DemocRAT's Global Butt-Warming Hoax - DemocRATs Caught Lying, Again - Oops. Judge May Sanction White House Office of Science Over Bogus Climate Video

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Judge May Sanction White House Office of Science Over Bogus Climate
Video
Mar 24, 2016

Editor’s Note: Last week we published an article which reported that
U.S. District Judge Amit Mehta ruled the White House Office of Science
& Technology Policy (OSTP) had turn over to the Competitive
Enterprise Institute (CEI) the documents behind a video the OSTP
produced at taxpayer expense. The video included as true claims that
the polar vortex was a result of global warming which had already been
rejected as false in peer reviewed journals. CEI sent OSTP the journal
studies and asked for a retraction. When the OSTP rejected their
retraction request, CEI filed a Freedom of Information Act suit to
learn how the White House agency came up with their bogus information.

Now to follow up that story… apparently the OSTP tried to hide some of
the information (or failed to conduct a proper search for it) and the
Judge was not pleased. The story below is reproduced from the CEI
site

Written by Hans Bader

Judges don’t like it when someone makes a claim that turns out not to
be true in order to get a lawsuit dismissed, such as by claiming
records don’t exist when they do. The White House Office of Science
and Technology Policy (OSTP) failed to disclose the existence of some
records in response to a Freedom of Information Act request until
after a federal judge had already ruled in the case. When the judge
found out, he issued an Order to Show Cause yesterday asking OSTP to
explain why the Court should not impose sanctions on it, or permit
discovery against it.

CEI had sought drafts of OSTP’s letter denying CEI’s request for
correction of inaccurate claims that global warming causes winter cold
spells (which violated the Information Quality Act, according to CEI).
When OSTP did not produce them, CEI brought a Freedom of Information
Act lawsuit in 2014 seeking the drafts.

OSTP claimed in its first brief in January 2015 that it properly
withheld such drafts as privileged, since they had not been shared
with people outside the agency, which would waive any privilege. Then,
in March 2015, it admitted this claim was inaccurate, conceding in its
reply brief that one draft had been shared with a person outside the
agency (Rutgers Professor Jennifer Francis). But it claimed that this
was the only example of a draft shared with someone outside the
agency, and that even this draft remained privileged because Francis
was functionally more like a neutral agency consultant than an
outsider.

The judge accepted the agency’s contention that this was the only
shared draft, and denied CEI’s request for discovery based on the
agency’s curious belated disclosure of the draft’s existence in a
ruling on February 10, 2016.

But he ordered the draft shared with Professor Francis released
because sharing it with her, a non-agency employee with a strong
personal interest in the dispute, prevented the draft from being just
an “intra-agency” communication that could qualify for privilege under
FOIA’s deliberative process exemption (5 U.S.C. § 552(b)(5)). (He
distinguished Francis from neutral, unbiased agency consultants who
can be a party to privileged communications under the “consultant
corollary” to FOIA’s (b)(5) exemption for deliberative process
privilege.)

But the agency’s claim that this was the only shared draft turned out
to be false, as OSTP’s counsel admitted when it finally released the
draft shared with Francis on March 4. In a cover letter enclosing the
draft, OSTP’s counsel also enclosed a draft shared with University of
Michigan Professor Rosina Bierbaum (sharing which waived any privilege
to keep the draft secret) and OSTP employee Peter Huybers.

In a March 4 letter enclosing both drafts, and unredacted versions of
emails among White House and NASA employees about a video in which
OSTP Director John Holdren claimed that global warming likely causes
winter cold waves (previously discussed at this link), OSTP’s counsel
wrote:

In the process of preparing . . . records in response to the Court’s
decision, OSTP learned that Dr. Holdren sent to two other individuals
the same five pages he sent to Dr. Francis; those individuals were:
(1) Rosina Bierbaum, a professor and former dean at the University of
Michigan School of Natural Resources and Environment; and (2) Peter
Huybers, at the time a Senior Science Analyst at OSTP. Dr. Holdren has
no recollection of receiving a response from Dr. Bierbaum, and no
response from her was located in a search of his records. Dr. Huybers,
by contrast, returned the draft with edits and comments.

This letter was not provided to the court, only to CEI, but the judge
became aware of it nonetheless. (The letter was linked to in my prior
blog post on March 19 and March 22, and in a widely read blog post by
a third party that reproduced my blog post virtually in its entirety
at Jeff Dunetz’s The Lid.)

Upon learning of this belated revelation, the judge was apparently
quite displeased.

In yesterday’s ruling, Judge Amit Mehta wrote:

It has come to the court’s attention that by letter dated March 4,
2016 . . . Defendant Office of Science and Technology Policy (OSTP)
provided to Plaintiff Competitive Enterprise Institute (CEI) the
documents the court ordered disclosed . . . .The March 4 Letter also
indicates that, in the course of preparing documents for disclosure,
OSTP located two other drafts of the Holdren Letter, including one
sent outside the agency to a professor at the University of Michigan
School of Natural Resources and Environment.

In its Memorandum Opinion, the court denied Plaintiff’s request for
discovery on the ground that Plaintiff had not demonstrated bad faith
on the part of OSTP in conducting a reasonable search for documents. .
. .The court also found that Plaintiff had not “shown through evidence
that there is a factual dispute about the existence of other drafts
that were shared outside the Executive Branch.” . . .

In light of OSTP’s admission in the March 4 Letter that it has
discovered at least one additional draft of the Holdren Letter
circulated outside the Executive Branch, OSTP is hereby ordered to
show cause why, the court should not reconsider its denial of
discovery in this case and/or impose other appropriate sanctions. OSTP
is directed to respond to this Order to Show Cause on or before April
6, 2016.

The belatedly disclosed draft shared with Professor Bierbaum and Dr.
Huybers contains three comments by Dr. Huybers. Huybers noted, among
other things, that “the relative contribution from several different
potential mechanisms [of Arctic amplification] remains a topic of
debate,” and he argued that “there is generally more evidence and
theoretical grounds for a showing of the westerlies in relation to
Arctic amplification than for an increase in the meridional amplitude
or meanders.”

The draft is the last document found in the March 4 release, which is
available, beneath a cover letter, at this link.

This FOIA lawsuit arose out of a controversial video posted on the
White House web site claiming that global warming causes more severe
winter cold. It featured the director of the OSTP, John Holdren,
claiming that a “growing body of evidence” showed that the “extreme
cold being experienced by much of the United States” that winter would
occur “with increasing frequency as global warming continues.” This
claim was questioned by scientists. (See, e.g., Jason Samenow,
Scientists: Don’t make “extreme cold” centerpiece of global warming
argument, Washington Post, Feb. 20, 2014 (citing the objection by five
well-known climate scientists in Science magazine); Patrick J.
Michaels, Hot Air About Cold Air, Jan. 16, 2014 (former state
climatologist rejects Holdren’s claim).)

After CEI sent a request for correction of this statement, OSTP
rejected this request, claiming that Holdren’s statement was his
“personal opinion,” and that it thus did not constitute agency
“information” subject to the Information Quality Act, which excludes
“subjective opinions” from its reach.

Reproduced with permission from the Competitive Enterprise Institute

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