What if Trump Censors Climate Science? Scientific Research Policy and Law under the Trump Administration

Cross-posted from the Take Care blog.

By Dov Fox

Global warming embarrasses President Donald Trump’s insular creed of “America First.” The National Oceanic and Atmospheric Administration recently confirmed all-time record-high temperatures and sea levels around the world. Yet President Trump has promised that the United States will be virtually alone in refusing to honor the commitments it had made in the Paris climate agreement. Indeed, his administration has systematically deregulated previous efforts to reduce greenhouse gas emissions, while dismantling efforts to protect the country’s air, water, and wildlife.

More elusive threats to climate science are lurking behind the scenes. The Trump administration ordered the Environmental Protection Agency (EPA) to shut down its climate webpage, gagged EPA and U.S. Department of Agriculture employees from using terms like “climate change” and “emissions reduction” in any written communications, and forbade scientists there from discussing their (taxpayer-funded) research with anyone outside of the agency. The White House has at the same time defunded climate science and terminated ongoing studies into environmental threats ranging from the toxicity levels of Midwestern streams to the health risks of Appalachian mining.

Recent controversy emerged over the Climate Science Special Report prepared by the top scientists from 13 federal agencies. The 1990 National Global Change Research Act requires that the Special Report be published every four years as part of the National Climate Assessment. The next one—due out this month—hasn’t yet been released. An earlier version was briefly posted during the public comment period. The completed one, however, won’t become official unless and until the Trump administration approves it. But the President has referred to climate change as “bullshit” peddled by “so-called ‘scientists’” and a “total hoax” perpetrated by the Chinese. He’s also appointed staunch climate-change skeptics Scott Pruitt and Rick Perry to lead the EPA and Department of Energy.

Little wonder the scientists who prepared the draft report were so worried it’d be edited, rejected, or concealed that they leaked a copy to the New York Times. That draftprovides the strongest evidence to date that human activity is the main cause of rising global temperatures since the 1950s. It adopts even more reliable data and methods than ever before to show that continuing to burn coal and oil are likely to bring greater numbers of increasingly severe droughts in the American Southwest, more potent storms along both coasts, and heavier floods like Hurricane Harvey that’s left much of Texas underwater.

It’s true, as NY Times columnist Bret Stephens reminded us, that the complexity of climate science makes some conclusions uncertain. For example, it can’t yet predict or explain whether, when, or why exactly any particular extreme weather events will take place at a precise place and time. But this shouldn’t obscure that the draft’s three central takeaways are as certain as anything gets in the physical sciences. The country’s top government scientists leave no doubt that: (1) human activity is primarily to blame for the planet’s recent and continued warming, (2) the consequences of this warming will become increasingly devastating, and (3) it’s not too late for adaptation and emissions reductions too ameliorate those effects. “Burying [such] information,” Helen Klein Murillo and Leah Litman blogged back in April, “subverts public debate, getting the do-nothing policy the administration would prefer without forcing it to engage deeply in the debate around why particular climate regulation is in fact more costly than is reasonable given what scientists know and predict about climate change.” So what if anything can be done if President Trump manipulates or suppresses these conclusions?

The U.S. has long operated under a presumption that government should not interfere with the content of scientific inquiry. Every administration until the present one endorsed the federal policy that President Ronald Reagan set forth in a 1984 National Security Directive: “to the maximum extent possible the products of fundamental research [shall] remain unrestricted.” It’s not that government avoids taking sides on the merits of such research. To the contrary, it weighs in on the relative worthiness of various pursuits anytime it funds some projects—whether scientific research or veterans’ benefits—over others.

Consider President George W. Bush’s 2001 policy restricting federal funding for stem cell research involving the destruction of live embryos.  That policy still allowed the federal government to fund the few existing stem cell lines using embryos that’d already been destroyed, and even permitted state or private funding to create new cell lines.   The political right decried the policy as unprincipled—if life has absolute worth, all embryo research should stop! The left lambasted it as sectarian—potentially life-saving therapies cannot be forsaken for organisms smaller than the head of pin! But neither side could complain that the stem cell policy violated any legal claim having to do with whether government funds certain kinds of projects.

And neither is there any basis in law to sue the Trump administration for its refusal to fund climate science. Public officials have no obligation to subsidize even the most worthy and promising lines of research; indeed, they have no duty to fund science at all. The government must fund only constitutionally-mandated activities and institutions like elections, federal courts, and national defense. All other funding is allotted through the political processes of deliberation and deal-making. Citizens have no authoritative legal basis to demand that government provide the resources or facilities required to advance any particular line of scientific research—not stem cell research, not climate science—however vital to the public interest.

Might there, on the other hand, be colorable First Amendment claims against intruding into scientists’ decisions about what and how to study, teach, and publish, or against suppressing available government research for political purposes? Legal scholars have long sought to justify a right to “scientific speech,” whether as an element of academic freedom, as a precondition for free and open expression, or as a form of expressive conduct. What makes science a matter of constitutional concern, they argue, is its distinctive status—like art, philosophy, and a few other enterprises—as one of the principal ways by which citizens produce new knowledge. But federal scientists aren’t entitled in their professional capacity to use the government platform to override commands of the executive branch that employs them.

More promising than any constitutional challenge is a statutory one under the Global Change Research Act. This is the law requiring executive production of the national climate assessment. In 2007, environmental groups claimed that the Bush administration had violated the law by refusing to commission the mandated reports. That delay injured them, they argued, by denying the opportunity to consult and comment on climate research activities. The White House responded that 20 environmental studies the President had requested in 2003 satisfied the 1990 law. But a federal court in California rejected that contention and ruled for the plaintiffs. It ordered the Bush Administration to generate and publish the long-overdue scientific assessment within nine months.

It’s hard to predict whether President Trump and his Environmental Protection Agency will let the draft to become an official government report (or in what form), especially now that the NY Times story has called attention to scientists’ concerns about its future. And the Bush-era order should give pause before sitting on or muting the draft report. If lawful, his decision to interfere with research for political purposes would, like so many, fly in the face of sound policy and democratic norms. Republican inaction on climate change make it improbable that the decision will have immediate policy impact. But the failure of Congress and the courts to check the executive impulse to obstruct climate science is sure to embolden an administration that’s been all too willing to bend the facts to its own political will.

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About Dov Fox

Dov Fox is Professor of Law and founding Faculty Director of the Center for Health Law Policy and Bioethics at the University of San Diego School of Law. He has published dozens of articles in leading journals of law and medical ethics, most recently “Reproductive Negligence” in 117 Columbia Law Review 149 (2017). His current book project, Birth Rights and Wrongs, is under contract with Oxford University Press. His work has been featured in CNN, ABC, NPR, BBC, Reuter’s, Bloomberg, the Boston Globe, and the Washington Post. Fox is a regular columnist for The Huffington Post and contributor to the Bill of Health blog. He also serves on the advisory boards of the American Constitution Society and Appellate Defenders, the non-profit law firm that administers all appointed counsel for indigent defendants in California's Fourth Appellate District. Prior to teaching, Fox served as a law clerk to the Honorable Stephen Reinhardt of the U.S. Court of Appeals for the Ninth Circuit. He has also worked at the law firm of Wachtell, Lipton, Rosen & Katz; the consulting firm of McKinsey & Company; and the Civil Appellate Staff at the U.S. Department of Justice. Fox was awarded a Rhodes Scholarship to attend Oxford University, where he earned his DPhil and then received a Soros Fellowship for New Americans to attend Yale Law School, where he served as projects editor for the Yale Law Journal and all three years was awarded the prize for best student paper in law and the sciences.