WHY FREE SPEECH DOES NOT INCLUDE DENYING CLIMATE CHANGE: A LEGAL EXPLANATION

/ November 7, 2016  Columbia Undergraduate Law Review

The right to free and pro­tect­ed speech is one of the cor­ner­stones of a de­mo­c­ra­t­ic so­ci­ety that stress­es tol­er­ance to­wards dis­agree­ments. Nonetheless, the im­per­a­tive for free speech can fre­quent­ly come in con­tact with dif­fer­ing pub­lic pol­i­cy pri­or­i­ties. Notably, in the United States, courts have gen­er­al­ly ruled on the side of free speech com­pared to their European coun­ter­parts. [1] Nonetheless, there still have been plen­ty of times when the courts have ruled that the gov­ern­ment has a le­git­i­mate in­ter­est in cen­sor­ing cer­tain kinds of speech – and, cru­cial­ly, one of those in­stances is the ef­forts on be­half of oil and gas com­pa­nies to mis­lead the pub­lic on cli­mate change.

The pol­i­cy choic­es that are made in the next few years will have strong im­pli­ca­tions of life on the plan­et earth for mil­len­nia, ac­cord­ing to a group of es­teemed cli­mate sci­en­tists from around the world. [2] There is an over­whelm­ing sci­en­tif­ic con­sen­sus that cli­mate change is not on­ly re­al but that it is an­thro­pogenic. [3] The con­se­quences of unchecked cli­mate change are pro­found: mass mi­gra­tions, wide­spread star­va­tion and drought, dev­as­tat­ing sea lev­el rise, and glob­al eco­nom­ic and po­lit­i­cal in­sta­bil­i­ty. [4] Although over one hun­dred coun­tries came to­geth­er last year in Paris to make com­mit­ments to ad­dress cli­mate change, a coali­tion of groups with en­vi­ron­men­tal con­cerns in­clud­ing the National Resource Defense Council and the Union of Concerned Scientists be­lieve that the US is mov­ing too slow­ly and have helped launched a le­gal of­fen­sive against fos­sil fu­el com­pa­nies led by sev­er­al state at­tor­neys gen­er­al. [5]

The at­tor­neys gen­er­al of sev­er­al states – no­tably, California, New York, and Massachusetts – have filed law­suits against ExxonMobil on charges of civ­il rack­e­teer­ing. [6] The at­tor­neys gen­er­al al­lege that Exxon Mobil knew about cli­mate change and its risks for years, fund­ed cli­mate change de­nial re­search, and en­gaged in ef­forts to de­lib­er­ate­ly mis­lead the pub­lic. Independent jour­nal­ism in­ves­ti­ga­tions sug­gest that Exxon re­searchers were warn­ing the com­pa­ny about cli­mate change since the 1980s. [7] And al­though the com­pa­ny in the ear­ly days de­nied that such warm­ing was hap­pen­ing, ExxonMobil qui­et­ly made ad­just­ments to their op­er­a­tions ac­count­ing for pro­duc­tion cost in­creas­es due to ris­es in sea lev­el as well as planned drilling in ar­eas that would be more ac­ces­si­ble with the melt­ing of Arctic ice. [8]

Exxon has not stood idly by in the face of this new le­gal of­fen­sive. Exxon filed two law­suits in 2016 against the Virgin Islands and Massachusetts Attorneys General, two of the peo­ple in­volved in the ini­tial group of AGs who had pros­e­cut­ed Exxon. [9] Exxon ar­gued that the ef­forts on be­half of these AGs to sub­poe­na decades’ worth of in­ter­nal com­pa­ny doc­u­ments is a thin­ly veiled po­lit­i­cal ex­er­cise that vi­o­lates the company’s right to dis­agree with the cli­mate change con­sen­sus. Moreover, Exxon claims that it does in­deed rec­og­nize the con­sen­sus be­hind cli­mate change and that it sup­ports a car­bon tax. [10]

As ev­i­denced by this le­gal of­fen­sive against Exxon, the in­ter­sec­tion be­tween free speech and cli­mate change is cur­rent­ly the ground ze­ro site of con­flict be­tween the state AGs and Exxon. But what are the broad­er le­gal con­cepts at play here? The ques­tion comes down to whether Exxon’s dis­agree­ments with the con­sen­sus on cli­mate change is an ex­er­cise in free speech or a fraud­u­lent at­tempt to mis­lead the pub­lic.

An ex­am­i­na­tion of a sim­i­lar land­mark law­suit against the to­bac­co in­dus­try pro­vides a le­gal foun­da­tion by which to ex­am­ine the Exxon law­suits. The key law that op­po­nents of Exxon are us­ing to charge them with fraud is the same one that was used against the to­bac­co in­dus­try: the 1970 Racketeer Influenced and Corrupt Organization Act, al­so known as RICO. [11] Although the law was orig­i­nal­ly used to tack­le or­ga­nized crime, the Department of Justice suc­cess­ful­ly used RICO to pros­e­cute the to­bac­co in­dus­try in the 1990s. [12] The probes that re­sult­ed as a re­sult of the in­ves­ti­ga­tion re­vealed that to­bac­co com­pa­nies were pur­pose­ful­ly ly­ing to the pub­lic about the harm­ful ef­fects of cig­a­rette smok­ing. Similarly, cli­mate ad­vo­cates are en­cour­ag­ing an in­ves­ti­ga­tion un­der RICO not on­ly to hold Exxon ac­count­able, but al­so to learn more about the ex­tent to which ExxonMobil knew about the harm­ful ef­fects of cli­mate change.

Critics con­tend that in­ves­ti­ga­tions in­to Exxon, how­ev­er, are shame­ful­ly po­lit­i­cal­ly mo­ti­vat­ed and an as­sault on free­dom of speech. [13] Supporters of Exxon ar­gue that such law­suits are in­tend­ed to sti­fle well-merited sci­en­tif­ic de­bate about the ef­fects of cli­mate change. Moreover, they ar­gue that even if Exxon had ful­ly ac­knowl­edged the harm­ful ef­fects of the cli­mate change, they still would have re­ceived fi­nan­cial sup­port from the pub­lic and in­vestors sim­ply giv­en how re­liant so­ci­ety is on fos­sil fu­els. [14]

These claims, how­ev­er, large­ly miss the point that cli­mate ad­vo­cates make. There is very much a dif­fer­ence be­tween a con­tro­ver­sial ex­pres­sion of free speech and a de­lib­er­ate at­tempt to mis­lead the pub­lic on a mat­ter that is of vast im­por­tance to the liveli­hood of every in­di­vid­ual. As the pre­vi­ous land­mark law­suits against the to­bac­co in­dus­try prove, there is le­gal prece­dent for pros­e­cut­ing this kind of ma­li­cious cor­po­rate be­hav­ior. The Exxon law­suit is not about sti­fling hon­est sci­en­tif­ic de­bate; the ev­i­dence is clear that the de­bate about the re­al­i­ty of cli­mate change has been over for a while now. Although it is un­for­tu­nate that cli­mate change has been very much politi­cized in the United States, this law­suit is not and should not be about scor­ing po­lit­i­cal points, but rather about fos­ter­ing re­spon­si­ble cor­po­rate be­hav­ior and paving the way for bold ac­tion on cli­mate change. Ultimately, it re­mains to be seen if the pol­i­tics of the mo­ment can be over­come to en­cour­age more a more re­spon­si­ble dis­course on cli­mate change.

 

Notes:
  1. National Public Radio, “Held Dear In U.S., Free Speech Perplexing Abroad”, NPR, Sept 12th, 2012. http://www.npr.org/2012/09/19/161439562/held-dear-in-u-s-free-speech-perplexing-abroad []
  2. Clark, Peter, Jeremy Shakun, et al. “Consequences of twenty-first cen­tu­ry pol­i­cy for multi-millennial cli­mate and sea-level change”, Nature Climate Change, Feb 8th, 2016. http://www.nature.com/nclimate/journal/v6/n4/full/nclimate2923.html []
  3. IPPC, 2013: Summary for Policymakers. In: Climate Change 2013: The Physical Science Basis. Contribution of Working Group I to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change [Stocker, T.F., D. Qin, G-K. Plattner, M. Tignor, S.K. Allen, J. Boschung, A. Nauels, Y. Xia, V. Bex, and P.M. Midgley (eds.)]. Cambridge University Press, Cambridge, United Kingdom, and New York NY, USA. []
  4. US Department of Defense, “National Security Implications of Climate-Related Risks and a Changing Climate”, May 27th, 2015, http://archive.defense.gov/pubs/150724-congressional-report-on-national-implications-of-climate-change.pdf?source=govdelivery []
  5. Schor, Elana, and Andrew Restuccia, “Exxon Scrambles to Contain Climate Crusade”, Politico, May 9th, 2016, http://www.politico.com/story/2016/05/exxon-climate-campaign-222920 []
  6. Ibid. []
  7. Jerving, Sara, Katie Jennings, Masako Hirsh, Susanne Rust, “What Exxon Knew About the Earth’s Melting Arctic”, Los Angeles Times, Oct. 9th, 2015, http://graphics.latimes.com/exxon-arctic/ []
  8. Id. []
  9. Banerjee, Neela, “Exxon and Its Allies Invoke First Amendment to Fight Climate Fraud Probes”, Inside Climate News, April 22nd, 2016, https://insideclimatenews.org/news/21042016/exxon-competitive-enterprise-institute-cei-climate-change-fraud-investigation-first-amendment-rights []
  10. Schor, Elana, and Andrew Restuccia, “Exxon Scrambles to Contain Climate Crusade” []
  11. Bob Simison, “ExxonMobil Faces Heightened Risk of Climate Litigation, Its Critics Say”, Inside Climate News, Sept 20th, 2015, https://insideclimatenews.org/news/23092015/ExxonMobil-May-Face-Heightened-Climate-Litigation-Its-Critics-Say []
  12. HG Legal Resources, “RICO Law”, https://www.hg.org/rico-law.html []
  13. Lowry, Rich, “Eric Schneiderman and His Gang of AGs Are Trampling the First Amendment”, National Review, April 19th, 2016, http://www.nationalreview.com/article/434219/exxon-climate-change-case-outrageous []
  14. Id. []