Facing Lawsuits, Team Trump has Dissolved its "Climate Working Group"; Its Climate Science Critique May be Next
Updates coming
Many updates - Tuesday night, Politico Pro’s Zack Coleman broke the news that the Trump administration on September 3 officially dissolved the Department of Energy’s “Climate Working Group.” This is the five-scientist team Secretary of Energy Chris Wright hand picked to undertake what his department called a “critical assessment of the conventional narrative on climate change” and to support Trump’s effort to overturn the Environmental Protection Agency’s finding that CO2 endangers public health and welfare and deserves regulation.
It seems quite clear from the Energy Department court filing at the heart of Coleman’s story that this Trump-administration step was aimed at rendering moot key allegations in a lawsuit filed by environmentalists. As Coleman wrote:
The Environmental Defense Fund and Union of Concerned Scientists said in their lawsuit that DOE's Climate Working Group flouted the Federal Advisory Committee Act because DOE did not issue a public notice for its meetings or attempt to balance the points of view as required. But the department in a Thursday filing in the U.S. District Court for Massachusetts said those points are "now moot" because it shuttered the group.
“The rule of law is not a game of catch me if you can”
IMPORTANT insert, 9/10, 4:35 p.m. - There is a hearing on the lawsuit in the U.S. District Court for the District of Massachusetts scheduled for 2 p.m. Eastern on Thursday. You can sign up to listen to the hearing here.
The lawsuit plaintiffs, the Union of Concerned Scientists and Environmental Defense Fund, filed their response with the U.S. District Court for the District of Massachusetts with this opening section:
For months, Defendants brazenly violated the Federal Advisory Committee Act. They constituted the Climate Working Group (CWG) in secret, had it meet in secret to produce a report with advice and recommendations for policymakers, and then provided the report to EPA in secret for use in a proposal to rescind EPA’s Endangerment Finding. Defendants present no serious argument that they did not violate FACA in taking all of these actions. Instead, when these actions were challenged in court, Defendants purported to dissolve the CWG the day before their opposition was due, and in their filing the next day, they argued that the dissolution mooted the case and left the Court powerless to provide relief for their many legal violations.
But the rule of law is not a game of catch me if you can. DOE, EPA, and the CWG violated FACA with every action they took producing and utilizing the CWG Report, and those unlawful actions continue to harm Plaintiffs in myriad ways. Indeed, Defendants do not dispute that the CWG lacked fairly balanced views—including views representative of those held by Plaintiffs—and was subject to inappropriate influence from Secretary Wright. The continued existence and use of the CWG Report produced with these legal infirmities significantly harms Plaintiffs, and there are multiple forms of declaratory, injunctive and Administrative Procedure Act relief that this Court may enter to redress these injuries.
Here’s the full reply, provided by EDF:
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On Wednesday, Roger Pielke Jr. published a post on these developments that raises important additioinal questions, including:
Could administrative mistakes made in forming the working group result in the withdrawal of the much-discussed climate report altogether?
Does dissolution of the working group as a formal governmental advisory entity mean any responses its authors make to the massive filing of comments will have no formal weight?
Here’s a section of Pielke’s post (he’s updating it off and on so click to keep track), followed by some input I’m receiving from experts in environmental and climate law:
The Department of Energy’s Climate Working Group (CWG) was disbanded on September 3 and its work under DOE will not continue in any manner. Presumably its work product(s) and submitted public comments will all be withdrawn. This will be formally announced shortly….
…Apparently, one of the members of the CWG did not file the paperwork necessary to be considered internal to DOE, thus legitimizing the UCS/EDF lawsuit. Given this, on the merits, UCS/EDF were correct and would likely have prevailed. With the stakes so high, DOE was sloppy in not ensuring that the CWG was procedurally air tight.
He stressed, and I agree, that whatever happens with the legal case, there has been a worthwhile airing of some important climate science questions in this process.
But will this move in fact result in the group’s 150-page report and the thousands of submitted public comments vanishing, as Pielke predicts?
I reached out to Michael Gerrard, founder and faculty director of the Sabin Center for Climate Change Law at Columbia Law School and he gave this initial (emphasis on initial) response:
No, I don't think the report now has to be withdrawn. If it were withdrawn, the proposal to revoke the Endangerment Finding would have to restart, since it was based so heavily on that report.
However, as part of the rulemaking process for the revocation of the endangerment finding, EPA will need to respond in detail to the multiple technical comments on the DOE report. Ordinarily the authors of a report would be asked to respond, or help respond, to technical comments on their report. It's peculiar that the group that prepared the report is being disbanded. I wonder if DOE will continue to pay these individuals for their work even if the group has been formally resolved in an effort to get out of the EDF/UCS lawsuit.
INSERT, 2:45 pm ET -
Jody Freeman, a Harvard law school professor with deep expertise in environmental administrative law, said this (noting she has not dug deeply yet):
I don’t know of any FACA provision that requires work product be withdrawn just because a group disbands. That wouldn’t make a lot of sense…groups disband when work is done presumably.
It’s a different argument to say that the working group didn’t comply with FACA so its product is not somehow authorized or legitimate and shouldn’t be relied upon.
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I’ve also reached out to the authors of the report. Judith Curry, one of the five authors, sent this initial reply:
The Climate Working Group is still working and we plan to respond to comments and issue a revised report.
But this begs yet another question. Given that the working group has been officially disbanded, it's hard to see how any resulting responses or revisions will have standing in formal processes like endangerment arguments or rulemaking.
I just sent this as a question to the working group members and will add any input here, along with other updates as they come in and as time allows.
All of this is evidence that whatever harms come from global warming, one sector of society will be flourishing for decades to come: environmental lawyers.
Here’s Roger’s post:
Here’s my conversation with three authors of the 85-plus climate-scientist critique of the Department of Energy report:
Here’s my first post on this climate report saga:
AVOIDING ENGAGEMENT AGAIN! The DOE Climate Working Group is shuttered.
Once again, climate science and energy policy discussion is avoided. The DOE Climate Working Group of five scientists violated the Federal Advisory Committee Act on procedural grounds and is disbanded. This is a political victory for the “consensus view”, and politics continues to dominate understandings and claims about both the science and the policy decisions. I'm upset that another opportunity to carefully consider the minority view of the CWG scientists is avoided, and what remains is mostly ad hominem and worse, such as Andrew Dessler's extremely unhelpful- "It's bullshit". I used Dessler's "Introduction to Modern Climate Change" when I taught climate science. There is nothing in the CWG report that contradicts the climate science elucidation in his textbook. What this amounts to, IMO, is another setback for climate science and for energy policy discussion.