Virginia's Ken Cuccinelli's dangerous suit against climate change.

The law, lawyers, and the court.
May 4 2010 5:21 PM

Suing Science

Virginia's Ken Cuccinelli's dangerous suit against climate change.

Ken Cuccinelli. Click image to expand.
Ken Cuccinelli

"This old buzzard, having failed to raise the mob against its rulers, now prepares to raise it against its teachers."

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

H.L. Mencken
Scopes Monkey Trial
July 16, 1925

Virginia Attorney General Ken Cuccinelli started the week by attempting to cover up the offending left breast of the Roman goddess Virtus on the Virginia state seal worn on the lapels of his staff. Last night he dropped the effort and issued a statement indicating he'd decided to stop trying to make Virtus more virtuous. Designed by a committee that included George Wythe, George Mason, Robert Carter Nicholas, and Richard Henry Lee, the bare-breasted Virtus has been on the state seal since 1776. A version has been on the state flag since 1861. But when Cuccinelli tried to put Virtus in a burqa this week, the darling of the Tea Party movement explained without irony: "Just because we've always done something a certain way doesn't mean we always have to continue doing it that way."

Seriously?

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The problem with Breastgate was that it distracted from Cuccinelli's other efforts to press the legal machinery of the commonwealth into the service of his own agenda. Between his thwarted attempts to rescind anti-discrimination policies for gays and lesbians at Virginia universities, his one-man lawsuit against Obamacare, his recent approval of a new state policy allowing sectarian prayer by state police chaplains at public events, and his lawsuit suit against the EPA for attempting to regulate greenhouse gases, Ken Cuccinelli has become the Where's Waldo of Fox News stories. But his latest attack—against the University of Virginia's climate science researchers—is more troubling than his assault on bare-breasted Romans.

As Courtney Stuart first reported last week in Charlottesville's The Hook, Cuccinelli's office quietly filed a civil investigative demand (or CID, which is basically a subpoena) with the University of Virginia on April 23, giving the school 30 days to produce more than 10 years' worth of documents related to the state-funded research of a former faculty member, Michael Mann. Operating under the Virginia Fraud Against Taxpayers Act, the CID seeks from the university, among other things, "any correspondence, messages or emails" to or from Mann and 40 named climate scientists; any documents sent to or from Mann that reference any of those 40 scientists; and any "documents, things or data" submitted in support of any of five different grant applications that amounted, in total, to almost $500,000. The university is also expected to turn over "any and all emails or pieces of correspondence from or to Dr. Michael Mann since he left the University of Virginia."

With final exams and graduation just days away, the faculty of the school's environmental science department must now sift through years' worth of old e-mails and attempt to understand the scope of the CID. More important, they must worry about whether their own scientific research will become Cuccinelli's next target.

And who is this nefarious Michael Mann? A climate scientist who worked at UVA from 1999 to 2005 and now runs Penn State's Earth System Science Center. He became the climate-change deniers' whipping boy because of a 1999 paper he co-authored showing a dramatic uptick in surface temperatures after 1900. His temperature graph looks like the blade of a hockey stick. The hockey stick, and Mann, have been on trial ever since.

In 2006, U.S. Rep. Joe Barton, R-Texas, commissioned an investigation into Mann's research that ended with statistician Edward Wegman of George Mason University concluding that he would have looked at the data differently but "saw no evidence that Mann committed any fraud or deception." A panel assembled by the National Academy of Sciences reached the same conclusion that year: "There are some things that he could have done better, but there's no fatal flaw." A 2006 National Research Council report found that Mann's conclusion "has subsequently been supported by an array of evidence."

But Mann's hacked e-mails were at the center of the East Anglia "Climategate" scandal, so more investigations ensued. A report by the British House of Commons' Science and Technology Select Committee concluded in March that there was no evidence of malpractice in the Climategate fracas. A Penn State panel also investigated Mann for allegations that he had manipulated or destroyed data to shore up his arguments and largely cleared him in February. (The investigation into one final allegation is still pending.) But some climate-change skeptics continue to insist that each of the panels that cleared Mann must be as biased and corrupt as Mann himself. For them, there will be no conclusive investigation until he's found guilty.

This is where Cuccinelli rides in. It's not at all clear from the civil investigative demand what the attorney general is fishing for. Cuccinelli told the Washington Post yesterday, "In light of the Climategate e-mails, there does seem to at least be an argument to be made that a course was undertaken by some of the individuals involved, including potentially Michael Mann, where they were steering a course to reach a conclusion." That sounds like Cuccinelli is casting a dragnet for anything and everything, including proof of fraudulent substantive research. State Sen. Donald McEachin estimates that the Cuccinelli lawsuit will cost Virginia taxpayers between $250,000 and $500,000 if it goes all the way to the Supreme Court. Spending half a million dollars of taxpayer funds to possibly recover some part of half a million dollars of misspent grant money doesn't even begin to make sense.

But it's not just Mann on the hook here. "With a weapon like this in Cuccinelli's hands, any faculty member at a public university in Virginia has got to be thinking twice about doing politically controversial research or communicating with other scholars about it," says Rachel Levinson, senior counsel with the American Association of University Professors. UVA environmental science professor Howard Epstein, a former colleague of Mann's, puts it this way: "Who is going to want to be on our faculty when they realize Virginia is the state where the A.G. investigates climate scientists?" If researchers are really afraid to do cutting-edge research in Virginia, the state's flagship university is in enormous trouble.

Even the sharpest critics of Mann's scientific methods have blasted the attorney general for inserting himself into a dispute over scientific conclusions that only academics, scientists, and history should judge. Thomas Fuller, who has been a vocal critic of Mann's research, wrote in an open letter to Cuccinelli: "No matter what has prompted your investigation, there is no doubt that it will be interpreted as a witch hunt. If you are in fact investigating a credentialed scientist for results that do not suit your political opinion, that interpretation is correct." Fuller went on: "There are ample avenues of professional and academic recourse for people like me who think he has done something wrong. But being wrong is not a crime, and intimidating scientists not a path that this country, including I presume Virginians, should ever pursue." Another former UVA climate scientist (and climate-change skeptic), Chip Knappenberger, also used the words witch hunt.

In March, when Cuccinelli tried to revoke legal protections for its gay workers, UVA responded with outrage. University President John Casteen said that he was "alarmed" by Cuccinelli's reading of the state anti-discrimination laws and that the attorney general's letter "cuts to the core of our common claims to the most fundamental kinds of personal security under the rule of law." About the Mann investigation, thus far what we have heard from the university is muted. UVA has "a legal obligation to answer this request and it is our intention to respond to the extent required by law," said Carol Wood, a UVA spokeswoman. Well, yes. But it's probably time to point out that harassing the faculty for thousands of 10-year-old e-mails from a respected former colleague cuts to the core of intellectual and academic freedom as well.

There is, of course, a long and inglorious history involving investigations and inquisitions of scientists in an attempt to silence those whose research does not sit comfortably with those in power. Despite those earlier efforts, the Earth still does revolve around the sun. There are 100 vital ways for Ken Cuccinelli to spend his time and the commonwealth's taxpayer dollars. Litigating science isn't one of them.

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