How blue-state attorneys general tried and failed to silence their political opponents
Last year, Washington attorney general Bob Ferguson announced that he would be joining other blue-state attorneys general to investigate ExxonMobil and conservative groups that work on the issue of climate change. Though they claimed otherwise, the AGs’ goal was to chill opposition to costly and ineffective climate policies pushed by the environmental Left. And while he was not the public face of the effort, Ferguson’s actions are emblematic of how attempts to suppress speech manifest themselves in environmental policy.
In April 2016, a team of 17 AGs served subpoenas to ExxonMobil and two conservative groups, asking for a decade’s worth of work on climate and energy policy. The AGs also asked for information about the groups’ donors and put more than 100 other right-leaning groups on notice that they might be next. The nominal justification for the wide-ranging demand is to determine whether, in conjunction with sympathetic think tanks, “Exxon committed consumer and securities fraud stemming from the company’s challenging of the catastrophic climate change narrative.” Exxon, it was claimed, had mislead investors and the public by contributing to groups that questioned the extreme climate policies supported by left-wing environmental groups and the AGs.
One goal of the subpoenas was to intimidate political opponents into silence. Intimidation, of course, is best done quietly, and the AGs made a serious effort to keep their aggressive actions under cover. To ensure the public didn’t know what they were up to, they signed a Common Interest Agreement that blocked disclosure, instructing the signatories to “refuse to disclose any Shared Information unless required by law.”
Though my group was not a target of the investigation, I filed a public-records request for documents related to the case from Ferguson’s office. Despite Washington State’s very generous public-disclosure laws, I received 300 pages with redacted blocks as black as Jean Paul Sartre’s soul. When I tried to find out how much time and taxpayer money was being spent on this effort, I was told that it would be impossible to disaggregate the hours spent by associate AGs, and was provided only with general amounts that covered all time spent by lawyers on all issues.
The AGs will, of course, respond that while an investigation is ongoing, they have a right to protect their internal communication related to it. That argument, however, is undermined by their own emails, the process of their “investigation,” and the ultimate result, all of which show that they were abusing the power of their offices to engage in a political witch hunt.
A pledge was developed for AGs involved in the investigation and the lawsuit it threatened to produce. The pledge obligated signatories to “Support Progressive Federal Action,” and to “Provide legal support to progressive state and regional actions” on climate change. This was not a legal pledge. It was a political pledge. These public officials were using the power of the law to investigate political opponents.
Additionally, the group they chose to guide them is the overtly political Union of Concerned Scientists (UCS). A meeting for representatives of the various AGs’ offices included a UCS representative to provide information on the “imperative to take action now.”
I am familiar with the UCS and had the opportunity to attend a speech by its president, Ken Kimmell, when he visited Seattle in 2015. As former Chair of the Regional Greenhouse Gas Initiative (RGGI), the cap-and-trade system implemented in New England, Kimmell talked about “the successful northeastern/mid-Atlantic cap-and-trade program and the lessons it might offer as Washington considers its own cap-and-trade program.” He spent 30 minutes highlighting the “success” of the system. He declined to mention that it hadn’t cut carbon emissions one bit. Noting this, I asked Kimmell how he could claim RGGI was working. He quickly shifted gears, asserting that other elements, besides the cap, had worked. Of course, he hadn’t said that previously. He was there to promote a cap and he wasn’t going to let the facts spoil his appeal.
It was not the first time that UCS had distorted the truth to promote its agenda while claiming the objective mantle of science. If the group’s involvement with the lawsuit and the AGs’ pledge leave any doubt that this effort was simply an attempt to intimidate under pretense of investigating, consider the result. When the Competitive Enterprise Institute pushed back on a subpoena it had been served, the group of AGs dropped it almost immediately, which suggests that they never had a serious interest in bringing a case.
In a recent interview with the environmental blog Grist, Ferguson noted that “attorney general is the most consequential office in government,” saying he could do things “other politicians simply can’t.” But Washington’s citizens gave Ferguson such great power with the expectation that he would fairly and impartially uphold the law, not use it as a political weapon.
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