When I’m reading a news story, there are two words which almost guarantee I’ll be cringing by the end: Attorneys general. The position of attorney general is usually seen as a stepping stone to higher office, so it’s often occupied by some subspecies of spotlight-seeking control freak. Just one of them would be bad enough, but when a bunch of attorneys general from different states take the time to work together toward a common goal, you just know it’s going to be something awful, something like passive aggressively pressuring Google to censor search results, vilifying MySpace because the AGs didn’t follow proper procedures, or accusing Craigslist of human trafficking. I mean, Christ, thirty-five of them got together to complain that Four Loko booze comes in cans that are too big.
This time a pack of twenty AGs are attacking the free speech of climate change skeptics:
Not only do Schneiderman and his new claque climate crusaders aim to force ExxonMobil to repent (while possibly extracting some cash along the way), they also evidently intend to shut up non-profit groups to which the oil company donated funds that have questioned the notion of impending man-made climate catastrophe.
In service of this goal, the Attorney General of the U.S. Virgin Islands Claude Walker has issued a subpoena to the Washington, D.C.-based think tank the Competitive Enterprise Institute. According to CEI, the subpoena demands that the non-profit produce “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.”
Admittedly, this is not a direct attack. The main thrust of the investigation is aimed not at CEI but ExxonMobil. The attorneys general are investigating whether ExxonMobil lied to investors about the effects of climate change on shareholder value.
For example, changing patterns of Arctic ice thawing could disrupt the company’s oceanic drilling and shipping operations, and thawing permafrost could cause upheavals that might damage buildings or pipelines, as could increasingly violent weather patterns. By playing down climate change, critics (and attorneys general) might argue, ExxonMobil is playing down the costs they will incur. Of course that applies to any business that could be affected by climate change, not just the oil companies that are the favorite targets of environmentalists.
A more specific concern is the oil in the ground. Oil companies make their money by pumping that oil out of the ground and selling it to people, and a large part of their current stock value comes from the expectation that they will be able to continue doing that for many decades into the future. The problem is that burning those enormous oil reserves will do immense damage to our planet’s climate. So it’s quite likely that world governments will at some point force the oil companies to leave most of their reserves in the ground — at least if the world is going to limit warming to the commonly cited 2°C target. In other words, because of climate change, oil companies will not be able to make nearly as much money as everybody thought they would. Therefore, by playing down climate change, companies like ExxonMobil are effectively lying about the value of their stock.
It’s an interesting economic point, and the same reasoning applies to coal and gas companies as well, but so far we haven’t seen the expected massive decline in the stock prices of companies with large fossil fuel reserves. The capital markets don’t seem to believe that we’ll be leaving all that oil, gas, and coal in the ground. That may be a realistic analysis: Current predictions are for an increase in fossil fuel consumption over the next couple of decades, likely blowing through the 2°C warming target.
There are a lot of unknowns here, and unknowns are risks, and risks are supposed to be disclosed to investors. Have the oil companies been doing it right? I haven’t got a clue, but that’s what the attorneys general are claiming to be investigating.
On the other hand, I’m pretty sure the Competitive Enterprise Institute has nothing to do with any of this. They have no obligations to investors in the fossil fuel industry. So how did they get sucked into the investigation?
It sounds like the attorneys general are pursuing some sort of conspiracy angle in which ExxonMobil was paying CEI to mislead the public as a means of influencing investors. I suppose that theory gives them plausible legal cover for harassing CEI. However, given that U.S. Virgin Islands Attorney General Claude Walker worked for eight years as an attorney for the U.S. Environmental Protection Agency, and that former Vice President Al Gore was included in a recent press conference about the investigation, it seems likely that this move is less about financial fraud and more about finding a way to strike back at ideological enemies in the climate argument.
New York Attorney General Eric Schneiderman started his investigation of ExxonMobil last year, but the subpoena to CEI didn’t come until after CEI attorney Hans Bader published an article critical of the investigation, which sounds a lot like retaliation. I can’t help thinking that some of the attorneys general are enjoying the chance to slam an enemy of environmentalists with the high cost of fighting or complying with the legal process. And if they could find a way to implicate CEI members in the conspiracy, all the better, right?
University of Tennessee law professor Glenn Reynolds argues that this is illegal:
Federal law makes it a felony “for two or more persons to agree together to injure, threaten, or intimidate a person in any state, territory or district in the free exercise or enjoyment of any right or privilege secured to him/her by the Constitution or the laws of the Unites States, (or because of his/her having exercised the same).”
I wonder if U.S. Virgin Islands Attorney General Claude Walker, or California Attorney General Kamala Harris, or New York Attorney General Eric Schneiderman have read this federal statute. Because what they’re doing looks like a concerted scheme to restrict the First Amendment free speech rights of people they don’t agree with.
I don’t know if Reynolds is right, but this kind of legal action seems to be part of a disturbing trend in which environmentalists have been trying to use the legal system to suppress the free speech of climate change skeptics.
I suppose it started with climate scientist Michael Mann’s lawsuit against several critics, including columnist Mark Steyn at the National Review and Rand Simberg at CEI. That’s just one guy (and he kind of had a point, even if the lawsuit is apparently stalled), but more recently 20 climate scientists signed a letter to President Obama calling for far more dangerous action:
We appreciate that you are making aggressive and imaginative use of the limited tools available to you in the face of a recalcitrant Congress. One additional tool – recently proposed by Senator Sheldon Whitehouse – is a RICO (Racketeer Influenced and Corrupt Organizations Act) investigation of corporations and other organizations that have knowingly deceived the American people about the risks of climate change, as a means to forestall America’s response to climate change.
The RICO statutes are one of the biggest loose cannons in federal law. Originally intended to help fight organized crime, RICO laws have been used to enhance penalties for things like securities fraud and teachers altering test scores or to fight marijuana legalization. Apparently, there’s been some talk in the Department of Justice about using RICO against climate skeptics, and I wouldn’t be surprised to see DOJ joining the attorneys general in their crusade against bad science.
Even Bill Nye “the science guy” is kind of okay with jailing people over climate science:
Asked about the heated rhetoric surrounding the climate change debate, such as Robert F. Kennedy Jr.’s previous comments that some climate skeptics should be prosecuted as war criminals, Mr. Nye replied, “We’ll see what happens.”
“In these cases, for me, as a taxpayer and voter, the introduction of this extreme doubt about climate change is affecting my quality of life as a public citizen,” Mr. Nye said. “So I can see where people are very concerned about this, and they’re pursuing criminal investigations as well as engaging in discussions like this.”
You know who else’s quality of life is going to be affected? Everyone involved in the fossil fuel industry, if we switch to greener energy. You don’t think they’d like to shut down climate scientists’ claims of anthropogenic global warming? If RICO actions about climate science had been available a few decades ago, oil and coal companies would have used them to suppress research into global warming by labeling it a conspiracy to destroy the energy industry and hurt the U.S. economy.
About the potential for a “chilling effect,” Mr. Nye said, “That there is a chilling effect on scientists who are in extreme doubt about climate change, I think that is good.”
But it’s not just going to be people with “extreme doubt” (whatever that means) who experience chilling effects. It’s going to be every scientist with a theory that suggests global warming isn’t as bad as we think it is — every researcher who theorizes there’s a bias in the satellite record or a natural carbon sink that’s more effective than expected. When trying to decide whether to pursue the research, they’ll have to ask themselves if it’s worth the risk of severe legal problems, and they’ll have to line up advisors, assistants, partners, and funding agencies that are also willing to face the risk. Or they could play it safe and pick a different research topic.
That’s not how science is supposed to work. That’s not how debate over public policy is supposed to work in a democracy. Environmentalists had no trouble understanding this concept back when Virginia Attorney General Ken Cuccinelli was engaged in a bogus investigation of Michael Mann and the University of Virginia for supposedly manipulating data to prove global warming.
It’s not a question of who is right and who is wrong. It’s not even about who is lying and who is telling the truth. It’s about how we as a society are going to make decisions together. It’s far better that we talk things out and let everyone be heard than that we enlist attorneys general to imprison or impoverish those with whom we disagree. The best remedy for bad speech is good speech. Not a RICO prosecution.