29 June 2009

Senator Inhofe Takes What is Given

Updated: 30 June 12:50PM, See bottom

In the comments DeepClimate points us to his blog (thanks DC) where he discusses a Fox News article reporting how Senator James Inhofe (R-OK) has ordered an investigation into EPA's handling of the Alan Carlin situation:
A top Republican senator has ordered an investigation into the Environmental Protection Agency's alleged suppression of a report that questioned the science behind global warming.

The 98-page report, co-authored by EPA analyst Alan Carlin, pushed back on the prospect of regulating gases like carbon dioxide as a way to reduce global warming. Carlin's report argued that the information the EPA was using was out of date, and that even as atmospheric carbon dioxide levels have increased, global temperatures have declined.

"He came out with the truth. They don't want the truth at the EPA," Sen. James Inhofe, R-Okla, a global warming skeptic, told FOX News, saying he's ordered an investigation. "We're going to expose it."
Deep Climate, along with Gavin Schmidt and a few of our commenters, seem to think that some combination of the following facts would justify deviating from standard regulatory procedures in a federal agency (and DeepClimate even suggests that Carlin should have been fired long ago by EPA):

1. Alan Carlin is an economist.
2. James Inhofe (R-OK) is reviled among those wanting action on climate change.
3. Carlin's submission is full of nonsense and cribbed marterial from websites written by people with a connection to the fossil fuel industry.
4. FoxNews reported on Inhofe's investigation.

For purposes of discussion, lets posit that all of 1 through 4 are true. Unfortunately for DeepClimate and Gavin Schmidt, they are all irrelevant because in U.S. federal agencies there is no "bogus" clause, no "denier" clause, no "Republican" clause that they can invoke to make arguments they don't like simply go away. Senator Inhofe of course knows this and will exploit the Carlin situation as much as he can, and in the process will give it far, far more attention than it would have received had EPA officials simply decided not to give Carlin's submission special treatment. In fact, I'd argue that it would have never been an issue without the special treatment. Now it can be used to fire up Inhofe's base and keep various dubious arguments in play.

When will folks learn that climate change, as important as it is, does not mean that basic democratic principles and procedures arbitraily get thrown out the door? And from a more crassly political perspective, when will they there is nothing to be gained by "protecting" a process from unwelcome information (especially when that process requires full disclosure), and much to be lost from efforts to defend the indefensible, even if you believe in the righteousness of your cause.

I am sure that from this episode some will blame Senator Inhofe for his efforts to sow opposition to action on climate change, which of course he is doing, but they should also recognize that his job is made a lot easier by his political opponents who served up Carlin on a silver platter.

Update 30 June 12:50

In the comments Jim Bouldin asks about standard regulatory procedures. The image below is from a 1981 book on rulemaking titled "A Blueprint for Regulatory Reform" by P. McGuigan. The relevant court case cited is Ethyl Corp. v. EPA, 541 F.2d 1, 36 (D.C. Cir. 1976), cert. denied, 426 U.S. 941.

19 comments:

Sharon F. said...

what I found most interesting on the link to Deep Climate was "An EPA official told FOXNews.com on Monday that Carlin, who is an economist — not a scientist — " Whoa- when did economics secede from "science"? No one alerted me!
The fact is that professionals from different scientific disciplines participate in "science-slinging" when topics get hot.. as er.. climate change tends to be. Again, the science policy academics published on this tendency a long time ago. Still can't see as to why we can't have a rational fact-based discussion on what EPA should consider as opposed to whether this employee should be able to promulgate his views wherever because in his case, his views are covered by the sacred mantle of "science."

Sylvain said...

"When will folks learn that climate change, as important as it is, does not mean that basic democratic principles and procedures arbitraily get thrown out the door?"

I would be surprise if they ever will, not that this kind of reaction is limited to climate change debate either.

My main skepticism comes from the lack disclosures from many of the climate scientist, added to the condoning to unsupported scaremongering postulated in movie like AIT and the Earth 2100 special on ABC a few weeks ago.

deepclimate said...

Let's make sure all the facts on the table:
- Carlin's report was plagiarized in large part from Pat Michaels' World Climate Report
- Carlin's submission was unsolicited (done on his own initiative with the indulgence of his superiors)
- In the draft version, Carlin attempted to submit his opus as the official comments of the National Center for Environmental Economics branch of the EPA.

How is refusing to give NCEE imprimateur to, or pass onward, an unsolicited, plagiarized, shoddy piece of rambling nonsense "special treatment"? I would say his superiors showed excellent judgment.

I'd be surprised if plagiarism were not a firing offence at NCEE, but perhaps some disagree with that. On the other hand, perhaps Carlin will receive indulgent "special treatment" due to the political sensitivity of the matter and get to keep his job.

Roger Pielke, Jr. said...

-3-deepclimate

Let's accept your statements as facts.

Can you show any evidence in administrative rulemaking laws or policies that would allow agency officials to not pass along material prepared by an agency official? By contrast I cam point to a court case that says the opposite.

Please show that you are not just making up some rules from the seat of your pants and applying them as convenient to fit the situation.

Thanks!

Jim Bouldin said...

"Deep Climate, along with Gavin Schmidt and a few of our commenters, seem to think that some combination of the following facts would justify deviating from standard regulatory procedures in a federal agency..."

You've never described what those "standard regulatory procedures" are at the EPA Roger, so how are you going to determine what departure from them is? What is your evidence that McGartland deviated from anything? You seem to believe anyone has the right to put anything, no matter how ludicrous, into these documents. Well, sorry, but you're wrong.

You complain about making a mountain out of a molehill, but you're contributing to that mountain by continuing to blog about it. Or is it just an excuse to take pot-shots at Gavin Schmidt?

chris said...

Hi Roger,

I don't have full knowledge of this situation, but it seems that Carlin's superiors could have acted in at least a couple of different ways that may have led to less politically damaging outcomes.

One key, though, is that, in general, there doesn't seem to be a very good bureaucratic mechanism for including dissenting/minority opinions in government (or intergovernmental) reports. Carlin of course could always have introduced his materials, as a private citizen, into the public comments on the endangerment document. Probably what is needed is some way of handling comments made by those in their capacity as an official, but that do not necessarily represent the position of the office from which the comments were solicited.

Roger Pielke, Jr. said...

-5-Jim

Thanks, I should have included this information. I have updated the post with a concise excerpt from a textbook on this very point.

-6-Chris

Thanks, of course the issue is that Carlin is an EPA civil servant. I would have a different reaction if the issue was only about whether his views should characterize his group (much less all of EPA). That is not the issue here.

seanhecht said...

Roger,
I take your view here to be quite extraordinary. There is no legal support for the idea that every relevant document produced by every "civil servant" within the agency must be included in the record if it bears on the question at issue, nor is that "standard regulatory procedure." First, the text you cite above takes those quotations completely out of context, and so do you. The Ethyl case simply does not support, or even bear on, your assertion here.

The Administrative Procedure Act, the Clean Air Act, and relevant caselaw do support the idea that all relevant public comments must be included in the rulemaking docket. But there is no support for the idea that every agency staff-generated document must be included. And as far as I know, that's not how the EPA and other agencies have ever operated. You seem to be turning the burden of proof on this question around (#4 above), based on your own opinion and this out of context citation to a court decision, but actually your views here are really not supported by law.

And not only has this position no basis in law, it would impede the functioning of agencies in the rulemaking process. Government employees have a chain of command that serves to vet the raw opinions of individuals and to allow agencies to function effectively even in the face of vigorous intra-agency debate. There is often a nonpublic give and take in an agency context that results in a single document, or several, being released by an agency as an official technical support document. Under certain circumstances, the underlying documents or e-mails may be released under FOIA, which is often appropriate (although in many other cases there are exceptions), but that doesn't mean every employee, or the public, is entitled to have every document generated by any agency staff member placed in the rulemaking record.

Sometimes this way of agency functioning has perverse or negative consequences, as any policy might. But to say that either our laws or "basic democratic principles and procedures" require an agency to function in such a way is simply incorrect.

Finally, the sources of Carlin's information are available to, and have been generated and utilized by, a large number of engaged and well-funded outside stakeholders (such as, for example, the Competitive Enterprise Institute). These people and organizations could have submitted (and for all I know, did submit) the same information in the rulemaking docket. So there is no sense in which any information itself has been suppressed or ignored by the agency- that is a made-up story. The agency simply exercised its right to control the form and substance of the information generated and presented to the public as official agency work product.

Roger Pielke, Jr. said...

-8-Sean

Thanks for these thoughtful comments. If it were the case that Hecht was operating as a "lone wolf" then I'd agree with you.

However, the reports (which may or may not be accurate) suggest that he was preparing his submission with the approval (if not direction) of his superiors as part of an internal review process. Again, the information released to the public about Carlin may be misleading or wrong, but it seems that he was placed in a nether world between serving on the official review team and being told to butt out.

You are correct that I am interpreting EPA's actions more along the lines of including Carlin in the process and then after seeing his submission removing him from that process for (as stated by Carlin's superior) political reasons.

If you do have relevant case law on similar situations I'd love to see it and learn from it, so thanks.

Finally, I will say that your comment about what EPA did was exactly the defense used by NASA and NOAA under Bush for controlling scientists access to the media: "The agency simply exercised its right to control the form and substance of the information generated and presented to the public as official agency work product."

It didn't make sense then, and it doesn't make sense now.

Roger Pielke, Jr. said...

-8-Sean

Administrative law on this topic seems far less black and white on this than you suggest, e.g.,:

"As a general rule, the APA requires that a court reviewing agency inaction “shall review the whole record.” 5 U.S.C. § 706.5 Courts have determined that “the whole record” includes “any document that might have influenced the agency’s decision.” See Bethlehem Steel Corp. v. United States Environmental Protection Agency, 638 F.2d 994, 1000 (7th Cir. 1980) (quoting Nat’l Courier Ass’n v. Bd. of Governors of the Federal Reserve System, 516 F.2d 1229, 1241 (D.C. Cir. 1975)); see also Portland Audubon Soc’y v. Endangered Species Committee, 984 F.2d 1534 (9th Cir. 1993) (“‘The whole record’ includes everything that was before the agency pertaining to the merits of its decision.”). It is well settled that a court must have access to a complete administrative record, and “the agency may not unilaterally determine the scope of the record by leaving out records detrimental to its case.” National Treasury Employees Union v. Seidman, 786 F. Supp. 1041, 1046 (D.D.C. 1992) (citation omitted); see also Natural Resources Defense Council v. Train, 519 F.2d 287, 291 (D.C. Cir. 1975) (reversing district court that limited review to a partial record)."

http://www.nvri.org/library/cases/Ashcroft/Ashcroft%20Detailed%20Discovery%20Plan--redacted.pdf

However, if you have another view I'd be happy to post it as a guest weblog here, and I am sure that I and others would benefit. Send me an email if you'd like to follow up.

Stan said...

The Carlin case strikes a chord because there have been a host of examples where climate alarmists have censored any inclusion of science which disagrees with their views. Roger has pointed out examples from his own work. So has his father. Scientists who have quit working with the IPCC have pointed out their own examples of this censorship. Public knowledge of the charade is approaching critical mass.

Given this background, the reaction to the Carlin situation is perfectly understandable. Regardless of whether the agency complied with legal requirements, to the public it looks and smells like one more in the long line of cases of censoring legitimate views because they don't accord with PC attitudes.

Roger Pielke, Jr. said...

-1-Stan

I would find it remarkable if I am the only person who argued that NASA should have let Jim Hansen speak and EPA should have let Alan Crin speak. Sure there can be differences of opinion on these subjects -- both of them. But if the totality of commentary merely breaks down along political cleavages, then that says something (sad) about the degree of politicization of this topic.

But surely there are others who wish to err on the side of openness in government, rather than creating one set of rules for "deniers" and one for other "alarmists."

Jim Bouldin said...

Stan says:
there have been a host of examples where climate alarmists have censored any inclusion of science which disagrees with their views

Otherwise known as peer-review. When you make statements like that, the burden of proof is on you to differentiate between legitimate peer review and the "censorship" you and others claim, which requires a very diligent investigative research effort. Until you do that, you have nothing but unfounded accusations.

Roger, thanks for providing the reference. However, I also find it less than convincing that it in fact applies to this situation. A much more thorough exposition of how agencies--perhaps even specifically the EPA--incorporate scientific information into decision documents is needed. Furthermore, the details of exactly what happened here are not very well known, so until we have that as well, no accusation of censorship can have any merit.

Stan said...

Jim,

This has nothing to do with peer-review (even as ridiculous as that process has become). This has everything to do with assessments sponsored by the US govt or the UN which consistently fail to include serious published research that disagrees with the PC view.

Jim Bouldin said...

Repetition isn't proof Stan, and I'll add "ridiculousness of peer review" to your list of unsupported assertions.

dhogaza said...

Roger, why do you cite decisions regarding the record which must be made to the *court* (when an agency has been sued)?

It has nothing to do with the case at hand, which is whether or not Carlin's reports should've been made available to the *public*. As has been mentioned above, agencies don't do that, and they aren't required to do so. If they were, aggressive conservation organizations would've successfully sued decades ago to force agencies to do so.

That's not how it works. If you don't like what the agency has decided, and choose to sue, then as part of the court case you'll get full access to the record including context such as e-mails, internal memoranda, etc.

WHEN YOU ARE IN COURT.

seanhecht said...

Thanks, Roger. I'm in a bit of a work crunch, but if I have time I will follow up.

Stan said...

Jim,

Try to follow along. Assessments are supposed to be summaries of the relevant science as reflected in scientific studies which have already been peer-reviewed and published. Your comment about peer-review was totally off base.

Roger has thoroughly documented his frustration with the multiple examples of assessments which ignored his own published work. These assessments made alarmist claims which did not accurately reflect the state of the published science.

Roger's father has also written about the same types of problems. Indeed, a number of scientists who worked on previous IPCC assessments have resigned in frustration because of this problem. See e.g. Chris Landsea http://sciencepolicy.colorado.edu/prometheus/archives/science_policy_general/000318chris_landsea_leaves.html

Sharon F. said...

I think part of the problem is that we are not clear on whether we are talking about boring old opinion-based reviews of agency documents (which I think this is) versus something that is supposed to be an "assessment of the science" (usually done by a group of people outside the agency)
As I have said before, this is my everyday worklife (the former) and people's opinions are forwarded, or combined, or watered down, or edited and improved, every day by dutiful public servants. If anyone wants to see this process in all its boring detail, they can litigate and in discovery all the emails, disagreements, etc. will out. because for the most part, people aren't willing to claim deliberative process privilege.
The best way to deal with concerns like this idea of "silencing" is to have a public website where everyone can post their thoughts- internal and external. And the people making the decision simply cite the major threads of the comments and respond to them. But one person's comments still may not rate the energy and tax dollars expended to specifically respond to those concerns. And I would say, this is still not "silencing", it is the art of developing public policy.

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