A federal judge has temporarily halted the state Attorney General’s subpoena for 10 years of West Virginia Rivers Coalition communications and documents.
The Attorney General maintained the environmental organization could have promoted outdated climate change theory to the detriment of the state’s fossil fuel-based economic drivers.
“What these organizations do is argue in public about what coal, oil, and gas do to West Virginia’s waters and climate,” wrote U.S. District Judge Joseph Goodwin in an order filed Thursday afternoon.
“The State’s chief legal officer, who has publicly condemned that advocacy, now demands to know how they reached their views and who stood with them. The First Amendment forbids a State from using its investigative power that way, and I will not allow it while this case is pending.”
The probe is paused for the next 14 days under the temporary restraining order granted by Goodwin, but it’s not necessarily the final say. A more detailed hearing on a permanent injunction will occur at a later date.
Attorney General J.B. McCuskey’s office sent an investigatory subpoena in September to the longstanding environmental organization West Virginia Rivers 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.
“All of that chills their speech and association,” said a lawyer for the environmental groups, Amanda Demmerly.
Goodwin conducted a preliminary hearing about the case on Thursday in Charleston.
The hearing of a little more than an hour focused on what constitutes free speech versus the Attorney General’s legal theory of environmental groups going beyond that into intentional deception to harm fossil fuel industries.
“Climate change is real,” Demmerly said. “It’s caused by fossil fuels. But even if it wasn’t, they’re allowed to say what they’re saying under the First Amendment.”
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 position submitted to court 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.
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 Attorney General isn’t challenging the premise that climate change exists,” said Ryan Donovan, outside counsel representing the state.
“This is an investigation into a narrow, specific category of statements the Attorney General believes were made with knowing falsity and intent to deceive.”
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.
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.
David McMahon is a Charleston attorney but not a direct party to the case. He attended the hearing and afterwards said his emails could be among those swept up in the probe. He said that is intrusive and overreach.
“This needs to stop,” McMahon said outside the courthouse.
“To me, the first thing is the Attorney General is abusing the consumer protection act, which is for consumers and not to defend coal companies using taxpayer money. Anything is part of commerce because you’re buying gasoline. It’s stretching it way beyond what Silly Putty would stretch.”