Arguments
On June 14th, an Arizona court ruled that thousands of emails from two prominent climate scientists must be turned over to the Energy & Environment Legal Institute (E&E), a group that disputes the 97% expert consensus on human-caused climate change and argues against action to confront it. E&E and its attorneys are funded by Peabody Coal, Arch Coal, and Alpha Natural Resources, coal corporations with billions of dollars in revenue.
Formerly named the American Tradition Institute, E&E has been described as “filing nuisance suits to disrupt important academic research.”
E&E originally attacked Dr. Michael Mann, whose research shows a dramatic increase in recent temperatures in a graph popularly known as the “hockey stick.” In 2011, the group sued under Virginia open records laws to obtain six years of Dr. Mann’s emails from the University of Virginia—over 10,000 messages in total. The Virginia Supreme Court denied E&E’s claims and ruled that academic research correspondence should be protected because release 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.”
E&E did not relent. Despite losing in Virginia, the group brought another open records case in Arizona to demand the same six years of emails—this time from Dr. Mann’s coauthor, University of Arizona professor Dr. Malcolm Hughes. Additionally, E&E sued for thirteen years of emails from UN Intergovernmental Panel on Climate Change (IPCC) lead author Dr. Jonathan Overpeck, also at the University of Arizona.
In court filings, E&E acknowledges it seeks emails that, in its words, “embarrass both Professors Hughes and Overpeck and the University.” These smear tactics serve no role in scientific discourse, but are an attempt to distract, disrupt, and intimidate legitimate researchers.
E&E’s attorney also claimed that female scientists may, according to him, go on “mommy sabbatical” and then ignore their publicly-funded research in lieu of “sitting around folding clothes.” Given this risk, E&E argued that when scientists “abandon” their duties, emails regarding unpublished research should be released so that others can take over their work. E&E did not explain how to determine what has been “abandoned.”
Just filing the lawsuit caused damage: Dr. Hughes testified it took him ten weeks to go through all the emails, and he lost an entire research summer to reviewing old emails as well as losing a grant that expired. Dr. Overpeck testified it took him six weeks to go through everything and he was unable to use his sabbatical.
These sorts of lawsuits, regardless of outcome, subtract months of labor from the scientific endeavor and cost public universities hundreds of thousands of dollars in legal fees.
The trial court ruled in March 2015 that the University of Arizona had provided an “abundance of supporting evidence” that releasing the emails would cause harm, and the court ruled in favor of the University. However, E&E appealed, securing a rehearing in the case.
Last month, the court reversed its earlier decision and determined instead that disclosure was warranted. The court concluded 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].
The implication seems to be that scientists’ research discussions should be limited to the telephone.
In a modern workplace, email is critical to professional communication. This decision will force scientists to work in a fishbowl, with every email exchange—from offhand notes to highly technical analyses—picked apart by agenda-driven opponents. It will stifle candid scientific debate, discourage open collaboration, and chill free academic thought. 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.
In an ongoing federal case, the conservative group Judicial Watch—which claims climate science is a “fraud science”—has sued the National Oceanic and Atmospheric Administration (NOAA) for thousands of climate scientists’ emails related to a 2015 climate change study published in Science. Congressman Lamar Smith (R-TX), who accused NOAA of having an “extreme climate change agenda,” unsuccessfully sought the same emails last year.
In addition to the Arizona case, E&E attorney Christopher Horner paired with another fossil fuel industry funded-group, the Competitive Enterprise Institute, to sue for the emails of climate communications professor Dr. Edward Maibach. While Dr. Maibach sought to intervene in the litigation, the judge ruled that he lacked jurisdiction. Thousands of pages of Dr. Maibach’s emails were released, and plaintiffs posted them to the internet with quotes pulled out of context and commentary calling him and other climate researchers “frauds,” “snake oil salesman,” and worse.
Mother: "What did you learn in school today, Exxon?" "Today we learned all about the First Amendment!" "And what about the First Amendment did you learn?" "We learned that exercising our Free Speech means paying others to sift through decades of emails of Climate Scientists, cherry-picking discriminating information, and releasing it to a soundbite-conditioned public to take out of context, thereby clouding that Science by ruining the public reputations of its practitioners, and warning young Scientists to pick another subject ... or else!"