The state Attorney General claims the authority to subpoena the West Virginia Rivers Coalition for 10 years of documents, suggesting the environmental organization could have promoted outdated climate change theory to the detriment of the state’s fossil fuel-based economic drivers.
“Because the Attorney General has probable cause to believe that a violation has occurred, his issuance of investigatory subpoenas was an ordinary and proper exercise of his consumer protection authority,” wrote lawyers for the Attorney General’s Office in a federal court filing today.
West Virginia Attorney General J.B. McCuskey’s office sent an investigatory subpoena in September to the longstanding environmental organization for a decade of records on “climate claims,” internal deliberations, fundraising and partnerships. The deadline was Nov. 2.
West Virginia Rivers, which was founded in 1990 with a focus on rivers and streams, responded to the subpoena with a federal lawsuit and requested a temporary restraining order, arguing that the investigation is a retaliatory effort designed to suppress protected speech.
The lawsuit was assigned to U.S. District Judge Joseph Goodwin, who directed the Attorney General to respond no later than 3 p.m. Monday.
McCuskey’s filing today was in response to the judge’s order. A hearing is set for 1 p.m. Thursday.
The subpoena issued to the West Virginia Rivers Coalition in September says it is part of an inquiry into potential consumer protection violations under the West Virginia Consumer Credit and Protection Act, one of the broadest and most protective state consumer protection laws in the United States.
The Attorney General’s court filing says the consumer protection act gives the office authority to investigate activities — including false or materially misleading speech—that affect West Virginia’s economy or West Virginia consumers.
“And the production of energy — including the mining of coal, extraction of natural gas and the use of those fuels to generate electricity — is both a critical part of West Virginia’s economy and a market sector that impacts the affordability of daily life of every West Virginian,” wrote lawyers for the Attorney General.
“Exercising authority granted by a statute expressly designed to protect West Virginia’s marketplace and the economic interests of its citizens is obviously legitimate.”
The subpoena alleges West Virginia Rivers engaged in “unfair” or “deceptive” practices through claims that fossil fuels cause climate change, severe weather, health issues and economic damage. The inquiry treats the group’s public climate advocacy and scientific claims as potential commercial fraud or misrepresentation.
“The potential violations under investigation here involve a narrow category of deceptive statements that rely on a model, assumption, or projection system that objectively overstates the potential harm of fossil fuels, telling consumers that ordinary levels of consumption will have catastrophic results,” wrote the Attorney General’s Office.
The Attorney General pins the claim to a global warming scenario called RCP8.5, which stands for Representative Concentration Pathway 8.5. It had projected an aggressive rise in global mean temperatures by the end of the 21st century.
The scenario relied on an 8-fold increase in coal use, rapid coal-to-liquids conversion and sluggish development of clean energy technologies that did not match actual economic or technological trends. RCP8.5 was regularly shorthanded, though, as a “business-as-usual” or most-likely trajectory.
Skepticism of the RCP8.5 scenario began growing significantly between 2017 and 2020, as real-world economic data and energy trends began drifting sharply away from the scenario’s assumptions.
The RCP8.5 scenario was officially retired this past April by the Scenario Model Intercomparison Project, the international body of scientists responsible for designing the emissions pathways used across the global climate modeling community.
The Attorney General connects all of that to West Virginia Rivers in a couple of ways.
First, the Attorney General said West Virginia Rivers collaborated on and published a “Citizen’s Guide to Climate Change” that includes dire warnings about the likelihood of heavy precipitation events in West Virginia — based on projections drawn directly from RCP8.5.
And in July 2023, the Attorney General says, West Virginia Rivers endorsed comments submitted to FEMA that specifically described RCP8.5 as the “business-as-usual pathway.” The Attorney General says that was three years after the implausibility of RCP8.5 became well-known.
“To be clear, these examples may not themselves violate the WVCCPA. But they don’t need to in order to provide the honest belief necessary to establish probable cause. It is enough that WV Rivers has on several occasions (including at least once years after it had been discredited) relied upon RCP8.5,” wrote lawyers for the Attorney General.
The Attorney General contends the subpoena is an investigative tool to help determine whether West Virginia Rivers willfully or knowingly engaged in deceptive communications that affect trade or commerce in West Virginia.
Lawyers for the Attorney General say more information could uncover violations under the West Virginia Consumer Credit and Protection Act, And they say any evidence of intentional deception would undercut claims of free speech protections.
“Plaintiffs—unabashed opponents of fossil fuels — are well within their rights to advocate for less (or even the complete abolition of) fossil fuel extraction. Their political advocacy and other expressive or associational activity is certainly protected by the First Amendment,” wrote lawyers for the Attorney General.
“But the First Amendment is not a license to lie or knowingly deceive or mislead, especially not when that deceptive commercial speech directly implicates trade or commerce within the ambit of a consumer protection statute like the WVCCPA.”
A free markets organization, Americans for Prosperity-West Virginia, publicly backed the right of groups like West Virginia Rivers to engage in free speech and try to persuade the public.
“While we disagree with the environmental left’s rhetoric, there’s one thing we should agree on: they have a right to say it. Government has no prevailing interest in leveraging state-led investigations to put a thumb on the scale of a fight over policy or politics,” posted Jason Huffman, state director of Americans For Prosperity-West Virginia.
“The freedom of speech and of peaceful assembly are sacrosanct. And actions by government that, however well-meaning, chill free speech are antithetical to those unalienable rights. The principled approach to pushing back against speech with which we disagree is more speech, not less.”