A legal tug-of-war broke out this week as the attorneys general in New York and Massachusetts refused to comply with congressional subpoenas seeking documents about the states’ investigations into whether ExxonMobil misled consumers and investors about climate change.
Issued by House Science, Space and Technology Committee chairman Lamar Smith (R-Texas), the subpoenas against New York Attorney General Eric Schneiderman and Massachusetts Attorney General Maura Healey are part of a federal probe into whether the state officials are pursuing a political agenda against scientists and the oil and gas company.
In a statement on Wednesday, Smith said: “Their noncompliance only raises additional questions. As discussions with the individual subpoena recipients move forward, the committee will consider using all tools at its disposal to further its investigation.”
Representatives of the attorneys general said Friday they have not received any further communications with the House panel about the subpoenas.
The state officials characterized the federal subpoenas as unconstitutional and an unlawful fishing expedition that will interfere with legitimate state investigations. New York is currently looking into whether ExxonMobil has made misleading climate-change statements over the years that were in violation of that state’s laws governing securities, consumer and business fraud.
Smith, who has also subpoenaed documents from eight environmental groups, contends the attorneys general have taken it upon themselves to decide the validity of climate change. “The attorneys general are pursuing a political agenda at the expense of scientists’ right to free speech,” he said in the statement.
Lance Cole, director of the Center for Government Law and Public Policy Studies at Pennsylvania State University, told AMI Newswire that, although he couldn’t comment on the specifics of the House panel’s activities, such federal actions taken against state officials would be perfectly acceptable provided that a legitimate federal interest or federal law violation were involved.
“The general rule is that courts have given Congress very broad discretion in investigations,” Cole said, adding that courts are reluctant to intervene in such matters unless there are “egregious and unusual” circumstances.
In a letter to Smith this week, Richard Johnston, chief counsel for Healey’s office, argued that most of the records sought by the House panel are subject to attorney-client privilege or are attorney work products and so are protected from disclosure.
“Because the subpoena is unconstitutional and otherwise unlawful, Attorney General Healey respectfully objects to its issuance and declines to produce to the committee documents related to the office’s ongoing investigation of Exxon,” Johnston stated.
A letter by the counsel for Schneiderman’s office, Leslie Dubeck, charges that the House committee’s concerns about First Amendment violations are a pretense because the First Amendment does not protect against fraud.
“The subpoena brings us one step closer to a protracted, unnecessary legal confrontation, which will only distract and detract from the work of our respective offices,” Dubeck stated in the letter to Smith.
One of the environmental groups subpoenaed by the House panel, the Union of Concerned Scientists, also issued a statement charging that the subpoenas were an illegal intimidation tactic.
“We, and other advocacy groups, whatever their political perspectives or substantive agendas, are free to exercise the birthright of all Americans – the right to freely speak, to associate freely with whom we choose and to petition the government,” said Ken Kimmell, the organization’s president.
One private group, the Competitive Enterprise Institute, also weighed in from a different perspective. The institute, a nonprofit public policy group that advocates for limited government and free enterprise, at one point was subpoenaed by the Virgin Islands attorney general’s office, which has also been investigating ExxonMobil’s statements on climate change.
Myron Ebell, director of the institute’s Center for Energy and Environment, said in a blog post that environmental groups such as the Union of Concerned Scientists had previously encouraged the attorneys general to violate the First Amendment rights of other private groups through their subpoena power in investigating climate-change statements.
Nevertheless, Ebell said he wasn’t certain that the House panel’s subpoenas should have been issued to private groups, arguing that, while Congress has the power to probe violations of constitutional rights, it should concentrate on the state officials rather than private organizations.