Nearly seven years ago, on December 7th, 2011, the Free Market Environmental Law Clinic’s (FME Law) sought public records from the University of Arizona related to the Mann-Bradley-Hughes temperature reconstruction that looks like a hockey stick, and development of an Intergovernmental Panel on Climate Change (IPCC) report. They refused much of the request and FME Law sued. Now (on September 18th, 2018) legal counsel for the University informed FME Law that they were done, that they would be withdrawing their appeal of the trial court’s decision, end the case and disclose the records.
Included in the release will be emails that, for example, provide the full context of the discussions between Michael Mann and colleagues and Chick Keller on whether there was a medieval warm period and a little ice age. Mann, Bradley and Hughes (MBH) were the authors of the “hockey stick” graph that became the icon of climate alarmism. Dr. Keller was, at the time, Director of the Institute of Geophysics and Planetary Physics at the Los Alamos National Lab and affiliated with the University of California at San Diego, and wanted to reconcile data which appeared to refute the MBH papers. Also within this collection will be the full discussion on events surrounding an effort to remove editors of journals willing to publish peer-reviewed papers that contradicted the MBH and related papers on which climate alarmism was built. This collection of emails is particularly important in that they will provide the full context of Climategate emails that have been described as “cherry picking.”
The University lost its case in the trial court almost exactly two years ago. On on September 19th, 2016, the Honorable James Marner ruled
“[the University] has not met its burden justifying its decision to withhold the subject emails. In making this finding, the Court does not ignore the repeated “chilling effect” concerns raised in the affidavits and in the pleadings. However, the Court concludes that this potential harm is speculative at best, and does not overcome the presumption favoring disclosure of public records containing information about a topic as important and far-reaching as global warming and its potential causes.
Nearly a year later, on November 30th, 2017 and after a third trip to the Appellate Court, Judge Marner clarified and reaffirmed his decision. The University again appealed. FME Law, however, was unwilling to wait further. Under Arizona law, FME Law was allowed to obtain the climate science emails it sought, despite the appeal. Nearly seven months ago, on February 26th, 2018, trial Judge Marner ordered the University to release of the documents, giving the University 90 days to disclose the documents in a word-searchable and easily readable form.
Three days before the deadline, the University filed a motion asking the trial court to “stay” the disclosure of the public records while they appealed the case. In a 13-word decision, the trial court found “the requested relief is not warranted.” The University again appealed, seeking a stay of the disclosure from the Appellate Court until their appeal of the underlying case was concluded. Six days after FME filed its response, the Appellate Court issued a seven-word decision: “Motion for Stay Pending Appeal is DENIED.”
Again, the University appealed, asking the Arizona Supreme Court to stay disclosure pending its appeal on the underlying legal issues. On August 29th, 2018, the Supreme Court rendered its decision: “Motion for Stay of Release of Records Pending Conclusion of Appeal = DENIED.” Neither appellate court provided a discussion on the basis of their decisions.
The appellate decisions that required disclosure of the climate scientists’ emails signaled that the University was not going to prevail on its arguments before these appellate courts with regard as to whether they should, as a matter of law, be allowed to avoid their duty to disclose these public records. As Dr. David Schnare, the member-manager of the Free Market Environmental Law Clinic, PLLC, who prosecuted this case, explains, “For the University, it was the end of a very long road. Their legal counsel, Michael Mandig, has informed me they would be withdrawing their notice of appeal and would work with us on completing the disclosure of the records.”
Dr. Schnare also noted, “While this was a long and arduous path through the various courts, I join in the comments of Judge Marner that the professionalism of counsel for the University was exemplary and I have the highest respect for his efforts and legal acumen.”
Others who attempted to intercede in these proceedings have labeled FME Law’s request harassment, an argument the Courts heard and to which they found no need to respond. Instead, as trial Judge Marner made clear, the subjects of the public records address an important topic at issue in the public forum. Dr. Schnare explained, “We did not take this case only to obtain the history of a very controversial period of time in the climate wars. We also took this case to cast sunlight on how public universities work, how they contribute to the formation of public policy, and how professors behave within the policy arena.”
What remains is for the University to hand over the documents they improperly withheld and do so in the manner the Court directed – word searchable and easily readable. This will not be easy to do. While Professor Hughes’ emails are in an acceptable form, those of Professor Overpeck are not. There are over 90,000 pages of Overpeck material yet to be disclosed. To place this in perspective, the University’s original and voluntary disclosure consisted of 2,438 pages.
Once available, Dr. Schnare and his colleagues will take the first look at those documents. With a doctorate in environmental management and decades of experience in policy formation, he and others under his supervision will sort these documents, organize them for use by the public and prepare a report on what they contain – so to speak, a chronicle of that historic time, based the full history of that period as available in this public record. Dr. Schnare has been adamant that, unlike publication and discussion of the Climategate release of documents, FME Law’s examination and report will reflect the full context of the emails and will take careful steps to prevent “cherry picking,” especially for emails that, if not presented in context, would improperly harm the reputation of and proper respect for Professors Hughes and Overpeck, as well as their many correspondents.
FME Law is a 501(c)(3) public charity dedicated as a pro-environmental legal presence that represents clients seeking to hold state and federal governments to the ethical and legal requirements that protects and enhances free market environmentalism.
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