House Republicans and Democrats on the Science, Space and Technology committee sparred Wednesday about whether they have the legal authority to require state attorneys general (AG) to give them documents related to an investigation of ExxonMobil Corp.'s climate change research.
Chairman Lamar Smith (R-TX) for months has probed the probe, initially launched last fall by New York AG Eric Schneiderman (see Daily GPI, Nov. 6, 2015). The investigation has since escalated, with the GOP-led committee seeking jurisdiction over state inquiries into whether the supermajor misled the public about the impact of fossil fuels on the environment (see Daily GPI, June 22).
In July Smith subpoenaed Schneiderman, Massachusetts AG Maura Healey and eight environmental organizations, demanding related documents, but the parties have refused to comply citing constitutional grounds (see Daily GPI, July 18). The AGs claim the House has no authority to intervene.
"The refusal of the AGs should trouble everyone sitting on this diocese, every American," Smith said. "Allowing subpoenaed parties to ignore subpoenas based on the sensitivity of the subject sets a dangerous precedent."
The subpoenas aren't a partisan political effort, but rather are "institutional," the chairman said. "The committee is concerned that such investigations may have an adverse impact on federally funded scientific research. If this is the case, it would be the responsibility of the committee to change existing law and possibly appropriate additional funds to even out any such imbalances caused as a result."
The state AGS, in lieu of cooperation, "have provided a myriad of spurious legal arguments. They say, for example, that the committee lacks authority to conduct this investigation; that responsive documents would be privileged under common law or state law; that the First or Tenth Amendments shield them from having to comply with a congressional subpoena; or that the subpoena is invalid because it is vague and overbroad."
However, ranking member Eddie Bernice Johnson (D-TX), said the committee has harassed law enforcement, environmental groups and federal agency officials, including scientists from NASA. The subpoenas set a dangerous precedent, she said.
"I have to go back to the red scare of the 1950s to find a similar effort," Johnson said. "I hope all the members think about the precedent the chairman is setting here and how you would like it if Democrats were to take the same action as conservative minded groups."
Schneiderman, who is leading the multi-state investigation, argued in a letter that the congressional subpoenas are not allowed under the Constitution and are instead "an improper fishing expedition for the benefit of a private party."
Earlier this week 12 legal scholars from law schools that include Columbia University and Yale University said in a letter to Smith that the committee did not have constitutional authority to issue his subpoenas to the AGs nor any environmental groups. Constitutional law professors who testified before the committee were conflicted.
The U.S. Supreme Court has upheld congressional subpoena power, according to George Washington University's Jonathan Turley. "Legislative authority means nothing if committees can not investigate," he told the committee. Objections raised by the AGs "are not frivolous," he said. "However, this committee clearly has the authority under Article I of the Constitution to demand compliance with its subpoenas. Indeed, those who are arguing for the curtailment of that authority should consider the implications of their arguments for the future. The sweeping claims of the attorneys general and public interest groups would create a gaping hole in the authority of Congress to seek legislative solutions to problems, including problems like climate change."
Law professor Ronald D. Rotunda of Chapman University's Dale E. Fowler School of Law, directed his wrath to the Schneiderman-led investigation. He testified that it was a "violation of free speech, injurious to scientific method, and just plain wrong for the government to threaten scientists and entities -- whether corporation, foundations, or any other entity -- with criminal prosecutions because they do not embrace a belief in human-caused global warming.
"What the government is doing now is chilling scientists who work in this area...If this committee's investigation shows that one or more state attorneys general are chilling scientific investigations into global warming, the committee should offer legislation to increase or redirect federal funds in order to counterbalance this harassment.
"The committee might well propose other remedies," Rotunda said. "However, this committee cannot know the extent of the harassment unless it investigates and it cannot investigate if the state attorneys general refuse to comply with its subpoenas, which are quite limited in time and reasonable in scope." The AGs, he said, "have no privilege to refuse to comply with these subpoenas."
University of Baltimore law professor Charles Tiefer, a former acting general counsel of the House, disagreed. No House committee, he said, "has ever tried or should ever try to enforce subpoenas against state attorneys general...
"When you seek material from state attorneys general on their investigation of climate risk fraud...your position is without constitutional and legal merit. It is simply bogus."
He challenged the other witnesses "to do what their written testimony does not do -- provide written citations for any House committee, in over 200 years of House investigations, to have ever tried to enforce a subpoena against state attorneys general."