Two state attorneys general investigating ExxonMobil and a number of nongovernmental advocacy groups said they will defy subpoenas issued by the chairman of the House Science Committee that demand documents pertaining to the ongoing climate fraud investigations of the oil giant.
Massachusetts Attorney General Maura Healey called the subpoena sent by committee chairman Rep. Lamar Smith a "dangerous overreach by the Committee and an affront to states' rights."
New York Attorney General Eric Schneiderman also came out swinging—both delivered the unmistakable message they intend to be formidable adversaries.
The all-out refusal to turn over records and the combative tone of the letters is a stinging, yet not unexpected, rebuke of Smith, the Texas Republican who has a history of questioning the consensus on climate change. It now leaves Smith to consider his next move in an escalating political and possible legal fight over what some see as partisan attempts to shield Exxon from mounting scrutiny of its climate record.
The advocacy groups' formal responses to Smith were more measured, but expressed their contempt in statements and interviews after notifying Smith of their decisions.
Annie Leonard, executive director of Greenpeace USA, called Smith's investigation "as meritless as his position on climate change."
"The American people know this Congressional subpoena is Rep. Smith's signature move to turn attention away from the real issue at stake, which is the investigations into Exxon's climate denial," she said.
"If Rep. Smith or his Republican colleagues on the House Committee on Science, Space and Technology were really acting on behalf of the people and not the fossil fuel industry, they would have joined the call for the Department of Justice to investigate."
Smith's office did not respond to a request for comment. But in a published statement attributed to a spokeswoman, Smith said he was prepared to press the fight.
"These actions only raise additional questions about why the AGs refuse to be open and honest about their coordination with environmental extremist groups," according to the statement.
"The Committee will use all tools at its disposal to further its investigation."
Smith and industry groups contend that the probes amount to a crusade against scientific debate and those who do not believe in climate change.
An Escalating Feud
The stage was set for this standoff in May when 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.
When no one complied, Smith made two subsequent requests. Each time, the advocacy groups fired back that Smith was overstepping the panel's jurisdiction in order to conduct what they consider a biased fishing expedition that threatens the groups' First Amendment rights to freedom of speech and association. The attorneys general bristled and vowed to press on with investigations of Exxon and other fossil fuel companies.
That led him to issue the subpoenas two weeks ago.
Healey and Schneiderman responded with an explicit "no" to the demand.
Schneiderman's letter reiterates that New York is engaged in a fraud investigation of Exxon and that the First Amendment does not give any corporation the right to commit fraud.
"The Subpoena is an unprecedented effort to target ongoing state law enforcement "investigation[s] or potential prosecution[s]," according to the letter signed by Leslie Dubek, an attorney in Schneiderman's office.
"If enforced, the Subpoena will have the obvious consequence of interfering with the NYOAG's investigation into whether ExxonMobil made false or misleading statements in violation of New York's business, consumer, and securities fraud laws."
Schneiderman said if Smith seeks to enforce the subpoena, the full 39-member committee—22 Republicans and 17 Democrats— should consider the need for such action. He also said he is willing to participate in discussions with the committee, an olive branch also extended by Healey and many of the advocacy groups who believe that would be an opportunity to educate the skeptics on the committee about the dangers of climate change.
"While the NYOAG will not allow a Congressional investigation to impede the sovereign interests of the State of New York, this Office remains willing to explore whether the Committee has any legitimate legislative purpose in the requested materials that could be accommodated without impeding those sovereign interests," the letter said.
Healey echoed Schneiderman's argument that Congress cannot interfere with state investigations.
"Compliance with the subpoena would eviscerate Attorney General Healey's ability to conduct an ordinary and lawful investigation," according to the letter to Smith signed by Richard A. Johnston, an attorney for Healey.
Healey goes on to tout her state as a leader in addressing the threat of climate change and attacks Exxon's years of obfuscation of the climate issue.
"Despite its research and knowledge, Exxon appears to have engaged with other fossil fuel interests in a campaign from at least the 1990s onward to prevent government action to reduce greenhouse gas emissions," according to the letter.
Groups Join Defiant Stance
Many of the nine nongovernmental agencies targeted by the subpoenas reiterated their First Amendment rights to disseminate information related to climate change without the threat of government investigation.
"The subpoena makes no allegation of wrongdoing on the part of [the Union of Concerned Scientists], and UCS is determined to defend its constitutional rights to peaceful assembly with likeminded groups, to petition the government, and to free speech on the issue of climate change and other public matters," according to the letter from Neil Quinter, an attorney representing UCS.
An attorney representing the Global Warming Legal Action Project and the Pawa Law Group, two of the nongovernmental organizations targeted by Smith, said the Congressman failed to justify the demand's jurisdictional or legislative foundation.
"Your subpoenas target communications by environmental protection groups and lawyers whom you accuse of trying to 'demonize the fossil fuel industry,'" according to the letter written by Catherine S. Duval.
"But disagreement with advocacy groups or their tactics is not a legally sufficient reason to subpoena their confidential communications."
Robert Collings, a former Environmental Protection Agency attorney now in private practice in Philadelphia who has represented clients in Congressional hearings, said Smith faces a tough fight to compel compliance by Schneiderman and Healey.
"Acting in their capacity law enforcement investigators, the AGs are protected by constructional guarantees that allow the states to exercise their own power of investigation and due process and denies the congress the ability to pry into that," Collings said.
Smith would have to argue that the interests of the country are at stake, such as protecting interstate commerce, Collings said.
The nongovernmental organizations have no such state-powers defense, he said. That makes them more vulnerable to court-ordered compliance, but Smith would still have to convince a judge that Congress's right to the information outweighs the group's First Amendment rights to freely communicate.
"In the end Lamar Smith is going to have to make a compelling argument that Congress really needs this information for them to do their duties," he said.