Judge To Rule In Virginia Climate Case

A judge will determine by the end of August whether the University of Virginia must hand over to the Virginia state attorney general, Kenneth Cuccinelli Jr., documents and data connected to climate researcher Michael E. Mann.

After a 75-minute hearing on Aug. 20, retired Albemarle County Circuit Court Judge Paul M. Peatross Jr., who was filling in for a vacationing judge, said he will issue a written opinion addressing the legal issues discussed at the hearing.

Cuccinelli is investigating whether Mann committed fraud in connection with four federal grants and one state grant, together totaling $484,875. UVA is challenging the demand from Cuccinelli, a Republican who opposes regulation to curb greenhouse gas emissions.

Mann worked at UVA from 1999 to 2005 and is now director of Pennsylvania State University's Earth System Science Center. He developed the once fiercely contested "hockey stick" graph of historic temperature fluctuations over the past 1,000 years. Mann is among the climate scientists whose controversial emails were hacked from the University of East Anglia, in England, and made public late last year (C&EN, Dec. 21, 2009, page 11). Both supporters and detractors of Mann's scientific conclusions oppose Cuccinelli's effort, which some describe as politically motivated (C&EN, May 10. page 10).

At the hearing, UVA attorney Chuck Rosenberg of the Hogan Lovells law firm in Washington, D.C., contended that Peatross should dismiss the attorney general's order. He said Cuccinelli's written demand to the university for the information failed to describe the type of potential fraud being investigated. The attorney general is required by law to provide that information, he said.

The judge appeared to give credence to Rosenberg's assertion. Peatross asked Deputy Attorney General Wesley G. Russell Jr., who argued the state's case, to describe the nature of Mann's conduct that Cuccinelli suspects may be fraudulent.

At first, Russell offered arguments that prompted the judge to pose his question two more times. Then Russell explained that the potential fraud would have occurred when Mann cited his previously published scientific work in applications for the grants the researcher received while at UVA. Cuccinelli has a "reasonable suspicion" that Mann presented fraudulent data to win the grants, Russell stated. That conjecture is based on the contents of the stolen emails and international scientific controversy over climate change science, he said.

To determine whether Mann's actions were fraudulent, Cuccinelli wants UVA to hand over the computer program the researcher used to calculate the hockey stick graph. The attorney general suspects a "consistent pattern in the computer algorithm" fixes the results of the program by manipulating data, Russell said.

Rosenberg pointed out that no scientific body has found that Mann or any other researcher involved in the email leak committed fraud.

Although a series of investigations into Mann's science and leaked emails have exonerated the researcher of wrongdoing, Cuccinelli is entitled under Virginia law to conduct his own probe, Russell said.

Peatross also asked whether it is appropriate for the state to investigate the federal grants Mann received while at UVA. Three of Mann's grants came from the National Oceanic & Atmospheric Administration and another was from the National Science Foundation.

Rosenberg contended that any fraud probe into the NOAA and NSF grants would fall under federal, not state, jurisdiction.

Russell disagreed. The federal grant dollars were sent to UVA, which then distributed the funds to Mann. "Once it hits the commonwealth's bank account, it's the commonwealth's money," Russell said, thus giving the attorney general jurisdiction over any fraud associated with the funds.

Rosenberg also suggested that Cuccinelli's demands on UVA threatened academic freedom from government intrusion. Russell shot back that protecting academics at state schools from investigation by the attorney general would create "the right to steal from the commonwealth" and would amount to "a licensing of universities to engage in fraud."