Attorney General of Virginia's climate science investigation

The Attorney General of Virginia's climate science investigation is a civil fraud investigation of former University of Virginia professor Michael E. Mann, initiated in April 2010 by Virginia Attorney General Ken Cuccinelli. Cuccinelli's investigation followed the theft of thousands of emails and other documents from a server at the Climatic Research Unit of the University of East Anglia in the United Kingdom, which sparked the Climatic Research Unit email controversy‎. Cuccinelli issued a demand to the University of Virginia to turn over a wide range of records relating to work done by one of its former faculty members, Professor Michael E. Mann, a leading climate scientist whose emails were among those highlighted in the controversy. The demand was issued in connection with accusations by Cuccinnelli that Mann had possibly violated state fraud laws.

Cuccinelli's actions resulted in an outcry about a potential threat to academic freedom. The University of Virginia's faculty and numerous scientists and science organizations expressed particular concern. After initially suggesting that they would comply, university officials decided to contest Cuccinelli's demand and asked a state court to dismiss it as "fundamentally legally flawed".

Background

Main article: Climatic Research Unit email controversy

See also: Hockey stick controversy

In November 2009 a large number of documents and emails were taken without authorization from the University of East Anglia's Climatic Research Unit, apparently through hacking, and posted on the Internet. The vast majority of the emails were either sent to or received by four climate scientists, including Michael E. Mann of Pennsylvania State University (PSU).

The e-mails prompted a major controversy and five separate inquiries – three in the United Kingdom and two at PSU concerning Mann's work. Both of the PSU inquiries cleared him of any wrongdoing. PSU's final investigation report concluded that "there is no substance" to the allegations against Mann. The outcome of the investigation was welcomed by the Union of Concerned Scientists and the Project on Climate Science, who welcomed it as a "return to common sense" in the face of "a manufactured distraction". It was, however, criticized by the free-market Institute of Public Affairs who asserted that it had not been an independent review and that the university was "highly unlikely" to be critical of one of its most high-profile academics.

Mann taught at the University of Virginia (U.Va.), in the Department of Environmental Sciences, between 1999 and 2005. He became the Director of the PSU's interdepartmental Earth System Science Center in 2005. He has attracted widespread attention for his pioneering work on the temperature record of the past 1000 years, which was featured in the 2001 Third Assessment Report by the Intergovernmental Panel on Climate Change, but has been a subject of some controversy.

In January 2010, Ken Cuccinelli took office as Virginia's new Attorney General. He is a conservative global warming skeptic who has become a leading national voice in alleging that the evidence of global warming has been skewed by scientists. The following month he filed suit seeking to overturn a finding of the United States Environmental Protection Agency that greenhouse gases endanger public health..

Investigation and initial reaction

Cuccinelli's office issued a formal civil investigative demand to U.Va. on April 23, 2010 seeking a wide range of records relating to Mann's work at the university, in connection with an investigation into "possible violations" by Mann of the Virginia Fraud Against Taxpayers Act. Brian Gottstein, a spokesman for Cuccinelli, asserted that the Climatic Research Unit emails "indicate that some climate data may have been deliberately manipulated to arrive at pre-set conclusions" and the use of such data to apply for taxpayer-funded grants could constitute fraud.

The demand asked for all data and materials presented by Mann between 1999 and 2005 when he applied for five publicly-funded research grants, four of which were awarded by federal agencies, with a total value of $466,000. In addition, Attorney General Cuccinelli sought data, materials, and communications that he created, presented, or made in connection with those grants. It also demanded that U.Va. produce all correspondence or e-mails between Mann and 39 other scientists since 1999. A deadline of May 27, 2010 was set for the material to be turned over. The civil investigative demand was equivalent to a subpoena but did not require the Attorney General to file a lawsuit or to obtain the intervention or permission of a court so that he could make the demand.

The demand sparked a strong reaction from scientists around the world. Mann said that he believed that Cuccinelli was "simply trying to smear me as part of a larger campaign to discredit my science". Nineteen professors at Virginia's Old Dominion University issued a statement saying that Cuccinelli's actions "echo some of the worst offenses of the McCarthy era", alluding to the anti-Communist investigations of Senator Joseph McCarthy in the 1950s. They demanded that he "cease and desist from this and further 'witch hunts' driven by partisan political agendas that waste valuable state resources in a difficult economy." U.Va.'s Faculty Senate issued a statement criticizing the investigation as being politically motivated and "an inappropriate way to engage with the process of scientific inquiry" which "directly threaten[s] academic freedom" by "send[ing] a chilling message to scientists engaged in basic research involving Earth's climate and indeed to scholars in any discipline."

Eight hundred university faculty members across the US signed a petition organized by the Union of Concerned Scientists, which said in a statement: "Much of Virginia's scientific and academic community is appalled that their attorney general has launched such a blatantly political investigation." The American Civil Liberties Union of Virginia and the American Association of University Professors also criticized Cuccinelli's actions. A statement by the directors of the American Association for the Advancement of Science said that "scientists should not be subjected to fraud investigations simply for providing scientific results that may be controversial or inconvenient" and that investigations such as those Cuccinelli has initiated against Mann "could have a long-lasting and chilling effect on a broad spectrum of research fields that are critical to a range of national interests from public health to national security to the environment." The leading science journal Nature published an editorial describing the investigation as "an ideologically motivated inquisition that harasses and intimidates climate scientists" and noted it had been condemned even by climate change skeptics. Chip Knappenberger, assistant to global warming skeptic Patrick Michaels, said just as he "didn't like it when the politicians came after Pat Michaels," he "[doesn't] like it that the politicians are coming after Mike Mann." The Washington Post declared in an editorial that Cuccinelli had "declared war on the freedom of academic inquiry" and that he had demonstrated "a dangerous disregard for scientific method and academic freedom."

Litigation

Although U.Va. officials initially said that they would comply with Cuccinelli's demand, many scientists urged the university to resist. On May 27 U.Va. filed a petition with Albemarle County Circuit Court asking a judge to dismiss Cuccinelli's demand. The university argued that Cuccinelli had issued a vague, non-specific demand that exceeded his statutory authority: "Investigating the merits of a university researcher's methodology, results and conclusions (on climate change or any topic) goes far beyond the Attorney General's limited statutory power". The petition connected Cuccinelli's actions with his ongoing litigation about federal environmental policy and regulation. It argued in a subsequent brief that the demand was "fundamentally legally flawed".

Cuccinelli filed a brief in response insisting that he had a right to demand climate change records, arguing that "neither academic freedom nor the First Amendment have ever been held to immunize a person, whether an academic or not, from civil or criminal actions for fraud, let alone immunized them from an otherwise authorized investigation." A follow-up brief again asserted Cuccinelli's authority and questioned Mann's scientific findings, arguing that Mann and other scientists had manipulated scientific conclusions to produce results that could be used to support the regulation of carbon dioxide.

U.Va. responded by questioning Cuccinelli's motives, stating that his demand was "aimed squarely at Dr. Mann's scientific conclusions" and that more than a third of the attorney general's brief "is devoted to challenging and criticizing the research and conclusions of Dr. Mann and his co-authors." The University argued that given the importance of protecting academic freedom the court should not permit the attorney general to exceed his statutory power, and that "such a potentially invasive investigative tool should not be permitted to be used to target academics merely because the Attorney General disputes the legitimacy of their research and conclusions." It noted that four of the grants queried by Cuccinelli were received from the federal government and were therefore not covered by the Virginia Fraud Against Taxpayers Act, while the fifth was awarded before the statute was enacted in 2003. U.Va. argued that much of the information demanded by Cuccinelli had nothing to do with any of the five grants and was "not even remotely tailored to an investigation of a potential [fraud statute] investigation." The presiding judge, Cheryl V. Higgins, agreed to stay Cuccinelli's demand pending further oral hearings due to take place in late August.

See also

• Hockey stick controversy