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CEI Asks Court to Sanction U.S. Virgin Islands AG for Baseless, Retaliatory Subpoena

On Monday, U.S. Virgin Islands Attorney General Claude Walker agreed to revoke a subpoena he obtained from the D.C. Superior Court last month, in which he demanded from CEI essentially every document and communication related to climate change policy that we created, sent, or received during the 10-year period from 1997 to 2007.

His withdrawal follows a letter that CEI received on Friday, May 13, from his D.C.-based counsel Linda Singer on his office’s behalf, which purports to rebut some of CEI’s objections to the subpoena before announcing that Attorney General Walker would consent to withdraw the D.C. subpoena—for now. The letter also notes that the Attorney General may “reissue the subpoena” in D.C. if he “intends to move to compel” CEI to comply with its demands at any point in the future, and states that he has not “made a decision on whether to compel or to withdraw” the underlying subpoena, which he issued in the U.S. Virgin Islands.

In short, Attorney General Walker refuses to admit that his subpoena is improper or unlawful, and he wants CEI to understand that his office’s crosshairs remain trained on us.

CEI will not stand idly by while a government official continues to threaten us for speaking out on public policy. That’s why CEI filed a motion with the D.C. Superior Court asking it to sanction Attorney General Walker and Linda Singer by awarding CEI the costs and attorneys’ fees we have incurred in responding to this baseless and unlawful subpoena. We hope the Court will see this subpoena for what it is: an unconstitutional, ideologically motivated ploy to use the court system as “leverage” to chill the speech of a private organization for espousing political views that run contrary to those of Attorney General Walker and some of his fellow state Attorneys General.

If CEI had to comply with the subpoena and produce ten years of documents about our climate change work, it would entail at least 30 weeks of combined staff time, according to a sworn declaration by our general counsel Sam Kazman. And if we handed over all of these documents to Attorney General Walker, it would necessarily reveal internal communications and private correspondence with our donors, allies, and other contacts. So long as this burdensome, overbroad subpoena hangs over our heads—with Attorney General Walker capable of acting to enforce it on a whim—CEI will be unable to fully devote our attention to fighting overregulation and educating the public about free markets.

In a memorandum we filed in support of our motion to dismiss the subpoena and impose sanctions on Attorney General Walker, our attorneys Andrew Grossman and David Rivkin explain why the subpoena is not part of a lawful investigation. Although Attorney General Walker claims that his office is conducting a legitimate inquiry into whether ExxonMobil may have violated the U.S. Virgin Islands’ Criminally Influenced and Corrupt Organizations Act (CICO), the subpoena seeks from CEI documents from 1997 to 2007—even though CICO’s statute of limitations is five years.

In other words, the documents sought by Attorney General Walker do not even include those that might, in theory, related to ExxonMobil’s conduct over the last five years. And, as our memorandum explains, at a press conference in March, Attorney General Walker said that his investigation sought to “make it clear to our residents as well as the American people that we have to do something transformational” on climate change to encourage the public to “look at renewable energy.”

Whatever one thinks about climate change and renewable energy, however, it is not a state or territorial Attorney General’s role to influence public opinion about energy policy—much less use the legal system to shut down debate on such policy.

In fact, all signs indicate that the subpoena is part of a broader scheme by state Attorneys General and outside activists to silence critics of governmental efforts to increase the price of energy in the name of combatting climate change. As my colleague Marlo Lewis has discussed on these pages, beginning last fall, 20 climate advocates began urging government officials to use the Racketeer Influenced and Corrupted Organizations Act (RICO) to investigate “corporations and other organizations that have knowingly deceived the American people about the risks of climate change, as a means to forestall America’s response to climate change.”

Although this call to arms does not appears to have convinced the U.S. Department of Justice to initiate a federal investigation, at least to date, some seventeen state and territorial Attorneys General have joined forces to “leverage” state-based RICO analogues and other laws in attempt to retaliate against climate change dissenters for their views. Some commentators have even noted that if anyone is committing a “conspiracy” on climate policy, it is the state Attorneys General who are using subpoenas and threats of litigation to get their way.