Wednesday, July 13, 2016

Strange times, despicable behavior, weird headlines

A few months ago, a band of Attorney Generals from seventeen states and led by the AG of the US Virgin Islands launched a shameful effort to deprive US citizens of their First Amendment rights. It was shocking in its naked grab for power. The position of the AGs was that the science of climate forecasting was so well understood that any disagreement with government, supranational and NGO climate forecasts constituted fraud.

The claim was absurd on the face of it. No science is ever settled. We are constantly adding, modifying and changing our understanding. Climate science is one of the more dynamic fields and one of the most difficult to comprehend. Climate is a complex, multi-system, dynamic, self-regulating to a degree, non-linear in nature and is handicapped by a paucity of reliable data records. Climate forecasting models have been consistently wrong and are constantly being redesigned to take into account newly understood aspects such as the affect of clouds, heat reflection, deep ocean heat storage, distinctions between volcanic dust and man made pollutants, etc. If the science were well settled, our models would provide accurate forecasts of the future and models for understanding the past. They do not.

Since the first Intergovernmental Panel on Climate Change report in 1990, it has been apparent that climate change has been simply a fig leaf for seizure of additional money and power by unelected groups and governmental entities. The crude models were then used to justify a demand for centralization of policy decision making and massive money transfers. The more sophisticated, yet still as wrong, models today still serve the same purpose.

In the subsequent quarter century the climate change authoritarian advocates have continued as they began. We had the East Anglia University data hack that revealed that all the data for the initial models had been massaged and that they had maintained no record of who changed the data, how they changed it, and under what rational the data was massaged. There was the revelation of the hockey stick model fraud. There was the uncovering of the trove of emails among the parties at the center of climate change advocacy revealing that they were coordinating with one another to actively suppress science papers that challenged or refuted their positions. There was the coordinated effort to suppress the existence and implications of the Medieval Warm Period and subsequent Little Ice Age. There was the denial that the most stable and unadulterated data (satellite temperature measures), which showed no warming, had any relevancy. There was the constant changing of goal posts and statistical game playing in order to pronounce each year warmer than the last. There was the constant effort to evoke weather as evidence of climate change and then denying the relevancy of weather when it failed to deliver the evidence expected. And on and on.

There is no doubt that climate change is real. There is little doubt that human activities have a reasonable probability of affecting that change in some fashion. But which activities, to what degree, and in what fashion remain very much open questions. We simply don't know. But "Don't know" lines no political pockets, funds no grant research, justifies no exercise of power, and elevates no busybodies over their fellow citizens. Hence, the claim that the science is settled. Regardless of the data.

Into this environment steps the US Virgin Islands Attorney General Claude Walker and sixteen of his nearest and dearest fellow AG authoritarians. In March of this year he issued a subpoena demanding that Exxon Mobil provide copies of communications between the oil company and 90 different political and policy organizations as well as communications with any other organizations engaged in research or advocacy concerning Climate Change or policies.

Can you imagine? A Federal government official exercising the power of government to go on a fishing expedition into the lives and activities of private citizens on the wispy foundation that the AGs understand the science of climate change so much better than anyone else that any contra-position constituted fraud? What a naked display of authoritarianism and ignorance. And to make it perfectly clear that this was a political suppression of free speech, Walker included in his request not just information related to the science but also the respondents' donor lists. You can't get more corruptly political than that.

One of the entities was the Competitive Enterprise Institute and they responded:
The subpoena that you served on the Competitive Enterprise Institute (“CEI”) is a blatant attempt to intimidate and harass an organization for advancing views that you oppose. There is no way to understand your demand that CEI turn over all of its internal documents concerning climate change and its communications with a corporation, ExxonMobil, other than as an effort to punish it for its public policy views, chill its associations, and silence its advocacy.

You acknowledged as much in your remarks at the March 29 “AGs United for Clean Power” press conference in New York. You said that you launched this investigation not to carry out any law-enforcement duty, but to “make it clear to our residents as well as the American people that we have to do something transformational” about climate change, stop “rely[ing] on fossil fuel,” and “look at reliable energy.” You are entitled to your opinions on public policy, but you have no right to wield your power as a prosecutor to advance a policy agenda by persecuting those who disagree with you.

That is, in fact, the law: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” West Virginia State Board of Education v. Barnette, 319 U.S. 624, 642 (1943). The freedoms of belief and expression guaranteed by the Constitution do not yield even to government officials’ insistence that some perceived crisis demands urgent action, the niceties of the law be damned. That is when the right to dissent matters most.

Your demand on CEI is offensive, it is un-American, it is unlawful, and it will not stand. You can either withdraw it or expect to fight, because CEI strongly believes that this campaign to intimidate those who dissent from the official orthodoxy on climate change must be stopped.

I agree, and would also note that the law does not allow government officials to violate Americans’ civil rights with impunity.
Exxon Mobil, CEI, several Republican Attorney Generals all called the Group of 17 on their totalitarian actions. Claude Walker withdrew his subpoena in May but the other AGs remain eager to suppress. As constitutional law professor Glenn Harland Reynolds noted:
Federal law makes it a felony “for two or more persons to agree together to injure, threaten, or intimidate a person in any state, territory or district in the free exercise or enjoyment of any right or privilege secured to him/her by the Constitution or the laws of the Unites States, (or because of his/her having exercised the same).”

I wonder if U.S. Virgin Islands Attorney General Claude Walker, or California Attorney General Kamala Harris, or New York Attorney General Eric Schneiderman have read this federal statute. Because what they’re doing looks like a concerted scheme to restrict the First Amendment free speech rights of people they don’t agree with. They should look up 18 U.S.C. Sec. 241, I am sure they each have it somewhere in their offices.


As the Supreme Court wrote in West Virginia Board of Education v. Barnette, “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.”
Then the House of Representatives got involved. Thank goodness for our republican and divided structure of government that tends, imperfectly, to be self-healing against totalitarian power grabs. Congress is now going after the Attorney Generals. In doing so they are bringing back reminders of past times and weird headlines. Such as Liberal AGs Invoke States’ Rights in Climate Change Feud With Congress by Jacob Gershman.

States' Rights? What is this, the 1960s? Democratic Party AGs claiming States' Rights? But that then forces the recollection that it was in fact Democratic Party AGs asserting States Rights in the 1960s. The right to segregation, separate but equal schools, property-baed voting rights, separate water fountains and back of the bus regulations. Bull Connor, Democrat, Birmingham's Commissioner of Public Safety, and indeed Democrat National Convention Member whose actions led to King's Letter from Birmingham Jail. Those States Rights' people? The WSJ article notes:
The Tenth Amendment states’ rights movement is typically associated with tea party activists.

But two blue-state liberal state attorneys general are invoking the U.S. Constitution’s limits on federal powers in a showdown with a GOP-led congressional committee looking into their climate change investigations.

A coalition of law-enforcement officials led by New York Attorney General Eric Schneiderman has been digging into whether Exxon misled investors and the public by downplaying the impact of global warming.

The inquiries have the drawn the ire of Republican leaders of the House Science, Space and Technology Committee who say Mr. Schneiderman is mounting a campaign of intimidation in coordination with environmental groups and trial lawyers.


Mr. Schneiderman and Ms. Healey, both of whom stand behind their climate-change work, are balking at the committee’s document demands, saying their offices are insulated by the Tenth Amendment.

It’s questionable whether the Tenth Amendment would shield them, says Vanderbilt University law professor Robert Mikos.

The Constitution restrains the federal government from compelling state legislatures and state officers to enforce federal laws. But it’s doubtful, the professor said, it would apply to the situation here where Congress is looking to remedy an alleged constitutional violation committed by a state authority.


Congress, he wrote in a letter last week, has the authority to examine an effort to “deprive companies, nonprofit organizations and scientists of their First Amendment rights and ability to fund and conduct scientific research…free from threats of prosecution.”

Exxon has leveled similar charges in court papers, describing Ms. Healey’s probe as an “abusive fishing expedition into ExxonMobil’s climate change research over the past 40 years.”
Strange times. It seems like we ought to have a better political class than is in evidence now.

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