May free speech reign and scientific inquiry prevail

Category: Editorials Editorials
Published: 05 July 2016 05 July 2016

Throughout the past four years, climate change activists have been secretly coordinating with one another regarding ways to prosecute individuals, organizations, and companies that are their ideological foes. They met to develop a strategy to use RICO (Racketeer Influenced and Corrupt Organizations Act), which was intended to provide stronger weapons for prosecuting organized crime, against those who speak out against the Obama administration's war on fossil fuels.

More recently, the activists, including Naomi Oreskes and Bill McKibben, have coordinated with Attorneys General (AG) culminating with a March 29 press conference, led by New York AG Eric Schneiderman and joined by former Vice President Al Gore. There the "unprecedented coalition"'as Schneiderman's press release called it'was announced: the newly formed AGs for Clean Power. Though "vague" on their specific plans, 17 AGs (16 Democrats and 1 Independent) have, as the Huffington Post reported: "committed to pursuing an all-levers approach" to, as Gore said: "hold to account those commercial interests that have been, according to the best available evidence, deceiving the American people, communicating in a fraudulent way."

ExxonMobil has been the first and most obvious target. While the RICO Act is federal legislation passed in 1970, more than two dozen states have "Baby RICO" laws'which are, according to InsideClimateNews.org, "broader than the federal version."

Four different investigations claiming that Exxon conspired to cover up its understanding of climate science have been launched. Schneiderman was the first. Last November, he issued a subpoena demanding: "that ExxonMobil Corporation give investigators documents spanning four decades of research findings and communications about climate change." In January, the Los Angeles Times announced: "California Atty. Gen. Kamala D. Harris is investigating whether Exxon Mobil Corp. repeatedly lied to the public and its shareholders about the risk to its business from climate change'and whether such actions could amount to securities fraud and violations of environmental laws." On April 19, Massachusetts AG Maura Healey opened an investigation to seek "information regarding whether Exxon may have misled consumers and/or investors with respect to the impact of fossil fuels on climate change, and climate change-driven risks to Exxon's business." Just days after the March 29 press conference, Virgin Islands' AG Claude Walker, in his demand for records, became the first to cite the racketeering law to "probe Exxon over its longtime denial of climate change and its products' role in it." Additionally, he listed roughly 100 academic institutions and free market think tanks in his subpoena. The National Review reports that Walker promised a "transformational" use of his prosecutorial powers in the global-warming crusade. Separately, Walker also subpoenaed records from the respected Washington DC think tank, the Competitive Enterprise Institute (CEI). Schneiderman and Healey have also requested records from research and advocacy groups. Harris, who is running for the Senate seat to be vacated by retiring Senator Barbara Boxer (D-CA), "isn't expected to do much in terms of investigating Exxon," according to the Daily Caller.

The Free Beacon references "internal documents" stating that the goals of the larger campaign are:

  • "delegitimize [ExxonMobil] as a political actor,"
  • "force officials to disassociate themselves from Exxon,"
  • "drive divestment from Exxon," and
  • "to drive Exxon & climate into center of 2016 election."

'The Wall Street Journal (WSJ) adds:

  • "to establish in the public's mind that Exxon is a corrupt institution that has pushed humanity (and all creation) toward climate chaos and grave harm."

Despite the attacks on Exxon, WSJ quotes Lee Wasserman, director of the Rockefeller Family Fund'one of the foundations behind the crusade'as saying: "It's not really about Exxon." Instead: "It's about helping the larger public understand the urgencies of finding climate solutions."

Senator Sheldon Whitehouse (D-RI), who has long advocated that the Department of Justice (DOJ) investigate whether Exxon and other fossil fuel companies violated the RICO statute by disputing the role of fossil fuel burning in global warming, at a recent hearing, asked Attorney General Loretta Lynch if she'd considered using RICO against fossil fuel companies. She replied: "This matter has been discussed. We have received information about it and have referred it to the FBI to consider whether or not it meets the criteria for which we could take action on."

WSJ reports: "The new legal theory has yet to gain momentum within the Justice Department, according to officials familiar with internal discussions. But after prodding by lawmakers, the Federal Bureau of Investigation is conducting a preliminary review."

Even legal scholars, such as Columbia Law School professor Merritt B. Fox, who, according to Reuters, agrees with the importance of climate change, expressed skepticism about the legal strategy of the prosecutors: "The market was well supplied with information about climate change from a variety of sources." Reuters adds: "investors get information on climate change from many sources and Exxon would probably not be able to alter the G

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