A closer look at Obama's judges, federal agencies, and his approach to science and secrecy

by Judith Lewis Mernit and Ray Ring

Federal judges

Background Judges strive to be objective, but they're only human. Studies show that federal judges appointed by Democratic presidents show a slight tendency to rule in favor of environmentalists' positions, while Republican judges tend toward the opposite. When Obama took office, nearly 60 percent of the active federal judges were Republican.

Since a federal judgeship is a lifetime appointment, it is arguably the arena in which a president has the longest-lasting impact.

The struggle Obama could significantly affect the partisan balance on the bench: About 55 of the 875 lifetime judgeships were vacant when he took office, and more become vacant as judges retire. The Senate has approved 62 nominations so far, including two Supreme Court justices (making the court now 5-4 Republican) as well as promotions of some Clinton-era judges to higher courts. But Obama has yet to nominate candidates for all the vacancies, and he faces unusual resistance from Senate Republicans who have refused to approve dozens of his nominees. In the Western and Washington, D.C., courts that rule on cases brought by Western environmentalists, there are now about two dozen vacant judgeships.

Example Nancy Freudenthal, the wife of former Wyoming Gov. Dave Freudenthal, is one of roughly a dozen new Obama judges on Western courts. She replaced elderly U.S. District Judge Clarence Brimmer, who was appointed by Republican President Reagan and often ruled against environmentalists. (Brimmer is on senior status now, handling only a few cases.) One of Judge Freudenthal's first rulings, last September, upheld most of the U.S. Fish and Wildlife Service's plan to designate critical habitat for lynx in six states. Snowmobile groups were disappointed; environmentalists were pleased.

On the horizon U.S. District Judge Don Molloy in Missoula, Mont. -- who often handles cases about wolves, grizzlies and national forests -- plans to go on senior status later this year. Environmentalists generally like Molloy, while conservatives complain that he's biased against them. Obama has not yet nominated a replacement; it will be a key appointment.

by Ray Ring


Fish and Wildlife Service

Background The U.S. Fish and Wildlife Service, an agency within the Interior Department, manages 150 million acres of wildlife refuges, fish hatcheries and conservation wetlands. It also determines whether to list species as endangered or threatened and works with local governments to enforce laws. Its staff of nearly 10,000 had a $2.6 billion budget in 2010.

The struggle A series of Inspector General investigations from 2004 to 2008 revealed a "culture of fear" within Interior, especially at Fish and Wildlife, where Deputy Assistant Secretary Julie MacDonald "bullied, insulted and harassed the professional staff ... to change documents and later biological reporting."

H. Dale Hall, the Bush appointee who ran the agency from 2005 on, confirms that the "reports were pretty accurate," and says he pressured MacDonald to cease tampering with science. MacDonald quit after an ethics scandal in 2007, but in 2008, the IG found the "enormous policy void" that MacDonald exploited had remained through several administrations.

Obama appointed a 30-year agency veteran, Sam Hamilton, to succeed Hall, but he suffered a fatal heart attack in February 2010. Then Obama took 10 months to nominate a new director, Dan Ashe, a second-generation Fish and Wildlife veteran who seems to be what science-lovers hoped for. "He led the push for greater scientific integrity in this agency," according to spokesman Chris Tollefson. "That he's been nominated is an encouraging sign to many people."

On the horizon Tollefson says that within the next year the agency intends to "engage the public to find solutions" to the hobbled endangered species program, where there's a backlog of listings (more than 250 species wait in the queue) and constant lawsuits for and against listings. Since 2007, environmentalists have also filed petitions seeking a huge increase in critical habitat designations for more than 1,200 species.

Controversial court rulings about wolves have increased the political pressure to reform or weaken the Endangered Species Act. Hall, now CEO of Ducks Unlimited, is among those who contend that something needs to be done legislatively: "We've had a virtual Ph.D. program in (the law's) ambiguities -- administered to us by the courts."

by Judith Lewis Mernit


Department of Energy

Background The Energy Department's nearly $30 billion budget funds research on new energy sources, grid modernization and transmission projects. The DOE also safeguards energy-associated nuclear materials.

Bush's first Energy secretary, Spencer Abraham, was a former senator who once voted to abolish the agency; the second, Samuel Bodman, served in the departments of Commerce and Treasury but showed little interest in energy. Both effectively carried out Bush's policy, which subsidized oil and gas and promised loan guarantees for nuclear power but offered little support for renewable energy.

By contrast, Obama's Energy secretary, Steven Chu, has a sterling pedigree in alternative energy research and experience in the energy sector, as well as a Nobel Prize: He pioneered a method of trapping and cooling atoms with lasers. He's also a skilled scientific interpreter for the lay audience: During the December climate conference in CancĂșn, Mexico, Chu spoke about the deep science of carbon monitoring, explaining with startling clarity how molecular physics can separate anthropogenic fossil-fuel carbon in the atmosphere from the kind that, for instance, is emitted by an exhaling human.

The struggle Chu has gone on record as pro-nuclear energy, but under his watch DOE stalled nuclear waste storage at Nevada's Yucca Mountain, and the 2011 budget request effectively closes the Office of Civilian Radioactive Waste Management. The small fossil-energy research budget has been refocused on carbon capture and storage research.
Meanwhile, DOE is moving aggressively on clean energy: The 2011 budget request includes a 22 percent increase in solar energy investment and a 53 percent increase for wind. In December, DOE approved a $1.45 billion guaranteed loan for Spanish developer Abengoa's Solana solar-thermal project -- a "parabolic trough" design that uses the sun to heat a liquid and spin a turbine. Solana will occupy degraded land -- former alfalfa fields near Gila Bend, Ariz. -- and store energy through the night in molten salt.

Chu's Energy Department also secured $400 million in stimulus grants for the Advanced Research Projects Agency for Energy, or ARPA-E, which Congress created as part of the America COMPETES Act of 2007 but never before funded. ARPA-E promotes "creative, out-of-the-box, transformational" ways to produce low-carbon domestic energy; its flagship projects include a collaboration among Rutgers University, MIT and UCLA to develop a recyclable electrochemical vehicle fuel; an effort by 1366 Technologies to slash the cost of manufacturing solar panels; and a drilling technology that Littleton, Colo.-based Foro Energy hopes will penetrate the basement rocks of geothermal energy fields.

On the horizon Obama has appointed a panel to look into the nuclear waste problem, and has a government-industry collaboration investigating ways to mitigate coal emissions. ARPA-E's funding, however, is in peril: Rep. Ralph Hall, R-Texas, who now heads the House Science and Technology Committee, says ARPA-E is already "heavily drowned in money." Obama obliquely defended the investment in his State of the Union speech, but left out the best argument: ARPA-E's cousin, the Defense Department's ARPA, or DARPA, developed the original networks that seeded the Internet.

by Judith Lewis Mernit

Forest Service

Background The U.S. Forest Service, an agency within the Agriculture Department, manages 193 million acres of forests and grasslands, with 35,000 employees and a $5 billion budget.

The struggle In recent years, the agency has become notorious for poor employee morale. In a 2010 "Best Places to Work in the Federal Government" survey, the Forest Service ranked 203 out of 224 agencies; on "effective leadership," it came in sixth from the bottom. Bush-era decisions to consolidate agency leadership in Albuquerque, N.M., and outsource various functions seem to have made morale worse.

Population growth, insect invasions, climate shifts and dwindling state budgets have burdened the Forest Service with seemingly insurmountable management problems. Firefighting consumes ever larger chunks of the agency's budget, leaving less money for land and resource management. In 1991, 13 percent of the budget went to fire management; in 2009, the figure had risen to 48 percent.

On the horizon Agriculture Secretary Tom Vilsack's first big policy speech, in Seattle in August 2009, vowed to put more emphasis on "restoring forest ecosystems." Vilsack also embraced Clinton's roadless-forest rule, which is being challenged in court by Wyoming's government and various Western industries; Vilsack has declared that no development proposal in inventoried roadless forest can go forward without his personal approval.

Collaboration among environmentalists, loggers and other stakeholders seems to be the watchword more than ever. "No one of us can do it alone," Forest Service Chief Tom Tidwell said in a November speech promoting his new Collaborative Forest Landscape Restoration Program, which makes the point that people are part of the "mosaics of Forest ecosystems." It's hard to predict how any of the imagined fixes would really improve the Forest Service, the Solomon's baby of federal agencies. As Montana Sen. Jon Tester says, for the most part, forest management "has come to a halt."

by Judith Lewis Mernit

Science and secrecy

Background In March 2009, alongside an order lifting Bush's ban on funding for stem-cell research, Obama issued a memorandum stating that "science and the scientific process must inform and guide decisions of my Administration on a wide range of issues." He directed the Office of Science and Technology Policy (OSTP) to develop a new scientific integrity policy to keep "scientific and technological information" from being "compromised" and protect whistleblowers.

The struggle The Interior Department proposed its own scientific integrity policy in August 2010, which read as if the most serious threat came from dishonest staff scientists rather than from the supervisors who might meddle in those scientists' work. Advocacy groups such as OMB Watch and the Union of Concerned Scientists complained, and a month later, Interior responded with a new policy that prohibits the altering of scientific conclusions by employees or management, adding that "employees will be protected if they uncover and report scientific misconduct by career or political staff."

On Dec. 17, 2010 -- 21 months after the president's deadline -- OSTP Director John Holdren finally issued official guidance to all federal agencies on all matters of science and technology. The memo calls for "the free flow of scientific and technology information" and "open communication ... between these experts and the public." But it also limits federal scientists' interactions with the public -- including journalists -- to those approved by the relevant public affairs office.

Why it's not enough As much as the Obama administration has promised "an unprecedented level of openness," journalists and other members of the public have at times confronted unprecedented restrictions -- especially when it comes to interviewing scientists. Rarely does an interview happen with an EPA or Fish and Wildlife staffer without a minder; some Forest Service employees have been explicitly forbidden from speaking with the press at all. Christy George of Oregon Public Radio, for instance, says that just as she sat down to interview Forest Service scientist Ron Neilson about his climate-change research, public affairs called and told him not to talk.

This administration's problem appears to be less about suppressing science than about directing the narrative: "The Obama administration is a very disciplined machine," says Jeffrey Ruch, head of PEER, "and they want to carry the message of the day. But the nature of transparency is that there will be uncontrolled chaotic releases of information from the bureaucracy. You can't have message control and transparency, too."

by Judith Lewis Mernit

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