An extraordinary bill in the California legislature, promoted as making it easier to sue fossil fuel companies over their involvements in public debate, would lift the four-year statute of limitations of the state’s already extremely liberal Unfair Competition Law, otherwise known as s. 17200 — and retrospectively, so as to revive decades’ worth of time-lapsed claims “with respect to scientific evidence regarding the existence, extent, or current or future impacts of anthropogenic induced anthropogenic-induced climate change.” Despite a 2004 round of voter-sponsored reform which curbed some of its worst applications, s. 17200 still enables what a California court called “legal shakedown” operations in which “ridiculously minor” violations serve as the predicate for automatic entitlement to damages, attorneys’ fees, and other relief.
Combined with the plans laid by California Attorney General Kamala Harris — part of the alliance of AGs that has sought to investigate not only oil, gas, and coal companies, but private advocacy groups and university scientists who have played a role in what is characterized as “climate denial” — the bill would begin laying the legal groundwork for an astonishingly broad campaign of inquisition and, potentially, expropriation. The bill was approved by a subcommittee and was further amended May 10 to provide that climate science-related claims of any age would begin a four-year reviver period as of next January. [Northern California Record; the left-leaning Union of Concerned Scientists has a piece supporting the bill]
Section 2(b) of the bill declares it the California legislature’s policy to promote “redress for unfair competition practices committed by entities that have deceived, confused, or misled the public on the risks of climate change or financially supported activities that have deceived, confused, or misled the public on those risks” [emphasis added] — a very clear signal that the target is public issue advocacy, and not merely (say) advertising that is directed at consumers in their capacity as buyers of gasoline at the pump. Last month, a federal court slapped down, as an unconstitutional burden on First Amendment rights, California Attorney General Kamala Harris’s demand for the donor lists of nonprofits that carry on operations in California.
And how is this not a violation of the ex post facto clause in the Constitution?
The courts have generally ruled that the ex post facto clause forbids application of retroactive criminal but not civil liability. Since the two exist on a continuum with each other — consider punitive damages, the stigmatizing and moralizing aspect of concepts like civil fraud, and so forth — this could rightly be viewed as a problematic place to draw the line, but it’s where the line currently is.
“this could rightly be viewed as a problematic place to draw the line, but it’s where the line currently is.”
But there is absolutely nothing in the text of the constitution that suggests the line should exist at all.
OK….so what ever I do, could after the fact, expose me to untold liability?!?!?!?!
This is where lawyers are messed up. Matt is right. Plain English (ok, latin) is plain English. No after the fact changing of the rules, period. The Constitution makes no distinction between Civil and Criminal. Where does (who ever) make this up? What whole cloth are they cutting this distinction from?
If it’s legal to do something today, then you can’t hold me to account tomorrow, next month, next year, 20 years from now.
Regardless of any statute of limitations, this legislation violates the free press clause of the First Amendment as extended to the States by the Fourteenth Amendment.
Free press advocates should start calling such measures “Climate Pravda” laws. “Pravda,” of course, means “truth” in Russian, but was given an unintentionally ironic twist by the official Party newspaper. The Stalin and Brezhnev versions of the Soviet constitution guaranteed free speech and free press rights, but these were collective rights, eg of the people through their government to organize May Day parades and publish enlightening newspapers.
Climate change activists claim that political resistance to their agenda is illegitimate if not treasonable, but would die out if debate were shut down. But nothing would serve more to harden opposition than a rational certainty that the climate crusaders had outlawed access to scientific debate. Out of such overreach, civil wars are born.
[…] The California Senate has shelved, at least for now, a bill that would lay the groundwork for a campaign of lawsuits against so-called climate deniers. The California Climate Science Truth and Accountability Act of 2016 (Senate Bill 1161), which had passed two committee hurdles, would retrospectively lift what is now a four-year statute of limitations so as to allow unlimited lawsuits under the state’s notoriously pro-plaintiff Unfair Competition Law, or s. 17200, over advocacy related to climate change. While the deadline has now passed for the bill to be enacted on its own under ordinary legislative procedure, it could still pass this year under “gut-and-amend” procedures or a rules waiver. [Valerie Richardson/Washington Times and earlier, Andrew Stuttaford/National Review, Watts Up with That, thanks for quotes in all; earlier] […]
“Truth is self-evident to all. Truth withstands re-examination. Truth survives questions. Throughout history, from Galileo to Zundel, only lies and liars have resorted to the courts to enforce adherence to dogma.” – Michael Rivero
[…] “Combined with the plans laid by California Attorney General Kamala Harris — part of the alliance of AGs that has sought to investigate not only oil, gas and coal companies, but private advocacy groups and university scientists who have played a role in what is characterized as ‘climate denial’ — the bill would begin laying the legal groundwork for an astonishingly broad campaign of inquisition and, potentially, expropriation,” Mr. Olson said in a May 31 post. […]