When the new, fourth, edition of the Reference Manual on Scientific Evidence was released late last year,[1] I remarked that there were some new chapters,[2] including one on climate change. I found the addition of a chapter on climate change curious largely because I was unfamiliar with the science or the need to address the area for federal judges, and because I thought there were other more pressing topics, such as genetic causation, from which judges could benefit, but which were not included.
I confess that I did not read the new chapter on climate change,[3] which is not a subject that comes up in my practice or in my writing. Writers at the National Review, however, did read the chapter on climate, and found it objectionable. Writing on January 17th of this year, Michael Fragoso observed that the chapter on climate science was an advocacy piece that would resolve climate change litigation in favor of plaintiffs.[4]
If Fragoso’s charge is correct, the implications are extremely serious. Judges have an ethical obligation not to go beyond the adversary process to educate themselves about the factual issues before them in pending litigation. In the past, judges who have done so have found themselves on the wrong end of a petition for a writ of mandamus, and have been disqualified and removed from cases.[5] The Federal Judicial Center (FJC), which is the research and educational division of the federal courts, has tried to create a safe space for teaching judges about technical subjects that arise in litigation in a way that is balanced and removed from partisan advocacy. The last edition, the third, and the current edition, the fourth, of the Manual have been the joint product of the both the FJC and the National Academies of Science, Engineering and Medicine (NASEM), in the hope of producing disinterested tutorials on key areas of science that are important to judges in their adjudication of civil and criminal cases, as well as their performance of judicial review of regulation and agency action.
Following up on the National Review article, on January 29, 2026, the Attorneys General of 24 states[6] wrote a letter to Judge Robin Rosenberg, the director of the Federal Judicial Center. The letter identified the advocacy perspective of the climate chapter and its authors, who wrote what the Attorneys General described as an amicus brief that placed a thumb on the scales of justice, with respect to issues currently pending at all levels of the federal courts. The Attorneys General requested the immediate withdrawal of the offending chapter.
Judge Rosenberg is a savvy judge of scientific horse flesh. She presided over the Zantac multi-district litigation (MDL No. 2924), in which she excluded plaintiffs’ expert witnesses in a detailed, analytically careful opinion of over 300 pages.[7] On February 6, a week after the request to withdraw the climate chapter was made, Judge Rosenberg, wrote to West Virginia Attorney General John McCuskey, to report that the chapter had been omitted.[8] Given the prompt response from Judge Rosenberg, the decision was likely not a difficult one. A decision not to include this chapter, as written, in the first place, would have been an even easier one.
Retractions of publications of the NASEM, which includes what was formerly the Institute of Medicine, are rarer than hens teeth. This one received coverage and some intense harrumphing.[9] The retraction of the climate science chapter comes on the heels of a high-profile retraction, in December 2025, of an article in the prestigious journal Nature,[10] which argued that the costs of climate change would reach $38 trillion a year by 2049.[11]
The climate science chapter appears to be the outcome of what the late Daniel Kahneman called poor decision hygiene. The chapter in question had two authors, and both were from the same institution, published together, and shared the same advocacy perspectives on climate change. Hardly a team of rivals. The editors of the Manual certainly could have done better in selecting these authors and in editing the work product.
Jessica Wentz is a Non-Resident Senior Fellow at the Sabin Center for Climate Change Law, at the Columbia Law School. The Sabin Center website describes itself as “develop[ing] legal techniques to combat the climate crisis and advance climate justice, and train the next generation of leaders in the field.” The language of “combat” and “crisis” certainly suggests a hardened, adversarial stance. Wentz’s writings reveal her advocacy and adversarial positions.[12]
Radley Horton is a Professor at Columbia University’s Climate School. He describes his research as focusing on climate extremes, and related topics. Horton’s curriculum vitae, social media, social media, testimony,[13] and professional work certainly mark him as an advocate for “attribution science” in litigation to address climate crises. Horton and Wentz previously published a law review article that seems to be a brief for plaintiffs’ positions in climate litigation.[14] One of the key issues in climate litigation is whether litigation is an appropriate avenue for addressing climate issues, and Horton and Wentz have both clearly committed to endorsing litigation strategies, and the plaintiffs’ positions to boot.
This kerfuffle at FJC and NASEM has a larger meaning. There is a glib assumption afoot that the only conflicts of interest that matter are ones that are attributed to industrial stakeholders and their scientific supporters. This naïve view was attacked and debunked back in 1980, by Sir Richard Peto, writing in the pages of Nature. Sir Richard noted that whereas industry may downplay risks, “environmentalists usually exaggerate the likely hazards and are largely indifferent to the costs of control.” Positional conflicts can be, and often are, more powerful than the ones created by profit.[15]
[1] National Academies of Sciences, Engineering, and Medicine & Federal Judicial Center, REFERENCE MANUAL ON SCIENTIFIC EVIDENCE (4th ed. 2025) (cited as RMSE 4th ed.).
[2] Nathan Schachtman, A New Year, A New Reference Manual, in TORTINI (Jan. 5, 2026).
[3] Jessica Wentz & Radley Horton, Reference Guide on Climate Science, RMSE 4th ed.
[4] Michael A. Fragoso, Bias and the Federal Judicial Center’s ‘Climate Science’, NAT’L REV. (Jan. 17, 2026). Fragoso also took umbrage to the use of the silly phrase “pregnant people” elsewhere in the Manual. RMSE 4th ed. at 84.
[5] In re School Asbestos Litigation, 977 F.2d 764 (3d Cir. 1992). See Cathleen M. Devlin, Disqualification of Federal Judges – Third Circuit Orders District Judge James McGirr Kelly to Disqualify Himself So As To Preserve ‘The Appearance of Justice’ Under 28 U.S.C. § 455 – In re School Asbestos Litigation (1992), 38 VILL. L. REV. 1219 (1993);
[6] Alabama, Alaska, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Missouri, Montana, Nebraska, New Hampshire, North Dakato, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakato, Tennessee, Texas, Utah, West Virginia, West Virginia, and Wyoming.
[7] In re Zantac (Ranidine) Prods. Liab. Litig., 644 F. Supp. 3d 1075 (S.D. Fla. 2022).
[8] Hon. Robin Rosenberg, Letter in Response to Attorneys General (Feb. 6, 2026).
[9] Editorial Board, A Failed Climate Coup in the Courts, WALL ST. J. (Feb. 9, 2026); Charles Creitz, Judicial research center cuts climate section from judges’ manual, FOX NEWS (Feb. 9, 2026); Suzanne Monyak, Judiciary Cuts Climate Part of Science Manual after Backlash, BLOOMBERG LAW (Feb. 9, 2026).
[10] Maximilian Kotz, Anders Levermann & Leonie Wenz, The economic commitment of climate change, 628 NATURE 551 (2024) (retracted on Dec. 3, 2025).
[11] Authors retract Nature paper projecting high costs of climate change, RETRACTION WATCH (Dec. 3, 2025).
[12] Michael Burger, Jessica Wentz & Daniel Metzger, Climate science in rights-based advocacy contexts (June 28, 2020).
[13] Written Testimony of Radley Horton, Lamont Associate Research Professor, Columbia University, before the Committee on Science, Space, and Technology Subcommittee on Environment Sea Change: Impacts of Climate Change on Our Oceans and Coasts (Feb. 27, 2019).
[14] Michael Burger, Radley M. Horton & Jessica Wentz, The Law and Science of Climate Change Attribution, 45 COLUMBIA J. ENVT’L J. L. 57 (2020).
[15] Richard Peto, Distorting the epidemiology of cancer: the need for a more balanced overview, 284 NATURE 297, 297 (1980).
