Political Climate
May 18, 2016
New FOIA’d Emails Tell a Very Different Story About How NY AG’s RICO Campaign Started Off

A new batch of emails, released late Friday afternoon, pulls back the curtain further on the level of collusion and coordination between anti-fossil fuel activists, their funders, and the attorneys general that have launched climate investigations into people, companies, and think tanks with which they disagree on the issue.

These emails, obtained through a Freedom of Information Act (FOIA) request by brought by The Competitive Enterprise Institute and Chris Horner, show that key activists behind this campaign had hoped they could make a case for prosecuting climate “deniers” under the Racketeer Influenced and Corrupt Organizations (RICO) Act. But, due to multiple warnings from experts that such a case would have no chance to actually succeed, they decided instead to shift their strategic focus to state-level attorneys general to get the job done. Interestingly, these emails date back to last summer, months before the Rockefeller-funded InsideClimate News and the Columbia School of Journalism published their #ExxonKnew investigations.

The key players that emerge from this latest batch of emails are George Mason University (GMU) professors Jagadish Shukla and Edward Maibach, who spearheaded a letter in September 2015 with several other colleagues to U.S. Attorney General Loretta Lynch and President Obama asking them to explore RICO charges against climate “deniers” and their funders.

Here are some other key revelations that come from these emails:

#1: Activists were colluding with state AGs much longer than initially thought

The activists pushing for the climate RICO investigations have been claiming that the “investigative reporting” by InsideClimate News (ICN) and the Columbia School of Journalism were what spurred them to action. But as these new emails reveal, the master plan was already in place and well under way before those articles were published.

In one email, GMU professor Ed Maibach reached out to the Union of Concerned Scientists (UCS) to enlist its help in getting activists from every congressional district to sign on to their letter. Peter Frumhoff of UCS replied to that request by saying his organization would not join the effort - because UCS did not think the case was strong enough to have a chance of eliciting the intervention of the federal attorney general. Frumhoff went on to admit that they were already pursuing a possible path via state AGs, noting “we think there’ll likely be a strong basis for encouraging state (e.g. AG) action forward, and in that context, opportunities for climate scientists to weigh in.”

Email 1

That this email comes from Frumhoff is particularly interesting considering that he was one of the activists who briefed the attorneys general launching the RICO investigations just ahead of their March 29 press conference with Al Gore. After newly released emails revealed his attendance, Frumhoff admitted he was there: “I was invited to brief the attorneys general that gathered on March 29 on my work, and that is what I did.”

Frumhoff also organized and attended a now infamous 2012 workshop in La Jolla, Calif., hosted by the Union of Concerned Scientists (UCS) and the Climate Accountability Institute (CAI). The meeting brought together activists in order to brainstorm the various ways they could help hasten an investigation into ExxonMobil in particular, which led to the publication of a report called, “Establishing Accountability for Climate Change Damages: Lessons from Tobacco Control.”

Frumhoff’s email isn’t the only indication that collusion between activists and AGs has been going on for a while. Here are just a few more examples:

On January 11, 2016, the Huffington Post published an op-ed by Lyn Davis Lear, co-founder of Environmental Media Association, who notes that “In the spring of 2014, I was having lunch with one of my heroes, Attorney General of New York, Eric Schneiderman, and his head of the Environmental Protection Bureau, Lemuel Srolovic...We were also discussing the possibilities of a state Attorney General suing oil and coal companies for being implicit in causing climate change. Through a friend, I found a few, obscure studies from some major universities showing links between the two.” By the way, Lem Srolovic is one who told anti-fossil fuel lawyer 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.”

November 5, 2015, ICN admitted that the plan to have New York Attorney General Eric Schneiderman spearhead investigations had been in the works for at least a year: “New York State Attorney General Eric Schneiderman’s office demanded that ExxonMobil Corporation give investigators documents spanning four decades of research findings and communications about climate change, according to a person familiar with the year-long probe. “(emphasis added) That same article also admitted that activists had their sights on Schneiderman as the man to launch this plan for quite some time: “Some climate advocacy groups have long urged that Schneiderman, a second-term Democrat, investigate Exxon and other companies under the 1921 statute.”

On September 30, 2015, an article by ICN suggests that there was already an effort underway to use the Martin Act through Schneiderman rather than RICO to achieve their goal: “Whitehouse, for one, has outlined the case for a Justice Department probe of whether Exxon violated the federal Racketeer Influenced and Corrupt Organizations Act, known as RICO. The advocacy group Climate Hawks has mounted an online petition drive to urge Attorney General Loretta Lynch to open such an investigation. Prosecution under that law, which was used against the tobacco industry in the 1990s, would require evidence of a conspiracy. Another frequently mentioned option is for Attorney General Eric Schneiderman of New York to invoke the state’s powerful stock-fraud statute, the Martin Act, as the state has done in recent years to force other fossil fuel companies to disclose more about the financial risks they face from climate change.”

The report that came out of the La Jolla conference in 2012 singles out the AG option this way: “State attorneys general can also subpoena documents, raising the possibility that a single sympathetic state attorney general might have substantial success in bringing key internal documents to light. In addition, lawyers at the workshop noted that even grand juries convened by a district attorney could result in significant document discovery.” (emphasis added)

#2. Activists were told by numerous experts that RICO wasn’t going to work

What’s also interesting about these emails is that that Maibach and Shukla were told on multiple occasions that the RICO law just wasn’t going to cut it. The email mentioned above from Frumhoff also notes,

“In reaching out to climate scientists to sign on, we feel that we’d need to give them some firmer grounding for believing that a federal investigation under the RICO statute is warranted - enough so that they’d be able to explain their rationale for signing to reporters and others. As you know, deception/disinformation isn’t itself a basis for criminal prosecution under RICO. We don’t think that Sen Whitehouse’s call gives enough of a basis for scientists to sign on to this as a solid approach at this point.”

Maibach responds to Frumhoff that “Shukla has been consulting with lawyers so it is possible that - with their input [ we too may decide that Senator Whitehouse’s proposal is not viable.”

Email 2

Seeking legal counsel, Maibach contacted a friend at Occupational Health and Safety Administration (OSHA), who told him that the odds of getting the Department of Justice (DOJ) to investigate under RICO were “slim to none.”

Email 3

Maibach then emails Shukla, saying, “Perhaps it would be best if we first found a lawyer with RICO experience to give us an independent opinion on the basis - or lack thereof - of a RICO investigation. If there really is no basis, then I feel we would be unwise to engage other scientists in recommending a baseless action. Do you know of anyone with RICO experience?”

Email 4

In another email, Mark Cane from Columbia Earth Institute writes to a group of scientists as well as a Sheldon Whitehouse staffer explaining, “I do have misgivings about invoking RICO, which may too easily lead to civil liberties abuses.”

Email 5

#3. Senator Whitehouse was emailing with activists, too

There is even an email in the batch from Senator Sheldon Whitehouse (D-RI), who has been spearheading the RICO campaign in Congress. Whitehouse states, “So we’re all clear: the tobacco case was a CIVIL RICO case, not criminal, so jailing and imprisoning have nothing to do with it. Just a forum where you can’t lie and can be cross-examined in front of a neutral judge. And the government won fair and square and soundly, just as I believe they would here.”

Email 6

#4. Activists warned: “You’re talking about prosecuting conservatives”

Maibach contacted Alex Bozmoski of RepublicEN, which describes itself as a group of conservatives concerned about climate change, about his letter as well. Bozmoski tells Maibach his draft “screams hard-core left” and warned him that he’s “talking about prosecuting conservatives.”

Email 7

#5. Surprise! More Rockefeller funding

After a media firestorm ensued from the letter, Maibach contacted Jeff Nesbit of an environmental communications firm called Climate Nexus to ask for help. According to its website, Climate Nexus is “a sponsored project of Rockefeller Philanthropy Advisors, a 501(c)3 organization.” In other words, the folks spearheading this letter were also getting communications support from a group that is bankrolled by the same funders (the Rockefellers) pouring millions into the organizations aggressively pushing the #ExxonKnew narrative.

The e-mail chain below shows Maibach stonewalling an interview request from Fox News and forwarding the Fox producer’s e-mail to Chris Mooney of the Washington Post (sort of a no-no in this business). To wit:

Email 8

InsideClimate News has repeatedly cited its own work as the impetus that prompted Schneiderman’s probe, in addition to several other actions taken by Democratic politicians. So eager were they to take credit, they cited the actions in the cover letter attached to their Pulitzer Prize submission as justification for why they deserved to win the Prize (they didn’t). What this latest batch of emails show is that Schneiderman and activist groups were colluding to lay the groundwork for the climate RICO investigations long before the ICN and Columbia School of Journalism stories ever hit.

May 08, 2016
What Happens to an Economy When Forced to Use Renewable Energy?

By Robert Bryce, Manhattan Institute



Reality Check

Some of America’s most prominent politicians want national mandates for renewable electricity. In addition, over the past seven months, three states - California, New York, and Oregon - have instituted plans that will require utilities to produce 50 percent of the electricity that they sell to customers from renewables. The politicians backing these measures claim that such mandates will help reduce customers’ bills and create jobs. Had these politicians considered the surge in electricity costs that have occurred in Europe in recent years, they might have been less eager to push such mandates. Indeed, the three EU countries that have been the most aggressive in pursuit of renewable energy - Germany, Spain, and the U.K. - have all seen their electricity rates increase more than other EU countries. Further, Germany and the U.K. are seeing job losses due to high energy prices.

Key Findings

1.  Between 2005, when the EU adopted its Emissions Trading Scheme, and 2014, residential electricity rates in the EU increased by 63 percent, on average. Over the same period, residential rates in the U.S. rose by 32 percent.
2.  Industrial rates in Europe have increased about twice as quickly as in the U.S.
3. EU countries that have intervened the most in their energy markets - Germany, Spain, and the U.K.- have seen their electricity costs increase the fastest. During 2008-12, those countries spent about $52 billion on interventions in their energy markets.
4. During 2008-12, Germany’s residential electricity rates increased by 78 percent, Spain’s rose by 111 percent, and the U.K.’s soared by 133 percent.
5. In 2016 alone, German households will be forced to spend $29 billion on renewable electricity with a market value of $4 billion - more than $700 per household.
6. The residential electricity rate increase in Germany has been 13 cents per kilowatt-hour - an increase larger than the average cost of residential electricity in the U.S. (12.5 cents).
7. While European countries have succeeded in creating jobs in the solar and wind industries, their energy policies have also resulted in significant job losses elsewhere.
8. Germany’s energy minister has warned that the continuation of current policies risks the “deindustrialization” of the country’s economy.


In January 2014, Germany’s energy minister declared that his country had reached ‘the limit’ with renewable-energy subsidies and that Germany had to reduce its electricity prices or risk ‘deindustrialization.’ To avoid the kinds of
results seen in Europe, U.S. policymakers should be required to do rigorous cost-benefit analyses before imposing renewable-energy mandates. U.S. policymakers must also consider the impact that higher energy costs will have on overall employment and industrial competitiveness.

A European Model for America?

The push for leadership on climate issues has led U.S. policymakers at the federal and state levels to push for European-style energy policies. Hillary Clinton has declared her intent to increase domestic solar-energy capacity to about 140 gigawatts by 2020, a sevenfold increase over current capacity. Bernie Sanders has introduced an energy plan that would require America to get 80 percent of its energy from renewables by 2050. Similar moves are afoot at the state level. In October 2015, California governor Jerry Brown signed into law a bill that requires the state’s electric utilities to get 50 percent of their power from renewables by 2030. In his push for renewables and greater energy efficiency, Brown has claimed that California will create some 500,000 new jobs. In December 2015, New York governor Andrew Cuomo directed his state’s Department of Public Service to “design and enact a new Clean Energy Standard mandating that 50 percent of all electricity consumed in New York by 2030 result from clean and renewable energy sources.” As part of that push, the state plans to spend $15 million to train some 10,000 people in clean energy technologies. In March 2016, Oregon’s governor, Kate Brown, signed into law Senate Bill 1547, which requires the state’s utilities to meet 50 percent of their customer’s needs with renewable electricity by 2040.

After it introduced the Clean Power Plan (CPP), the Environmental Protection Agency claimed that the new regulations would save consumers money and create jobs. By 2030, the agency claims, the CPP will “save Americans about $8 on an average monthly residential electricity bill ... [and will create] jobs related to demand-side energy efficiency, such as jobs for machinists to manufacture energy efficient appliances, construction workers to build efficient homes and buildings or weatherize existing ones.”

Europe’s Rising Energy Prices

Since 2005, the EU and several of its member countries have enacted various climate-change initiatives, including emissions trading and renewable-energy mandates. During 2008-14, EU-member countries spent some $106 billion on energy subsidies. Three countries - Germany ($27.2 billion), Spain ($11.1 billion), and the U.K. ($14.3 billion) - accounted for nearly half of that sum. Those three countries have also seen the largest increases in residential electricity rates. According to Eurostat, during 2005-14, residential rates in the EU increased by 63 percent, on average. In Germany, those rates increased by 78 percent; in Spain, they increased by 111 percent; and in the U.K., they rose by 133 percent. Over that same period, residential rates in the U.S. rose by 32 percent.

In 2016 alone, German residential customers will pay renewable-energy surcharges of some $29 billion for electricity that, on the electricity market, is worth only about $4 billion. Germany has about 40.2 million households. Thus, in 2016, renewable-energy surcharges will cost the average German household about $721. European countries are seeing big increases in industrial rates, too. During 2005-14, industrial electricity prices in the EU increased by 46 percent, nearly twice the increase seen in the U.S. over the same period. Industrial electricity prices in the U.K. jumped by 133 percent, to 16.6 cents per kilowatt-hour, among the highest rates in the European Union.


A Green-Energy Warning for America

In January 2014, Germany’s energy minister, Sigmar Gabriel, declared that his country had reached “the limit” with renewable-energy subsidies and that Germany had to reduce its electricity prices or risk “deindustrialization.” Germany’s renewable-energy push has had a particularly harsh effect on two of its largest utilities, RWE and E.On. Since 2011, the two companies have cut a total of 32,000 jobs. Over the past year, Siemens, one of Germany’s biggest industrial companies, has shed 4,500 jobs.15 The job losses in Germany’s industrial sector would likely be far higher but for the fact that the German government has provided about $10 billion in subsidies to its most energy-intensive industries since 2013.

British industry is also suffering. In March 2016, Tata Steel announced that it was planning to sell its steelworks in Britain, a move that puts about 15,000 jobs at risk. Among the reasons the company cited for its plan to pull out of the U.K. was high energy cost. In the second half of 2015, British steelmakers and other large industrial users of electricity paid nearly twice as much for electricity as the EU average.

Meanwhile, Spain has effectively ended its renewable-energy subsidies, a move that has halted the expansion of the country’s solar and wind sectors. Nevertheless, the country’s electric utilities have accumulated a $32 billion deficit that must now be repaid, by adding surcharges of about 55 percent to customers’ bills. High energy costs are only adding to Spain’s economic woes. During 2004-14, Spain’s GDP grew by just 0.6 percent per year, on average, and the country’s unemployment rate now stands at about 21 percent (PEAKED AT 27.5%).

To avoid the kinds of results seen in Europe, U.S. policymakers at the federal and state levels should be required to do rigorous cost-benefit analyses before imposing renewable-energy mandates. U.S. policymakers must also consider the impact that higher energy costs will have on overall employment and industrial competitiveness.

May 06, 2016
Stiffling innovation

Scientific Alliance

Europe has an ambivalent attitude towards innovation. On one hand, we celebrate the growth of successful businesses and new home-grown products but, on the other, the natural desire to guarantee safety creates barriers that few companies - particularly small, innovative ones - can overcome.

The point of balance between innovation and safety varies from sector to sector. In general, we worry less about computers, smart phones and similar hardware. Most of haven’t a clue what goes on behind the screen, but we don’t know what we’d do without them and - with the possible exception of concerns about radiation from phones - don’t think they’ll do us any harm.

This is not the case for food. Understandably, because eating is both vital for life and carries so much cultural baggage, we are concerned about the wholesomeness of what we put in our mouths. This, of course, hasn’t prevented the current high levels of obesity, but people still generally have quite strong ideas about what is and isn’t good for them.

There is clear evidence that our dietary habits (along with other lifestyle factors) have an impact on our healthiness and life expectancy. As for short-term effects, by far the biggest food-related issue is food poisoning, caused by inadequate cooking or poor storage. But one of the biggest campaigning issues of the recent past has been against genetically modified crops, an issue on which the overwhelming scientific consensus is that there are no safety concerns.

The complex and politicized approvals process for new GMOs has had a number of negative consequences, not least the effective export of research and development in agricultural biotechnology by companies active in the area and the erection of regulatory barriers which only major multinationals have the resources to scale. But if that isn’t bad enough, the situation could soon become even worse.

The current regulations define a GMO as having been made via a very specific technique, what is known as recombinant-DNA technology, and the end result is known as a transgene because the genome includes genetic material not present in the original variety. This may be one or more genes plus additional promotor and inhibitor sequences to control expression.

The process itself involves producing a sufficient quantity of a given genetic construct using the Polymerase Chain Reaction (PCR) and then introducing this into cells of the target plant variety using agrobacterium tumefaciens or the gene gun (biolistics). One of the key arguments of critics is that this gives transgenic plants that could not have been derived from crossing two related parent varieties. In the early days of commercialisation, one rather emotive graphic showed a tomato with a fish tail, because a variety was being developed using a gene discovered in a cold water-tolerant fish species.

However, the rDNA technique can also be used to introduce genes from related species to achieve a particular end that would be much more difficult to arrive at via conventional breeding. In this case, the end product has been dubbed cisgenic, since it contains no ‘foreign’ DNA. The big question, which has been wrestled with for many years by the EU, is whether such a cisgene should be regulated in the same was as a transgene.

EFSA’s opinion is that cisgenics introduces no significant new hazards compared with ‘conventional’ breeding (a term that encompasses a wide range of techniques, including uncontrolled mutagenesis). This opinion from independent scientists has, however, not yet been enough to nudge the Commission towards an evidence-based decision.

This is in fact only one example of a novel plant breeding technology not available when the current regulations were formulated. Of particular interest right now is one called CRISPR cas9 (clustered regularly interspaced short palindromic repeats). This can be used to make precise changes to particular genetic sequences by excising and replacing them by the modified DNA. This is a naturally occurring repair mechanism in microorganisms, and can give exquisitely precise control over the genome.

More particularly, this technique overcomes the major shortcomings of rDNA technology by being targeted to very specific parts of the genome and leaving no ‘foreign’ DNA in place. It has enormous potential in healthcare, agriculture and industrial processing. But, in the agricultural sector, the EU has not yet decided how it (or other new plant breeding techniques) should be regulated.

Predictably, anti-GM groups are calling for all such new techniques to be classed as GMOs and therefore be considered under the same cumbersome and largely unworkable regulation. For example, from Greenpeace: Why EU GMO law must be fully applied to the so-called ‘New Plant Breeding Techniques’.

On the other side of the argument, groups such as COCERAL, representing companies in the agricultural trade sector, are also making their case: Trade body: Don’t lump ‘new plant breeding techniques’ in with GMOs. Their point is that these new techniques offer significant benefits and it is the end result that is more important than the means of achieving it. Critics, on the other hand, suggest dire consequences from engineered plants spreading their traits to other species.

At heart, this is a philosophical argument. On one hand, we have companies eager to realize the potential of powerful new and evolving technologies, and a farming community largely keen to see what it can deliver for them. On the other, there are a number of vocal lobby groups concerned ostensibly about the science, but in reality also not fans of the multinational agricultural supply companies or modern intensive farming. The public are somewhere in the middle, not really interested in the science but easily swayed by scare stories. Policymakers, in turn, pander to these lobby groups and are loathe to accept the scientific advice.

The impact of this highly precautionary approach is to stifle innovation and reinforce the competitive advantage of the USA, China and others. If CRISPR and other techniques are lumped in under the GMO regulations, this is a further step in the EU’s downward path away from an innovation-led economy. The vision of Europe becoming a Knowledge-Based Bio-Economy will be increasingly at odds with an anti-technology reality. But there is still a chance for rational policymaking to win the day.

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