Arizona Court Reverses Protection for Climate Scientists


Posted on June 22nd, 2016 by Lauren Kurtz
 19 comments  

On June 14, an Arizona trial court ruled that the University of Arizona must turn over more than a decade of university climate scientists’ emails to the Energy & Environment Legal Institute (“E&E”), a group that, in its own words, “pepper[s] universities around the country” with open records requests as part of a mission of “free market environmentalism.”  This June 2016 decision is a complete reversal from a March 2015 decision by the same judge, as well as a serious departure from other court cases across the country protecting scientists’ research correspondence.

E&E – formerly named the American Tradition Institute (“ATI”) – has repeatedly used open records laws in attempts to obtain years of publicly funded scientists’ correspondence.  The group’s work has been described as “filing nuisance suits to disrupt important academic research” as part of its work to convince “the public to believe human-caused global warming is a scientific fraud.”  The group has been linked to the coal and oil industries, “major conservative players,” and “organizations opposing action on climate change.”

State and federal open records laws promote government transparency by allowing citizens to request copies of administrative records, but these powerful tools can also be misused:  the Union of Concerned Scientists has found that “open records requests are increasingly being used to harass and intimidate scientists and other academic researchers, or to disrupt and delay their work.”  Over years of protracted litigation, courts have often ruled for the protection of academic research in cases from California to West Virginia.  But even when plaintiffs lose, they can still succeed in “confus[ing] the public debate, and forc[ing] universities and scientists to spend hundreds of thousands of dollars defending themselves.”  Climate scientists in particular have been subjected to “information attacks” by a “network of groups with close ties to energy interests that have long fought greenhouse gas regulation.”

E&E’s Earlier Lawsuit in Virginia

Under their old name ATI, E&E previously sued under open records laws for 10,000+ emails of prominent climate scientist Dr. Michael Mann, seeking virtually every email he had written or received over his six years of employment at the University of Virginia (“UVA”), among other items.  In 2014, the Virginia Supreme Court ruled that all of Dr. Mann’s emails were protected under Virginia’s open records law, and it determined that disclosing academic research correspondence would cause “harm to university-wide research efforts, damage to faculty recruitment and retention, undermining of faculty expectations of privacy and confidentiality, and impairment of free thought and expression.”  The Virginia Supreme Court also concluded that the state had an interest in “protect[ing] public universities and colleges from being placed at a competitive disadvantage in relation to private universities and colleges.”  The American Association of University Professors, among other groups, lauded the decision for its “strong rationale for the defense of academic records.”

University of Arizona Lawsuit, Initial Proceedings

While the UVA case for Dr. Mann’s records was working its way through the Virginia courts, E&E brought another open records lawsuit in Arizona for the emails of Dr. Mann’s coauthor, Dr. Malcolm Hughes, seeking all of Dr. Hughes’ correspondence with Dr. Mann over the same six year period at issue in the Virginia litigation.  E&E also sued for a thirteen year span of emails from another Arizona climate scientist and Intergovernmental Panel on Climate Change (“IPCC”) lead author, Dr. Jonathan Overpeck, on a variety of topics, including emails containing the word “deadline.”

In its Amended Complaint, E&E stated it was conducting a “transparency project,” which it claimed was necessitated in large part by its interpretation of climate scientists’ emails stolen in the so-called “Climategate” hacking in 2009.  E&E alleged that certain hacked emails involving these two University of Arizona scientists and others indicated misdeeds worthy of further scrutiny, even though all official investigations related to “Climategate” have shown no misconduct and the episode has been acknowledged as a “manufactured controversy” for years.

The University of Arizona withheld thousands of emails, applying Arizona’s general records exemption that it was “in the best interests of the state” to withhold.  As was successfully argued in the UVA open records lawsuit over many of the same emails, the University of Arizona argued that releasing scientists’ emails would chill researcher correspondence and undermine academic collaboration.  Release would harm the state, the University contended, by impeding the scientific process and discouraging researchers from working at Arizona public universities or with Arizona public university scientists.  The University argued that, if E&E were truly interested in evaluating scientific merits, the group would ask for final data, methodologies, and research results – which E&E did not do, perhaps because of all of this information was already publicly available via peer-reviewed published studies and online databases.

Ultimately, the University claimed, E&E’s “briefs and other public pronouncements reveal a plan to harass scientists whose views do not accord with those of E&E and its allies, or who simply do not play by the rules of etiquette E&E nominated itself to enforce.”

In support of its arguments, the University submitted a series of sworn expert declarations.  Among these:

  • Bruce Alberts, a biochemist and former Editor-in-Chief of Science magazine, testified that releasing emails would be harmful, as scientists “must feel free to speak their minds in private emails – spontaneously and without fear of each informal thought being officially reviewed. . . . Any discouragement of such spontaneous and blunt honesty on the part of a scientist in private correspondence would seriously hinder the free flow of thought that is critical to scientific invention.”
  • Vicki Chandler, the Chief Science Program Officer at the Gordon and Betty Moore Foundation, which annually awards $86 million in non-biomedical scientific funding, testified that “I would seriously question making a grant to an institution that could not keep their researchers’ [preliminary] data and communications confidential, as I understand the potential harm to the scientific process.”
  • Carole Goldberg, a law professor at the University of California – Los Angeles (“UCLA”), testified that she was co-chair of a task force to determine how UCLA should respond to open records requests for academics’ research files. This task force concluded that “[f]rank, honest exchange depends on the maximum protection of the informal and everyday work, personal email, drafts, and records related to research and teaching” and without this protection, faculty will “avoid investigating controversial issues,” among other harms.

 

The Arizona scientists whose emails were sought by E&E also submitted sworn testimony.  Dr. Hughes testified that, when his emails were hacked in the 2009 “Climategate” episode, there was an “ongoing disruption of my professional and personal life” due to “consequent accusations, attacks, innuendo, and inquires.”  While there were unanimous official exonerations of any wrongdoing, “the emails were distorted and taken out-of-context by various anti-global warming groups.”  Dr. Hughes further testified that “I have been directly informed by several colleagues that they have limited their email communications with me because I have been targeted in public records requests” and that his research has consequently suffered; “this chilling effect is not merely theoretical but rather an actual and present harm.”  He also testified that it took him ten weeks to compile and review the roughly 17,500 pages of emails that E&E sought (including converting email files on outdated technologies into currently readable formats).  This took Dr. Hughes away from his research for a full summer – the time he would normally focus on research because he teaches during the academic year – and he lost grant funding that expired.

Dr. Overpeck testified that he lost six weeks of his sabbatical to reviewing, in his case, over 90,000 pages of emails sought by E&E.  He testified that “this matter has been a grave distraction from my responsibilities to carry out research, teaching, administration for the University of Arizona, as well as from the time for my personal and family life.  I believe that if other colleagues were required to cull through tens of thousands of pages of emails and prepare a log of withheld emails, as I was, it would create such a significant potential for individual and collective disruption and that such process alone would result in a major competitive disadvantage to Arizona’s universities.”  Given these grievous harms, he testified that “[i]ndeed, I will likely be among those seeking work elsewhere in the event the risks identified in this case become a reality.”

At a hearing in February 2015, E&E countered that if Dr. Overpeck did leave the University, he could be replaced with “other potential faculty members with the same skill set and [who are] capable of doing the same job conceivably at lower cost and with more vigor because they’re young and ready to go” and that “it might be in the best interest of the State” for such faculty turnover to happen.

At that hearing, E&E’s attorney also claimed that female scientists may take, in his words, a “mommy sabbatical” and then ignore their publicly-funded research in lieu of “sitting around folding clothes.”[1]  Given this risk, the attorney argued, scientists’ “abandoned” emails regarding “preliminary unpublished work” should be released to the public, and others should be able to pick up on any “abandoned” research in order to prevent “children d[ying] of cancer in the meantime.”  E&E did not explain how to determine what has been “abandoned.”

In their opening brief, E&E stated that Drs. Hughes and Overpeck are “academic climate alarmists” deserving of further scrutiny because of “the large economic and regulatory impact resulting from reliance on” their research.  E&E acknowledged that it sought, in part, emails that “embarrass both Professors Hughes and Overpeck and the University.”  E&E also argued, in their briefs and at oral argument, that there is a role for taxpayers to review scientists’ emails for “uncivil behavior” and, they argued, “chilling incivility is not something that’s a bad thing.  It’s in the best interests of the State.”  E&E claimed that it was “unfounded” to believe that releasing emails would “chill the creative efforts of faculty” and that protecting researcher records instead “encourages and rewards misbehavior.”  E&E also claimed that, because most of the emails they sought were from the late 1990s and early 2000s, this work was “stale,” and thus releasing them would cause “no harm.”

E&E submitted its own experts to support their arguments that release of researchers’ emails was in the best interests of the state.  Among these:

  • Craig Idso, founder of the Center for the Study of Carbon Dioxide and Global Change, testified that certain “scientists have propounded an alarmist view that an increase in carbon dioxide in the atmosphere would have an exclusively negative effect on the planet and on human civilization” and they “hide any data they gather which shows contrary results. . . . To counter this, greater transparency within the academic community is needed.”
  • Peter Ferrara, a former law professor at George Mason University and current fellow at the Heartland Institute, testified that “[m]y experience as an academic convinces me that the release of records after research has been published will not chill academic research, but may improve the quality of future academic endeavors.”
  • Russell Cook, an Arizona taxpayer, testified that without access to the requested emails, “I cannot adequately determine whether climate research is a good use of taxpayer funds, whether such research is reliable . . . whether such research is effective . . . or whether the legislators and other public employees are being wise stewards of the public fisc.”

 

The trial court, the Pima County Superior Court, initially ruled in March 2015 that the University had provided an “abundance of supporting evidence” that harm would occur if the records were released and that “[w]hen the release of information would have an important and harmful effect on the duties of a State agency or officer, there is discretion not to release the requested documents.”  Finding for the University, the trial court concluded that the University had not “abused its discretion or acted arbitrarily or capriciously.”  More about this March 2015 decision can be found here.

E&E appealed the decision, claiming that the trial court should not have given any deference to the University of Arizona and that the trial court should have weighed both sides’ arguments equally under a de novo review.  The Arizona Court of Appeals determined that E&E had couched its appeal under a “rule that is inapplicable to this case,” but agreed that there should be a de novo review, and it remanded the case back to the trial court to equally “balance the countervailing interests.”  (The Arizona Court of Appeals also noted that the Arizona open records laws authorize attorney’s fees to all successful plaintiffs.[2])

Remand to the Trial Court

On remand to the original judge, analyzing the same arguments and evidence but using a de novo standard of review, the trial court issued a new decision on June 14.  This time, in weighing the University’s arguments equally with Arizona’s general “presumption favoring disclosure,” the trial court concluded disclosure was required.  The trial court determined that the University effectively sought “creation of an academic privilege exception” to Arizona’s open records laws, which, the court stated, “is a proposition more properly made to the legislature rather than the courts.”  The trial court also noted that, “[a]lternative methods of communications have been and remain available to Professors Hughes and Overpeck and any other similarly situated persons should they desire to correspond in confidence regarding research projects and like endevours [sic].”

In a footnote, the trial court contrasted this case with Arizona Board of Regents v. Phoenix Newspapers, Inc., 167 Ariz. 254 (1991), which held that Arizona State University properly withheld 256 names being considered for University President.  In that case, the Arizona Supreme Court determined that revealing these names would “chill the attraction of the best possible candidates for the position” as the prospective candidates – people employed at competing universities, as well as people nominated by others – “may find it embarrassing and harmful to his or her career” to have the names released.  In determining that protection was warranted, the Arizona Supreme Court noted that in other cases, “publicity attendant to the search has proven detrimental to the search process, resulting in lesser qualified, but thicker skinned, persons applying.”  The interests of the state, the Arizona Supreme Court concluded, “are best served by not discouraging the ‘cream’ from applying” and thus protection was warranted.

Here, the trial court concluded that the Phoenix Newspapers case dealt with “proven” harms of chilling effects, and while the University of Arizona had made “compelling” arguments, the trial court found that the probability of a chilling effect from releasing thousands of researchers’ emails was “speculative at best.”

In a press release issued two days after the decision, E&E reiterated its position that the emails sought would reveal an “activist climate agenda.”  The group promised to make all of the emails “publicly available to all interested in the history of this important period during which academics demonstrated significant influence on the public discussion on global warming and the human influence thereon.”

Under the Arizona Rules of Civil Appellate Procedure, the University must file a notice of appeal within 30 days after entry of the final judgment.  (Edited to add that an Arizona judgment is not considered final and thus appealable until any pending claims for attorneys’ fees are resolved.  The final judgment in this case, which included an award of partial attorney’s fees, was entered on September 19, 2016.  On October 17, the University of Arizona filed a Notice of Appeal in the case.)

Lauren Kurtz is the Executive Director of the Climate Science Legal Defense Fund, which previously assisted with the representation of Dr. Mann in his Virginia open records litigation.  CSLDF also filed amicus briefs in support of the University of Arizona in this Arizona open records litigation. 

 

[1] After the University of Arizona attorney stated that a “more appropriate” term “might be maternity leave,” E&E’s attorney clarified that “[y]ou can call it that, too, because it could be also daddy leave.  I mean, it’s a situation where a parent says I’m dropping my professional work to do something with my family.”

[2] The general rule in the United States is that each party must pay its own attorney’s fees.  In an exception to this general rule, open records laws widely authorize attorney’s fees as a matter of course for prevailing plaintiffs.

19 comments

  1. What precedent might this decision create?

    (I suppose much depends on whether U of AZ appeals.)

  2. Outside of Arizona, this case has no legal control. Each state’s open records laws are different and many others states have already concluded that scientists’ research emails should be protected.

    Within Arizona, this is a trial court decision that may be considered persuasive authority by another trial court, but it is not binding and it does not control any higher court. That said, it still may encourage open records requests for massive swaths of public scientists’ emails as a way to harass, intimidate, and try to discredit.

  3. As a person benefiting from the luxury of time and my own personal savings (up until recently), I’ve been privileged ever since late 2008 to have articles appear online regarding a narrow political facet of the global warming issue. Lately, I’ve been doing more Google searches of my name to see whose radar I land on, which is how I found my name in this piece as one of the three testifying on behalf of E&E.

    A couple of points first: We hear arguments that FOIA requests for emails are some kind of intimidation/harassment which interrupts work. Boo hoo, life is full of inconvenient interruptions. But if pro-IPCC scientists are proud of their work, ask yourselves why they seem to be so quick to resist anyone seeing their work. Witness the most notorious statement of all concerning a straight out request for an IPCC scientist to share his data, to which he responded, “We have 25 or so years invested in the work. Why should I make the data available to you, when your aim is to try and find something wrong with it?” Witness ClimateGate emails (in their full context) in which IPCC scientists advocate deleting emails to circumvent the FOIA process. Witness FOIA-requested emails from the EPA being released in forms so heavily redacted that the effort would make CIA and NSA agents proud. For comparison, I’ve been named in a supposedly nefarious email chain ( http://insideclimatenews.org/news/12032015/leaked-email-reveals-whos-who-list-climate-denialists-merchants-of-doubt-oreskes-fred-singer-marc-morano-steve-milloy ) implying some kind of sinister plot was afoot to stop Naomi Oreskes’ movie from coming out. But I could place ALL of my emails on a thumbdrive in a matter of minutes; enviro-activists looking for dirt would be bored to tears with my personal & hobby email content, and they’d be deeply disappointed in the lack of dirt within my emails with global warming people. There’d be nothing for them to use against me, and what I emailed only hugely undermines the collective notion that skeptic climate scientists are ‘paid industry shills.’

    Enviro-activists will no doubt recognize the two other names you quoted above mine. No doubt, they will also let out squeals of delight if they do a superficial Google search of my name. But, superficial Google searches about the global warming issue are arguably what keeps the issue alive, and deep intensive searches are what’s ultimately likely to kill it. Readers can either be satisfied to see whatever accusation they find hurled against me, or they can dig deeper to find out whether ANYONE has proven I’m paid and orchestrated to say what I say, and whether the things I write have ever actually been disputed.

    I could go on at length. Having long ago spotted the name of a global warming alarmist book author – a person I describe as the epicenter of the smear of skeptic climate scientists – in Michael Mann’s ClimateGate emails, and having spotted the fatal flaw within the “Jagadish Shukla letter to President Obama” situation ( http://www.americanthinker.com/articles/2015/10/those_scientists_who_want_to_use_rico_to_prosecute_agw_deniers_have_a_big_problem.html ) regarding a similar reliance on that book author as an indictor of skeptic climate scientists, THAT is the reason why the public needs to see pro-IPCC scientists’ emails; to determine what extent those scientists are relying on smear merchants in order to marginalize skeptic climate scientists in the eyes of the public. If pro-IPCC scientists are so certain their scientific work is above reproach, why would they have any impulse to cite highly questionable individuals making unsupportable guilt-by-association character assassination attacks against skeptic climate scientists? You do see the problem here, do you not?

  4. Russel … the fact that you can fit all your emails on a thumbdrive, perhaps this is indicative that you don’t hold a professional job where it’s normal to receive hundreds of emails per day. I shudder to imagine what work would be like if every email I sent was continuously posted to the internet and picked apart by halfwits. All business would be conducted on the phone.

    Please crawl back into the hole from whence you came and allow the noble profession of science to proceed in peace. Your frivolous lawsuit consumed hundreds of thousands of dollars of taxpayer money, but maybe that was the point?

    If you can’t compete (in a peer-reviewed forum), litigate!

  5. Admittedly, I could have completed the thought in my prior comment’s first sentence about having the luxury of time and largely my own savings to pursue my own personal inquiry into the global warming issue full time. One result from this, via comments at my various online articles and from my jousting with enviro-activists, is that nobody disputes what I specifically say about details and narratives within the widespread accusation that skeptic climate scientists are ‘paid industry shills.’ NOBODY, after 7+ years of this. Notice how commenter “Dave” only upholds this somewhat spooky situation, and instead only questions the number of emails I might have while also decrying the FOIA topic as some kind of economic inconvenience. Astute readers here could easily point out to commenter “Dave” that thumbdrives now can hold multiple gigabytes of information, and then ask him if his ‘economic inconvenience’ criticism applies equally to FOIA requests launched by Greenpeace and others. This isn’t “my lawsuit” either, by the way. I received an alert about it, it was in my home state, it concerned at least one individual already tied to the ClimateGate email scandal, and I was aware at the time from a year earlier that at least one one other prominent IPCC scientist relied on a highly questionable source to say skeptic climate scientists lie to the public on behalf of the fossil fuel industry. Further, I also knew from years earlier that no less than a former IPCC Vice Chair cited similar accusation material ultimately stemming from that same questionable source to vilify a particular skeptic climate scientist.

    Note the parting shot by commenter “Dave” about peer review, arguably a much worn-out variation of a talking point from enviro-activists who tell people to buzz off if they can’t put out a peer-reviewed science journal-published climate science paper. Informed readers here could readily point to full context ClimateGate emails in which it was suggested that a way should be found to prevent skeptic scientists’ material from appearing is such science journals, while also pointing to peer-reviewed papers on other scientific conclusions that were subsequently withdrawn due to data tampering. There’s a bigger irony in commenter “Dave”‘s last sentence, namely how it has every appearance of being psychological projection from enviro activists: basically from the start of the ‘Al Gore’ era of this issue, global warming believers were having increasing difficulty competing against the science-based criticism of skeptic climate scientists. How do you counter that, to prompt the public to dismiss them out-of-hand and not look at their detailed assessments? Call skeptic scientists industry crooks who follow the tactics of ‘Big Tobacco’. Believe whatever you want about that accusation, but lawyers here will say it doesn’t matter what you believe, it only matters what you can prove. I say that in 20+ years of the accusation, culminating in this latest ‘RICO push’ against anyone questioning the notion of catastrophic man-caused global warming, not one person has presented evidence proving skeptic climate scientists are in a pay-for-performance arrangement with industry people, where the common agreed-upon goal is to lie to the public. Commenter “Dave” can’t even bring himself to dispute this.

  6. Well this is exciting. It looks like our big Climate “Alarmist” conspiracy is outed. Exposed by an Arizona judge.

    Once the courts dig into my name they will discover my confession in a few of the alarmist climate conspiracy blogs. I wrote comments just after I got back from my melt duties in Alaska. I was returning all the borrowed extension cords and hair dryers we used for the melt campaign, it was a small truckload of trainloads. We had been up there with the thousands of other conspirators. We were with the First Warmistas Squad (FWS) tasked with manually melting the vast snow and ice and permafrost. Check it out on the satellite images… all melted. Once the courts subpoena the hundreds of students doing field work they will testify that we worked tirelessly into the nights of the midnight suns. Hard work, mud and really long extension cords, but we did it. We melted most of the ice, the north slope and villages. All mud now. If you go up there, you’ll see a tangle of lost power cables and broken hair dryers, now caked with mud. Real evidence, I invite you to take a look.

    The last big witch-hunt in America was with Joe McCarthy in the 1950’s … my parents woke me up to view the Army-McCarthy hearings on TV. Senator Joe McCarthy insisted there were communists everywhere. My father was a university professor – a speech teacher – he was visited by the FBI who were looking for communists in colleges (I had thought they were only in Russia). But Dad was a D-day veteran so they just asked him if he knew any communists nearby – you know, down the hall, or behind the library. You had to be alive in the 1950’s to appreciate that.

    But I’m not a professor, but I wanted to be – does that count? and so I guess I can call out these political cretins – since I can’t be fired. The end of of that great American Witch-Hunt was conclude by Congress. It was abruptly and chaotically ended by Abbie Hoffman, who was called before the House Un-American Activities Committee (HUAC) to deliver solemn, sworn testimony of communist influence of young people who were demonstrating against the war in VietNam. (we were getting drafted and killed and so we demonstrated in the streets every weekend [this was before the days of the student loans, so it was easier to yell and rebel] Abbie Hoffman was a leader of the Yippies, he took LSD and had fun – that pissed off the ghosts of Joe McCarthy that haunted Congress – still today.

    Abbie Hoffman had the entertainment good sense to enter the Halls of Congress festooned in a tall witches hat and a shirt made out of an American flag. One way or another, everyone was impressed. So today if you see a red, white and blue shirt or underwear or handkerchiefs – think of Abbie Hoffman and those tight assed old witch-hunters with a scowls on their faces.

    I am astounded that any judge would permit a modern political witch-hunt in a court room. Especially by the E&E.. as I look them up http://www.desmogblog.com/energy-environment-legal-institute I find they are just about as direct a money connection to David Koch’s coal money and the carbon fuel interests as anyone could get. And political to the nth degree. Perplexing that the IRS would allow E&E to continue their non-proft status, they are supposed to be free of politics. But that is another battle.

    I am a climate activist – more of an aggravationist. But not connected with a university.. oops I was a recent student. Since I am over 62 years old, I can audit courses at the University of Washington. I had a student ID card and an email account. So my email is in there somewhere. I have sat in 6 courses in climate change and global warming – some graduate seminars. I sure I must have emailed a dozen other professors, not all of whom replied to me, since I was auditing. Maybe now they will. Wait, I had undergraduate records in the late 1960’s – but that was before email. But I knew the people from DARPA who were inventing email, does that count?

    I emailed many professors, worse, I commented extensively and fomented deeply about global warming on the Internet. (Over the decades, probably a terabyte worth) But that’s where my biggest alarmism-hair-dryer-conspiracy-warmism contacts took place. Not emails but comments and twitter and facebook and all over the intertubes. I was researching for my own web sites of TheClimate.Vote, and ClimateManifesto.org and http://localsteps.org/howbad.html, http://www.noenergytomorrow.org/ and my opinion in a newspaper
    http://www.seattlepi.com/local/opinion/article/First-Person-Prodding-the-sacred-cow-1301367.php Most everything was my words or linked to on the Internet.

    I am thrilled to read that attorney’s fees will be awarded here…that is, in case they come after me, maybe I could get a job at a university and make it easier for them. Because I don’t have a university to provide a lawyer, but a few friends are lawyers and they may want to invest sweat equity in helping me battle these windmills. An anti-SLAPP suit might be nice. It would be like putting money in the bank for my legal team.

    During the Titanic sinking, I wonder, were there charges of alarmist conspiracy? We will never know what happened to those men huddled on the steep sloping deck – arguing whether it tilted to the right or to the left. Politics and tight-assedness mean nothing to icebergs and gravity and sinking. Kind of nice that way – physical laws are stronger than our legislative and court rules. All this legal wrangling will make little difference to anyone except the victims of the witch-hunts. As intended.

    What is alarmism if there is a true calamity? Is there a charge of insufficient alarmism? Is that actionable? If it was a printed warning one hundred years ago, spoken of, taught widely and now YouTubed and exclaimed is that enough? What is the warning past “alarm” If we failed to yell down the lunatic witch-hunters – telling them to crawl back into their overheated, desiccated Arizona underground – does that mean we were not sufficiently alarmist? Would an attorney be tossed out of court for wearing a witches hat and a nicely tailored suit made from an American Flag?

  7. Notice two specific things about Richard Pauli’s 7/6 comment: first, he veers off into satire about conspiracy theory wherein people melt the icecaps. Then, he turns to character assassination.

    The existence of global warming over the last 150 years is not in dispute by skeptic climate scientists, so Pauli’s first point implodes right there. Skeptic climate scientists don’t deny climate change, they point out in great detail how the IPCC has not conclusively made its case that what little warming we’ve seen is primarily driven by human activity. The only real climate change deniers in the issue are those who advocate for a climate unchanging from the time 150 years ago.

    When Pauli then asks us to look at Desmogblog as some kind of reliable source exposing the ‘crookedness’ of E&E, I will simply counter with two points: Consider exactly who co-founded Desmogblog and for what express purpose (described in detail at my blog post here http://gelbspanfiles.com/?p=2728 ) and then do, as extensive as humanly possible, a search of Desmog material and of outside material related to Demsog’s co-founders, to see if you can locate any evidence that would stand in a courtroom evidentiary hearing of a pay-for-performance arrangement between the Kochs or any others in the long lineage of ‘industry enemies du jour’ and skeptic scientists / skeptic speakers / and folks such as those at E&E. As I mentioned in my prior comment, I’ve had the luxury of time to do so, and I have yet to find any such evidence. I invite anybody to correct me where I’m wrong. All I’ve found instead is the appearance of a pure guilt-by-association effort pushed by a small clique of enviro-activists centering on so-called evidence ‘obtained’ via undisclosed means by one of Desmog’s self-admitted founders. “Evidence,” which turns out not to be what that person portrays it to be.

    There’s no witch hunt by skeptics here to intimidate pro-AGW scientists, there’s an effort to get to the bottom of why such scientists are so loathe to keep their work behind closed doors. Look no farther than a prior precedent where Phil Jones responded to a perfectly legit inquiry by saying “Why should I make the data available to you, when your aim is to try and find something wrong with it?” Look no further than the migraine-inducing analysis of Steve McIntyre on the ClimateGate email scandal, which led him to conclude that IPCC assessments suffer from elemental faults of transparency and data-sharing. Such seems to be the mentality of this crowd, ‘trust us and don’t question what we say.’ I submit that commenters such as Pauli offer worn-out obfuscations and baseless ad hominem about industry corruption because there is always a critical need to bury the fact that the pro-IPCC people are unable to survive in the arena of scientific debate, and thus always the critical need to marginalize the critics …. by any means possible.

  8. The 30 days to appeal has passed. What is the latest on this case?

  9. Since there are currently pending claims for attorney’s fees in the case, the decision is not yet considered “final” for the purposes of appeal. I’ve added a link to the post above that explains this. Once the attorney’s fees issues are resolved, then the 30 day clock will start ticking.

  10. Do you have an update on the status of an appeal by the University of Arizona ?

  11. The plaintiff’s claims for attorney’s fees are still pending so the decision is not yet final for purposes of an appeal — see above. A hearing on the attorney’s fees issue has been scheduled for August 30.

  12. Well if squandering precious irretrievable time is the goal, our court system sure knows how to give and give.
    I’ll keep checking back, since I’m assuming you’ll update as decisions are made. Seems to me this is worth keeping an eye to see how it develops.

    Do you have any sense if Dr. Hughes, or his attorney’s are using this time to prepare an appeal?

  13. Unfortunately, I don’t have any new news to report at the moment, but I will certainly update as soon as I do.

  14. Aug 30 has passed now. Any update on the fees hearing and/or appeal?

  15. There was a hearing on August 30 but the judge has yet to issue his decision regarding the attorney’s fees. Under AZ law, he needs to issue a decision within 60 days of the hearing (so, end of October at the latest). Once that decision is issued, then the case will be ripe for appeal.

  16. The end of October deadline has passed for the decision about the attorneys’ fees. Any update on that or the appeal?

  17. Hi John – as the edited blog post now says, the final judgment in this case (which included an award of partial attorney’s fees) was entered on September 19. On October 17, the University of Arizona filed a Notice of Appeal in the case.

  18. Thank you Lauren,

    Next time I’ll first look for new editing in the blog! What is/are the schedule/deadlines for the appeal? How many days before the appeal hearing, what factors will be in play in making the judgement … that kind of thing?

  19. My understanding that the various deadlines are set by the court clerk, who issues a scheduling order (hasn’t happened yet and probably won’t for a few more weeks at least). I will update when that comes out as well as when the parties file their briefs, which is when we will know what arguments are being made to the appellate court.

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