This week, in a courtroom in Prince William County, Virginia, a hearing will take place that could have implications for the privacy rights of scientists at colleges and universities across the country.
It's part of a lawsuit brought by the American Tradition Institute, a free-market think tank that wants the public to believe human-caused global warming is a scientific fraud. Filed against the University of Virginia, the suit seeks emails and other documents related to former professor Michael Mann, an award-winning climate scientist who has become a focus of the climate-denial movement because of his research documenting the recent spike in earth's temperature.
By suing the university, the American Tradition Institute wants to make public Mann’s correspondence in an effort to find out whether he manipulated data to receive government grants, a violation of the state’s Fraud Against Taxpayers Act.
But a Facing South investigation has found that the Colorado-based American Tradition Institute is part of a broader network of groups with close ties to energy interests that have long fought greenhouse gas regulation. Our investigation also finds that ATI has connections with the Koch brothers, Art Pope and other conservative donors seeking to expand their political influence.
'A Hostile Environment'
The controversy involving ATI began in January, when the group submitted a Freedom of Information Act request to U.Va. seeking documents connected to Mann, who now directs the Earth System Science Center at Penn State. After the school was slow to produce the materials, ATI along with Virginia Del. Robert Marshall (R), another global-warming skeptic, filed a lawsuit in May seeking to expedite the documents' release. This week's hearing will consider Mann's motion to intervene in the case in order to protect privacy interests he does not think will be adequately protected by the other parties.
A physicist and climatologist with advanced degrees from Berkeley and Yale, Mann’s research contributed to the "hockey stick graph," which shows a sharp rise in the earth’s temperature in recent years. He was also among those caught up in the so-called "Climategate" controversy, involving emails hacked from a British university that climate skeptics claimed showed global warming was a fraud. Multiple investigations by Penn State, the National Science Foundation's Inspector General, the National Oceanic and Atmospheric Administration and British parliament have cleared Mann and others of misconduct and determined that the content of the emails in no way changed the scientific consensus that global warming is occurring as a result of human activity.
Despite those exonerations, however, Mann became the target of a separate ongoing investigation launched last year by Virginia Republican Attorney General Ken Cuccinelli, a global-warming skeptic who issued civil subpoenas for Mann's emails and other documents. A Virginia judge dismissed the investigation, but Cuccinelli -- who previously challenged the Environmental Protection Agency's finding that greenhouse gas pollution endangers public health -- is now appealing that decision to the Supreme Court of Virginia. ATI is seeking the same documents as Cuccinelli.
ATI's lawsuit has been widely condemned by science, academic and civil liberties groups, who describe it as a politically motivated intrusion into academic freedom. The board of the American Association for the Advancement of Science said that such legal challenges "have created a hostile environment that inhibits the free exchange of scientific findings and ideas." Earlier this year, public-interest groups including the American Association of University Professors sent a letter to the U.Va. president noting that the Virginia public documents statute expressly exempts scholarly data of a proprietary nature that has not yet been publicly released, published, copyrighted or patented.
"While we need freedom of information laws to hold public officials accountable, the law has exemptions for good reason," said Francesca Grifo, director of the Scientific Integrity Program at the Union of Concerned Scientists, one of the letter's signatories. "Scientists should be able to challenge other scientists’ ideas and discuss their preliminary thinking before their analyses are complete and published."
But ATI has fired back against the scientists and academics, accusing them of taking part in a conspiracy to mislead and defraud the public.
"Once again these self-interested groups -- who hope to protect their billions of dollars in government funding of dubious, unsupportable research -- accuse ATI of 'harassment and intimidation' of scientists," ATI Executive Director Paul Chesser said in a statement. "It shows how blind they are to the fact that ATI has acted in the interest of sound, verifiable science and for the protection of the hard-earned money that taxpayers are forced to relinquish for such research."
ATI's Western roots
The American Tradition Institute’s foray into the Virginia case marks the expansion of a controversial group already known for its fierce advocacy on behalf of oil, gas and coal interests in Western states.
The American Tradition Institute was launched in Colorado in February 2009 as the nonprofit Western Tradition Institute, changing its name to ATI last year. WTI, in turn, was a spinoff of the Western Tradition Partnership (WTP) -- a 501(c)(4) political advocacy group backed by energy interests.
"They are offshoots from the same poisoned roots," said Peter Fontaine, the attorney representing Michael Mann in the ATI lawsuit.
WTP, which has since changed its name to American Tradition Partnership, describes itself as a "no-compromise grassroots organization dedicated to fighting the radical environmentalist agenda." It was first registered as a Colorado nonprofit in 2008 by Scott Shires, a Republican operative with a checkered past: He was fined over $7,000 for campaign finance violations in Colorado, pleaded guilty in a scheme to fraudulently obtain federal grants for developing alternative fuels, and was tied to an illegal gambling ring. WTP was active on behalf of oil and gas industry interests in the 2008 commissioners race in Garfield County, a center of Colorado's energy industry.
Last year, the then-Western Tradition Partnership also backed a Colorado ballot initiative that would have allowed voters to opt out of the state’s renewable energy standard, which requires 30 percent of the electricity produced by investor-owned utilities to come from renewable sources by 2030. WTP missed the filing deadline to put the measure on the ballot, but ATI is picking up the slack: The group has sued Colorado over the standard, and is targeting similar renewable energy promotion programs in Delaware, Minnesota, Montana, New Mexico and Ohio.
The groups have not only been fighting on behalf of the energy industry: They’ve also been targeting laws that restrict corporate money in elections and that require disclosure of contributions. In 2009, Western Tradition Partnership sued the city of Longmont, Colo. over their local Fair Campaign Practices Act. The city eventually settled the suit and agreed to drop requirements that political donors have their identities disclosed on campaign advertisements.
And in the wake of the U.S. Supreme Court's 2010 Citizens United decision, WTP successfully challenged the constitutionality of the Montana Corrupt Practices Act of 1912, which prohibited independent expenditures by corporations to influence political campaigns -- a law originally aimed at powerful mining and railroad interests in the state.
But even while it has fought to weaken election laws, WTP has at times run afoul of them. A decision issued last year by the Montana Commission of Political Practices found that the organization had broken state campaign laws by failing to register as a political committee or properly report its donors and spending. The investigation discovered that the group had solicited unlimited contributions to support pro-mining, pro-logging and pro-development candidates in Montana and avoided disclosing the contributions by passing them along to a sham political action committee that in turn ran attack ads against Democrats.
As Commissioner Dennis Unsworth said in his decision, the group's wrongdoing "raises the specter of corruption of the electoral process."
A window into the climate-denial industry
In the Western Tradition Partnership's Winter 2010 newsletter, the group announced that it changed its name to the American Tradition Partnership. It also reported in an article datelined North Carolina that it had launched the American Tradition Institute, a think tank that would be "battling radical environmentalist junk science head on."
The group would be led by Paul Chesser, who they described as a "noted climate scholar." In fact, Chesser is not a scientist but has long worked in what environmental advocates call the "climate denial machine": a network of organizations, many backed by energy interests, that work to create doubt about the science of human-caused global warming.
According to his bio, Chesser grew up in Rhode Island and worked as an accountant in Los Angeles. He launched his reporting career in North Carolina, where he edited two weekly conservative Christian newspapers, The Raleigh World and The Triad World. Now defunct, the papers were owned by World Newspaper Publishing, whose stated purpose is to "bring journalism informed by a distinctly Christian worldview to major cities across America."
From there, Chesser moved to the John Locke Foundation (JLF), a free-market think tank based in Raleigh, N.C. that has been a leading voice of climate denial in North Carolina. The Locke Foundation decries what it calls "global warming alarmism" and promotes the views of global warming skeptics like Patrick Michaels, who left the climatologist's office at the University of Virginia in 2007 over controversy about his funding sources and fringe views.
The Locke Foundation was founded and is largely funded by Art Pope, a North Carolina millionaire and leading conservative benefactor. As a national director of the free-market advocacy group Americans for Prosperity, Pope has close ties to the Koch brothers, the billionaire owners of the Kansas-based Koch Industries oil and chemical conglomerate and leading funders of global warming denial efforts. The Koch Family Foundations have also contributed at least $70,000 to the Locke Foundation.
It was at the Locke Foundation that Chesser began his crusade against the growing scientific consensus about climate change. He served as an editor of Carolina Journal, the group’s monthly newspaper that relentlessly attacks the science of global warming in its climate coverage. While there he also began working with Climate Strategies Watch, an initiative that sought to discredit the Center for Climate Strategies, a nonprofit group that helps states figure out ways to reduce greenhouse gas pollution.
Climate Strategies Watch was a joint project of the Locke Foundation and the Heartland Institute, a corporate-backed think tank in Chicago where Chesser also served as a special correspondent. Heartland has received at least $676,000 from ExxonMobil since 1998. Between 1997 and 2008, they also received $30,000 from foundations connected to the Kochs and another $50,000 from Pope's family foundation. One of Heartland's government-relations advisors also served as Exxon's senior environmental advisor.
Chesser was soon fully immersed in the climate-denial network. He became an associate fellow for the National Legal and Policy Center, a conservative think tank heavily funded by the Scaife Foundations, which are controlled by the family that owns Gulf Oil. He blogged for the Cooler Heads Coalition, an industry front group led by the Competitive Enterprise Institute -- a fierce opponent of greenhouse gas regulation that has taken over $2 million from ExxonMobil as well as funding from the American Petroleum Institute, Texaco and the Koch, Scaife and Pope foundations. (ATI’s director of litigation, Christopher Horner, is a CEI fellow.)
Now at the American Tradition Institute, Chesser again finds himself speaking for a group largely bankrolled by fossil fuel interests. According to its most recent filing with the IRS, ATI last year received $40,000 from its sister group ATP, which in turn is supported by oil, gas and coal interests. It received another $5,000 from the Atlas Economic Research Foundation, a Virginia-based think tank that since 1998 has received over $1 million in funding from Exxon Mobil; between 1997 and 2008, Atlas also received $122,300 from the Koch foundations and $735,000 from the Pope foundation.
But ATI's biggest funder is Montana businessman Doug Lair and his Lair Family Foundation; they contributed $5,000 and $135,000 respectively to the group last year -- over 75 percent of its total income.
Lair’s fortune comes from Lair Petroleum, the family business that was sold in 1989 to William Koch, the lesser-known brother of Charles and David Koch. As recently as 2010, Lair Petroleum was listed as Lair’s employer in state campaign finance reports, although now he’s also an investor in commercial and agricultural real estate.
Along with the American Tradition Partnership, Lair and another Montana resident recently filed a lawsuit challenging the constitutionality of Montana campaign finance laws, arguing that limits on donation amounts and corporate contributions are impermissible under the First Amendment -- a suit similar to others filed by the group. The plaintiffs are represented by James Bopp Jr., a prominent conservative attorney who worked as a legal adviser to the group behind the Supreme Court's Citizens United decision that successfully challenged strictures on corporate money in elections.
"The Supreme Court has ruled that corporate political speech is protected by the First Amendment, and you cannot ban political speech just because the speaker is a corporation," said Bopp.
A chilling trend for academic freedom
The hearing on the American Tradition Institute's Freedom of Information Act lawsuit against the University of Virginia seeking Michael Mann's records is set for Tuesday, Nov. 1 before Judge Gaylord Finch in Prince William County Court. The hearing was postponed from September after Finch said he wanted to allow more time for arguments because of the case's significance.
"If it wasn't clear before, it should now be clear to everybody," David Schnare, pro bono director of ATI's Environmental Law Center, said at the time. "This is an extremely important case, and we appreciate Judge Finch’s careful attention to detail as we proceed."
Critics say the case not only symbolizes the industry attack on climate science but is part of a growing trend of using public information requests to target academics for political reasons.
Earlier this year, the Republican Party of Wisconsin filed a records request seeking materials from University of Wisconsin history professor William Cronon after he criticized Republican Gov. Scott Walker's push for legislation to weaken public-sector unions. Soon after, the Mackinac Center for Public Policy -- a free-market think tank based in Michigan -- submitted Freedom of Information Act requests seeking materials related to the Wisconsin union battle from labor studies faculty at the University of Michigan, Michigan State and Wayne State.
In the Cronon case, the University of Wisconsin's Faculty Senate passed a resolution arguing that open records laws are abused when they become partisan tools. "What was begun as a classic notion of sunshine being the best disinfectant has turned into a law that's used as a weapon to target not government officials and offices but individual public employees," said professor Howard Schweber, one of the political scientists who helped craft the resolution.
In the end, the university released some Cronon emails but withheld others, including exchanges with students protected under the Family Educational Rights and Privacy Act and what it considered private exchanges among scholars. In the Wayne State case, the think tank's action led the university to take down some pages of its Labor Studies Center's website and investigate whether they had violated state campaign finance laws.
The American Tradition Institute is also using open records law to target another prominent and award-winning climate scientist: James Hansen, director of NASA's Goddard Institute for Space Studies. In January, ATI filed a federal FOIA request with NASA seeking information on how Hansen "has complied with applicable federal ethics and financial disclosure laws and regulations, and NASA Rules of Behavior." An outspoken advocate for limiting greenhouse gas pollution, Hansen has long been a target of global-warming skeptics for his research and activism. ATI has sued NASA for withholding documents over concerns about Hansen's privacy rights.
In the upcoming hearing on the U.Va. case, Mann's attorney, Peter Fontaine, told Facing South that he will argue his client should be permitted to intervene in the ATI lawsuit because of his personal interest in protecting his private email correspondence with other scientists -- what Fontaine calls the "raw materials of scholarship" that lead to finished science.
"If this information is disclosed and allowed to be cherry-picked, distorted and mischaracterized, it will result in a terrible chilling of the rights of scientists to exchange their ideas," said Fontaine, co-chair of Cozen O’Connor’s energy and climate change programs and an EPA air pollution enforcer in the early 1990s. "It would be a blatant violation of my client's copyrights to his private emails, as well as his First Amendment rights and the right to academic freedom."
Fontaine faces a formidable adversary in ATI’s Schnare, who holds advanced science degrees from the University of North Carolina at Chapel Hill and worked as an attorney with the Department of Justice and Virginia Attorney General before serving in the same EPA air-pollution enforcement job as Fontaine from 1999 until his retirement four months ago. Schnare dismissed the idea that the lawsuit is targeting Mann or his scholarly position on climate science, and said he plans to argue that the professor should not be allowed to intervene.
"This case is about FOIA, not Mike Mann," Schnare said. "If he had wanted to protect himself from embarrassing emails, he should not have pressed 'send' to begin with."