Virginia Attorney General Rebuffed in Climate Research Inquiry

The Chronicle of Higher Education dated August 30, 2010 has an article by Paul Basken reporting that Judge Paul M. Peatross, Jr. ruled against Virginia Attorney General Kenneth T. Cuccinelli's two Civil Investigative Demands against the University of Virginia. Cuccinelli wanted reams of documents in connection with about six years of work by former Assistant Professor Michael E. Mann (at Virginia 1999 - 2005, now a full professor of meteorology at Penn State), who is known for developing a graph, the "hockey stick graph" which has been validated over and over to show a marked rise in global temperatures in the last few decades, after a rising trend over the last thousand years. Cuccinelli, a climate skeptic, claims that Mann committed fraud after receiving grants for research at the University of Virginia. He appears to be using his position as Attorney General to press conservative interests, such as pressuring climate researchers.

Judge Peatross expressed skepticism about the basic claim that Mann committed fraud:

What the Attorney General suspects that Dr. Mann did that was false or fraudulent in obtaining funds from the Commonwealth is simply not stated. When the Court asked Mr. Russell (deputy to Mr. Cuccinelli) where it was stated in his brief the "nature of the conduct" of Dr. Mann that was a violation of the statute, Mr. Russell referred the Court to the first 15 pages of his Brief in Opposition to Petition. The Court has read with care those pages and understands the controversy regarding Dr Mann's work on the issue of global warming. However, it is not clear what he did that was misleading, false or fraudulent in obtaining funds from the Commonwealth of Virginia.

Then, Judge Peatross limits Cuccinelli's scope of inquiry to state grants. The original demands included five grants, including four federal grants. As state attorney general, moving under a state law, Cuccinelli may only inquire about fraud committed under state grants. Peatross then went on to carefully dismiss the two Demands without prejudice, stating in his ruling that

1) the demands showed no reason to believe the University was in possession of materials relevant to a false claims law investigation and

2) that the demands failed to state the nature of the conduct with sufficient specificity to meet the statute's requirement.

3) the University of Virginia could be subject to Civil Investigative Demands (CID) for researchers such as Dr. Mann, since it is a state institution, and Dr. Mann did receive some state funds for his research.

However, the Chronicle article analyzes the situation and considers that Cuccinelli has very little hope of a successful CID after this ruling. Rachel B. Levinson, who represented the American Association of University Professors (AAUP) in opposing the CIDs, stated that Cuccinelli sought to investigate five different grants that Dr. Mann received while at UVa. Four of those grants were federal, and thus outside of Cuccinelli's state jurisdiction. The fifth grant was a state grant, but it was issued before the Virginia fraud statute took effect. So it would be difficult for Cuccinelli to argue that the fraud statute that empowers his Civil Investigative Demand will reach the documents surrounding that fifth grant, if he comes back with a sufficient demand document.

The Washington Post, in a separate article by Rosalind Helderman comes to much the same story. Helderman does us the favor of explaining that the statute is the Virginia Fraud Against Taxpayers Act Both the Post and the Chronicle conclude that the ruling, whether or not Cuccinelli reapplies, is good news for climate researchers. It sends a strong message that judges will not welcome fishing expeditions from politically motivated attorneys seeking to inundate climate researchers with document requests.

Entertaining comments to this story in The Daily Progress (Charlotte, Virginia) about the ruling linking the Koch brothers who are funding resistance to climate change researchers to Cuccinelli, claiming that they have given the Virginia Attorney General $100,000. I have not been able to verify that claim. I do have a rather dark and very disturbing link to The Atlantic that lays out quite a path of destruction that Cuccinelli has left behind him in Virginia. What an Attorney General!