http://insideclimatenews.org/news/21042016/exxon-competitive-enterprise-institute-cei-climate-change-fraud-investigation-first-amendment-rights
[links in on-line article]
Exxon and Its Allies Invoke First Amendment to Fight Climate Fraud Probes
Lawyers hired by Exxon and CEI have experience waging long battles with
government attorneys on controversial issues, including tobacco.
By Neela Banerjee
Apr 22, 2016
Exxon, the Competitive Enterprise Institute and their allies are
invoking free speech protections in a pugnacious pushback against
subpoenas from attorneys general seeking decades of documents on climate
change. Their argument is that the state-level investigations violate
the First Amendment rights of those who question climate science.
Exxon has sued to block a subpoena issued by the attorney general of the
U.S. Virgin Islands, and in an unusual step, named as a defendant the
Washington, D.C. law firm and attorney representing the territory in the
inquiry. In its complaint against the Virgin Islands subpoena, Exxon
wrote, "The chilling effect of this inquiry...strikes at protected
speech at the core of the First Amendment."
In a pointed letter to Virgin Islands Attorney General Claude Walker on
April 20, CEI's attorney called the subpoena "offensive" and
"un-American," and warned to "expect a fight." Andrew Grossman, outside
counsel for CEI, wrote, "You have no right to wield your power as a
prosecutor to advance a policy agenda by persecuting those who disagree
with you."
The conservative non-profit Energy & Environment Legal Institute, an
ally of CEI, recently released emails that show that the attorneys
general considering investigating Exxon were briefed by two
environmentalists. E&E got the emails through a Freedom of Information
Act request to the Vermont attorney general's office. Though such
meetings with environmental and industry advocates are widely considered
routine, E&E described the meetings as secretive collusion, an idea that
has been echoed on conservative websites and among some mainstream media
outlets.
The AGs have not changed course amid the counterattack. But Exxon and
its allies appear to be aiming as much at public opinion as at state law
enforcement. After InsideClimate News and later the Los Angeles Times
published stories last year detailing Exxon's cutting edge climate
research in the 1970s and its subsequent efforts to disparage climate
science, the company initially argued it has conducted climate science
without interruption for 40 years. It also answered a subpoena by New
York Attorney General Eric Schneiderman and produced 10,000 pages of
records by the end of 2015.
Now, its emphasis appears to have shifted. As the company tries to
defend its climate contrarian stance, Exxon argues that it has voiced
honest dissent on the science that a conspiracy of environmentalists and
attorneys general wants to silence. "Our critics, on the other hand,
want no part of that discussion. Rather, they seek to stifle free speech
and limit scientific inquiry while painting a false picture of
ExxonMobil," spokeswoman Suzanne McCarron wrote in a post on the
company's blog on April 20 titled "The Coordinated Attack on ExxonMobil."
Exxon and CEI's lawyers have experience waging long battles with
government attorneys on controversial cases. Exxon's law firm Paul,
Weiss, Rifkind, Wharton & Garrison and CEI's attorneys, BakerHostetler,
represented the tobacco industry for years. Exxon's firm also represents
the National Football League as it deals with the scandal over its
concussion research.
CEI's lawyers, Andrew Grossman and David Rivkin, have launched a project
called Free Speech in Science, which aims to "stop the intimidation" of
those who disagree with accepted climate science. In an op-ed in the
Wall Street Journal, the lawyers compared climate deniers to Galileo and
added, "As the scientific case for a climate-change catastrophe wanes,
proponents of big-ticket climate policies are increasingly focused on
punishing dissent from an asserted 'consensus' view."
Christopher Horner is a senior fellow at CEI and a fellow at E&E Legal.
Horner and his colleague, David Schnare, have a long history of
submitting Freedom of Information Act requests for the emails and
documents of leading climate scientists, such as NASA's James Hansen,
and government officials, such as former EPA administrator Lisa Jackson.
In one of their most public efforts, Horner and Schnare, then working as
part of the American Tradition Institute, unsuccessfully attempted to
gain access to the papers of climate scientist Michael Mann during his
tenure at the University of Virginia.
Schnare denied that E&E's current FOIA request to the Vermont attorney
general's office was done in partnership with CEI. E&E has filed
requests with other states, he said. "Because this is an evolving story,
and as we learn more about the extent of this conspiracy, we will
continue our investigation, following the coordination and collusion
wherever they lead," Schnare wrote in an email.
The Vermont documents that E&E shared in a press release show that
attorneys general met in March for 45 minutes each with Peter Frumhoff
of the Union of Concerned Scientists and Matt Pawa, a lawyer who has
sued fossil fuel companies over climate change.
E&E said the emails showed the AGs "secretly teamed up with anti-fossil
fuel activists in their investigations against groups whose political
speech challenged the global warming policy agenda."
"The office routinely collaborates with other states and receives input
from outside organizations," said Matt Mittenthal, a spokesman for New
York Attorney General Eric Schneiderman. "Ultimately, decisions on which
cases we pursue are based solely on the merits and the law—and nothing
else."
Attorneys general for several fossil-fuel friendly states have also
joined the chorus decrying the investigations. Like Exxon and CEI, they
have framed the issue as one of free speech. "It is one thing to use the
legal system to pursue public policy outcomes; but it is quite another
to use prosecutorial weapons to intimidate critics, silence free speech,
or chill the robust exchange of ideas," Louisiana Attorney General Jeff
Landry said in March.
Walker, however, has countered by saying, "the First Amendment does not
shield any company from being investigated for fraud."
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