Federal Judge Blocks AG McCuskey's Subpoenas of Two Environmental Groups

CHARLESTON, W.Va. — A federal judge in Charleston has hit the pause button on West Virginia Attorney General J.B. McCuskey’s investigation into two environmental groups, ruling that the state’s demands for their records likely run afoul of the First Amendment.

U.S. District Judge Joseph R. Goodwin of the Southern District of West Virginia granted a temporary restraining order in a 27-page memorandum opinion and order dated Thursday, Oct. 29. The order protects the West Virginia Rivers Coalition and the national climate group 350.org from subpoenas the Attorney General’s Office issued on Sept. 16.

Under the order, the Attorney General’s Office cannot enforce those subpoenas, including a Nov. 2 deadline the groups faced to hand over records. It also can’t ask a court to force the groups to comply, and it can’t issue new compulsory demands to either group for the same kinds of information. The restraining order runs until 4 p.m. on Thursday, Nov. 12, unless the court extends it, and a hearing on a longer-lasting preliminary injunction will be scheduled separately.

What the subpoenas sought

McCuskey issued the subpoenas under the West Virginia Consumer Credit and Protection Act as part of an investigation into potentially unfair or deceptive practices. According to the judge’s opinion, the Attorney General’s Office argued that the groups’ climate advocacy could affect the state’s energy marketplace, and it questioned their reliance on a climate projection scenario known as RCP8.5.

The subpoenas contained 16 separate document demands reaching back to Jan. 1, 2017, covering everything from public statements and fundraising appeals to internal discussions, coalition work and relationships with renewable energy businesses. After the groups sued, McCuskey withdrew his demands for donor information, but the judge found that the remaining requests still reached board affiliations, coalition partners, grant recipients and unpublished discussions.

“Their mission is advocacy”

Goodwin rejected the argument that the groups’ advocacy amounts to commercial speech covered by the consumer protection law, noting the record showed no cheated consumer and no sale or purchase made because of the groups’ statements.

“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 First Amendment forbids a state from using its investigative power that way.”

In its response to the lawsuit, the Attorney General’s Office defended the probe as an effort to protect West Virginians from misleading climate claims, writing, “The First Amendment is not a license to lie.”

Not the final word

The ruling is not a final decision in the case. Goodwin based the temporary relief on the groups’ freedom-of-association claim and left their other constitutional arguments unresolved for now. The two organizations filed their lawsuit on Oct. 22, alleging violations of the First, Fourth and Fourteenth Amendments.

It’s a fight that cuts right to the heart of the Mountain State, where coal, gas and clean water all run deep in our history and our economy. We’ll keep an eye on the case as it heads toward the injunction hearing and let you know what comes next.