How would you feel if your opposing counsel in a lawsuit was also running continuing education classes for the judge in the case, and was doing so on your dime? That’s essentially what is happening right now in environmental litigation.
Last summer I detailed how the Climate Judiciary Project (CJP)—an operation of the left-wing Environmental Law Institute (ELI)—has been working to capture the federal bench under the guise of judicial “education.” This would be bad enough if the Federal Judicial Center (FJC) were just another liberal activist organization trying to indoctrinate the judiciary. But this is a governmental organization that receives tens of millions of tax dollars annually that is giving its seal of approval to radical environmentalists.
The House Judiciary Committee recently announced an investigation into ELI and CJP over its “improper attempts . . . to influence federal judges.” And despite the Climate Judiciary Project’s alarming ties to leftwing dark money groups, the FJC, the judiciary’s purportedly neutral research arm, chose to partner with CJP—a harbinger of the agency’s deteriorating impartiality.
This problem first came to public attention in 2019 after D.C. Circuit Judge Raymond Randolph raised his concern internally about the propriety of this activity, only to have Judge Emmett Sullivan of the D.C. district court react with an outrageous ethics inquiry aimed at Randolph. As Michael Fragoso explained here more recently, Randolph was right all along.
The FJC recently published a new edition of its Reference Manual on Scientific Evidence, which is supposed to be a neutral guide for judges navigating complicated cases. But, as Fox News has reported, this document instead reads as if it were effectively outsourced to the climate litigation lobby. Perhaps that’s because it was.
From the authors and advisors to the scientists the manual cites, the manual reads like a who’s who of the environmentalist movement.
Take co-author Jessica Wentz. She is a climate activist involved with the CJP who works hand-in-glove with environmental groups suing the energy industry. Should someone actively involved in environmental litigation be helping “educate” judges on the topic?
Some of her greatest hits include:
- Supporting a Greenpeace complaint accusing oil and gas companies of human rights violations due to climate change
- Signing an amicus brief opposing the claims of numerous states seeking relief from the Obama EPA’s aggressive carbon regulations
- Testifying for plaintiffs in the notorious Juliana v. United States case, in which youth activists accused the U.S. government of violating their constitutional rights by failing to implement their preferred climate policies
That is hardly the work of an unbiased expert.
Michael Weisberg, a co-author of the science section of the guide, is a self-described socialist. He connects “opposition to science” to “political affiliation or religious identity.” So if you are conservative or religious, your skepticism is illegitimate. Weisberg also serves as an advisor to a number of foreign countries pushing for climate reparations. Yet another co-author, Anastasia Thanukos, has likened accommodating creationist views to teaching flat-earth theory.
The references in the guide also illustrate its activist perspective. Consider one of the authors the manual cites, Michael Mann, the disgraced climate “scientist.” Calling him an “activist” would probably be more accurate. This is the same Michael Mann who resigned as vice provost at the University of Pennsylvania after comparing the murdered Charlie Kirk to a member of the Hitler Youth, and who previously suggested Americans might enter armed revolt against Trump administration policies. The manual references Mann’s book The New Climate War: The Fight to Take Back our Planet to support claims that energy companies are trying to deceive the public. Poisoning the well, anyone?
The list of advisors who helped with the manual further betrays its partisan slant. It includes Jennifer Eberhardt, who partnered with Kamala Harris on establishing “implicit bias” training for law enforcement, another instance of the attempted leftist takeover of governmental institutions. Advisor Lynn Goldman is a former Clinton administration official with close ties to dark-money environmental groups. She is an outspoken critic of Supreme Court rulings upholding deregulation by the EPA and a member of the board of trustees of the Environmental Defense Fund, a leading left-wing green group and a major spender in support of Democratic political candidates.
The content of the manual is about what you’d expect given the people involved in its production. It presents a one-sided view of environmental science and presents legal standards for causation that benefit trial lawyers in environmental litigation. The document repeatedly takes at face value the highly questionable methodology of attribution science, which attempts to link specific weather events to climate change.
The How Science Works section of the manual instructs judges to defer to the “consensus” views of the scientific community—code for the academic left’s echo chamber. The authors dismiss any viewpoints at odds with those it presents as industry-led “strategic manipulation,” including in debates about climate change. They warn judges that “much evidence suggests that funding source is correlated with study outcome” but only apply this principle to industry-backed research, not to the billions of dollars flowing from left-wing foundations.
The manual embraces society’s “changing norms” as a driving force of science, alongside scientists’ “unique backgrounds and motivations.” That sounds like leftspeak, and it is not surprising that woke ideology is infused into the manual. Its content includes support for “equitable inclusion” and notes that science is better off “when scientists represent the diversity of the societies in which science is embedded.”
The document’s epidemiology guidance reads like an environmental lawyer’s wish list, emphasizing causation standard exceptions that benefit mass tort suits. For instance, the guide goes out of its way to encourage exceptions to the standard many courts have embraced that a study cited as evidence of causation should show “that exposure to the agent causes an incidence in the exposed group more than twice the incidence in the unexposed group.”
So what can be done about this attempted left-wing indoctrination of federal judges? Congress has several options.
First, money talks. There are pending appropriations bills that would fund the FJC with about $35 million. (A House appropriations bill that recently passed allocates $35,121,000 to the FJC. The related Senate bill, which has not passed, provides for $34,929,000.) That does not include the private funding of the FJC. There is no reason another dime of taxpayer money should go to fund partisan propaganda presented as a neutral resource.
Congress also has oversight authority, and it is good to see the House Judiciary Committee begin its investigation of the FJC’s partnership with climate activists. The FJC must be made to explain how this manual made it through review, withdraw it, and sever its connections with the CJP.
This “reference manual” is just part of a broader judicial capture scheme that afflicts the CJP. The Left can’t get the legislation it wants from elected representatives, so they are attempting to reshape the judiciary through dark money-funded programs that reach nearly 2,000 judges and embedding activists into judiciary reference materials.
Congress must act. The climate lawfare crowd will pursue every avenue to tilt the judiciary in their favor. It is time we are as determined in defending judicial independence as they are in dismantling it. The integrity of our nation’s courts depends on it.