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Attorney General Delegates Powers to Tort Lawyer in Exxon Climate Case

June 8, 2016

At a press conference held on March 29, 2016, a coalition of 16 Democratic state attorneys general, the attorney general for the U.S.

exxonmobil

At a press conference held on March 29, 2016, a coalition of 16 Democratic state attorneys general, the attorney general for the U.S. Virgin Islands, and former Vice President Al Gore, announced a collective effort to force remaining climate skeptics to their knees by suing them into silence.

The AGs, who are referring to themselves as AGs United for Clean Power, declared they would “creatively and aggressively” use their powers to force Exxon Mobil, think tanks, and individuals to recognize the debate over whether humans are causing dangerous climate change is over and to accept the green-energy schemes pushed by the Obama administration to end fossil fuel use.

Shawn McCoy, publisher of Inside Sources, questioned the AGs’ motives, writing, “A Bloomberg Review editorial noted that the Exxon investigation is preposterous and a dangerous affirmation of power. The New York Times has pointed out that Exxon has published research that lines up with mainstream climatology and therefore there’s not a comparison to Big Tobacco. So is the investigation a publicity stunt?”

Evidence shows Claude Walker, the attorney general of the Virgin Islands, New York State Attorney General Eric Schneiderman, and the other AGs had been colluding with environmental groups for more than a month before the press conference.

On March 15, two weeks before the press conference, Walker sent a subpoena alleging “conspiracy to obtain money by false pretenses” to Exxon Mobil’s headquarters in Dallas, Texas. He failed to mention this subpoena during the press conference in New York City. He had something to hide, and he hid it.

Private Attorney, Public Power

When Exxon Mobil received Walker’s subpoena, the return address was not the Department of Justice in the Virgin Islands; it was the Washington, DC office of Linda Singer. Walker had delegated his territorial powers to her as his “national counsel” to manage the investigation.

Singer is the perfect lawyer to perform a predatory investigation. She’s a former attorney general of the District of Columbia, a partner in Cohen, Milstein, Sellers and Toll PLLC, which touts itself as “the most effective law firm in the United States for lawsuits with a strong social and political component.”

Singer also has experience using questionable tactics to win lucrative, highly publicized cases, according to a 2014 article in The New York Times titled “Lawyers Create Big Paydays by Coaxing Attorneys General to Sue.” Singer was selected as the Times’ opening profile in its report, which describes how she approached New Mexico Attorney General Gary King with an “unusual proposition.” Singer wanted him “to sue the owner of a nursing home in rural New Mexico that Mr. King had never heard of and Ms. Singer had never set foot in.”

Her proposed lawsuit did not cite any specific complaints about care, only numbers on staffing levels suggesting residents were being mistreated. The New York Times highlighted “the enormous potential payoff for Ms. Singer’s firm if she could persuade Mr. King to hire her and use his state powers to investigate and sue, which he did.”

The payoff in a climate suit against Exxon and others would be even bigger, and as the Times explained, this legal racket is a thriving industry: “Plaintiffs’ lawyers working on a contingency-fee basis have teamed up mostly with Democratic state attorneys general to file hundreds of lawsuits against businesses that make anything from pharmaceuticals to snack foods.”

Defendants Fight Back

ExxonMobil responded to this political lawsuit by suing Walker,  Singer, and Singer’s law firm  for violating the company’s “constitutionally protected rights of freedom of speech, freedom from unreasonable searches and seizures, and due process of law and constitute the common law tort of abuse of process.”

Other victims of Walker’s abuse of process have also gone on the attack. On April 7, a subpoena was served to the Competitive Enterprise Institute (CEI) by Walker, in which he demanded CEI produce e-mails, statements, drafts, and other documents regarding its work on climate change and energy policy—including private donor information—from 1997 through 2007.

CEI responded forcefully to the subpoena. CEI General Counsel Sam Kazman issued a strong statement repudiating the tactics: “CEI will vigorously fight to quash this subpoena. It is an affront to our First Amendment rights of free speech and association for Attorney General Walker to bring such intimidating demands against a nonprofit group. If Walker and his allies succeed, the real victims will be all Americans, whose access to affordable energy will be hit by one costly regulation after another, while scientific and policy debates are wiped out one subpoena at a time.”

In mid-May, CEI took out a full-page ad in The New York Times. The ad text read, “Abuse of Power: All Americans have the right to support causes they believe in,” decrying the unjustifiable attacks on climate skeptics by AGs United for Clean Power.

Reinforcing the view Walker’s actions lack legal merit, just days after the ad ran, Walker withdrew his subpoena against CEI, although his office claims it may re-issue a subpoena in the future.

It seems attorneys general are not as invulnerable as they thought. 

Ron Arnold (arnold.ron@gmail.com) is a free-enterprise activist, author, and commentator.

Author
Ron Arnold is executive vice president of the Center for the Defense of Free Enterprise and a policy advisor to The Heartland Institute.
arnold.ron@gmail.com @ron_arnold

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