In an increasingly tense standoff, the chairman of the House Science Committee said he might seek a subpoena to force state attorneys general and nongovernmental advocacy groups to hand over documents concerning their discussions of ExxonMobil, climate change, and the ongoing investigations of the oil giant.
Rep. Lamar Smith, the Republican chairman of the science committee, sent a letter Wednesday to two attorneys general and six non-governmental groups. In it, he reiterated his assertion of the committee's investigative authority and claimed it could compel compliance with its far-reaching demands.
"If you continue to refuse to provide information responsive to the Committee's requests on a voluntary basis, I will be left with no alternative but to utilize the tools delegated to the Committee by the Rules of the House of Representatives," Smith wrote.
"Specially, the Committee will consider use of compulsory process to obtain responsive documents in the possession, custody, or control of your office."
Smith, who was the sole signer of the letter, set July 13 as the deadline for the organizations to comply.
A press release issued by the committee asserted probes underway of the fossil fuel industry and its allies denied them their "First Amendment rights and their ability to fund and conduct scientific research free from intimidation and threats of prosecution."
In May, 13 Republican members of the committee sent letters to 17 state attorneys general and eight environmental groups and nonprofits. They demanded thousands of records on whether the groups and the state attorneys general worked together in coordinating probes of Exxon or other fossil fuel companies.
That letter appeared to be a counterpunch to the announcement weeks earlier that the 17 Democratic attorneys general had formed a coalition organized by New York State Attorney General Eric Schneiderman to hold fossil fuel companies accountable for their conduct regarding climate change.
The response Smith got was stiff resistance to, not cooperation with his demands.
The advocacy groups objected that Smith was overstepping the panel's jurisdiction to conduct a partisan fishing expedition while threatening the groups' First Amendment rights to free speech and association.
The attorneys general vowed to press on with investigations of Exxon and other fossil fuel companies, saying that Smith was infringing on the power of the states to enforce their laws.
Exxon is the target of investigations by attorneys general in New York, Massachusetts and California. The attorney general for the U.S. Virgin Island last week withdrew a sweeping subpoena seeking Exxon records.
In Smith's latest follow-up demand for records to attorneys representing the Union of Concerned Scientists (UCS), one of the non-governmental organizations initially targeted by the committee, Smith argued the organization had surrendered its First Amendment defense.
Specifically, Smith said because the organization participated in a recent forum sponsored by the House Progressive Caucus called "Oil is the New Tobacco," and acknowledged assisting the attorneys general coalition, UCS could not use that shield.
"It appears that your client has no First Amendment concerns providing information to Members of the House Progressive Caucus; yet, continually and improperly refuses to provide any information to this Committee," according to the letter to UCS attorneys.
"That your client appears to have cast aside any First Amendment concerns when interacting with the Members of the House Progressive Caucus, but purports to be unwilling to provide this Committee similar information is, at minimum, concerning."
Peter Frumhoff, director of science and policy for UCS, called it "ludicrous" for Smith to assert that engaging in a public forum means casting aside the right of free speech.
"We are happy to share our scientific evidence and evidence of deception by Exxon and other fossil fuel companies with anybody, including Congress and attorneys generals," he said in an interview with InsideClimate News.
But Frumhoff said Smith is seeking privileged communications between UCS, investigators and scientists that is protected by the First Amendment.
"The rationale for private correspondence is a non sequitur," he said.
He also said UCS has responded to each of Smith's letters and is not intimidated by the threat of a subpoena.
"I think it's unfortunate, and he (Smith) will have to decide on the future course," he said. "We will respond appropriately at the appropriate time."
In his letter to the attorneys general for New York and Massachusetts, Smith said their failure to cooperate was "a deliberate attempt to mask the true purpose of your investigation."
Smith suggested the subpoenas issued by the two states could sweep up climate research by university scientists and non-profit organizations.
"Characterizing your investigation as solely focused on Exxon and its statements is a misrepresentation," the letter said. "Protecting the ability of these scientists and all scientists to conduct research uninhibited by the potential adverse effects of investigations by law enforcement is a goal of this Committee."
Eric Soufer, a spokesman for Schneiderman, said Schneiderman has previously made it clear to Smith that the committee has no authority to meddle with a state law enforcement investigation.
"Once again, the climate change-denying Republican chair of the science committee has been unable to articulate any credible legal basis for interfering with a sovereign state's fraud investigation," Soufer said.
"New Yorkers have the right to the full protection of their state's consumer, business, and securities fraud laws, and Attorney General Schneiderman will continue to hold every company—no matter how big or powerful—to that standard."
Eddie Bernice Johnson, a Democrat and ranking committee member, also has lambasted Smith over his zealous pursuit of his investigation, calling it an "illegitimate exercise of Congressional oversight power."
"The Committee's prolific, aimless, and jurisdictionally questionable oversight activities have grown increasingly mean-spirited and meaningless. They frequently appear to be designed primarily to generate press releases," Johnson said in a letter June 23 calling on Smith to abandon his investigation.