- On the Flint water fiasco, building for many months now, multiple levels of governments have plenty to answer for [Detroit News (“Lower-level [state DEQ] officials continued to downplay severity of Flint’s drinking water problems for almost 3 more months.”), The Hill and Detroit News (EPA), earlier and on government impunity] More: David Mastio, USA Today (even after fiasco, prevailing blood-lead levels in Flint children greatly improved from ten years ago); Rob Sisson/ConserveFewell; Matt Pearce/L.A. Times.
- Background on Oregon standoff: what would a market-based federal lands grazing program look like? [Randal O’Toole, earlier on Malheur refuge occupation here, here]
- “Trying to Build a Catskills Resort Despite Mountains of Regulation” [Cori O’Connor, WSJ]
- “Next stop for Paris climate deal: the courts” [Politico] Chart overview of climate change litigation in U.S. [Arnold & Porter via Kyle White, Abnormal Use]
- “The emerging cross-ideological consensus on zoning” [Ilya Somin] “Zoning Laws Transfer Wealth in the Wrong Direction” [Noah Smith]
- Time for Supreme Court to revisit its doctrine on exhaustion of state litigation remedies in takings cases [Ilya Shapiro, Cato]
- Pulitzer logrolling, politicization of Columbia J-school are old stories, but vendetta against Exxon adds a few new twists [Fraser Seitel, O’Dwyer, earlier]
My local paper, the Frederick News-Post, ran an editorial on Monday that 1) saw nothing especially wrong in the Environmental Protection Agency’s illegally expending tax money to stir up pressure on Congress to support a wider interpretation of EPA power; 2) claimed that the fuss over tax-paid lobbying was for lack of any substantive critique of EPA’s “WOTUS” (Waters of the United States) rule, although a majority of states have challenged that rule, the farm and rural landowner communities have been up in arms against it all year, and a federal appeals court has agreed to stay it.
So I wrote this letter in response, which ran today. There wasn’t space for me to dispute the FNP’s peculiar notion that to oppose the water rule as exceeding the EPA’s statutory authority is to encourage the “anti-science, climate change denial crowd,” which tends to reinforce my sense that “anti-science” and “climate denial” are turning into all-purpose epithets increasingly unhooked from any particular relationship to science or climate. (cross-posted at Free State Notes)
Months of agitation promoting a government investigation of supposedly wrongful advocacy on the issue of climate change have begun to pay off. As Holman Jenkins [paywall] notes, purportedly levelheaded Democrats and environmentalists are now jumping on the bandwagon for a probe of possible unlawful speech or non-speech by energy companies and advocacy groups they’ve backed. Perhaps the most remarkable name on that list is Hillary Clinton, who said the other day in New Hampshire, referring to Exxon, “There’s a lot of evidence that they misled people.” That’s right: Hillary Clinton, of all people, now wants to make it unlawful for those who engage in public controversy to mislead people.
The first high-profile law enforcer to bite, it seems, will be Eric Schneiderman, whose doings I’ve examined at length lately. “The New York attorney general has launched an investigation into Exxon Mobil to determine whether the country’s largest oil and gas company lied to investors about how global warming could hurt its balance sheets and also hid the risks posed by climate change from the public,” reports U.S. News. Show me the denier, as someone almost said, and I will find you the crime: “The Martin Act is a nearly empty vessel into which the AG can pour virtually any content that he wants,” as Reuters points out. More on the Martin Act here and here.
At Forbes, Daniel Fisher notes the possible origins of the legal action in an environmentalist-litigator confab in 2012 (“Climate Accountability Initiative”) in which participants speculated that getting access to the internal files of energy companies and advocacy groups could be a way to blow up the climate controversy politically. Fisher also notes that Justice Stephen Breyer, in the Nike v. Kasky case dismissed 12 years ago on other grounds, warned that it will tend to chill advocacy both truthful and otherwise by businesses if opponents can seize on disagreements on contentious public issues and run to court with complaints of consumer (or presumably securities) fraud.
Perhaps in this case chilling advocacy is the whole point. And very much related: my colleague Roger Pilon’s post last week, “Whatever Happened to the Left’s Love of Free Speech?“; Robert Samuelson (“The advocates of a probe into Exxon Mobil are essentially proposing that the company be punished for expressing its opinions.”)
P.S. As several readers point out, it’s unlikely that lawyers claiming to represent the interests of future generations of Americans will be allowed into court any time soon to challenge the continued expansion of federal government debt.
- Good news: U.S. honeybee colonies hit a 20-year high [Christopher Ingraham, Washington Post “WonkBlog”; Shawn Regan, PERC]
- “News Flash: Sitting on a drilling permit for 29 years constitutes ‘unreasonable delay’” [Jonathan Adler]
- Forget it, Seattle kayakers: “Local environmental activists don’t get to make federal policy” [Aaron Renn, L.A. Times]
- Alienating some old friends, Prof. Laurence Tribe says the Constitution doesn’t just let the President make up new law on climate regulation [New York mag]
- Emily Washington on the long, failed history of progressive urban housing policies [Market Urbanism]
- Court in Netherlands orders government to reduce carbon emissions [John Dernbach, American College of Environmental Lawyers]
- If you missed the much-discussed William Saletan piece on GMOs, here it is [Slate; Jon Entine, Genetic Literacy Project]
Another step toward criminalizing advocacy: writing in the Washington Post, Sen. Sheldon Whitehouse (D-R.I.) urges the U.S. Department of Justice to consider filing a racketeering suit against the oil and coal industries for having promoted wrongful thinking on climate change, with the activities of “conservative policy” groups an apparent target of the investigation as well. A trial balloon, or perhaps an effort to prepare the ground for enforcement actions already afoot?
Sen. Whitehouse cites as precedent the long legal war against the tobacco industry. When the federal government took the stance that pro-tobacco advocacy could amount to a legal offense, some of us warned tobacco wouldn’t remain the only or final target. To quote what I wrote in The Rule of Lawyers:
In a drastic step, the agreement ordered the disbanding of the tobacco industry’s former voices in public debate, the Tobacco Institute and the Council for Tobacco Research (CTR), with the groups’ files to be turned over to anti-tobacco forces to pick over the once-confidential memos contained therein; furthermore, the agreement attached stringent controls to any newly formed entity that the industry might form intended to influence public discussion of tobacco. In her book on tobacco politics, Up in Smoke, University of Virginia political scientist Martha Derthick writes that these provisions were the first aspect in news reports of the settlement to catch her attention. “When did the governments in the United States get the right to abolish lobbies?” she recalls wondering. “What country am I living in?” Even widely hated interest groups had routinely been allowed to maintain vigorous lobbies and air their views freely in public debate.
By the mid-2000s, calls were being heard, especially in other countries, for making denial of climate change consensus a legally punishable offense or even a “crime against humanity,” while widely known advocate James Hansen had publicly called for show trials of fossil fuel executives. Notwithstanding the tobacco precedent, it had been widely imagined that the First Amendment to the U.S. Constitution might deter image-conscious officials from pursuing such attacks on their adversaries’ speech. But it has not deterred Sen. Whitehouse.
Law professor Jonathan Adler, by the way, has already pointed out that Sen. Whitehouse’s op-ed “relies on a study that doesn’t show what he (it) claims.” And Sen. Whitehouse, along with Sen. Barbara Boxer (D-Calif.) and Edward Markey (D-Mass.), has been investigating climate-dissent scholarship in a fishing-expedition investigation that drew a pointed rebuke from then-Cato Institute President John Allison as an “obvious attempt to chill research into and funding of public policy projects you don’t like…. you abuse your authority when you attempt to intimidate people who don’t share your political beliefs.”
“…the Seychelles or Tonga would have worked just as well.” David Rivkin and Andrew Grossman say President Obama is using international law to advance domestic controls on the sly.
- Enviro activists unlawfully block coal ship, Massachusetts prosecutor expresses approval by dropping charges [James Taranto, Jacob Gershman/WSJ Law Blog, ABA Journal]
- Unfortunately-named Mr. Threatt charged with “robbery that happened while he was in jail” [Baltimore Sun via @amyalkon]
- “How conservative, tough-on-crime Utah reined in police militarization” [Evan McMorris-Santoro, BuzzFeed] More: What if we needed it someday? San Diego Unified School District defends acquisition of armored vehicle [inewsource.org] And Senate hearing [AP]
- “Machine-based traffic-ticketing systems are running amok” [David Kravets, ArsTechnica]
- Thanks, Fraternal Order of Police, for protecting jobs of rogue Philadelphia cops who could cost taxpayers millions [Ed Krayewski; related earlier]
- Study: returning from 6- to 12-person juries could iron out many racial anomalies at trial [Anwar et al, Tabarrok]
- Courts can help curb overcriminalization by revitalizing rule of lenity, mens rea requirement [Steven Smith]
- California resists idea of charging market-clearing rate for water — too much like economics — and instead encourages tattling on neighbors [New York Times, Coyote]
- Academia smitten by notion of “climate reparations” [Peter Wood, Minding the Campus]
- Costly market intervention: “Minnesota doubles down on nation’s top biodiesel law” [Watchdog]
- Reusable grocery bags have their problems for sanitation and otherwise, but California contemplates banning the alternatives [Katherine Mangu-Ward, Steven Greenhut, Reason]
- Coming: film about Kelo v. City of New London eminent domain case [Nick Gillespie, Ilya Somin]
- 45 years later: the famous 1969 fire on the Cuyahoga became a fable for its age [Jonathan Adler on the Cuyahoga]
- Should beachfront owners have to open their land to all comers? [NY Times “Room for Debate”]
- Plus: “EPA has no business garnishing wages without due process” [Examiner editorial, earlier]