Thought Piece


Craig Richardson, president of E & E Legal Institute, (during the Weekly Word radio program with Jason Spiess and Steve Heins on Dec. 13, 2017) explained that the Freedom of Information Act (FOIA) law suit hoped to unearth more evidence that “there were a lot of games played with the [Hockey Stick] data.” In 2009, the so-called “Climategate” emails revealed that many communications between scientists were withheld from all scientific review. Richardson expects the U of Arizona emails will show “an unvarnished view of how the process works…and how climate scientists on the other side of the climate debate were shut out.”

In addition, Richardson discussed previous successful FOIA actions against the previous EPA and the University of Virginia. Heins talked about the emails surrounding the “Indirect Health Benefits Study” done by Harvard and Syracuse University unearthed through another FOIA success, which showed secret communication with EPA -before, during and after the Study was released.

WINNING: Arizona Appellate Court decides Hockey Stick emails must be released

Press Release from FME Law
July 3, 2018

Arizona Appellate Court Decides Hockey Stick Emails Must Be Released Despite the University’s Appeal.

One thousand seven hundred and sixty-three days ago, on behalf of its client, the Free Market Environmental Law Clinic, PLLC (FME Law) asked the University of Arizona to hand over public records that would expose to the world the genesis of what some consider the most influential scientific publication of that decade – the Mann-Bradley-Hughes temperature reconstruction that looks like a hockey stick.

The University refused.

On February 26th of this year, and after submissions of legal briefings that now fill two banker’s boxes, and three trips to the Appellate Court, the trial court ordered release of the documents, giving the University 90 days to disclose the documents in a word-searchable form. Three days before the deadline, the University filed a motion asking the trial court to “stay” the disclosure of the public records while they appealed the case. In a 13 word decision, the trial court found “the requested relief is not warranted.”

The University then asked the Appellate Court for a stay, arguing that once the documents were released, “that genie could not be put back in the bottle,” in the event the trial court’s decision was reversed.

Yesterday, a mere six days after filing of the final legal brief on the motion for a stay, the Appellate Court issued a seven-word decision:

“Motion for Stay Pending Appeal is DENIED.”

The Appellate Court gave no explanation as to why it denied its motion, but it would likely be one of the reasons offered by FME Law in its brief to the court. A Copy of that brief is attached to this news release. Among other things, this order means the Appellate Court could not conclude that the University would have probable success on the merits of their argument. Nor could they conclude there were “serious questions” remaining to be addressed.

“This decision by the Appellate Court is much more than a small procedural action,” said Dr. David Schnare, the member-manager of the Free Market Environmental Law Clinic, PLLC, who is prosecuting this case. “We asked for the full history of the hockey stick graph and much more. We sought the history of the fourth Intergovernmental Panel on Climate Change Report and the discussions among the scientists as they discussed climate papers and the then burgeoning antagonism between climate scientists not of like mind.” Chaim Mandelbaum, Executive Director of FME Law explains, “This case is not over, but we appear to be at the beginning of the end.”

The University may wish to now appeal to the Arizona Supreme Court for a stay, an effort attorneys familiar with the case believe would not change the outcome. “This decision does not end the appeal, however,” Mr. Mandelbaum stated.

Dr. Schnare described the status of this case and its importance. “We did not take this case only to obtain the history of a very controversial period of time in the climate wars. We also took this case to cast sunlight on how public universities work, how they contribute to the formation of public policy, and how professors behave within the policy arena. Core legal issues remain before the court – particularly about how to protect the research process while still allowing the public to learn how this sector of the government works. The University’s appellate brief is due on July 30th, our answering brief is due on September 7th and any reply from the University comes after that. We won’t have a final appeals court decision on the merits of this case until late in the year, and then it will be on to the Arizona Supreme Court.”

In the meantime, the documents will have to be handed over. Dr. Schnare and his staff will take the first look at those documents. With a doctorate in environmental management and decades of experience in policy formation, he, with the assistance of FME Law staff, will sort these documents, organize them for use by the public and prepare a report on what they contain – so to speak, a chronical of that historic time, based not on cherry picked emails but on the full history as available in the public record. They will then turn over the public records and their report to their client who is expected to make them available to the public.