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Virginia fight over climate documents will continue

By Rosalind S. Helderman
Tuesday, October 5, 2010; 1:14 PM

RICHMOND - The University of Virginia said Monday that it would continue to fight state Attorney General Ken Cuccinelli II's efforts to obtain documents related to a climate scientist's work, just hours after Cuccinelli reissued a civil subpoena for the papers.

The new Civil Investigative Demand revives a contentious fight between Cuccinelli (R), a vocal global warming skeptic, and Virginia's flagship university over documents related to the research of Michael Mann, who worked at the university from 1999 to 2005. A judge blocked Cuccinelli's first bid to obtain the documents.

Mann, whose research concluded that the earth has experienced a rapid, recent warming, works at Penn State University.

Cuccinelli has been trying to force the public university, technically a client of his office, to turn over documents related to Mann's work since April. Cuccinelli has said he wants to see the documents to determine whether Mann committed fraud as he sought public dollars for his work.

But the university went to court rather than comply, and in August, a Charlottesville area judge set aside the attorney general's original demand.

In a new subpoena sent to the university last week, Cuccinelli asked that the school turn over all e-mails exchanged between Mann and 39 other scientists as well as between Mann and his secretaries and research associates.

But, unlike in April, when Cuccinelli asked for information about five of Mann's grant applications, this time the attorney general limited his inquiry to just one $214,700 grant that Mann received from the university, which is funded by the state.

He also laid out in writing why he believed Mann could be guilty of fraud, writing that two of Mann's research papers on global warming have come under "significant criticism."

Mann "knew or should have known" that they "contained false information, unsubstantiated claims and/or were otherwise misleading," the subpoena alleges.

"Specifically, but without limitation, some of the conclusions of the papers demonstrate a complete lack of rigor regarding the statistical analysis of the alleged data, meaning that the result reported lacked statistical significance without a specific statement to that effect," the document continues.

"University leaders are disappointed that the institution must continue to litigate with the Attorney General, but will continue to stand for the principles the University has articulated since the CIDs were first put forward in April - and to support academic communities here and elsewhere," said U-Va. spokeswoman Carol Wood in an e-mailed statement.

The new demand is written with an eye to satisfying Albemarle Circuit Court Judge Paul M. Peatross Jr., who in August ruled that Cuccinelli's previous subpoena did not properly explain his rationale for thinking that fraud might have been committed.

Peatross also ruled that Cuccinelli had no right to documents about grants conducted using federal instead of state dollars. But he had indicated that Cuccinelli could rewrite the demand and issue it again.

Late last week, Cuccinelli also filed a notice with the court that he plans to appeal the judge's ruling.

"While the CID was drafted to comply with the judge's ruling, we do not believe that the ruling was correct in all of its particulars," Cuccinelli said in an e-mailed statement Monday. "Accordingly, we have noted that we will appeal the ruling while continuing our ongoing investigation."

The CID gives the university until Oct. 29 to comply, but the Board of Visitors appears to have already decided to resist.

Faculty at the school and academics across the country have said that acceding to Cuccinelli's inquiry would have a chilling effect on academic freedom.

"It's our fervent hope that the university continues to push back and doesn't allow this to become a ridiculous precedent," said Francesca Grifo, director of the scientific integrity program of the Union of Concerned Scientists. "The attorney general's sunk his teeth into this and it's clearly something that he's going to stick with until the bitter end. Let's just hope the bitter end comes quickly so scientists can get back to their important work."

Mann said the one grant that remains the subject of Cuccinelli's inquiry funded research that did not involve global warming and did not reference the two papers Cuccinelli attacked. Instead, the research project studied land-vegetation-atmospheric interaction in the African savannah.

"I find it extremely disturbing that Mr. Cuccinelli has sought to continue to abuse his power as the attorney general of Virginia in this way, in the process smearing the University of Virginia and me and other climate scientists," Mann said. "The people of Virginia need to be extremely disturbed that he is using their tax dollars to pursue this partisan witch hunt."

Cuccinelli has sought the documents under the Virginia Fraud Against Taxpayers Act, a 2002 statute designed to catch state employees who file false claims to collect taxpayer dollars.

In her e-mailed statement, Wood said the university has incurred more than $350,000 in legal fees fighting the attorney general's efforts, all of it paid from private funds.

Some of Mann's methodologies have been criticized by other scientists, but an inquiry by Pennsylvania State University concluded that there was no evidence that Mann engaged in efforts to falsify or suppress data and his research conclusions have been affirmed by others in the field.

In an attachment to the civil investigative demand, lawyers with Cuccinelli's office say that a small group of scientists including Mann have manipulated scientific conclusions to produce results that would support massive regulation of carbon dioxide.

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