Litigation

The FME Law Clinic provides litigation and research services to qualified clients.  We concentrate on cases involving landmark free-market pro-environmental litigation; use of open records and data quality laws to force greater governmental accountability and transparency; and, cases that allow the Clinic to help create the next generation of free market oriented attorneys.  The Clinic has paired with the American Tradition Institute in order to prosecute three cases, described below.  In addition, the Clinic has an active Freedom of Information Act practice.  Current FOIAs are also listed below.  At the bottom of this page is a brief description of new litigation the Clinic is contemplating pursuing.

 Active Cases

Occoquan Watershed Coalition v. EPA

FME Law is representing the Occoquan Watershed Coalition (OWC ) in a law suit against the U.S. Environmental Protection Agency. The OWC alleges that EPA has violated the Tenth Amendment by imposing a water quantity standard on Virginia and Fairfax County that will cost as much as $225 Million. If the County is forced to spend that much money on a single watershed, it will mean not one of the other 29 watersheds in the County will receive funds for their restoration, including the eight watersheds in the OWC’s territory.

American Tradition Institute v. University of Virginia
(records of Dr. Michael Mann, Freedom of Information Act Petition filed May 16, 2011)

American Tradition Institute’s Environmental Law Center and Virginia Delegate Robert Marshall asked a Prince William County judge, under the Commonwealth’s Freedom of Information Act, to expedite the release of documents withheld by the University of Virginia that pertain to the work of its former environmental sciences assistant professor Dr. Michael Mann. The legal action followed a delay by UVA of more than four months since ATI and Del. Marshall made their original request on Jan. 6.  Twelve months after the initial request the matter remains in court with UVA seeking to deny the public copies of emails for which they paid.

The court has ordered the parties to identify exemplar emails that will serve as the basis for legal challenges to UVA’s refusal to release 12,000 emails that chronicle the history of keystone efforts in the early climate change alarmism. We expect this matter will end up in the Supreme Court of Virginia and if successful its discovery and production will prove invaluable to energy policymaking at the state and federal levels domestically, as well as internationally.

American Tradition Institute v. State of Colorado, et al. (filed April 4, 2011)

American Tradition Institute’s Environmental Law Center filed a lawsuit in federal court challenging the constitutionality of Colorado’s Renewable Energy Standard, based upon evidence that the state’s law violates the Commerce Clause of the U.S. Constitution. The Commerce Clause reserves the regulation of interstate commerce to the federal government.

The court has under consideration a motion for the Sierra Club to intervene, as well as a challenge to ATI’s standing. The next phase of the case will be extensive discovery followed by motions for summary judgment. The case is expected to be appealed to the U.S. Court of Appeals for the 10th Circuit.

In Re Accotink Creek TMDL – a Data Quality Act challenge to EPA’s Clean Water Act over-regulation of a local stream.  EPA was forced to drop a major element of the TMDL that has been used nationally to directly replace local land use planning and controls.

 Resolved Cases

 American Tradition Institute v. National Aeronautics and Space Administration
(records of Dr. James Hansen, Freedom of Information Act Petition filed June 21, 2011)

 On June 21, 2011 American Tradition Institute’s Environmental Law Center filed a lawsuit in federal district court in the District of Columbia to force NASA to release ethics records for Dr. Hansen. The action followed NASA’s denial of ATI’s federal Freedom of Information Act request with NASA, seeking records detailing whether and how ‘global warming’ activist Dr. James Hansen of NASA’s Goddard Institute for Space Studies (GISS) has complied with applicable federal ethics and financial disclosure laws and regulations, and NASA Rules of Behavior.

 This case forced NASA and the U.S. Office of Governmental Ethics to change its policy on release of public documents as well as how NASA and others implement their ethics responsibilities (poorly). It has resulted in an ongoing investigation by the U.S. House of Representatives Committee on Government Operations.

 

FOIA Actions

§  University of Virginia – Requested Mann emails associated with his academic duties. This matter is now before a Virginia Circuit Court for failure of UVA to meet its responsibilities under the Virginia FOIA and to challenge the University’s claims that 12,000 emails are exempt from FOIA. Mann has entered the case as a party (defendant). As of early 2012 we are in motions practice on our effort to proceed to discovery.

§  University of Virginia – Requested Michael Mann’s research logs or the written authorization allowing Mann to take his log upon his departure from UVA. The University responded stating it did not have a log and had no release authorization. UVA also refused to inquire as to whether Mann actually kept a research log. As such, FME Law has effectively established that he kept no research log which is why no one, including Mann, can duplicate the research underpinning his infamous Hockey Stick-shaped reconstruction of global temperature.

§  University of Virginia – Requested evidence that 15 faculty members who engaged in publishing peer-reviewed scientific papers actually kept research logs associated with that research. The University requires faculty to maintain such logs so that others can duplicate the research using the exact same methods. Of the 15, only one research log was found, and it belonged to a clinical assistant. Not one faculty member appears to have kept a research log.

§  George Mason University – Requested and received the Wegman records sought by USA Today, thereby establishing what is proper, and what are disparate, implementation practices under Virginia’s FOI law by different universities or, arguably, depending on the published views of the subject of the FOI request. Professor Wegman’s emails document the validity of the deconstruction of the Mann Hockey Stick.

§  National Aeronautics and Space Administration (NASA) – Requested Jim Hansen’s ethics compliance records regarding outside employment and other activity. We established that Dr. Hansen received approximately ten times his salary in gifts, outside employment and speaking fees, all as a result of his environmental advocacy. Should he choose to testify again in Congress he now has specific, troubling questions to answer. His records show he and his supervisors failed to properly follow the NASA ethics requirements.  On behalf of ATI Law, the FME Law Clinic filed to force release of the records in the U.S. District Court for the District of Columbia.  NASA settled the matter, releasing all records sought, and we are in the fee-recovery stage of this litigation.

§  Harvard-Smithsonian – Requested records provided Greenpeace regarding correspondence associated with the Soon/Baliunas. These were received in a timely fashion. Soon and Baliunas published a landmark paper debunking the argument that the Medieval Warming Period was only a Northern Hemisphere phenomena, showing it was a global event.

§  Harvard-Smithsonian – Requested additional correspondence reflecting the efforts revealed in “Climategate” emails to seek the dismissal of Soon and Baliunas in response to their having published particular research. These documents have not been produced on a timely basis and may require litigation to free them.

§  National Science Foundation – Requested Verardo/Mann correspondence. Mann refused to release fundamental data and results used to support his Hockey Stick temperature reconstruction. When the same data was sought from the National Science Foundation, who provided the grant for Mann’s research, NSF’s Verardo refused to provide the data. ATI sought the email correspondence between Mann and Verardo associated with this matter. NSF claimed it possessed no such records though on appeal FME Law provided certain responsive correspondence which is already publically available on the internet, and noted our ability to establish the existence of more. FME Law appealed this response. NSF’s responded on January 19, 2012 seeking a ten-day extension to consult internally, as is permitted by statute.

§  National Science Foundation – Requested additional documents associated with the Verardo/Mann discussions on disclosure of Mann’s data. After invoking statutory authority for a ten-day extension to consult internally, as the request seeks certain records produced by the general counsel’s office, NSF promised a response by February 2, 2012.

§  National Science Foundation – Requested other Verardo/Mann Correspondence during the time of NAS panel on climate change for a broader window of time than the original request sought.  NSF has promised a response by January 25, 2012.

§  University of Arizona – Requested correspondence among Hughes, Mann and Overpeck associated with efforts to have journal editors fired on the basis that they accepted papers critical of Mann. UofA has acknowledged receipt of the FOIA but has not responded and are under no specific statutory time constraint. This may require litigation to force production in a reasonable period of time.

§  U.S. Department of Justice – Requested copies of documents associated with the release of emails from the University of East Anglia (Climategate), beginning in 2009 and through the recent British criminal investigation, in which DOJ has participated. A response was due on January 19, 2012.

§  Texas Tech – Requested documents of erstwhile “climate” chapter contributor Professor Katharine Hayhoe to, from and citing Newt Gingrich, and his forthcoming book on environmental issues.  The University refused to produce the documents, producing one redacted email affirming Hayhoe was indeed engaged by Gingrich’s co-author to produce the chapter, as well as the chapter’s inclusion in the book as of December 7, 2011, despite Gingrich claims to the contrary days later.  FME Law has appealed this unlawful redaction and filed a complaint with the Texas Attorney General regarding TTU’s admission that they violated the Texas transparency laws by failing to seek the AG’s approval before withholding responsive information. FME Law requested the AG compel TTU to produce responsive records, and submitted a second request going back to the date of the first request for Hayhoe’s chapter, in 2007.

§  U.S. Environmental Protection Agency – Requested copies of policies and internal guidance on how the agency processes citizen petitions authorized under the First Amendment to the U.S. Constitution. This is the first step in a planned examination on whether EPA processes petitions from those it endorses as compared to those who criticize the agency.

 

Prospective Cases

ATI v. US. Forest Service – ATI is seeking support for, and asked FME Law to prepare, a FOIA, Endangered Species Act and Data Quality Act petition-litigation action to force full implementation of National Forest Management Plans that require logging in order to prevent forest fires that causing destruction of endangered species habitat and which would also create new timber and mill jobs and reinvigorate a moribund national timber industry.

A_ Association v. EPA – The FME Law Clinic is preparing a petition-litigation action to force EPA to revise rules costing over $60 billion and which fail to properly target the actual source of harmful PM2.5 air pollutants, regulating industries that do not contribute to the hazard and failing to regulate some that do.

 

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