Property Rights Foundation of America®
Founded 1994

 

The Right to Dissent from Global Warming Doctrine

Sam Kazman, Esq.
General Counsel
Competitive Enterprise Institute
Washington, D.C.

Twentieth Annual National Conference on
Private Property Rights
October 22, 2016
The Century House, Latham, N.Y.

 

Thank you, Carol. It's a pleasure to be here. It's been a while, a long while, since last time I spoke at one of your conferences. I think it was back when we first caught your attention back in the late '80s when we were representing a couple in Greenwich Village, Manhattan, that was trying to get the right to live in the townhouse they themselves owned and to do that they had to evict several rent controlled tenants. As you might know, evicting a rent control tenant is more arduous than having root canal therapy without anesthesia. But we succeeded. We did succeed. We were not able to turn that into a Constitutional case of taking of property without compensation but they did get to live in the townhouse that they actually did own.

CEI, Competitive Enterprise Institute, is a Washington-based nonprofit group. We're a free-market organization. We've been around for more than thirty years. We focus on over-regulation. We take money from everywhere except the government. We take money from every industry, from every individual, but that does not affect that fact that we stick to a free-market line in terms of policy, in terms of the positions we take.

A lot of what I say is going to involve Eric Schneiderman and I hope you won't regard me as an outsider from far away who has come to badmouth a favorite local boy. I grew up in Manhattan, went to law school in Buffalo. So, even despite my New York creds, I think been most people in this country if they wish to would be justified in criticizing Eric Schneiderman. And the two basic themes I want to hit are one: the First Amendment, which whose importance I don't have to really get into with an audience like this, though it turns out for many government workers across the country they do need a lot of education. That is, reeducation. That's the first issue.

The second issue is global warming, climate change. Some of you may regard this as a question that does not really affect you. And if that's your view, you are dead wrong. Let me read to you something from one of the leading climate change activists on this.

"Climate policy is not environmental policy. It is everything policy. It is transformational, societal policy that touches economics and social justice and how we move and what we buy and where we live and all of the things," all of the things. For those of you who get migraine headaches when you try to find a replacement for an old screw-in incandescent bulb at the hardware store because everything now costs five bucks minimum and most of them don't work in the fixture you need it for, you can blame that, seriously, on the whole global warming push.

So, let me begin with my story. Back in early April, two days, actually, after we got our new president in office, I got called out of a meeting because the was someone there handing me a blue, thick envelope. I knew I had not won anything in the Publisher's Clearinghouse Lottery. I wasn't all too happy about taking it. I opened it up. It was a subpoena to CEI from, of all places, the Virgin Islands. Not Staten Island but the Virgin Islands. And what it demanded was ten years worth of documents covering all our work on climate and energy policy from 1996 to 2006. All of our work. Which would have included, by the way, the identities and contact information for all of our donors. That's what it wanted as part of some alleged investigation into potential fraud by Exxon.

We got this in the middle of the day. We thought by the end of the day a lot of other groups would be getting those subpoenas as well because the subpoena we got talked about special interest to the investigators of about forty other organizations, dozens of other individual researchers. It turned out we were the only nonprofit to actually get a subpoena. Exxon got a subpoena and Exxon's public relations firm got a subpoena. Our first reaction, which we began to issue that day after talking to our outside attorneys, was to scream bloody murder. That this was a blatant violation of the First Amendment. That this had nothing whatsoever to do with law enforcement and that we were damned if we were going to be complying with that.

Now what happened in terms of just the legal battle is that we quickly filed our objections with the local counsel for the Virgin Islands attorney. The Virgin Islands attorney, Claude Walker, had been in office for just a few months. His local counsel turned out to be a plaintiff class action firm that has made its fortune and established its reputation by going to local and state officials and telling them, "Hey, we think we can find problems in your jurisdiction and if we can come to a deal in terms of handling your case we will be rich and you will be richer. Everybody will win. You've got nursing homes in your jurisdiction, we'll find problems with them we'll bring your case. You have gas stations in your jurisdictions, same thing, same thing, same thing. In fact, when we finally got hold of the contract that this firm had with the Virgin Islands attorney, it spoke in terms of they will get 27% of the first two hundred million dollars and then a declining percentage after that. They had big, big numbers in their eyes. And what was the violation they were talking about? Supposedly that Exxon had fraudulently downplayed the risks of global warming. This turned out to be nonsense. They were after us because we have long been skeptical of global warming as this being an alleged transformational thing that requires policies affecting everything you do. But that's who they were going after.

And this actually, all began just a few weeks earlier when Schneiderman held a press conference in Manhattan at which he unveiled something called "State AGs United for Clean Power." The star of that press conference was none other than Al Gore. He was the celebrity, the draw. And they announced that they are going to… this is an unprecedented use of law enforcement tools to protect the progress and to extend the alleged progress that this country had made in its fighting of climate change, in its attempts to invigorate the use of clean energies, sustainable energies, so forth and so on. Just think about that language, "protect the progress made by this country in fighting climate change." Does that sound like law enforcement language to you? Or does it sound like a pure political attempt to push a legislative agenda? It's the latter. This has nothing to do with law enforcement. They call themselves AGs United for Clean Power. We call them AGs United for More Power. We quickly went into D.C. court. We filed a motion under some special statutes that D.C. actually has in that protecting freedom of speech. These are called anti-SLAPP suits. SLAPP stands for strategic litigation against public participation. It's a nice acronym to know in case you ever want to use it. I'd be glad to explain it to you at some point if you'd like.

We had a hearing on June 28th. The Virgin Islands' Claude Walker's local counsel showed up. They're defending what they were doing. She claimed this was all based on traditional law enforcement methods of an investigation, if they were soundly based, blah, blah, blah, blah, blah. Within two days after that court hearing, the Virgin Islands had dropped its subpoena against Exxon and it had dropped its subpoena against us. So much for it being some solidly-based law enforcement tool of investigation. So much for there being some bono fide credentials for it.

We went back into court and said, "You know, counsel told you this was a well-founded investigation and then they yank it two day later? They must have known something was going on when they stood up before you, judge." So, we've now raised the issue of misrepresentation, as well.

Last week, another new development purely in the legal front here was this: Exxon had initially challenged the Virgin Islands subpoena as well. Exxon is based in Texas. They've also been subpoenaed by Eric Schneiderman and by the Massachusetts Attorney General, I think, Maura Healey. They are now fighting the latter two. Virgin Islands has dropped its subpoena. Last week, the federal judge said there were good indications of bad faith by the Massachusetts AG in bringing this subpoena because the press conference, the internal emails, the fact that there was a strong background here of environmental activists having tutored these folks in how to bring this sort of campaign all indicated that this was not law enforcement. It was politics under another name. And because of these indications of bad faith they've now opened up both Schneiderman and the Massachusetts AG to actual discovery to being interrogated and to being deposed. We, of course, have gone out and followed that with the court. So, on the pure legal front we have… we're waiting a decision. We think things are looking good. Meanwhile, Schnedierman's coalition, which consisted of about seventeen or eighteen other state AGs has slowly — actually, rather quickly — begun to fall apart. A number of AGs quickly got cold feet. A number of AGs thought that the Virgin Islands guy was totally off his rocker. They were not expecting opposition from us. They thought Exxon was going to roll over as so many other corporations have rolled over in the past. But Exxon, in fact, is putting up one hell of a fight. So, from that standpoint I think there's going to be a happy outcome here.

But as I want to get to relatively soon, this is part of a much broader campaign. One: involving the undermining of the First Amendment. Two: involving an attempt to silence skeptics when it comes to the whole global warming debate. One thing that Schneiderman and his cohorts are claiming is that this is just fraud. This is just fraud. And what I say to you is, "Absolutely not." Fraud involves my attempt to sell you a product, my misrepresenting that product and you to your injury, to your regret actually buying the product.

When it comes to policy debates there is no release. There is no such thing as fraud. Quite a few decades ago, the Supreme Court made it clear when it comes to these doctrinal disputes sometimes involving church ideologies, church beliefs, other times involving broad public debates, there is no test of truth. The framers did not intend that government officials be trusted with determining what's correct and what's wrong when it comes to policy debates.

I used to be a smoker. I knew smoking carried quite a few risks especially after the Surgeon General required those warnings on labels back in the mid '60s. But I also thought that if I smoked light menthol, I'm sorry, light nicotine cigarettes, I was diminishing the risk. It turned out the tobacco companies probably knew that I was not doing that. That there was no reduction of risk that it may have actually, ironically, increased risk. In my view that was fraud. And that's the sort of thing that induces me to buy that product. Okay? On the other hand, I have filled up my gas tank thousands of times. Never once did I fill it up picking a brand of gasoline because I thought this brand somehow produces less CO2 that's going to cause less global warming. That was not… CO2 emissions, carbon dioxides issues, global warming issues, were not marketing questions. No one was buying gasoline based on what they thought about global warming.

But Exxon did what its scientists did. It was to produce research papers some of which thought there was a rick some of which thought there was not a risk. You look at those papers, they reflect the entire spectrum, the entire spectrum of global warming views. And, of course, what's going to happen here, what the activists here are trying to do, is select the papers that came up with some findings of a threat and claim, "Aha, Exxon knew!" When Exxon knew nothing of the sort. This was just a varying production of research products by its scientists. Turning that into fraud is the best way to shut down any attempt by any corporation to get its own professional scientists, its own research staff looking into the merits and demerits of what they're producing.

So, I'm not going to give you a big talk on global warming. My colleague, Marlo Lewis, who's coming after me will do that. I don't want to steal his thunder. But let me just give you a few factoids on global warming and then get back to the First Amendment issue.

One: You hear a lot about the claim that 97% of all scientists agree we face a global warming threat. That figure is garbage. Those are not my words. They're the words of one of the leading global warming alarmist scientists who heads one of Britain's foremost climate research centers. In his view it's an embarrassment to see this figure being used in scientific debates. Back in the early 1930s there was a little pamphlet published called "One Hundred Authors Against Einstein." It was one hundred scientific authors opposing his Theory of Relativity. Einstein cracked, "Why one hundred? If just one of them is correct, that's enough." The 97% figure is pure nonsense. Over the last three years, over seven hundred peer-reviewed articles have been published that dispute various aspects of the alleged global warming consensus. Warren Buffet, a pretty well known guy, he's not a Republican. He's a Democrat. He's in favor of higher taxes. He's an expert in the reinsurance business. He recently stated, in the last fifteen years, his insurance companies have seen no increase in either the cost or severity or frequency of extreme weather events. You hear all this talk about global warming, climate change, being responsible for islands sinking — other than Manhattan — and terrible winds. This guy's monetary balance depends on getting it right and that's what he says.

Some people say, "You know, you guys at CEI you call this an inquisition. You know, that is over the top. That's not going on here." Let me read to you something, another quote.

"Global warming really has become a new religion because you cannot discuss it. It's not proper. It's like the Catholic church." I am not quoting a Republican atheist pundit. I'm quoting a 1976 winner of the Nobel physics prize. Not the peace prize because we know what's happened with that. Ivar Giaever. "It is like the Catholic church. You cannot discuss it." You're familiar with something with the Gaia Theory, the notion that the entire Earth is one living organism. That was sort of developed by a man by the name of James Lovelock. He recently also said, "Global warming has become an unprovable ridiculous religion." So, when you think that global warming is so well established that any skeptic should be jailed for disputing it, it is not that well established, whatsoever. And my view is it is not established at all. You ought to be able to still find those twenty-five-cent light bulbs. But you can't because of global warming.

So, let's get back to the First Amendment here. Consider the person who filed that subpoena with us. Claude Walker. He's a Virgin Islands official. Just a few months before he got into this campaign, he settled a case against the Hess Oil Company, which used to have a plant in the Virgin Islands. He got several hundred million dollars out of them because they had shut down their plant and in his view that violated the contract they had with the Virgin Islands. The Virgin Islands gave them tax breaks, probably tax concessions, maybe outright money, to open and run that plant. Now they shut it down. He got several hundred million dollars. He is going after Exxon for producing oil at the same time that he sued Hess and pocketed millions because they stopped producing oil on the Virgin Islands. How does this person get around when he goes to all these conferences in the mainland U.S. and Europe? Unless he swims or uses a sailboat or rows, he is using fossil fuels. He is flying there. And when he lands he takes some limousine and it takes him to a brightly lit up podium stage with electrically powered microphones and he gives a spiel. That's, I think, just one example of the hypocrisy from all of these folks who talk about the need to totally overhaul our energy usage.

Now, a number of state AGs, not only did they not join this coalition but they actually opposed it. Luther Strange, the attorney general for Alabama, and a number of others put out a public letter to Schneiderman saying, "Look, you claim that underestimating, downplaying the risks of global warming, is fraud. Well, it's just as possible that hyping, exaggerating the risks of global warming are just as fraudulent. And we're going to possibly investigate that. We're especially curious about the fact that you had an insider from one venture capital firm which is heavily invested in renewables, in wind power projects, etc., as part of your project. And that venture capital insider is Al Gore."

Now, this thing did not grow out, it did not all begin with this late-March Schneiderman coalition. It's been going on for a while. For over a year there has been a push to get the federal government to use a statute, RICO, which is the Racketeer Influenced and Corrupt Organizations Act statute against what they view as climate denial, illegal climate denial, illegal climate change skepticism. This was a statute aimed at investigating, making it easier to investigate, the Mob and similar outfits. The fact that some people in the White House, some people in Congress, actually seriously propose using that against folks who hold views like CEI does, and like some scientists at Exxon do, I think indicates the extent to which freedom of speech itself is being debased.

Schneiderman held a press conference not too long ago and he decried… came up with a new phrase. He called it "First Amendment opportunism." First Amendment opportunism. Entities are using their alleged right of free speech to hide wrongdoing. Okay? Let's take that opportunism phrase a little further. A policeman knocks at you door. You'd like to see a warrant. What are you engaging in? Fourth Amendment opportunism. Your property is being taken. You'd like compensation. What are you engaging in? Fifth Amendment opportunism. Slapping opportunism under the raising of any of our rights, all of a sudden becomes a bad thing. Why? So that this guy can proceed with his attempt really to push a political agenda by law enforcement means. So, I mentioned this RICO campaign has been going on for over a year. It started a number of months before this subpoena campaign. But before that there were already preparations trying to duplicate what had happened to the tobacco industry as a model for going after the fossil fuel industry, natural gas industry, and the whole coalition of people who do not buy into the government consensus on global warming.

The main result of that whole series of anti-tobacco wars was two things. It made some trial lawyers incredibly rich and many of them then could contribute to the AGs who had given them the contracts to prosecute these lawsuits. It raised prices for smokers. And it made, actually, big tobacco pretty rich, as well. It produced a lot of money for a lot of folks ultimately being paid for by people who choose to smoke. They would love to duplicate this on a financial scale, on a policy impact scale, for any other disfavored industry. And when you're talking about turning the energy industry into a disfavored industry, you're talking about turning energy into a sin product. And, of course, if it's a sin product you get to tax it all you want and people can object only weakly because, "Hey, we shouldn't be doing this. Right?" If you get people buying into the mindset that energy, that affordable energy, is a sin product I think you've got civilization by the throat. In this country it's going to cost us a hell of a lot. In less developed countries, in parts of Africa and Asia, it is a death sentence. You already have countries there where surgeries can only be conducted at certain hours of the daytime because there's no telling whether the electricity is going to keep running. And when those countries want to build coal plants in order to produce more reliable electricity, they get shut down in terms of being eligible for IMF [International Monetary Fund] loans. They get shut down by the U.N. They get shut down by international enviro groups. If you demonize energy you kill progress.

Which comes back to what the previous speaker mentioned that this whole park project was a long complex way of getting rid of what they call urban blight. [See Robert Scalzo's Speech] To many of these people we have global blight and it consists of the fact that people are alive and living their lives and having kids and flourishing. And so, frankly, I see this entire campaign as something that in a roundabout way is aimed at reducing the ability of people, reducing the number of people, the ability of people to live the lives they like, the number of people in terms of children on this planet. It's an anti-human campaign at its worst. Thank you.

Audience Member: As an attorney, would you care to comment on what happens as state attorneys general have done in the last hundred years. I though they were supposed to defend the state. Now, they seem to be off on all kinds of improving social conditions because they don't think legislators are doing that. Do you have any thoughts on that? Who's the worst attorney general?

Mr. Kazman: Yeah, well, we actually put out a compilation every few years of the worst AGs in the country. In the last compilation, which I think came out two years ago, Schneiderman was in the top six. The attorney general in Pennsylvania, I forget her name, who I think is either indicted or in jail, was number one. Pamela Harris in California was pretty high up as well. A number of them have learned their trade in the tobacco wars. And you've got a group called NAAG, the National Association of Attorneys General. Some people call it, it's really the National Association of Aspiring Governors. But they have task forces on lots of social issues and they view themselves, especially when you have a Republican in control of the White House, as being empowered to step in and fill the regulatory vacuum. They will take over when the White House and Congress aren't doing what they think they ought to be doing. So, you asked what's happened to state AGs, they've become politicians. Much of this is facilitated by the fact that they can get campaign contributions from the very law firms who are more than eager to take these cases on at a mere 27% of the first hundred million dollars recovered.

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