The Climate Wars Get Ugly

In principle, it should be possible to separate the scientific issues from the political ones. But in today’s overheated political environment, that is difficult to do. The latest example of the politicization of climate change comes via twenty state Attorney Generals, led by New York State Attorney General Eric Schneiderman, who are bringing civil and criminal legal actions against ExxonMobil. A similar course of action has been proposed by Rhode Island Senator Sheldon Whitehead, who advocates investigations of fossil fuel companies for possible violations of the civil and criminal law.

To folks like Schneiderman, progressive forces of good must vanquish the reactionary forces of evil, like ExxonMobil. In articulating his view at a press conference recently in New York, Schneiderman starts from a position of legal strength because the 1921 New York Martin Act, passed to deal with financial manipulation, gives the state Attorney General exceptional powers to sue to stop fraudulent behavior in financial markets. The distinctive feature of the law is that it dispenses with the need of the New York Attorney General to prove three of the five elements of common law fraud—scienter (knowledge), reliance and damages—so that all that is left to prove is a false statement of some material fact.

Yet even the Martin Act has its limitations.

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