Alex Epstein had a three-word response after learning this week that Massachusetts Attorney General Maura Healey had included him in her investigation into climate change “fraud”: Buzz off, fascist.
Only he didn’t say “buzz.”
Mr. Epstein is a proud fossil fuel advocate, a believer that the benefits from cheap, reliable energy are more than offset by any still-under-debate problems from rising carbon dioxide in the atmosphere. His views are laid out in his 2014 book “The Moral Case for Fossil Fuels” (Penguin Random House).
For this, he finds himself on the prosecutor’s radar. His advocacy group, the Center for Industrial Progress, was named in an April 19 subpoena issued by Ms. Healey’s office demanding 40 years of communications between ExxonMobil and a dozen free market groups and universities.
ExxonMobil released a copy of the subpoena Wednesday as part of its motion for an injunction filed in U.S. District Court for the Northern District of Texas, in which the fossil fuel giant accused Ms. Healey of waging a politically motivated fishing expedition aimed at muzzling her ideological foes.
“Attorney General Healey is abusing the power of government to silence a speaker she disfavors,” said the motion.
Her office swung back Wednesday by accusing Exxon of engaging in “an unprecedented effort to limit the ability of state attorneys general to investigate fraud and unfair business practices and to protect Massachusetts consumers, investors and the public.”
The investigation centers on whether Exxon committed consumer and securities fraud stemming from the company’s challenging of the catastrophic climate change narrative.
“Our investigation is based, not on speculation, but on inconsistencies about climate change in Exxon documents which have been made public,” Healey spokeswoman Cyndi Roy Gonzalez said in the statement. “The First Amendment does not protect false and misleading statements in the marketplace.”
Ms. Gonzalez also called the point made by Exxon that it does not even do business in Massachusetts “completely preposterous” and “a clear attempt to delay and distract from the real issues.”
She was one of 17 attorneys general — 16 Democrats and one independent — who vowed at a March 29 press conference to use the system to pursue “fraud” allegations against fossil fuel companies and their supporters engaged in climate “denial.”
Ms. Healey said at the press event that “there’s nothing we need to worry about more than climate change.”
“Fossil fuel companies that deceived investors and consumers about the dangers of climate change should be, must be held accountable,” Ms. Healey said. “That’s why I too have joined in investigating the practices of ExxonMobil. We can all see today the troubling disconnect between what Exxon knew, what industry folks knew and what the company and industry chose to share with investors and with the American public.”
At least two other attorneys general at the press conference — New York’s Eric T. Schneiderman and the Virgin Islands’ Claude E. Walker — also have launched Exxon probes.
Exxon has moved to quash the Virgin Islands subpoena, which calls for documents and communications between the company going back 30 years with more than 100 think tanks, universities and academics.
Mr. Walker wound up dropping a subpoena in May against the Competitive Enterprise Institute, which is pursuing sanctions against the prosecutor. The institute is one of the dozen groups named in the Massachusetts subpoena against Exxon.
Institute President Kent Lassman said the latest subpoena “demonstrates the growing threat to the civil liberties posed by a multistate coalition of attorneys general who choose politics over the Constitution.”
“The fight to defend free speech and the ability of all Americans to pursue the issues they believe in is essential,” Mr. Lassman said.
Exxon, which announced in 2007 that it had stopped funding free market nonprofits, issued a statement Wednesday taking issue with the assertion that it has engaged in climate “denial.”
“The great irony here is that we’ve acknowledged the risks of climate change for more than a decade, have supported a carbon tax as the better policy option and spent more than $7 billion on research and technologies to reduce emissions,” said Exxon spokesman Alan Jeffers. “It should make people question what this is really all about.”
Critics of AGs United for Clean Power have accused the attorneys general of turning up the heat on Exxon in order to finagle a windfall along the lines of the 1998 Tobacco Master Settlement Agreement reached with the states, which guaranteed a payout of $206 billion over 25 years.
“What makes this even more ridiculous to my mind is that ExxonMobil has not denied that somehow climate change is not taking place,” said John Malcolm, director of the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation, which also was named in the subpoena.
“There is, however, a robust debate about what the cause of that is, how severe it is and what ought to be done about it,” Mr. Malcolm said. “It seems to me that the AGs here are going after a deep pocket and also going after, indirectly, those people who disagree with what is the politically correct view with respect to climate change.”
The other organizations named in the Massachusetts subpoena are the Acton Institute for the Study of Religion and Liberty, the American Enterprise Institute, Americans for Prosperity, the American Legislative Exchange Council, the American Petroleum Institute, the Beacon Hill Institute at Suffolk University, the George C. Marshall Institute, The Heartland Institute and the Mercatus Center at George Mason University.
The subpoena demands what Exxon described as millions of documents dating back to Jan. 1, 1976, although the company argued in its motion that the four-year statute of limitations on potential fraud charges would exclude the vast majority of the documents.
In its motion, Exxon also cited the coalition’s involvement with climate change advocates, who prepped the attorneys general in the hours before the New York press conference. Documents show climate change groups have been advocating for state legal action against climate “deniers” as far back as a 2012 conference in La Jolla, California.
According to Exxon, the collusion between the Democratic attorneys general and climate change advocates “unmask the investigation launched by the Massachusetts Attorney General for what it is: a pretextual use of law enforcement power to deter ExxonMobil from participating in ongoing public deliberations about climate change and to fish through decades of ExxonMobil’s documents in the hope of finding some ammunition to enhance the Massachusetts Attorney General’s position in the policy debate concerning how to respond to climate change.”
Some Republicans, including attorneys general and members of Congress, have blasted the Democrat-led coalition’s pursuit of climate “fraud” as an abuse of prosecutorial power.
Republicans on the House Science, Space and Technology Committee asked for information last month on the “coordinated efforts” against fossil fuel companies and climate skeptics by the attorneys general and climate groups. They have refused to comply with the request.
Meanwhile, Mr. Malcolm rejected the implication that Heritage Foundation scholars have challenged climate disaster scenarios in exchange for funding from fossil fuel companies.
“I don’t have any idea whether we receive a dime [from them],” said Mr. Malcolm. “But I can say this: Even if we did get money from them, the opinion of Heritage scholars are not bought and paid for. We would issue whatever opinions we would issue regardless of whether they gave us any money.”
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