Federal Judge Blocks West Virginia Attorney General Subpoenas

A federal judge in Charleston on Thursday temporarily blocked West Virginia Attorney General JB McCuskey’s office from enforcing subpoenas against two environmental advocacy groups, finding that the groups were likely to prevail on First Amendment grounds.

U.S. District Judge Joseph R. Goodwin of the Southern District of West Virginia granted a temporary restraining order in favor of the West Virginia Rivers Coalition and 350.org, Legal Newsline reported. The order blocks enforcement of the Sept. 16 subpoenas, including a Nov. 2 deadline to produce records, and runs through Nov. 12 unless extended. Mountain State Spotlight reported that the subpoenas demanded about 10 years of documents, including emails and internal communications.

WCHS reported that the subpoenas went to as many as six environmental groups. The groups sued, arguing the demands violated their constitutional rights. Legal Newsline reported that McCuskey’s office issued them under the West Virginia Consumer Credit and Protection Act, which Goodwin found reaches only conduct in trade or commerce. He wrote that the groups’ mission is advocacy.

“The First Amendment forbids a State from using its investigative power that way,” Goodwin wrote, according to Legal Newsline and WCHS. Mountain State Spotlight reported that he said he expects the groups to succeed in having the subpoenas dismissed, and that the parties will return to court later to argue that question. Legal Newsline reported that a preliminary injunction hearing will be scheduled separately.

McCuskey has said he is investigating whether the groups misled supporters with false climate-science claims, according to Mountain State Spotlight and Legal Newsline, which reported that the state questioned the groups’ reliance on a climate-projection scenario known as RCP8.5. His response to the lawsuit said, “The First Amendment is not a license to lie,” Legal Newsline reported. Mountain State Spotlight noted that he has openly supported coal, oil and gas production during his time in office.

At the hearing, the attorney general’s lawyers offered to stipulate that the subpoenas would not be enforced while the case continued, Legal Newsline reported. WCHS reported that the office had also modified its requests to drop its demand for donor-identifying information and that Goodwin was unpersuaded, saying informal offers that are amorphous were not interesting to him.

The groups’ attorney, Amanda Demmerle of Appalachian Mountain Advocates, argued that the attorney general issued the subpoenas because he does not like the groups’ speech, according to WCHS. Legal Newsline reported that the Rivers Coalition has paused publishing its story maps and a community mini-grant program.