Keith Ellison and Karl Racine, attorneys general of Minnesota and the District of Columbia, respectively, filed fraud charges this June against fossil fuel companies and alleged co-conspirators for participating in public discourse on climate change.
Ellison’s accusation is that Exxon Mobil Corp., Koch Industries, and the American Petroleum Institute have perpetrated “a conspiracy to deceive the public about climate change.” Racine’s accusation is that Exxon Mobil, BP, Shell, and Chevron have “systematically and intentionally misled consumers” about fossil fuel products’ climate impact. While one might expect that Ellison and Racine would have their sights trained on the social unrest within their jurisdictions and the justice reforms that are legitimately within their purview, the climate show must go on.
And a show this is.
The attorneys general theorize secret deals and private pressure where Occam’s razor suggests only an alignment of perspectives. The oil and gas companies, the trade associations, and the think tanks name-dropped in these complaints (which includes, in the Minnesota case, my own organization, the Institute for Energy Research) are all interested in the implications of climate science. In a free and open society, they are all at liberty to pursue knowledge and debate it. Sometimes, these entities reach similar conclusions. At other times, as with the carbon tax debate, they differ sharply. The “conspiracy to deceive” and the “misleading greenwashing campaigns” exist only in the activist hemispheres of Ellison and Racine’s minds.
Meanwhile, the complaints cover no new territory in the climate discussion. The relationship between greenhouse gas emissions, global temperatures, and environmental damage has been under examination for decades. While the particulars of greenhouse warming potential and its economic ramifications remain hotly contested, the fact that carbon dioxide is a greenhouse gas has been common knowledge since James Hansen testified before the Senate four decades ago. To the extent that #ExxonKnew, we all knew.
What is new is the legal theory behind this action. Other climate litigation cases have appealed to the common law tradition of nuisance, albeit with an aggressive conception of damage. Cases such as the lawsuits brought by California cities and counties against Chevron and other companies that produce fossil fuels revolve around the argument that using the industry’s products has caused tangible harm (or the risk thereof) and that the industry should be held liable.
But the nuisance cases have been unsuccessful, so Minnesota and D.C. took a different tack. It is not emissions and their effects that are top of mind for the attorneys general, it is the defendants’ engagement with and investment in scientific inquiry and political dialogue. The goal is to punish the defendants for having discussions that the attorneys general do not like. The goal is to stifle open inquiry into climate science and to channel our interpretation of it. These lawsuits threaten the defendants’ First Amendment right to participate in public debate.
In leveling the accusation of fraud upon the defendants, Ellison deploys a tried and true authoritarian tactic: using ambiguous statutes to portray perceived political enemies as deceitful saboteurs. Ellison’s weapon is Minnesota Statutes section 325D.44(13), which states:
“A person engages in a deceptive trade practice when, in the course of business, vocation, or occupation, the person … engages in any other conduct which similarly creates a likelihood of confusion or of misunderstanding.”
Ellison and Racine’s attacks on the defendants veer far from the civil pursuit of damages and toward the demonization of heresy. Like the securities fraud case brought against Exxon Mobil by former New York Attorney General Eric Schneiderman in 2018, this is a political harassment campaign without legal merit.
The uncomfortable irony in these cases is that while the attorneys general postulate conspiracy, their legal thrusts have been facilitated by a network of environmental policy influencers. Throughout the filing process, Ellison and Racine have been accompanied by privately funded assistants whose positions were created at the behest and with the financial investment of Michael Bloomberg’s Bloomberg Philanthropies.
As brought to public attention by Chris Horner and Victoria Toensing in the Wall Street Journal last summer, Bloomberg Philanthropies has funded assistant positions in the offices of attorneys general in more than 10 states and the District of Columbia via an entity at New York University known as the State Impact Center.
Since 2017, the State Impact Center has provided “direct legal assistance to interested attorneys general on specific administrative, judicial or legislative matters involving clean energy, climate change and environmental interests of regional and national significance.” The assistants placed in Ellison’s Minnesota office, according to public records requests, are Peter Surdo and Leigh Currie, the signatures of whom sit just below Ellison’s on the complaint against Exxon Mobil et al.
These special assistant attorneys general, as the cohort has been innocuously dubbed, have focused much of their attention on the legal attacks directed at the perceived political enemies of Big Green Inc., such as Exxon Mobil and Koch Industries, rather than on matters more central to the public concern. Indeed, that was the explicit intention of the offices of attorneys general in seeking State Impact Center support. “Further,” Racine’s staff wrote in its application for an assistant, “the office wishes to be an active partner at the national level, looking for opportunities in our local environment, consumer protection, and other authorities to make unique contributions.”
Investing capital in open inquiry is one thing. Using it to augment directly one’s agenda within the offices of attorneys general is wholly another. The cases filed in Minnesota and the District of Columbia indicate that the organs of the state are being used as political cudgels against private entities. This development suppresses open inquiry into the causes, severity, and potential responses to climate change.
That the action is being funded by extra-governmental sources makes it all the more worrisome. It is inherently suspect for attorneys general to accept financial support from private sources to pursue policy outcomes desired by those sources.