Sensing the Walls Closing In, NY AG Tries for Reboot of Failed Climate RICO Effort

Schneiderman buddies

New York Attorney General Eric Schneiderman poses at a march with #ExxonKnew proponents Sens. Sheldon Whitehouse (D-RI) and Bernie Sanders (I-VT), and 350.org cofounder Bill McKibben.

As EID highlighted last week, New York Attorney General Eric Schneiderman – after months of telling us his investigation into ExxonMobil was about the company “knowing” about climate change in the 1970s and 1980s and keeping those findings secret – is now telling the New York Times that he’s not actually investigating what Exxon knew, but what Exxon predicts. EID has the whole rundown on what the New York Post editorial writers said was a “pathetic new pretext for probing Exxon” here.

But Schneiderman’s complete change of tune last week is stunning for another reason: he’s pretty much rejecting his activist friends’ #ExxonKnew narrative even though they have been working closely with his office from the outset. In the New York Times interview, Schneiderman specifically makes a point to downplay their role:

Mr. Schneiderman has also been accused of conspiring with environmental groups, but he said, “People bring information to us all the time. If it’s got merit to it, we follow up on it.”

Groups like the Union of Concerned Scientists have investigated the fossil fuel industry for years, he said, and so “it would be malpractice for us not to meet with people like this.”

Of course, Schneiderman has had much more than what he described as a casual relationship with the groups pushing #ExxonKnew. In a June 8, 2012 speech, Schneiderman specifically singled out Senator Sheldon Whitehouse (D-RI) and 350.org co-founder Bill McKibben, without whom, he said, he wouldn’t be attorney general.

“I wouldn’t be here without a lot of the people in this room. Well, I would be here, but probably not as the New York State Attorney General… Lily Eskelsen, Tammy Baldwin, Sheldon Whitehouse, Bill McKibben, Mayor Taveras, it’s an honor to be here.” (emphasis added; 0:31 to 0:50)

Senator Whitehouse was the first one to kick off the #ExxonKnew campaign last year through an op-ed in the Washington Post pushing for a federal RICO campaign against the industry. Bill McKibben has been an aggressive cheerleader for climate investigations, engaging in a number of publicity stunts (his most recent op-ed, arguing that Exxon “murdered” the world’s coral reefs, stands out as perhaps his most outlandish).

And as the photo above clearly shows, Schneiderman was able to join his buddies – Whitehouse and McKibben – at the New York climate march in 2014. Here’s what he had to say when interviewed:

“I’m proud to be part of it. My Environmental Protection Bureau and other lawyers who work on these issues are here with us. And we’re just [a] committed part of this movement.”

schneiderman ruffalo

One of Schneiderman’s biggest fans is actor and anti-fracking activist Mark Ruffalo, who has held fundraisers for him and enthusiastically endorsed him for attorney general.  As Ruffalo said in 2010:

“We’ve been looking for champions, and someone like Eric Schneiderman is the kind of person – AG, attorney-general – who’s going to fight for the people and not the corporations. … He’s the kind of attorney general we need right now at this time.”

Schneiderman is also a pretty big supporter of the antics of Tom Steyer.  During a speech hosted by the New York City Bar Association he gave Steyer a ringing endorsement:

“I have to say, I can’t really argue with Tom Steyer’s effort to say climate deniers have no place in public life in America in 2014…Our first and foremost responsibility is to create the political imperative in the United States for our leaders to take action.”

EID has noted before that several batches of FOIA’d emails have revealed just how cozy Schneiderman’s office has been with the activists behind the #ExxonKnew campaign. They showed that Peter Frumhoff of the Union of Concerned Scientists and Matt Pawa, who was on the board of the Climate Accountability Institute, were invited by Schneiderman’s office to brief the AGs ahead of their now infamous March 29th press conference with Al Gore. Not only that but Lem Srolovic of Schneiderman’s office told Matt Pawa not to tell a Wall Street Journal reporter that he had briefed the AGs ahead of their press conference: “My ask is if you speak to the reporter,” Srolovic said, “to not confirm that you attended or otherwise discuss the event.”

Frumhoff and Pawa’s groups – Union of Concerned Scientists and the Climate Accountability Institute – organized the 2012 La Jolla Conference at which activists brainstormed ways they could launch racketeering investigations into ExxonMobil.

After all this came to light, activists tried to act like it was totally normal for them to be hanging out at the AG’s office, and some of their allies in Congress organized a friendly forum where they could safely admit that they had briefed Schneiderman and other AGs. For instance, Naomi Oreskes, author of Merchants of Doubt and board member of the Climate Accountability Institute, said,

I was invited about a year or so ago to New York to speak to the staff of the New York Attorney Generals’ office mostly about the work we did in Merchant of Doubt … And I also participated a few weeks ago in a meeting in Boston with some colleagues from the Union of Concerned Scientists, which also involved the staff of Attorney Generals offices from a number of states who came to listen to again factual presentations about climate science, history of climate disinformation and also a presentation by Sharon Eubanks who had led the US Department of justice prosecution of tobacco industry under the RICO statues.” (emphasis added)

At that same event, Kathy Mulvey of the Union of Concerned Scientists also admitted,

“Yes, UCS has also been involved in providing information to attorneys general who are moving into the issue on whether these companies violated any state laws in providing this information to shareholders and the public…our chief scientist Peter Frumhoff who’s actually here with me as well and he has briefed a number of the AGs and he co-convened a session with the Harvard law school back in April that was attended by staff (inaudible) many of the AGs (inaudible).”

But it isn’t just a one-off briefing. Remember when the New York Times revealed that activist groups were working closely with the Environmental Protection Agency to help shape the Clean Power Plan? That same kind of collusion is clearly occurring in Schneiderman’s office as well. Recently uncovered emails show that Schneiderman’s staff is in near-constant communication with activist groups on a wide range of issues, from coordinating their approaches to court cases to recommending good restaurants.

Here’s an email showing Lem Srolovic (the same staffer from the New York Attorney General’s office who told activists not to tell reporters they had attended a closed door meeting with the AGs) coordinating its environmental strategies with the Natural Resources Defense Council (NRDC) and Environmental Defense Fund:

 

Healey #1

Healey #2

In one characteristic exchange, a Schneiderman staffer solicits a restaurant recommendation for his parents directly from NRDC’s Executive Director:

Healey #3

In another, the NRDC leadership nominates the same Schneiderman staffer for an award:

Healey #4

Meanwhile, Schneiderman and his allies are refusing to comply with public records laws and have even signed a common interest agreement to keep their correspondence secret.  And all this is happening while legal experts are coming out of the woodwork to criticize Schneiderman’s efforts for being on very shaky legal ground. The critic who most stands out is Columbia Law Professor Merritt B. Fox published an op-ed in the National Law Journal explaining why Schneiderman’s use of the Martin Act doesn’t cut it:

“The Martin Act grants the attorney general extraordinary powers to subpoena private documents without either obtaining a court order, which is required in most ordinary New York criminal proceedings, or the filing of a complaint, which is required in an ordinary civil action and is subject to court review. The Exxon subpoena is an abuse of these extraordinary powers.” (emphasis added)

The New York Post editorial board continues to be one of numerous editorial boards across the country slamming Schneiderman’s efforts, particularly now with his change of tune on the investigation:

It’s a ludicrous stretch: Predicting such political risk is far from a science — and the company discloses the assumptions behind its valuations. Even if Exxon turns out to be wrong, as a spokesman notes, it’s not fraud […] It’s time for him to put the public’s interests before his own desire to please enviro-radicals — and end this probe for good.

Considering how cozy Schneiderman is with the activists pushing #ExxonKnew, it’s very interesting to see him abandon his friends’ narrative in hopes of finding some other justification for his investigation. At any rate, it’s pretty clear what’s motivating Schneiderman – and it’s not the rule of law.

 

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