This column by ACRU Policy Board member Hans von Spakovsky and Tiger Joyce was published May 26, 2016 by National Review.
Progressive government officials have launched an Orwellian effort to outlaw research that dares question the soundness of computer-predicted climate catastrophes or costly policy proposals aimed at mitigating climate change.
Much has been written about how this attempt to criminalize inquiry and debate threatens fundamental First Amendment and due process rights. But how they are going about it is equally troubling.
Some state attorneys general are hiring profit-seeking, private-sector personal-injury lawyers to do their legal dirty work. Moreover, any contingency fees collected by these lawyers through settlements arising from these cases could be used, in part, to fund the campaigns of allied politicians who embrace the “one, true belief” of man-made global warming.
This is more than an attempt to suppress political and scientific dissent. Deputizing self-interested personal-injury lawyers with the awesome power of the state subverts the public interest.
We have seen this unseemly dynamic in action before. Two years ago, a Pulitzer Prize–winning New York Times series focused on the business model of the class-action specialists at Cohen Milstein, a law firm that seeks to create “big paydays by coaxing attorneys general to sue” large, sometimes politically unpopular corporations or industries. The firm brags about being the “most effective law firm in the United States for lawsuits with a strong social and political component.” Deputizing self-interested personal-injury lawyers with the awesome power of the state subverts the public interest.
By e-mail, a Cohen Milstein spokeswoman said the firm did not participate in a then-secret but now widely reported Manhattan meeting of climate-change activists and political operatives in January. But it certainly appears as though the class-action bar’s interests were well represented during the discussions.
A draft agenda for the meeting obtained by the Washington Free Beacon, shows a determination to use their powers to push a political agenda. Among their goals: “To establish in public’s mind that Exxon is a corrupt institution that has pushed humanity (and all creation) toward climate chaos,” and “To drive Exxon and climate into center of 2016 election cycle.” But money is a big motivator as well.
Fox News reported that an e-mail from U.S. Virgin Islands attorney general Claude Earl Walker was most enthusiastic about “identifying other potential litigation targets” and ways to “increase our leverage.” An $800 million settlement from Hess Oil Company has apparently only whetted Walker’s appetite for squeezing money out of big oil. And the beauty of this win, he noted, was that the settlement money was used to create an “environmental response trust” — so that they can keep the lawsuits coming.
On cue, at a March 29 news conference, New York attorney general Eric Schneiderman announced a newly formed cabal of state AGs that would investigate — and possibly prosecute — corporations that contribute to research organizations whose work expresses skepticism about man-made climate change and the multi-trillion-dollar policy “cures” prescribed by global-warming warriors.
The “AGs United for Clean Power,” Schneiderman said, decided to “step into this battle with an unprecedented level of commitment and coordination” against “well-funded, highly aggressive and morally vacant forces that are trying to block every step by the federal government to take meaningful action” against climate change [emphasis ours].
Speaking of morally vacant, where on the moral spectrum might these inquisitors locate the shredding of the Constitution? Do they believe their power to hire political patrons, issue government subpoenas, and impose mounting legal expenses, fines, and settlements on inconvenient climate heretics is divinely derived?
Which brings us back to Claude Walker and Cohen Milstein. One of the “AGs United,” Walker hired the firm to investigate possible violations of the Virgin Islands’ version of the federal Racketeer Influenced and Corrupt Organizations Act (RICO) — the statute famously used to prosecute the Mafia in the 1970s. Cohen Milstein’s first act was to unleash subpoenas on ExxonMobil and the Competitive Enterprise Institute, seeking decades’ worth of climate-change research and communications with scores of third-party think tanks, foundations, universities, scientists, and others.
But ExxonMobil and CEI are fighting back. They argue that Walker’s delegation of prosecutorial power to profit-seeking private-sector lawyers and the burdensome subpoena demands violate their constitutional rights to free speech, freedom from unreasonable searches and seizures, and due process of law. And they’ve gotten a governmental boost of their own.
The attorneys general of Alabama and Texas are now seeking to intervene in the case on ExxonMobil’s behalf, arguing that Cohen Milstein’s “contingency fee arrangements [with Walker] cut against the duty of impartiality by giving the attorney that represents the government a financial stake in the outcome.”
We can’t know how the courts will ultimately decide these issues. But we do know that pay-to-play relationships between state attorneys general and the plaintiffs’ lawyers they help enrich (and upon whom they then rely for campaign support) are inherently corrupting. Efforts to crush climate-change dissent for political and financial gain is a disgraceful assault on the Constitution — one that should offend every American who cherishes the freedoms enshrined within it.