ATI & UVa: Reopening the review of exempted material

A court in Virginia agreed yesterday that Michael Mann did have standing to join the ATI vs UVa lawsuit (unsurprising) and also agreed to UVa's request to reopen the consent decree that UVa had signed with ATI (again unsurprising).

As we discussed before, the issue at question is how material that UVa thought was exempt from release under FOIA would be reviewed. The initial consent order arranged for the two ATI lawyers (Horner and Schnare) to go over each exempted item themselves. This struck us as very odd. In Federal cases, this is normally assessed via a Vaughn index of all material, reviewed in camera by a judge.

UVa successfully argued that the original arrangement should be re-opened mainly because they were unable to trust the ATI lawyers to maintain confidentiality of the process. This is not a surprising argument given the amount of misrepresentation, disinformation and hyperbole seen in any of their filings, and even more so in their public pronouncements, but it was strengthened enormously by the behaviour of David Schnare in the process of this lawsuit itself.

Schnare, it turns out, was actually a federal civil servant with EPA(!) until a few months ago. According to Nature News, he misrepresented himself in communications with UVa, furthermore, he was not granted permission to engage in outside activity for ATI by his federal employers. This is not surprising either, since ATI has worked on lawsuits associated with challenging the EPA Endangerment Finding which would be a conflict of interest - and doubly so for a lawyer. Thus work that Schnare did as a litigator for ATI while on EPA payroll was a clear violation of Federal ethics rules.

The irony of the ATI legal team being clearly guilty of the same ethics violations which they have falsely accused others of (c.f. ATI vs NASA (Hansen), CEI vs NASA (Schmidt)) will not be lost on any observers.

The new arrangement to review the exempted material will now likely be seen in camera via a 'representative sampling' approach which will not involve the compromised ATI lawyers. A much better solution.

And as for all the material that was non-exempt and released to ATI months ago? Complete silence.

Update UCS has posted the UVa filings and they are a treat to read: UVa motion Kast Affidavit