State AGs vow to reject Lamar Smith’s ‘staggering’ new subpoena on climate communications

The House Science Committee chair has broadened his request from Exxon Knew to the Clean Power Plan.

House Science Committee Chairman Rep. Lamar Smith (R-TX). CREDIT: AP Photo/Charles Dharapak
House Science Committee Chairman Rep. Lamar Smith (R-TX). CREDIT: AP Photo/Charles Dharapak

Rep. Lamar Smith’s (R-TX) probe into the multi-state “Exxon Knew” investigation was already considered by many an overreach of his authority, and state attorneys general have flat-out rejected his subpoenas. But the fossil-fuel backed congressman is not backing down — instead, he’s doubling down.

Since last spring, Smith has been questioning states’ investigation into Exxon, which has allegedly known the climate impacts of its business since the 1970s. States are investigating whether the company illegally misinformed its shareholders by failing to disclose this risk. The federal Securities and Exchange Commission is also investigating.

Now, Smith has expanded his subpoena to New York and Massachusetts attorneys general to include documents about their offices’ coordination with environmentalists, scientists, and other states over the Clean Power Plan lawsuit, an entirely separate case from the Exxon Knew investigation.

The documents were due to the House Science, Space, and Technology Committee on Wednesday, where Smith holds the gavel, but New York Attorney General Eric Schneiderman and Massachusetts Attorney General Maura Healey are again refusing to comply.

“The breadth of this request is staggering,” Schneiderman wrote back to Smith. Schneiderman continues:

Not only does it facially cover the investigative material previously sought, but it effectively requires the NYOAG to turn over years’ worth of communications from NYOAG attorneys collaborating or consulting with their colleagues in other States. The Chairman of the House Science Committee is not a one-person board of federal review of New York’s and other States’ sovereign decisions about what environment-related legal matters to discuss or pursue. The Tenth Amendment prevents such “tyranny.”

Smith has accused the states’ Exxon Knew investigation of being a “coordinated attempt to deprive companies, nonprofit organizations, and scientists of their First Amendment rights.” In addition to New York and Massachusetts, California has also begun investigating the company.

The AGs argue that it is illegal to mislead shareholders and that Smith has no authority to restrain the states’ law enforcement activities.

But the new subpoena from Smith suggests that rather than backing down from his line of questioning, he’s doubling down. He is now requesting documents not only related to the Exxon investigation, but also related to the states’ work on protecting the Clean Power Plan, the EPA’s beleaguered rule to reduce carbon dioxide emissions from the electricity sector.

Smith’s subpoena has grown broader and broader. CREDIT: Courtesy the Office of the Attorney General of New York
Smith’s subpoena has grown broader and broader. CREDIT: Courtesy the Office of the Attorney General of New York

What is especially problematic about this expansion, Schneiderman’s office says, is that Smith himself filed a brief against the Clean Power Plan.

The fact that a sitting congressman is investigating the opposing side of active litigation has not escaped notice by state legal officers. This week, 15 other attorneys general wrote to Smith, accusing him of conducting an “inappropriate” investigation.

“You are therefore seeking to use your power as a Committee Chair to compel the production of the privileged communications of the sovereign state officers who are your adversaries in ongoing litigation. This is an inappropriate use of your purported authority as Committee Chair,” the attorneys general wrote.

The Clean Power Plan lawsuit has pitted nearly every state on one side or another. The case is expected to be heard at the Supreme Court this year.

Smith has been an outspoken critic of the Clean Power Plan — and, indeed, of any climate science and climate action. He has investigated NOAA’s scientific process (the study held up under scrutiny) and has held numerous hearings on the EPA’s climate programs. Along the way, the oil and gas industry has long been among Smith’s top supporters.

While Smith uses his position to pursue an unprecedented probe into state law enforcement, former Oklahoma Attorney General Scott Pruitt has, over the past two years, successfully evaded releasing emails between his office and oil and gas companies.

During his confirmation hearing to become head of the EPA, Pruitt refused to disclose his correspondence with the industry he’s now tasked with regulating. Instead, he directed senators to ask his office for the emails.

That correspondence was already requested under the Open Records Act by Center for Media and Democracy in 2015. And last month a judge in Oklahoma ordered Pruitt’s office to release the documents — but Pruitt was confirmed before the office had to comply. Some correspondence was released just days later, but more emails remain in limbo, after the AG’s office filed for a stay on the judge’s order.

In a statement following Pruitt’s confirmation, Smith said, “I look forward to working with the Trump administration and Attorney General Pruitt in bringing our country out of an era of red tape and into a more transparent age based on sound science.”