Introduction by Patrick Parenteau
Main Article by Adam Orford
Pseudo-Science and Bad Law: The Trump Administration’s Proposed Repeal of the Endangerment Finding
Patrick Parenteau, Emeritus Professor of Law, Vermont Law and Graduate School
On August 1, 2025, the Environmental Protection Agency (EPA) formally proposed rescinding the “endangerment finding” under the Clean Air Act (CAA).[1] This is the finding that greenhouse gases (GHG) pose a danger to public health and welfare. The endangerment finding was issued in 2009 in response to the landmark Supreme Court decision in Massachusetts v. EPA holding that GHG were “air pollutants” subject to regulation under the CAA and that once, the EPA makes the endangerment finding, it has a mandatory duty to regulate all the major sources of GHG including power plants, motor vehicles, and a wide variety of industrial sources.[2]
In addition to revoking the endangerment finding, the proposal seeks to rescind all GHG emission standards for new motor vehicles and engines. This rescission includes GHG emission standards for light-duty, medium-duty, and heavy-duty vehicles and engines for model years 2012 to 2027, and beyond. Separately, the EPA has proposed rescinding the GHG rules for power plants and published a rule extending the compliance deadlines for methane emissions from oil and gas production.[3] Further deregulatory actions are expected.
In announcing the proposal, EPA Administrator Lee Zeldin stated the Trump administration’s intent to drive “a dagger through the heart of climate-change religion.”[4] His proposal relies heavily on a new Department of Energy (DOE) report on the impacts of carbon dioxide emissions on the U.S. climate.[5] The report was produced by the Climate Working Group convened by DOE Secretary Chris Wright and comprised of five “independent scientists” who are widely considered to be climate skeptics.[6] Their draft report argues that human-caused climate change “might be less damaging economically than commonly believed,” and “aggressive mitigation strategies could be more detrimental than beneficial.”[7]
In the accompanying commentary Professor Adam Orford provides a legal analysis of how the CWG violates the Federal Advisory Committee Act (FACA). Professor Orford also authored a detailed scientific critique on the DOE report that was signed by several environmental law professors and submitted as comments to the EPA.[8]
In a related development, the Environmental Defense Fund and the Union of Concerned Scientists have filed suit in Massachusetts federal court seeking a declaration that the CWG violates FACA and an injunction prohibiting EPA from relying on its report. Plaintiffs have filed a motion for preliminary injunction, or a stay and expedited briefing is underway. A hearing before Judge Young is expected this month. Professor Orford’s analysis could prove helpful to the outcome of this case.
This repeal is more than a regulatory rollback; it is a willful abandonment of the scientific, legal, and moral foundations of environmental protection. But the fight to restore the integrity of the EPA’s mission has just begun. The courts will have the final say, and in the end, I am confident truth and justice will prevail.
When Platforming Climate Skepticism Breaks the Law
Adam Orford, Associate Professor of Law, Fordham University School of Law
On July 29, 2025, the U.S. Department of Energy (DOE) released a draft report titled “A Critical Review of Impacts of Greenhouse Gas Emissions on the U.S. Climate.”[9] The report was an exercise in climate science skepticism: contrary to an enormous body of more credible scientific work, it argued that climate change is minimally attributable to human activity, that the negative impacts of climate change are likely to be manageable and outweighed by beneficial effects, and that U.S. regulatory efforts to respond would not make a substantial difference in any event.[10] It read more like talking points from a think tank than a federal science study.
The DOE’s report was immediately condemned as inaccurate and misleading by scientists from around the world.[11] A group of researchers whose work the report had cited identified more than one hundred mischaracterizations and false statements contained in its pages.[12] A later published rebuttal by over 85 scientists identified similar flaws.[13] In my own review, I identified examples of extensive cherry-picking, overgeneralization, analysis outside the scope of the authors’ expertise, self-citation, and failure to address research contrary to the authors’ preferred conclusions, as among its most important analytical deficiencies.[14] In most respects, the report simply was not a credible scientific document.
Notwithstanding these technical deficiencies, however, and despite the fact that the DOE report was a draft that had never received outside review or public comment, the Environmental Protection Agency (EPA) relied on the DOE’s report extensively in its proposed decision to reverse the 2009 Endangerment Finding, eliminating the nation’s entire greenhouse gas regulatory program under the Clean Air Act, which was published on the same day the draft report was released.[15]
In relying so heavily on the DOE’s report, however, the EPA seriously undermined its own efforts. As discussed below, the DOE solicited its report from five authors who have each spent much of their recent careers questioning the scientific consensus on climate change. In doing so, the DOE ignored the Federal Advisory Committee Act (FACA), which it was required to follow.[16] Therefore, the EPA built its endangerment finding analysis on a report produced by an illegal federal advisory committee.
Federal courts have consistently required federal agencies to comply with FACA, have enjoined federal agencies from using advice produced in violation of FACA, and have held unlawful federal agency decisions based on such advice. Concerned litigants should have little trouble demonstrating that the same relief is justified in this case, which appears to be simultaneously the most blatant and most consequential FACA violation ever to have been perpetrated.
The “Red Team” Report: Federal Platforming of Climate Skepticism
On April 20, 2017, Steven Koonin, then a professor at NYU, published an op-ed in the Wall Street Journal arguing that climate science should be subject to a federal “red team” exercise, whereby a group of climate skeptics would “write a critique” of a consensus climate science assessment, and a “blue team” would then defend the assessment against that critique.[17] Shortly afterwards, inspired by the op-ed, EPA Administrator Scott Pruitt began discussing how to initiate exactly such a process.[18]
Analysts immediately raised concerns that the EPA’s “red team” plan “could politicize scientific research and disproportionately elevate the views of a relatively small number of experts who disagree with mainstream scientists,” and be used as a pretext for eliminating greenhouse gas regulation.[19] Others quickly noted the “red team” approach was exactly the strategy employed by The Heartland Institute, a think tank heavily involved in supporting climate skepticism, in its “Nongovernmental International Panel on Climate Change” reports, which similarly tend to elevate climate skepticism over credible scientific debate.[20] The Heartland Institute, for its part, encouraged the endeavor and sent the EPA a list of proposed members for the red team exercise, including among them Drs. John Christy, Judith Curry, Steven Koonin, and Roy Spencer—four of the five future authors of the DOE’s report.[21]
Eventually, White House Chief of Staff John Kelly vetoed Administrator Pruitt’s efforts to conduct a red team exercise on climate science, fearing the spectacle would not go well.[22] But the idea remained. Immediately after President Trump won the 2024 election, reports emerged that he was open to reviving the red team initiative.[23] According to Steven Koonin, it would involve “four or five researchers on each side.”[24] However, no further reporting on the idea emerged. In July 2025 it was revealed that the DOE had hired Drs. Koonin, Christy, and Spencer as special government employees for undisclosed work,[25] but nothing about their work was made public. When Dr. Christy was asked about his new role, he stated only that he was “just here to help as needed.”[26]
In fact, Drs. Christy, Spencer, and Koonin, together with two others, had been recruited personally by Secretary of Energy Chris Wright in March 2025 to conduct a “red team” exercise in secret. Although public information is still scant, what is known is that in late March 2025, Secretary Wright developed a plan for the DOE to conduct such an exercise.[27] He recruited Cato Institute policy director Travis Fisher to coordinate the effort,[28] and then personally contacted five people he had pre-selected to author the DOE report, who collectively agreed to the project and were given the official title of the DOE’s “Climate Working Group.”[29] Although the group worked intensively for several months to produce its report, that work was not publicly disclosed while it was occurring.[30] The authors completed their work in May 2025, and it was immediately sent to the EPA to support its efforts to rescind the endangerment finding. The DOE report’s publication—and the announcement of the authors’ roles in writing it—was kept secret until the day that EPA released its endangerment finding proposal.[31]
The members of the DOE’s “Climate Working Group”—Drs. John Christy, Roy Spencer, Judith Curry, Steven Koonin, and Ross McKitrick—are all members of what Dr. Spencer himself has recently called the climate science “red team.”[32] They are current and former academics, well known for their vocal skepticism of various aspects of consensus climate science and policy:
- John Christy is a Distinguished Professor of Atmospheric Science and Director of the Earth System Science Center at the University of Alabama in Huntsville (UAH).[33] He rose to prominence in the 1990s for his work on satellite data to build global temperature records, but became convinced that his satellite data showed that the earth was not warming as predicted.[34] He has also argued that atmospheric temperatures are not as responsive to CO2 as most scientists believe.[35] He has frequently provided Congressional testimony opposing greenhouse gas regulation based on his beliefs, and has produced speeches and policy papers for think tanks associated with climate skepticism.[36]
- Roy Spencer is a principal research scientist at UAH and Dr. Christy’s frequent research collaborator on satellite data projects.[37] He has claimed that observed climate change is largely due to natural variability.[38] Dr. Spencer has been very active with think tanks associated with climate skepticism, having served as a policy advisor for The Heartland Institute, as a visiting fellow at the Heritage Foundation, as a board member for the CO2 Coalition (formerly the George C. Marshall Institute), and as a senior fellow for the Cornwall Alliance.[39]
- Judith Curry is Professor Emeritus and former Chair of the School of Earth and Atmospheric Sciences at the Georgia Institute of Technology.[40] After producing a great deal of mainstream scientific research, she became known for her increasing critiques of academic culture and her emphasis on the uncertainties of climate impact prediction.[41] Dr. Curry has been particularly noted for her influence on online media discourse around climate skepticism,[42] and has contributed to events and publications by think tanks associated with climate skepticism.[43]
- Steven Koonin is a former professor, former chief scientist at BP, and former Under Secretary for Science at the DOE, and is currently a fellow at the Hoover Institution at Stanford.[44] He first rose to national prominence for challenging questionable cold fusion research claims in the late 1980s.[45] Today, he is best known for his advocacy for a climate science “red team” project, and for his view that climate science is too uncertain and unsettled to form the basis of federal policymaking.[46]
- Ross McKitrick is a Professor of Economics at the University of Guelph in Ontario, Canada, and he is currently a senior fellow at the Fraser Institute, a Canadian think tank associated with climate skepticism.[47] He is particularly concerned with developing statistical critiques of methods widely used to attribute observed warming to human influences,[48] and has also been active in think tanks associated with climate skepticism for decades.[49]
That is, the five authors of DOE’s “climate science” report have spent significant parts of their careers questioning broadly held views about climate science.[50] Notwithstanding their efforts, their own views on climate science have not been widely accepted by the scientific community.[51] Yet, they were selected as the sole members of the DOE’s “Climate Working Group” and wrote a report elevating their own “red team” minority views to the level of federal climate policy.
In their landmark book Merchants of Doubt, Naomi Oreskes and Eric M. Conway documented a process by which industry interests and industry-funded think tanks engage with academics and researchers to develop public relations campaigns casting doubt on policy-relevant scientific findings.[52] Other researchers have since contributed to a deeper understanding of the social and political phenomenon of “climate denial” or “climate skepticism,” which has followed this strategy very closely.[53] Of particular interest, in recent years many climate science skeptics associated with such think tanks have shifted away from contesting that climate change is occurring or that human beings are causing it, toward contesting the magnitude of future harm projections and the appropriateness of various policy response options.[54] These frameworks seem apt for describing the production of the DOE’s report. Yet Oreskes and Conway did not identify any example exactly as brazen as what the DOE and the EPA have done in this case.
The modern phenomenon of “platforming” means to provide a media platform that facilitates the promotion and dissemination of misinformation or extreme or marginalized views, often in the guise of promoting robust debate over a controversial topic.[55] The “red team” idea was perceived, correctly, as an effort to platform climate science skepticism. When Congressional committees stack witness lists with skeptics of climate science, they are platforming. When The Heartland Institute organizes a climate conference exclusively for skeptics of climate science, it is platforming. When the DOE solicits a climate science report exclusively from climate skeptics, the DOE is platforming. Similarly, when the EPA adopts that report as if it were the best scientific information available to it, it is platforming as well.
Congress, however, is free to platform. So is The Heartland Institute. The DOE and EPA, however, are federal agencies subject to federal laws regarding not only the content of and rationale of their decisions, but their solicitation of outside opinions in any manner that might influence those decisions. Federal agency platforming of climate skepticism is illegal.
DOE’s Report Is an Illegal FACA Violation, as Was EPA’s Reliance on It
The Federal Advisory Committee Act[56] was adopted to address government waste and to counteract the capture of federal advisory committees by special interests.[57] Consequently, Congress restricted the executive’s authority to create and rely on advisory committees, and imposed stringent transparency and accountability requirements on such committees’ operations.[58] FACA applies to any “committee, board, commission, council, conference, panel, task force, or other similar group” that is “established or utilized by” a federal agency “to obtain advice or recommendations” by that agency or its officers.[59] Such advisory committees must be managed according to FACA, its implementing regulations,[60] and, in the DOE’s case, the DOE’s Advisory Committee Management Program policies.[61]
The DOE’s “Climate Working Group” was an advisory committee. The DOE’s report itself discloses that its members were selected personally by the Secretary.[62] The group’s purpose, as evidenced by the identity of its authors, the circumstances of its creation, and the structure of its discussion, was to advise and provide recommendations to the DOE and EPA on how to select and communicate justifications for the DOE’s, EPA’s, and the current presidential administration’s, preferred climate policies and regulatory decisions.[63] The DOE report accomplished this purpose not simply by reporting facts, but by selectively presenting and promoting the authors’ opinions, with the potential for, and evident purpose of, the DOE’s and EPA’s future adoption and use of those opinions as their own.[64]
The “Climate Working Group,” furthermore, was not exempted from FACA.[65] The group was not a national intelligence committee, was not exempted from FACA by statute, and was created by the DOE, a federal entity.[66] The group was not a meeting of attendees assembled to “provide individual advice to a Federal official(s)” or to “exchange facts or information with a Federal official(s).”[67] The group was not “composed wholly of full-time or permanent part-time officers or employees of the Federal Government.”[68] Nor was it a local civic group, a group established to advise state or local officials, or a group established by or on behalf of a foreign country.[69] Finally, the group had no “operational” function, and therefore was not “primarily operational” in nature.[70] Non-exempt advisory committees must be formed and operated pursuant to FACA.
Yet, there is no evidence that any of FACA’s requirements were followed in the Climate Working Group’s formation or operation.[71] The group therefore was formed and operated in violation of FACA.
Of particular concern, FACA regulations require the appointment of a “fairly balanced membership, as appropriate based on the nature and functions of the advisory committee, as documented through the agency’s Membership Balance Plan (MBP).”[72] But, as discussed above, the members of the Climate Working Group all represent a single shared “red team,” climate skeptic perspective regarding the aspects of climate science they advised on. Their inclusion, together, as the exclusive authors of a scientific advisory report therefore represented a lack of membership balance and indicates they were, in fact, chosen precisely to avoid such balance.[73] This lack of membership balance may also be indicative of the committee’s intended advisory function.
The DOE’s report itself also states that the authors agreed to draft the report only “on the condition that there would be no editorial oversight by the Secretary, the Department of Energy, or any other government personnel.”[74] While this was framed as a protection of the group’s independence, in this case it appears also to reflect an attempt to protect the authors from engagement with qualified experts at the DOE and elsewhere. The legal way to protect advisory committee independence is to adhere to FACA’s requirements.[75]
Failure to comply with FACA should render all of the advice and opinions provided to the DOE in the DOE’s report unusable for purposes of federal policymaking and decision-making. Concerned litigants would be justified to seek a use injunction on that basis.[76] If at any point in the future the DOE’s, or any other federal agency’s, policymaking or decision-making incorporates, adopts, or refers to positions taken in this report, courts would be justified in concluding the department or agency has improperly relied on the report, and in reversing the Department’s or other agency’s actions on that basis.
And yet, it is clear the EPA relied extensively on the DOE’s report in crafting its justifications for its rescission of the endangerment finding. On the same day the DOE’s draft report was released publicly, and prior to the opportunity for any public comment, the EPA cited the DOE’s report repeatedly in its proposed rescission rule, treating the DOE report as a central scientific justification for the EPA’s action.[77] Even lacking any other legal inadequacies, the EPA’s reliance on the report in this likely fashion violated the Administrative Procedure Act, which requires federal agencies to base their regulatory decisions on credible scientific information.[78] But given its heavy reliance on the DOE report, the EPA itself should be deemed to have violated FACA for relying on the work of an illegal advisory committee formed in secret by a partner federal agency.
The climate science that formed the basis of the EPA’s original endangerment finding has only grown stronger in the years since 2009. To produce a report contradicting this enormous body of evidence, the EPA and DOE had no choice but to “disproportionately elevate the views of a relatively small number of experts who disagree with mainstream scientists,” as the original critics of the “red team” proposal feared. Fortunately, FACA forbids this, and, again perhaps fortunately, by violating FACA, the DOE and EPA have rendered their subsequent decisions vulnerable to legal attack. The courts should act swiftly to prevent the EPA from using such flawed science to justify its ongoing deregulatory initiative.
[1] Reconsideration of 2009 Endangerment Finding and Greenhouse Gas Vehicle Standards, 90 Fed. Reg. 36288 (proposed Aug. 2, 2025) (to be codified at 40 C.F.R. pts. 85–86, 600, 1036–137, 1039).
[2] Massachusetts v. EPA, 549 U.S. 497 (2007).
[3] Repeal of Greenhouse Gas Emissions Standards for Fossil Fuel-Fired Electric Generating Units, 90 Fed. Reg. 25752 (June 17, 2025) (to be codified at 40 C.F.R. pt. 60); 40 C.F.R. pt. 50 (2025).
[4] Press Release, EPA, ICYMI: Administrator Zeldin in WSJ: “EPA Ends the ‘Green New Deal’” (Mar. 17, 2025).
[5] U.S. Dep’t. of Energy, A Critical Rev. of Impacts of Greenhouse Gas Emissions on the U.S. Climate (2025).
[6] Dep’t of Energy, Department of Energy Issues Report Evaluating Impact of Greenhouse Gasses on U.S. Climate, Invites Public Comment (July 29, 2025).
[7] U.S. Dep’t. of Energy, A Critical Rev. of Impacts of Greenhouse Gas Emissions on the U.S. Climate ix (2025).
[8] Adam D. Orford et. al, Comment Letter on Proposed Rule for the Reconsideration of 2009 Endangerment Finding and Greenhouse Gas Vehicle Standards (Aug. 25, 2025).
[9] Notice of Availability: A Critical Review of Impacts of Greenhouse Gas Emissions on the U.S. Climate, 90 Fed. Reg. 36150 (Aug. 1, 2025).
[10] Contra Contribution of Working Group I to the Sixth Assessment Report of the Intergovernmental Panel on Climate Change (IPCC), Climate Change 2021: The Physical Science Basis (Masson-Delmotte et al. eds. 2021) (summarizing the full body of scientific research establishing a connection between human activities and climate change); Contribution of Working Group II to the Sixth Assessment Report of the IPCC, Climate Change 2022: Impacts, Adaptation and Vulnerability (Pörtner et al. eds. 2022) (summarizing the full body of scientific research establishing the enormous likely future harms caused by climate change); Contribution of Working Group III to the Sixth Assessment Report of the IPCC, Climate Change 2022: Mitigating Climate Change (Shukla et al. eds. 2022) (summarizing the full body of scientific research establishing the manner in which those harms can be avoided, and the important role of law and policy in achieving those aims); see also U.S. Global Change Research Program, Fourth National Climate Assessment (2018).
[11] Paul Voosen, Contrarian Climate Assessment from U.S. Government Draws Swift Pushback, Science (Jul. 30, 2025, 5:45 PM); Manon Jacob, US Energy Department Misrepresents Climate Science in New Report, AFP Fact Check (Aug. 1, 2025, 5:42 PM); Maxine Joselow & Brad Plumer, Energy Dept. Attacks Climate Science in Contentious Report, N.Y. Times (Aug. 2, 2025).
[12] Ayesha Tandon et al., Factcheck: Trump’s Climate Report Includes More Than 100 False or Misleading Claims, CarbonBrief (Aug. 13, 2025).
[13] Climate Experts’ Review of the DOE Climate Working Group Report (Andrew Dessler & R.E. Kopp, eds., 2025).
[14] Adam D. Orford et. al, Comment Letter on Proposed Rule for the Reconsideration of 2009 Endangerment Finding and Greenhouse Gas Vehicle Standards, at 14 (Aug. 25, 2025).
[15] Proposed Rule: Reconsideration of 2009 Endangerment Finding and Greenhouse Gas Vehicle Standards, 90 Fed. Reg. 36288 (Aug. 1, 2025).
[16] 5 U.S.C. § 1001 et seq.
[17] Steven Koonin, A ‘Red Team’ Exercise Would Strengthen Climate Science, WSJ: OPINION (Apr. 20, 2017, 6:49 PM).
[18] Emily Holden, Pruitt Will Launch Program to ‘Critique’ Climate Science, POLITICO: E&E NEWS (June 30, 2017, 8:10 AM).
[19] Id.; see also, Richard B. Rood, Red Team-Blue Team? Debating Climate Science Should Not Be a Cage Match, DeSmog (Aug. 18, 2017, 4:08 PM).
[20] Graham Readfern, EPA Chief Pruitt’s ‘Red Team’ on Climate Science Is an Eight-Year-Old Talking Point Pushed by Heartland Institute, DeSmog (Jun. 13, 2017, 10:37 AM).
[21] Kert Davies, Heartland Institute’s Climate Red Team Lists Revealed, CLIMATE INVESTIGATIONS CENTER (Oct. 25, 2017).
[22] Rob Bavender, Climate Science Debate ‘On Hold’ after White House Meeting, POLITICO: E&E NEWS (Dec. 15, 2017, 8:08 AM); Lisa Friedman & Julie Davis, The E.P.A. Chief Wanted a Climate Science Debate. Trump’s Chief of Staff Stopped Him, N.Y. Times (Mar. 9, 2018).
[23] Scott Waldman, Trump Allies Want to Resurrect ‘Red Teams’ to Question Climate Science, POLITICO: E&E NEWS (Nov. 20, 2024, 6:33 AM).
[24] Id.
[25] Maxine Joselow, Trump Hires Scientists Who Doubt the Consensus on Climate Change, N.Y. Times (Jul. 8, 2025); Hannah Northey & Christa Marshall, Researchers Who Question Mainstream Climate Science Join DOE, CLIMATEWIRE (Jul. 9, 2025, 6:21 AM).
[26] Andrew Freedman & Ella Nilsen, The Trump Admin Just Hired 3 Outspoken Climate Contrarians. Scientists are Worried What Comes Next, CNN: Climate (Jul. 8, 2025).
[27] See Travis Fisher, Why I Helped Organize the Department of Energy’s Climate Report, The Fishtank: Free Market Insights on Energy Policy (Aug. 6, 2025) (Fisher is the Director of Energy and Environmental Policy Studies at the Cato Institute).
[28] Id.
[29] Benjamin Storrow, How Chris Wright Recruited a Team to Upend Climate Science, POLITICO: E&E NEWS (Aug. 11, 2025, 6:15 AM).
[30] Id.
[31] Id.
[32] Roy Spencer, Some Thoughts on Our DOE Report Regarding CO2 Impacts on the U.S. Climate, Dr. Roy Spencer, Ph. D. Blog (July 31, 2025).
[33] See UAH, John R. Christy Ph.D.
[34] Elizabeth Royte, The Gospel According to John, DISCOVER: ENVIRONMENT (Feb. 1, 2001, 1:00 AM) (“Years ago he cast doubt on the idea that global warming is caused by humans— or that the phenomenon exists at all— and he has only grown more skeptical as most other atmospheric scientists have grown more certain.”); Dan Schwartz, The Last of the Climate Deniers Hold On, Despite Your Protests, VICE (Nov. 18, 2019, 11:15 AM) (discussing his career); Richard Banks, Alabama’s John Christy May Be the Country’s Best Known and Most Criticized Climate Change Skeptic, wbhm (Sep. 1, 2023) (“In the eyes of mainstream climate science, Christy’s and Spencer’s work has not aged well.”).
[35] Marianne Lavelle & Dennis Pillion, When Trump’s EPA Needed a Climate Scientist, They Called on John Christy, Inside Climate News: Politics (Nov. 2, 2020) (“Christy argued that Earth’s climate simply wasn’t that sensitive to changes in carbon dioxide. So, neither the weakened federal standards, nor California’s tougher standards, which the Administration repealed as part of its rollback, would make any difference.”). See generally DeSmog: Climate Disinformation Database, John Christy (last visited Sept. 6, 2025).
[36] See e.g., John Christy, The Global Warming Fiasco in Global Warming and Other Eco-Myths: How the Environmental Movement Uses False Science to Scare Us to Death (Ronald Bailey ed., 2002); John Christy, The Tropical Skies, Falsifying Climate Alarm, Global Warming Policy Foundation (2019); Testimony of John. R. Christy before the U.S. House Committee on Science, Space & Technology (Mar. 29, 2017); Testimony of John R. Christy before the U.S. Senate Committee on Commerce, Science, & Transportation Subcommittee on Space, Science and Competitiveness (Dec. 8, 2015).
[37] ResearchGate, Roy Spencer (last visited Sept. 6, 2025); Roy Spencer, As Retirement Approaches…, Dr. Roy Spencer, Ph. D. Blog (Oct. 26, 2024) (explaining that he is reliant on funding tied to Dr. Christy’s projects and will likely retire when Dr. Christy retires in 2026).
[38] His views have been discussed at, e.g., Paul Gattis, UAH Climate Expert Roy Spencer Calls Critics ‘Global Warming Nazis’; Anti-Defamation League Objects, AL.com (Feb. 26, 2014, 5:50 PM); Paul Gattis, 7 Questions with John Christy and Roy Spencer: Climate Change Skeptics for 25 years, AL.com (Apr. 1, 2015, 12:07 PM); Dana Nucitelli, A Revealing Interview with Top Contrarian Climate Scientists, The Guardian (Apr. 6, 2016, 9:00 AM). He also frequently blogs about his views at https://www.drroyspencer.com/. See also Roy Spencer, Global Warming and Nature’s Thermostat, WeatherQuestions.com (2008) (blaming rejection of research papers by journals on “censorship”); see generally DeSmog: Climate Disinformation Database, Roy Spencer (last visited Sept. 6, 2025).
[39] The Heartland Institute, Roy Spencer (last visited Sept. 6, 2025); The Heritage Foundation, Roy Spencer (last visited Sept. 6, 2025); CO2 COALITION: About (last visited Sept. 6, 2025); Cornwall Alliance, Roy W. Spencer (last visited Sept. 6, 2025). Dr. Spencer was a signatory of the Cornwall Alliance’s Evangelical Declaration on Global Warming, which tied climate skepticism to intelligent design. See Prominent Signers of “An Evangelical Declaration on Global Warming”, Cornwall Alliance (May 1, 2009). He appeared frequently on Rush Limbaugh’s radio show, where he was referred to as the network’s “official climatologist.” Dr. Roy Spencer’s New Book, THE Rush Limbaugh SHOW (Apr. 20, 2010).
[40] Georgia Tech, Judith Curry (last visited Sept. 6, 2025).
[41] Dr. Curry’s views are discussed at, e.g., Michael D. Lemonick, Climate Heretic: Judith Curry Turns on Her Colleagues, SCI AM (Nov. 1, 2010); Scott Waldman, Judith Curry Retires, Citing ‘Craziness’ of Climate Science, POLITICO: E&E NEWS (Jan. 4, 2017, 8:03 AM). She currently runs the blog Climate Etc.. Her technical views are summarized most recently in Judith Curry, Climate Uncertainty and Risk: Rethinking Our Response (2023). See generally DeSmog: Climate Disinformation Database, Judith Curry (last visited Sept. 6, 2025).
[42] See Alexander Michael Peterson et al., Discrepancy in Scientific Authority and Media Visibility of Climate Change Scientists and Contrarians, 10 Nature Commc’ns 3502 (2019). Although this article’s analysis has since been anonymized, Dr. Curry was listed as the fourth-most cited “contrarian” in the study. See DeSmog: Climate Disinformation Database, Judith Curry (last visited Sept. 6, 2025).
[43] See e.g., Judith Curry, Climate Models for the Layman, Global Warming Policy Foundation (2017); Judith Curry, Contending with Natural Disasters, Global Warming Policy Foundation (2019); Judith Curry, Climate Uncertainty & Risk: 2024 GWPF Annual Lecture, Global Warming Policy Foundation (Feb. 24, 2024) (reporting on presentation to the Heartland Institute’s International Conference on Climate Change).
[44] Hoover Institution, Steven Koonin (last visited Sept. 6, 2025).
[45] Christopher Joyce, Physics Community Strikes Back in Debate over Cold Fusion, New Scientist (May 6, 1989).
[46] Dr. Koonin’s views on climate science are summarized in his recent book. See Steven E. Koonin, Unsettled: What Climate Science Tells Us, What It Doesn’t, and Why It Matters (2021); but see Steven Vigdor & Tim Londergan, Debunked? A Review of Steven Koonin’s Book ‘Unsettled?’, DEBUNKING DENIAL (Oct. 4, 2021) (criticizing Dr. Koonin’s work); Mark Boslough, A Critical Review of Steven Koonin’s ‘Unsettled’, YALE Climate Connections (May 25, 2021). See generally DeSmog: Climate Disinformation Database, Steve Koonin (last visited Sept. 6, 2025).
[47] Fraser Institute, Ross McKitrick (last visited Sept. 6, 2025).
[48] See Chen et al., A Statistical Review on the Optimal Fingerprinting Approach in Climate Change Studies, 62 Climate Dynamics 1439 (2024) (“We provide a statistical review of the ‘optimal fingerprinting’ approach … in light of the severe criticism of McKitrick. . . . Our review finds that the ‘optimal fingerprinting’ approach would survive much of McKitrick (2022)’s criticism by enforcing two conditions related to the conduct of the null simulation of the climate model, and the accuracy of the null setting climate model. . . . We further provide the reason why the Feasible Generalized Least Square method, much advocated by McKitrick (2022), is not regarded as operational by geophysicists.”).
[49] Dr. McKitrick’s views on climate science were recently expressed in, e.g., Ross McKitrick, Fight Climate Extremists before They Upend Society, Troy MEDIA (Feb. 5, 2020). See also, Ross McKitrick, The Economic Impact and GHG Effects of the Federal Government’s Emissions Reduction Plan through 2030, FRASER INSTITUTE (July 2024). Dr. McKitrick has also worked with the Cato Institute. See CATO INSTITUTE, Ross McKitrick (last visited Sept. 6, 2025). He was previously active with the Cooler Heads Coalition and was a signatory of the Cornwall Alliance’s Evangelical Declaration on Climate Change. See generally DeSmog: Climate Disinformation Database, Ross McKitrick (last visited Sept. 6, 2025).
[50] Further reporting on each of the authors is easily available online. For a summary regarding the ways in which their views conflict with much more widely held understandings of climate science, see Skeptical Science, John Christy (last visited Sept. 6, 2025); Skeptical Science, Judith Curry (last visited Sept. 6, 2025); Gary Yohe, A New Book Manages to Get Climate Science Badly Wrong, SCI AM (May 13, 2021); Skeptical Science, Why Curry, McIntrye, and Co. are Still Wrong About IPCC Climate Model Accuracy (Oct. 4, 2013); Skeptical Science, Roy Spencer (last visited Sept. 6, 2025). Many critiques of their positions are also available in published scientific literature.
[51] E.g., Benjamin Storrow, DOE Questions Climate Change Consensus, POLITICO (Jul. 30, 2025, 6:09 PM); Scott Waldman & Benjamin Storrow, DOE Reframes Climate Consensus as a Debate, POLITICO: E&E NEWS (Jul. 31, 2025, 6:30 AM).
[52] Naomi Oreskes & Erik M. Conway, Merchants of Doubt: How a Handful of Scientists Obscured the Truth on Issues from Tobacco Smoke to Global Warming (2010) (reviewing counter-scientific discourse development in cigarette smoking, acid rain, ozone depletion, climate change, and DDT policy contexts).
[53] Recent reviews include Laila Mendy et al., Counteracting Climate Denial: A Systematic Review, 33 Pub. Understanding Sci. 504 (2024); John Cook, Deconstructing Climate Science Denial in Research Handbook in Communicating Climate Change (Holmes & Richardson, eds., 2020). See also Pascal Diethelm & Martin McKee, Denialism: What Is It and How Should Scientists Respond?, 19 Eur. J. Pub. Health 2 (2009) (defining denialism as “the employment of rhetorical arguments to give the appearance of legitimate debate where there is none, an approach that has the ultimate goal of rejecting a proposition on which a scientific consensus exists.”). With respect to the quantification of consensus, see Krista F. Myers et al., Consensus Revisited: Quantifying Scientific Agreement on Climate Change and Climate Expertise Among Earth Scientists 10 Years Later, 16 Env’t Rsch. Letters 104030 (2021) (reviewing literature quantifying the scientific consensus on climate change, and finding that among scientists interviewed, 98.7% agreed that “the Earth is getting warmer mostly because of human activity such as burning fossil fuels,” while among the most qualified experts 100% agreed). With respect to common methodological issues in the contrarian literature, see Rasmus Bernstad et al., Learning from Mistakes in Climate Research, 126 Theoretical and Applied Climatology 699 (2016).
[54] See e.g., Eric Bonds, Beyond Denialism: Think Tank Approaches to Climate Change, 10 Socio. Compass 306 (2016) (identifying emerging discourses promoting limited climate mitigation, climate adaptation, and climate opportunism).
[55] See, e.g., Nicola Bozzi, Platforming the Joe Rogan Experience: Cancel Culture, Comedy, and Infrastructure, 26 Television and New Media 74 (2024); Jay Daniel Thomson & Kurt Sengal, The Platforming Is the Point: News Media, ‘the Oxygen of Amplification’, and Interviewing the Far-Right, Sage Journals: Communication and the Public (2025).
[56] 5 U.S.C. § 1001 et seq.
[57] Steven P. Croley & William F. Funk, The Federal Advisory Committee Act and Good Government, 14 Yale J. on Regul. 451, 458-465 (1997).
[58] Id.
[59] 5 U.S.C. § 1001(a).
[60] 41 C.F.R. Part 102-3.
[61] See U.S. Department of Energy, Manual of Advisory Committee Management Program (Oct. 22, 2017).
[62] See U.S. Department of Energy, A Critical Review of Impacts of Greenhouse Gas Emissions on the U.S. Climate, at iii (July 23, 2025) (naming authors); Id. at viii (the Secretary of Energy states that he “asked” for the report and “select[ed]” the group).
[63] The DOE Report states that the group was asked “to critically review the current state of climate science, with a focus on how it relates to the United States,” with no further explanation regarding the purpose of the review. Id. at viii. The only other stated purpose is found in the report’s Notice of Availability, which states that information submitted in response to the report “may be used to assist DOE in planning the scope of future research efforts,” implying that the report itself was produced at least in part for the same purpose. Notice of Availability: A Critical Review of Impacts of Greenhouse Gas Emissions on the U.S. Climate, 90 Fed. Reg. 36150 (Aug. 1, 2025). The history discussed above, and its use by the EPA, indicate its purpose was in part to support agency decision-making. See Northwest Forest Res. Council v. Espy, 846 F. Supp. 1009 (D.D.C. 1994) (finding that FACA applied to a group purported only to have produced a technical assessment because evidence indicated that the report had influenced the government’s policymaking in a variety of ways); Nat’l Nutritional Foods Ass’n v. Califano, 603 F.2d 327 (2d Cir. 1979) (finding evidence existed from the advisory committee that FDA relied on limited viewpoints of selected group); Nat’l Res. Def. Council v. Herrington, 637 F. Supp. 116 (D.D.C. 1986) (examining parochial interests of group members in determining application of FACA, and finding FACA did not apply only where expert committee found to have no stake in the outcome, and were widely recognized as credible experts; neither of which is the case here); Heartwood, Inc. v. U.S. Forest Serv., 431 F. Supp. 2d 28 (D.D.C. 2006) (explaining that even where a group made no policy recommendations, advisory committee existed where their report provided the framework, context and information that an agency could rely on in making policy decisions).
[64] Framing the purpose of the report only as to inform or educate the DOE of minority scientific viewpoints on various topics would not save the report from FACA. The report as written is intended not only to inform, but to promote certain specific scientific viewpoints, and the existence of FACA itself implies that the federal government cannot solicit, sponsor, create, refer to, or rely on reports intended entirely to promote marginal scientific views relevant to federal policymaking and decision-making. Even to the extent that such a report could legally be produced by an advisory committee, the group’s formation would still need to comply with FACA’s membership balance requirements to ensure a thorough, comprehensive, and fully contextualized presentation of the various issues under analysis.
[65] See 41 C.F.R. § 102-3.40 (listing exemptions).
[66] Id. §§ (a-c).
[67] Id. §§ (d), (e). The authors functioned as a group, not individuals. The DOE has indicated the group’s work may be used to direct research. The context of the group’s creation indicates their report is intended to inform policy, and the group’s work was a one-way report, not an exchange of information between the DOE and the group. See Heartwood, 431 F. Supp. 2d 28 (addressing these factors).
[68] Id. §§ (f), (g). There has been public reporting that some, but not all of the members, may have been appointed to temporary positions at the DOE. See also Maxine Joselow, Trump Hires Scientists Who Doubt the Consensus on Climate Change, N.Y. Times (July 8, 2025).
[69] Id. §§ (h), (i), (k).
[70] Id. § (j). Primarily operational groups are those that directly make or implement policy. See, e.g., HLI Lordship Indus., Inc. v. Comm. for Purchase from the Blind & Other Severely Handicapped, 615 F. Supp. 970, 978–79 (E.D. Va. 1985), rev’d on other grounds, 791 F.2d 1136 (4th Cir. 1986) (explaining the group operating pursuant to regulation in various capacities was primarily operational); Pub. Citizen v. Comm’n on the Bicentennial of U.S. Const., 622 F. Supp. 753, 758 (D.D.C. 1985) (stating the commission operating by statutory mandate was primarily operational); Jud. Watch, Inc. v. Clinton, 76 F.3d 1232, 1233 (D.C. Cir. 1996) (explaining the trust primarily engaged in soliciting, managing funds, and providing no advice to government was primarily operational).
[71] The group has not been listed in GSA or DOE advisory committee databases. The GSA FACA database is available at https://www.facadatabase.gov/FACA/s/account/001t000000DCAopAAH/department-of-energy. The DOE’s online list does not appear to be complete: https://www.energy.gov/secretarial-boards-and-councils/federal-advisory-committee-management. There is no record in either database of FACA compliance for this “Working Group.”
[72] 41 C.F.R. § 102-3.60(b)(3).
[73] The Secretary stated: “I chose them for their rigor, honesty, and willingness to elevate the debate.” U.S. Department of Energy, A Critical Review of Impacts of Greenhouse Gas Emissions on the U.S. Climate, at viii. This does not appear to be true. However, to the extent that it is, the DOE should release information regarding its efforts to develop definitions of these selection criteria, to assess all potentially qualified authors against these selection criteria, and to ensure a fairly balanced membership.
[74] U.S. Department of Energy, A Critical Review of Impacts of Greenhouse Gas Emissions on the U.S. Climate, at x (July 23, 2025).
[75] U.S. Gov’t Accountability Off., GAO-08-611T, Testimony Before the Subcomm. on Investigations and Oversight, H. Comm. on Science and Technology: Issues Related to the Independence and Balance of Advisory Committees (2008)
[76] See e.g., Western Org. of Res. Councils v. Bernhardt, 412 F. Supp. 3d 1227, 1242 (D. Mont. 2019) (granting use injunction); NAACP Legal Def. & Educ. Fund, Inc. v. Barr, 496 F. Supp. 3d 116, 146 (D.D.C. 2020) (discussing standards for issuance of use injunction); see Lawyers’ Comm. for Civ. Rts. Under L. v. Presidential Advisory Comm’n on Election Integrity, 265 F. Supp. 3d 54, 65-66 (D.D.C. 2017) (explaining that although FACA does not provide an independent cause of action, judicial review is still available through the APA and mandamus act).
[77] Reconsideration of 2009 Endangerment Finding and Greenhouse Gas Vehicle Standards, 90 Fed. Reg. 36292, 36296, 36305, 36308-11 (Aug. 1, 2025) (cited as the “2025 CWG Draft Report”).
[78] 5 U.S.C. § 551 et seq. See e.g., Bark v. U.S. Forest Serv., 958 F.3d 865, 869 (9th Cir. 2020) (“An agency action is arbitrary and capricious [under the APA] if the agency has . . . entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.”).