REPORT

The Private Empire Strikes Back

How the climate denial network is mobilizing to defend Exxon from the AG investigation

As state investigations into Exxon’s role in promoting climate change denial continue, a network of high-powered lawyers, think tanks, and pundits has mobilized in defense of the oil giant.

A power mapping of these individuals and organizations reveals that they not only have longstanding ties to Exxon and the fossil fuel industry, but have also played a significant role in efforts to discredit climate science. And the message they are currently delivering is remarkably uniform: that the Exxon investigation is an attack on free speech.

This report identifies and profiles the lawyers and firms who advanced the same argument in defense of tobacco companies in the late 1990s; the myriad non-profit groups echoing these claims and the network of funders financing their operations; and the commenters publishing op-eds defending ExxonMobil and other organizations within the same climate-denying milieu.

Key findings

  • Several people and organizations now defending ExxonMobil, including the lead attorney retained by the company, used similar arguments to defend tobacco companies in the multi-state racketeering lawsuits against that industry for misleading the public about the harms of cigarette smoke.
  • In an op-ed in the Wall Street Journal, the Competitive Enterprise Institute’s attorneys chastised law enforcement for pursuing the investigation and announced a front group – the Free Speech in Science Project – to defend and propagate climate change denial.
  • The thirteen GOP members of the House Committee on Science, Space and Technology who launched a probe into the attorneys’ general investigation have received $2.7 million in campaign contributions from the oil and gas industry over the course of their congressional careers. 11 of the 13 members have received donations from ExxonMobil’s employees and/or PACs.
  • Seven of the 16 columnists profiled who have written in defense of the oil and gas industry have personal ties to the Competitive Enterprise Institute.

ExxonMobil’s defense, in court and out

  • ExxonMobil and CEI have claimed that their climate change denial activities are political speech, protected by the First Amendment. In ExxonMobil’s countersuit, attorney Theodore V Wells Jr characterizes climate change as an open debate and reduces the scientific consensus on the contribution of greenhouse gases to “the view held by a coalition of some state attorneys.” Wells says: “The chilling effect of this inquiry, which discriminates based on viewpoint to target one side of an ongoing policy debate, strikes at protected speech at the core of the First Amendment.”

    Before the US Virgin Island Attorney General revoked its subpoena, CEI filed an anti-SLAPP motion declaring, “the subpoena…violates CEI’s First Amendment rights.” Anti-SLAPP – the acronym stands for strategic lawsuit against public participation – laws were created to protect people from costly and malicious litigation used by powerful entities to silence critics.

  • This same defense was mounted by the tobacco industry as it faced a similar multi-state investigation into its misinformation campaign about the health effects of smoking. Though the tobacco industry argued in court that they had a right to voice doubts about harms of cigarette smoke, the court found that the tobacco companies’ misrepresentations did not qualify as free speech under the First Amendment and, in fact, amounted to fraud.
  • ExxonMobil and CEI are not only employing the same legal strategy, they are relying on the same law firms, think tanks, and public intellectuals who defended the tobacco industry. Theodore Wells, ExxonMobil’s attorney in the climate investigation, represented Philip Morris when the Department of Justice sued the company for “fraudulently covering up the health risks of smoking.” CEI’s attorneys, David Rivkin Jr. and Andrew Grossman, are partners at the law firm BakerHostetler, which represented several tobacco companies in the multi-state lawsuit over the industry’s misleading practices. Since 2005, CEI has pursued a lawsuit to invalidate the master tobacco settlement by using the same legal rationale as its current anti-SLAPP motion in the ExxonMobil case. Other players’ roles in the defense of both Big Tobacco and Big Oil are described in more detail in the sections below.
  • ExxonMobil and CEI also allege that the investigation is a collusion between environmental groups and the state attorneys general. This defense was launched by Energy & Environment Legal Institute, a group with close ties to CEI and the energy industry, and has since become the subject of reporting by the Wall Street Journal, Reuters, and the New York Times.

The lawyers defending climate change denial

Paul Weiss Rifkind Wharton & Garrison

The lead outside counsel representing ExxonMobil in the investigation is Theodore V Wells Jr, the co-chair of the high-powered firm Paul Weiss Rifkind Wharton & Garrison, based in New York City. Wells is perhaps most famous as the author the National Football League’s investigation into the “Deflategate” scandal at the end of the 2015 football season.

Wells has represented ExxonMobil for years, including in a corruption case involving corruption in Kazakhstan, a suit brought by citizens of Indonesia who claimed to have been tortured by ExxonMobil’s contracted security force, and recently in the state of New Jersey’s $8.9 billion pollution lawsuit, which ExxonMobil settled for $225 million.

Wells also unsuccessfully defended the tobacco company Philip Morris against the federal government’s claims that the company “engaged and executed — and continue to engage in and execute — a massive 50-year scheme to defraud the public” about the harms of tobacco smoke.

Other Paul Weiss attorneys representing ExxonMobil are former prosecutors Justin Anderson and Michele Hirshman, as well as partner Daniel J Toal, who also represented ExxonMobil in the aforementioned New Jersey case.

BakerHostetler

Representing CEI are attorneys David Rivkin and Andrew Grossman from BakerHostetler. The pair have experience defending the “free speech” of powerful entities: Recently, they represented the Wisconsin Club for Growth in a federal civil rights lawsuit against Wisconsin's Government Accountability Board, which the conservative club filed in response to a GAB probe for alleged illegal coordination with the governor’s office. In the lawsuit, Rivkin and Grossman claimed the state’s probe into several conservative organizations, including the Club for Growth, violated their freedom of political speech. The state supreme court eventually concurred and shut down the probe.

Rivkin and Grossman are well known within the GOP establishment. Each separately represented opposition to the Affordable Care Act in two prominent lawsuits in 2011 and 2014.

Cantey Hanger

One of the oldest law firms and most elite law firms in Texas, two members of the Cantey Hanger legal team representing ExxonMobil have worked with large oil and gas companies. Ralph Duggins and Philip Vickers both represented a subsidiary of ExxonMobil, XTO Energy, Inc., in the defense in a recent North Texas lawsuit, and Philip Vickers has represented an oil and natural gas exploration company. Cantey Hanger associate Alix Allison is also on ExxonMobil’s legal team.

Haynes & Boone

Haynes & Boone attorney Nina Cortell successfully represented ExxonMobil in a 2014 case filed by a former employee. Cortell is also on the Texas Supreme Court Advisory Committee, a group of attorneys and judges that “assists the Supreme Court in the continuing study, review, and development of rules and procedures for the courts of Texas.”

The climate change deniers defending ExxonMobil

A network of nonprofit organizations has activated around the investigation, framing the inquiry as a violation of ExxonMobil’s protected speech and portraying the law enforcement officials involved as colluding with environmentalists. Many of these groups have personnel and funding ties to the Competitive Enterprise Institute.

Competitive Enterprise Institute

The Competitive Enterprise Institute describes itself as a “free-market group” that publishes conservative policy proposals and pushes them widely in the media. CEI has been a leading manufacturer of climate change skepticism since at least 1991, when it suggested that the “real threat we face is not warming but cooling.” For years, it has collected money from large corporate interests, including the pharmaceutical, tobacco, and fossil fuel industries but it does not disclose its donors. The secrecy surrounding CEI has led some to speculate that it is yet another Koch brothers front group or even a subsidiary of ExxonMobil.

ExxonMobil donated $2,005,000 to CEl from 1998-2005, but publicly broke with the company in 2007. In breaking with CEI, ExxonMobil said it would not fund groups that “distort global warming science;” however, the company has since funded a variety of organizations that have perpetuated climate change denial, including the American Legislative Exchange Council, the Atlas Economic Research Foundation, and the Heritage Foundation.

Over the years CEI has received millions in donations from numerous foundations identified as the biggest funders of the climate change counter-movement including the Chase Foundation of Virginia, the JM Foundation, the Armstrong Foundation, the Jaquelin Hume Foundation, the Sarah Scaife Foundation, the Searle Freedom Trust and The Roe Foundation, among others. David Koch and Charles Koch have both been CEI donors through their respective charitable foundations and through the Claude R. Lambe Foundation, a member of the Koch Family Foundations.

In addition, CEI received $6.3 million through Donors Trust and Donors Capital Fund from 2002 to 2014. These secretive entities, known for financing climate change denial, pass on “dark money” from anonymous donors to a variety of right-wing groups.

Energy & Environment Legal Institute

The Energy & Environment Legal Institute is a nonprofit that fights renewable energy and promotes climate change denial. It recently obtained emails via freedom of information requests made to the Vermont attorney general’s office that the group purports to be evidence of the secret collusion between environmental groups the attorneys general investigating ExxonMobil. The emails show attorneys from the attorneys general’s offices in Vermont and New York communicating with environmental activists who had held strategy meetings for holding oil companies accountable for climate change denial; however, the groups involved have been transparent about their strategy.

EELI was formed in 2010 as the American Tradition Institute, an arm of the American Tradition Partnership (which itself was originally called the Western Tradition Partnership), to “battl[e] radical environmentalist junk science head on.” EELI’s staff have ties to numerous climate change-denying outfits, including the Competitive Enterprise Institute and the Free Market Environmental Law Clinic, a nonprofit that was financed in part by coal giant Alpha Natural Resources.

David Schnare, EELI’s general counsel, worked at the Environmental Protection Agency for 33 years. He is currently attached to a number of Koch-affiliated, climate-denying organizations, including the Free Market Environmental Law Clinic and the Thomas Jefferson Institute, both of which list him as a director.

EELI senior legal fellow Chris Horner is the senior clinical attorney at the Free Market Environmental Law Clinic, which paid him $110,000 as an independent contractor in 2014, as well as a senior fellow at the Competitive Enterprise Institute. In other years, the FMELC has listed Horner as a staff member. Horner has made information requests between environmentalists and government officials his trademark.

Steve Milloy, EELI’s senior policy advisor, runs the website JunkScience.com, which he started while he was an adjunct scholar at the Cato Institute (a recipient of ExxonMobil and oil industry funds). Notably, Milloy’s website JunkScience.com was previously used as a platform for tobacco industry misinformation, with content and editing provided by RJ Reynolds. Of the three men mentioned here, Milloy’s ties to ExxonMobil are clearest: Two nonprofits founded under his name have received at least $90,000 from the oil corporation, and in the late 1990′s Milloy was a member of a climate change denial propaganda effort – the Global Climate Science Communications Team – alongside former ExxonMobil lobbyist Randy Randol.

Much of EELI’s funding appears to be donations channeled through the dark money groups Donors Trust and Donors Capital Fund. From 2010 through 2014, EELI has received $505,000 from the two channels, with another $300,000 going to the closely affiliated Free Market Environmental Law Clinic. Other funders have included the Atlas Economic Research Foundation (which has been funded by ExxonMobil and by anonymous donors through dark money groups).

Free Speech in Science Project

A new effort launched by BakerHostetler attorneys for the Competitive Enterprise Institute, David Rivkin Jr. and Andrew Grossman, the Project will defend victims of the government’s “Climate Inquisition,” including scientists, policy organizations and others who express doubt about anthropological climate change.

“[T]he Project will fund legal advice and defense to those who need it, while also executing an offense to turn the tables on abusive officials,” reads the group’s About Me webpage. It does not explain where this funding will come from.

Members of Congress defending ExxonMobil

Thirteen GOP members of the House Committee on Science, Space and Technology launched a probe into the efforts of Schneiderman and several other attorneys general to investigate whether ExxonMobil and other companies misled investors and the public about climate change.”

A review of the campaign finance data available on OpenSecrets revealed that the members of this committee have received at least $2,680,383 from the oil and gas industry and $98,270 from ExxonMobil’s employees and PACs.

Randy Neugebauer O&G contributions: $678,729

ExxonMobil: $15,000

Lamar Smith, Chair O&G contributions: $678,097

ExxonMobil: $19,770

Frank Lucas, Vice Chair O&G contributions: $608,325

ExxonMobil: $11,000

Randy Weber, Chair, Subcommittee on Energy O&G contributions: $191,200

ExxonMobil: $17,000

James Bridenstine, Chair, Subcommittee on Environment O&G contributions: $160,450

ExxonMobil: $2,500

Dana Rohrabacher O&G contributions: $91,294

ExxonMobil: $3,000

James Sensenbrenner O&G contributions: $90,050

ExxonMobil: $9,000

Brian Babin, Chair, Subcommittee on Space O&G contributions: $80,385

ExxonMobil: $12,500

Bill Posey O&G contributions: $32,500

ExxonMobil: $3,500

Ralph Lee Abraham O&G contributions: $29,003
John Moolenaar O&G contributions: $23,600

ExxonMobil: $2,000

Mo Brooks O&G contributions: $11,750

ExxonMobil: $3,000

Barry Loudermilk O&G contributions: $5,000

The writers defending ExxonMobil

David B. Rivkin Jr. & Andrew M. Grossman

Article: “Punishing Climate Change Skeptics,” Wall Street Journal (March 23, 2016)

As described above, David Rivkin Jr and Andrew Grossman are partners at BakerHostetler where they are representing the Competitive Enterprise Institute in the climate investigation.

In addition to his work at BakerHostetler, Andrew Grossman is an adjunct scholar at the Cato Institute, which was founded in 1974 by Charles Koch and controlled by Charles and David Koch until 2011. Now Cato is run by a board of directors, but the Koch family maintains significant influence. David Koch sits on Cato’s board of directors and Koch family foundations are still top donors to the institute.

Grossman previously worked as a legal analyst at the Heritage Foundation, another conservative think tank with funding ties to the energy industry and the Kochs. Donors with strong oil and gas affiliations – including ExxonMobil – donated at least $2.16 million to the Heritage Foundation in 2014, according to the group’s annual report.

At BakerHostetler, David Rivkin has represented clients within the upper echelons of power in the conservative movement, including Donald Rumsfeld. Earlier in his career, he “handled the development and implementation of President George H.W. Bush’s deregulatory initiatives” covering international sanctions, energy, environment, and tax issues.

Kent Lassman & Sam Kazman

Article: “The environmental campaign that punishes free speech,” Washington Post (April 22, 2016)

Kent Lassman is the president and CEO of the Competitive Enterprise Institute.

Lassman has worked for numerous right wing institutions including the Koch-backed FreedomWorks and FreedomWorks spinoff Citizens for a Sound Economy. From 2003 to 2008 he served on the President’s Advisory Council for the State Policy Network and as an advisor for the American Legislative Exchange Council from 2001 to 2006.

Sam Kazman is general counsel at the Competitive Enterprise Institute.

William O’Keefe

Article: “Stifling Free Speech on Climate Change,” Economics 21 (April 7, 2016)

William O’Keefe is a former ExxonMobil lobbyist and the CEO of the George C Marshall Institute, where ExxonMobil has been a major long term donor. GMI used to restrict its donations and did not accept donations from corporate interests but later reversed this policy and received its first ever corporate donation from the ExxonMobil Education Foundation. The George C Marshall Institute received $865,000 from ExxonMobil since then, though the most recent donation was $25,000 in 2011.

O’Keefe is also a board member and adjunct scholar at Competitive Enterprise Institute. From 2002 through 2005, O’Keefe was registered to lobby for ExxonMobil through the firm Solutions Consulting, where he is president.

Finally, O’Keefe is the former CEO of the American Petroleum Institute, the primary oil and gas industry organization, and past chairman of the Global Climate Coalition, an anti-climate change group from the 1990s.

Ronald Bailey

Article: “Free Speech Attack by Attorneys General in ExxonMobil Climate Change Probe of Skeptical Non-Profit,” Reason‘s Hit & Run Blog (April 8, 2016)

Ronald Bailey is the science correspondent for Koch-connected Reason magazine and the editor of several books, including Global Warming and Other Eco-Myths: How the Environmental Movement Uses False Science to Scare Us to Death.

Bailey is an adjunct analyst at the Competitive Enterprise Institute. In 1993, he was CEI's Warren Brookes Fellow in Environmental Journalism.

In addition to his roles at Reason and CEI, Bailey is an adjunct scholar at the Cato Institute, a libertarian think tank co-founded by Charles Koch, the billionaire co-owner of Koch Industries. David H Koch sits on the board of directors. Cato has been funded by the the Charles Koch Foundation and numerous oil and gas corporations including ExxonMobil.

Megan McArdle

Article: “Disagreement about global warming doesn't constitute a crime: Megan McArdle,” The Oregonian (April 12, 2016)

Megan McArdle is a columnist for Bloomberg View. She was a Bernard L. Schwartz fellow at The New America Foundation.

McArdle is married to Peter Suderman, an associate editor for the libertarian Reason magazine. Suderman previously worked for Freedomworks. Reason magazine is run by the Reason Foundation, which is funded by the Koch brothers and which has received money from ExxonMobil in the past. David Koch currently sits on the board of trustees.

Until at least 2013, Suderman was also a director at America’s Future Foundation, a network for libertarian youth that counts CEI and the Charles Koch Institute among its sponsors. Suderman served as Assistant Editorial Director and Technology Analyst at the Competitive Enterprise Institute until 2007.

Notably McArdle has been criticized for failing to disclose her husband’s Koch connections in the past.

Jude Clemente

Article: “In Defense of ExxonMobil, Oil, and a Poor, Connecting World,” Forbes (November 15, 2015)

Jude Clemente is a Forbes contributor and frequently writes for oil and gas focused publications including Oil & Gas Journal. Clemente has written numerous articles extolling natural gas as vital and inevitable.

In 2015 he wrote a report arguing against a biofuel heating mandate for New York. The report, which was commissioned by the Empire Center and the Manhattan Institute, argued that the mandate would drive up heating prices and reduce efficiency. The Empire Center is a project of the Manhattan Institute, a think tank funded by Koch-tied foundations and oil and gas interests, which has received $320,000 in funding from ExxonMobil since 2010. Both are members of the State Policy Network of right-wing think tanks.

Clemente is a Principal at JTC Energy Research Associates, LLC. While there is little information available on JTC, Jude Clemente’s twitter profile says he is involved in “[c]onnecting oil, gas, coal, and electricity markets to human development.”

Rich Lowry

Article: “Eric Schneiderman and His Gang of AGs Are Trampling the First Amendment,National Review (April 19, 2016)

Rich Lowry is an editor at the National Review and sits on board of the National Review Institute, the think tank behind the magazine. The side bar details the various energy industry ties represented on NRI’s board of directors. He is also a Fox News contributor.

Kevin Williamson

National Review Institute board of trustees tied to oil and gas

  • Robert F. Agostinelli, Chairman – Rhone Group founder (energy investments)
  • John Bolton – American Enterprise Institute Sits on board of directors of Diamond Offshore Drilling (offshore drilling rigs)
  • John Buser – Neuberger Berman (oil and gas investments)
  • Karen Wright – CEO of Ariel Corporation (natural gas compressors)
  • Article: “The Left is Coming for You Next,” National Review (April 17, 2016)

    Kevin Williamson is a National Review correspondent. The National Review is run by the National Review Institute. The side bar details the various energy industry ties represented on NRI’s board of directors.

    George Will

    Article: “Scientific silencers on the left are trying to shut down climate skepticism,” Washington Post (April 22, 2016)

    George Will is a Pulitzer Prize winner, Washington Post columnist, and Fox News contributor. He previously served as an editor for the National Review.

    Will is also a director at the conservative Lynde and Harry Bradley Foundation, which funds a variety of conservative organizations including the Competitive Enterprise Institute. In 2014 the foundation donated $75,000 to CEI to “support litigation.”

    Harold Ford Jr.

    Article: “A Misguided Campaign Against ExxonMobil,” The Wall Street Journal (November 17, 2015)

    Harold Ford Jr. was a Democratic congressman from Tennessee from 1997 to 2007. Over the course of his career Ford took in $133,278 from the energy and natural resources sector. Following an unsuccessful Senate bid in 2006, Ford joined Merrill Lynch and became a Fox News contributor. He is now a managing director at Morgan Stanley

    In 2012 Glenn Greenwald profiled Ford’s political career and penchant for corporate pandering, labeling him the “breathing embodiment of virtually everything rotted and corrupt about the American political class” as well as an “opportunistic, craven, sleazy nepotistic corporatist.”

    John Hinderaker

    Article: “The Great Free Speech Issue of Our Time,” Powerline Blog (March 3, 2016)

    Retired lawyer with the Minneapolis law firm Faegre & Benson and an author of the conservative Power Line blog, which he founded with his colleagues former Faegre & Benson partner Scott Johnson and former Akin Gump Strauss Hauer & Feld partner Paul Mirengoff.

    In 2016 Hinderaker became the president of the right-wing Center of the American Experiment, which is based in Minnesota. CAE is a member of the State Policy Network and David Koch once served on the board of directors.

    Glenn Harlan Reynolds

    Article: “Dear attorneys general, conspiring against free speech is a crime: Glenn Reynolds,” USA Today (April 11, 2016)

    Glenn Reynolds is a Beauchamp Brogan Distinguished Professor of Law at University of Tennessee Knoxville where his listed areas of expertise include the first and second amendments.

    Reynolds is a regular columnist for USA Today and an author of the Instapundit blog.

    Robert J Samuelson

    Article: “War against ExxonMobil a threat to free speech,” The Orange County Register (November 12, 2015)

    Samuelson is a columnist for the Washington Post who has previously written on a perceived bias against the oil and gas industry.

    Mark Fitzgibbons

    Article: “Stopping The Conspiracy To Silence Conservatives,” The Daily Caller (April 13, 2016)

    Fitzgibbons is a constitutional lawyer and serves as President of Corporate and Legal Affairs of American Target Advertising, an advertising and direct mail company founded by Richard A. Viguerie, who is widely hailed for his use of direct mail to spread conservative talking points during the Reagan election. Viguerie is founder of the American Freedom Agenda and the Chairman of ConservativeHQ.com, a site billed as the news source for “conservatives and tea partiers committed to bringing limited-government constitutional conservatives to power.” Fitzgibbons is a volunteer advisor to American Freedom Agenda and a contributor to ConservativeHQ.com.

    Fitzgibbons once served as communications director for Ron Paul’s presidential campaign.

    About the Public Accountability Initiative

    The Public Accountability Initiative (PAI) is a non-profit, non-partisan research and educational organization focused on corporate and government accountability. In addition to publishing research on critical public accountability issues, PAI maintains LittleSis.org, an involuntary facebook of powerful people and tool for power research that was used to compile date for this report. PAI’s work is funded by a variety of non-profit sources.

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