In March 2015, an Arizona trial court validated the University of Arizona’s denial of massive records requests by Energy & Environment Legal (“E&E Legal”), which sought 13 years of climate scientists’ emails under Arizona open records laws.[1] E&E Legal, formerly named the American Tradition Institute, claimed it wanted these emails for its “transparency project.”[2] The group has been described as having “a core mission of discrediting climate science and dismantling environmental regulations,”[3] and E&E Legal openly admitted its litigation was seeking documents it could use to embarrass researchers.[4] Many in the scientific community applauded the court’s ruling,[5] but E&E Legal was less pleased and it recently appealed the decision.
In its appeal, E&E Legal claims that the trial court misinterpreted Arizona’s open records laws, which balance duties of government transparency with protections deemed in “the best interests of the state.”[6] In particular, E&E Legal claims that the trial court erred by giving deference to the University’s determination, and the court improperly considered whether the University had “abuse[d] its discretion or act[ed] arbitrarily or capriciously” in withholding the emails.[7] Instead, E&E Legal claims, the trial court should have considered both sides’ arguments equally and analyzed them de novo.[8] E&E Legal has asked for a remand to the trial court for reanalysis or, in the alternative, a new analysis by the appellate court.[9]
E&E Legal has been called “a free-market think tank that wants the public to believe human-caused global warming is a scientific fraud,”[10] and its tactics include “filing nuisance suits to disrupt important academic research.”[11] The group also “has connections with the Koch brothers, Art Pope and other conservative donors seeking to expand their political influence.”[12]
Recent bankruptcy filings by coal producer Alpha Natural Resources (“ANR”), analyzed by The Intercept, also reveal that E&E Legal’s work has been funded by the coal industry.[13] These bankruptcy filings list line item descriptions of ANR contractors and grant recipients, which includes distributions to E&E Legal attorney Christopher Horner, as well the Free Market Environmental Law Clinic (“FMELC”), which operates as litigation counsel for E&E Legal.[14] (FMELC’s business address is also the home of David Schnare, the general counsel for E&E Legal, and FMELC is staffed solely by attorneys who also work for E&E Legal.[15]) A representative from the Union of Concerned Scientists described the ANR money to FMELC and Horner as essentially “funding the harassment of scientists.”[16] Chris Horner was also a featured speaker at the 2015 Coal and Investment Leadership Forum, an invitation-only retreat that brings together coal industry executives, Republican donors, and other “stakeholders.”[17]
Despite the groups’ transparency directives, FEMC director and E&E Legal general counsel David Schnare declined to give reporters additional details on ANR funding, and sent an email “neither confirming nor denying that Horner or his organizations have received funding from the coal giant.”[18] Horner has previously declined to comment on his relationship with coal companies.[19] Schnare told reporters that “nearly all” of their donors “request that we not disclose their names,” and noted that IRS regulations do not require disclosure.[20]
Lauren Kurtz is the Executive Director of the Climate Science Legal Defense Fund, which seeks to protect the scientific endeavor. For more information, please visit www.climatesciencedefensefund.org
[1] https://s3.amazonaws.com/ucs-documents/science-and-democracy/19966054.pdf#sthash.a52aOaNb.dpuf
[2] https://blogs.law.columbia.edu/climatechange/2015/03/31/arizona-court-upholds-protections-for-scientific-research-and-correspondence/
[3] https://www.theguardian.com/environment/2012/may/09/climate-change-american-tradition-insitute#sthash.HW6Cox63.dpuf
[4] https://blogs.law.columbia.edu/climatechange/2015/03/31/arizona-court-upholds-protections-for-scientific-research-and-correspondence/
[5] https://blog.ucsusa.org/arizona-superior-court-protects-academic-freedom-in-climate-email-disclosure-case-682; https://www.aaup.org/brief/energy-environment-legal-institute-v-arizona-board-regents-no-c2013-4963-arizona-superior; https://twitter.com/TucsonPeck/status/582608218872012800
[6] At the trial level, the University of Arizona successfully argued that academic free thought and expression should be protected because it was in the best interests of the state, an established protection under Arizona law. For more on the trial court decision, see here: https://blogs.law.columbia.edu/climatechange/2015/03/31/arizona-court-upholds-protections-for-scientific-research-and-correspondence/
[7] Energy & Environment Legal Institute v. Arizona Board of Regents, Arizona Court of Appeals Division II, Appellant’s Opening Brief dated July 24, 2015.
[8] E&E Legal’s claim for a different standard of review is predicated on their claim that, because it sought to force the University to produce thousands of emails, E&E Legal was effectively making a petition for mandamus, and writs of mandamus are accorded de novo review. In its opening brief, E&E Legal acknowledges this argument is supported “by example rather than through direct statement.”
[9] Energy & Environment Legal Institute v. Arizona Board of Regents, Arizona Court of Appeals Division II, Appellant’s Opening Brief dated July 24, 2015.
[10] https://www.southernstudies.org/2011/10/special-investigation-whos-behind-the-information-attacks-on-climate-scientists.html
[11] https://www.theguardian.com/environment/2012/may/09/climate-change-american-tradition-insitute
[12] https://www.southernstudies.org/2011/10/special-investigation-whos-behind-the-information-attacks-on-climate-scientists.html
[13] https://firstlook.org/theintercept/2015/08/25/chris-horner-coal
[14] https://pdfs.citizenaudit.org/2013_06_EO/45-1602963_990EZ_201212.pdf
[15] https://pdfs.citizenaudit.org/2014_08_EO/45-1602963_990_201312.pdf
[16] https://firstlook.org/theintercept/2015/08/25/chris-horner-coal/
[17] https://www.theguardian.com/us-news/2015/may/29/jeb-bush-closed-door-meeting-coal-industry-barons
[18] https://firstlook.org/theintercept/2015/08/25/chris-horner-coal/
[19] https://www.theguardian.com/us-news/2015/may/29/jeb-bush-closed-door-meeting-coal-industry-barons
[20] https://firstlook.org/theintercept/2015/08/25/chris-horner-coal/
