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June 1, 2016
VIA HAND DELIVERY

The Hon. Lamar S. Smith

Chairman

Committee of Science, Space and Technology
US. House of Representatives

2321 Rayburn House Office Building
Washington, DC. 20515?6301

Re: May 18, 2016 Letter
Dear Chairman Smith:

We represent Greenpeace USA and reSpond to the Committee?s May 18, 2016 letter.
Greenpeace received your letter and has a number of preliminary questions and concerns. For
one, just the sheer breadth of the requests would require more time than the June 1, 2016 date
proposed in your letter for a full response. In addition, your letter raises a number of
troubling legal issues. Greenpeace is proud of its work and has nothing to hide in its efforts to
address climate change. Nevertheless, we have to ensure that the Committee (as any entity) is
operating properly before undertaking to respond to any request for information.

As you know, Greenpeace is an organization that welcomes any public airing of the
issues on which it is committed, including the now certain evidence of climate change. To the
extent the Committee is engaging in serious review of the need to address this critical issue,
Greenpeace could not be more willing to participate. Let me start with some background on
Greenpeace?s commitment to the environment and its work on the subject of climate change.

For more than a decade, Greenpeace has worked to reduce the emissions that cause
climate change, advocated for corporate and government policies that address climate change,
and exposed the corporations, lobbyists, and front groups that deny the existence of climate
change and its causes. This work has always been and will always be informed by the
underlying science that confirms that climate change is real, and is caused by man?made
emissions 
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Greenpeace?s activism on climate change ranges from opposing drilling in the Arctic, to
helping technology giants power their data centers with renewable energy, to exposing the
funding from the fossil fuel industry to politicians, scientists, and lobby groups who deny
climate change and block necessary action to address it. Greenpeace?s long?running
commitment to finding solutions for climate change is based on the scientific consensus that
action cannot be delayed by politics or false debate.

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The Hon. Lamar S. Smith -2- June 1, 2016

As I understand it, the Committee is looking to determine whether state attorneys
general and non-pro?t, non-governmental, or other groups committed to protecting the earth
and its environment have somehow colluded to sti?e ?rst amendment protected speech of one
or more of the most powerful and wealthiest companies in the world. I am sure that you, your
colleagues, and your staff could not help but notice the irony in your inquiry. In the name of
protecting the free speech of these companies, you are looking to examine the very free
speech activity of groups actively trying to advance public discussion on such a vital topic. In
doing so, your inquiry attacks some of the most basic rights upon which this country was
founded ?speech on public issues,? Snyder v. Phelps, 562 U.S. 443, 452 (2011); ?the ability
of like?minded individuals to associate? to express commonly held views, Knox v. Serv.
Employees Int ?1 Union Local 1000, 132 S. Ct. 2277, 2288 (2012); and the right to petition the
government. United Mine Workers v. Ill. State Bar Ass 389 U.S. 217, 222 (1967) (holding
the right to petition government is ?among the most precious of the liberties safeguarded by
the Bill of Rights?). Congress is not outside the protections afforded to Greenpeace and
others to enjoy these constitutional rights. Watkins v. United States, 354 U.S. 178 (1957).

In addition, the articles written about the efforts of state attorneys general indicate that
their activity is directed at determining whether at least one fossil fuel company 
ExxonMobil broke securities and consumer fraud laws by making false statements about
their activities and the known scienti?c and market risks of those activities with regard to
climate change. These alleged false statements occurred in public and were made to affect the
behavior of consumers and investors. In other words, while Greenpeace?s work on climate
change has been to follow the science, the fossil fuel industry is being investigated for trying
to cover up that science. As you surely know, the law does not protect the dissemination of
false statements, especially if they are part of fraudulently misleading consumers and
investors. See United States v. Phillip Morris USA Inc., 566 F. 3d 1095, 1123 (DC. Cir.
2009) (holding tobacco industry?s public statements were not protected speech because ?it is
well settled that the First Amendment does not protect fraud?). Is the Committee
investigating these possible false statements or those trying to determine whether false
statements were made?

Also, if the Committee is truly engaged in oversight activity, it appears it already has
reached its conclusions. For example, just seven lines into your letter you conclude that the
activities of the state attorneys general ?were efforts to silence speech.? The letter then goes
on for three full pages ?lled with similar conclusions ?The strategy decided upon by
workshop participants appears clear: to act under the color of law to persuade attorneys
general to use their prosecutorial power to sti?e scienti?c discourse, intimidate private entities
and individuals, and deprive them of their First Amendment rights and freedoms?). If the
Committee has already reached these conclusions, then what is the real purpose of the
inquiry? I also noticed that the letter is signed only by some Republican members of the
Committee. That fact alone would cause many observers to question whether this is merely a
partisan effort to protect fossil fuel companies.

The Hon. Lamar S. Smith -3-

June 1,2016

We recognize that Congress and your Committee have broad authority to conduct
legislative research and various oversight activities. Even still, as you know, this authority is
not unlimited. The Committee must operate under the House and its own rules, must have
jurisdiction to inquire into speci?c areas, must have authority to conduct its activity, and must
comply with legal requirements for seeking information. Your letter cites some of the rules,
but a number of questions are raised by your letter:

1.

House Rule de?nes the power of the committees, including yours. While
the Committee surely could investigate the fossil fuel companies at the heart of
the issue of climate change, how does Rule X(p) extend to review the work and
especially the law enforcement activities of state attorneys general? Putting
aside issues of federalism, states? rights, and the Tenth Amendment to the
Constitution, it would appear this type of oversight is assigned to the
Committee on the Judiciary under House Rule 

The Committee?s rules, for example Rule 11, de?ne the Committee?s
requirements on meetings and quorums and other procedures. Can you
provide us any indication that the underlying actions behind this letter and the
letter requests themselves were taken in compliance with these rules? We
think you would agree that ensuring regularity and compliance are things we
have to con?rm on our client?s behalf.

Committee Rule de?nes the Committee?s oversight authority. That rule
and all of its related provisions seem to suggest that the Committee looks to
determine if federal laws are being followed or need adjustment by reviewing
the actions or inactions of federal agencies over which Congress has
jurisdiction. How does the genera] thrust of oversight apply to this attempt to
regulate the activity of state agencies?

The two actual requests in the letter are vague and overbroad and likely would
be declared so if issued by an executive branch agency or private litigant. For
example, the word ?all? qualifying documents and communications can be
sweeping if left unde?ned. Similarly, the phrase ?relating to? leaves so much
to interpretation (as opposed to the phrase ?referring to?) that it is impossible
to understand how to apply it.

Depending on whether any communications of any kind actually exist, they
might also implicate privileges attorney-client, common interest) that are
recognized in every forum in the United States. We assume the Committee
does not intend any recipient of a request (let alone a letter request) to disobey
such privileges.

Finally, the period of time included four and a half years is a very long one.
This in itself requires time to consider where any information might be located.

The Hon. Lamar S. Smith June 1, 2016

To be clear, Greenpeace will always cooperate with any authorized and legitimate
inquiry of Congress or anyone else into one of the most pressing issues of our time one that
will affect our children and their children for generations to come. At this point, the issues
raised by your letter, outlined above, prevent Greenpeace from providing the information
requested. We are willing to meet with you and/or Committee staff to further discuss our
questions and concerns. Thank you for your consideration.

 

cc: Ranking Member Eddie Bernice Johnson