Representative Lamar Smith (R-TX) is continuing his campaign for internal National Oceanic and Atmospheric Administration (NOAA) documents, including new claims from an unnamed whistleblower that NOAA scientists “potentially violat[ed] NOAA’s scientific integrity policies.” Rep. Smith has also now threatened to use an unspecified “compulsory process” to obtain the desired documents (as explained below, this very likely means contempt of Congress proceedings). Last month, Rep. Smith subpoenaed the agency for internal communications regarding a study led by NOAA scientist Dr. Thomas Karl; published in Science in June 2015, the study found that recent ocean surface temperature increases were greater than earlier studies had indicated.[1] The research has been corroborated by other independent studies[2] and contradicts the notion – espoused by Rep. Smith among others – that global warming has “paused.”[3]
The October 13, 2015 subpoena followed months of questioning by Rep. Smith, who has oversight powers via his position as Chair of the House Science, Space, and Technology Committee. (As of this year, the House Science Committee allows its Chair to issue subpoenas unilaterally.[4]) NOAA provided much of what Rep. Smith wanted, including pointing him to the relevant data and research methods – which had already been publicly available – as well as providing multiple in-person briefings to explain the science.[5] Rep. Smith has also sought internal NOAA communications, claiming it is “suspicious” that NOAA “alters data to get the politically correct results they want and then refuses to reveal how those decisions were made. NOAA needs to come clean about why they altered the data to get the results they needed to advance this administration’s extreme climate change agenda.”[6]
But despite Rep. Smith’s requests, NOAA has refused to produce any internal communications regarding the study. In a statement, the agency explained that “the confidentiality of these communications among scientists is essential to frank discourse” and it is “a long-standing practice in the scientific community to protect the confidentiality of deliberative scientific discourse.”[7] The American Meteorological Society sent a letter to Rep. Smith endorsing NOAA’s stance, writing that the “advancement of science depends on investigators having the freedom to carry out research objectively and without the fear of threats or intimidation whether or not their results are expedient or popular” (emphasis original).[8]
In recent weeks, NOAA agreed to also make certain scientists and agency officials available for interviews to be conducted under oath and transcribed. NOAA requested that the transcripts of the interviews be made publicly available, but the request was rejected.[9] Rep. Smith has also continued to seek internal communications regarding the study, and in a November 4 letter to NOAA Administrator Kathryn Sullivan, Rep. Smith wrote that NOAA’s “failure to comply with the Committee’s subpoena has delayed the Committee’s investigation and thwarted the Committee’s constitutional obligation to conduct oversight of the Executive Branch. Furthermore, your failure to comply with a duly issued subpoena may expose you to civil and/or criminal enforcement mechanisms.”[10]
On November 13, Rep. Smith followed up with a letter to Secretary of Commerce Penny Pritzker, who oversees NOAA. He requested that Secretary Pritzker direct NOAA to turn over the desired internal communications, and Rep. Smith accused NOAA of choosing to “obstruct and delay the Committee’s legitimate oversight activities in direct contravention of the Committee’s subpoena and of the President’s memorandum directing agency heads to act with the presumption of disclosure.” Rep. Smith also claimed that NOAA was misrepresenting his inquiry by focusing on the importance of protecting internal scientific deliberations – “NOAA employees are well aware and have acknowledged that the Committee’s request for information and communications includes not just NOAA scientists but also NOAA policy and political staff.”[11]
On November 18, Rep. Smith sent another letter to Secretary Pritzker, claiming that “information provided to the Committee by whistleblowers appears to show that the Karl study was rushed to publication despite the concerns and objections of a number of NOAA scientists, ignoring established and standard NOAA scientific processes and potentially violating NOAA’s scientific integrity policies.” Rep. Smith further claimed that, because the study was published two months before the finalized Clean Power Plan regulations were released and five months before international climate talks in Paris, “the timing of its release raises concerns that it was expedited to fit the Administration’s aggressive climate agenda.” [12]
This latest letter warned that, if the Science Committee does not receive the requested material “by Friday, November 20, 2015, I will be forced to consider the use of compulsory process.” Rep. Smith also noted that he is postponing the NOAA interviews “until additional documents and communications are received and can be fully considered” because “the information brought to the Committee’s attention is central to the transcribed interviews previously requested with NOAA officials.”[13]
Rep. Smith has not elaborated on what he means by the “compulsory process,” but generally speaking, investigative power in Congress is quite broad and is “largely unchecked by the courts, as a matter of constitutional design.”[14] A review of House rules suggests Smith’s threatened “compulsory process” would be through obtaining a citation for contempt of Congress.[15] Typically, to do this, a full committee must make a majority vote to report non-compliance to the House chamber, and then the House itself would vote on whether to enter a contempt order.[16] “In many cases, there will be insufficient interest in the chamber for a resolution of contempt to pass” – but if a resolution of contempt were approved, the House could then refer the matter to the U.S. Attorney for the District of Columbia to pursue criminal contempt proceedings.[17] Rep. Smith could also initiate a civil lawsuit and seek court-ordered production of the internal communications.[18]
In 2012, this set of events happened to then-U.S. Attorney General Eric Holder, who was found in contempt of Congress for refusing to turn over internal Department of Justice memoranda to Rep. Darrell Issa (R-CA). The House referred the contempt matter to the DOJ, which declined to pursue the case.[19] Civil litigation over the requested documents is still ongoing, but the presiding judge has indicated that she is sympathetic to Holder’s decision to withhold documents.[20]
In the present case, NOAA has responded to Rep. Smith’s claims that the paper was rushed with a statement that “[t]he notion that this paper was rushed to publication is false” and explaining the publication of the paper followed a standard but rigorous multi-stage peer review process spanning months.[21] A representative from the Union of Concerned Scientists also wrote that, according to a conversation with NOAA’s Scientific Integrity Office on November 18, “to date it has received no allegation of research misconduct under [NOAA’s] scientific integrity policy regarding this publication.”[22]
Lauren Kurtz is the Executive Director of the Climate Science Legal Defense Fund, which seeks to protect the scientific endeavor. For more information, please visit www.climatesciencedefensefund.org
[1] https://www.sciencemag.org/content/348/6242/1469
[2] https://www.factcheck.org/2015/11/smith-misfires-on-climate-science/; https://iopscience.iop.org/article/10.1088/1748-9326/10/8/084002/meta
[3] https://www.slate.com/blogs/bad_astronomy/2015/10/30/global_warming_lamar_smith_s_conspiracy_ideations.html
[4] https://www.politico.com/story/2015/01/house-committee-chair-subpoena-powers-114190#sthash.QjoOtFIA.dpuf
[5] https://blogs.law.columbia.edu/climatechange/2015/10/30/noaa-refuses-to-produce-internal-communications-to-house-science-committee/
[6] https://arstechnica.com/science/2015/10/congressman-doubles-down-accuses-noaa-scientists-of-doctoring-results/
[7] https://www.nature.com/news/us-science-agency-refuses-request-for-climate-records-1.18660#sthash.QjoOtFIA.dpuf
[8] https://www2.ametsoc.org/ams/index.cfm/about-ams/ams-formal-letters-of-support/letter-to-house-committee-on-science-space-and-technology-on-noaa-science/
[9] https://arstechnica.com/science/2015/11/congressman-continues-pressuring-noaa-for-scientists-e-mails/
[10] https://cdn.arstechnica.net/wp-content/uploads/2015/11/lamar_smith_noaa_subpoena_mk2.pdf
[11] https://cdn.arstechnica.net/wp-content/uploads/2015/11/lamar_smith_noaa_subpoena_letter_to_comm_sec.pdf
[12] https://cdn.arstechnica.net/wp-content/uploads/2015/11/lamar_smith_noaa_comm_letter_nov18.pdf
[13] https://cdn.arstechnica.net/wp-content/uploads/2015/11/lamar_smith_noaa_comm_letter_nov18.pdf
[14] https://www.mayerbrown.com/files/Publication/ec1203b2-a787-44ac-8344-5d5fab374ffa/Presentation/PublicationAttachment/11509b8b-df81-4db6-9e89-1d1b16c20856/White-Paper-Congressional-Subpoena.pdf
[15] https://clerk.house.gov/legislative/house-rules.pdf; see also https://www.fas.org/sgp/crs/misc/RL34097.pdf
[16] https://www.mayerbrown.com/files/Publication/ec1203b2-a787-44ac-8344-5d5fab374ffa/Presentation/PublicationAttachment/11509b8b-df81-4db6-9e89-1d1b16c20856/White-Paper-Congressional-Subpoena.pdf; see also https://science.house.gov/sites/republicans.science.house.gov/files/documents/hearings/Committee%20on%20Science%2C%20Space%2C%20and%20Technology%20Rules%20114th%20Congress%20v2_0.pdf
[17] https://www.mayerbrown.com/files/Publication/ec1203b2-a787-44ac-8344-5d5fab374ffa/Presentation/PublicationAttachment/11509b8b-df81-4db6-9e89-1d1b16c20856/White-Paper-Congressional-Subpoena.pdf
[18] https://www.fas.org/sgp/crs/misc/RL34097.pdf
[19] https://www.huffingtonpost.com/2012/06/29/eric-holder-contempt-charge-prosecution_n_1638420.html
[20] https://www.nationallawjournal.com/legaltimes/id=1202733522734/After-Holders-Departure-Fight-Over-Fast-and-Furious-Docs-Continues
[21] https://arstechnica.com/science/2015/11/congressman-claims-noaa-whistleblowers-told-him-climate-study-was-rushed/
[22] https://blog.ucsusa.org/gretchen-goldman/noaa-pushes-back-on-chairman-smiths-claims-on-climate-science-paper
