Posts Tagged ‘climate deniers to the wall’

From the archives: Robert Reich on regulation through litigation

Notable from Overlawyered’s archives of 20 years ago, quoting former labor secretary Robert Reich, who was writing in the American Prospect on gun control through litigation:

The legal grounds for both the tobacco and gun suits “are stretches, to say the least. If any agreement to mislead any segment of the public is a ‘conspiracy’ under RICO, then America’s entire advertising industry is in deep trouble, not to mention HMOs, the legal profession, automobile dealers, and the Pentagon.”

“These novel legal theories give the administration extraordinary discretion to decide who’s misleading the public and whose products are defective. You might approve the outcomes in these two cases, but they establish a precedent for other cases you might find wildly unjust….But the biggest problem is that these lawsuits are blatant end-runs around the democratic process…. In short, the answer is to make democracy work better, not give up on it”.

The downfall of #ExxonKnew

It was a hashtag prosecution, a social media campaign posing as a legal case: #ExxonKnew. And like yesterday’s media balloon become today’s litter, its deflated remains floated back down to earth last week in a New York courtroom.

National Review asked me to write a longer piece on last week’s Exxon acquittal (earlier, and previously):

In a 2003 case called Nike v. Kasky, no less a liberal authority than Supreme Court Justice Stephen Breyer warned that it was dangerous to freedom of speech to arm ideological adversaries with legal power to bring fraud charges against businesses based on those businesses’ public statements about contentious issues….

In his full, scathing opinion, Judge Ostrager rejected each of the state’s themes. “ExxonMobil’s public disclosures were not misleading.”…

New York’s prosecution of Exxon — a legal vendetta against a target chosen for essentially political reasons — deserves to be studied in law schools for years to come. But not for the reasons its authors once hoped.

Whole thing here.

Sanders: I’d prosecute oil and gas executives over climate change

Vermont senator and presidential Bernie Sanders cites no criminal law that the executives violated, but he wouldn’t be the first champion of collectivism for whom the conviction was settled on first and the law found afterward. More: William Allison, Energy in Depth (in which I take issue with retroactive application of criminal law, and notions of “conspiracy” that do not make clear which underlying laws were involved).

Environment roundup

Un-forthcoming Schneiderman loses another round to CEI

A New York appellate court has upheld an order that New York Attorney General Eric Schneiderman pay counsel fees to the Competitive Enterprise Institute for having resisted required disclosure of the “AGs United for Clean Energy” secrecy agreement [Anna St. John, CEI; Chris White, Daily Caller]

Attorneys general began tangling with CEI in April of 2016, and have experienced repeated setbacks in courtroom battles since then.

Canada’s inquiry into wrongful climate advocacy

A Canadian government agency investigated three organizations accused of “climate denial” for 14 months after Ecojustice, a leading environmental pressure group, sought criminal charges [Lorrie Goldstein, Toronto Sun] While the bureau eventually discontinued the probe in June, citing “available evidence, the assessment of the facts in this case, and to ensure the effective allocation of limited resources”, it reserved the option to reopen it “should it receive relevant new information from the public.” We have followed the efforts of state attorneys general including New York’s Eric Schneiderman and Massachusetts’s Maura Healey to attach legal consequences to improper advocacy on climate topics; see also our free speech in Canada tag.

Environment roundup

  • Seattle will ban restaurants from giving plastic straws [Christian Britschgi]
  • Big money in climate inquisition? Lawyers with contingency-fee role in AGs’ carbon campaign join Hagens Berman [Scott Flaherty, American Lawyer; earlier on climate lawyers on contingency fee here and here]
  • Encyclopedia of Libertarianism, 2008, includes entries on urban planning by Mark Pennington and on eminent domain and takings by Karol Boudreaux;
  • California legislature’s $1.5 billion green Christmas tree includes bill “aimed at helping a union looking to organize workers who assemble Tesla electric cars in Fremont” [AP]
  • Michigan AG Schuette indicts state human services chief Nick Lyon in Flint water case, and a prominent Democrat and Republican both take exception to that [Kathleen Gray, Detroit Free Press (former AG Frank Kelley); Maura Corrigan]
  • “You Should Be Able to Vindicate Federal Property Rights in Federal Court” [Ilya Shapiro and Meggan DeWitt, Cato on Wayside Church v. Van Buren County]

John Baker on the AGs’ Exxon campaign

“Warning to Corporate Counsel: If State AGs Can Do This to ExxonMobil, How Safe Is Your Company?” Prof. John Baker in the Georgetown Journal of Law and Public Policy, excerpt:

Nation-states have long fought wars for control of oil. In a novel development, American states are now fighting a war over control of oil—not with one state attempting to take oil from another, but with some states attempting to deny its use to other states. In 2015, New York’s Attorney General, Eric Schneiderman, began an investigation of ExxonMobil. Then, at a news conference held in New York City on March 29, 2016, Schneiderman said that he and a group of other attorneys general were looking at “creative legal theories” to bring about “the beginning of the end of our addiction to fossil fuel.” The group is comprised of seventeen attorneys general, representing fifteen states, the District of Columbia, and one territory. Opposing these attorneys general from mostly “blue states” are attorneys general from twenty-seven mostly “red states.”

We’ve covered one angle of the investigation — its attempt to attach legal consequences to wrongful climate advocacy, and use subpoena power to investigate advocates — at length. Baker writes about many others, including the murky origins of the multi-state investigation and related professional responsibility questions, Exxon’s subdued public response, and the prospect of an ideological “War Between the States.”

Free speech roundup

  • Howard Dean, in hole re: grasping legal status of “hate speech,” keeps digging [Eugene Volokh (“No, Gov. Dean, There Is No ‘Hate Speech’ Exception to the First Amendment”), more (Chaplinsky and “fighting words”), Ronald K.L. Collins (will Dean publicly debate Volokh?]
  • White House Chief of Staff Reince Priebus gets asked on a talk show about Trump’s much-criticized hopes for libel law. Did he say much that was new? [Volokh]
  • “Don’t Compel Doctors to Promote State-Favored Programs” [Ilya Shapiro and Thomas Berry on Cato amicus brief supporting Supreme Court certiorari in National Institute of Family & Life Advocates v. Becerra]
  • “Newspapers and magazines tend to bury stories about libel settlements. Don’t want to give readers ideas.” [@jackshafer on Twitter]
  • Until courts definitively smack down New York Attorney General Eric Schneiderman’s war on wrongful climate advocacy, this interim freedom-of-information win is nice [CEI] Related: Leo Doran, Inside Sources.
  • First “alternative facts,” now this: “Students Have an ‘Alternate Understanding’ of the First Amendment.” [Stephanie Castellano, Newseum]

Free speech roundup

  • “Spanish woman given jail term for tweeting jokes about Franco-era assassination” [The Guardian]
  • If California Attorney General Xavier Becerra’s 15-felony complaint and arrest warrant against activist filmmakers David Daleiden and Sandra Merritt is a vendetta, it’s one motivated by speech. That’s serious [Jacob Sullum]
  • “A.B. 1104 — a censorship bill so obviously unconstitutional, we had to double check that it was real.” [EFF on stalled California bill to ban “fake news,” introduced by Assemblymember Ed Chau (D-Monterey Park)] “Germany approves bill curbing online hate crime, fake news” [AP/Yahoo, earlier]
  • “Another Free Speech Win In Libel Lawsuit Disguised As A Trademark Complaint” [Tim Cushing, TechDirt; criticism of doctor’s experimental treatment methods]
  • Punching a hole out of Section 230: new “sex trafficking” bill could have far-reaching consequences for web content and platforms [Elizabeth Nolan Brown, Reason]
  • One section of a Maine bill would bar state’s attorney general from investigations or prosecutions based on political speech [HP 0551; Kevin at Lowering the Bar is critical of bill]