Judge hears UVa climate dispute

The fate of the University of Virginia’s petition to block Attorney General Ken Cuccinelli’s document demands relating to research of a former UVa climate change scientist will be decided in the next 10 days.

After reading all of the case documents for the first time Friday and hearing oral argument in Albemarle County Circuit Court, Judge Paul M. Peatross Jr. ruled that he would need more time to make a decision. The judge is expected to issue his opinion in the next 10 days.

During Friday’s hearing, attorneys for UVa and Cuccinelli reiterated their positions outlined in a series of briefs filed over the last several months. Cuccinelli has been trying to subpoena a mass of data, documents and correspondence relating to the research of Michael Mann in an attempt to investigate whether Mann violated Virginia’s Fraud Against Taxpayers Act by accepting $466,000 through four federal and one state research grants between 1999 and 2005.

Chuck Rosenberg, a Washington, D.C., attorney representing the university, said in court that Cuccinelli’s demand fails the statutory requirements of an investigation under the act — a statement of “the nature of the conduct constituting the alleged violation” and a “reason to believe” that UVa as the CID recipient has data about a violation of Virginia’s anti-fraud law.

The attorney said case law shows that would require “more than an intuition” of wrongdoing.

Cuccinelli’s investigation began after the so-called “climategate” e-mails were hacked or leaked from the Climatic Research Unit at the University of East Anglia in Great Britain. The e-mails suggested that top climate change researchers had colluded to fabricate data. Mann and the other scientists, however, have been cleared of scientific wrongdoing by independent investigations.

The attorney general, who is skeptical of global warming, has looked to research papers that Mann worked on in the late 1990s at the University of Massachusetts. Mann’s “hockey stick” graph shows a slight cooling trend from 1000 A.D. onward until a sharp rise in temperatures in the 1900s, which contrasts with previous beliefs of historical temperatures.

Wesley G. Russell Jr., deputy attorney general for civil litigation, said in court Friday that any reference on Mann’s resume to that research that could have earned him grant monies could be considered fraud. The attorney said that the CIDs state the information that Cuccinelli is looking for and that information is the property of Virginia.

“You do not have a reasonable expectation of privacy on state property,” Russell said.

Rosenberg also said that UVa would be exempt from an investigation under the act because of the perceived definition of the university under FATA. The attorney argued that UVa is an agency of the state with aspects of a corporation.

Russell said that Cuccinelli’s office believes the university has this information, noting that UVa has never denied its existence. The attorney said that his office learned through a Freedom of Information request that the data sought might be on a backup e-mail server.

The university’s documents have stated that honoring Cuccinelli’s demands, which carry the legal force of subpoenas, could put a “severe chill on academic freedom and scientific debate.”

Prior to Friday’s hearing, five UVa students and faculty members gathered on the steps of the Rotunda to denounce Cuccinelli’s investigation, calling it politically motivated and a threat to academic freedom.

“It’s attacking not only academic freedom but on the role of the university in society,” said Richard Handler, a professor of anthropology.

It is clear, Handler said, that Cuccinelli’s targeting of Mann is because he disagrees with Mann’s research conclusions. Of all the hundreds, perhaps thousands, of research grants, he said, why else would Cuccinelli single out Mann’s work from more than five years ago?

“It’s very hard not to believe it’s politically motivated,” he said.

Ryan McElveen, the protest’s organizer, called Cuccinelli’s investigation a “witch hunt” and said it may lead the nation’s best faculty members to avoid coming to Virginia out of fear that their research might run afoul of the attorney general’s politics.

“If the attorney general is able to control what professors are able to research, professors aren’t going to be willing to come to this state,” he said.

After Friday’s hearing, Cuccinelli’s office issued a statement noting that no fraud suit has been filed.

“The attorney general’s office is simply investigating to see if there is sufficient evidence to warrant further action,” the statement said.