On May 18, Smith’s committee had asked for any communications that might show that eight leading environmental groups and nonprofit foundations — along with the attorneys general from about 20 states — had coordinated a legal strategy to uncover internal information about climate change that they allege ExxonMobil had concealed for decades. Smith also asked for communications between environmental groups related to state investigations into ExxonMobil and whether the oil giant had violated securities and consumer fraud laws.
The environmental groups don’t think the committee is entitled to see that communication.
“In a democracy built on principles and the rule of law, 350.org cannot in good faith comply with an illegitimate government request that encroaches so fundamentally on its and its colleagues’ protected constitutional rights,” said a letter sent Wednesday from the group’s law firm, Quinn Emanuel Urquhart & Sullivan.
The Smith letter appeared to be part of a tit-for-tat after state attorneys general sought old ExxonMobil documents related to climate.
The environmental groups and foundations have been openly pressing state prosecutors to investigate whether ExxonMobil had violated securities and consumer fraud laws by not fully disclosing what it knew about climate change and its potential impact on the company’s business as well as the planet.
The oil giant has asserted that it did not violate disclosure requirements and that much of what it knew was publicly available in scientific papers.
“The Committee is concerned that these efforts to silence speech are based not on sound legal or scientific arguments, but rather on a long-term strategy developed by political activist organizations,” Smith said in his May 18 letter to the groups. The letter, signed by a dozen other Republicans on the panel, said the committee feared that environmental groups were part of a “coordinated attempt to deprive companies” of their First Amendment rights and impair their ability to fund scientific research “free from intimidation and threats of prosecution.”
Sen. Ted Cruz (R-Tex.) has also joined the fray, demanding in a May 25 letter signed by four other GOP senators that the Justice Department halt any investigations of whether ExxonMobil properly disclosed views on climate issues. The Justice Department has not said whether it is conducting such an investigation.
The environmental and nonprofit groups say Smith and Cruz are turning the issue on its head. Abbe David Lowell, the lawyer for Greenpeace, noted the “irony” that Smith’s committee, in the name of protecting ExxonMobil’s free speech, would “examine” the free speech of environmental groups.
Quinn Emanuel, which also wrote a response for the Rockefeller Family Fund, said that courts have not supported forced disclosure of communications within advocacy groups. It quoted a decision in one case that said: “Implicit in the right to associate with others to advance one’s shared political beliefs is the right to exchange ideas and formulate strategy and messages, and to do so in private. Compelling disclosure of internal campaign communications can chill the exercise of these rights.”
A letter from the Union of Concerned Scientists said that while the committee said it was acting in the name of “transparency,” the Supreme Court has said that “there is no general authority to expose the private affairs of individuals without justification in terms of the functions of the Congress … [n]or is the Congress a law enforcement or trial agency.”
Harry Sandick, a lawyer at Patterson Belknap Webb & Tyler, representing the Rockefeller Brothers Fund, said that the scope of the committee’s request for information was too great a burden. The Smith letter sought all documents and communications of all Fund employees over a four-and-a-half year period when climate change was a core program area for the Fund.
The 350.org letter added that Congress could not interfere with the state attorneys general investigations even if it disagrees with them.
“Because you cannot interfere directly with state investigations and prosecutions, you cannot do so indirectly by requesting communications from private organizations with state attorneys general or others about state investigations and prosecutions,” the Quinn Emanuel letter said.
Maryland Attorney General Brian Frosh also rejected the committee’s request for information about his internal deliberations on the case. Moreover, he said in a letter posted on his Facebook page, “communications between our office and scientists ought to be cause for praise from the ‘Science’ Committee, not suspicion.” He said that the committee “does not have jurisdiction to intrude upon the law enforcement actions of the chief legal officer of a sovereign state, much less scrutinize the privileged internal deliberations that underlie those actions.”