- Subpoena turnabout not fair play: Congressional Republicans investigating state AGs’ climate advocacy probe are lobbing subpoenas at private enviro groups that urged the anti-speech campaign. Knock it off, two wrongs don’t make right [Eli Lehrer and earlier] “You don’t need complicated models to figure out what happens when governments censor speech. The evidence on that question is solid.” [Steve Simpson]
- And speaking of fraud in policy advocacy (whatever that may mean) some varieties of it are plainly going to have no legal consequences whatsoever [Matt Welch channeling Virginia Postrel on California political class and high-speed rail]
- Michigan attorney general Bill Schuette says 40 anti-pipeline activists gathered and beat on the front door of his home for 30 minutes with his wife alone there [Detroit News]
- Pro-nuclear demonstrators blockade Greenpeace office in San Francisco, but wouldn’t the ultimate way to protest an odious environmental group be to respect the property rights of all concerned? [SFist]
- “It’s a shotgun approach”: injury lawyers find many defendants to blame after Flint public water fiasco [NPR via Renee Krake, Legal Ethics Forum]
- “District court voids Obama administration fracking regulations” [Jonathan Adler, Alden Abbott]
Speaking of infringements on what is now the scope of attorney-client privilege, an Oregon law professor has proposed to make environmental protection part of lawyers’ ethical duties. [Daily Climate; Tom Lininger, “Green Ethics for Lawyers,” Boston College Law Review, 2016; Scott Greenfield] Some backers hope the idea will encourage lawyers representing the fossil fuel industry, in particular, to disregard conventional attorney duties of loyalty to clients; indeed, it might someday serve as grounds for them to be disciplined if they refrain from betraying client interests in various situations.
- Supreme Court should clarify whether agency has discretion to ignore any and all costs in designating Endangered Species Act habitat [Ilya Shapiro and Randal John Meyer on Cato certiorari amicus in Building Industry Association of the Bay Area v. U.S. Dept. of Commerce]
- Unanimous decision in Corps of Engineers v. Hawkes is second SCOTUS ruling this year against Environmental Protection Agency, and umpteenth blow to its reputation [Ned Mamula, Cato]
- Speaking of billionaires with vendettas against speech: Tom Steyer of San Francisco pushes New Hampshire attorney general to join probe of wrongful climate advocacy [Mike Bastasch, Daily Caller, earlier here, etc.]
- “Modern zoning would have killed off America’s dense cities”: 40% of Manhattan’s buildings couldn’t be built today because they would violate a law [New York Times, Scott Beyer/Forbes]
- And if anyone should know about tainting it’s them: United Nations human rights bureaucracy probes Flint water contamination [Associated Press]
- Anti-fossil-fuel demonstrators block rail line and the Associated Press can’t find a single critic to quote [related, Shift Washington]
- Remembering William Tucker, author of books on many subjects including the 1982 classic on environmentalism, Progress and Privilege, and a valued friend of long standing [RealClearEnergy, where he was founding editor]
- Scalia took lead in defending property rights vs. regulatory takings, but mostly not by deploying originalist analysis. A missed opportunity, thinks Ilya Somin;
- What? Children in parts of Saginaw, Grand Rapids, Muskegon, etc. have higher blood lead levels than in Flint [Detroit News] Flint water department didn’t use standard $150/day neutralizing treatment. Why not? [Nolan Finley, Detroit News] Children in Michigan generally ten years ago had higher prevalence of lead in blood at concern thresholds than children in Flint today [David Mastio, USA Today] Earlier here and here;
- On eminent domain, Donald Trump and Ted Cruz seem to be “talking past each other, about two different things” [Gideon Kanner]
- Saboteurs going after Canadian pipelines [CBC]
- “Mission or Craftsman style” was insisted on, but the resulting vacant lot doesn’t seem to be either: south L.A. grocery scheme dies after decade-long urban-planning fight [Los Angeles Times]
- As prices plunge: “Where Have All the Peak Oilers Gone?” [Ronald Bailey, Reason]
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.”)
An editorial in this morning’s Wall Street Journal is blunt:
Advocates of climate regulation are urging the Obama Administration to investigate people who don’t share their views.
Last month George Mason Professor Jagadish Shukla and 19 others signed a letter to President Obama, Attorney General Loretta Lynch and White House science adviser John Holdren urging punishment for climate dissenters. “One additional tool — recently proposed by Senator Sheldon Whitehouse — is a RICO (Racketeer Influenced and Corrupt Organizations Act) investigation of 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,” they wrote.
In other words, they want the feds to use a law created to prosecute the mafia against lawful businesses and scientists. … [RICO] can inflict treble damages upon a defendant. Enacted to stop organized crime and specifically to prosecute individuals tied to loansharking and murder-for-hire, it was long seen as so powerful a tool that the government warned prosecutors to limit its use.
The scientists’ RICO letter was “inadvertently posted” on the website of a group almost entirely funded by taxpayers [Ian Tuttle, National Review Online; Coyote] Rob Nikolewski at Watchdog.org has more on the letter and its aftermath, and quotes me:
Walter Olson, senior fellow at the libertarian Cato Institute’s Center for Constitutional Studies, thinks that’s a dangerous step to take.
“This is core political persuasion,” Olson told Watchdog.org. “If this is illegal racketeering, then potentially an awful lot of things that people debate about are also illegal racketeering … It’s a dangerous power because it won’t be used even-handedly.”
Scientists’ “Letter To President Obama: Investigate Deniers Under RICO” is exactly what it sounds like [Greg Laden, ScienceBlogs] We earlier noted, as a step toward attaching legal consequences to unwanted advocacy, Sen. Sheldon Whitehouse’s (D-R.I.) op-ed “urg[ing] 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,” as well as Gawker’s call to “arrest climate change deniers.”
P.S. For more on the widely publicized book Merchants of Doubt by Naomi Oreskes and Erik Conway, which condemns various scientists said to be too skeptical of the factual basis for regulation, see links gathered by Judith Curry, including this Reiner Grundmann review. Yet more: “I have no idea how it affects the First Amendment” says Vermont scientist who backs probe of wrongful advocacy [Bruce Parker/Watchdog, quotes me]
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]
- Natural experiment in greater Dallas area on whether fracking is good for local land values or not [Peter Van Doren, Cato]
- Inclusionary zoning drives up housing costs, allowing greater density would be better way to serve interests of poor [Scott Beyer] “The ‘Plan Bay Area’: Restricting Housing Development Isn’t Reform” [Jonathan Wood and Randal O’Toole, Forbes/Cato]
- “Poorly argued, destructive in intent”: Vatican’s eco-encyclical is old nonsense in green new garb [Andrew Stuttaford, Secular Right]
- “Lion hunters warn U.S. conservation rules could backfire” [Helen Nyambura-Mwaura, Reuters]
- California’s notorious Prop 65: any hope for reform? [Cal Biz Lit, more]
- Citizen suits and consent decrees: in New England, “Conservation Law Foundation wields tremendous power” [Peter Ubertaccio, WGBH]
- “EPA Shifts its Legally Suspect ‘Environmental Justice’ Agenda into Higher Gear” [Glenn Lammi, WLF]
- Breaking: Supreme Court rules 5-4 against EPA on Clean Air Act power plant emissions rule [CNN, Michigan v. EPA, Daniel Fisher, Andrew Grossman]