New York

Climate Change Court Drama: What Does New York's Attorney-General Have to Hide?

Competitive Enterprise Institute sues NYAG Eric Schneiderman for a little Freedom of Information


Monkey Business Images/Dreamstime

New York Attorney-General Eric Schneiderman, as I reported earlier, issued subpoenas to oil giant ExxonMobil last fall demanding that it turn over internal communications regarding what the company knew about the risks of climate change. Schneiderman says that he wants to find out if the oil company fraudulently misled its investors with regard to how man-made climate change would affect its financial prospects.

This effort at legal intimidation then morphed into a group effort with more than a dozen Democratic state attorneys-general who anointed themselves AGs United for Clean Power. The group planned a legal attack not just on ExxonMobil, but also one aimed at many groups or individuals to which the company might donated over the past several decades. The AG from the U.S. Virgin Islands issued a particularly broad and intrusive subpeona to the free market think tank, the Competitive Enterprise Institute, demanding that it turn over "a decade's worth of communications, emails, statements, drafts, and other documents regarding CEI's work on climate change and energy policy, including private donor information. It demands that CEI produce these materials from 20 years ago, from 1997-2007, by April 30, 2016." This attack was clearly meant to intimidate and silence policy players who disagree with the climate consensus. CEI fought back, and the USVI AG backed down.

CEI suspects that the AGs United for Clean Power had worked/colluded with activist groups to devise their attack. So this past spring the think tank filed a Freedom of Information Law (FOIL) petition with Schneiderman's office asking to see what are called Common Interest Agreements, that is, agreements to share information and other activities with the environmental groups and other AGs. Specifically CEI asked to see "copies of any Common Interest Agreement(s) entered into by the Office of Attorney General and which are signed by, mention or otherwise include any of the following: John Passacantando, Kert Davies, the Eco-Accountability Project, Matt Pawa, the Pawa Law Group, the Center for International Environmental Law, the Climate Accountability Institute, or theattorney general for any other U.S. state or territory, from the period of January 1, 2016 through the date this request was processed."

Schneiderman's office said no and so did a records appeal officer. CEI's request was rejected on several grounds including that such agreements are privileged as attorney work product, confidential communications made between attorney and client, and the disclosure of which would interfere with law enforcement investigations or judicial proceedings. It is notable that a footnote in the administrative FOIL rejection states, "There are no agreements signed by the other entities and individuals listed in your request—i.e., John Passacantando, Kert Davies, the Eco-Accountability Project, Matt Pawa, the Pawa Law Group, the Center for International Environmental Law, orthe Climate Accountability Institute."

CEI has now filed an appeal filed a petition in the Supreme Court of New York to compel production of any Common Interest Agreements, asserting that none of the grounds for rejecting the FOIL request are legitimate under New York law. We shall see.

CEI General Counsel Sam Kazman, in press release today, asks, ""What is AG Schneiderman's office trying to hide?" He adds, "The public deserves to know what this AG, and the other AGs cooperating with him, agreed to when it came to targeting their political opponents, and that's why we sought the Common Interest Agreement in the first place."

In his article, "The Transparency Bullies," my colleague Matt Welch cogently argued:

It is apparently necessary in 2016 to state what should be constitutionally and morally obvious: Criminalizing unpopular opinions in the name of progress is the work of dictators, not scientists. Giving politicians access to the inner workings of private groups engaged in policy analysis and advocacy will produce selective and nakedly political legal harassment. Today's new powers exercised by Attorney General Harris will be tomorrow's new enforcement tool exploited by President Donald Trump.

The United States—for the moment, anyway—enjoys a First Amendment bulwark against the illiberal fantasies of frustrated activists. Keeping the one-way transparency advocates at bay will be an important bellwether for the future of American freedom.

Disclosure: Over the years I have worked with several groups listed in the USVI subpoena, including CEI, on a wide variety of public policy issues relevant to resisting government encroachments into free markets, mostly not having anything to do with climate change. And I still own 50 shares of ExxonMobil stock that I bought with my own money.

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  1. CEI has now appealed to the Supreme Court of New York asserting that the none of grounds for rejecting the FOIL request are legitimate under New York law. We shall see

    If it is only at the Supreme Court, there are two more layers of appeals after that inside the state alone. There’s the Appellate Divison of the Supreme Court and the Court of Appeals. the NYS Court of Appeals is in the role most people think of when they hear the name “Supreme Court”. Yes, New York State screws up even the most basic things.

    1. And I still own 50 shares of ExxonMobil stock that I bought with my own money.

      That money is not yours. You hold it at the pleasure of the government, who could have taxed you 100% but elected at its sole discretion to tax you less.

      But the AGsUCP have your interests at heart! Be happy!

  2. I’m glad to hear that Eric Schneiderman is so concerned about the shareholders of ExxonMobil.

    1. He is so concerned, that he will get things right for them no matter how high he drives the company’s D&O coverage premium and their legal expenses!

    2. Given that his pension is probably being paid out of Exxon profit, he should be. He probably doesnt know that.

      1. Doesn’t care. Taxpayers cover the difference.

  3. RE: Climate Change Court Drama: What Does New York’s Attorney-General Have to Hide?

    No one in the collective has the right to question the judicious diktats handed down by our wise and beneficent socialist slavers, especially when it comes to the fraudulent but profitable concept of global warming, I mean, climate change. It is not the station of anyone, private or corporate take a contrary position that taken by The State. Such counter-revolutionary actions must be punished severely and quickly to remind the unwashed masses who is enslaving whom. Climate change is real. Many have said so, like Leonardo DiCaprio. He has won an Academy Award, appeared in numerous movies, makes millions of dollars and rides around in private jets. That alone makes him and his ilk an expert in the matter. But it isn’t just Hollywood movie stars that are experts in climate change. Oh no. There are lawyers, politicians and their cronies have who have much to gain financially in “researching” this new and dangerous phenomenon, climate change that make them experts as well. If these people don’t get a trillion dollars right here, right now, the sky will fall as prophesied by the all knowing, all seeing superstar of science, Chicken Little. Question climate change at your own peril.

  4. Criminalizing unpopular opinions in the name of progress is the work of dictators, not scientists.

    It’s not a matter of popular or unpopular. It’s science. All the experts agree that the world is going to end unless the politicians who pay them are given total control over every aspect of our daily lives. The only people who disagree are either paid by Big Oil or brainwashed by Big Oil. So obviously these “opinions” need to be criminalized, because they are going to cause the world to end! Climate deniers are worse than Hitler! Instead of killing six million Jews, they want to kill everyone on the planet! Climate denial is mass murder! All deniers must be killed to save the planet! Kill them! Kill them all!

    1. You meat-bags had your chance.

      Bender 2016

    2. This is what Tony actually believes. Especially the kill part.

  5. “Schneiderman says that he wants to find out if the oil company fraudulently misled its investors with regard to how man-made climate change would affect its financial prospects.”

    Those dangers from global warming that were risks, did they come to pass? Did the investors lose money, and if they did, was it because of the effects of global warming? If the answers are no then there is no case for fraud. This was never meant to go to court, it was just an attempt to intimidate Exxon into paying billions. The last thing these scumbags want is for the whole CAGW scheme to be put on trial.

    What does the AG have to hide? That is a silly question. He’s running a scam.

    This really is the scariest thing the dems have done. Who’s next? And they are trying to put a candidate in office who has declared that certain journalistic publications have no right to speak and she intends to shut them down. Also claiming that if congress won’t act with regards to her preferred legislation she will just use executive orders.

    Yeah, Trump is the scary one.

    1. Climate Change is the new religion. The Inquisition is just around the corner.

      1. Global. Warming.

        Climate change is the terminology they switched to when their predictions failed catastrophically. I’m torn as to letting them have that. I don’t want to let them control the language, on the other hand climate change is an unfalsifiable assertion. Being unfalsifiable is the single most damning criticism one can level at any hypothesis. That puts it firmly outside the realm of science.

        So I am not sure whether to adopt the term or not.

        The inquisition is not around the corner. It is here. That is what this is.

        1. This is just the beginning. I have a feeling it will result in bloodshed. Seriously.

          1. This is just the beginning. I have a feeling it will result in bloodshed. Seriously.

            Who will be the next Pol Pot?

            1. Chairwoman Maosuit?

          2. The way some people talk about it, they wouldn’t mind at all if deniers were rounded up and shot. There would be a lot of popular support for the idea. Especially with all the indoctrination that is going on in the public schools. Climate change is talked about as fact, with sound mocking and disdain for deniers. Like all religious movements, it will get bloody at some point.

            1. The one saving grace (heh) in all this is that they have been making DOOM! predictions since I was in school in the 1970s (NEW ICE AGE A COMIN’). Eventually the faithful notice that the UFO didn’t come to pick us all up…

              1. Paul Erich has literally NEVER been right. For FORTY fucking years!!! And they still believe all this shit.

                1. Its one of those things when you are so bad you are good.

            2. The best lies always contain a kernel of truth, and in this case it appears the world is actually getting warmer but it’s also generally acknowledged that we’re coming out of a mini or full-blown ice age.

              How anyone with two brain cells to rub together can’t do the math on that one is consistently amazing to me. At this point the government would use the fact the sky is blue to devise a new tax scheme.

            3. Just out of curiosity, does the proposed door swing both ways? Do we get to lock up Mr. Hockeystick, the IPCC, Al Gore, the New England Skeptical Society and Leo DiCaprio? After all, they caused a public panic and the waste of billions of dollars with doom and gloom predictions that never materialized.

          3. Well, when one side continuously shouts about how there are “too many people”. Of course it will.

            And yet these are the same people who point out Hitler as the worst sort of villain… while they advocate for killing 100 times as many people as he did. But, ah, that’s alright, they’ll be doing it for the “greater good”.

      2. The Inquisition, look out sin
        We have a mission to convert the Deniers (D da D da D da Deniers)
        We’re gonna teach them wrong from right
        We’re gonna help them see the light
        And make an offer that they can’t refuse (that Exxon just can’t Refuse)

        Confess (confess, confess)
        Don’t be boring
        Say yes (say yes, say yes)
        Don’t be dull

    2. It’s been well shown that ExxonMobile included disclaimers regarding the effect on their prices resulting from regulatory changes, which ironically covers this spurious fishing expedition by a bunch of incredibly bored AG’s that would rather not do their jobs.

      The idea one could use a model that has never successfully predicted a single thing in the history of mankind to somehow predict a price change is so ludicrous the mind boggles.

      1. The job of a latter-day AG is political grandstanding.

        1. On the way to either the governor’s mansion or a Senate seat.

          1. Or the cat-house.

          2. Or the jailhouse.

            1. ^Thats the one!! This is where these fuckers should land.

  6. “This effort at legal intimidation…”

    Interesting you don’t show similar disdain for Lamar Smith of the House Science Committee. He too subpoenaed not only 2 state AGs, but also non government groups like UoCS,, Rockefeller Fund, Greenpeace, and others for communications between them.

    Of course, they weren’t intimidated…they told him to stick it.

      1. Still beating the “congress did the same thing” bullshit, I see. Jackass.

    1. Of course, the Lamar Smith subpoenas are in support of oil companies, so crickets here.

      1. Yeah, except the part where Smith didn’t start this shitshow, all these “environmental” groups did.

        1. It would be fine if Ronald labeled both as a “shit show,” as you say. He doesn’t. He complains about one, ignores or supports the other.

          1. There is no “both” anything. There is one action here, and Smith’s subpoena is part of it.

            1. Funny how Ronald didn’t mention the Smith subpoenas above, but he did the Exxon ones.

              1. … because Smith’s subpoena is a legal response to, and different in character from, the AGs’ subpoenas and does not have the same effect.

                1. I see. Righteous government subpoenas of independent groups using free speech. Well done!

                  1. What the fuck are you talking about? Do you think willfully demonstrating that you’re a moron helps your case?

                    1. You see, Schneiderman, as NY AG, has very right…no, responsibility…under the Martin Act to pursue fraud to the public, including fraud by companies. It’s been used before in NY. If he believes a company may have been guilty of fraud, it is his job to investigate. And he is doing so.

                      Smith’s subpoena of him is not only a federal government attempt to deny states rights, it’s as much a tool of intimidation as any when he chose to also subpoena independent groups for communicating with that government official.

                      Keep trying!

                    2. The New York legislature can pass whatever laws it likes, the 14th Amendment still applies to New York just like every other state.

                    3. Indeed it does. And the Martin Act hasn’t violated it in about 100 years. Need to try harder!

                    4. Why don’t you just fucking try in the first place? It gets very obvious when you go off the talking point reservation.

                    5. Have some fun tonight!

                    6. Oh, fuck off, he has the right to punish a company and try to cause its stock price to drop because it didn’t bow to the cult of global warming decades ago, which he claims caused its stock price to drop.

                      Hes a complete ass. But hey you and him have that in common.

                  2. Nope, wrong again asshole. Its one branch of government asking another branch of government what the fuck it is doing trying to squelch people’s (yes fucktard corporations have free speech right too) free speech rights!!!

                    1. JackAss doesn’t recognize there being separate branches of power, especially when one branch is doing its goddamn job by protecting people’s freedom of speech.

                      Because at the end of the day, JackAss completely agrees with the AG. Fuck, given enough of a push he’ll be right here with Tony advocating for the summary execution of his political enemies.

        2. In fact, to quote Ronald about the Exxon subpoenas.

          “However, these subpoenas are a huge step in the direction of using the courts to silence people who hold views that differ from those of powerful government officials.”

          He never said any such thing about the Smith subpoenas. Crickets.

            1. Apart from what is actually being sought and who started it, courts are not legislatures or legislative committees, and prosecutors do not debate: they prosecute.

              As much as I dislike legislative witchhunts by subpoena, there is much more than a difference in degree when prosecutors carry out witchhunts by subpoena.

          1. Probably because that makes no sense. Smith is not subpoenaing groups for their involvement with climate change research or activism. He’s subpoenaing them for their coordination to bring legal action against their opponents, not their own viewpoints or work.

            1. And you think it’s illegal for outside groups to communicate with government officials? Yikes.

              1. Where did I say it was illegal? But if private organizations coordinate with the government, then both are required to disclose their activities.

                1. No, Joe is actually sensing a major danger: the Anti Ku Klux Klan Act of the 1870’s which is still more or less in the Federal Criminal Code.

                  Basically, it makes it a federal felony for a government official (both federal and state) to use his authority to deprive a person of their civil rights.

                  All of the AG’s who sent out those subpoenas are guilty of violating it. Their communications with the Rockefeller funded orgs that were coordinating the Bernaysian PR push against Exxon give prima facia evidence that they had no evidence of criminal violations to start with (Naomi Oreskes’ Merchants of Doubt having been thoroughly discredited).

                  I suspect modern day Democrats have a strong racial memory from the time when their ancestors found the law being used against them in their previous attempt to preserve an idyllic pastoral world where people knew their place.

                  1. I’m not entirely convinced Jackand Ace is Joe. His distinction-challenged rants remind me of MNG’s inability to comprehend secured vs. unsecured debt. Whoever he is, this fucker is too stupid to understand that the government has different rules than private organizations, and moreover that there are damn good reasons for that.

                    1. I’m not. Congrats! You got one thing right today!

                    2. You got one thing right today!

                      Well, that’s better than you’ve done so far.

                    3. Touche!

                  2. Basically, it makes it a federal felony for a government official (both federal and state) to use his authority to deprive a person of their civil rights

                    So you’re saying everything government officials do is illegal? What else do they do besides deprive people of their civil rights? Oh yeah, I forgot, they also deprive people of their property and income. I guess that makes it ok.

                    1. What?

              2. To collude to punish citizens via lawfare? Hell yes.

          2. Gosh, maybe because Congressional subpoenas are a way of getting information into the public sphere, you idiot. Whereas AG subpoenas have no such purpose, and either have no effect on whether something is made public, or actively impede it being made public.

            1. Ah, government intimidation we find righteous. As long as it’s a cause we support, eh?

              1. Prosecutors are not legislators.

                1. They’re both government officials tasked with following the law, protecting individual citizens from crimes like fraud, and they both have the power of subpoena.

                  Of course, you get apoplectic when it the subpoena is for oil companies, and support such when it is used against independent science, charitable, and advocacy groups.

                  You fit in with Ronald!

                  1. I believe I have fully illuminated the difference between prosecutorial subpoena and legislative subpoena, which you are again ignoring.

                    But I will grant that I get apoplectic when subpoenas are used against private parties, including the climate alarmists named in Smith’s subpoenas, while I am much more likely to support them when they are used against state parties.

                    1. Not ignoring. Read agin. Both are subpoenas. You’ll like prosecutorial if it benefits oil, and dislike legislative if it’s done by Dems.

              2. government branches checking the abuse of power by other government branches is how its supposed to work.

      2. NO. They are in support of FREE SPEECH you asshole!!!!

        But you wouldn’t give a shit about that because you’re one of the good people who would never be shut up.

        You fucking useful idiot…..

    2. What is your point Jack? That Exxon should tell the state AG’s to ‘stick it’?

      1. It’s their option.

      2. Joe is most phanatique Global Warming Climate Chaos Climate Change (that is so totally Exxon and libertarians fault) witch burner here. He would never suggest any such thing!

    3. Of course, because investigating communications between private parties and public officials (acting in their role as public officials) that likely indicate wrongdoing on the part of those public officials with the intent of discovering that same wrongdoing is exactly the same as demanding private, 4th amendment protected communications among private parties based on a deliberately spurious accusation of a crime, with the ulterior intent of undermining the speech and association rights of those parties.

      Why is it that all leftists are tyrannical, dishonest scum?

    4. One hopes that the final result will be testimony wearing leg irons, belly chains and handcuffs.

    5. Oh do fuck off Jackass…..

  7. Nitpicking I’m sure, but shouldn’t it be AsG?

    1. No no, you see we are actually talking about the chief officers of a paramilitary leagal team.

  8. See Ron, how can you look at this complete tyrannical abuse of legal authority and yet still believe in a Carbon tax?

    I just don’t understand how you can clearly show how untrustworthy the government is when it comes to the climate change debate and yet still want to trust them to implement a tax on carbon dioxide in a manner both transparent and effective. We both know that this isn’t going to happen.

    1. There is no comment I could agree more with.

    2. If they’re going to tax Carbon you better gird yourself for a H2O tax since it’s actually a more potent greenhouse gas than Carbon, not to mention it takes up most of Earth’s surface area and atmosphere.

      But nah, lets keep banging on about Carbon. It’s like bad and stuff, y’know?

  9. The Church of AGW has officially surpassed Atheism as our most annoying religion.

      1. “This is my body, which has been strengthened and conditioned for you; do this in remembrance of me.”

  10. Can you spell ‘shakedown’?

    How can anyone not think it’s anything but?

    And oh. It wouldn’t be a Great Uncle Rufus comment without…

    Go screw yourself with a rotting zucchini Schneiderman. You and your ilk and cohorts in the tyrannical enviro-whacko ranks couldn’t care less about whatever you say you care about.

  11. Initially they claimed Exxon tried to mislead the public by funding science that made global warming look more benign than they thought it was internally.

    Except that any cursory review of the literature would find that Exxon’s GCM’s were making predictions similar to GCM’s by other parties. IIRC the first stab Exxon made in the 70’s was a sensitivity to doubling of CO2 in the atmosphere of 1.5 +/- 1.2 C. I think they are now completely out of the game, but the last set of GCM’s that I think they helped develop were definitely in the middle of the road of all the different GCM’s used by the IPCC to “prove” that man made climate change is real.

    The IPCC in early days had Exxon scientists playing lead roles in the development of the ARs. And throughout it’s existence it has published remarkably consistent values for ECS: 3 +/- 1.5C.

    1. The IPCC assessment is based entirely on GCM’s. Measuring actual ECS is very difficult, since the Earth’s climate is incredibly complex. And what is fascinating is that though the more empirically based models are converging on values less than 2C, the IPCC continues to try to maintain that it could well be above 3.

      That’s why Schneiderman had to change his tune. Exxon scientists make their claims by publishing papers in the press. They use datasets that are collected by third parties. It’s not at all like the studies the tobbaco companies produced where they essentially designed experiments to prove there was no link between cancer and smoking. In Exxon’s case their public pronouncements have clearly been the same as their internal conclusions and clearly based on differences of judgement based on publicly disclosed analyses.

      1. Seems like corporate America learned from the Tobacco fiasco. Stay above board or you’re going to get screwed.

      2. Remind me. How many times have climate pimpers manipulated data to mislead the public again?

        1. A lot.

          Hell, one of the big scandals of Climate Gate was that it demonstrated in internal comms the people in the University of East Anglia’s climatology dept and their correspondents in other universities were expressing very different attitudes towards Michael mann’s famous hockey stick graph to what they were expressing to the public. Essentially, they were claiming in public that it was rock solid and that people criticizing his work were out to lunch, while privately discussing the concerns raised by critics and Mann’s refusal to fix his mistakes.

          Essentially the core group of darlings drafting the IPCC’s paleoclimate analysis were doing exactly what Al Gore accuses exxon of doing.

          1. Oh please.

            So above you basically claim that Exxon is in on the conspiracy. Why on earth would they participate in research meant to undermine their industry?


              Tony, your idea of how science works is so painfully the product of superstition that reading what you think about it is like taking airport design advice from a cargo cultist.

            2. And incidentally, the UAE people were caught in a conspiracy.

              A stupid conspiracy.

              A stupid conspiracy that catapulted them to immediate fame and opened a floodgate of grants.

              A stupid conspiracy that kept the grants flowing but made them a laughingstock amongst scientists with integrity.

              A stupid conspiracy that has so undermined the field of paleoclimate as to make any pronouncement by its leading lights to be unreliable.

            3. Why on earth would they participate in research meant to undermine their industry?

              Um, come again? The scientific method has intentions?

              1. It’s fascinating, isn’t it?

                Tony’s question implies he really has no conception of people being motivated by anything other than partisanship or politics.

            4. Why on earth would they participate in research meant to undermine their industry?

              Because their future profits depend on a very high correlation between the multi-hundred-billion dollar operations of their company and reality as it actually exists?

              Seriously, what a stupid question.

  12. A joint interest agreement is drafted in such a way to be presented publicly to show the parties agreed to share confidentially privileged communications where that sharing otherwise would negate the privilege. In other words, the agreements themselves are never or at least extremely rarely considered to be privileged or attorney work product. They are intended to document something that might need to be proven in court through that very document. To say therefore that these agreements are protected by the attorney-client privilege or as attorney work product seems on the surface to be at best frivolous.

  13. Toady and jackass double teaming another thread….how pathetic. You’d think with all his money Soros could come up with less idiotic trolls.

    How long has this new Toady been around? his sentence structure is different.

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