OPINION:
As Virginia’s attorney general and later governor, I spent years defending our legal system. I know the rule of law depends on judges making decisions based on facts, evidence and law, not advocacy disguised as expertise.
That is why the Federal Judicial Center’s withdrawal of the climate science chapter from its Reference Manual on Scientific Evidence was an important first step.
The FJC exists to provide judges with objective guidance, not ideological arguments. By withdrawing the chapter, the FJC acknowledged that it failed to meet that standard. Unfortunately, the job remains unfinished.
Yet the National Academies of Sciences, Engineering, and Medicine, which co-publishes the FJC’s reference manual, continues to host the withdrawn chapter on its website. Judges, law clerks and lawyers can still rely on documents that former Attorney General William Barr described as biased, conceived and executed by interested parties.
That should concern anyone who values an impartial judiciary.
The FJC’s manual carries enormous influence in the judiciary. When judges confront complex scientific issues, they often rely on it as a trusted resource. There should be confidence that the contents were developed free from advocacy or conflicts of interest.
Yet the climate chapter appears to have been written and reviewed by individuals with direct interests in the litigation that judges are being asked to decide.
The chapter’s principal authors, Jessica Wentz and Radley Horton of Columbia University’s Sabin Center for Climate Change Law, have supported climate litigation against energy companies through amicus briefs and advocacy.
The chapter’s acknowledgments thank Michael Burger — the Sabin Center’s executive director and of counsel to Sher Edling LLP, the law firm behind many climate-damage lawsuits — whose contributions are alleged to have gone well beyond mere review.
That relationship should have raised serious questions about the chapter’s objectivity.
New analysis by the Oversight Project raises additional concerns. Using plagiarism-detection software, researchers found that nearly one-quarter of the National Academies’ climate chapter matches Mr. Burger’s earlier academic work on climate attribution litigation, with overlap rising to nearly half in the sections most relevant to climate litigation.
Yet readers are never informed that the reviewer whose work was likely incorporated into the chapter is also helping prosecute cases judges may hear.
The funding behind the chapter raises further concerns. The Gordon and Betty Moore Foundation helped finance the current edition of the Reference Manual after previously contributing $100,000 to the Collective Action Fund (managed by the Resources Legacy Fund) — a pooled donor fund that a joint congressional investigation revealed has funneled millions of dollars directly to Sher Edling LLP to sustain its climate litigation.
Intentional or not, the appearance is unmistakable: Organizations supporting one side of active litigation helped finance a judicial guide written and reviewed by advocates advancing that same strategy.
The withdrawn chapter also compounds the problem by presenting contested scientific questions as settled fact. Nowhere is that clearer than in its treatment of “attribution science,” the methodology plaintiffs used to connect specific weather events to greenhouse gas emissions from individual companies.
Scientists continue to debate the reliability and limits of attribution science. Yet the chapter largely presents the methodology as established while minimizing important caveats.
Climate scientist Roger Pielke Jr. has documented how the chapter attributes conclusions to the Intergovernmental Panel on Climate Change that the organization itself never made. The chapter suggests that the IPCC expressed “high confidence” in extreme-event attribution.
The underlying report says no such thing. Instead, the IPCC discusses confidence in changes in weather and climate extremes generally, while acknowledging that the usefulness of attribution methods remains debated.
None of this means that climate science should be excluded from judicial reference materials. As climate litigation expands, judges need reliable technical resources. Those resources must be genuinely objective. They cannot be written by advocates with financial or professional interests in pending litigation while presenting disputed theories as settled facts.
The Supreme Court will hear another climate liability case, and dozens of additional cases remain pending across federal and state courts. The integrity of those proceedings depends on judges evaluating evidence through the adversarial process — not through outside materials that effectively endorse one side’s legal arguments before testimony is ever presented.
The FJC recognized the problem when it withdrew the climate change chapter from the Reference Manual. The National Academies should do the same. If it refuses, Congress should examine whether a document carrying the imprimatur of the federal judiciary still serves its intended purpose.
The reference manual was created to help judges fulfill their obligation under Daubert v. Merrell Dow Pharmaceuticals Inc. to carefully evaluate expert testimony. It should never become a vehicle for climate litigants to shape the standards by which their own evidence will be judged.
Our courts deserve impartial science, and the American people deserve confidence that justice is administered fairly. Anything less weakens both.
• James S. Gilmore III was the 68th governor of Virginia and attorney general of Virginia. He served as United States ambassador to the Organization for Security and Co-operation in Europe from 2019 to 2021.
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