A Win for Climate Science: Judge Rules in Favor of NOAA Researchers

September 7, 2017

Lauren Kurtz for Climate Science Legal Defense Fund:

In January 2017, CSLDF filed a brief asking the federal District Court for the District of Columbia to protect National Oceanic and Atmospheric Administration (NOAA) climate scientists. On August 21, the D.C. court upheld NOAA’s decision not to release its climate scientists’ research documents to the conservative group Judicial Watch.

In the case, Judicial Watch sought to use the Freedom of Information Act (FOIA), which allows U.S. citizens to request copies of government documents, to obtain NOAA scientists’ emails, drafts, and peer review comments related to a June 2015 paper published in Science. The study, which is also known as the “Hiatus Paper,” found that recent ocean surface temperature increases were greater than those indicated by other peer-reviewed studies, thus refuting the idea of a “pause” in global warming.

The scientists’ findings did not sit well with Judicial Watch, which doesn’t agree with the science of climate change. Judicial Watch sued for the NOAA scientist’s documents; the organization’s president claimed that the requested materials “will show that the Obama administration put politics before science to advance global warming alarmism.”

NOAA produced some of the documents Judicial Watch requested, but withheld others, arguing that the “deliberative process privilege” protected these documents. The deliberative process privilege allows for the denial of a FOIA request if it can be shown the requested government documents involve materials that are “predecisional,” meaning written as part of the decision-making process, and “deliberative,” meaning involving consultative give-and-take. The rationale for this privilege is to safeguard preliminary documents that, if released, could prevent candid collaboration and open discussions among agency employees.

NOAA argued the privilege exists to protect the sort of deliberative materials that are the heart of the scientific process. “In pursuing a research objective, scientists may begin with only a rough idea, and then develop, test, and revise that idea as data is collected and interpreted. Possible interpretations are generated and tested in part through candid debates and exchanges among peers. Indeed, the exchange and debate among peers is the mechanism that allows NOAA to ensure its scientific products are robustly developed and accurately tested.”

Judicial Watch claimed that the deliberative process privilege could not be applied to scientific materials, but the district court sided with NOAA, concluding that both the case law in the D.C. Circuit, as well as the facts of the case, showed that “drafts of the Hiatus Paper, internal deliberations, and peer reviewer comments thus fall within the scope of [FOIA] Exemption 5,” which includes the deliberative process privilege.

The district court also dismissed Judicial Watch’s claim that a February 2017 article in The Mail on Sunday showed potential wrongdoing by the NOAA scientists and should, therefore, overrule the deliberative process privilege. In the article, a former NOAA employee asserted that certain data archiving protocols had not been completed for the Hiatus Paper; the court said Judicial Watch “cites to a single article in a British tabloid reporting, based on a former employee’s allegation” which “does not meet th[e] narrow standard” necessary to show “nefarious government misconduct.”

This case is part of a larger trend where groups that dispute the scientific consensus on climate change attempt to use FOIA or state open records laws to access publicly funded climate scientists’ private correspondence, including similar cases in Arizona (currently on appeal) and Virginia.

Hostile groups have also targeted researchers in other fields – from biomedical researchers to environmental health scientists – under open records laws. In light of these abuses, many jurisdictions have begun instituting protections for scientific research under open records laws, including most recently Rhode Island (effective June 27, 2017) and North Dakota (effective August 1, 2017).

Under the Federal Rules of Civil Procedure, Judicial Watch has 30 days to appeal the district court’s decision.

Below, Zeke and others explain temperature adjustments in more depth.

Scientific American:

Various studies have debunked the idea of a pause, or hiatus, in global warming—the contention that global surface temperatures stopped rising during the first decade of this century. The arguments for and against “the pause” were somewhat muted until June 2015, when scientists at the National Oceanic and Atmospheric Administration published a paper in Science saying that it had slightly revised the sea surface temperatures it had been citing for the 1900s. The measurement methods, based on sensors in the engine intake ports of ships, had been flawed, NOAA said. The revised methodology also meant that sea surface temperatures during the 2000s had been slightly higher than reported. NOAA adjusted both records, which led to a conclusion that global surface temperatures during the 2000s were indeed higher than they had been in previous decades. No hiatus.

Critics attacked NOAA, claiming it had cooked the books to dismiss claims of a pause. Republican Rep. Lamar Smith of Texas opened a congressional investigation of NOAA scientists, including demands that they turn over their emails, which they have not.

Now independent scientists have weighed in. A study published Wednesday in Science Advances shows that the adjustments NOAA made were justified. A team led by Zeke Hausfather at the University of California at Berkeley and Kevin Cowtan at the University of York analyzed raw data from buoys, satellites and robotic sensors around the world’s oceans. They concluded that the old methods had indeed overestimated sea surface temperatures in the past—but that the newer calculations had underestimated temperatures for the 2000s.

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4 Responses to “A Win for Climate Science: Judge Rules in Favor of NOAA Researchers”

  1. Gingerbaker Says:

    Judicial Watch is the festering nuisance offspring of Larry Klayman, arguably the most stupid man ever to receive a law degree.

    https://www.splcenter.org/fighting-hate/extremist-files/individual/larry-klayman

    • Jim Housman Says:

      I can just imagine the goons coming out of the woodwork as in “Climategate”. I still see zealots commenting on news sites claiming that the CRU memos proved fraud. Even after seven independent investigation proved no wrongdoing. It’s hard for honest people to keep up with the liars.

  2. Lionel Smith Says:

    I still see zealots commenting on news sites claiming that the CRU memos proved fraud.

    Indeed, just such an example came from Dave Burton recently below the article linked next, caution wear a padded helmet and pad around your computer equipment as you may be tempted to do some head banging: Michael Mann Did Not Sabotage His Law Suit, But Deniers Are Sabotaging The Planet.

    Burton will not like this message here either as it runs counter to his sea level rise misunderstanding.


    • Seems I’m not the only guy living rent-free in Crockers’ minds. Good thing Burton is banned from commenting here, yes? Oops, shouldn’t have said that, it’ll only send “dumboldguy” deeper into his conspiracy theory about a Treadstone-like ( https://www.youtube.com/watch?v=tbpO3_g_XJc&t=155 ) denier hit squad conspiracy.

      Funny irony about Greg Laden. “If you are a blogger and they comment on your blog, you need not be intimidated by screechy references to the ‘First Amendment’ … just delete their blaterhing [sic] or change their links to point to the web site of the Spam Museum, a major Minnesota Attraction.” ( http://scienceblogs.com/gregladen/2011/06/28/why-is-anthropogenic-global-wa/ ). At one of his HuffPo articles, I linked to his blog bit there and it was subsequently deleted. But that’s not where the irony ends. The mere fact that I read Crocks material and read Laden’s material flies in the face of you guys routinely telling each other not to read skeptic material, or to wear protective gear if you do read it. What are you actually afraid of? It must really get under your skin when our side goes straight into enemy territory with no fear. Btw, did you notice how Jeff Harvey, “BBD” and “Wow” at Laden’s comment section felt obliged to hurl the “corrupted by the FF industry” ….. while failing to directly show – or even indirectly for that matter – evidence proving a pay-for-performance arrangement exists between the Idsos and nefarious industry people? No matter where you go in that accusation, there you are, staring into the abyss of the challenge to show the world an exchange of money in return for agreed-upon lies.


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