Judge Sides With UVa Over State Attorney General's Climate-Research Inquiry

Marvin Joseph, The Washington Post, Getty Images

Kenneth T. Cuccinelli, Virginia's attorney general, sought e-mails and other documents related to a climate-change scientist's work at the University of Virginia.
August 30, 2010

A state judge in Virginia on Monday threw out an attempt by the state's attorney general, Kenneth T. Cuccinelli, to force the University of Virginia to surrender more than a decade's worth of documents related to a leading researcher of climate change.

The judge, Paul M. Peatross Jr., said in his six-page ruling that Mr. Cuccinelli did not sufficiently explain what he believes the former University of Virginia professor, Michael E. Mann, may have done wrong. "The nature of the conduct is not stated so that any reasonable person could glean what Dr. Mann did to violate the statute," Judge Peatross wrote.

Mr. Mann and his supporters in national academic and civil-liberties groups celebrated the ruling, calling it a clear defeat for a state prosecutor who appeared to be using the power of his office to intimidate scientists who have warned of the dangers of manmade global warming.

"It looks like a pretty stinging rebuke of what many have argued is clearly a witch hunt against me, and I hope that it will serve as a wake-up call to the attorney general and his staff," said Mr. Mann, now a professor of meteorology at Pennsylvania State University at University Park.

The case stems from Mr. Cuccinelli's decision in April to issue a "civil investigative demand," or CID, asking the University of Virginia for a broad range of documents involving Mr. Mann, who was an assistant professor at the university from 1999 to 2005.

Mr. Mann had become known as a creator of the "hockey-stick graph," which shows global temperature trends over the last thousand years with a sharp increase in the past few decades. The attorney general, meanwhile, has made a practice of filing legal actions in support of conservative causes, including a challenge of the federal Environmental Protection Agency over its conclusion that manmade greenhouse gases endanger public health.

Mr. Cuccinelli, in a written response to Judge Peatross's ruling, said he planned to issue a new demand of the University of Virginia in compliance with the judge's findings. "We will also take time to fully examine the decision and all of the available options before deciding whether or not to also appeal aspects of the ruling," the attorney general said in his statement.

Limited Options

The attorney general's options appear limited, said Rachel B. Levinson, senior counsel at the American Association of University Professors, which opposed Mr. Cuccinelli's actions. Mr. Cuccinelli sought information concerning five grants that involved Mr. Mann, and four of them were federally financed projects that appear to remain outside state investigative authority, Ms. Levinson said. And the fifth grant was issued before a relevant state fraud statute took effect, she said.

Judge Peatross also considered the university's arguments about interference in academic freedom and did not cite any specific objections on those grounds. "The University of Virginia is a proper subject for a CID, and the attorney general may investigate grants made with Commonwealth of Virginia funds to professors such as Dr. Mann," he wrote. The judge, a retired jurist sitting in Albemarle County Circuit Court, is listed on the university's Web site as an adjunct lecturer at its law school.

Mr. Cuccinelli said in his statement that the judge's ruling "has given us a framework for issuing a new civil investigative demand to get the information necessary to continue our investigation into whether or not fraud has been committed against the commonwealth."

Such investigations by attorneys general are rare, Ms. Levinson said, and the defeat at this stage hopefully will discourage colleagues of Mr. Cuccinelli in other states from similar attempts. Private corporations sometimes make such demands for information from university researchers, but any discouragement they might feel from Judge Peatross's decision could be counterbalanced by his assertion that scholarly work is vulnerable to legal review, she said.

End of the Line?

Mr. Mann, meanwhile, said he hoped he had reached the end of the case and could resume his research without the interruption that he believes was part of the motivation for Mr. Cuccinelli and his allies.

The ruling came just days after the release of data, by groups such as the National Aeronautics and Space Administration and the Northeast Regional Climate Center at Cornell University, showing another year of record worldwide temperatures. It also followed new published revelations about the role played by Koch Industries, a conglomerate that operates oil refineries, among other businesses, in financing a network of groups waging political attacks against scientists who have found evidence of manmade climate change.

Mr. Mann said he and his colleagues and students at Penn State were pursuing several projects aimed at further quantifying projections about the size and effects of global warming because of the use of fossil fuels. Those efforts include projects exploring links between climate change and hurricanes, studying regional effects of climate change such as the behavior of the Asian summer monsoons, and improving the theoretical models used to understand climate change, he said.

The scientists are carrying out such work, Mr. Mann said, while fully conscious of the threat posed by critics such as Mr. Cuccinelli and those responsible for the case last year in which thousands of e-mails and documents were stolen from the Climate Research Unit at Britain's University of East Anglia.

"We're all aware now that there's a concerted effort to try to discredit us by stealing our personal e-mails, trying to take them out of context, and trying to fool the public into thinking that climate change is some sort of hoax," he said. "We're all aware that that is going on, and so of course we're watching our backs."