Congressional Republicans have turned their sights in recent months on a liberal nonprofit called the Environmental Law Institute (ELI). In particular, Ted Cruz in the Senate and Jim Jordan, Darrell Issa, and Wesley Hunt in the House have been interested in an ELI program called the Climate Judiciary Project (CJP). Senator Cruz held a hearing in the early summer that shed some light on the CJP’s activities, while Chairmen Jordan and Issa are conducting an investigation of it.
The concern is that the CJP exists to secretly convince state and federal judges to subscribe to the theories of environmentalist plaintiffs’ lawyers as they sue energy companies for their supposed contributions to climate change.
A quick skim of the materials that the CJP presents to judges makes it clear what their game is. They tell judges they can take judicial notice of disputed climate evidence. They compare climate litigation to tobacco or opioid litigation. They even lobby for the so-called attribution theory, which is how plaintiffs and liberals purport to show that oil and gas companies “caused” supposed climate change. In other words, they have secreted off over 2,000 judges to indoctrinate them in their partisan legal theories.
The man who saw all this coming was Judge Raymond Randolph of the D.C. Circuit. A George H. W. Bush appointee and lion of the bench, Judge Randolph — one day in 2019 — received an email from D.C. District Judge Emmett Sullivan (of Michael Flynn fame) forwarding an invitation for his colleagues to attend an event hosted by the ELI to “meet judges’ need for basic familiarity with climate science concepts.” Supposedly the event was held in conjunction with both the American Association for the Advancement of Science and the Federal Judicial Center (FJC). In what was an early activity of the CJP — as explained in the ELI’s 2019 annual report — the invitation made it clear that the goal was “to institutionalize the program through existing judicial education structures and to present seminars on an ongoing basis across the State and Federal Courts.”
Well, Judge Randolph wasn’t having it. He asked, “What is your purpose in subjecting our colleagues to this nonsense?” He observed that the supposed “science and stuff” being promoted by the ELI was “nothing of the sort” and ended by musing — as the former chairman of the judiciary’s ethics committee — whether Judge Sullivan’s sending the email was a reportable offense.
Of course Judge Sullivan’s liberal defenders got his back and did what the ELI has gone on to do: claim that the CJP programming is beyond reproach because it has the imprimatur of the chief justice himself. Later Judge Randolph apologized to his colleagues after hearing from the head of the FJC and his colleague, Judge David Tatel, and determining that the ELI programming was still probably improper but that the FJC was acting in good faith. Why the programming was improper was laid out in a memo he sent to a colleague, explaining that it would “lend credence to one side of the climate change debate that is quite improper” given the pending litigation on the subject.
He was right. Judge Randolph had nothing to apologize for, and his conclusions about the ELI were not only correct but prescient.
(Scandalously, it came out later that Judge Sullivan had made an ethics inquiry about Judge Randolph to the Judiciary’s Codes of Conduct Committee about whether Judge Randolph should be recused from hearing appeals from Sullivan’s court. This is outrageous for a number of reasons: for one thing, the Codes of Conduct Committee responds to judges’ requests about their own conduct, not others’; for another, for a trial-court judge to do this to a circuit judge is the judicial equivalent of tattling to Teacher.)
It also turned out that not long after this, Judge Randolph recused from a Trump-era emissions-standards case. The “ethics experts,” of course, said it was the right thing to do because Judge Randolph’s views on global warming had supposedly become “public.”
This was obviously nonsense. The gravamen of Judge Randolph’s objection to the CJP was that contested litigation positions were being presented as “scientific facts” to the judges who would be sitting in judgment of those very positions. That’s obviously inappropriate and only in the topsy-turvy world of the judicial bureaucracy could pointing out the ethics problem get you in ethics trouble yourself.
The fact is that the more we have learned about the CJP in recent years, the clearer it is that Judge Randolph was entirely correct in his assessment. In the last month, for example, it came out that a climate plaintiff had access to draft CJP education materials — strongly implying that, contrary to the CJP’s assertions, they work with climate plaintiffs in crafting their programming. As Representatives Jordan, Issa, and Hunt observed in their letter to the ELI, “Public reports have documented concerns around apparent efforts by [the ELI] to influence judges who potentially may be presiding over lawsuits related to alleged climate change. These efforts appear to have the underlying goal of predisposing federal and state judges in favor of plaintiffs alleging injuries from the manufacturing, marketing, or sale of fossil-fuel products.”
Not only was Judge Randolph right, but his shoddy treatment shows a fundamental problem in how judicial ethics are discussed. Promote the improper, ex parte climate lobbying effort and you’re in the clear — you’re even supported by the FJC! Point out that it’s improper, and suddenly you’re the one who isn’t impartial on climate issues. Heads, the climate radicals win; tails, the sensible judges lose.
It’s therefore welcome that Congress is investigating the ELI and getting to the bottom of this influence operation on the national judiciary. One hopes they might even expand their aperture to include the FJC. Surely the chief justice doesn’t actually approve of this ridiculous behavior being done in his name. The FJC even has a new director, Judge Robin Rosenberg; maybe she has thoughts.
As Senator Cruz and Chairmen Jordan and Issa do their important work, though, it’s good to remember that Judge Randolph got there first.