By Chris Horner

Last night the Competitive Enterprise Institute, through its outside counsel Gibson Dunn, filed its brief arguing against NASA’s rather scattershot and contradictory effort to dismiss our lawsuit requesting certain documents under the Freedom of Information Act (FOIA)(press release available here).

Our suit, CEI vs. NASA (U.S. District Court for the District of Columbia), followed on the heels of ClimateGate, and a December 2009 Notice of Intent to Sue if NASA did not turn over certain records withheld since CEI sought them in August 2007 and January 2008 requests. That Notice was eleven months ago and, despite NASA offering some documents and admitting—temporarily—that certain others relating to the advocacy site used by NASA scientists, RealClimate.org were “agency records”, NASA then ceased its brief steps to comply with the transparency statute FOIA.

Despite NASA stonewalling CEI has already learned, for example, that NASA does not, contrary to widespread media and pressure group claims, have an independent temperature data set. Instead, as NASA told USA Today in an email, despite its serial, breathless press releases trumpeting some new temperature high, it actually is just a modeling office, which also (for unknown reasons, possibly extra attention and importance, or mere advocacy) cobbles together some US data from the National Climatic Data Center (NCDC) with that of the Climatic Research Unit’s temperature history. You may recall how CRU withdrew its claim to a temperature history data set after ClimateGate led to an admission it actually lost its data.

Specifically, CEI’s FOIA suit seeks documents and emails relating to NASA’s temperature record, which NASA was forced to correct in response to criticism from a leading climate watchdog, Steve McIntyre.  Those corrections destroyed NASA’s stance that U.S. temperatures have been steadily rising in recent years and returned 1934, not 1998, to being the warmest year on record. NASA refuses to give CEI the computer file they used to make these changes, whose title includes “Steve” and “alternate cleaning.”

CEI also seeks emails from NASA scientists using Real Climate.org on official time using official resources, often to advance what NASA’s Goddard Institute for Space Studies (its climate activist office) has decided is appropriate public advocacy.

In addition to uncovering the “Steve"/"cleaning" file, a few of the more interesting pieces of evidence expounded upon in CEI’s brief include:

* After CEI filed the FOIA seeking RealClimate emails, administrators at Real Climate deleted all timestamps on all of their postings, making it impossible to show they were made during work hours.  But we kept color copies of the original posts.

* NASA admits that it discovered 3,500 emails on Dr. Schmidt’s NASA computer related to his work on RealClimate but won’t produce them.

* NASA did not ask Dr. Schmidt to look for responsive records until 22 months after we sent them the FOIA and threatened to sue.  It is highly likely relevant emails were destroyed during this period.

* NASA’s delay in responding to CEI’s FOIA requests was extraordinary, far outside its normal or even most egregious examples of delay or non-compliance. For instance:

o NASA took more than 900 days to produce documents pursuant to CEI’s two 2007 requests.  The agency took more than 700 days to produce records in response to CEI’s 2008 request.  NASA does not explain these delays. FOIA requires that an agency produce responsive records within 20 days. Although agencies rarely meet that deadline, even for “complex” FOIA requests, NASA’s average processing time is under 100 days. In 2008, NASA processed complex requests in 82 days, on average. In 2009, it processed such requests in 89 days, on average.

o Prompted by congressional inquiries, the NASA Inspector General investigated the delay associated with these FOIA Requests. The Inspector General determined that the delays were caused by “inadequate direction” as to what documents were requested; “inadequate communication between NASA personnel; and “inadequate staffing” at the Goddard FOIA office.  In reality, one of the primary reasons for the delay was that NASA did not inform GISS officials about one of the requests and inexplicably held documents for years instead of producing them on a rolling basis, as requested.

We should argue this within the month. CEI requests the court allow it to proceed to the discovery stage next, examining records and deposing relevant witnesses. See post on American Spectator here.

Enlarged here.

ICECAP NOTE: See how above NASA alter the global temperatures regularly. You can see the changes made in 2007 after McIntyre discovered an issue “millennium bug” but see how it was reversed in 2007, probably after NOAA eliminated the urban heat island adjustment. See in the comparison below how NASA/NOAA has changed history dramtically - cooling off the warm blip of the 1930s-1950s amd warming the post 1980 data.

Enlarged here.

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Threat of Oversight Claims First Scalp?
By Chris Horner, American Spectator

Politico reports:

EPA policy chief steps down

One of the Obama administration’s most aggressive officials on global warming regulations is stepping down from her post at the Environmental Protection Agency.

Lisa Heinzerling, the head of EPA’s policy office, will return to her position as a Georgetown University law professor at the end of the year, said EPA spokesman Brendan Gilfillan.

Within EPA, Heinzerling is one of the more dogmatic proponents of regulating greenhouse gases to the maximum extent possible under the Clean Air Act.

There are two camps within the agency on climate, said an environmental advocate who spoke on background. The Heinzerling camp, with the mind-set that, “we have the law on our side; let’s go get them.” In the other camp are Administrator Lisa Jackson and EPA air chief Gina McCarthy, who are trying to maintain the support of the White House and Congress…

“I think she’s probably the farthest left and most committed of anyone on the team, with the exception of Carol Browner,” on climate change, said an industry attorney familiar with the agency, referring to the former agency administrator and President Barack Obama’s energy and climate adviser.

Certain private interests have pursued inquiry of Ms. Heinzerling’s activities while in this perch for some time. I’m just guessing, but this longtime partisan and activist may have heard footsteps and got out while the getting was less bad. Read more here.