May Free Speech Reign and Scientific Inquiry Prevail

Marita Noon
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Posted: Jul 04, 2016 11:45 AM
May Free Speech Reign and Scientific Inquiry Prevail

Throughout the past four years, climate change activists have been secretly coordinating with one another regarding ways to prosecute individuals, organizations, and companies that are their ideological foes. They met to develop a strategy to use RICO (Racketeer Influenced and Corrupt Organizations Act), which was intended to provide stronger weapons for prosecuting organized crime, against those who speak out against the Obama administration’s war on fossil fuels.

More recently, the activists, including Naomi Oreskes and Bill McKibben, have coordinated with Attorneys General (AG) culminating with a March 29 press conference, led by New York AG Eric Schneiderman and joined by former Vice President Al Gore. There the “unprecedented coalition”—as Schneiderman’s press release called it—was announced: the newly formed AGs for Clean Power. Though “vague” on their specific plans, 17 AGs (16 Democrats and 1 Independent) have, as the Huffington Post reported: “committed to pursuing an all-levers approach” to, as Gore said: “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. 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, the Los Angeles Times announced: “California Atty. Gen. Kamala D. Harris is investigating whether Exxon Mobil Corp. repeatedly lied to the public and its shareholders about the risk to its business from climate change—and whether such actions could amount to securities fraud and violations of environmental laws.” On April 19, Massachusetts AG Maura Healey opened an investigation to seek “information regarding whether Exxon may have misled consumers and/or investors with respect to the impact of fossil fuels on climate change, and climate change-driven risks to Exxon’s business.” 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. TheNational Review reports that Walker promised a “transformational” use of his prosecutorial powers in the global-warming crusade. Separately, Walker also subpoenaed records from the respected Washington DC think tank, the Competitive Enterprise Institute (CEI). Schneiderman and Healey have also requested records from research and advocacy groups. Harris, who is running for the Senate seat to be vacated by retiring Senator Barbara Boxer (D-CA), “isn’t expected to do much in terms of investigating Exxon,” according to the Daily Caller

The Free Beacon references “internal documents” stating that the goals of the larger campaign are:

  • “delegitimize [ExxonMobil] as a political actor,”
  • “force officials to disassociate themselves from Exxon,”
  •  “drive divestment from Exxon,” and
  • “to drive Exxon & climate into center of 2016 election.”

`The Wall Street Journal (WSJ) adds:

  • “to establish in the public’s mind that Exxon is a corrupt institution that has pushed humanity (and all creation) toward climate chaos and grave harm.”

Despite the attacks on Exxon, WSJ quotes Lee Wasserman, director of the Rockefeller Family Fund—one of the foundations behind the crusade—as saying: “It’s not really about Exxon.” Instead: “It’s about helping the larger public understand the urgencies of finding climate solutions.”

Senator Sheldon Whitehouse (D-RI), who has long advocated that the Department of Justice (DOJ) investigate whether Exxon and other fossil fuel companies violated the RICO statute by disputing the role of fossil fuel burning in global warming, at a recent hearing, asked Attorney General Loretta Lynch if she’d considered using RICO against fossil fuel companies. She replied: “This matter has been discussed. We have received information about it and have referred it to the FBI to consider whether or not it meets the criteria for which we could take action on.”

WSJ reports: “The new legal theory has yet to gain momentum within the Justice Department, according to officials familiar with internal discussions. But after prodding by lawmakers, the Federal Bureau of Investigation is conducting a preliminary review.”

Even legal scholars, such as Columbia Law School professor Merritt B. Fox, who, according to Reutersagrees with the importance of climate change, expressed skepticism about the legal strategy of the prosecutors: “The market was well supplied with information about climate change from a variety of sources.” Reuters adds: “investors get information on climate change from many sources and Exxon would probably not be able to alter the ‘total mix’ of publically available information.” Similarly, Pat Parenteau, a professor of environmental law at the Vermont Law School, 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.” In WSJ, David Uhlmann, a university of Michigan law professor and former federal crimes prosecutor, expressed concern regarding the ability to establish “clear culpability for global warming.” The reporting says: “Millions of individuals contribute with their use of fossil fuels, while national governments have done little despite knowing the risks.” Uhlmann states: “Exxon should have been far more forthright about the risks associated with climate change, but all of us are culpable for our collective failure to change.” 

Then there are the opponents. WSJ 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.”

Late last month, five Republican Senators sent a letter to Lynch demanding that: “the DOJ immediately cease its ongoing use of law enforcement to stifle private debate on one of the most controversial issues of our time—climate change.”

William Perry Pendley, whose group, the Mountain States Legal Foundation, is named in Walker’s subpoena, told me the effort by environmental groups is: “an abuse of power that we haven’t seen in this country since Woodrow Wilson.” His foundation, according to the Washington Times, has “long acknowledged that Exxon is one of its many funders.” Pendley says: “accepting funding from Exxon and disagreeing with Greenpeace on the causes and extent of climate change are not crimes. What we are accused of saying is: ‘Maybe there isn’t global warming, maybe it’s not caused by man, and maybe your solution won’t work. It will be too expensive and drive us into poverty.’” 

Ronald Bailey, science correspondent for the Reason Foundation—also 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.”

CEI, the organization singled out for Walker’s separate subpoena, issued the following statement from president Ken Lassman: “All Americans have the right to support causes they believe in and the CEI subpoena is an abuse of the legal system and an effort to intimidate and silence individuals who disagree with certain attorneys general on the climate debate. Disagreeing with a government official is not a crime; abusing government power to take away Americans’ rights is.”

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 DC 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.

Those of us who’ve been attacked are not the only ones who saw the flaw of the AG’s crusade. 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 publicly.” 

In response to the “retreat,” Representative Lamar Smith (R-TX), Chairman of the House Committee on Science and Technology said: it “confirms what my committee has known all along—these legal actions were conceived and driven by environmental groups with an extreme political agenda and no actual regard for the law.” His statement added: “Companies, nonprofit organizations and scientists deserve the ability to pursue research free from intimidation and threat of prosecution.”

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.” He added: “It is not the possibility of harm to the public that led the AGs and DOJ to decide to enter into a wickedly complicated scientific debate, but the possibility of harm to the current administration in the White House. Their objective is to silence opposition by ExxonMobil and CEI (and other nonprofit organizations similar to CEI) to this administration’s draconian energy policies.” 

Where these attacks on free speech go next remains to be seen. But as Texas AG Ken Paxton said in response to Walker’s withdrawal: “In America, we have the freedom to disagree, and we do not legally prosecute people just because their opinion is different from ours.”   

May free speech reign and scientific inquiry prevail. True science welcomes a challenge because it can stand up to it—while political correctness must silence challenge.