At the press conference, New York Attorney General Eric Schneiderman announced that “an unprecedented coalition” of state attorneys general from 18 states, the District of Columbia, and the Virgin Islands were taking legal action against companies like ExxonMobil that opposed President Obama’s Clean Power Plan and challenged the idea that human activity is causing catastrophic global warming.
Healey then issued a civil investigative demand (CID) for 40 years’ worth of ExxonMobil’s records to determine whether the company had violated her state’s consumer protection laws by not informing consumers and shareholders about the alleged dangers of global warming.
ExxonMobil responded in June by filing a complaint in federal district court in Fort Worth, Texas asking the court to stop Healey’s office from enforcing the CID.
“The statements by the attorneys general at the press conference, their meetings with climate activists and a plaintiffs’ attorney, and the remarkably broad scope of the CID unmask the investigation launched by the Massachusetts Attorney General for what it is: a prextextual use of law enforcement power to deter ExxonMobil from participating in ongoing public deliberation in the hope of finding some ammunition to enhance the Massachusetts Attorney General’s position in the policy debate concerning how to respond to climate change,” the court document stated.
It added that “Healey is abusing the power of government to silence a speaker she disfavors.”
On August 8, Healey countered that “the CID is premised on the Attorney General’s reasonable belief that Exxon violated or is violating Chapter 93A by making false, misleading, and fraudulent statements about climate change to Massachusetts consumers and investors.”
However, the 11 state attorneys general agreed with ExxonMobil that the CID is an encroachment on the company’s First Amendment rights.
“The authority attorneys general have to investigate fraud does not allow them to encroach on the constitutional freedom of others to engage in an ongoing public policy debate of international importance,” said the amicus brief, which was signed by the attorneys general of Alabama, Arizona, Louisiana, Michigan, Nebraska, Nevada, Oklahoma, South Carolina, Texas, Utah and Wisconsin.
“At the “AGs United for Clean Power” press conference, a coalition of liberal state attorneys general announced they were going to use their official authority to go after one side of the policy debate on climate change. This overt use of governmental power to shut down particular viewpoints is a blatant violation of the Constitution,” said Texas Attorney General Ken Paxton, who filed the amicus brief Thursday in U.S. District Court for the Northern District of Texas.
“The Constitution was written to protect citizens from government witch-hunts that are nothing more than an attempt to suppress speech on an issue of public importance, just because a government official happens to disagree with that particular viewpoint,” Paxton said.
Citing the First Amendment as “a bulwark against Government action designed to suppress ideas or information, or to manipulate the public debate through coercion rather than persuasion,” the amicus brief argues that “Massachusetts labeling its so-called investigation (into an unsettled area of science and public policy) as related to ‘fraud’ certainly ‘raises the specter that the Government may effectively drive certain ideas or viewpoints from the marketplace’.
“Massachusetts presumes that the scientific debate regarding climate change is somehow settled, along with the related and equally important public policy debate on how to respond to what science has found. Yet, neither is true,” the brief states.
“Using law enforcement authority to resolve a public policy debate undermines the trust invested in our offices and threatens free speech,” the 11 AGs argued.
“As most must recognize, vigorous debate exists in this country regarding the risks of climate change and the appropriate response to those risks. Both sides are well-funded and sophisticated public policy participants. Whatever our country’s response, it will affect people, communities, and businesses that all have a right to participate in this debate. Thus, attorneys general should stop policing viewpoints,” the amicus brief concludes.
In July, House Science, Space and Technology Chairman Lamar Smith (R-TX) subpoenaed documents from Healey and other members of the group after emails surfaced indicating a “coordinated” attack on climate change skeptics.
Healey cited various legal privileges as state attorney general in her refusal to comply with the congressional subpoena. But in an August 24 letter, Smith informed her that “the Committee finds these objections without merit and rejects your claims of privilege.”