They Are Trying to Silence Us

The Attorney General of West Virginia recently initiated an investigation of NRDC and a handful of other groups on the stated ground that we may have committed consumer fraud. The theory appears to be that it’s deceptive for NRDC to say that the burning of fossil fuels contributes to climate change, which, in turn, causes harm to the planet and its people. But that’s fact, not fraud.  

To pursue his investigation, the AG served a subpoena seeking a vast trove of confidential internal and external communications relating to our advocacy around climate change for the past 10 years. The demand could cover sensitive strategy memos for policy advocacy, draft comments on regulations, exchanges with coalition partners, back-and-forth among scientists, dialogues with donors, and drafts of NRDC publications; all disclosed to a hostile adversary. 

Co-counseling with Democracy Forward, we responded to the subpoena by preparing a federal lawsuit asserting infringement of our First Amendment rights to speak, associate with others, and advocate for effective solutions to the climate crisis. Those solutions include the replacement of fossil fuels with renewable sources of energy. And that is what drives the AG’s attempt to punish NRDC: pure retaliation for the content of our point of view. 

At 2:13 p.m. on October 22, we advised the AG that we were going to file suit early that evening. A little more than two hours later, at 4:32 p.m., the AG withdrew the subpoena.  

The AG is not alone in trying to bully NRDC. In September, the Committee on Natural Resources of the U.S. House of Representatives sent a letter of inquiry to NRDC and 18 other nonprofit environmental groups, informing us they are investigating the groups’ litigation practices. Why? According to the Committee, the targeted groups “build powerful and profitable litigation machines funded by taxpayer dollars through the exploitation of statutory fee-shifting provisions.” On this purported basis, the Committee demanded that NRDC disclose an exhaustive array of intrusive information and documents that could take months of concentrated effort to produce.  

The premise of the Committee’s inquiry is that NRDC “effectively function[s] as [a] law firm[] funded by taxpayer dollars.” It calls NRDC “one of the most active litigating environmental nonprofit organizations driving the exploitation of statutory fee–shifting provisions.”  

While NRDC is indeed an active litigant in federal court, it rarely receives attorney fees from the federal government. During our past five fiscal years, NRDC’s income from such fees in cases involving agencies or statutes identified in the Committee’s letter constituted 0.112 percent of our operating budget. In light of this numerical fact, contending that NRDC “build[s] a business model focused on siphoning tax dollars by weaponizing litigation awards” is unmoored from reality. With minimal effort, Committee members or staff could have discovered this from documents in the public record.  

Courts have repeatedly held that the citizen-based enforcement litigation NRDC conducts, which holds government agencies accountable to the law, is a public service, and that Congress meant to encourage such suits by providing the opportunity to recover fees when a court determines an award is appropriate. This is the paradox: The Committee, which is part of Congress, accuses NRDC of stealing taxpayer money, when NRDC is doing precisely what Congress itself has empowered and encouraged NRDC to do.  

It is not the only paradox. The Committee claims that its purpose is “to root out waste, fraud, and abuse of taxpayer dollars.” If so, is it investigating the nearly $4 billion in taxpayer funds the U.S. Department of the Interior has agreed to pay companies to abandon offshore wind projects that would produce economical, renewable energy? The government bought back the wind leases without any statutory authority to do so, drawing funds from the same pot of federal money that often covers attorney fee awards. The amount of taxpayer money expended on the buybacks during the past six months is more than 3,000 times the amount of attorney fees paid to NRDC over the past five years. To our knowledge, the Committee is not investigating the lease buybacks.  

In response to the Committee majority’s attempt to intimidate NRDC, we sent this letter, asserting our First Amendment right to litigate to enforce the law. Thus far, the Committee has not sought to compel us to respond to its demand for documents. 

The Natural Resources Committee has plenty of company within the House. The effort to harass environmental nonprofits and their funders is part of a multipronged attack that includes the House Committees on the Judiciary; Science, Space, and Technology; and Oversight and Government Reform. While NRDC is not yet a specific, named target of any of these additional House inquiries, other environmental nonprofits are. 

These investigations and inquiries are designed to chill dissent, to punish those who disagree with the policies of those in power. The method of harassment is the same pernicious ploy we see repeatedly from the White House: Start with a lie (e.g., NRDC spreads deception, not facts, about climate change; NRDC feasts on federal attorney fees), then parlay the lie into a malicious attempt to deflect attention, divert resources, silence perceived enemies, and trample constitutional rights. It’s retaliation for protected speech. The West Virginia AG doesn’t want to debate the relative merits of renewable energy and fossil fuels—he wants to punish us because we disagree with him. 

The recent moves by the West Virginia AG and the House Committees erode the rule of law. Not to speak out against them is to cede the narrative—to be complicit in a dangerous form of attempted repression. In the face of hostile questioning, the upright prosecutor Jack Smith recently told Congress that, while fear is contagious, so is courage. He’s right. Everyone who acquiesces in these abuses of government authority makes it easier for everyone else to do the same. Everyone who speaks out encourages others to resist. 

It is not enough to survive this moment, silent and unscathed. As an organization rooted in the law, NRDC is compelled to fight for freedoms central to our democracy. The climate crisis is the existential issue of our day. But climate is not the only thing at risk.  

We will persist without fear to address the ravaging effects of climate change and enforce the law against polluters. Our millions of members and supporters expect and deserve that from us. We did not succumb to intimidation, and we will not succumb to it if it comes our way again. This is the sole silver lining in the misguided attempt to bully NRDC into submission and silence: It will not work.