Commentary

Liberal AG’s Climate Change Witch-Hunt Expands to Include More Innocent Victims

Hans Bader
By Hans Bader | June 22, 2016 | 3:35 PM EDT

New York Attorney General Eric Schneiderman (AP Photo/Seth Wenig)

A climate-change witch-hunt is expanding to include conservative groups that have never received a penny from Exxon. Attorney General Maura Healey is part of a multistate investigation of “climate change deniers” brought by 20 Democratic state attorneys general. As the Daily Caller notes, last week she issued a sweeping broad subpoena that

“demands decades worth of records from prominent conservative think tanks, including the Heritage Foundation and activist group Americans for Prosperity, and also from smaller, lesser known state-based right-leaning groups, such as Boston’s Beacon Hill Institute and the Acton Institute … At least two of the groups the subpoena demands records from have not received any money from Exxon. Beacon Hill and Americans for Prosperity have not gotten any Exxon funding, but are still being targeted.”

This is revealing, because, as Zero Hedge notes, all of these subpoenas are “anchored in the claim that Exxon has lied to shareholders and consumers about the risks of global warming in its communications and shareholder filings.” That rationale obviously provides no justification for a subpoena aimed at the Beacon Hill Institute, which has no connection to Exxon. Instead, it looks like a pretext for harassing conservative non-profits like the Beacon Hill Institute, whose free-market views make it a dissenter in a state whose legislature and judiciary are dominated by leftists.

The investigation is brought by people who are know-nothings when it comes to the First Amendment.

As I previously explained, the attorney general spearheading the multistate investigation, New York’s Eric Schneiderman, has publicly gotten basic First Amendment principles wrong (such as citing a dissenting view rejected by the Supreme Court as if it were the law), and Exxon does not appear to have told any lies about climate change (a company’s prudence in taking into account worst-case climate scenarios in hedging against future risks, and planning for the future, does not prove its belief in such scenarios, anymore than buying fire insurance proves you know that your home will burn down in the future). And speech by nonprofits funded by Exxon remains protected, as does Exxon’s decision to fund them, under court rulings like Pfizer v. Giles (1994)

Subjecting a person, or a non-profit like the Beacon Hill Institute, to burdensome document demands based on its viewpoint violates the First Amendment. Such demands violate free speech when they are in retaliation for the target’s viewpoint or past speech.  (See Taoh v. Freeh (1994)). They also violate free speech when they are so burdensome that they would chill the speech of a reasonable person.  (See White v. Lee (2000)). And they violate the First Amendment by demanding sensitive internal communications.  (See Perry v. Schwarzenegger (2009)).

Shortly after Healey’s subpoena, 13 mostly conservative state attorneys general such as Luther Strange of Alabama and Craig Richards of Alaska sent a June 15 letter to their fellow attorneys general, arguing that “this effort by our colleagues to police the global warming debate through the power of the subpoena is a grave mistake.” Quoting Justice Jackson’s concurrence in Thomas v. Collins (1945), they noted that our “‘forefathers did not trust any government to separate the true from the false for us.’”  They also pointed out that the 20-state investigation of “climate change deniers” reflects viewpoint discrimination, since “’clean energy’ companies have funded non-profits who exaggerated the risks of climate change,” yet this “fraud” is not being investigated, only the purported “fraud” alleged against non-profits that have supposedly minimized the risks of climate change. The Supreme Court has said that even unprotected speech should not be regulated in a viewpoint-discriminatory fashion, in its decision in R.A.V. v. St. Paul (1992), which ruled that a city could not ban even unprotected “fighting words” based on the speaker’s viewpoint.

As part of the multistate climate-change investigation, an incredibly burdensome subpoena was sent to CEI on April 7, demanding 10 years of its records relating to a wide range of topics (CEI’s First Amendment objections to that subpoena are found here). We received that subpoena shortly after CEI’s Myron Ebell and I had publicly criticized the investigation. (The subpoena came in just as I was drafting an even longer commentary criticizing the investigation, which is found here).

Last month, CEI filed a motion for sanctions against the attorney general who sent us that subpoena, Claude Walker of the U.S. Virgin Islands, under the District of Columbia’s anti-SLAPP law.  The attorney general had belatedly withdrawn the DC version of the subpoena, but reserved the right to reinstate it at any time (the underlying Virgin Islands subpoena remains in place), essentially forcing CEI to live under a sword of Damocles. On June 2, the attorney general filed his opposition to our motion for sanctions, along with a transparently lame demand for sanctions against CEI unsupported by facts and caselaw. A hearing is pending in DC Superior Court next week, but it is not yet clear whether that hearing will adjudicate the merits of our motion, or defer its resolution until a later date.

Hans Bader practices law in Washington, D.C. After studying economics and history at the University of Virginia and law at Harvard, he practiced civil-rights, international-trade, and constitutional law.