It’s become almost a truism to declare that lawyers have been on the front lines of resisting the worst aspects of Trumpism and that America may come to regret all those lawyer jokes from the 1980s. Day after day, attorneys have suited up to defend facts in the courts, and to advocate for the processes and procedures that have allowed this democracy to last as long as it has. So it was only a matter of time before they found themselves stepping up to defend science as well.
This week, the New York Times published a stunning report, prepared by scientists from 13 different federal agencies, on the threat climate change already poses to American citizens. It shows that the average temperature in the U.S. has risen dramatically since 1980, and that even if humans immediately stopped emitting greenhouse gases, the world would still experience at least an additional 0.5 degrees Fahrenheit (0.3 degrees Celsius) of warming over this next century. The draft, part of a congressionally mandated assessment, has not yet been approved by the various agencies in the Trump administration. It also directly undermines claims made by Trump and his Environmental Protection Agency chief, Scott Pruitt, who deny any human role in climate change and have worked assiduously to dismantle any regulations that attempt to rein in greenhouse gas emissions.
Some of the scientists who authored the 500-plus page report told the New York Times they were worried the final document would be suppressed by the Trump administration. Other experts fear that Trump will deem this a “leak” intended to embarrass the administration and that reprisals and crackdowns will follow. Katharine Hayhoe, one of the government scientists who worked on the draft report, tweeted on Tuesday that the report had not been leaked at all and that the copy the Times had obtained was the public review version of the report that is “available to all.”
This particular “leak” may not be real, but the scientists’ fear of data suppression and science denialism certainly is. The story serves as another reminder that government scientists, many of them career employees, are racing against the new administration’s deregulatory efforts and risking their own jobs and reputations to tell the truth about scientific conclusions. Trump’s anti-science stances, or at least some people’s anticipation of these stances, have already hampered government agencies: References to global warming have been removed from government websites; staff at the U.S. Department of Agriculture have been instructed to stop using the term ‘climate change’ in their work; key scientific posts have been left vacant; senior officials at the Department of the Interior have been re-assigned or purged or pitted against “experts” on the industry side; and scientists have reported a culture of fear in government jobs. And that’s all secondary to Trump’s selfish decision to pull out of the Paris Agreement on climate change despite warnings from the vast bulk of the scientific community—and even industry itself.
Slate recently reported that lawyers have started to see some success come from their attempts to beat back some of the EPA’s worst deregulation efforts, in no small part because Pruitt has been sloppy and careless in enacting his agenda, cutting corners on legal processes that will sometimes trip him up in court. Ever since Trump’s election, environmental organizations have realized that their best chance of forcing action is via the judicial route, and increased litigation like the suits aimed at Pruitt’s EPA will likely continue. But is there a more proactive role attorneys can take to alleviate the climate of fear and reprisal that has gripped scientists in recent months? Here’s one: The Washington D.C. law firm of Jenner and Block has partnered with the Union of Concerned Scientists to launch the Scientist Protection Project, which matches experienced private lawyers with significant government experience to federal scientists looking to protect the independence of their agencies, and the scientific findings they produce, from efforts to suppress or malign their work. The project makes it possible for scientists to connect with attorneys, either from the firm itself or from outside lawyers offering their services pro bono. All costs will be absorbed by the fund.
Lindsay Harrison, a litigator at Jenner and Block, is the managing attorney for the project. She heads up the new initiative to protect scientists in the federal government from assaults on years’ worth of research and findings. She is well-aware that scientists seeking legal advice will be nervous and likely interested in protecting their anonymity, which the project is at pains to do. In an email, Harrison (full disclosure, she is a friend) explained that scientists seeking to protect and safeguard their work may have more legal options than they suspect, and that they may be able to shield their own findings using well-targeted Freedom of Information Act requests or their relationships with members of Congress. The important thing, in Harrison’s view, is to help government scientists find a legal pipeline to report any efforts to tamper with or water down their data, undisclosed meetings with regulated industries, or efforts to suppress contact between scientists and the media or policymakers.
As she explains, “federal scientists should be able to work without fear that political appointees will alter or suppress their findings when the science is politically inconvenient. While scientists may think that they either have to quit, or accept political interference in their work, they will often have a variety of legal remedies and just need an experienced lawyer to explain them.”
It’s imperative that scientists have a channel to report on efforts to diminish the role played by science in government decision-making, Michael Halpern, deputy director of the Center for Science and Democracy at the Union of Concerned Scientists, told me via email. Unless you are a regular reader of the Federal Register or a compulsive tracker of committee minutes, he warned, you won’t see often almost imperceptible changes happening in policy, data collection, and reporting:
Civil servants are in the best position to point out the consequences for public health and the environment when their work is suppressed or eliminated. Attacks on science can be incredibly subtle, from reducing data collection to dismissing scientific advis[e]rs. It’s even more difficult to hold the administration accountable when so much happens behind closed doors with no paper trail. We rely on people inside government to expose potential abuses so the public can understand what’s actually at stake.
It is as clear as it has ever been that the cacophony of daily mayhem from the federal government will make tracking threats and reprisals for scientists virtually impossible. Pairing up pro bono lawyers with fearful scientists is one more good way to ensure that potential government whistleblowers know what their options may be. Joke all you want about those 200 lawyers at the bottom of the oceans—but as those oceans rise, you may be grateful the lawyers were there to stand watch.
