Judge grants restraining order in attorney general subpoena case

A US District Court Judge ruled Thursday to block investigatory subpoenas filed in September against environmental groups. 

US District Court Judge Joseph R. Goodwin granted a temporary restraining order Thursday afternoon against the West Virginia Attorney General Office to prevent it from enforcing subpoenas sent to the West Virginia Rivers Coalition and 350.org, an environmental group that advocates against the use of fossil fuels. 

The West Virginia Attorney General’s Office issued subpoenas to at least six environmental groups, pursuant to an investigation into suspected violations of the West Virginia Consumer and Credit Protection Act. The investigation came to light after the West Virginia Rivers Coalition and 350.org filed for a temporary restraining order in federal court. 

The groups contended their First and Fourth Amendment rights were being violated. 

In a strongly worded 27-page opinion, Goodwin agreed. 

“What these organizations do is argue in public about what coal, oil, and gas do to West Virginia’s waters and climate,” Goodwin wrote, “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 country was founded on the premise that a citizen owes the government no account of his opinions or of the people he holds them with. The Attorney General has demanded that two citizen organizations hand the State their working lives,” Goodwin added. 

The restraining order remains in effect until Nov. 12. Goodwin will set a hearing for a preliminary injunction – which would last the entire time the case is being litigated – at a later date. 

What happened in court 

Prior to arguments, Zachary Viglianco, the director of strategic litigation for the Attorney General’s Office, offered to cut down the scope of the subpoenas and to not enforce them until a more robust hearing in the future. 

“I appreciate your goodwill, but I have to go with what’s in front of me,” Goodwin said. “Informal offers that are amorphous are not of interest to me.” 

Amanda Demmerle, representing the two environmental groups, said she was ready to proceed. 

Earlier this week, Attorney General JB McCuskey’s office argued in a brief earlier this week that under the West Virginia Consumer Credit and Protection Act allows the state attorney general to investigate any “false or materially misleading speech” that affects West Virginia’s economy. 

“And the production of energy — including the mining of coal, extraction of natural gas and the use of those fuels to generate electricity — is both a critical part of West Virginia’s economy and a market sector that impacts the affordability of daily life of every West Virginian,” the brief stated. 

In her arguments in court, Demmerele said the groups she represented do not engage in commerce, therefore their speech would not fall under the Consumer Credit and Protection Act. 

“There can’t be probable cause to issue a subpoena if the act doesn’t cover the conduct someone is engaging in,” she told the judge. 

She said the subpoenas are meant to chill free speech — for example, she said the West Virginia Rivers Coalition did not want to publish a map of projects it is doing with community members for fear that McCuskey would target them. 

Demmerele said under McCuskey’s interpretation of the state statute, “a bad Yelp review could be investigated.” 

“The Credit and Consumer Protection Act is broad, but it is not unbridled,” Demmerele said. 

The Attorney General’s office contended both groups used out-dated climate models to harm the coal and natural gas industry in West Virginia. 

“It is the willful or knowing use of or reliance upon such a model, theory, or assumption,

with the aim of “directly or indirectly” affecting trade or commerce in West Virginia, that the

Attorney General’s subpoenas seek to investigate,” the brief stated. “These industries generate hundreds of millions of dollars in severance tax revenue and support tens of thousands of good-paying jobs.” 

However, in court, attorney Ryan Donovan, a private counsel representing the Attorney General’s Office, appeared to change courses. Instead of focusing on the effect of climate change information on the fossil fuel industry, he argued that the groups could be falsely using the outdated model to solicit donations. 

“I don’t see the donation stuff in your response,” Goodwin observed. 

Donovan stressed that years of revision and eventual retirement of the model meant the groups should have been aware, thus giving McCuskey reason to launch the investigation. Donovan also took issue with 350.org attributing extreme weather events to climate change. 

“How accurately do you want people to talk?” Goodwin asked. 

“That’s a great question,” Donovan said. “I think under the CCPA (Consumer and Credit Protection Act) you have to be accurate in knowingly making claims while engaging in commerce.” 

In her rebuttal to Donovan’s arguments, Demmerele warned that the Attorney General’s Office is engaging in unconstitutional overreach. 

“It appears the attorney general wants to be the arbiter of what is true and what is not,” she said. “This shouldn’t be argued in court. This is something that should be argued in scientific journals, in public debate.” 

After the hearing, Dave McMahon, a lobbyist and attorney, said he showed up to watch because he’s concerned about how the attorney general’s subpoenas affect those outside the organizations. 

“I am not a party, I do not represent a party, but I have worked with these groups over the years and I deeply resent the idea of my correspondence being subpoenaed,” he said. “This is unlawful and abusive.”