Curbing fraud or restraining speech?
Reporters and commentators engage the impassioned legal struggle over Exxon and climate.
05 July 2016
Climatologists at the blog RealClimate long ago indicted the journalistic failure of “false balance”—the presenting of unscientific climate scoffing as credible. They quipped, by way of analogy, that’s it’s false to try to balance NASA’s views with those of the Flat Earth Society. But what about when climate-wars contentiousness shifts to a legal battlefield, as in the widening fight over ExxonMobil’s climate-related statements, policies, and actions?
A Mother Jones article opens by summarizing the shifted fight: “Does Exxon Mobil have a constitutional right to sow doubt about climate science? That’s the subject of a high-stakes legal battle playing out between dozens of state attorneys general, members of Congress, corporate executives, and activists.”
In a 25 June press release, the Democratic Party outlines platform planks. One blurb speaks of “calling on the Department of Justice to investigate alleged corporate fraud on the part of fossil fuel companies who have reportedly misled shareholders and the public on the scientific reality of climate change.” In other words, the Democrats have formalized what InsideClimate News headlined last October: “Hillary Clinton joins call for Justice Dept. to investigate Exxon.”
In an emailed “action alert” and on a web page, the Union of Concerned Scientists (UCS) charges that Exxon is “lashing out” against those who would hold it accountable. The company must “stop blocking progress on global warming,” the UCS declares.
But on the right, the Daily Caller headline “Dem Party platform calls for prosecuting global warming skeptics” illustrates the defining of any investigation of alleged fraud as instead First Amendment–trashing intimidation—as strong-arming that’s actually designed to punish and deter climate scoffers’ speech. The article’s text highlights a Democratic platform “provision calling for the Department of Justice to investigate companies who disagree with Democrats on global warming science.” But in fact, say fraud-investigation supporters, any such investigation merely asks narrowly whether Exxon obtained but hid knowledge and, crucially, hid it in ways that constitute fraud under the law.
The Competitive Enterprise Institute (CEI) and many others are buying no such claim that restraining speech constitutes the curbing of fraud. “Abuse of power” exclaimed the headline on CEI’s recent full-page New York Times ad. It prominently displayed an image of the Statue of Liberty with its mouth gagged. Although “all Americans have the right to support causes they believe in,” the ad charged, a coalition of state attorneys general has “announced an investigation of more than 100 businesses, nonprofits, and private individuals who question their positions on climate change.” The ad declared that “regardless of one’s views on climate change, every American should reject the use of government power to harass or silence those who hold differing opinions” in what CEI classifies as “political debates,” not scientific ones.
Media Matters distills the counterargument seen on the left against such invoking of the First Amendment: the “attorneys general are seeking to determine whether Exxon and other companies knew the reality of climate change but publicly sowed doubt about climate science in order to protect their profits. Reports from InsideClimate News and the Los Angeles Times revealed that Exxon’s own scientists had confirmed by the early 1980s that fossil fuel pollution was causing climate change, yet Exxon funded organizations that helped manufacture doubt about the causes of climate change for decades afterward.”
InsideClimate News (ICN) calls itself a “Pulitzer Prize-winning, non-profit, non-partisan news organization dedicated to covering climate change, energy and the environment.” Its investigative series last year described, as ICN puts it, “how Exxon conducted cutting-edge climate research decades ago and then, without revealing all that it had learned, worked at the forefront of climate denial, manufacturing doubt about the scientific consensus that its own scientists had confirmed.” One of ICN’s articles carried the headline “Exxon sowed doubt about climate science for decades by stressing uncertainty: Collaborating with the Bush-Cheney White House, Exxon turned ordinary scientific uncertainties into weapons of mass confusion.”
The Los Angeles Times’s October 2015 exposé began:
Back in 1990, as the debate over climate change was heating up, a dissident shareholder petitioned the board of Exxon, one of the world’s largest oil companies, imploring it to develop a plan to reduce carbon dioxide emissions from its production plants and facilities.
The board’s response: Exxon had studied the science of global warming and concluded it was too murky to warrant action. The company’s “examination of the issue supports the conclusions that the facts today and the projection of future effects are very unclear.”
Yet in the far northern regions of Canada’s Arctic frontier, researchers and engineers at Exxon and Imperial Oil were quietly incorporating climate change projections into the company’s planning and closely studying how to adapt the company’s Arctic operations to a warming planet.
The fraud allegations echo past experience with Big Tobacco, a precedent emphasized by Harvard historian of science Naomi Oreskes and others. John Schwartz at the New York Times cites as “a turning point in the fight against tobacco” the “unearthing of industry documents that showed the industry had long been aware of the health risks of its products, and the enormous lengths to which the companies went to sow doubt about the science.”
Compare newspaper excerpts separated by two decades:
- From the 2015 Los Angeles Times exposé: “The gulf between Exxon’s internal and external approach to climate change from the 1980s through the early 2000s was evident in a review of hundreds of internal documents, decades of peer-reviewed published material and dozens of interviews conducted by Columbia University’s Energy & Environmental Reporting Project and the Los Angeles Times.”
- From the 1994 New York Times front-page article “Tobacco company was silent on hazards”: “Internal documents from a major tobacco company show that executives struggled with whether to disclose to the Surgeon General what they knew in 1963 about the hazards of cigarettes, at a time when the Surgeon General was preparing a report saying for the first time that cigarettes are a major health hazard. The executives of the company, the Brown & Williamson Tobacco Corporation, chose to remain silent, to keep their research results secret, to stop work on a safer cigarette and to pursue a legal and public relations strategy of admitting nothing.”
In 2008, the Guardian reported that “a sizeable chunk of Exxon's investor base” was “uncomfortable” with the company’s “hardline attitude towards climate change and alternative energy.” A day later, the Christian Science Monitor pointed out an intriguing paragraph from Exxon’s annual Corporate Citizenship Report: “In 2008 we will discontinue contributions to several public policy research groups whose position on climate change could divert attention from the important discussion on how the world will secure the energy required for economic growth in an environmentally responsible manner.” The Monitor piece added that Exxon had also previously “backed away from such groups.” Though without documentation or a link, it even reported that “according to the Guardian, in 2006 the company stopped funding the Competitive Enterprise Institute.”
Besides defense of Exxon, the struggle also involves elaborate attacks on investigation proponents’ motivations. The Wall Street Journal’s Kimberley Strassel proclaimed on 17 June that the “crusade” is neither about the law nor even about Exxon; it’s really “liberal prosecutors” seeking “to shut down a universe of their most-hated ideological opponents.” She asserted that the “real target is a broad array of conservative activist groups that are highly effective at mobilizing the grass-roots and countering liberal talking points—and that therefore must (as the left sees things) be muzzled.” She continued: “This is clear from the crazy list of organizations [that Massachusetts Attorney General Maura Healey] asked for information about in her subpoena. She demanded that Exxon turn over decades of correspondence with any of them.”
Strassel compared the campaign to other alleged attempts “to shut down conservatives,” listing “the IRS targeting, the Wisconsin John Doe probe, the campaign against ALEC, [and] the harassment of conservative donors.” Also in June, she published the book The Intimidation Game: How the Left Is Silencing Free Speech.
The conservative columnist, Fox News pundit, and veteran climate scoffer George Will, famed recently for renouncing the Republican Party because of its presidential candidate, has also attacked investigation proponents’ motivations. In an April Washington Post column headlined “Scientific silencers on the left are trying to shut down climate skepticism,” he listed what he sees as “core tenets of progressivism,” including these:
- “Politics should be democratic but peripheral to governance, which is the responsibility of experts scientifically administering the regulatory state.”
- “Enlightened progressives should enforce limits on speech (witness IRS suppression of conservative advocacy groups) in order to prevent thinking unhelpful to history’s progressive unfolding.”
It’s no surprise that fraud-investigation proponents level motivation charges too—about financial ones. Recently 13 Republican members of the House Committee on Science, Space, and Technology wrote official letters that requested documents from state attorneys general investigating Exxon. Media Matters charges that the 13 “have received over $3.4 million from the fossil fuel industry, including over $126,000 from Exxon.” The Huffington Post reported that Charles and David Koch—the “Koch brothers”—“have spent over $88 million in *traceable* funding to groups attacking climate change science, policy and regulation,” with $21 million of that total going to groups that helped pay for that Competitive Enterprise Institute ad featuring a gagged Statue of Liberty.
Some in the media have now turned to lawyers, whatever is to be said about the mixing of the scientific and legal questions. At the Times, Schwartz recently quoted Robert C. Post, the dean of Yale Law School and a constitutional scholar, who “rejected the notion that Exxon Mobil is being gagged by the state efforts”:
“Debate is not being suppressed in any way by this,” he said, adding that citing First Amendment rights has become “a weapon in the arsenal of those who would seek to unravel the regulatory state.”
“They’re bringing it up because it sounds good.”
A week later, Post asserted in a Washington Post op-ed that the “point is a simple one. If large corporations were free to mislead deliberately the consuming public, we would live in a jungle rather than in an orderly and stable market.”
Three days after that, Hans A. von Spakovsky of the Heritage Foundation—a Republican lawyer with an MIT undergraduate degree—argued in a letter responding to Post that “human-induced global warming is unproven.” He sought to show that fraud-investigation supporters can adduce only weak evidence:
In the countersuit filed by the Competitive Enterprise Institute against the outrageous subpoena issued by the U.S. Virgin Islands attorney general for CEI’s climate-change research, the attorney general was forced to show his cards. In a brief filed in D.C. Superior Court, the only two supposedly fraudulent statements by ExxonMobil he could cite were:
- “International accords and underlying regional and national regulations for greenhouse gas reduction are evolving with uncertain timing and outcome, making it difficult to predict their business impact.”
- “Current scientific understanding provides limited guidance on the likelihood, magnitude, and timeframe of physical risks such as sea level rise, extreme weather events, temperature extremes, and precipitation.”
These statements merely express uncertainty over climate change and climate policy. Anyone who believes these statements constitute fraud lacks common sense and an understanding of the applicable legal standards.
The “abuse” of the First Amendment here is by state attorneys general acting like a scientific Inquisition to silence what they believe is the wrong view in this vigorous, unsettled scientific debate.
With summer’s arrival, the struggle’s leading public forum appears to be the Wall Street Journal, where indirectly related opinion-page ads have been challenging the opinion editors’ climate statements. The 16 June WSJ editorial “The climate police blink” mocked fraud-investigation supporters who had just suffered apparent setbacks. US Virgin Islands Attorney General Claude Earl Walker responded with a letter that the WSJ headlined “Attorneys general are right to pursue Exxon Mobil: Exxon Mobil and the CEI are attempting to argue that the First Amendment protects them from producing the information that can shed light on whether they broke the law.” Another WSJ editorial argued that if Exxon had committed fraud, so had former vice president Al Gore, whose “unproven claims” concerning climate “arguably mislead investors about the value of clean-energy companies.”
That editorial ended by demonstrating that more contentiousness is surely coming from both sides: “We don’t think anyone should be prosecuted for engaging in political debate, but progressives have shown (see independent counsels) that they’ll cease their abuses only when the same methods are used against them.”
(Thumbnail credit: brownpau, CC BY 2.0)
Steven T. Corneliussen, a media analyst for the American Institute of Physics, monitors three national newspapers, the weeklies Nature and Science, and occasionally other publications. He has published op-eds in the Washington Post and other newspapers, has written for NASA's history program, and was a science writer at a particle-accelerator laboratory.