Cuccinelli’s Defeat Against U Va and Mann is Not Enough

Although Ken Cuccinelli’s fishing expedition into Mike Mann’s correspondence at U Va has been decisively defeated, the sheer affrontery of the thing has not properly been propagated to the public, and Cuccinelli has not paid any price commensurate with the damage he has done,

Many regular readers of this site will probably know the story but it may be worth reviewing for those who came in late.


1) in 1998, Mann, then an early career researcher with a background in physics, was celebrated for the first multi-century hemispheric temperature reconstruction with annual resolution. It was also notable for including confidence bands. Work since then has indicated that while the error bands hold, the method may have somewhat underestimated variability on a decadal scale. On the whole, the work stands as a major advance.

2) The graph, which put the twentieth century warming in stark contrast with recent proxy records in the famous “hockey stick” shape appeared on the cover of the IPCC’s third assessment report in 2001

3) At the time, Mann was a postdoc at Penn State. Shortly thereafter he became (updated) tenure track faculty at the University of Virginia, supported by a state grant and four federal grants. The state grant was entitled “Resolving the Scale-wise Sensitivities in the Dynamical Coupling Between Climate and the Biosphere,” and was funded by an internal grant award of $214,700 by the University of Virginia-Fund for Excellence in Science and Technology (FEST). The grant from Virginia did not directly relate to hemispheric or global scale temperature reconstruction. In the vein of normal, incremental science, reports were issued, papers were published, and modest progress was made. In a reasonable world the story would have ended then. But a number of other events intervened.



1) The graph was targeted by climate naysayers as a suitable target for doubt – after all, the image it presented was compelling. I myself presented the figure at an internal meeting at the Department of Energy in 1999 saying “the scientific debate about detection of anthropogenic warming is over” and saying that this work sealed the deal. In fact though it is a strong claim, I think that remains fair.

2) Most work since 1998 shows more decadal scale variance but is broadly in line with Mann et al. (see above)

3) In 2003, McKitrick and MacIntyre published a paper in the opinion-mongering publication Energy and Environment, which criticized MBH 1998. Although Mann et al issued a corrigendum, they said that their major conclusions were not altered. There was some controversy about datasets being removed from an FTP site.

4) Scientific tradition as it currently stands does not require publication of data. This is a consequence of a competitive environment which traces to the idea that science should run “more like a business”. Expensive data may be collected in an expectation that a given lab’s ownership of the data may give it a competitive advantage in later grant competitions. Although this is an unfortunate turn of the scientific culture, Steve McIntyre seeks to overturn it retroactively by harassment. Starting in 2005, building on a sequence of events seeking to obtain raw data, leading ultimately to the FOIA events central to the CRU controversy, McIntyre builds an iconoclastic website which at least implicitly supports the false propositions  that climate change concerns rest primarily on paleoclimate evidence and that paleoclimate evidence is systematically skewed. Mann is a particular bete noir of this endeavor.

5) In 2005 McIntrye and McKitrick publish a paper in GRL claiming that “hockey sticks” would come out of the MBH method even in the case of systematically trend-free red noise. Gavin Schmidt and Caspar Ammann have concluded that this claim itself was defective. Similarly, McKitrick accused the IPCC of “deliberate editorial sleight-of-hand” for choosing the Mann record over the Spencer/Christy satellite record to feature. This claim makes little sense even on its face, as the observational record tells us nothing about the distant past, nor about the present climate in context of the past. But after the fact, the argument was greatly weakened by corrections to the record in question, which now show warming in line with other metrics. A pattern emerges: Naysayers hold on to superficially plausible arguments and ignore plausible, compelling, or even definitive rebuttals.(*) Naysayers thereby begin constructing an alternative reality.

6) In 2005, about the same time as Mann moved to Penn State, McIntyre establishes a site whose main focus is nitpicking paleoclimate work, with a special emphasis on Mann. He was followed by Anthony Watts with a similar if somewhat broader effort. Watts and McIntyre adopt a pose of being “only interested in truth” but the sites attract people who are politically libertarian, highly suspicious, and paranoid about climate science being the thrust of some great conspiracy.

7) Mark Morano, at the time a staffer for Oklahoma Senator Inhofe, begins to promote this angle to powerful elements of the American right. Senator Inhofe eventually ends up calling the proposition that humans are disrupting climate an enormous “hoax”. Morano eventually retires, and sets himself up as the Climate Drudge, selectively linking to any sites that either might be seen to over-reach in defense of climate science of climate-related policy, and any sites that fling accusations of any sort against climate science.

eight) In 2007, attorney and CEI fellow Chris Horner publishes a particularly skewed and misleading book called “The Politically Incorrect Guide to Global Warming and Environmentalism”, which remains due for a major fisking. The relatively small group of scientifically competent writers cannot keep up with the flood of such books. We note this one in particular because of Horner’s role in the persecution of Mann.

9) Many of Mann’s emails along with others are leaked, illegally, via some sort of security compromise at or upstream of the Climate Research Unit of the University of East Anglia. A systematic effort of exagerration and calumny ensues. It is not clear the extent to which this was centrally organized, or in collaboration with the leak. The leak seems timed to disrupt an international Conference of the Parties (to the UNFCCC) at Copenhagen, but expectations for the meeting were already muted. However, it succeeds in diluting the message of the need for international cooperation within the press. Most of the drummed up controversy is about conversation regarding two things: how to to boil down information for public consumption, and how to keep bad science, albeit bad science with a political constituency, out of respectable journals. The Soon/Baliunas/von STorch incident figures prominently on the second question. On the first, an infamous phrase “hide the decline” appears in the same sentence as “Mike’s (Mike Mann’s) Nature trick”. This was perhaps an excessive oversimplification, but it was not Mann’s doing and the phrase “hide the decline” was not his. Nevertheless, much internet buzz, some rather cruel, emerged to tar Mann with the phrase. The idea of de-emphasizing a certain paleoclimate record (Briffa’s) which does not reproduce the modern warming (unlike most others) was consequently misattributed to him. These events make clear that a large number of informal emails can be searched for brief utterances that can be misconstrued and used as accusations, by those inclined to think the worst about someone.

10) Numerous investigations find no misconduct by Mann. His standing within the scientific community remains high. Speaking for myself, I can assert that I saw a talk by a student of his recently, and that it was of a very high quality both in presentation and in statistical sophistication. But you wouldn’t know it from the alternate universe constructed by the naysayers, who among other things appear to be people who refuse to weigh any evidence that they don’t like. Amazingly, Mann remains productive in this bizarre environment.


There’s a detailed timeline here. The following events key are selected therefrom,

1) April 23, 2010, just six months after the CRU hacking known in some circles as “Climategate”, and while absurd exagerration of the CRU meails remains rampant, newly elected hard-right Virginia Attorney General Cuccinelli supbpoena’s all of Mann’s correspondence while in the employ of the University of Virginia. Cuccinelli states that he thinks the “jury is out” on whether or not human activity is driving global warming, but also says that his office is not “targeting scientific conclusions.” However, in justifying his actions, Cuccinelli repeats naysayer dogma chapter and verse:

In an interview, Cuccinelli said the request is part of an “open inquiry” into whether there were “knowing inconsistencies” made by Mann as he sought taxpayer dollars to fund research.

“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,” he said.

This despite the fact that the only Virginia money Mann’s program had received (given the widespread misunderstanding, it should be emphasized that scientific grants do not go to individual scientists, but to divisions within an institution) was not related to global warming, literally, nor to “global warming” in the colloquial sense, meaning anthropogenic climate disruption.

Speaking for another branch of the denial machine, attorney Mark Levin says

But Mark R. Levin, president of the Landmark Legal Foundation, a leading group challenging climate change science, said Cuccinelli’s inquiry is logical given his suit against the Environmental Protection Agency.

“There is no scientific consensus on global warming or man’s influence on global warming, if indeed it is occurring,” Levin said. “The federal government is relying on junk science. So it’s perfectly reasonable the attorney general is raising these issues.”

(Note: if this guy is your lawyer, you might want to reconsider his capacity to argue on your behalf…)

2) Widespread anger and condemnation. For example Nature says:

Given the lack of any evidence of wrongdoing, it’s hard to see Cuccinelli’s subpoena…as anything more than an ideologically motivated inquisition that harasses and intimidates climate scientists.”

3) June 29, 2010: Spine stiffened by universal horror in the scientific community, the university argues that Cuccinelli’s requests for information “did not identify any legitimate reason to believe that a [Fraud Against Taxpayers Act] violation occurred.

4) July 13, 2010: Despite his claim that it was about fraud and not about science, Cuccinelli relies on blog-science in a brief filed with the court, arguing that Mann and his colleagues have manipulated scientific data for years to back the regulation of carbon dioxide emissions.

5) August 30, 2010: Virginia judge dismisses Cuccinelli’s investigation.  In his ruling the judge wrote “The nature of the conduct is not stated so that any reasonable person could glean what Dr. Mann did to violate the statute.”

6) Setember 29, 2010: Cuccinelli’s office issues a new Civil Investigative Demand to the University of Virginia that complies with the judge’s ruling yet differs little from his original request. The attorney general asks for emails, handwritten notes, and other documents related to the work of Dr. Michael Mann yet again offers no evidence of misconduct.

7) December 15, 2010: Attorney General Cuccinelli submits a brief to the Virginia Supreme Court appealing the decision of a circuit court judge who threw out the original subpoenas for lack of merit.

eight) January 6, 2011: The American Tradition Institute, a free-market think tank that routinely attacks climate scientists and refuses to accept the scientific consensus on climate change, submits a Freedom of Information Act Request to the University of Virginia for the same personal correspondence that Attorney General Cuccinelli is seeking through his subpoenas. The Washington Post notes that the American Tradition Institute has affiliations with the Competitive Enterprise Institute and Exxon Mobil, both of which have sown doubt about climate science in the past.

9) May 24, 2011: The American Tradition Institute and University of Virginia enter into a protective order, which lays out how the university should handle documents, including private correspondence among scientists, related to ATI’s freedom of information act request. The University appears not to understand what sort of people it’s dealing with.

10) September 2, 2011: Michael Mann files a motion to intervene in the ATI case and objects to a court agreement that would allow ATI to review scientists’ private correspondence. The court schedules a hearing for September 16 to consider the motion. Mann is granted standing Novemmber 1.

11) October 24, 2011: The American Tradition Institute files a series of documents ahead of a November 1 hearing, including their opposition to amending the protective order, affidavits from attorneys Chris Horner and David Schnare, and supporting exhibits.

12) January 12, 2012: Attorney General Ken Cuccinelli and University of Virginia lawyers present oral arguments about the ability of the attorney general to subpoena Michael Mann’s private correspondence

13) January 25, 2012: The Climate Science Legal Defense Fund officially launches and forms a partnership with Public Employees for Environmental Responsibility. The fund will educate the scientific community about their rights and responsibilities and provide financial support and legal counsel to climate scientists facing litigation.

14) March 2, 2012 The Virginia Supreme Court rules in the University of Virginia’s favor in the Mann case, with the majority finding that the university is not a “person” as defined in the Fraud Against Taxpayers Act (FATA), and therefore the Attorney General has no authority under the Act to make civil investigative demands (CIDs) of the university.


1) Michael E Mann has suffered a decade of harassment, embarrassment and character assassination for producing important, valid, good faith research.

2) None of the perpetrators of this gross injustice have suffered even the slightest inconvenience.

3) The Courts of Virginia have settled the matter on a technicality. The underlying legal issue has not been resolved.

Injustice has been slowed and countered, but justice has not been done. The person in violation of decency and humanity is the attorney general of the State of Virginia. I am not a lawyer nor a legislator, so I can’t say whether his actions, in addition to being contemptible, may have been illegal. But I would go so far as to say that if the actions of the attorney general aren’t illegal, they bloody well ought to be. The fellow is something of a joke, of course, but it would be easier to laugh if he had paid a fair price for his excesses.

Failing that, Cuccinelli has succeeded only in 1) making Virginia and America less appealing places for scientists to make their careers, and 2) making science relevant to substantive issues less attractive topics for young scientists to build a career upon.

It’s wonderful that this particular assault on Mann as an individual is, we hope, over (though it has risen zombie-like from the dead several times already). Even so, the damage done below the surface will be enormous if the story ends here.

This is not a victory for the forces of reason if no consequences ensue to the perpetrators of the assault.

See also:

Want more details? You can’t do much better than Mann’s own recollections, available at Amazon in hardback and kindle versions: The Hockey Stick and the Climate Wars: Dispatches from the Front Lines

borehole item(s)

(*) “superficially” added as a clarifying update per dhogaza’s suggestion.


UPDATE: related musings by Brian Schmidt at Rabett Run



  1. Erratum: I believe Mike was a post-doc with Ray Bradley at Amherst when the work was done on both MBH '98 and '99. I'm not sure when he got to UVa, but MBH '99 doesn't even list it as a current affiliation. So Cooch presumably had to focus on subsequent work.

    Makes it even more outrageous, on the whole.

  2. Naysayers hold on to plausible arguments and ignore plausible, compelling, or even definitive rebuttals.

    They simultaneously hold onto and ignore plausible arguments?

    I think you meant they hold onto implausible arguments and ignore plausible rebuttals ...

    Great summary.

  3. The other side of the story makes the same point I do, in a way.

    Citing a line of cases giving state agencies preferential treatment compared to "persons," the court ruled that a state agency is not a "person" subject to FATA investigations. The court ruled against Cuccinelli's subpoena for that reason, and that reason alone.

    So, while Mr. Cuccinelli would be free to investigate fraudulent acquisition of taxpayer money by individuals or private corporations under FATA, he is not free to investigate fraudulent acquisition of taxpayer money by government agencies, which includes state schools.

    If that doesn't make your blood boil . . .

    In fact it does, Mark, it does indeed.

  4. But who is your blood boiling towards? The Court, who simply interpreted the law, or the legislature which passed the law as it stands and, in the Court's view, did not intend the law to apply to state agencies?

    The legislature, I assume?

    Here's the relevant bit from the law:

    "For purposes of FATA, a "person" is
    defined as "any natural person, corporation, firm, association,
    organization, partnership, limited liability company, business
    or trust." "

    I don't see "state agency" in there, do you?

  5. Actually, it's not that simple, as UVA is organized as a corporation (presumably a tax-exempt one). However, the decision goes on to cite case law going back deep into VAs history where laws don't apply to state organs, no matter how they're organized, unless the law specifically names them. And the state lists UVA as a state agency, and the court has for at least 30 years stated that state universities enjoy the immunity from various laws given other state agencies. Etc etc blah blah blah. In legalese, of course.

    You can see that ruling that FATA applies to UVA would, by deviating from precedent, potentially change the scope of a long list of laws long understood to not apply to state agencies because of not being explicitly listed ...

    The chain of events is pretty typical here, i.e. a circuit court taking a narrow view of the case and the given piece of legislation, the higher court taking far more care with precedent and with the consequences of overturning precedent.

  6. I do not think Mr. Cuccinelli should be free to harass anybody who is doing research if he swallows some pseudoscientific codwswallop that spins up a massive conspiracy theory where none could exist and no sane person could suspect one. This ought to apply whether they are an arm of the state of Virginia or not.

    By ruling on narrow matters of standing, the court leaves Cuccinelli uncensured and free to harass scientists who have ever been at private schools and private nonprofits in the state at any time in the past.

  7. MT,

    IANAL, but generally judges like to apply as little subjective judgement to a case as they can, given the questions presented to them by the parties to a case. In this case UVa presented a clear way out based on existing case and statutory law in VA. That was to say that the AG did not have the power to initiate cases against (issue CIDs) elements of the state government. This is not a "narrow" or a "technical" decision as so many have characterized it. Rather it is a rather broad decision -- the AG does not have the authority to act as Cucinelli tried to do.

    On the broader question, I think that FATA requires there to be some reason (generally a whistleblower) for the AG to begin an investigation. That would tend to limit his authority to investigate researchers at private institutions. Basically the guy is screwed unless he can convince a grand jury that some hanky panky was going on and gets a real subpoena.

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