Con­tro­ver­sial pro­fes­sor turns to law to pro­tect cli­mate work

The Washington Times Weekly - - Politics - BY DAVID SHERFINSKI

A former Univer­sity of Vir­ginia pro­fes­sor who has drawn the ire of cli­mate change skep­tics is en­ter­ing the le­gal fray over a con­ser­va­tive group’s pur­suit of his emails and doc­u­ments re­lated to his work.

At­tor­neys for Michael Mann, now a pro­fes­sor at Penn­syl­va­nia State Univer­sity, have filed a mo­tion to in­ter­vene in a case brought by the Amer­i­can Tra­di­tion In­sti­tute’s (ATI) En­vi­ron­men­tal Law Cen­ter and Vir­ginia state Del­e­gate Robert G. Mar­shall, Prince Wil­liam Repub­li­can.

Un­der a May or­der from a Prince Wil­liam County judge, the Univer­sity of Vir­ginia agreed to turn over a set of doc­u­ments it be­lieved were not ex­empt from the state’s Free­dom of In­for­ma­tion Act (FOIA) within 90 days to ATI.

Last month, ATI lawyers re­ceived a disk from the univer­sity con­tain­ing about 4,000 pages the univer­sity be­lieved were not ex­empt, though the group claims that the univer­sity had in­di­cated there were 9,000 such pages.

The group has ar­gued that the univer­sity is drag­ging its feet in pro­duc­ing the emails, while the univer­sity has in­sisted it is work­ing in a rea­son­able process to com­ply with the re­quest.

The univer­sity has un­til Sept. 21 to turn over doc­u­ments it be- lieves are ex­empt for re­view by ATI lawyers, un­der a gag or­der. Lawyers for Mr. Mann have also filed a mo­tion to stay pro­duc­tion of those doc­u­ments, though, and re­quested a hear­ing at 10 a.m. on Sept. 16 in Prince Wil­liam County Cir­cuit Court.

ATI and Mr. Mar­shall had filed a FOIA re­quest seek­ing doc­u­ments, in­clud­ing emails, re­lated to Mr. Mann, who is as­so­ci­ated with the in­fa­mous “hockey stick” cli­mate change graph chart­ing a rapid in­crease in the tem­per­a­ture of the earth’s sur­face dur­ing the 20th cen­tury.

In a sep­a­rate but sim­i­lar case, Vir­ginia At­tor­ney Gen­eral Ken­neth T. Cuc­cinelli II filed civil in­ves­tiga­tive de­mands, akin to a sub­poena, seek­ing records from the univer­sity to de­ter­mine whether Mr. Mann de­frauded Vir­ginia tax­pay­ers through seek­ing and ob­tain­ing grants. An Albe­marle Cir­cuit Court judge set aside the de­mands last year, but Mr. Cuc­cinelli has since ap­pealed the rul­ing in a case cur­rently be­fore the state’s Supreme Court and filed a new de­mand in re­sponse to the judge’s rul­ing.

Christo­pher Horner, di­rec­tor of lit­i­ga­tion for ATI’s En­vi­ron­men­tal Law Cen­ter, blasted the re­cent de­vel­op­ment.

“Dr. Mann’s late-hour tac­tics of­fer the spec­ta­cle of some­one who re­lies on the me­dia’s re­peats of his un­true claims of hav­ing been ‘in­ves­ti­gated’ and ‘ex­on­er­ated’ — that is, when he’s not sput­ter­ing ad hominem and con­spir­acy the­o­ries to change the sub­ject,” he said. “Mann has tried what­ever means pos­si­ble to en­sure he re­mains free of any se­ri­ous scrutiny, and this just ap­pears to be his last gasp.”

Lawyers for Mr. Mann, how­ever, ar­gue the pro­fes­sor was not pro­vided a copy of the pro­tec­tive or­der un­til af­ter it was en­tered into the court, and that he wanted to in­ter­vene but lacked the money to do so.

But “re­cently, through a fundrais­ing ef­fort by the sci­en­tific com­mu­nity,” Mr. Mann was able to re­tain coun­sel, they wrote.

In­deed, Mr. Mann has been widely cleared of aca­demic mis­con­duct, in­clud­ing, most re­cently, by the U.S. National Sci­ence Foun­da­tion Of­fice of the In­spec­tor Gen­eral.

“My re­search and meth­ods have been a mat­ter of pub­lic record for more than a decade, and our find­ings have re­peat­edly been re­pro­duced and con­firmed by other sci­en­tists, and val­i­dated by the U.S. National Academy of Sciences,” Mr. Mann wrote in an email to The Washington Times. “No group has the right to ac­cess ev­ery sin­gle pri­vate email a sci­en­tist sends just as they have no right to root through a sci­en­tist’s phys­i­cal mail­box.

“I clearly have the right to make sure that my in­ter­ests are rep­re­sented in any mat­ters in­volv­ing the re­lease of my pri­vate emails. Ap­par­ently, Mr. Horner wishes this were some­how not the case — which is re­ally a state­ment about him, and his ethics and in­tegrity, more than any­thing else.”

The univer­sity does not com­ment on pend­ing lit­i­ga­tion or mo­tions of this na­ture, spokes­woman Carol Wood wrote in an email.

“The Univer­sity has con­sis­tently stated that it will pro­duce all re­spon­sive, non-ex­empt records that are pub­lic doc­u­ments,” she wrote. “The Univer­sity has also con­sis­tently said that it will care­fully re­view Mr. Mann’s email in or­der to pro­tect what is legally ex­empt through FOIA.”

David Schnare, di­rec­tor of ATI’s En­vi­ron­men­tal Law Cen­ter, said Mr. Mann lacks stand­ing to even en­ter the case.

“He’s not a cus­to­dian of these doc­u­ments,” Mr. Schnare said. “Un­der the law in Vir­ginia, he can’t en­ter the case.”

Lawyers for Mr. Mann ar­gue he does have stand­ing and “un­ques­tion­ably has an in­ter­est in this lit­i­ga­tion be­cause Pe­ti­tion­ers seek the pro­duc­tion of Dr. Mann’s per­sonal e-mail com­mu­ni­ca­tions with pro­fes­sional col­leagues through­out the world re­gard­ing cli­mate change and other scien- tific is­sues.”

They also wrote that Mr. Mann’s in­ter­ests are not ad­e­quately pro­tected due to the “mere fact” that Mr. Schnare and Mr. Horner, un­der the pro­tec­tive or­der, can re­view the ex­empted emails, though they would do so un­der a gag or­der.

Mr. Schnare, though, said that he and Mr. Horner were bound by law not to use the doc­u­ments ex­cept, un­der seal, to turn them over to a judge to ar­gue if any­thing fur­ther should be made pub­lic.

“That will be the to­tal­ity of Mr. Horner and I’s op­por­tu­nity to weigh in on this,” Mr. Schnare said Sept. 6. “Mr. Horner and I will never be per­mit­ted to speak about what­ever we’ve seen, and if any­one finds out that we have, we’ll have to [. . . ] go to jail.”

But that prospect still didn’t sit well with Michael Halpern, man­ager for the Union of Con­cerned Sci­en­tists’ (UCS) Sci­en­tific In­tegrity Pro­gram. UCS was one of a con­sor­tium of groups that last month sent a let­ter to Univer­sity of Vir­ginia Pres­i­dent Teresa Sul­li­van ask­ing for a re­vi­sion of the pro­tec­tive or­der.

“ATI should not be given spe­cial priv­i­leges,” he said. “It’s in­ap­pro­pri­ate for any out­side group to have ac­cess to emails about stu­dent grades, re­search de­vel­op­ment and other priv­i­leged in­for­ma­tion.”

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