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Judge Halts Virginia Climate Probe

Attorney general to issue new order to force university to provide researcher’s data, e-mails

by Cheryl Hogue
September 6, 2010 | A version of this story appeared in Volume 88, Issue 36

Credit: Greg Rico
Credit: Greg Rico

The University of Virginia (UVA) last week won the first round in a state legal battle cast as an attack on academic freedom.

But Virginia Attorney General Kenneth T. Cuccinelli II, a climate-change skeptic who is challenging federal regulation to curb greenhouse gas emissions, might ultimately win this war.

The case stems from Cuccinelli’s formal demand that UVA provide reams of documents to aid his fraud investigation of climate researcher Michael E. Mann. Cuccinelli is probing whether Mann, who worked at the university from 1999 to 2005, committed fraud in connection with four federal grants and one state grant, together totaling $484,875. Both supporters and detractors of Mann’s scientific conclusions opposed Cuccinelli’s effort, which some describe as politically motivated (C&EN, May 10, page 10).

Mann, now director of Pennsylvania State University’s Earth System Science Center, developed the once fiercely contested “hockey stick” graph of historic temperature fluctuations over the past 1,000 years. He is among the climate scientists whose controversial e-mails were hacked from the University of East Anglia, in England, and made public late last year (C&EN, Dec. 21, 2009, page 11).

On Aug. 30, a Virginia circuit court ruled that UVA does not have to hand over to Cuccinelli documents, including Mann’s e-mails and the computer program the researcher used to calculate the hockey-stick graph.

Judge Paul M. Peatross Jr. found that Cuccinelli failed to meet a key requirement of the law he is using for the investigation, the Virginia Fraud Against Taxpayers Act. “It is not clear what he [Mann] did that was misleading, false, or fraudulent in obtaining funds from the Commonwealth of Virginia,” Peatross wrote in a six-page decision.

To obtain documents from UVA under that law, Cuccinelli must describe in writing what he suspects Mann did that was fraudulent, Peatross explained. The attorney general “has to have some objective basis” for the investigation, the judge said.

“This is a victory for scientific discovery,” says Francesca Grifo, director of the Scientific Integrity Program at the Union of Concerned Scientists. “This ruling makes it clear that when a state attorney general alleges fraud against a scientist, he needs actual evidence to back up his claim.”

Cuccinelli pledged to issue a new order to UVA that conforms to the ruling. The decision provides a framework for his office to issue new demands against UVA to get documents for the fraud investigation, Cuccinelli said in a statement.

The ruling also delivered what could be a blow to academic freedom at universities in Virginia. The judge agreed with Cuccinelli that UVA is a corporation under Virginia law. Thus, UVA and other academic institutions that get state grants—and researchers they employ—are fair game for investigations by the attorney general under the Virginia fraud statute.

“The attorney general may investigate grants made with Commonwealth of Virginia funds to professors such as Dr. Mann,” Peatross wrote.

But the judge rejected Cuccinelli’s attempts to probe the four federal grants Mann received while at UVA, one from the National Science Foundation, and three from the National Oceanic & Atmospheric Administration. The federal grant dollars were sent to UVA, which then distributed the money to Mann.

Because the dollars were channeled through a commonwealth bank account, Cuccinelli argued, the funds fell under Virginia’s jurisdiction for investigating fraud associated with them.

Peatross disagreed. “The attorney general can only investigate funds paid by the Commonwealth for a grant to Dr. Mann,” the judge wrote, agreeing on this point with UVA’s legal argument. The Virginia grant Mann received was for $214,700.

Cuccinelli said he is examining his options before deciding whether to appeal this or other aspects of the ruling.


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