Friday, March 03, 2017

New York AG seeks to deflect House subpoena over Exxon climate enforcement matter

By Mark S. Nelson, J.D.

New York Attorney General Eric Schneiderman said his office plans to dispute the validity of a subpoena issued by the House Committee on Science, Space, and Technology seeking information about New York’s investigation into whether ExxonMobil Corp. may have broken state securities and other laws regarding disclosures the company allegedly made about climate change. This is the second time in a year that Schneiderman’s office has objected to a subpoena from the House committee, while also fending off related litigation by Exxon.

In the latest response, counsel for Schneiderman’s office told committee Chairman Lamar Smith (R-Tex) not to expect a reply to what the office said was an even broader subpoena than the one issued by the committee last summer. “I write to inform you that the NYOAG cannot and will not comply with the Subpoena as presently composed,” said counsel Leslie Dubeck. Still, the New York attorney general’s letter held open the possibility of resolving the subpoena dispute without further litigation.

According to New York, the subpoena violates the Tenth Amendment, which serves as a check on Congressional power. New York cited a Congressional Research Service report that found no precedent for a Congressional committee issuing a subpoena to a state attorney general. New York also cited concerns voiced by several federalism scholars who argued that this type of subpoena can put state sovereignty at risk, and it may disrupt an ongoing enforcement matter.

Separately, Maryland Attorney General Brian Frosh announced that 15 state attorneys general sent a letter to Chairman Smith urging him to withdraw subpoena requests made to New York and Massachusetts. According to the letter, the subpoenas are actually an effort by Exxon to obtain records it could not get by other means.

The attorneys general also cited the Supreme Court’s decision in Younger v. Harris, which established the Younger abstention doctrine barring federal courts from interfering with pending state criminal or quasi-criminal proceedings and with some state court orders, for the proposition that the House subpoena would upset long-held principles of federal-state comity.

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