#ExxonKnew Rally a Bust, Legal Experts Eviscerate Campaign’s Claims at Science Committee Hearing

Judging from what went down at yesterday’s Science Committee hearing on Congressional oversight of state attorneys general involved in ExxonMobil climate RICO investigations, activists who have staked pretty much their entire careers on the #ExxonKnew campaign clearly haven’t gotten the memo that #ExxonKnew is dead.

Even in an activist-friendly place like Washington, DC they were only able to get about 20 people to attend their pre-hearing rally. So they essentially preached to the choir, rehashing the old chestnut comparison of ExxonMobil with Big Tobacco, which even New York Attorney General Eric Schneiderman has completely abandoned (he’s now saying his investigation is not about what Exxon knew but what it “predicts”).

At the hearing itself, they spent their time tweeting snarky comments about Science Committee Chairman Lamar Smith’s views on climate change and working themselves into a frenzy about #ExxonKnew, while witness after witness took New York Attorney General Eric Schneiderman and the other AGs to the woodshed. The coup de grace was delivered by “liberal law professor” Jonathan Turley, who said these RICO climate investigations “go too far,” and clearly “contravene academic freedom and free speech.”

At this point, the #ExxonKnew campaign is akin to that story of Hiroo Onoda, the Japanese soldier who got separated from this unit and kept fighting for 29 years, refusing to accept that World War II was over. Even Schneiderman has left #ExxonKnew for dead – but activists are still in the denial phase, refusing to let go.

Only 20 activists show up for pre-hearing #ExxonKnew rally

Among the 20 people in attendance at the pre-hearing rally were several key players in the #ExxonKnew campaign, including Sharon Eubanks, Bradley Campbell, Kert Davies, Jamie Henn, and Carroll Muffett, all of whom attended the secret strategy meeting at the Rockefeller Family Fund offices in January of this year.

exxonknew-rally

About 20 activists showed up for the pre-hearing #ExxonKnew rally

Eubanks led the Department of Justice’s tobacco litigation effort in the 1990s and has been active in the press on #ExxonKnew. Campbell is head of the Boston-based Conservation Law Foundation, which has issued its own lawsuit against ExxonMobil and has had many of its staffers move over to the Massachusetts AG’s office. Davies is the creator of Greenpeace’s ExxonSecrets website, which served as the template for the U.S. Virgin Island’s subpoena to Exxon. Jamie Henn is the co-founder of 350.org, #ExxonKnew’s biggest cheerleader, and Muffett leads the Center for International Environmental Law, which periodically repackages old documents to push the claim that Big Oil is the new Big Tobacco.

Legal experts say #ExxonKnew investigations “go too far,” “contravene academic freedom and free speech”

One of the witnesses at the hearing was Prof. Jonathan Turley of George Washington University Law School, whom Politico Pro called a “liberal law professor” and “a well-known liberal critic of executive-branch overreach.” At and ahead of the hearing, Turley emphasized the fact that he has long advocated for action on climate change, but what the attorney generals are doing is taking it legally a step too far:

I have been a long advocate for action in combating climate change and that I believe the failure to take such action will have dire consequences for our country. Indeed, I agree with President Barack Obama in his effort to pursue remedial measures on climate change and voted for him in 2008 in part due to his position on this issue. However, I have not been called as a scientific but as a constitutional expert. The use of the subpoena authority to compel the disclosure of information from state attorneys general raises a number of novel constitutional issues, and the objections raised by the attorneys general are not frivolous, particularly with regard to federalism and free speech concerns. However, in my view, their threshold challenge of congressional authority to force such disclosure is fundamentally flawed, and this Committee clearly has the authority under Article I of the Constitution to demand compliance with its subpoenas.” (emphasis added)

Turley went on to say at the hearing,

“Indeed I think that for public interest groups, many of which I support, the arguments go too far. For these groups this amounts to sawing off the branch you’re sitting on. Because the arguments being made against the committee are the same arguments that were made against the original investigation in terms of countermanding free speech, associational rights and the like.” (emphasis added)

As for the attorneys general themselves, Turley noted,

“And I don’t think that the state attorneys general are trying to [return to a McCarthy-era ‘Red Scare’). I do think that they have been incautious. I do think that what they have done contravenes academic freedom and free speech, even though I agree with their position on climate change.” (emphasis added)

Elizabeth Price Foley, a constitutional law professor at Florida International University College of Law, also testified before the committee, noting that she doesn’t “see a valid legal objection to the subpoena” and that the only explanation for Schneiderman’s refusal to turn over documents “is politics.”

When asked for her view on the AGs’ investigations, Foley said,

“When the attorneys general used their prosecutorial power to investigate scientists because the scientists are not embracing an orthodox view of climate change or anything else – that is an abuse of prosecutorial power.” (emphasis added)

A few weeks ago, Foley published an article in the Wall Street Journal noting,

“New York Attorney General Eric Schneiderman claimed, in a July 13 letter to Mr. Smith, that the committee was ‘courting constitutional conflict’ by failing to show ‘a due respect for federalism.’ Massachusetts Attorney General Maura Healey, in a similar letter dated July 26, asserted that the subpoenas are ‘unconstitutional’ because they are ‘an affront to states’ rights.’

This view is utterly wrong. Federalism is a critical component of the constitutional architecture. The federal government exercises only limited and enumerated powers, and the states, under the Tenth Amendment, possess all other powers ‘not delegated to the United States.’ But when the federal government acts within its delegated powers, it is entitled to supremacy over the states.

The Supreme Court has long recognized Congress’s power to investigate any matter within its legislative or oversight competence. With that comes a corresponding power to enforce its inquiries. The justices wrote in Barenblatt v. U.S. (1959) that the scope of Congress’s power of inquiry ‘is as penetrating and far-reaching as the potential power to enact and appropriate under the Constitution.’” (emphasis added)

Fact checking #ExxonKnew allies’ claims

There are a few claims made by #ExxonKnew allies that deserve a bit of scrutiny. Notably, Rep. Katherine Clark (D-MA) moved to enter a petition into the record that she said had “32,000 signatures of citizens in opposition to what we are doing today.” But as Chairman Lamar Smith (R-TX) pointed out, “that was an online petition where one individual could sign up a thousand different names and we had such people on that petition like Karl Rove, who I doubt seriously would have signed it,” as well as scores more from cities that don’t even exist.

Rep. Perlmutter (D-CO) was so adamant against the Science Committee’s subpoena of Schneiderman that he barely allowed Foley to respond to the questions he was asking her. But what Perlmutter didn’t mention is that some his own constituents have been targets of the state AGs’ investigations. The Mountain States Legal Foundation, a Denver-based think tank, was among the nearly 100 groups singled out in the U.S. Virgin Islands Attorney General’s now-retracted subpoena.

On that point, Perlmutter’s challenger, George Athanasopoulos, put out a press release noting,

“This video is proof that he does not represent his constituents from Lakewood, the Mountain States Legal Foundation, or the best interest of Coloradans. Instead, he proudly sides with out-of-state Attorneys General, including New York Attorney General Eric Schneiderman, the leader of this left-wing conspiracy of intimidation.”

Follow the money

Many #ExxonKnew campaign sympathizers brought up fossil fuel funding but, of course, made no mention of the millions of dollars that have been poured into the #ExxonKnew campaign itself, as well as Schneiderman’s own campaign for attorney general.

Schneiderman has received nearly $264,000 in campaign donations from a variety of interests involved in the #ExxonKnew campaign, including members of the Rockefeller family; lawyers from Cohen Milstein, the law firm that issued the now retracted subpoena from the U.S. Virgin Islands Attorney General’s Office; and George Soros’ family, which has poured money into many of the foundations that fund the environmental groups behind the campaign. Soros’ Open Society Foundations funds the Rockefeller Family Fund, the Union of Concerned Scientists and the Columbia School of Journalism Energy and Environment Reporting Fellowship, which helped spark Schneiderman’s investigation last year with a series of anti-Exxon articles.

That’s not all. As the New York Post reported this week, Schneiderman may have used his investigation of ExxonMobil as a hook to secure campaign funding from billionaire environmental activist Tom Steyer for his upcoming run for governor. As the Post puts it,

In March 2016, four months after announcing the Exxon probe, the Democratic AG tried to arrange a phone meeting with hedge-fund mogul Tom Steyer, an environmental activist and Exxon enemy.

Eric Schneiderman would like to have a call with Tom regarding support for his race for governor . . . regarding Exxon case,” reads the March 10 e-mail. (emphasis added)

The Energy & Environment Legal Institute (E&E Legal), which released these documents yesterday, also noted that the emails show that Steyer’s group, NextGen Climate, has been working closely with the Democratic Governors Association (DGA) to attack “climate deniers” amid Schneiderman’s #ExxonKnew investigation.

The legal experts at the hearing couldn’t be clearer that the #ExxonKnew claim and the AGs’ refusal to turn over documents do not stand up to the rule of law. It’s no wonder that Schneiderman was forced to abandon #ExxonKnew. Now the question is: when will #ExxonKnew activists accept the fact that their campaign is dead?

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  1. […] Price Foley, a constitutional law scholar who testified at a House Science Committee hearing last week, wrote a piece for the Federalist Society’s blog supporting the Committee […]

  2. […] Price Foley, a constitutional law scholar who testified at a House Science Committee hearing last week, wrote a piece for the Federalist Society’s blog supporting the Committee Chairman’s […]

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