Part of the state’s top legal officer’s line of reasoning rested on the premise that the two citizen groups based their positions on a climate-model scenario called RCP8.5, a projection that has recently been declared obsolete.
From yesterday’s decision by Judge Joseph Goodwin (S.D. W. Va.) in W. Va. Rivers Coalition, Inc. v. McCuskey:
The West Virginia Attorney General has exercised the State’s authority to compel two citizen organizations to disclose a decade’s worth of their records: drafts, internal debates, the groups they fund, the individuals who sit on their boards, the coalitions they have joined, and what they have told the agencies they petition. Neither group markets goods nor services linked to the subpoenas. The Attorney General points to no consumer harmed, no sale, and no purchase made because of anything either group stated.
The essence of these organizations’ work is to speak publicly about the impact of coal, oil, and gas on West Virginia’s waters and climate. The State’s chief legal officer, who has publicly denounced that advocacy, now demands to know how they formed their views and who supported them.
The First Amendment forbids a State from wielding its investigative power in this manner, and I will not permit it while this case remains unresolved.
The nation was founded on the principle that a citizen owes the government no account of his opinions or the people with whom he aligns. The Attorney General has required two citizen organizations to surrender the working records of their lives to the State.
The State seeks a decade of what they published, down to a note addressed to a single person outside the organization, along with unreleased drafts and internal debates over what to say. He demanded the names of the organizations that fund them and what each contributed, and he has since withdrawn that request. He still seeks the groups they funded, the board members they share, the coalitions they joined, and the comments they filed with the agencies they petitioned. Because the demand window extends to the date of compliance, the subpoenas reach communications written while they remain in effect. No demand identifies a consumer, a sale, or a statement anyone relied upon. The subpoenas probe how these citizens arrived at their positions on public matters and who helped them along the way.
The Plaintiffs in this case, West Virginia Rivers Coalition, Inc. (“WVRC”) and 350.org, champion the protection of clean waters, lower carbon emissions, and healthier lives for the people of West Virginia and beyond. They do not vend any service. They do not promote a proprietary product. Instead, they advocate for ideas. Some of that advocacy, and some of those ideas, rely in part on a single model. For that reason, they have been subpoenaed and asked to provide ten years’ worth of information far exceeding any need tied to that one model.
AG McCuskey’s actions contravene the protections guaranteed by the United States Constitution. On these facts, the Plaintiffs have engaged in protected advocacy speech, not commercial speech. The subpoenas issued against the Plaintiffs infringe upon their freedom of association, chill their First Amendment rights, and discourage others from engaging in similar activity.
Because the Plaintiffs are likely to prevail on the merits of their claim that the subpoenas infringe their First Amendment freedom of association, and because the remaining injunction factors also favor the Plaintiffs, their Motion for a Temporary Restraining Order is GRANTED.
Attorney General McCuskey is enjoined from enforcing these investigative subpoenas for the next fourteen days as set out in the Conclusion of this Memorandum Opinion and Order….
A bit more on the plaintiffs:
Plaintiff WVRC is a river-advocacy nonprofit corporation organized under West Virginia law, and its mission is to promote clean and healthy West Virginia waters for everyone. The nonprofit pursues clean water and healthy rivers through research, public education, policy advocacy, citizen water-quality monitoring, and engagement with state and federal agencies. It maintains a lean staff of about 15 and an annual budget of roughly $2 million, funded primarily by foundations and similar organizations. WVRC regularly submits comments on proposed legislation, permits, and rules concerning water quality. And as this court already knows, WVRC is a party to multiple Fourth Circuit cases challenging permits and approvals for infrastructure projects, pipelines, injection wells, and toxic discharges. Because of its litigation work, WVRC coordinates with other organizations through shared counsel about litigation strategy.
WVRC also engages in public education and information campaigns, including statements about the effects of climate change on West Virginia’s waters and communities, and about the environmental impacts of fossil-fuel extraction, transport, and combustion. It is a member of several coalitions pursuing similar goals. To fund its work, WVRC solicits charitable contributions from the public via its website, mailings, emails, and events, but it does not disclose the identities of its donors.
Plaintiff 350.org is a nonprofit corporation whose mission is to mobilize a grassroots movement to end the use of fossil fuels and accelerate the transition to renewable energy. The organization disseminates information about climate change, organizes public demonstrations, and collaborates with other like-minded groups. 350.org also solicits charitable contributions from the public through grant applications and via its website, mailings, emails, and events. Those grants and contributions are subject to opt-in confidentiality in some cases and agreed confidentiality in others.
And an excerpt from the court’s First Amendment analysis (for more on RCP8.5, see this N.Y. Times article):
[T]he Court applies “exacting scrutiny” to compelled disclosures of protected First Amendment speech and association. To be a permissible intrusion on the First Amendment, there must be a substantial relation between the disclosure requirement and a sufficiently important governmental interest.
The subpoenas … “… concern[ ] an investigation into alleged unfair or deceptive acts or practices and other possible violations of the West Virginia Consumer Credit and Protection Act (‘WVCCPA’).” State law authorizes the Attorney General, if he “has probable cause,” to “subpoena witnesses, compel their attendance, adduce evidence, and require the production of any matter which is relevant to the investigation.”
Under West Virginia law, “[u]nfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are … unlawful.” Trade or commerce “means the advertising, offering for sale, sale or distribution of any goods or services and shall include any trade or commerce, directly or indirectly, affecting the people of this state.” “Unfair methods of competition and unfair or deceptive acts or practices” includes 16 different definitions including “[e]ngaging in any other conduct which similarly creates a likelihood of confusion or of misunderstanding.”
Deploying these broad definitions, AG McCuskey’s theory is that the Plaintiffs, environmental advocacy groups, published information, made comments, and advocated based on a study, the RCP8.5, that has been determined “implausible.” According to AG McCuskey, this reliance, and subsequent advocacy, is a deceptive act or practice that affects the energy marketplace of West Virginia.
Begin with common sense—in what way could WVRC and 350.org violate the WVCCPA? They are not financial institutions, lenders, or creditors. They are not businesses seeking to make a profit by engaging with consumers. In fact, both are 501(c)(3) nonprofit organizations. They do not sell services of any kind. As explained, Plaintiffs are advocacy organizations committed to climate issues. Their missions are public education, dissemination of information, advocacy in support of their ideals, and public support of those who align with their beliefs. What little items they sell are merchandise bearing their names and logos. Surely these minimal sales from advocacy organizations are not the transactions the West Virginia legislature sought to protect consumers from….
Plaintiffs do not engage in commercial speech. By virtue of their missions as nonprofit environmental advocacy groups, their interests are not economic. Their interests include public education, funding environmental projects, modeling and projecting the effects of climate change, and contributing to a society that values clean air, clean water, and healthier lives. The fact that their advocacy touches on the economy is insufficient to be commercial speech. Therefore, Plaintiffs’ protected speech and advocacy alleged in this case cannot be regulated under the WVCCPA.
Accordingly, I find that the WVCCPA cannot supply a “sufficiently important governmental interest” under the “exacting scrutiny” applied to freedom of association claims. I next turn to the severity of the “disclosure requirement” under the “exacting scrutiny” analysis….
As discussed, the subpoenas broadly assert that a violation of the WVCCPA might have occurred. And in his response, AG McCuskey admits that there may not be any WVCCPA violation. He does, however, have authority to issue subpoenas to investigate “whether a violation … has, in fact, occurred.”
That violation, AG McCuskey argues, arises from only a few instances of Plaintiffs using a certain climate projection model, RCP8.5. Any publication born from that model, he asserts, is potentially unfair or deceptive. So to assess the breadth of the subpoenas and the compelled disclosure Plaintiffs are subjected to, the court turns to the subpoenas’ demands. It is reasonable to assume that the demands would roughly track the RCP8.5-related violations and the allegations of unfair or deceptive trade practices.
Not so. The subpoenas ask for much more. The 16 categories of demands include every statement Plaintiffs have ever published about a West Virginia energy business with a “Climate Claim.” But that demand is not limited to climate-related statements supported by the RCP8.5 model. It includes every climate-related statement that names a West Virginia energy business which is published and supported or informed, at least in part, by any model, study, project, plan, projection, or paper. Demand No. 4 is similarly broad: the subpoena demands every published projection concerning West Virginia and all documents related to those projections, without narrowing it down to those supported by the RCP8.5.
The rest of the demands do not even try to mask their broad and sweeping intentions. Donation requests, payments to third parties, and licensing and funding documents of all projects concerning West Virginia are demanded. Every document projecting costs and damages is demanded, as well as every report, study, model, or paper that the Plaintiffs directly or indirectly supported. Documents pertaining to internal considerations are demanded wholesale. So, too, are all documents pertaining to third-party communication and coordination in any fashion. And even with AG McCuskey’s last-minute withdrawal of certain demands for donor information, Plaintiffs will still be obligated to disclose “board affiliation, coalition partners, grantees, agency submissions, internal deliberations and drafts, solicitation totals and targeting.”
Plaintiffs call this a fishing expedition. In part, I agree. The subpoenas demand a large share of documents in Plaintiffs’ control for the last ten years. But even on a fishing expedition, hoping to just get one bite in the vast and quiet water, a person brings a fishing pole. And in other cases, perhaps, a net. Here, AG McCuskey has abandoned both the fishing pole and the net. Instead, he has brought dynamite to the lake. Tossing a couple in, he hopes to catch something.
As stated, compelled disclosure that invades First Amendment protections can only stand if there is a substantial relation between what must be disclosed and a “sufficiently important governmental interest.” Here, I find neither a sufficiently important government interest nor do I find a substantial relationship between the compelled disclosure and the government interest….
And the court also briefly notes plaintiffs’ retaliation claim, without resolving it:
Plaintiffs have alleged substantial evidence to support their [retaliation] claim. AG McCuskey has publicly disparaged pro-environmental groups and has called for the DOJ to investigate similar groups. He has joined contentious litigation against environmental advocacy organizations. And the chasm between the subpoenas’ demands and the purported basis for investigation suggests a retaliatory motive.
This phenomenon of state and federal investigation into the affairs of advocacy non-profits has begun to permeate our culture. The courts have enjoined civil investigative demands on comparable records. [Citations omitted. -EV]
However, because retaliation concerns the Attorney General’s motive, I will reserve judgment on Count One until he can present evidence at a hearing for a preliminary injunction. Having already determined that an injunction is warranted on the basis of Count Two (freedom of association), the court declines to address the remaining counts….
Derek Teaney and Amanda Demmerle (Appalachian Mountain Advocates, Inc.) represent plaintiffs.
