Andrew Grossman, Partner at BakerHostetler, explains the investigation of the fossil fuel industry and public policy groups skeptical of climate change by the Attorneys General of nineteen states. He underscores the importance of free speech in public policy debates on climate change. Mr. Grossman is also Counsel for the Competitive Enterprise Institute.
As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.
The Attorney General of New York has joined with 19 other State Attorneys’ General to launch a Multi-State criminal investigation focusing on whether ExxonMobil, other petroleum and energy companies as well as public policy institutions and scientists are engaged in some kind of racketeering enterprise to mislead the public on climate change. Most recently, as part of that Multi-State investigation, the Competitive Enterprise Institute received a wide ranging subpoena asking for all of its internal communications and external communications, internal documents, basically everything its ever done on climate change over a period of a decade. The prosecutors involved in this case are drawing on precedent of civil RICO claims that were brought against the tobacco industry in the 90’s and 2000’s. But this is very different. The tobacco industry there is arguably an effort to cover up what were very serious harms and defects with its products that that industry knew about. On the other hand, with climate change you’ve got this enormous, very wide ranging, ongoing decades long debate where the answers are still unclear in terms of exactly how it functions, what the different parameters are, the extent to which human anthropogenic emissions are relevant and the extent to which we might see catastrophic impacts or not and the extent to which we ought to respond preemptively in a policy fashion or not. Being targeted for a subpoena, being the subject of a lawsuit, having that cloud of legal uncertainty floating over your head is enough to intimidate and it’s enough to chill very important speech. Simply put, if we’re going to reach the right solutions for climate change, if we’re going to spend the right amount of money, if we’re going to have the right regulations and if we’re going to reach a policy that people agree is a reasonable and correct policy, the way we’re going to get there is by having a free and open and wide ranging debate, we’re not going to get there by artificially shutting down half the debate, by threatening people with criminal sanctions. This isn’t just about climate change, it’s about the way that we formulate public policy and the way that we participate in politics in the United States of America. We’ve always had the view in America that more speech is better but if you disagree with someone you don’t shut him up, you tell him why he’s wrong and you tell the public why he’s wrong.
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