Climate Change Court Drama: What Does New York’s Attorney-General Have to Hide?

New York Attorney-General Eric Schneiderman, as I reported earlier, issued subpoenas to oil giant ExxonMobil last fall demanding that it turn over internal communications regarding what the company knew about the risks of climate change. Schneiderman says that he wants to find out if the oil company fraudulently misled its investors with regard to how man-made climate change would affect its financial prospects.

This effort at legal intimidation then morphed into a group effort with more than a dozen Democratic state attorneys-general who anointed themselves AGs United for Clean Power. The group planned a legal attack not just on ExxonMobil, but also one aimed at many groups or individuals to which the company might donated over the past several decades. The AG from the U.S. Virgin Islands issued a particularly broad and intrusive subpeona to the free market think tank, the Competitive Enterprise Institute, demanding that it turn over “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.” This attack was clearly meant to intimidate and silence policy players who disagree with the climate consensus. CEI fought back, and the USVI AG backed down.

CEI suspects that the AGs United for Clean Power had worked/colluded with activist groups to devise their attack. So this past spring the think tank filed a Freedom of Information Law (FOIL) petition with Schneiderman’s office asking to see what are called Common Interest Agreements, that is, agreements to share information and other activities with the environmental groups and other AGs. Specifically CEI asked to see “copies of any Common Interest Agreement(s) entered into by the Office of Attorney General and which are signed by, mention or otherwise include any of the following: John Passacantando, Kert Davies, the Eco-Accountability Project, Matt Pawa, the Pawa Law Group, the Center for International Environmental Law, the Climate Accountability Institute, or theattorney general for any other U.S. state or territory, from the period of January 1, 2016 through the date this request was processed.”

Schneiderman’s office said no and so did a records appeal officer. CEI’s request was rejected on several grounds including that such agreements are privileged as attorney work product, confidential communications made between attorney and client, and the disclosure of which would interfere with law enforcement investigations or judicial proceedings. It is notable that a footnote in the administrative FOIL rejection states, “There are no agreements signed by the other entities and individuals listed in your request—i.e., John Passacantando, Kert Davies, the Eco-Accountability Project, Matt Pawa, the Pawa Law Group, the Center for International Environmental Law, orthe Climate Accountability Institute.”

CEI has now appealed to the Supreme Court of New York asserting that the none of grounds for rejecting the FOIL request are legitimate under New York law. We shall see.

CEI General Counsel Sam Kazman, in press release today, asks, “”What is AG Schneiderman’s office trying to hide?” He adds, “The public deserves to know what this AG, and the other AGs cooperating with him, agreed to when it came to targeting their political opponents, and that’s why we sought the Common Interest Agreement in the first place.”

In his article, “The Transparency Bullies,” my colleague Matt Welch cogently argued:

It is apparently necessary in 2016 to state what should be constitutionally and morally obvious: Criminalizing unpopular opinions in the name of progress is the work of dictators, not scientists. Giving politicians access to the inner workings of private groups engaged in policy analysis and advocacy will produce selective and nakedly political legal harassment. Today’s new powers exercised by Attorney General Harris will be tomorrow’s new enforcement tool exploited by President Donald Trump.

The United States—for the moment, anyway—enjoys a First Amendment bulwark against the illiberal fantasies of frustrated activists. Keeping the one-way transparency advocates at bay will be an important bellwether for the future of American freedom.

Disclosure: Over the years I have worked with several groups listed in the USVI subpoena, including CEI, on a wide variety of public policy issues relevant to resisting government encroachments into free markets, mostly not having anything to do with climate change. And I still own 50 shares of ExxonMobil stock that I bought with my own money.