Climate change bullies

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Declaring the need for “transformational” action on climate change as a settled question, Virgin Islands’ Attorney General Claude Earl Walker recently announced, “We cannot continue to rely on fossil fuel. Vice President Gore has made that clear.” (Glad that’s all settled!)

Walker was referring, of course, to the latest incarnation of regulation by litigation: An investigation into ExxonMobil (Exxon) and organizations deemed “climate change deniers” by nineteen Democratic and one Independent Attorneys General (including Walker and Massachusetts Attorney General Maura Healey), which seeks to punish climate change wrong-think.

Someone might want to tell Walker that the “transformational” action undertaken by these Attorneys General (known as “Green 20”) represents a threat to core constitutional commands of free speech, limited and constitutional government and the rule of law. What’s more, punishing Exxon for expressing concerns about climate change disincentivizes research and development and criminalizes the free exchange of ideas essential to the scientific method.

Intimations of this chilling campaign to establish “consensus” through intimidation first surfaced in the spring of 2015 when Sen. Sheldon Whitehouse called upon the Justice Department to bring civil RICO charges against those spreading heretical views on global warming, including the energy industry, trade associations and conservative policy institutes and scientists.

In September, right on cue with the presidential election campaign, letters from 20 climate scientists and two congressmen, Reps. Ted Lieu and Mark DeSaulnier, were sent to Attorney General Loretta Lynch asserting that Exxon “systematically misled the public” about climate change even while its research allegedly confirmed those dangers and urged her to launch a “federal probe” of Exxon, a request that was promptly endorsed by Democratic presidential candidates Bernie Sanders and Hillary Clinton.

Shortly thereafter, New York Attorney General Eric Schneiderman issued subpoenas and launched a state investigation under New York’s Martin Act and California Attorney General Kamala Harris launched a similar investigation.

The tone taken by these Attorneys General at their March 29th press conference with Al Gore reveals all. The calculated hysteria whipped up by Gore’s linkage of natural disasters and the spread of the Zika virus to climate change, was followed by the state AGs startling descriptors of their quarry—“morally vacant forces,” destroyers of this earth, planet destroyers, existential threats, deceivers! Walker announced his office’s launch of “an investigation into a company that we believe must provide us with information about what they knew about climate change, and when they knew it,” a catchy formulation that was a verbatim echo of New York Attorney General Schneiderman’s tone of climate McCarthyism.

This vituperative language raises questions about the impartiality and professional ethics of these public servants, not to mention questions about abuse of power. Gore thrummed a bass-line of “fraud” and sensationalized recent weather news as “a nature hike through the Book of Revelation.” Somehow the rise of new diseases that Gore never heard of when he was growing up can be attributed to fossil fuel use (junk science, anyone?). New York Attorney General Schneiderman spoke of billions and billions of dollars of damage.

Into the chaos of this orchestrated apocalypse, the Green 20 propose to save the day by correcting what they deem a legislative failure created by gridlock in Washington. Gore asserted “our democracy’s been hacked … but if the Congress really would allow the executive branch of the federal government to work, then maybe this would be taken care of at the federal level.”

The profound constitutional illiteracy demonstrated in that confused utterance by private citizen and non-lawyer Gore is, in fact, a bold confession that this minority coalition of state Attorneys General is engaged in a coordinated and lawless assault on state and federal constitutional separation of powers. Gore is tragically, ironically correct—our democracy is being hacked—by Gore and the Green 20.

It is perhaps heretical to note here that Citizen Gore is just that—a private citizen possessing zero scientific or legal credentials to lend any authority to his bizarre pronouncements. It is also perhaps heretical to point out that a state attorney general is the state’s lawyer — that, and no more — and his or her job is the enforcement of existing laws, not lawmaking.

The Wall Street Journal recently reported that the state AG investigation was hatched in January 2016 behind the closed doors of . . .the Rockefeller Family Foundation. Attendees included environmental activists who helped lead the successful block of the Keystone XL pipeline.

Sharon Eubanks, a Clinton administration DOJ veteran of the tobacco wars asserted at that meeting that a civil RICO lawsuit against Exxon is “viable.” The host foundation and attendees set as goals “to establish in public’s mind that Exxon is a corrupt institution that has pushed humanity (and all creation) toward climate chaos and grave harm.” Heightened language again.

Frustrated by what they see as inadequate legislative success, the group encouraged state AGs and the U.S. Justice Department to launch investigations and lawsuits to change Exxon’s conduct, pay damages, and finance entities with the correct views on climate change. Lee Wasserman, Director of the Rockefeller Family Fund opined, “It’s about helping the larger public understand the urgencies of finding climate solutions. It’s not really about Exxon.”

Where to begin? A campaign to expose Exxon as a corrupt institution is not about Exxon? An investigation against Exxon being reviewed by the FBI and urged upon U.S. AG Loretta Lynch by Hillary Clinton and Sen. Sheldon Whitehouse? A racketeering lawsuit against Exxon proposed by a DOJ lawyer? And this campaign is to be financed in part by the Rockefeller Family Fund heir to the Standard Oil (Exxon’s predecessor) fortune?

Lenin notably said that the capitalists will sell us the rope with which we will hang them. That the foundation funded by the wealth of Standard Oil is now hosting meetings that represent an intergenerational cycle of self-destruction is full of more ironies and dynastic dysfunction than can be unpacked in this space. But the tragicomic locus of planning of this coordinated attack does not affect just one imploding family, but an entire nation and its rule of law. To put it another way, if the Rockefeller heirs want to engage in state-assisted suicide, please don’t take the rest of us with you.

One of the few bright components of the post-recession economy is low fuel prices, an economic factor that impacts virtually every segment of an economy. The billions upon billions in damages sought by AG Schneiderman through this regulation by litigation will ultimately be paid by the American public in higher gas and fossil fuel prices—essentially an unlegislated tax on the very commodity the low price of which has helped fuel economic recovery. If we wish to impose a tax on fossil fuels—which Exxon supports—that is the sole province of a legislature—which incidentally does not need to pay contingency fees to anyone to pass. And a legislated carbon tax means that the people paying for it will be represented.

The current strategy of regulation by litigation, as it was named by Robert Reich, who also predicted its abuse, was first conceived (as Gore acknowledged) in the 1990s under the Clinton administration. This derogation of our constitutional order is typically fueled by unlawful and unconstitutional transfers of wealth and power from government officials to private attorneys, who typically subsidize the litigation in return for lavish contingency fees.

The phenomenon, conceived in hubris and steeped in corruption, occurs when a confederacy of state attorneys general, organized sectors of the bar, and advocacy groups collapse executive and legislative functions advancing novel theories of liability in order to legislate and tax heretofore lawful and (in this instance) constitutionally protected conduct.

Much has been written about the chilling effects upon First Amendment rights by this initiative. But this is an equally chilling betrayal of our structural constitution which limits the executive—the branch of government represented by all of these state AGs — to the enforcement of existing laws. To quote Al Gore: Our democracy is being hacked.

Peggy Little is a lawyer and the Director of the ProBono Center of the Federalist Society for Law & Public Policy Studies. A version of this column originally appeared on the Federalist Society’s website.