May free speech reign and scientific inquiry prevail.
Over the past four years, climate change activists have been working to find ways to prosecute individuals, organizations, and companies that are their ideological foes. They’ve developed a strategy to use RICO (Racketeer Influenced and Corrupt Organizations Act) against those who speak out in disagreement with the Obama administration’s war on fossil fuels.
More recently, the activists have coordinated with Attorneys General (AG) culminating with a March 29 press conference where the newly formed AGs for Clean Power was announced. Though their specific plans are “vague,” 17 AGs have, as the Huffington Post reported, “committed to pursuing an all-levers approach” to “hold to account those commercial interests that have been, according to the best available evidence, deceiving the American people, communicating in a fraudulent way.”
ExxonMobil has been the first and most obvious target. While the RICO Act is federal legislation passed in 1970, more than two dozen states have “Baby RICO” laws — which are, according to InsideClimateNews.org, “broader than the federal version.”
Four different investigations claiming that Exxon conspired to cover up its understanding of climate science have been launched. New York AG Eric Schneiderman was the first. Last November, he issued a subpoena demanding “that ExxonMobil Corporation give investigators documents spanning four decades of research findings and communications about climate change.” In January, California AG Kamala Harris announced her investigation into whether Exxon repeatedly lied to the public and its shareholders about the risk to its business from climate change, and in April, Massachusetts AG Maura Healey also opened one.
Just days after the March 29 press conference, Virgin Islands’ AG Claude Walker, in his demand for records, became the first to cite the racketeering law to “probe Exxon over its longtime denial of climate change and its products’ role in it.” Additionally, he listed roughly 100 academic institutions and free market think tanks in his subpoena. Separately, Walker also subpoenaed records from the respected Washington, D.C. think tank, the Competitive Enterprise Institute (CEI). Schneiderman and Healey have also requested records from research and advocacy groups.
Many legal scholars are skeptical of the legal theory behind these moves. One is Pat Parenteau, a professor of environmental law at the Vermont Law School, who is quoted by InsideClimateNews.org: “Hopefully there is something more than unsubstantiated suspicion to support this.” Parenteau explains: “The most serious question is whether the attorney general [Walker] has any basis to suspect that Exxon has engaged in activities that violate the statutes about obtaining money by false pretense and fraud.”
Then there are the opponents. The Wall Street Journal points out: “Both sides see this as a pivotal moment in a growing campaign by environmentalists to deploy a legal strategy used against tobacco companies in the 1990s by arguing that oil companies have long hidden what they know about climate change.”
Ronald Bailey, science correspondent for the Reason Foundation — one of the groups named in Walker’s subpoena — said, according to the Washington Times: “These subpoenas are a huge step in using courts to silence people who hold views that differ from those of powerful government officials.”
I know this to be true as my organization, though not featured on Walker’s list, is still a victim. We had some essential funding in place that would have allowed us to continue for months without extreme financial stress. However, the D.C. policy shop that was to provide the support for our efforts pulled it as a result of the AG’s campaign. I was told that the funding was approved, but that when I wrote my April 25 column on the film Climate Hustle — which questions the science behind the politically correct narrative of manmade catastrophic climate change — the board got cold feet because they, too, are one of the organizations on the list. At first, I wanted to quit, as without the funding I couldn’t continue. But then, I got mad. I realized that if I stopped doing what I do, these AGs would win — which is their goal. Indirectly, they attempted to silence me. I am grateful for individuals and companies who believe in my work and who have stepped up to fill the funding gap — at least for a few months.
Exxon and CEI have filed lawsuits against the accusers. Exxon claimed that the subpoenas “violated constitutional amendments on free speech, unreasonable search and seizure and equal protection.” As a result, last week, Walker withdrew his subpoenas and Healey, reports the Daily Caller, has “agreed to an abeyance of the subpoena, meaning her office won’t enforce the subpoena until all legal appeals are exhausted, which may take a couple of years.”
In a big victory for free speech, The Hill states: “The withdrawal closes a major chapter in the drive by liberals and environmentalists to punish Exxon over allegations that it knew decades ago that fossil fuels were causing climate change but denied it publically.”
The Heartland Institute, for which I serve as an “expert” on energy issues, is also on the “list.” Its president, Joe Bast, told me: “Because there is a lively debate over the causes and consequences of climate change, this litigation has First Amendment implications.”
Where these attacks on free speech go next remains to be seen. But Americans remain hopeful that free speech will reign and scientific inquiry will prevail. True science welcomes a challenge because it can stand up to it — while political correctness must silence challenge.
New York Attorney General Eric Schneiderman (Metropolitan Transportation Authority of the State of New York/Creative Commons)