Did denialist EPA lawyer break ethics rules in his attack on Michael Mann?

David Schnare is a climate change denier, right-wing activist, and lawyer, and he works for the conservative “free market” think tank American Tradition Institute (ATI). Evidence has come to light suggesting that Schnare acted unethically during the course of a recently settled legal battle over access to private emails exchanged among university based climate scientists. In particular, Schnare may have worked at the US Environmental Protection Agency (EPA) at the same time he was engaged with work at ATI, without the required permission.

Almost two years ago, ATI initiated legal proceedings to gain access to private documents held by the University of Virginia, mainly emails that had been exchanged among several scientists working on global warming. This is regarded as a systematic attack on climate scientist Michael Mann, the well known researcher who produced the famous “Hockey Stick” graph demonstrating the severity and immediacy of ongoing climate change (and more recently author of The Hockey Stick and the Climate Wars: Dispatches from the Front Lines). In September of this year, the University of Virginia won its fight against ATI to protect the researchers’ emails.

Part of the process of assessing whether or not these documents should be released involved giving access to those very documents to designated individuals. This presents a conundrum, because a legal team such as that representing ATI might reasonably require access to the documents in order to make the argument that they should be more broadly released, but if the entity requesting this access is itself politically motivated or in some way untrustworthy, this means that the access being argued over is being granted de facto. From the point of view of those who generated the document, this may be a real and meaningful breach of confidence, privacy, or security. Recognizing this, the legal teams representing the University of Virginia and Michael Mann asked the courts to not allow ATI lawyers access, and the courts agreed.

In May, 20112, as part of this dispute a legal arrangement between the University of Virginia and ATI, Chris Horner, an ATI lawyer and climate change denier, and David Schnare would have been given access to these emails. The University of Virginia soon took the position that this would be inappropriate because Horner and Schnare had released “disturbingly inaccurate” information to the press about the arrangement that had been made, and a third individual who would not have been allowed access to this material, science denialist Delegate Marshall, seemed to have entered into an arrangement with Horner and Schnare to have access to the documents. In other words, Mann and the University of Virginia were arguing that Horner and Schnare could not be trusted. That dispute was settled when the courts agreed to modify the arrangement. However, as part of this process the apparent ethics violation by David Schnare came to light.

Schnare worked not only for ATI, but for a period of time, he also workedfor the US Environmental Protection Agency (EPA). In order for this to have been ethical and legal, Schnare would have had to seek and obtain permission from the EPA to carry on outside activities related to EPA work. Schnare claimed to have sought permission but the University of Virginia has argued that Schnare did not inform the EPA of this outside work until about nine months after first engaging in it. Schnare claims that the letter requesting permission was prepared on or near November 16th, 2010, but there is no record at the EPA that any such letter existed. The letter, which exists now, seems to have been prepared much later in time.

All of this raised significant concerns over the trustworthiness of of those representing ATI. Being allowed, as lawyers representing interests in a particular case, to see documents that the court may rule to be private requires a much higher standard of trust, the University of Virginia argued, than should be afforded to these climate science denialists. In a court filing, the University says:

University counsel can no longer defend their willingness to entrust tens of thousands of pages of personal, scholarly, and research communications from Professor Mann and other scientists to two individuals who have regrettably provided far too many reasons to doubt that their words may be trusted.

In response, ATI filed a document accusing the University of Virginia of being discourteous and engaging in ad hominim attacks, and provided rather weak evidence making their case. Most importantly, ATI does not address key evidence including University of Virginia’s time stamped emails documenting that Schnare had carried out some of his activities in violation of ethics rules.

A delicious irony has emerged from an interview of Schnare by Mother Jones:

Schnare insisted in an interview with Mother Jones that he had proper authorization to litigate the email case. “I had permission to do legal work outside of work that did not directly involve the EPA or issues in front of the EPA and this is one of them,” he said. He added that the work was pro bono and insisted it was done outside of his day job.

While the court’s ruling on Mann’s emails didn’t touch on ATI’s motivations or Schnare’s employment, the legal record suggests that ATI’s own lawyer may have been working on the case while at has taxpayer-funded EPA job. Wherever and whenever Schnare did his lawyering, ATI’s main argument for why they should have had access the emails was to “fulfill the public’s right to know how taxpayer-funded employees use the taxpayer’s resources.”

The effort by ATI and other climate change denialists to access emails exchanged among climate scientists, such as Michael Mann, who is now the director of the Earth System Science Center at Pennsylvania State University, seems to be a carry over from an earlier event in which climate change denialists had stolen and disseminated emails from among climate scientists. Accusations based on those stolen emails, that data had been rigged or other improprieties had taken place by the climate scientists, were eventually proven false and these accusations are now generally regarded as politically motivated and nefarious. Nonetheless, ever since the “Climategate” event, as it is sometimes called, anti-science activists have tried on many occasions to access private emails or other research documents.

Sheppard’s article includes this on Schare’s documentation problem with EPA:

Working for ATI while at EPA isn’t in itself a problem, necessarily: ethics rules allow federal lawyers to do pro bono work, provided they receive permission and that they only conduct that business outside of work hours and work facilities.

In court documents, Schnare says he sought prior permission from the EPA. But UVA provided the court a letter from the EPA that, while acknowledging such a memo from Schnare, says its first record of that memo is also from September 2011—when Schnare provided it in response to a media request, and after Schnare had been seeking the documents on ATI’s behalf for nine months. The EPA’s letter (included as Exhibit 26 here) raises some questions regarding his approval request:

The request for approval of the outside activity was purportedly prepared by Mr. Schnare on or about November 16, 2010, but neither his Deputy Ethics Official nor his Assistant Deputy Ethics Official has any record of receiving it or approving this request to engage in outside activity.

In its court filing, UVA raises concerns that Schnare’s letter “may have been prepared after the fact.” The university’s lawyers also note that the memo refers to the American Tradition Institute, even though at the time that memo had purportedly been drafted the organization was actually known as the “Western Tradition Institute.” UVA’s filing goes on to note that even if Schnare did have permission from EPA, “he frequently and consistently communicated with counsel for the University and its Public Records officer during regular weekday business hours,” and provides time stamped emails to back up that assertion.

Sheppard concludes, setting this incident in a larger context:

Peter Fontaine, the lawyer representing Mann in the case, called the court’s decision a victory for science. “Scientists and public universities across the United States are under attack by industry-funded attack groups who seek to confuse the public about the scientific facts on climate change,” he said. “But rather than engage in an honest debate over the facts, such groups attempt to chill scientific research itself by using public records laws to tie-up faculty and university resources by filing FOIA requests seeking faculty correspondence, which they want to ‘crowd-source’ on the world wide web.”

Schnare told Mother Jones that the group will most likely appeal the decision to the Virginia Supreme Court. In the meantime, ATI has broadened its records-law tactic to include the emails of other prominent climate scientists like Texas A&M University’s Andrew Dessler and Texas Tech’s Katharine Hayhoe, including their correspondence with reporters. Environmental and academic groups, as well as other climate scientists, say ATI is again using this tool to intimidate and burden scientists.

Also see:

Suzanne Goldenberg, The Guardian (UK), July 10, 2012:  Rightwing US thinktank uses FoI laws to pursue climate scientists.  American Tradition Institute seeks the release of emails with journalists to find details that could be used to discredit science

Sue Sturgis, Institute for Southern Studies, July 19, 2012:  Climate science attack group turns sights on Texas professors

Stay tuned.

Earlier posts:

Court rules for Univ. of Virginia and Michael Mann against denialist inquisition – scholarly e-mail and documents are protected communication

Letter calling on Univ. of Virginia to prevent inappropriate open records disclosure of climate scientists’ exempt emails and documents [Union of Concerned Scientists, American Association of University Professors, American Geophysical Union, Climate Science Watch]

In defense of academic freedom against denialist FOIA inquisition tactics[Letter to University of Virginia President Sullivan from American Association of University professors, Virginia ACLU, Union of Concerned Scientists, and nine other groups, including Climate Science Watch]

Popular Science reviews denialists’ war on climate scientists