michael Mann, who was recently ordered to pay two bloggers $28,000. Mann had sued the bloggers for defamation, and a jury originally awarded him $1 million. A D.C. judge lowered the amount and later ordered Mann to pay the bloggers over what the judge said was “bad faith litigation tactics” during the trial. 

Excluding perspectives 

The letter argues that Wentz and Horton did not consult with any experts who might take a viewpoint that challenges their own. The coalition points to the climate researchers who authored a Department of Energy climate assessment last year. 

Energy Secretary Chris Wright had specifically commissioned the report with the authors because they were usually excluded from official climate assessments, which has given the misleading impression that a “consensus” exists toward the most alarming findings in climate research. Despite being well credentialed in their fields and having years of experience in climate research, none of the researchers’ work is cited in the FJC manual. 

“Thus, one side’s view becomes the baseline for all future judicial decisions on the subject,” the coalition states. 

Carrie Severino, president of the Judicial Crisis Network, an advocacy group, called the bias in the FJC manuals a “pernicious” effort. 

“This is being laundered effectively through the Federal Judicial Center, which gives it the imprimatur of the federal government. It makes it look like a neutral, purely educational effort, when it's obvious that it's much more of an advocacy effort,” Severino told Just the News. 

She said she’s seen left-wing activists make similar efforts on other issues, but with climate litigation, she said it’s been much more sophisticated. 

“It’s pretty outrageous,” she said. 

Opinions presented as facts

The coalition letter goes on to detail many other instances in which the information in the manual presents disputable positions as having an unchallenged consensus, as well as opinions favorable to climate plaintiffs that are presented as facts. 

“The authors offer unsolicited, ex parte expert opinions on matters that they recognize are directly at issue in ongoing suits. In several places, for instance, the authors dismiss any suggestion that climate science is too speculative or uncertain to justify relief,” the letter states. 

The FJC declined to comment on the coalition’s letter. 

The FJC’s failure to disclose Burger’s involvement in climate litigation has similarities to asbestos trial lawyer Roger Worthington, who is also lead counsel for Multnomah County, Oregon, in its lawsuit against energy companies, which seeks $51 billion in damages the county alleges the companies caused. 

The county received a stern rebuke from a judge for failing to disclose that Worthing was involved in research cited directly and indirectly in support of the county’s case. A pre-print of one of the papers appeared on the website of Worthington & Caron, which Worthington owns. The county denied that Worthington had anything to do with the paper. 

The pre-publication version of the paper also acknowledged the involvement of the Environmental Law Institute, which vanished from the published version. 

Jason Isaac, CEO of the American Energy Institute, which produced a report on the Climate Judiciary Project, said this web of connections between lawyers involved in climate litigation and activists producing research that’s presented as impartial information to judges is “mind boggling.” 

“The climate cult has found its way into our judicial system,” he told Just the News. 

Kevin Killough is the energy reporter for Just The News. You can follow him on X for more coverage.