- Biggest recruit yet for climate recoupment suits: NYC Mayor Bill De Blasio sues blaming five oil companies for Superstorm Sandy [Seth Barron/City Journal, John Timmer/ArsTechnica, WSJ; Stephen Bainbridge on parallel divestment effort]
- California cities/counties suing oil companies: climate change will be our ruin. Same cities/counties selling bonds to investors: risk? what risk? [Andrew Scurria/WSJ; John O’Brien/Forbes] Santa Cruz joins several other Bay Area counties in action [Nicholas Ibarra, Santa Cruz Sentinel]
- Can’t spell “Oedipal” without “O-i-l”: Rockefeller heirs bankroll #ExxonKnew crusade against great-granddad’s company [Reeves Wiedeman, New York mag]
- Same article takes disbelieving tone about possibility that state AGs’ campaign might trample anyone’s First Amendment rights [memory refresher] More about that in this Margaret (Peggy) Little and Andrew Grossman 2016 Federalist Society podcast and my Twitter thread about it;
- National Association of Manufacturers launches legal initiative to push back against industrywide and attorney-general tort, nuisance, and public-recoupment suits, notably on climate and lead paint [John Siciliano, Washington Examiner; Linda Kelly, The Hill; NAM’s Manufacturing Accountability Project and its coverage of the art of “climate attribution,” the early failed Kivalina suit (more on which), origins of Global Warming Legal Action Project]
- Pssst, Vice — in profiling Steve Berman you might want to be aware that a few other attorneys claim some minor role in also having “won a $200 billion settlement from tobacco companies in the 90s” [compare claims of lawyers organizing opioid suits]
- How regulators dismiss economists’ advice: the case of CAFE fuel economy regs [David Henderson]
- Other auto manufacturers appear to have an emissions cheating problem, raise your hand if you’re surprised [Coyote]
- “You can end up getting a platinum LEED certification and still have the highest energy consumption density in the city of Chicago, as it turns out.” [same, sequel]
- “The Disconnect Between Liberal Aspirations And Liberal Housing Policy Is Killing Coastal U.S. Cities” [Shane D. Phillips] “California Housing Crunch Prompts Push to Allow Building” [Chris Kirkham, WSJ]
- Tyler Cowen takes a look at the stream protection rule;
- Well, natch: staff of New York Attorney General Eric Schneiderman was in touch with Rockefeller Family Fund campaigners before he launched climate advocacy subpoenas [New York Post]
Are you now, or have you ever been, a supporter of the Hoover Institution, the Mercatus Center, the Heritage Foundation, or the Acton Institute? Lachlan Markay, Free Beacon:
Democratic senators have been assigned conservative nonprofit groups to call out by name on the chamber floor in speeches on Monday and Tuesday criticizing corporations and advocacy groups for opposing Democratic climate policies, internal emails reveal.
…[Rhode Island Sen. Sheldon] Whitehouse and his allies, including Senate Minority Leader Harry Reid (D., Nev.), have crafted a schedule for floor speeches on Monday and Tuesday that assigns each participating Senator at least one group to go after by name.
Most of the groups have already been targeted by state Democratic officials that have undertaken a coordinated legal campaign against oil giant ExxonMobil since last year. Many were named in subpoenas sent to the company by state attorneys general as part of that effort.
The ringmaster, once again, is Sen. Sheldon Whitehouse of Rhode Island — yes, that Sheldon Whitehouse, whose hometown Providence Journal rightly called out his current campaign to sic the law on improper climate opinion as likely to “have a chilling effect on free speech, by intimidating dissenters into silence.” The leader on the House side is Rep. Ted Lieu (D-Calif.), also getting to be a familiar name.
One reason this is more sinister than your ordinary political sideshow: the proposed concurrent resolution urges right-leaning nonprofits “to cooperate with active or future investigations” of purportedly unlawful opinion-slinging. One of the most junior senators, Gary Peters of Michigan, apparently drew the short straw in the heresy posse and was assigned to attack my own Cato Institute (which publishes this site) at 6:30 this evening.
The senators participating in this appalling exercise besides Sens. Whitehouse, Reid, and Peters, all Democrats, are Sens. Ben Cardin of Maryland, Tim Kaine of Virginia, Barbara Boxer of California, Martin Heinrich of New Mexico, Chuck Schumer of New York, Al Franken of Minnesota, Elizabeth Warren of Massachusetts, Dick Durbin of Illinois, Tom Udall of New Mexico, Jeanne Shaheen of New Hampshire, Jack Reed of Rhode Island, Edward Markey of Massachusetts, Brian Schatz of Hawaii, Jeff Merkley of Oregon, Richard Blumenthal of Connecticut, and Chris Coons of Delaware.
Some early reactions: “All that is lacking are their public confessions” — Ronald Bailey at Reason (whose associated Reason Foundation is among the targets). “‘Assigned’ groups to attack? That sounds like middle school mean girl behavior.” [C.B. on Facebook] Peter Roff at U.S. News on how the Senators can’t (yet) make dissent illegal but can make it costly. And a reminder: the “Exxon Knew” crowd knew Whitehouse’s RICO-for-speech theory was wrong because their own allies had told them, but went ahead anyway.
More, Matt Welch at Reason:
…Since the targets of this shaming exercise are not being afforded the courtesy to rebut the charges in the forum at which they are being smeared, consider this a prebuttal…
This coordinated campaign would be an assault on free speech even if it were not drenched in conspiratorial inaccuracy. Democratic lawmakers, attorneys general, and activists are systematically singling out free-market think tanks for potential criminal prosecution and one-sided disclosure requirements based on the content of the think tanks’ research and commentary. They are literally trying to criminalize dissent. If successful, they will establish as “fraud” or “racketeering” any future think-tank work that runs afoul of political orthodoxy. …
Sadly, this heavy-handed act of government intimidation will likely go as unnoticed as Hillary Clinton’s long track record against free speech. Why? Because generally speaking both the mainstream press and the organized left reserve their First Amendment outrage for politicians they disagree with. Their silence is shameful, and deafening.
[Updated to correct error on Lachlan Markay’s name, sorry]
- No, the “government can’t make you use ‘zhir’ or ‘ze’ in place of ‘she’ and ‘he'” [Josh Blackman, Washington Post; earlier on NYC human relations commission guidelines; Hans Bader/CEI on new D.C. rules along similar lines]
- Matt Welch on New York Attorney General Eric Schneiderman and the “casually authoritarian” movement to harass and legally penalize climate deniers [Reason] While styled as fraud probe, AGs’ climate denial investigation is essentially a SLAPP suit meant to silence advocacy [Ronald Bailey; letter from 13 attorneys general critical of probe] As one skirmish ends, expect wider war to continue, as Virgin Islands AG withdraws widely flayed subpoena against our friends at Competitive Enterprise Institute [John Sexton] Massachusetts Attorney General Maura Healey now chasing “right-leaning groups that have never received a penny from Exxon” including local political foe Beacon Hill Institute [Hans Bader/CEI] We’re the ones asking questions around here: AGs dodge public record/FOIA requests on probe [Chris Horner/Fox News]
- “N.Y. Senate passes bill banning funding for university student groups that ‘encourage’ ‘hate speech'” [Eugene Volokh]
- Licensing and other laws often restrict what members of professions and occupations can say, a problem that deserves more and better First Amendment scrutiny than it’s gotten [Timothy Sandefur, Regulation]
- Ninth Circuit will review ruling striking down Idaho ag-gag law [Baylen Linnekin on appellate amicus, Idaho Statesman, NPR last year]
- Ken White on why it’s okay to loathe Gawker and its actions but still see the danger in Thiel/Hogan episode [L.A. Times, related Dan McLaughlin, earlier]
- Supreme Court should clarify whether agency has discretion to ignore any and all costs in designating Endangered Species Act habitat [Ilya Shapiro and Randal John Meyer on Cato certiorari amicus in Building Industry Association of the Bay Area v. U.S. Dept. of Commerce]
- Unanimous decision in Corps of Engineers v. Hawkes is second SCOTUS ruling this year against Environmental Protection Agency, and umpteenth blow to its reputation [Ned Mamula, Cato]
- Speaking of billionaires with vendettas against speech: Tom Steyer of San Francisco pushes New Hampshire attorney general to join probe of wrongful climate advocacy [Mike Bastasch, Daily Caller, earlier here, etc.]
- “Modern zoning would have killed off America’s dense cities”: 40% of Manhattan’s buildings couldn’t be built today because they would violate a law [New York Times, Scott Beyer/Forbes]
- And if anyone should know about tainting it’s them: United Nations human rights bureaucracy probes Flint water contamination [Associated Press]
- Anti-fossil-fuel demonstrators block rail line and the Associated Press can’t find a single critic to quote [related, Shift Washington]
At the Federalist Society blog, Margaret (Peggy) Little, practicing attorney and director of The Federalist Society’s Pro Bono Center, has published a summary and analysis (parts one, two) of the ongoing criminal investigation of Exxon and its relations with dozens of advocacy groups, university scholars, trade associations and others with whom it is said to have collaborated in the supposedly improper cause of climate “denial.”
As one of the shrewdest analysts of the outrageous tobacco litigation saga, Little is particularly well situated to spot the parallels:
…Nearly every speaker [at the “AGs United for Clean Power” press conference] expressly cited the state AGs’ successful victory over the tobacco industry as a template for this action. One AG called upon other countries, states, communities and individuals to join in this effort. Why the public announcement before the facts come in? Why the global call to arms by this minority of state AGs?
An alert observer will recognize that this press conference follows right on the heels of drastic fiscal crises in many states. The state AGs’ wildly successful settlement with the tobacco industry in the 1990s –which incidentally also deployed foreign countries, dissenting states, cities, towns and health insurers to amass industry-busting claims– shifted a quarter of a trillion dollars to the states and their attorneys, leading to fiscal and governmental bloat that, to borrow a term from the climate activists, is unsustainable. New targets need to be identified and demonized so that this state regulatory confiscation from private industry can continue.
Another echo is the role of private law firms angling for what could be stupendously large contingency fees, a phenomenon that was the driving force of the state tobacco litigation. Little notes the role of prominent class action and tort firm Cohen Milstein, which “has a state AG practice headed by partner Linda Singer, former AG of the District of Columbia. The New York Times has profiled [its] solicitation of state AGs to bring class action and mass tort suits.” Another private attorney involved in the new affair, Matt Pawa, is likewise deep in contingency-fee representations of state attorneys general to pursue ostensibly governmental claims in which public officials would ordinarily be expected not to take a personal financial interest. If the AGs’ press conference was characterized by “hot,” accusatory, prejudicial rhetoric more often associated with plaintiff’s lawyers than with professional prosecutors, this might be why, Little notes.
She also makes clear the deep political illegitimacy and unaccountability of the regulation-through-litigation Fourth Branch these suits are intended to set up:
These extortionate suits are cynically Made to Settle. Professor G. Robert Blakey, a RICO consultant engaged by the Department of Justice to plan the federal tobacco lawsuit, frankly admitted, “this case is not made to win, it’s made to settle.” Both the state and its contingency fee outside financiers are thus in a position to reap enormous rewards with no risk of judicial precedents that would stem the tide of other, like initiatives against other industries. A state is a subsidized political plaintiff, driven by interest groups and ideology and its officers’ political ambitions; it can afford to bring a weak case and pursue it more vigorously than could any private plaintiff. Further, the arsenal of remedies at its disposal—consent decrees, injunctive relief, enforcement powers available under its consumer protection, trade practices and antitrust statutes—are simply not available to a private tort plaintiff. All of which underscores why these contingency arrangements violate the targets’ due process rights.
I wrote a whole book in 2003 — The Rule of Lawyers — on the pretensions of this emerging Fourth Branch of litigators and why they were not consistent with American self-government. For a while — as one after another attempt at a “next tobacco,” from guns to soft drinks, failed to take off — it looked as if maybe our system had learned the lesson and that the scandals would not repeat. If only that were so!
I joined guest host Steve Simpson on Blog Talk Radio’s Yaron Brook Show, along with guests Sam Kazman (CEI) and Alex Epstein (“The Moral Case for Fossil Fuels”) to discuss the free speech threat of attorney general climate denial investigations (“AGs United for Clean Power”). Related, and recent: “Is Eric Schneiderman colluding with other AGs in an illicit war on Exxon?” [New York Post editorial) Investigation “a flatly unconstitutional assault on speech the state dislikes. I find something terrifying in the notion” [Stephen Carter, Bloomberg View] “While I think that climate change is both human-caused to a significant extent and likely to be a problem, I would warn my environmentalist friends about the dangerous precedent the attack on CEI sets.” [Eli Lehrer, Washington Examiner] “The Climate Police Escalate” [WSJ editorial]
As we noted on Friday, New York Attorney General Eric Schneiderman, more recently joined by several other state attorneys general, has pursued an investigation of the ExxonMobil corporation and its links to “climate denial” that has now resulted in a subpoena (from the attorney general of the U. S. Virgin Islands, Claude E. Walker) demanding ten years’ worth of internal documents from the Competitive Enterprise Institute. CEI, which issued a statement last week (with the text of the subpoena) vowing to resist the legal attack, has a further statement and links here; CEI’s Myron Ebell also recorded a Cato podcast (“fishing expedition… threatens our future… designed to shut us up”) with interviewer Caleb Brown.
Megan McArdle, Bloomberg View, calls the new developments “an attempt to criminalize advocacy”:
State attorneys general including Walker held a press conference last week to talk about the investigation of ExxonMobil and explain their theory of the case. And yet, there sort of wasn’t a theory of the case. They spent a lot of time talking about global warming, and how bad it was, and how much they disliked fossil fuel companies. They threw the word “fraud” around a lot. But the more they talked about it, the more it became clear that what they meant by “fraud” was “advocating for policies that the attorneys general disagreed with.”
New York Attorney General Eric Schneiderman gave the game away when he explained that they would be pursuing completely different theories in different jurisdictions — some under pension laws, some consumer protection, some securities fraud. It is traditional, when a crime has actually been committed, to first establish that a crime has occurred, and then identify a perpetrator. When prosecutors start running that process backwards, it’s a pretty good sign that you’re looking at prosecutorial power run amok….
The rule of law, and our norms about free speech, represent a sort of truce between both sides. We all agree to let other people talk, because we don’t want to live in a world where we ourselves are not free to speak. Because we do not want to be silenced by an ambitious prosecutor, we should all be vigilant when ambitious prosecutors try to silence anyone else.
This investigation is intended to silence and chill any opposition. It is disgraceful and contemptible behavior by public officials who are willing to exploit their power to achieve ideological ends….
Given the coalition that has been formed by state attorneys general to conduct a grand inquisition against climate change deniers, this subpoena from the Virgin Islands attorney general is probably just the first assault in their quasi-religious war against unbelievers. Researchers, scientists, think tanks, universities, and anyone else who works or speaks in this area should be aware that they may soon become a target of these malicious investigations.
As the Washington state supreme court noted in Rickert v. State Pub. Disclosure Commission (2007), our forefathers “did not trust any government to separate the true from the false for us” in the realm of politics.
A sobering aspect of the state AGs’ crusade is what is taking place outside of courtrooms: they are pressuring companies to cut off donations to nonprofit groups that employ “climate-change deniers.” … New York’s and California’s attorneys general have investigated Exxon for making donations to think tanks like the American Enterprise Institute and lobbying groups like the American Legislative Exchange Council. Schneiderman complains that these two specifically are “even more aggressive climate change deniers” than the run of the mill. (Ironically, while these large organizations include a few people labeled as “climate change deniers,” they focus mostly on issues having nothing to do with climate change.)
…even if being a “climate change denier” were a crime (rather than constitutionally protected speech, as it in fact is), a donation to a nonprofit that employs such a person would not be a crime.
In February we noted Bader’s strong argument that a “prolonged investigation in response to someone’s speech can violate the First Amendment” in itself even when “eventually dropped without imposing any fine or disciplinary action.”
I’m also quoted in a piece in Vermont Watchdog by Michael Bielawski and Bruce Parker that came out just before the subpoena report, on some of the issues in the investigation.
The campaign to attach legal consequences to supposed “climate denial” has now crossed a fateful line:
The Competitive Enterprise Institute (CEI) today denounced a subpoena from Attorney General Claude E. Walker of the U.S. Virgin Islands that attempts to unearth a decade of the organization’s materials and work on climate change policy. This is the latest effort in an intimidation campaign to criminalize speech and research on the climate debate, led by New York Attorney General Eric Schneiderman and former Vice President Al Gore….
The subpoena requests a decade’s worth of communications, emails, statements, drafts, and other documents regarding CEI’s work on climate change and energy policy, including private donor information. It demands that CEI produce these materials from 20 years ago, from 1997-2007, by April 30, 2016.
CEI General Counsel Sam Kazman said the group “will vigorously fight to quash this subpoena. It is an affront to our First Amendment rights of free speech and association.” More coverage of the subpoena at the Washington Times and Daily Caller.
A few observations:
- If the forces behind this show-us-your-papers subpoena succeed in punishing (or simply inflicting prolonged legal harassment on) groups conducting supposedly wrongful advocacy, there’s every reason to think they will come after other advocacy groups later. Like yours.
- This article in the Observer details the current push to expand the probe of climate advocacy, which first enlisted New York AG Eric Schneiderman and then California’s Kamala Harris, into a broader coalition of AGs, with Massachusetts and the Virgin Islands just having signed on. More than a dozen others, such as Maryland Attorney General Brian Frosh, seem to be signaling support but have not formally jumped in. More: Peggy Little, Federalist Society.
- CEI people, many of them longtime friends of this site, have been active critics of the Schneiderman effort, with Hans Bader, a senior attorney there, highly critical just a week ago.
- In these working groups of attorneys general, legal efforts are commonly parceled out among the states in a deliberate and strategic way, with particular tasks being assigned to AGs who have comparative advantage in some respect (such as an unusually favorable state law to work with, or superior staff expertise or media access). Why would one of the most politically sensitive tasks of all — opening up a legal attack against CEI, a long-established nonprofit well known in Washington and in libertarian and conservative ideological circles — be assigned to the AG from a tiny and remote jurisdiction? Is it that a subpoena coming from the Virgin Islands is logistically inconvenient to fight in some way, or that local counsel capable of standing up to this AG are scarce on the ground there, or that a politician in the Caribbean is less exposed to political backlash from CEI’s friends and fans than one in a major media center? Or what?
- I recommend checking out the new Free Speech and Science Project, which intends to fight back against criminalization of advocacy by, among other things, organizing legal defense and seeking to hold officials accountable for misusing the law to attack advocacy.
- This is happening at a time of multiple, vigorous, sustained legal attacks on what had been accepted freedoms of advocacy and association. As I note in a new piece at Cato, Sen. Elizabeth Warren has just demanded that the Securities and Exchange Commission investigate several large corporations that have criticized her pet plan to impose fiduciary legal duties on retirement advisors, supposedly on the ground that it is a securities law violation for them to be conveying to investors a less alarmed view of the regulations’ effect than they do in making their case to the Labor Department. This is not particularly compelling as securities law, but it’s great as a way to chill speech by publicly held businesses.
New York Attorney General Eric Schneiderman is pursuing an investigation of the Exxon Corporation in part for making donations to think tanks and associations like the American Enterprise Institute and American Legislative Exchange Council, which mostly work on issues unrelated to the environment but have also published some views flayed by opponents as “climate change denial.” Assuming the First Amendment protects a right to engage in scholarship, advocacy, and other forms of supposed denial, it is by no means clear that information about such donations would yield a viable prosecution. Which means, notes Hans Bader of the Competitive Enterprise Institute, that the New York probe raises an issue of constitutional dimensions not just at some point down the road, but right now:
A prolonged investigation in response to someone’s speech can violate the First Amendment even when it never leads to a fine. For example, a federal appeals court ruled in White v. Lee, 227 F.3d 1214 (9th Cir. 2000) that lengthy, speech-chilling civil rights investigations by government officials can violate the First Amendment even when they are eventually dropped without imposing any fine or disciplinary action. It found this principle was so plain and obvious that it denied individual civil rights officials qualified immunity for investigating citizens for speaking out against a housing project for people protected by the Fair Housing Act.
In another case, in which a company had been sued seeking damages over its participation in trade-association-related speech, a federal appeals court found that the pendency of the lawsuit all by itself caused enough of a burden on the firm’s speech rights that the court used its mandamus power to order the trial judge to dismiss the claims, a remarkable step.
Moreover, Bader writes, a string of federal precedents indicate that the constitutional rights Schneiderman is trampling here are not just Exxon’s but those of the organizations it gave to, which have a right to challenge his action whether or not the oil company chooses to do so:
These groups themselves can sue Schneiderman under the First Amendment, if Schneiderman’s pressure causes them to lose donations they would otherwise receive. Government officials cannot pressure a private party to take adverse action against a speaker.
Meanwhile, writing at Liberty and Law, Prof. Philip Hamburger of Columbia Law School takes a different tack: the subpoenas imperil due process and separation of powers because they issue at the whim of Schneiderman’s office. Earlier ideas of constitutional government “traditionally left government no power to demand testimony, papers, or other information, except under the authority of a judge or a legislative committee.” In more recent years executive subpoena power has proliferated; so has the parallel power of lawyers in private litigation to demand discovery, but the latter at least in theory goes on under judicial supervision that can check some of its abuse and invasiveness. Extrajudicial subpoenas by AG offices are particularly dangerous, Hamburger argues, because of their crossover civil/criminal potential: the targets do not enjoy a high level of procedural protection when “attorneys general claim to be acting merely in a civil rather than a criminal capacity,” yet the same offices can and do threaten criminal charges. Especially dangerous is New York’s Martin Act, a charter for general invasion of the private papers of anyone and anything with a connection to New York financial transactions.
An attorney general’s concern about fraud or the “public interest” is no justification for allowing him to rifle through private papers. When he thereby extracts the basis for a criminal prosecution, he evades the grand jury process. When he thereby lays the groundwork for a civil enforcement proceeding, he evades the due process of law, for there ordinarily is no discovery for a plaintiff until he commences a civil action. Even worse, when a prosecutor uses a subpoena to get a remunerative settlement, it is akin to extortion — this being the most complete end run around the courts.
[cross-posted from Cato at Liberty]