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A review of their fight against the attorneys general shows how tenacious—some opponents say ruthless—Exxon can be:

This article is the first of a series examining the formidable power the fossil fuel industry deploys across society to protect its interests. It fights adversaries as small as a family in Louisiana suing over a natural gas pipeline that polluted their property and as large as the federal government, with its rules aimed at reducing carbon emissions nationwide. The industry sowed doubt for decades about climate science, spending $2.9 billion on advocacy advertising alone in a 10-year period ending in 2015. It spent $1.3 billion more lobbying to shape public policy on energy issues during the same period and has pumped out $827.9 million in campaign contributions since 2000 to elect sympathetic officials at the local, state and federal levels.

In an ironic twist, industry backers, who typically declare devotion to free markets, have sought to weaken or even ban competition from other sources of energy. A bill authored by coal supporters in Wyoming would have forbidden electricity from wind power in the state. Solar power is a frequent target of efforts to add surcharges to make it less affordable.

The industry is exercising its influence at a particularly delicate moment. Climate change is accelerating and global momentum has grown to deal with the crisis, culminating in last year's landmark Paris Agreement. But the U.S. elected a new president, Donald Trump, who has signaled solidarity with the industry and yanked the United States out of the Paris accord. The president has branded climate change a hoax and installed officials at the Environmental Protection Agency and other key departments dedicated to expanding fossil fuel production and undoing Obama-era efforts to curb greenhouse gas emissions.

And the man at the center of the investigation by the attorneys general, Exxon's Tillerson, is now Secretary of State, a post giving him authority over climate diplomacy.

From Fanfare to Rounds of Legal Warfare

With great fanfare, New York's Schneiderman announced the formation of AGs United for Clean Power in March 2016. The coalition was formed after investigative articles first by InsideClimate News and later the Los Angeles Times disclosed that Exxon learned from its own scientists about the consequences of climate change as early as 1977, but chose to curtail its research and eventually worked to deny the findings....

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...The attorneys general, Schneiderman said at a news conference, were "dedicated to coming up with creative ways to enforce laws being flouted by the fossil fuel industry and their allies in their short-sighted efforts to put profits above the interests of the American people and the integrity of our financial markets."

Healey said, "Fossil fuel companies that deceived investors and consumers about the dangers of climate change should be, must be held accountable." Exxon would later charge that those comments indicated Healey had prejudged the outcome of her investigation.

At their side were five other attorneys general and staff representing 10 more, from California to Rhode Island. Former Vice President Al Gore added star power to the assembly.

Despite the showy news conference, the attorneys general were unprepared for what was to come, and they made tactical errors at the start that gave Exxon ammunition for its counter-attack. David Vladeck, a Georgetown University law professor and former director of the Bureau of Consumer Protection at the Federal Trade Commission, said the group had too little understanding of each member's commitment. And they allowed the tiny Virgin Islands a prominent role that turned out to be a mistake, he said.

The morning of their news conference, the attorneys general met privately with climate activists, handing Justin Anderson, one of Exxon's lawyers, an opening to argue to Kinkeade that the coalition, all Democrats, was abusing the law enforcement system to seek a political goal. Kinkeade later seized on that argument, asking why the attorneys general wouldn't want to assure the public that their actions "lacked political motivation and were in fact about the pursuit of justice."

Eric Soufer, a spokesman for Schneiderman, said engaging a variety of sources is part of the investigative process. "Like all prosecutors' offices, we speak with a diverse array of stakeholders on a range of matters, all the time," he said. "It's part of our job."

[Bio: Massachusetts Attorney General Maura Healey]

Peter Frumhoff, director of science and policy for the Union of Concerned Scientists, said he briefed the attorneys general at the meeting on Exxon's "deception and the impact of climate change that might have been averted if they had taken action."

At the press conference, Attorney General Claude Walker of the Virgin Islands stood defiantly at the lectern and announced the fight was on with Exxon.

"It could be David and Goliath, the Virgin Islands against a huge corporation, but we will not stop until we get to the bottom of this," Walker said. He soon issued sweeping subpoenas to Exxon and the Competitive Enterprise Institute,a libertarian think tank aligned with and heavily financed by the industry.

Exxon and CEI almost immediately started filing a series of motions to have the subpoenas dismissed. They didn't play defense for long. Within weeks they filed lawsuits of their own against Walker, alleging he was violating their First Amendment right to disagree with the prevailing scientific consensus that climate change is overwhelmingly driven by burning fossil fuels.

Faced with a legal battle that might go on for years and the concern that losing an early round could undermine the larger investigations by New York and Massachusetts, Walker withdrew his subpoena of CEI and suspended his investigation of Exxon.

Sam Kazman, the general counsel for CEI,said Trump's election and his installation of Scott Pruitt, a climate change denier, as head of the EPA show that Schneiderman and the other members of what Kazman called "AGs United for More Power," badly misinterpreted the national attitude on the issue. "It's hard for Schneiderman to conclude that we were deceived when that skepticism is shared by the EPA under the new administration," he said.

Neither Walker nor lawyers representing the Virgin Islands would discuss the case or its dismissal. Donna Christensen, a St. Croix resident who served 18 years as the islands' non-voting representative in the U.S. House of Representatives, said the territory relies on Congress for much of its budget.

"We are in a very fragile financial situation," she said. "We don't need to make any enemies."

In retrospect, said Michael Gerrard, who teaches climate law at Columbia Law School, the coalition had started a fight that was far greater than some were prepared to wage.

Graphic: AG's United for Clean Power

Exxon initially cooperated with New York, surrendering more than two million pages of records. But the company balked at a documents request from Healey and took its argument to Kinkeade, who allowed Exxon to question attorneys general and climate activists in its search for evidence of a conspiracy.

When Kinkeade, a Republican appointed by President George W. Bush, sent the case to New York, he laid out Exxon's allegations in detail, presumably a road map for his successor to follow.  But Caproni, appointed by President Barack Obama, said at a hearing, "I have a different view of this case than Judge Kinkeade." When one of Exxon's lawyers sought a discovery order like the one Kinkeade granted to allow the company to try to prove that the attorneys general were improperly colluding, Caproni shut him down. "Gimme a break," she said.

Carroll Muffett, president and chief executive of the nonprofit Center for International Environmental Law, was one of those subpoenaed by Exxon.

"I knew from the very beginning that Exxon would eventually come after us hard and it would be a dirty fight," Muffett said. "They are fabricating conspiracy theories to deflect attention from the truth."

Bio: U.S. Virgin Islands Attorney General Claude Walker

The Rockefeller Brothers Fund and the Rockefeller Family Fund, philanthropic organizations that promote environmental causes among their numerous programs, also were the targets of Exxon subpoenas. Both organizations are among donors that support ICN.

To defend itself, Exxon argued in the subpoena that it needed to know whether Muffett's and other non-governmental organizations influenced the attorneys general's decisions to open investigations.

That legal strategy prompted Sarah Labowitz, a New York University scholar who served nearly three years on Exxon's External Citizenship Advisory Panel, to resign.

Labowitz, who until recently was co-director of the Center for Business and Human Rights at the NYU Stern School of Business, said she had enough when the company went after Muffett and others unrelated to the two state investigations.

"I am disappointed that instead of examining its own record and seeking to restore a respected place for itself in the public debate, Exxon has chosen to turn up the temperature on civil society groups," Labowitz wrote in her resignation letter.

Watching the New York and Massachusetts investigations being sucked into a legal quagmire are the other attorneys general who were part of the coalition.

Maryland Attorney General Brian Frosh said, "I'm sure anybody who is considering moving ahead with an investigation or action would take into consideration the ferocity of what they've seen so far of Exxon's defense," he said. In addition to the federal case, the company has filed suits in state courts in New York and Massachusetts, seeking to quash the probes.

Exxon's Tactic of Delay

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By Sam Kazman and Kent Lassman April 22

Sam Kazman is general counsel and Kent Lassman is president of the Competitive Enterprise Institute.

With seven state attorneys general and Al Gore sharing a New York City stage , there was no doubt about it: It was showtime for a whodunit. The crime being investigated? Dissent.

The March 29 news conference unveiled, according to New York Attorney General Eric T. Schneiderman, an “unprecedented” coalition to fight not only climate change but also allegedly deceptive speech about climate change. The group, which dubbed itself AGs United for Clean Power, promised to “use all the tools at our disposal” to battle for progress on “the most consequential issue of our time.”

Schneiderman was blunt about his goal of shutting down debate: “You have to tell the truth. You can’t make misrepresentations of the kinds we’ve seen here.”

This isn’t a law-and-order drama. It’s politics clothed in messianic garb, and its primary tools are censorship and intimidation.

The AGs are following a familiar script here: target an unpopular, deep-pocketed business, harass that business’s potential allies with overly broad investigations, run roughshod over the target’s First Amendment protections and settle once the politically weakened company tires of fighting the endless resources of the state.

ExxonMobil was singled out by name at the news conference, but the coalition appears to be following the script perfectly. Now it’s on to the fishing-expedition stage.

On April 7, our organization, the Competitive Enterprise Institute, was subpoenaed by coalition member and U.S. Virgin Islands Attorney General Claude Walker for all CEI material on climate change and energy policy, as well as information on our supporters, over 10 years beginning in 1997. The subpoena’s purported focus is on our contacts with ExxonMobil, a former CEI donor that publicly ended its support for us after 2005. Nonetheless, the subpoena calls for practically all of our material on climate change and energy policy, as well as information on any donors who directly or indirectly supported that work.[NOTE horner is still foiaing sci right now?]

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That’s one hell of a burden to slap on a nonprofit. The coalition’s purported justification is that the risks of global warming are so important and the scientific basis for them so settled that disputing them constitutes fraud. But the rhetoric of the AGs is blissfully oblivious to the First Amendment.

Court rulings make it clear that broad subpoenas aimed at restricting speech, especially in the context of policy debates, are invalid. Time and again, the Supreme Court has held that the remedy for unwanted speech is more speech in response. The chief law-enforcement officers of several states should know better, but their reaction to a dissenting policy position is punitive, coercive and unconstitutional.

As for breaching donor confidentiality, the obvious aims here are intimidation and to limit future use of the constitutionally protected right of anonymous donation. In 1958, in NAACP v. Patterson, the Supreme Court held that such attempts were illegal under the First Amendment’s right of association.

You might think that if the law is that clear, we have nothing to worry about. But fighting a subpoena is incredibly costly and time-consuming, especially when the attorneys general behind them have promised to “use all the tools” at their disposal, courtesy of their states’ taxpayers.

Regardless of where you stand on global warming policy, the notion of a multi-state campaign to end the debate ought to make you worry.After all, there are many science-driven policy debates out there, on topics ranging from genetically modified food to population control. It is not as if the government has a sterling reputation when it comes to science. From Galileo to today’s food plate, we know government politicizes science. It ought not to punish dissent, too.

Read more on this topic:

Robert J. Samuelson: The war against Exxon Mobil

The Post’s View: 2015: A year of progress and buffoonery on climate change

Sheldon Whitehouse: The fossil-fuel industry’s campaign to mislead the American people

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AN

http://www.alternet.org/environment/exxon-using-tobaccos-failed-free-speech-defense-decades-deception-climate-change

he past week has seen a barrage of opinion pieces carrying water for the fossil fuel industry, defending against the ongoing fraud investigations. The Washington Post had two pieces, Newsweek had one and the Financial Times had an editorial, in addition to op-eds in a couple of other conservative outlets. Of those six, half were penned by groups funded at least in part by fossil fuel companies.

The arguments are all by and large the same, claiming that the investigations infringe on fossil fuels companies’ right to free speech while steadfastly ignoring the fact that ExxonMobil funded climate denial to protect their business model.Only the Financial Times editorial actually acknowledges the “misleading claims from fossil fuel interests and their allies” but concludes that it is “because the stakes [of the debate] are so high that all arguments must be heard.” While that sounds fair at first Glantz, it quickly sounds silly when applied to a recent example: the tobacco industry’s denial of the fact that its carcinogenic product is addictive.

All but one of the pieces similarly ignored the tobacco industry precedent and the only person who mentioned it was one of the few voices not plugged into the professional denial apparatus.

As for the pros, Newsweek ran a blog post from the Hoover Institution, which rambled on about climate science that’s supposedly still uncertain, lamenting that fair debate is impossible if one side can bring the other to court. Not mentioned is how a fair debate can be possible if one side launches multi-million dollar PR campaigns to mislead the public about the science.

Feds Refer Exxon #Climate Investigation to FBI: https://t.co/MS5BfY7PNp via @EcoWatch pic.twitter.com/mBWybUPmVb

— DeSmogBlog (@DeSmogBlog) March 7, 2016

Heritage’s Hans von Spakovsky’s piece in the Washington Times misses the tobacco precedent, but went all the way back to the Spanish Inquisition for his First Amendment fear mongering. George Will used his column in the **Washington Post to offer a lesson on how this campaign is part of a larger progressive strategy to shut down debate. But apparently it’s Will that needs a history lesson, as he uses as evidence a story about a 2013 IRS investigation accusing the agency of targeting conservatives. But that investigation “found no evidence” that the IRS actions were politically motivated. No doubt his column is similarly bereft of evidence.

The Washington Postalso gave space to the Competitive Enterprise Institute (CEI)to defend itself by pretending it is being investigated for political dissent, not its years of Exxon funding for climate denial. Worth noting CEI’s careful phrasing about its relationship with Exxon, which CEI says “publicly ended its support for us after 2005.” With Donors Trust and others making it possible to anonymize giving, the key word is “publicly.”

Ironically, despite the admission that its Exxon funding is a perfectly legitimate reason to look into its communications, CEI considers its subpoena to be a fishing expedition. Meanwhile, CEI’s own coal-funded Chris Horner continues to engage in nuisance FOIAs for climate scientists.

Exxon’s defense is a hot topic in denierland, as it advances the narrative that the fossil fuel industry is an embattled population facing government persecution. But here’s a reality check: Before Honduran activist Berta Cáceres was murdered on March 2, she reported receiving 33 death threats after years of intimidation. Instead of investigating a man who had previously bragged about his plans to murder her, authorities claim the prime suspects are two of her fellow activists.

Heartbreaking! @GoldmanPrize Activist Berta Cáceres Murdered in Honduras https://t.co/Zj97cmwQi3 @FoEint @greenpeace pic.twitter.com/tAujvEGtMR

— EcoWatch (@EcoWatch) March 3, 2016

Looks like the fossil fuel industry isn’t the one facing persecution after all.

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