Abuse of Power: ExxonMobil, Chairman Lamar Smith, and the First Amendment

May 19, 2016 | 5:10 pm
Gretchen Goldman
Former Contributor

Yesterday the New York Times printed a full-page advertisement sponsored by the Competitive Enterprise Institute (CEI), a free-market think tank that has been funded by ExxonMobil and has regularly misrepresented climate science. The ad reads in large font “Abuse of Power” followed by discussion of free speech rights of companies, nonprofits, and individuals to disagree on climate change. The ad claims that attorneys general in several states and the US Virgin Islands are overstepping their roles in investigating ExxonMobil for possible fraud.

The ad raises the issue of abuse of power, so let’s talk about that.

Abuse of power is when a company lies to its investors and the public about climate change impacts and engages on a decades-long campaign of spreading disinformation to the public and decision makers, despite being at the cutting edge of climate science research back in the 1960s. It’s not about ExxonMobil having first amendment rights (as it has claimed), it’s about whether or not the company has committed fraud. The ongoing investigations by attorneys general will determine the answer.

AG Schneiderman and others are investigating ExxonMobil for fraud given evidence suggesting the company knew about climate risks but withheld them from their investors, decision makers, and the public

AG Schneiderman and others are investigating ExxonMobil for fraud given evidence suggesting the company knew about climate risks but withheld them from their investors, decision makers, and the public

Perhaps not coincidentally, this ad appeared just before the upcoming annual shareholders’ meetings of ExxonMobil, Chevron, and Shell, where investors will have the opportunity to ask each company’s leadership about its climate position and policy activities, and to vote on proposals that would hold companies more accountable on their political activities around climate change.

Abuse of power is when a company exploits its vast political network to squash policies that would address climate change. Through the funding of trade associations, think tanks, lobby shops, and individuals with scientific credentials, fossil fuel interests have funneled money into political fights in order to undermine efforts to combat climate change. The Western States Petroleum Association, for example, last year launched an aggressive misinformation campaign to undermine California’s Energy Act and the trade group did so with the backing of its members including ExxonMobil, Chevron, Shell, ConocoPhillips, and BP. These companies are able to work behind the scenes to influence policies through such third-party groups, while maintaining public positions supporting climate action.

Abuse of power is when a company has the audacity to claim it never lied in the first place and cry infringement on its scientific free speech rights when the company itself has worked for years to silence independent scientists. Despite overwhelming evidence that ExxonMobil knew about climate risks and chose to spread misinformation about climate science for decades, the company now inexplicably claims it has always accepted climate science. Beyond that, ExxonMobil, even in recent years, has funded climate contrarian scientists to challenge the overwhelming consensus of scientists on climate change.

To be clear, this isn’t about the first amendment to the US Constitution. As a letter recently signed by 20 legal scholars states, the First Amendment does not protect a defendant from potential liability for false and misleading statements in a commercial context, or from liability for fraud. The First Amendment does not preclude civil liability for deceptive or misleading statements by a commercial entity, even when statements concern contentious political issues.

Abuse of power is when a member of Congress abuses his subpoena power to intimidate scientists.  Chairman Lamar Smith of the House Science, Space, and Technology Committee was granted subpoena power last year and has already wielded it several times to target scientists researching climate change—both scientists within the government and at academic institutions. Despite no evidence of wrongdoing on the part of scientists, Chairman Smith has abused his position of power to intimidate and harass climate scientists who have produced science he doesn’t like.

And abuse of power is when a company, industry group, or politician wields its outsized political resources to silence the voices of the millions of Americans—and many more worldwide—who want action on climate change and are affected by its impacts. Fossil fuel interests can and do spend tremendous sums of money in our political system to lobby, donate to candidates, and support politically active organizations to undermine climate policies, often behind a veil of secrecy. In the end, it is this outsized influence that drowns out the people and threatens our democracy. This is truly an abuse of power.

The CEI ad lists endorsers of its position but a closer look reveals this is simply a list of the usual suspects when it comes to climate change denial and obstruction of climate policies. We are observing ExxonMobil and the climate denial echo chamber begin to feel the heat as pressure builds from the legal community, decision makers, the media, scientists, and the public to hold ExxonMobil accountable for its deception on climate change. When we talk about abuse of power, we should start here.

UPDATE, 5/20/2016: A new analysis from the Climate Investigations Center has found that the supporters listed on the CEI New York Times ad have cumulatively received $10.1 million dollars from Exxon, ExxonMobil, and the ExxonMobil Foundation from 1997 through 2014. Further, three of the signatories—Myron Ebell, Steve Milloy, and David Rothbard—were part of the 1998 Global Climate Science Communications Team convened by the American Petroleum Institute. As discussed in the Union of Concerned Scientists’ Climate Deception Dossiers report, a leaked 1998 memo from this group showed its plan to cast doubt on the public’s understanding of climate science. These new findings further show that the ad’s supporters are simply the usual actors when it comes to Exxon-funded climate denial.

UPDATE, 5/23/2016: For more on Chairman Lamar Smith’s abuse of power, check out Union of Concerned Scientists’ President Ken Kimmell’s blog on Chairman Smith’s request for UCS documents.