by Neela Banerjee
April 22, 2016
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Massachusetts Attorney General Maura Healey, center, joined a coalition of her colleagues seeking climate action and considering investigations of Exxon. Credit: Reuters
Exxon, the Competitive Enterprise Institute and their allies are invoking free speech protections in a pugnacious pushback against subpoenas from attorneys general seeking decades of documents on climate change. Their argument is that the state-level investigations violate the First Amendment rights of those who question climate science.
Exxon has sued to block a subpoena issued by the attorney general of the U.S. Virgin Islands, and in an unusual step, named as a defendant the Washington, D.C. law firm and attorney representing the territory in the inquiry. In its complaint against the Virgin Islands subpoena, Exxon wrote, "The chilling effect of this inquiry...strikes at protected speech at the core of the First Amendment."
In a pointed letter to Virgin Islands Attorney General Claude Walker on April 20, CEI's attorney called the subpoena "offensive" and "un-American," and warned to "expect a fight." Andrew Grossman, outside counsel for CEI, wrote, "You have no right to wield your power as a prosecutor to advance a policy agenda by persecuting those who disagree with you."
The conservative non-profit Energy & Environment Legal Institute, an ally of CEI, recently released emails that show that the attorneys general considering investigating Exxon were briefed by two environmentalists. E&E got the emails through a Freedom of Information Act request to the Vermont attorney general's office. Though such meetings with environmental and industry advocates are widely considered routine, E&E described the meetings as secretive collusion, an idea that has been echoed on conservative websites and among some mainstream media outlets.
The AGs have not changed course amid the counterattack. But Exxon and its allies appear to be aiming as much at public opinion as at state law enforcement. After InsideClimate News and later the Los Angeles Times published stories last year detailing Exxon's cutting edge climate research in the 1970s and its subsequent efforts to disparage climate science, the company initially argued it has conducted climate science without interruption for 40 years. It also answered a subpoena by New York Attorney General Eric Schneiderman and produced 10,000 pages of records by the end of 2015.
Now, its emphasis appears to have shifted. As the company tries to defend its climate contrarian stance, Exxon argues that it has voiced honest dissent on the science that a conspiracy of environmentalists and attorneys general wants to silence. "Our critics, on the other hand, want no part of that discussion. Rather, they seek to stifle free speech and limit scientific inquiry while painting a false picture of ExxonMobil," spokeswoman Suzanne McCarron wrote in a post on the company's blog on April 20 titled "The Coordinated Attack on ExxonMobil."
Exxon and CEI's lawyers have experience waging long battles with government attorneys on controversial cases. Exxon's law firm Paul, Weiss, Rifkind, Wharton & Garrison and CEI's attorneys, BakerHostetler, represented the tobacco industry for years. Exxon's firm also represents the National Football League as it deals with the scandal over its concussion research.
CEI's lawyers, Andrew Grossman and David Rivkin, have launched a project called Free Speech in Science, which aims to "stop the intimidation" of those who disagree with accepted climate science. In an op-ed in the Wall Street Journal, the lawyers compared climate deniers to Galileo and added, "As the scientific case for a climate-change catastrophe wanes, proponents of big-ticket climate policies are increasingly focused on punishing dissent from an asserted 'consensus' view."
Christopher Horner is a senior fellow at CEI and a fellow at E&E Legal. Horner and his colleague, David Schnare, have a long history of submitting Freedom of Information Act requests for the emails and documents of leading climate scientists, such as NASA's James Hansen, and government officials, such as former EPA administrator Lisa Jackson. In one of their most public efforts, Horner and Schnare, then working as part of the American Tradition Institute, unsuccessfully attempted to gain access to the papers of climate scientist Michael Mann during his tenure at the University of Virginia.
Schnare denied that E&E's current FOIA request to the Vermont attorney general's office was done in partnership with CEI. E&E has filed requests with other states, he said. "Because this is an evolving story, and as we learn more about the extent of this conspiracy, we will continue our investigation, following the coordination and collusion wherever they lead," Schnare wrote in an email.
The Vermont documents that E&E shared in a press release show that attorneys general met in March for 45 minutes each with Peter Frumhoff of the Union of Concerned Scientists and Matt Pawa, a lawyer who has sued fossil fuel companies over climate change.
E&E said the emails showed the AGs "secretly teamed up with anti-fossil fuel activists in their investigations against groups whose political speech challenged the global warming policy agenda."
"The office routinely collaborates with other states and receives input from outside organizations," said Matt Mittenthal, a spokesman for New York Attorney General Eric Schneiderman. "Ultimately, decisions on which cases we pursue are based solely on the merits and the law—and nothing else."
Attorneys general for several fossil-fuel friendly states have also joined the chorus decrying the investigations. Like Exxon and CEI, they have framed the issue as one of free speech. "It is one thing to use the legal system to pursue public policy outcomes; but it is quite another to use prosecutorial weapons to intimidate critics, silence free speech, or chill the robust exchange of ideas," Louisiana Attorney General Jeff Landry said in March.
Walker, however, has countered by saying, "the First Amendment does not shield any company from being investigated for fraud."
ICN reporter Phil McKenna contributed to this story.