The Supreme Court of Virginia agreed last week to hear an appeal from Attorney General and University alumnus Ken Cuccinelli regarding his power to compel the University to provide documents related to former Environmental Sciences Prof. Michael Mann's climate change research. This decision signaled the beginning of what could be the final chapter in a saga that has forced the University to spend thousands of dollars defending itself from Cuccinelli's demands, cost taxpayers an unknown amount in time and money spent by Cuccinelli's office furthering its investigation and damaged the state's reputation as a bastion of academic freedom. Although there may be no remedying the first two consequences of Cuccinelli's investigation, a Supreme Court ruling in the University's favor will reaffirm that the state is a place where intellectuals may come to conduct research regardless of the political response to their past projects.
At issue in the case is whether Cuccinelli was justified in issuing a civil investigative demand to the University last April in search of documents, correspondence and data pertaining to Mann's application for a state research grant. Cuccinelli asserts that Mann's reports contained faulty or manipulated data to advance the case for man-made climate change. Furthermore, Cuccinelli claims this constitutes fraud against Virginia taxpayers since Mann may have cited this research as a part of his application for the grant he received from the state.
It is telling, however, that in the CID that Cuccinelli hopes to have upheld by the Supreme Court, there is no specific justification for his belief that Mann's research was fabricated. This could be because Cuccinelli, a well-known climate change skeptic, never conducted a serious review of the research in question and dismissed Mann's data showing global temperatures increasing from around the onset of the Industrial Revolution. Had Cuccinelli properly considered the procedures and methods used in the research, though, he likely would have come to the same conclusion as investigatory panels established by the House of Representatives, Pennsylvania State University and the British House of Lords that found no wrongdoing on the part of Mann or his fellow scientists.
Given that the only point of contention is against Mann's climate research, support of that work by multiple independent panels undermines Cuccinelli's justification for demanding documents possessed by the University. Cuccinelli's authority to issue CIDs under the Virginia Fraud Against Taxpayers Act is limited to investigating instances of financial fraud against the taxpayers of Virginia. In the absence of any determination by accredited experts that the grounds for investigating such fraud exist, it must be concluded Cuccinelli's actions are inappropriate.
If the Supreme Court recognizes this and rules Cuccinelli's CID invalid, then it will end one prong of a legal battle that has cost the University more than $350,000 to fight. It also will go a long way toward reassuring scientists and other researchers that if they accept positions at Virginia universities then they will not be the victims of baseless lawsuits undertaken by ideologically-driven political leaders. This will ensure that talented faculty continue to flock to the University and other state institutions and that innovative research continues within state boundaries.
Unfortunately, Cuccinelli has issued another CID in which he more explicitly lays out his claims against Mann. The Supreme Court can shut down this second line of attack, however, if it rules that the attorney general does not have the power to issue CIDs to state universities under the FATA. Although the Supreme Court must balance academic freedom with political oversight when deciding on this point, the state's taxpayers, students and policymakers all should hope Cuccinelli's investigations end as soon as possible.
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