In court documents filed last night, the Competitive Enterprise Institute argues that NASA has gone out of its way to avoid turning over records that show the agency reverse-engineered temperature data to better make the case that the planet is becoming warmer.
CEI, which is being represented by Gibson, Dunn & Crutcher’s Andrew Tulumello, argues in a pleading filed in Washington federal court that NASA’s request for summary judgment in the Freedom of Information Act suit against the agency should be denied because e-mails and other evidence turned over by NASA suggest that there are additional records that are being withheld.
“Rather than deal forthrightly with a FOIA request on these issues, NASA has engaged in obstruction and delay,” Tulumello writes in the court filing, which was filed late last night in the U.S. District Court for the District of Columbia.
CEI argues in the Nov. 3 motion that NASA has additional e-mails and documents on separate servers that relate to changes made to temperature data, but has failed to turn them over. CEI also argues that Dr. James Hansen, the director of NASA’s Goddard Institute of Space Studies, and Dr. Gavin Schmidt, a climatologist and climate modeler at Goddard, used third-party Web sites and e-mail addresses to avoid having those records appear on NASA’s servers.
“The e-mails among the NASA scientists working on this project reflect a conscious choice to keep the final explanation off of NASA’s servers,” Tulumello writes.
NASA, which is being represented by Julie Straus, a trial attorney in the Justice Department’s Civil Division, requested summary judgment in the case on Sept. 20, arguing that CEI already has access to the data it is trying to obtain and that CEI�s FOIA requests don’t seek computer programs and data files. NASA contends that CEI’s FOIA requests only sought “records, documents, and international communications” related to the alleged changes to temperature data.
“[T]he Agency had no obligation under the FOIA to search Dr. Schmidt’s email correspondence, nor to release to Plaintiff any of Dr. Schmidt’s emails. Even so, on December 29, 2009, and July 9, 2010, the Agency, in its discretion, did release to Plaintiff copies of those emails of Dr. Schmidt’s that pertain to the subject matter sought by Plaintiff’s request,” Straus wrote in the motion for summary judgment.
CEI filed suit against NASA in May, alleging that in 2007 and 2008, it submitted, but has not yet received adequate responses to, FOIA requests seeking NASA documents related to changes made to NASA’s temperature data in response to questions raised by statistician Steven McIntyre. McIntyre runs Climate Audit, a blog devoted to the analysis and discussion of climate data.
CEI argues that McIntyre discovered errors in NASA’s data that resulted in an overstatement of the amount that temperatures have risen in the United States since 2000. Those allegedly erroneous data, CEI says, have been used by Goddard to make claims in the media that temperatures in the United States have risen dramatically during the past 10 years. Among those claims was that 1998 was the “hottest” year on record.
CEI alleges that, once the errors were pointed out in August 2007, NASA made a series of changes to the data and then “sought to reverse-engineer the temperature data so that 1998 could again be deemed the warmest year on record.”
NASA’s delays in responding to the FOIA requests prompted Sen. David Vitter (R-La.) and Sen. Jim Inhofe (R-Okla.) to call for an investigation by the agency's inspector general on Dec. 3, 2009. The inspector general's investigation determined that the delays were caused by “inadequate direction given...as to what documents were requested and a due date for a response,” “inadequate communication,” and “inadequate staffing at the Goddard FOIA office.”
As pointed out in CEI’s court filings, Hansen is also known as an environmental activist. In September, Hansen was one of 100 people arrested in front of the White House while engaging in a protest against mountaintop removal mining.
Tulumello said in an interview, “There is very powerful evidence that NASA disregarded the FOIA requests because what the record reflects raises very significant questions about the changes made to the data.”
NASA has two weeks to respond to CEI’s opposition to the motion for summary judgment. If summary judgment is denied by Judge Richard Roberts, the case would proceed to discovery.
Straus declined to comment