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.
I dunno bro. It’s like, no one thought you could bring down cigarette companies with second hand smoke. It was this crazy theory. But courts bought it because the people bought it and bam, the world changed.
There’s a lawsuit, I think in Alaska, over global warming similar to this stuff (and piggybacking on the theory used for cigs). I think the AG simply realized they could get in on it this time before the civil attorneys make their millions and get some for themselves. Why not? They jumped in on the cigs and now you have an industry that has to pay a ton into education etc. It’s how it goes.
RICO prosecution shmeh. It’s just grandstanding. It’s just about the fact that money is there for the taking from people who are knowingly doing something awful. And the government is going to take it. Hard.
I’m guessing that’s how the AGs would like this one to turn out. They want to each be able to say they brought billions of dollars into their state, presumably to pay for clean energy jobs or something wholesome sounding like that. Of course, like the tobacco settlement, if they want to keep the money coming, they better hope the corporations stay in business. The states might even pass a few protective laws to help them out, such as liability shields to keep other lawyers from getting a piece of the dough. After all, they gotta be able to pay off those bonds they issued on future settlement revenue.
I’m also curious how they’d calculate the damages. The payouts in the tobacco settlement were based on state-paid healthcare costs. I don’t think there’s much of a credible claim yet for damages from global warming. That will be a long time coming, and it will hit other nations worse than us.
Money is speech. The side with the most money has the most speech. Decades of damage has been done because the side with the most money has had an out-sized amount of speech despite being proven wrong by the science.
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. Should the side with the most money be the side influencing the decisions? Should decisions based on science be more influenced by the consensus of the scientists? But the scientists don’t have the money.
Money is how a tiny handful of people who promote fringe ideas end up with the most influence in decisions that should be made using scientific consensus, not fringe ideas promoted by deep pockets.
Cuccinelli’s bogus investigation was directed against UVA and actual scientists who had openly published their data and analysis in scientific journals. Those people were contributing to science.
Not sure about CEI, but organizations like Heartland Institute are specifically hired by industry not to contribute to the science, but to create fear, uncertainty and doubt about the actual science. Heartland had been hired by the tobacco industry to do the same thing with lung cancer.
These “scientists” aren’t actually doing real research into “a bias in the satellite record or a natural carbon sink that’s more effective than expected” or anything similar. If they were, they would publish in the journals in the field. Instead, their “research” is used in PR campaigns and congressional hearings, but never makes peer review anywhere because they aren’t doing actual science.
Conservative lawmakers have been using similar tricks against the actual scientists for many years now, such as Lamar Smith’s current ongoing bogus investigation of NOAA. Again, this is against real scientists who have openly published their data and research in journals and contributed to the scientific understanding of climate change.
A lot of actual research exists that looks at things like bias in the data and the impact of sinks and such. It’s published regularly in the real journals. I don’t see anyone “chilling” their speech.
The question becomes what to do when an organization with deep pockets (tobacco company, oil company) hires organizations not to do science, but to purposely lie about the science for financial gain. At what point is that fraud? It’s certainly not science. As I said, they aren’t even trying to publish in the scientific journals. Their “research” is just for PR and politics. It’s just FUD generation.
How far do we take this free speech? Should companies be allowed to claim their sugar pills cure cancer? Is the remedy for a slick, well funded marketing campaign for cancer-curing sugar pills an academic research paper in a journal read by a few thousand people? Should fraud never be punished with anything but “better speech”?
When the tobacco companies hired organizations like Heartland to lie about the effects of their product, was that fraud? Should they have been punished, or were those lies (backed by millions of dollars of marketing) just free speech?
I doubt this will have any chilling effect on genuine research anyway. I don’t see any real scientist being worried about their actual research because organizations are being investigated for their links to business after producing bogus research. Are real cancer researchers worried because medicine show frauds get investigated?
You want scientific issues to be controlled mostly by scientists rather than by whoever has the most money. That would be nice. But if you start fighting science battles with things like RICO laws, I think you run the risk that scientific issues will be controlled by the people with the most lawyers, or the most politicians. Those are also the people with the most money.
You’re right, I don’t see a chilling effect on legitimate scientific challenges to the prevailing consensus. But then again, we don’t have RICO prosecutions of climate deniers. Yet. We should try to keep it that way.
On the other hand, there are legitimate differences of medical opinion on the subject of pain management. And there have been a bunch of prosecutions of medical doctors for operating “pill mills” and over-prescribing opioid pain medication. Siobahn Reynolds (founder of the Pain Relief Network) was subject to an abusive grand jury subpoena for merely advocating for one of those doctors. Some pain patients now claim that doctors are reluctant to prescribe pain medication for fear of running into legal trouble.
Similar concerns have made it difficult to do research into medical uses of marijuana because the DEA refuses to let researchers use it because the DEA classifies marijuana as a Schedule I drug with “no currently accepted medical use and a high potential for abuse” and there’s been to research to change that because the DEA refuses to let researchers use it…
That’s a bad road to go down.
So, we just don’t punish fraud? We simply fight fraud with “better speech”? Under such a system, we would still be a predominantly smoking nation, with most of the public thinking cigarettes were a health benefit.
In the medical world, because of limitations on prosecutions (and the power of wealthy people) we have con artists like Joe Mercola committing medical fraud on a regular basis with the regulatory system neutered into ineffectiveness.
One of the benefits of a government should be a regulatory system capable of punishing fraud. If money is getting in the way, we need to address that and minimize the impact of monetary influence on our government. That’s why we need a constitutional amendment setting up and enforcing rational campaign finance reform, overturning Citizens United.
If the only alternative to bad speech backed by endless money is good speech, we are truly fucked.
I’m not sure how a commercial fraud action would work here. Cigarette manufacturers arguably defrauded their customers, who suffered harm because of it (although they’re not the ones who got all the money). The same can be said for medical quacks. But most of the global warming harm lands on people distant in both time and space, not on the purchaser. I suppose there’s an argument that people thought they were buying fuel that was greener than it actually was, so they’re entitled to recompense (kind of like the Milli Vanilli lawsuit where the music turned out not to be performed by the guys on the cover) but that seems kind of thin.
I think that’s why the AGs are going with investment fraud instead.
As with the tobacco lawsuit, I don’t expect the money to go to the actual victims. Investors probably won’t get anything, and people living in e.g. low-lying areas of Bangladesh certainly won’t get a dime from this.
I think you misinterpreted my statement:
“You’re right, I don’t see a chilling effect on legitimate scientific challenges to the prevailing consensus. But then again, we don’t have RICO prosecutions of climate deniers. Yet. We should try to keep it that way.”
Let me clarify. I don’t see a chilling effect going into the future on legitimate scientific challenges to the prevailing consensus because the AG’s are going after fraudsters, not legitimate scientists. When they go after legitimate scientists (as the GOP has done several times and conservative governments have done in Canada and Australia), that will have a chilling effect on real science and scientists.
Real cancer researchers aren’t disturbed or afraid when the government goes after medicine show hucksters. Again, if anything, the real scientists and researchers would like to see the government be more aggressive against such frauds.
Sorry I misinterpreted your comment.
What I’m saying is that I don’t think the distinction between going after fraudsters and going after legitimate scientists is one we can expect the AGs to be real clear on, especially with shifting political winds. The (mostly) Democratic AGs going after oil companies and global warming skeptics today are perpetuating the pattern by which Republican AGs will go after climate scientists and abortion providers tomorrow.