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Congress goes to work for Exxon


The House Science Committee is sticking its nose where it doesn’t belong, and conducting an investigation and hearing far beyond its constitutional power.

For years, at the behest of the oil and gas industry, the Committee has held hearing after the hearing challenging the overwhelming scientific consensus that fossil fuel emissions cause global warming.

{mosads}The Committee has the authority to conduct such hearings, and there is no requirement that Committee members consider the evidence with an open mind or be less fawning of industry witnesses. In their own statements, many members shamelessly repeat talking points provided by industry lobbyists.  To date, it’s been distasteful but perfectly legal.

But the Committee’s obeisance to the industry has now crossed a line.

In July, the Committee issued subpoenas to the Attorneys General of New York and Massachusetts concerning state investigations under state law in state court, to a private law firm that has represented state and local governments and private parties in environmental litigation, and to several environmental organizations.

The state investigations and investigations by potential private litigants are of allegations that ExxonMobil fraudulently represented to investors and customers that scientific research on the environmental effect of fossil fuel emissions is flimsy and inconclusive when they knew from their own in-house research decades ago that global warming is real, potentially catastrophic and largely caused by fossil fuel emissions.

The Committee’s investigation and the state government and private investigations are not concurrent investigations of the same questions; the Committee is investigating the investigations. The initial stated purpose for the Committee’s subpoenas was to determine if the state proceedings unconstitutionally abridged ExxonMobil’s freedom of speech to deny climate change, and to protect ExxonMobil’s rights in the proceedings.

The Committee subpoenaed communications between the attorneys general, the environmental organizations and the private law firm “relating to the investigation, subpoenas [for documents], or potential prosecution of companies…related to the issue of climate change.” The documents demanded by the Committee would include legal strategy, possible witnesses, and discussions between lawyers and prospective clients—all information protected from disclosure by court rules.

The documents would be of obvious benefit to ExxonMobil—what sports team would not want the other team’s playbook?

The Committee will hold a hearing on Wednesday morning to consider its constitutional authority to subpoena the documents. The Committee should have done some legal research before it issued the subpoenas.

In the late nineteenth century, the House issued a subpoena without a hint of legislative purpose to determine whether a bankruptcy trustee had favored some creditors over others.  The Supreme Court held that the bankruptcy court could protect the creditors’ and the debtor’s rights, and the matter was none of Congress’s business. “The matter was still pending in a court,” the Supreme Court said, “and what right had the Congress of the United States to interfere with a suit pending in a court of competent jurisdiction?”

Congressional committees frequently investigate matters that are the subject of other government investigations and court proceedings and sometimes the information elicited by congressional investigations helps one party or another. Congress cannot compel disclosure of information for that purpose, however. Congress’s only authority is to “require pertinent disclosures in aid of its own constitutional power,” the Supreme Court held in a later case.

Courts know how to handle motions to quash subpoenas. They do it all the time.

ExxonMobil can challenge the subpoenas issued by the Attorney General of Massachusetts under Massachusetts state law in Massachusetts state court. ExxonMobil can challenge the subpoenas issued by the Attorney General of New York under New York state law in New York state court.

Of course ExxonMobil would rather argue through friendly witnesses at a Science Committee hearing. When industry witnesses argue to the Committee that the Constitution protects ExxonMobil’s right to make knowingly false representations to investors about material facts, members nod solemnly before an approving audience of lobbyists who help decide the oil and gas industry’s political contributions.

If ExxonMobil made the same laughable argument in court, the judge might actually laugh before a courtroom filled with reporters. It would be a rude awakening for ExxonMobil, and maybe for the Science Committee too.

Brad Miller (D-N.C.) served on the House Science Committee from 2003 to 2013, when he retired from Congress. He was chairman of the Subcommittee on Investigations and Oversight from 2007 to 2011.

The views expressed by authors are their own and not the views of The Hill.


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