Virginia court hears Cuccinelli’s defense of climate suit

Anti-fraud law cited for probe

RICHMOND — A deputy for state Attorney General Kenneth T. Cuccinelli II argued before Virginia’s highest court Thursday that his office has a right to investigate whether a climate scientist defrauded the state in seeking taxpayer-funded grants for his research.

Wesley G. Russell Jr., deputy attorney general for civil litigation for Virginia, argued that the Fraud Against Taxpayers Act, which Mr. Cuccinelli is using to issue subpoenalike demands for records related to climatologist Michael Mann, allows him to do so if there is “reason to believe” that a person may have documents relevant to a fraud investigation.

“The entire purpose of the statutory scheme is to see whether the commonwealth or its agencies have been bilked out of money,” Mr. Russell said.

Albemarle County Circuit Court Judge Paul Peatross set aside the demands in August 2010, saying that there was no “objective basis” to think that Mr. Mann committed fraud in securing five taxpayer-funded grants, four of which involved federal money.

In response, Mr. Cuccinelli appealed the ruling and refiled a new demand narrowing the scope of his inquiry to the one state-funded grant. The judge has put that case on hold until a Supreme Court ruling on the appeal.

The University of Virginia, where Mr. Mann worked, and a number of science groups have consistently argued that the inquiry from Mr. Cuccinelli, a climate-change skeptic, is an assault on academic freedom and could have a “chilling effect” on professors’ research in the future. Mr. Cuccinelli has maintained that the case is not politically motivated and that academic freedom cannot shield someone from a fraud investigation.

Mr. Mann, associated with the infamous “hockey stick” graph that documented a rapid rise in the Earth’s temperature during the 20th century, gained prominence during the “Climategate” scandal of late 2009. When emails from the University of East Anglia were leaked, skeptics alleged that professors were manipulating research data, though Mr. Mann has been widely cleared of any academic wrongdoing.

Jessica Ellsworth, an attorney representing the University of Virginia, argued that under the act, the definition of “person” under the Fraud Against Taxpayers Act does not extend to a state university in this particular case.

“The attorney general utterly failed as the statute requires to state the nature of the conduct constituting the alleged violation,” argued Chuck Rosenberg, another attorney for the university. “The circuit court [recognized] there may well be a debate about climate change, but that’s not what the statute requires.”

Mr. Russell, however, argued that the court failed to make a distinction between the investigative phase of the process and the litigation phase, and the act granted the attorney general authority to investigate the documents to see whether fraud had occurred.

A ruling is expected in March.

In a similar but unaffiliated case, Delegate Robert G. Marshall, Prince William Republican, and the conservative American Tradition Institute are in the process of obtaining records related to Mr. Mann from the university through an open-records request. The group is producing copies of a small number of thousands of emails to show to a judge as examples of ones they think are not exempt from the Freedom of Information Act.

The group plans to depose the university and Mr. Mann in mid-February, said David Schnare, director of the ATI Environmental Law Center.

“If they have to give everything to the attorney general, then why continue on with this case?” he asked. “They’ll just give us the stuff, too … at the end of the day, they either give us these things willingly, or it’s going to go all the way up the ladder.”

Mr. Mann said in an email that people such as Mr. Cuccinelli and conservative groups are simply engaging in an “ongoing smear campaign” in an attempt to discredit climate science.

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