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CEI attorney cites chilling effect of state investigations of ExxonMobil

By Alan Goforth | Mar 29, 2016


NEW YORK (Legal Newsline) - New York Attorney General Eric Schneiderman, who is investigating ExxonMobil for possibly suppressing climate change research from the public and investors, is overstepping his bounds, a senior attorney for the Competitive Enterprise Institute contends.

Schneiderman has said he is not pleased that ExxonMobil questions the impact of global warming and that it donates to think tanks that occasionally challenge conventional wisdom.

“If you can intimidate people who take issue with the most alarming and maximal projections of global warming,” said Hans Bader, senior attorney for CEI in Washington, D.C., “you will end up with a skewed estimate of global warming that may also skew public policy and result in misallocation of resources.”

Schneiderman specifically disagreed with comments by Exxon that “switching over to renewables by the end of this century would raise energy costs” substantially, and that “ExxonMobil essentially ruled out the possibility that governments would adopt climate policies stringent enough to force it to leave its reserves in the ground," saying that rising population and global energy demand would prevent that. “Meeting these needs will require all economic energy sources, especially oil and natural gas,” it added.

Bader believes that the objective of the attorney general's investigation is not to uncover wrongdoing but rather to harass Exxon by subjecting it to bad publicity and the costs of producing thousands of pages of documents.

"I suspect that what is meant by 'promulgating misleading information,' is that oil companies declined to predict massive increases in temperature over the last 20 years that did not come true, and did not in fact occur," he said. "Failure to embrace exaggerated claims of global warming does not constitute '`deliberate deception,' when scientists have come up with widely varying estimates of how the climate will change, some conservative, and some exaggerated.

"Since climate-change predictions are not an exact science, the fact that one scientist comes up with a maximal, upper-bound projection of climate change does not obligate an oil company to believe it, much less trumpet it to the public. Nor does the fact that an oil company, which hedges against risk (including the risk of relatively improbable events, such as maximal, upper-bound projections of global temperature increases), takes such an estimate into account for contingency-planning mean that it accepts that estimate as being likely to come true, and thus render it deceitful for failure to publicly trumpet that projection of warming as if it were likely to come true."

Bader believes Schneiderman's investigation is part of a pattern of targeting individuals and groups with differing opinions about climate change.

"They are apparently aimed at people who are in the mainstream of climatology, who simply have a somewhat lower projection of global temperature increases than liberal state attorneys general find politically convenient," he said.

"For example, University of Alabama climate scientist John Christy was the target of liberal Congressional investigators, even though Christy doesn’t say global warming isn’t happening; and the brief he co-submitted to the Supreme Court says it is happening, but at less than half the rate projected by many other climate scientists."

Freedom of speech is the core issue for Bader.

"The First Amendment has long been interpreted as protecting corporate lobbying and donations, even to groups that allegedly deceive the public about important issues," he said. "So even if being a 'climate denier' were a crime (rather than constitutionally protected speech, as it in fact is), a donation to a non-profit that employs such a person would not be."

But Bader expects other states to take similar action.

"Maryland is and its attorney general has already prejudged matters by claiming that oil companies have contributed to the problem by intentionally promulgating misleading information, testimony and advertising," he said.

The ultimate victim, Bader argues, is freedom of expression.

"These investigations are a threat to mainstream climatologists who do not make exaggerated claims of global warming," he said, "and a threat to oil companies’ ability to engage in prudent contingency planning that takes into account maximal projections of global warming, without having to publicly tout those projections, which often turn out to be inaccurate years later."

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Organizations in this Story

New York Attorney GeneralCompetitive Enterprise Institute