By David R. Legates, Ph.D., C.C.M. – University of Delaware
I am a Professor of Climatology at the University of Delaware and I served as the Delaware State Climatologist from 2005 to 2011. I also am an adjunct faculty member in the Department of Agricultural Economics & Statistics and the Physical Ocean Science and Engineering Program. I received a B.A. in Mathematics and Geography, a M.S. in Geography, and a Ph.D. in Climatology, all from the University of Delaware. I served on the faculty of the University of Oklahoma and Louisiana State University before returning to the University of Delaware in 1999. I was part of the US delegation that negotiated a protocol for the first climate data exchange program with the Soviet Union in 1990. I am recognized as a Certified Consulting Meteorologist by the American Meteorological Society and was the recipient of the 2002 Boeing Autometric Award in Image Analysis and Interpretation by the American Society of Photogrammetry and Remote Sensing.
Excerpted from Legates testimony: (Full testimony here)
The Silencing of the Dissenters
In my Senate Testimony in 2003 regarding the so-called “Hockey Stick” graph of global air temperature (Legates 2003), I concluded with the statement I’m sorry that a discussion that is best conducted among scientists has made its way to a United States Senate committee. But hopefully it has become evident that a healthy scientific debate is being compromised and that only by bringing this discussion into the light can it be properly addressed.
At that time, an attack had been made on the scientific process. Editors at two journals were harassed to the extent that an abrogation of their commitment to reviewer confidentiality had been demanded of them. One of the journals, Climate Research, was threatened with an organized boycott and the Director of its parent organization, who first evaluated the situation and exonerated the managing editor, recanted in the face of this boycott. The newly appointed Senior Editor had moved to bar two scientists from future publication in Climate Research – without a hearing and without even an accusation of fraud or plagiarism.
I would like to provide you with an update on how the state of science has progressed in the intervening eleven years as it regards climate change. In 2009, a release of documents from the University of East Anglia in the United Kingdom (known colloquially as ‘ClimateGate’) shed light on how the scientific process was being subverted. With respect to me personally, I learned that in 2001, I had been denied publication of an important rebuttal due to collusion between an author and an editor. In the Second Assessment Report (SAR) of the IPCC, the phrase “balance of evidence suggests a discernible human influence on global climate” had been inserted, and that five separate statements to the contrary had been removed by a single author. Dr. Robert E. Davis and I examined the citations given in support by Dr. Ben Santer, Dr. Thomas Wigley, and their colleagues. We had found that the statistic they used to make their conclusions was seriously flawed and published our results. Wigley and his colleagues published a rebuttal and we were denied a response since “we did not add anything significant to the discussion.” I assumed we had not done enough to sway an impartial editor.
But in an e-mail, Dr. Wigley explained how he had engineered his rebuttal and suggested it be used as a template for others. He indicated he had contacted the editor, complained that any such publication criticizing his research should have been cleared by him first, and the two agreed that his rebuttal would be treated as a new submission and any response Davis and I made were to be squelched by the editor. We had always suspected such events might have occurred but it took the ClimateGate documents to provide the proof.
But these issues were to pale in comparison to what was about to happen. On December 16, 2009, I received a letter that, due to the ClimateGate revelations and pursuant to the Delaware Freedom of Information Act (FOIA), Greenpeace requested my “email correspondence and financial and conflict-of-interest disclosures” that were “in the possession of or generated by the Office of the Delaware State Climatologist” from January 1, 2000 regarding ‘global climate change’ and containing any of 22 additional keywords.
The Delaware FOIA statute is fairly terse with respect to the University. It simply states that the University of Delaware is exempt from State FOIA except for the conduct of the Board of Trustees of the University and documents relating to the expenditure of public funds. Although during my tenure as the State Climatologist, the Office obtained no funds from either the State or the University – I provided goodwill climate services to the State on behalf of the University – and I had conducted no business that could be construed as climate change related. Technically, nothing should have been produced.
Shortly after receiving the request from Greenpeace, I met with the University Vice President and General Counsel, Mr. Lawrence White. He summarily informed me that I was required to turn over not just documents related to the State Climate Office and what Greenpeace requested, but ALL documents that I had in my possession relating to ‘global climate change’ – whether or not they were produced through the State Climate Office. I was told that as a faculty member, I must comply with the request of a senior University official.
On January 26, 2010, Mr. White received a letter from the Competitive Enterprise Institute (CEI) making a nearly identical request of three other faculty members who had contributed to the Intergovernmental Panel on Climate Change. One of those faculty members was from my own department (Dr. Frederick E. Nelson) and had an office down the hall from me. Mr. White sent me an e-mail containing this FOIA request and indicated “this one will probably be answered with a short ‘no’.” After a follow-up letter by CEI on February 3, Mr. White finally responded that “because the information you seek does not relate to the expenditure of public funds, the University respectfully declines your records request.”
I subsequently met with Mr. White to obtain an explanation as to why I was being treated differently. He explained to me that I did not understand the law. As he sees it, even though the law may not require the University to produce e-mails and documents, the law does not prohibit him from requiring me to produce them for his perusal and potential release to Greenpeace. As such, I was again instructed to turn over all the documentation he requested to him ASAP.
At that point, I sought outside legal counsel. On February 9, 2010 and after questions raised by my lawyer, Mr. White agreed to a ‘do-over’. After further review, Mr. White indicated in a letter to CEI that he wished to retract his email to them and “reconsider the substance of your FOIA request” because his initial response “did not take sufficient account of the legal analysis required under the Act.” Mr. White indicated to CEI and to my lawyer that their FOIA would be handled in a manner identical to my Greenpeace FOIA.
In a telephone conversation between me and the Dean of the College of Earth, Ocean, and Environment, I subsequently was told that as a University faculty member, Mr. White in a discussion with my colleague, Dr. Frederick Nelson, I learned that he had met with one of Mr. White’s assistants’. Dr. Nelson related to me that she shared all she could about my FOIA discussions but then left the meeting without providing instructions regarding his FOIA. He subsequently sent a follow-up email to both her and Mr. White asking for specifics of what he was to produce. As of July 2012, he had yet to hear back from either of them. He has since retired from the University.
On June 20, 2011 – 472 days or exactly 1 year and 3.5 months – I again heard from Mr. White. He had now hired a 3rd year law student to go through the materials I had provided to him over a year earlier. But why the delay and now the sudden flurry of activity? Less than a month earlier, on May 25, 2011, the Virginia Supreme Court had ruled on the case between Attorney General Ken Cuccinelli and the University of Virginia that emails by former professor Dr. Michael Mann and in the University of Virginia’s possession must be turned over to the Attorney General’s Office. Interestingly, all this began as a result of a CEI FOIA of Dr. Mann that followed a similar Greenpeace FOIA on Dr. Patrick Michaels – a former faculty member at the University of Virginia. The American Association of University Professors (AAUP) and several professional organizations including the American Meteorological Society and the American Geophysical Union (of which both Dr. Michaels and I are members) vehemently protested the FOIA request. The AAUP stressed to the University of Virginia that “we urge you to use every legal avenue at your disposal to resist providing the information demanded in the [civil investigative demand]” arguing that “documents and e-mail communications that were part of an ongoing scientific discussion might be taken out of that context, and used to create an impression of wrongdoing.” They concluded that “it is the University’s obligation to protect academic freedom by seeing that legal tools such as this…are not used to intimidate scientists whose methods or conclusions are controversial.”
Interestingly, Dr. Joan DelFattore, president of the AAUP Chapter at the University of Delaware had recently published an article on academic freedom at the University of Delaware. Citing her appreciation for having a general council (i.e., Mr. White) who understands the importance of academic freedom, she wrote: “It is also useful to consider that once an administration silences any speech, it may be assumed that the university is endorsing whatever speech it fails to suppress. A university’s real interest lies in fostering the exchange of divergent views on the understanding that the university itself does not necessarily endorse any of them and certainly does not endorse all of them.”
I therefore decided to elicit her assistance through the AAUP. While her comments sounded laudable, her response to me was that FOIA matters “would not fall within the scope of the AAUP”. This, of course, is in direct contrast to the stance taken by the AAUP in the Cuccinelli vs. University of Virginia where the AAUP President, Cary Nelson, wrote: “We are urging the University of Virginia to…publicly [resist] the threat to scholarly communication and academic freedom represented by the concerted effort to obtain faculty emails…Whatever people may think of climate research, the climate for academic freedom must not be allowed to deteriorate. If scientists think every email they send may be subject to a politically motivated attack, it will create a chilling effect on their discourse and hurt scientific research.’”
Indeed, the AAUP defended Dr. Mann at the University of Virginia but refused to become involved in my similar case at the University of Delaware, citing that they stood firmly behind Mr. White’s actions.
Finally, on July 22, 2011, I was provided a list of what Mr. White had decided to release to Greenpeace – pending my permission. Mr. White further reiterated that he was indeed treating the subjects of the CEI FOIA in an identical manner. Communication I had with Dr. Nelson and the response by the 3rd year law student to my query – she indicated I was the only faculty member whose documents were being examined – suggests otherwise. If I am being singled out for my views – punish the ‘skeptics’ while protecting the ‘believers’ as happened by the disparate treatment at the University of Virginia regarding Drs. Mann and Michaels – then doesn’t that make the entire discussion of academic freedom at the University of Delaware by Dr. DelFattore into a lie? Again, Dr. DelFattore wrote that “once an administration silences any speech, it may be assumed that the university is endorsing whatever speech it fails to suppress.”
On this topic I cannot agree more.
Mr. White wrote “if you object to the release on any of these documents, then I would inform the groups requesting this information that there are some documents in Dr. Legates’ custody that we have not produced and that they should direct further questions about the documents to you.”
I am puzzled as to why I have the right to object to the release of any documents. If Mr. White’s interpretation of FOIA as it pertains to the university is correct, then why should I or any other faculty member be allowed to object to their release? Doesn’t the law trump my protests? But if he has decided to release documents outside of the FOIA just because he can, as he explained to me at the outset, then the University has unfairly targeted me. On this there can be no middle ground.
Through my attorney, I subsequently requested several questions be answered by Mr. White.
Until my letter, I had not indicated to Mr. White that I had been in contact with Dr. Nelson regarding his FOIA case. At this point, I informed Mr. White that I knew he had not asked Dr. Nelson to produce any documents, despite the fact that on three occasions, Mr. White had asserted he would treat all of us equally. The next day, February 2, 2012, Mr. White responded to questions posed to him – not to the ones contained in my letters but to questions he had already answered on August 2, 2011. Most interesting is Mr. White’s response to question 1 of that exchange which explicitly addressed the equal treatment of me and those targeted by the CEI FOIA request:
“Attached is a .pdf of an email exchange we had on February 10, 2010, memorializing our agreement on how this matter would proceed. Term 5 provides: “Dr. Legates and the University of Delaware professors who are the subject of the Competitive Enterprise Institute’s FOIA request (dated Feb. 3, 2010) will be subject to the same process—that is, they too will be required to produce documents for your review—and they will be subject to the same legal standard for determining whether and to what extent FOIA applies.” On August 2, 2011, Mr. White had provided a short, one word response to that question – “Confirmed.” But on February 2, 2012, his reply to the same question indicates he had not been truthful:
“I have not yet dealt with FOIA requests directed at faculty members other than Dr. Legates. I reiterate that, if and when additional documents are gathered relating to other FOIA requests on this subject matter, you will be allowed to review those documents before they are produced.”
In February of 2010, Mr. White had agreed that all parties would be subject to the same procedures and insisted that he was proceeding in exactly the same manner with them. Now, he asserts that “if and when additional documents are gathered” I will be allowed to review those documents. Why should I have the right to look at the documents of others?
More importantly, two years had passed since CEI submitted its FOIA request and Mr. White indicated that “I have not yet dealt with FOIA requests directed at faculty members other than Dr. Legates.” This clearly indicates that he had no intent to honor his do-over request on February 9, 2010 – in essence, I will be treated differently than other faculty because he has every right to treat me that way.
I have since become aware of a case that involved the University of Delaware in 1991. In the Gottfredson/Blits federal arbitration case of 1991, the University of Delaware explicitly conceded (and it was upheld by the arbiter) that the University’s review of research and teaching notes would violate a faculty member’s academic freedom. The University’s Faculty Senate Committee on Research that had investigated Professor Linda Gottfredson stated that, “the Committee has never directed its attention to the content or method of any faculty member’s research or teaching, and would oppose any attempt to restrict a colleague’s rights in these protected areas” (i.e., areas of academic freedom and contract rights). In a meeting with the Chief Budget Officer of the University, I learned that my faculty salary only includes my teaching workload since FY2009 when that was transferred to state support. Thus, the only item that could be covered by State funds (and hence covered under the State FOIA) was my teaching materials since September 2008. No e-mails, no unfunded research, no service assignments were covered. Mr. White’s actions violate a federal ruling to which the University has agreed to abide by.
Thus, there were no documents that fell under the Greenpeace FOIA – nothing I did as Delaware State Climatologist related to global climate change and none of my teaching duties were accomplished as the Delaware State Climatologist. On April 8, 2014, my documents were finally returned to me.
Thus, it appears that Mr. White arbitrarily decided to gather, examine, and potentially release files to Greenpeace simply because he, acting as an officer of the University has chosen to harass and try to silence me for deviating from ‘University-approved’ scientific views. I chose to resist the release of these materials – not because I have anything to hide – but to protect my academic freedom and the freedom of others and to reject the University’s attempts “to intimidate scientists whose methods or conclusions are controversial,” as the AAUP argued at the University of Virginia. If one faculty member can be bullied by a heavy-handed administration, then certainly other faculty will be under attack in the future.
Over the years, I have applied for several federal grants. Two in particular, submitted to NASA and the USDA (the latter involved using precipitation estimates by weather radar to enhance agricultural planning which had nothing to do with climate change), were never reviewed. It is not that I have received bad reviews; indeed, I have received no reviews at all. Program officers refuse to provide reviews and even to respond by e-mail or telephone. My understanding is that this is related to Anderegg et al. (2010) which often is used as a type of ‘black list’ to identify “researchers unconvinced of anthropogenic global warming,” to use their terminology.
As existed in the case of Lysenkoism in the Soviet Union, a healthy scientific discussion is being subverted for political and personal gain. With the recent case of Professor Lennart Bengtsson and the story I have told here, scientists who deviate from the anthropogenic global warming playbook are likely to be harassed, have grants and proposals rejected without review, be treated more harshly than their peers, and be removed from positions of power and influence. I would have hoped that in the past decade, the discussion has become more civil. Indeed, a civil discussion can be had with some scientists that believe in the extreme scenarios of anthropogenic global warming. But too many in places of prominence and with loud voices have made this a war zone. Scientists like Bengtsson and myself have tenure or its equivalent and are somewhat insulated from the extreme attacks. But young scientists quickly learn to ‘do what is expected of them’ or at least remain quiet, lest they lose their career before it begins.
I leave you with this thought: When scientific views come under political attack, so too does independent thinking and good policy-making because all require rational thought to be effective.
Environment & Public Works 25 David R. Legates, 3 June 2014