[Senate Hearing 119-198]
[From the U.S. Government Publishing Office]
S. Hrg. 119-198
ENTER THE DRAGON CHINA AND
THE LEFT'S LAWFARE AGAINST
AMERICAN ENERGY DOMINANCE
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON FEDERAL COURTS,
OVERSIGHT, AGENCY ACTION,
AND FEDERAL RIGHTS
OF THE
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED NINETEENTH CONGRESS
FIRST SESSION
__________
JUNE 25, 2025
__________
Serial No. J-119-28
__________
Printed for the use of the Committee on the Judiciary
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
www.judiciary.senate.gov
www.govinfo.gov
__________
U.S. GOVERNMENT PUBLISHING OFFICE
61-887 WASHINGTON : 2025
-----------------------------------------------------------------------------------
COMMITTEE ON THE JUDICIARY
CHARLES E. GRASSLEY, Iowa, Chairman
LINDSEY O. GRAHAM, South Carolina RICHARD J. DURBIN, Illinois,
JOHN CORNYN, Texas Ranking Member
MICHAEL S. LEE, Utah SHELDON WHITEHOUSE, Rhode Island
TED CRUZ, Texas AMY KLOBUCHAR, Minnesota
JOSH HAWLEY, Missouri CHRISTOPHER A. COONS, Delaware
THOM TILLIS, North Carolina RICHARD BLUMENTHAL, Connecticut
JOHN KENNEDY, Louisiana MAZIE K. HIRONO, Hawaii
MARSHA BLACKBURN, Tennessee CORY A. BOOKER, New Jersey
ERIC SCHMITT, Missouri ALEX PADILLA, California
KATIE BOYD BRITT, Alabama PETER WELCH, Vermont
ASHLEY MOODY, Florida ADAM B. SCHIFF, California
Kolan Davis, Chief Counsel and Staff Director
Joe Zogby, Democratic Chief Counsel and Staff Director
Subcommittee on Federal Courts, Oversight,
Agency Action, and Federal Rights
TED CRUZ, Texas, Chair
LINDSEY O. GRAHAM, South Carolina SHELDON WHITEHOUSE, Rhode Island,
MICHAEL S. LEE, Utah Ranking Member
THOM TILLIS, North Carolina RICHARD BLUMENTHAL, Connecticut
JOHN KENNEDY, Louisiana MAZIE K. HIRONO, Hawaii
ERIC SCHMITT, Missouri ALEX PADILLA, California
PETER WELCH, Vermont
Michael Berry, Republican Chief Counsel
Claire Kim, Democratic Chief Counsel
C O N T E N T S
----------
OPENING STATEMENTS
Page
Cruz, Hon. Ted................................................... 1
Durbin, Hon. Richard J........................................... 7
Whitehouse, Hon. Sheldon......................................... 4
WITNESSES
Arkush, David.................................................... 13
Prepared statement........................................... 33
Responses to written questions............................... 65
Kobach, Kris..................................................... 10
Prepared statement........................................... 44
Walter, Scott.................................................... 14
Prepared statement........................................... 51
APPENDIX
Items submitted for the record................................... 79
ENTER THE DRAGON-CHINA AND
THE LEFT'S LAWFARE AGAINST
AMERICAN ENERGY DOMINANCE
----------
WEDNESDAY, JUNE 25, 2025
United States Senate,
Subcommittee on Federal Courts, Oversight, Agency
Action, and Federal Rights,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice at 2:32 p.m., in
Room 226, Dirksen Senate Office Building, Hon. Ted Cruz, Chair
of the Subcommittee, presiding.
Present: Senators Cruz [presiding], Durbin, Whitehouse,
Blumenthal, and Welch.
OPENING STATEMENT OF HON. TED CRUZ,
A U.S. SENATOR FROM THE STATE OF TEXAS
Chair Cruz. Good afternoon. I hereby call to order this
hearing, Enter the Dragon-China and the Left's Lawfare Against
American Energy Dominance. We're witnessing right now a
systematic campaign against American energy. There is a
coordinated assault by the radical left, backed and paid for by
the Chinese Communist Party to seize control of our courts, to
weaponize litigation against U.S. energy producers.
All in order to undermine American energy dominance. At
stake, is a lot more than an industry. Our energy sector is the
engine of American prosperity, the lifeblood of our industrial
power, our national security, and our geopolitical leverage. If
American energy is under attack, so is American security and
American independence. The campaign against American Energy is
a three-pronged assault.
First, foreign money from entities tied to the Chinese
Communist Party flows into the United States to bankroll
climate advocacy groups who litigate against American Energy.
Second, activist lawyers flood our courts with lawsuits
designed not to win policy debates but to bankrupt energy
producers and to dismantle energy infrastructure through sheer
attrition.
And third, the judiciary itself is being quietly captured
and brainwashed as left wing nonprofits host closed door
trainings that indoctrinate judges to adopt the ideological
goals of the climate lawfare machine. The first prong of this
coordinated campaign is a strategic alliance, a cozy financial
partnership between leftist, billionaires, radical
environmental organizations, and the Chinese Communist Party.
[Poster is displayed.]
One of the primary vehicles for this alliance is Energy
Foundation China, which has funneled upwards of $12 million to
U.S. based climate advocacy groups since 2020. And this money
isn't going to tree planting campaigns or to science fairs.
It's flowing directly to aggressive litigation outfits like the
Natural Resources Defense Council, the Rocky Mountain
Institute, and the World Resources Institute.
Organizations that routinely file lawsuits trying to block
pipelines, trying to ban gas powered vehicles, and trying to
bankrupt oil and gas companies. On paper Energy Foundation
China's goals may sound benign. Support for clean coal,
electric vehicle and global decarbonization. But that raises
the obvious question.
If this is truly about reducing emissions, why isn't China
investing that money in reducing its own pollution? China is
the number one polluter on planet earth. Communist China emits
more carbon than the United States and Europe combined. The
answer is simple because this is not about climate. It is about
global energy dominance and control and it gets worse.
The man at the helm of Energy Foundation China, Ji Zou, is
not a neutral administrator. He is a former senior official in
China's National Development and Reform Commission. The agency
responsible for writing the CCP's 5-year plans, coordinating
industrial expansion and steering national energy policy
between 2000 and 2009.
And again from 2012 to 2015, Professor Zou served as a key
member of China's official climate negotiation team, including
during the run up to the Paris Agreement, a deal that gave
China a free pass to increase emissions until 2030 while
demanding immediate costly reductions from the United States.
That was not an accident, that was not a bug, that was the
purpose and he is not the only one. Energy Foundation. China's
senior leadership includes other alumni of the Chinese Ministry
of Ecology and Environment and affiliated State-run
institutions. This is not remotely a grassroots nonprofit. It
is a foreign policy weapon disguised as philanthropy, run by
Chinese Communist Party operatives.
Flush with funding, the second prong of this campaign is a
legal barrage aimed at bankrupting the American energy sector
through a coordinated onslaught of lawsuits. And if this feels
familiar, it should. It's the same playbook the left used to
try to destroy President Trump. They couldn't beat him at the
ballot box so they turned to the courts for indictments, dozens
of civil suits, fringe legal theories given legitimacy by rogue
activist judges.
That wasn't about justice, it was about power. Now they're
applying that same strategy to an entire sector of the American
economy. Over 30 lawsuits have been filed in at least 15
Democrat-run jurisdictions, including by 12 States targeting
oil producers and gas producers and coal producers. Climate
lawfare activists have infiltrated American cities and States
convincing them to sue American energy companies.
Over 24 pending suits brought by our own State and local
governments manipulated by the Chinese Communist government and
funded by left-wing groups. And all of them together are
crippling American energy. These lawsuits use creative theories
like public nuisance, climate superfund, consumer protection
but their objective is clear. Cripple the fossil fuel industry
through legal attrition and the damages are staggering.
One suit seeks $1.15 billion. Another demands $3.5 billion.
The days of Dr. Evil demanding $1 million are long behind us.
These are not good faith disputes. These are weapons. Just in
fiscal year 2023, the leading climate law fair groups, not even
all of them, just the leading groups, raked in close to $500
million from U.S. energy companies. That's $500 million
stripped from our energy independence.
[Poster is displayed.]
Driving these lawsuits is Sher Edling, LLP, a private
plaintiff's firm that has filed more than two dozen suits.
They're not paid by their clients. They're bankrolled by dark
money empires like the New Venture Fund and the Tides
Foundation. Groups that launder anonymous donations into
political litigation. This matters because our domestic energy
industry supports over 8.5 million jobs, jobs that these
zealots want to destroy.
Our fossil fuels power 84 percent of our national energy.
If these suits succeed, here's what the American public will
face. Skyrocketing energy costs, a weakened, an unreliable
power grid and an historic collapse in American energy
production. And the biggest winner in all of this, China, who's
paying the bills. This is not litigation. It is strategic
sabotage disguised in legalese, executed with precision and
aims squarely at the foundation of American strength.
The third prong of this strategy is perhaps the most
insidious because it strikes at the very heart of the rule of
law, judicial capture. It is being carried out by one
organization with near total control over climate related
judicial training, the Environmental Law Institute, and its
climate judiciary project. If a Federal judge or a State judge
is receiving ``climate science education today,'' chances are
overwhelming that it is coming from ELI. The group has
established a defacto monopoly on climate rating related
instruction for the judiciary.
[Poster is displayed.]
[Points at poster.]
They've, ``Trained over 2000 judges.'' They claim to be
neutral. They claim to be science driven but what they are
doing is ex parte indoctrination, pressuring judges to set
aside the rule of law and rule instead according to a
predetermined political narrative. Left wing bankrollers like
the Hewlett Foundation and the Freedom Together Foundation
Fund, CJP. They fund CJP to train judges, so, ``Train in
climate science and make them agreeable to creative climate
litigation tactics.''
Then these left wing bankrollers turn around and fund the
climate litigators who will bring these bogus cases before
those same judges that they've just indoctrinated. This is like
paying the players to play and paying the umpire to call the
shots the way you want them. On April 1 of this year, in my
capacity as Chairman of the Commerce Committee. I sent a letter
to the Environmental Law Institute, raising deep concerns about
this program.
We have also initiated oversight requests with Federal
agencies like NOAA, whose internal documents show a cozy
relationship with ELI and its activist curriculum. And here's
what we've learned. The Climate Judiciary Project tells judges
that, ``The consequences of a business-as-usual scenario would
be catastrophic.'' That's called propaganda. And yet it goes
on, it encourages the judiciary to view climate litigation as
a, ``Unique opportunity for accountability.''
It even recommends embracing novel tort theories like
public nuisance to assign liability for greenhouse gas
emissions. Let me ask, is this neutral or is that lobbying
behind closed doors? The materials even applaud pending
lawsuits, praising the Rhode Island AG's case is, ``well-
crafted'' while failing to mention that similar claims have
been dismissed by Federal courts as legally baseless.
And who funds these baseless CJP trainings? The same dark
money donors who bankrolled the lawsuits themselves. The same
networks that support Sher Edling, LLP. This is not how a
constitutional republic functions. Courts are not supposed to
be laboratories for political activism and judges are not
supposed to be trained by the plaintiff's bar that is receiving
their funding from the Chinese Communist Party.
What we are witnessing is judicial capture, driven by
ideology, powered by money, and tolerated by far too many. This
three-pronged strategy, foreign funding, mass litigation and
judicial indoctrination is a full spectrum assault on American
energy independence. And while China drills and digs, we sue
and shut down. While China dominates supply chains, we
dismantle our own in court. And while China prepares for energy
dominance, the American left prepares to attack our own
domestic capability.
Congress has a responsibility to expose the funding
networks, to break the dark money pipelines, to defund the
judicial indoctrination programs and to restore legal
neutrality to the courts. We must protect American energy, not
just on the battlefield but in the courtroom where this war is
being quietly waged. Ranking Member Whitehouse.
OPENING STATEMENT OF HON. SHELDON WHITEHOUSE,
A U.S. SENATOR FROM THE STATE OF RHODE ISLAND
Senator Whitehouse. Thank you, Chairman. This hearing is a
perfect display of projection; blaming your adversary for what
you are doing. Dark money, judicial capture, propaganda. Oh my,
the fossil fuel industry would have nothing to do with those
things. The hearing ignores that the fossil fuel industry has
for decades benefited from secret funding to wage war on the
American consumer by making energy more expensive and dirtier,
higher utility bills, worse pollution.
Let's examine the facts. First, money. The fossil fuel
industry has spent 10 times more on lobbying than environmental
groups and the renewable energy industry combined, that's not
even counting fossil fuel elections spending. Republican and
fossil fuel interests pushed for the citizens' united decision,
allowing unlimited election spending by special interests.
Second, dark money. My Disclose Act would require
transparency in election spending. We voted on it a half a
dozen times, every time every Republican voted against it.
Third, energy. Renewable energy is now the cheapest form of
energy on the planet. The wind, our sunshine, flowing water and
the earth's own heat are all free and essentially unlimited
fuel sources their price. Again, zero, does not depend on
geopolitical events or international industry cartels beyond
our control. As Republicans hold this hearing today, oil and
gas gasoline prices have climbed in response to strife in the
Middle East.
As Republicans hold this hearing today, tens of millions of
Americans swelter through a punishing heat wave made both more
likely and more intense by climate change caused by fossil fuel
emissions. So, let's talk about climate change. By damaging
earth's natural systems, climate change costs Americans money,
lots of money.
I suspect that Americans would be more interested in
tackling climateflation than an unspooling yet another
conspiracy theory from the fossil fuel funded fertile swamp of
Republican fever dreams. Climate change is raising grocery
prices. Coffee, chocolate, sugar, and orange juice are just a
few of the staples whose prices have spiked in response to
floods, droughts, and heat waves made worse by climate change.
Climate change is raising electricity costs. Heat waves,
hurricanes, wildfires, droughts, and floods, raise generation
and distribution costs, raising Americans' utility bills. Heat
waves force people to consume more electricity. Air
conditioners are running all around Washington today, further
raising consumers' electricity bills.
And then there's insurance. This is the big one not just
because of the added costs for consumers but because of the
risk that an insurance crisis triggers a deep and lasting
recession. Increasingly frequent and severe wildfires and
storms are making property insurance both unaffordable and
unavailable in many places. Texas had the fourth highest
average homeowners' premium is in the country last year at
around $6,000.
This year, their projected to increase by another $500. In
Louisiana premiums averaged almost $11,000 last year. In
Florida, they were over $14,000 and those are projected to get
far worse. That's when you can find a company to write
coverage. Last year, as Chair of the Budget Committee, I
investigated how climate change was driving non-renewals, where
your insurance company fires you after you've been a loyal
customer for many years because they can't afford the risk of
your property.
We found that non-renewals are spiking around the country,
up 278 percent in Florida, 267 percent in Louisiana, 944
percent in Chambers County, Texas. Where insurance becomes
unavailable, it becomes impossible to get a mortgage. No
insurance, no mortgage. Without the ability to get a mortgage
property values crash unless of course your billionaires
swapping mansions back and forth with your excess income.
Rising insurance premiums on their own also cause home
values to decline and a wide scale crash in coastal and
wildfire prone home values is likely to trigger a larger
economic meltdown like we saw in 2008. I'm not the only one
saying this. An economist cover story last year predicted a $25
trillion hit to the global real estate market, the world's
largest asset class.
Earlier this year, Fed Chair Powell told the Senate Banking
Committee that in 10 to 15 years it'll be impossible to get
insurance or a mortgage in entire regions of the country. It's
already hitting home. I'll share a few articles for the record
for the Houston Chronicle, inside the costly new reality of
ensuring a home in Texas.
Map, see where extreme weather is pushing up home insurance
costs in Texas and the U.S. Houston Chronicle again, Texas has
a home insurance crisis. These four charts show how it's
getting worse. How much is your Texas home worth if you pay a
lot in insurance? Less than you might think. Wouldn't it be
great if colleagues on both sides of the aisle would focus on
this?
The real danger rather than attempting to project fossil
fuel dark money mischief onto the organizations and elected
governments that are trying to protect Americans from climate
change. Climate change is going to impose immense costs on
State and local governments. That is indisputable. Sea level
rise and other climate related phenomena are already damaging
roads, bridges, ports, water treatment plants and other
essential infrastructure. And it will just get worse. One
emblem of climate change's cost to governments is the proposed
Ike Dike in coastal Texas estimated to cost nearly $60 billion.
Who's going to pay for that?
Governments faced with costs like that have a dilemma. Who
do you get the money from? Taxpayers? Do you want to go to
taxpayers adding another hit on top of their spiraling
insurance premiums and declining home values? Or do you want to
look at the responsible party, the fossil fuel industry. To put
this into scale, Exxon's profits in the last quarter of last
year were $900 million per day.
If they had to pay a billion-dollar judgment, they'd be
over it by 6 a.m. the next day. And the oil and gas industry
has known about this problem for more than 60 years. For 3
decades, they hired their own climate scientists and did their
own research and their own scientists confirmed that combusting
fossil fuels would heat the planet with disastrous consequences
for earth's natural systems, that is, for all of us.
And then armed with that knowledge, they lied. They denied
the science. They obstructed climate action. They constructed
the most complex and mischievous armada of phony front groups
that America has ever seen in order to do so. The suits that
are at issue in this hearing are brought under a variety of
traditional State law tort public nuisance and fraud claims. At
their heart, there about who should pay for the climate damages
bearing down on folks around the country.
We Democrats believe that the responsible party, the
polluter, the fossil fuel industry should pay. So does Milton
Friedman, by the way, it's Econ 101, that pollution, a negative
externality should be baked into the cost of the product.
Republicans, on the other hand believe that American families
should pay to protect the free to pollute business model of
their favored fossil fuel industry.
By the way, every time somebody on that side of the aisle
says the word energy in this hearing, what they really mean is
fossil fuel. Every time they say the word energy dominance in
this hearing, what they really mean is fossil fuel dominance.
It's gotten so bad that the Trump administration actually wrote
wind energy and solar energy, which are extremely prevalent and
successful in Texas out of their own definition of energy.
They're not just violating economic principles; they're
violating the dictionary. That's where we're at. Well, I'm
willing to bet that the American people are with us on this
one.
Thank you, Chairman.
Chair Cruz. Well, I thank the Senator from Rhode Island for
those effusive words about the great State of Texas. And I
would note that for more than a decade, we have had over 1,000
people a day fleeing blue States such as those represented by
the Democrat Members of this Committee. And coming to Texas, we
right now have over 1,500 people a day coming to Texas because
Texas is where the jobs are and you can raise your family
safely and with prosperity.
The Ranking Member of the full Committee, Senator Durbin,
has asked to give an opening statement as well. Senator Durbin.
OPENING STATEMENT OF HON. RICHARD J. DURBIN,
A U.S. SENATOR FROM THE STATE OF ILLINOIS
Senator Durbin. Thanks, Mr. Chairman. Last year, President
Trump asked a room full of oil industry executives to raise $1
billion for his reelection campaign. And in return, he promised
to reverse the environmental policies of the Biden
administration. Big Oil, Big Fossil Fuel eagerly took Trump up
on his offer.
They didn't quite make it to $1 billion for his campaign,
but fossil fuel companies spent over $400 million to elect
Donald Trump and other Republicans in the 2024 election cycle.
It seems their money was well spent. In less than 6 months, the
Trump administration has gutted staff at the EPA, moved to
special regulations that ensure clean air and water repeal
regulations that ensure clean air and water, instructed
agencies to stop considering the cost of carbon emissions and
scrubbed even the mention of climate change from government
documents and websites.
In our audience today are a lot of students and interns,
welcome to Washington. Many of us have been through your
experience. I'm glad you're watching this hearing because this
hearing is all about you and the world you're going to live on.
And whether or not the weather you noticed in June in the
District of Columbia is going to be weather you're going to
notice in May and April as well.
That's what's at stake here. They say when it comes to heat
in Washington, it isn't the temperature, it's the stupidity,
the stupidity of Congress when it comes to ignoring climate
change, when ignoring what is happening right outside the door.
Who wants to place a bet that the overall temperature on the
earth is not going to go up this year over last year and next
year, over this year, and on and on and on.
And you're thinking about finishing college, getting a job,
raising a family, owning a home. This is your world. How we can
try to hatch conspiracy theories about the Chinese and God
knows what else. But the bottom line is what are we doing about
it? What are we doing for you about it? So your generation has
a fighting chance to have a place that's habitable and livable.
I decided about 4 or 5 years ago to take advantage of the
tax credits that were available, put solar panels on your home.
It didn't catch onto my neighborhood. I'm the only one with
solar panels. But let me tell you the reality of the situation.
My electric bill in Springfield, Illinois used to be $120 a
month. It's now 15. My solar panels are working out pretty
nicely.
But what are they doing now with the new bills? They're
considering the reconciliation bills and others, they're doing
their best to eliminate all these tax credits and incentives to
put solar panels on your home. Why? What in the hell is so
insidious and dangerous about a solar panel? That was my
conscious decision and my investment and I think it'll pay off
nicely for me. Why would you want to set out to do this?
Because of fossil fuel industry hates them like the devil hates
holy water.
They hate solar panels, but we put them on then and I'm
glad we did. President Trump also instructed the Justice
Department to sue the States that have enacted laws to force
fossil fuel companies to pay for the cost of their pollution
and to block lawsuits intended to hold the fossil fuel industry
accountable.
Now, Republicans are trying to repeal the tax incentives
like the one I just mentioned on my solar panels in my home as
part of the President's so called, ``Big Beautiful Bill.'' Less
clean energy means what? More pollution, more heat on this
planet, higher electricity bills for Americans. Who's going to
profit from that? The fossil fuel industry exactly. Climate
change is real and it's a huge threat to our economy, our
environment, and our way of life.
These facts are undeniable. We need you as young people in
America to stand up and say to our generation, ``Get the hell
out of the way. You're screwing up this planet and we have to
live with it.'' So, give us something that's more hopeful and
positive. And it isn't by finding conspiracy theories involving
China. Instead of holding this partisan hearing to push
conspiracy theories and fossil fuel industry funded attacks on
State climate policy, we should be holding bipartisan meetings
to address the cost of climate change and to identify
bipartisan ideas to produce more clean energy, create jobs and
lower energy bills across the country and maybe give you an
earth that you can live on.
I yield.
Chair Cruz. I thank the Ranking Member, and I would note
that both of my Democrat colleagues in their remarks had not a
word to say about communist China funneling millions of dollars
to pay for these lawsuits, miraculously that was absent from
their remarks nor----
Senator Whitehouse. I think we referred to it by using the
phrase, ``Conspiracy.''
Chair Cruz. Yes, you did say you don't worry about
conspiracy theories but what is most certainly not a conspiracy
theory is that the agenda of the Chinese Communist Party and
the agenda of Senate Democrats are identical. Both China and
the Democrats want to bankrupt the American energy industry.
Both China and the Democrats want to destroy jobs in America
and both China and the Democrats want to increase the price you
pay for electricity every month.
And they want to increase the price you pay for putting gas
in your car every week. That is the agenda of today's Democrat
party. That is the agenda of communist China. And today's
Democrats are not remotely embarrassed to have their left wing
groups funded by communist China, the world's biggest polluter
because China's interest is weakening and hurting America. It
makes you ask why an American political party would have that
interest as well.
Senator Whitehouse. I would just observe that saying it
more loudly doesn't make it more true.
Chair Cruz. Actually, in Washington, sometimes it does. All
right. We will now introduce our distinguished panel. We will
start with Attorney General Kris Kobach, who was raised in
Topeka, Kansas, where he graduated from Washburn Rural High
School. He completed his undergraduate studies in government at
Harvard University. I've heard of them.
Graduating first at his department in summa cum laude, a
Marshall scholar. He received his PhD in politics from the
University of Oxford. He received his JD from Yale Law School
serving as notes development editor of the Yale Law Journal.
Attorney General Kobach clerked for the 10th Circuit Court of
Appeals and shortly thereafter became a professor of
constitutional law at the University of Missouri, Kansas City
School of Law from 1996 to 2011.
During that period, Attorney General Kobach received a
White House fellowship from President George W. Bush. He served
in the United States Department of Justice under Attorney
General John Ashcroft as Counsel to the Attorney General.
Attorney General Kobach served as the 31st Kansas Secretary of
State from 2011 to 2019.
In 2017, President Trump tapped him to lead the
Presidential Commission on election integrity. As an attorney
in private practice, Attorney General Kobach litigated some of
the most high profile cases in the country, including defending
statutes and ordinances against the ACLU on multiple occasions.
In 2012, he brought the first challenge to President Obama's
DACA amnesty on behalf of 10 ICE agents.
In 2022, he represented 36 members of the Air Force and the
Air National Guard who were denied a religious exemption to the
Biden Vaccine Mandate. Attorney General Kobach was elected as
Kansas' 45th Attorney General in November 2022. As Attorney
General, he led and personally argued multiple challenges to
the illegal actions of the Biden administration, including
obtaining an injunction, stopping Biden's illegal Title IX
regulation that would've opened women's locker rooms and
facilities on college campuses to biological males.
He also stopped the Biden administration's regulation that
provided Obamacare benefits to illegal aliens. In 2024, the
Nation's Republican Attorney's General elected him chairman of
the Republican Attorney General Association. He lives near Lee
Compton with his wife Heather and their five children. Our
second witness is David Arkush.
Senator Whitehouse. May I? He's a minority witness.
Chair Cruz. In practice, the Chairman has always introduced
all the witnesses.
Senator Whitehouse. I don't think that is the practice but
that's okay if you don't want to provide me that courtesy,
proceed.
Chair Cruz. David Arkush is the Director of Public Citizens
Climate Program. He is an expert on the climate crisis,
financial regulations, regulatory law and policy and consumer
and worker protection. He has broad experience building
coalitions and advocating for the public interest, having
interacted extensively with Congress and regulatory agencies
and litigated complex cases in the Federal courts.
Before running the climate program, David spent 5 years
directing Public Citizens Congress Watch Division, where he led
strategic research and advocacy campaigns and played key roles
in the passage of laws including the Dodd-Frank Wall Street
Reform and Consumer Protection Act of 2010, and the Consumer
Product Safety Improvement Act of 2008.
A Time magazine profile of David notes that he has,
``Advocated for consumer protection, advised breaking up the
largest too big to fail banks and addressed other industry
structure issues while investigating the financial sector's
myriad ties to the Government.''
David has also taught administrative law and legislation at
the University of Richmond School of Law. He graduated with
honors from Harvard Law School where he served as managing
editor of the Harvard Civil Rights Civil Liberties Law Review
and with honors from Washington University in St. Louis, where
he was elected to Phi Beta Kappa.
Our third witness, Scott Walter, is President of Capital
Research Center. He served in the George W. Bush administration
as Special Assistant to the President for Domestic Policy, and
was Vice President at the philanthropy Round Table, editing
Philanthropy magazine and producing donor guidebooks on
assistance to the poor, public policy research and other
topics.
Walter has testified to six Committees in Congress, and to
the IRS, and numerous State legislatures, and he has written
for and been quoted in such outlets as The New York Times, The
Washington Post, The Wall Street Journal, and the Chronicle of
Philanthropy. A Georgetown graduate, he served as a senior
fellow at the Beckett Fund for Religious Liberty, and is senior
editor of AEI's flagship publication.
He is the author of Arabella: The Dark Money Network of
Billionaires Secretly Transforming America. He and his wife
Erica, have four children and live in Virginia. I would ask
each of the three witnesses to please rise for the oath.
[Witnesses are sworn in.]
Chair Cruz. All of you have answered affirmatively. General
Kobach, you are recognized for your opening statement.
STATEMENT OF HON. KRIS KOBACH, ATTORNEY GENERAL, STATE OF
KANSAS, TOPEKA, KANSAS
Mr. Kobach. Thank you, Mr. Chairman, and distinguished
Members of the Committee. I appreciate the opportunity to
testify today about environmental lawfare. As Attorney General
of Kansas, I've represented the State of Kansas in multiple
environmental cases in this broad category of litigation.
Because my experience is greatest in the litigation itself
rather than on the various connections to China, I will focus
principally on the litigation. Touching briefly on the China
connections where I am familiar with them. I want to jump
straight to what we see that's new in environmental litigation.
We're all familiar with the past decades of litigation.
There are two new types of litigation we're seeing just in
the last few years. First, we are seeing laws or regulations
coming from specific States that are extra territorial in
scope. In other words, the law doesn't just regulate the State
and the residents of that State. It attempts to regulate the
whole country.
And I'll give you two principal examples of this. And the
main way to stop these laws right now and to try to restore
Federal, nationwide uniform regulation in the environmental
sector is for either the justice department or for a State to
sue. First in 2023, the California Air Resources Board or CARB
promulgated their advanced clean fleet regulation, which
mandates a transition to zero emission trucks on highways in
California by 2035 for medium duty vehicles by 2042 for all
other vehicles.
But most fleets would have to meet emission targets
starting this year in 2025. This CARB regulation masquerades as
an in-State rule. But really it is a nationwide rule because of
California's scope and because so many ports are in California,
trucks have to go through and if they go through California for
one bit of one day then they're subject to the regulations. It
would effectively create a national policy regulating trucks
all over the country.
And of course, usurp Congress's prerogative, presumably
something the Committee cares about here. In 2024, Nebraska and
Kansas and 15 other States sued California, challenging
California's CARB regulation, arguing principally that it was
preempted by two Federal statutes. Candidly, California was
never going to win this case in court. You had those two
express preemption provisions and then on top of that, they had
to get a waiver from the EPA.
They applied for that waiver but by the time of the recent
election had not yet obtained it. And then in January of this
year, California backed down, withdrew their waiver request,
and entered into settlement negotiations with the plaintiff
states of which I'm one. But not all extraterritorial State
laws are defeated so easily. The ones that are currently in
litigation are the so-called climate change Superfund laws in
like late 2024.
New York enacted one and then in early 2025 Vermont
followed. The New York Law Forces climate companies to
retroactively pay fines, totaling $75 billion for the past 25
years of fossil fuel emissions, the carbon emissions, the CCP
backed Chinese American Planning Council lobbied heavily for
the New York Superfund Law.
In February, 2025, a group of Republican-led States, 22 of
us sued in the U.S. District Court for the Northern District of
New York. We are maintaining that it is impliedly preempted by
the Clean Air Act, since it obviously interferes with
Congress's objective of having a uniform national law. It also
violates the equal sovereignty of the States.
But I make the point in my written testimony, this is one
area where express preemption would be much more helpful. And
I'm normally a strong opponent of preemption. I think Congress
should reluctantly preempt State laws and courts should
reluctantly read between the lines of congressional statutes to
find preemption. But this is one area where I believe express
preemption will be helpful to Congress and to the States so
that we have a uniform national policy. And there's language I
suggest on page 5 of my testimony.
The second threat is something the Chairman alluded to and
that is lawsuits brought by cities and counties. And these are
all over the country. There's over 30 of them. I want to
briefly describe a couple of them. One is Rodriguez versus
Exxon Mobil. In that case, Ford County, Kansas, where Dodge
City is, is one of the plaintiffs attempting to represent not
just Ford County, not just Kansas counties, but to represent
all counties in America and all of their representatives.
In other words, it's purporting to represent everybody in
this country. They're bringing a case under the theory of
public nuisance but they're also doing something different.
They're attempting to usurp the State's prerogative as parens
patriae. That is to say the State's Attorney's General have the
authority to bring a case to protect the broadly rich health
and welfare of the citizens of the State.
So in addition to usurping Federal authority by trying to
make a national policy in that case against plastics, they're
also usurping State authorities. As Kansas' Attorney General,
I've intervened in that case and also in a companion case or a
similar case with similar plaintiffs, going after shale oil
production in New Mexico. There's another case that's further
along. It's Mayor and City Council of Baltimore v. BP. That
one's in the Maryland Supreme Court right now. I think that
where Congress can be helpful in these cases is in getting to
the bottom of where the money is coming from.
The case has been going on for 8 years. There's not a
single dollar that's been won in damages. Yet, tens of millions
of dollars in attorney's fees have been expended already. The
money is coming from somewhere. The foundations are getting
their money from somewhere. It's reasonable to ask if China is
part of that equation. And I think, I would hope that would be
there'd be bipartisan support for disclosing foreign funding of
third-party litigation.
And so, in conclusion, I would say we will continue these
fights in court as the State Attorney's General. But we do need
some help from Congress. And I think these are modest requests
for legislation preemption that would preserve the prerogatives
shared by both parties for congressional national uniform
legislation and also some transparency where foreign entities
and foreign countries are engaged in this litigation.
[The prepared statement of Mr. Kobach appears as a
submission for the record.]
Chair Cruz. Thank you General. Mr. Arkush.
STATEMENT OF DAVID ARKUSH, DIRECTOR,
PUBLIC CITIZEN CLIMATE PROGRAM, WASHINGTON, DC
Mr. Arkush. Chairman Cruz, Ranking Member Whitehouse,
Ranking Member Durbin, thank you for the opportunity to testify
today. Right now, there's a brutal heat wave afflicting half
the United States. Energy costs and insurance premiums are
skyrocketing. And we're sitting here in the U.S. Senate talking
about Chinese communist conspiracy theories straight out of the
1950's. I don't think this is the right priority.
That said, there is a conspiracy here and it's the obvious
one in plain sight. Big Oil has made trillions of dollars in
profits over the past several decades and the industry is
extremely harmful. It kills millions of people every year and
has cost us trillions of dollars. The industry knew decades ago
that burning fossil fuels would cause in its own words,
``Globally catastrophic harm.''
What it chose to do with that knowledge is remarkable.
Imagine you've learned that something you are doing will cause
globally catastrophic harm, will have, ``Serious consequences
for humanity's survival. Those are the industry's words.'' I
hope you would stop doing it.
If for some reason you can't stop immediately because of
the economic importance of your industry then you could still
alert the public and help work toward solutions, including
selling safer, better forms of energy yourself. Worst case, you
could at least keep quiet while other people go about learning
about the problem and figuring out how to fix it.
But the oil industry did none of these things. Instead, it
actively lied and deceived people, spending millions of dollars
on a deception campaign to cast doubt on science that the
industry itself knew was correct. They had polling in the
1990's that showed strong public support and public concern for
climate change. And that showed that public support for climate
change turned to opposition when people were told that there
was scientific disagreement about climate science.
So that's what they did. Manufacture doubt about climate
science and fraudulently claim that scientists disagree about
it. Even more remarkable, it's clear they believed the science
themselves because they used it. For example, in the 1990's,
they raised the height of offshore oil platforms to account for
the sea level rise that they predicted.
They did this while arguing to the public and Congress that
climate science was too uncertain to make any costly economic
decisions about it, but they weren't uncertain. They moved to
protect their own investments and interests while lying to
everyone else. This was also, they could keep profiting
enormously but the rest of us have not profited, far from it.
On the contrary, we're paying dearly. Last year alone climate
related harms cost Americans nearly $1 trillion, more than 3
percent of GDP.
This is like a stealth tax on all of us. Insurance premiums
are skyrocketing due to climate driven extreme weather
insurance companies are pulling out of more and more places,
even whole States. The Chair of the Federal Reserve, as Senator
Whitehouse noted, recently testified to a Senate Committee that
there are whole regions of the country, where in 10 or 15 years
you won't be able to get a mortgage and there won't be bank
branches or ATMs.
This will have devastating economic consequences for our
country. A large proportion of climate related costs are
already uninsured and the burden is increasingly falling on
American families and State and local governments. Some of
those governments are trying to hold Big Oil accountable for a
fraction of those costs so that the polluter's responsible for
the damage pay the cost instead of taxpayers getting stuck with
the bill. This is a basic principle of fairness.
Something we teach to our toddlers. You make a mess, you
clean it up. Also, the notion that a person who causes damage
should pay for it is as old as law itself. You can see it in
the Code of Hammurabi written nearly 4,000 years ago. But oil
companies don't like this principle because they're causing
more harm than perhaps anyone else in human history and they
don't want to pay what they owe. They don't want the normal
rules to apply. They want you to shield them from
accountability and they're pushing for it in part by funding
people to spin cockamamie theories about China like the ones
we're hearing today.
Speaking of China, if anyone is helping China right now in
our political system, it's the party pushing what I think of as
a serious energy retreat and the Big Ugly Bill in Congress.
Some people call it the Big Beautiful Bill. That bill would put
China way, way ahead of the U.S. by strangling our renewable
energy, stifling innovation, and locking us into forking over
hundreds of billions of dollars every year to the dirty,
dangerous, expensive energy of 200 years ago, fossil fuels.
The bill could shatter 331 factories and kill 330,000 jobs
in the U.S. solar industry alone, mostly in red States,
including ones represented by Members of this Committee. But
that's what Big Oil wants and that's the industry that happens
to fund the elections of politicians supporting the bill and
funds a vast network of groups that are still lying on its
behalf. That's the conspiracy here, the obvious one in plain
sight. Thank you.
[The prepared statement of Mr. Arkush appears as a
submission for the record.]
Chair Cruz. Thank you. Mr. Walter.
STATEMENT OF SCOTT WALTER, PRESIDENT,
CAPITAL RESEARCH CENTER, WASHINGTON, DC
Mr. Walter. Chairman Cruz, Ranking Member Whitehouse
distinguished Members of the Subcommittee, thank you for the
honor of testifying. I'm Scott Walter, President of the Capital
Research Center, where we study special interests. It's no
accident as the Marxists say that China has deep ties to the
environmentalist movement. Whatever their intentions, radical
climate activists advocate policy after policy that objectively
strengthens China and weakens America.
Whether it's hindering our production of energy, boosting
China's energy resilience, or making our supply chains
dependent on Chinese inputs. As the report by State Armor I
cited documents, the Chinese Communist Party has every
incentive to support climate activism in America.
Unfortunately, as I also document, China finds willing partners
in activist groups like the Rocky Mountain Institute, the
California China Climate Institute and Energy Foundation China.
The Energy Foundation Scheme is not subtle. It's headed by
a former influential Chinese government official and sends
money to activists at groups like the Rocky Mountain Institute
and the Natural Resources Defense Council. It also sends money
to activists in universities like Berkeley, UCLA, and Harvard.
But foreign nationals in China aren't the only ones who attack
our energy independence and threaten to make it harder for
working class Americans to heat and cool their homes and drive
their cars and trucks. Billionaires around the world add to the
threat.
In Australia, the billionaire Andrew Forrest works with
American tort lawyers and groups like the Sierra Club and the
Center for Climate Integrity to put a major U.S. energy company
out of business through lawfare that bypasses the democratic
process. A British billionaire, Sir Christopher Hohn also funds
the Center for Climate Integrity as well as law breaking
radicals at Extinction Rebellion.
Then, there's the biggest foreign national billionaire
working to manipulate America's politics, Hansjorg Wyss, who's
poured over $650 million into the American left. Recipients
have included Earthjustice Legal Defense Fund, ClimateWorks,
and the minority witness's employer, Public Citizen.
But Wyss is best known for giving $278 million to the
Sixteen Thirty Fund, a 501c4 operated by Arabella Advisors and
called by the Atlantic, ``The indisputable heavyweight of
Democratic Party dark money.'' Sixteen Thirty passes along tens
of millions of dollars to the League of Conservation Voters and
other environmental groups. Then there's the new Venture Fund
to which Wyss has given $82 million and which is also operated
by Arabella. They run the largest dark money network in the
country on either side.
New Venture has donated over $1 million to Mr. Arkush's
Public Citizen and it also runs the Collective Action Fund.
That group pays the fore profit firm Sher Edling to sue energy
companies on behalf of States like Rhode Island and cities like
Baltimore, in hopes judges will force policies on our country
that majorities of Democrats and Republicans oppose, policies
that should be resolved through the political process by voters
and their elected representatives, not by private lawyers and
their ideologically motivated funders.
Climate lawfare in America is also funded by homegrown
billionaires. Many with the same last name, ``Foundation.''
Hewlett and Rockefeller philanthropies stand out joined by many
more like Ford and MacArthur, who provide a handful of climate
lawfare groups a half billion dollars a year.
Billionaire Michael Bloomberg supports lawfare by paying to
install activists in State Attorney General offices, hoping
they'll sue energy companies and achieve policy changes they
can't win through democratic legislatures.
So far, they're mostly losing in the courts too. The New
York AGs case was dismissed with prejudice. Climate lawfare
raises ethics issues too. Contingency fees for firms like Sher
Edling presume they're taking a risk but are they, if they have
prior funding? Did these firms disclose that funding to
government clients? If the Government clients knew, did they
disclose the funding to the public?
Another ethics problem, the Climate Judiciary Project runs
educational programs for judges about climate change and
lawsuits. One observer calls it an effort by the climate tort
movement to brief judges on the plaintiff's cases with
supposedly neutral information.
Yet the speakers come from the plaintiff's witnesses and
amicus brief filers. This effort to capture courts deserves
your oversight. If the public knew climate lawfare's cost and
its ties to foreign influence, they'd be outraged. I hope this
hearing begins to reveal the truth. Thank you.
[The prepared statement of Mr. Walter appears as a
submission for the record.]
Chair Cruz. Thank you. What we're seeing is not the rule of
law. It's lawfare. These lawsuits aren't meant to succeed on
the merits. They're designed to exhaust, to intimidate and to
destroy America's energy sector, death by a thousand cuts.
We've even seen private parties get in on the act. One of the
most infamous examples was Juliana versus United States, where
21 people sued the Federal Government claiming that allowing
climate change to persist violated their due process rights.
A Federal district judge in Oregon actually agreed,
comparing the right to a stable climate to the right to same
sex marriage. She was prepared to enjoin the entire Federal
Government, effectively putting the energy industry into
judicial receivership at the behest of ``children.''
Fortunately, the Ninth Circuit, by far the most liberal court
of appeals in the country shut it down and eventually a
unanimous Supreme Court did as well.
Funded by deep pocketed climate activists and left wing
dark money, the anti-American energy lobby and its allies in
the plaintiff's bar have initiated dozens of civil lawsuits
against American energy producers. These suits, which assert
State law claims under dubious nuisance toward or consumer
protection theories are properly preempted by Federal law.
Nevertheless, they have proliferated across the country and
they're exposing energy producers to potentially trillions of
dollars in damages. There are now more than 30 active lawsuits
across the country accusing energy producers of misleading the
public about carbon emissions and climate change. If
successful, these suits could destroy millions of jobs and
raise the energy cost of every consumer in America.
Let me start with the legal foundation. General Kobach,
have any of these climate lawsuits brought under public
nuisance or similar theories been upheld on the merits by a
Federal Appellate Court?
Mr. Kobach. No, Senator. And none of them have been upheld
on the merits by a State appellate court either. The case that
is closest to a higher-level decision right now is the
Baltimore case, Baltimore versus BP. It's several consolidated
cases. That's basically a case where Baltimore is suing the
fossil fuel industry, defendants for climate change generally.
A lot of these others are more specific like shale oil
production or plastics but they're just global warming. And the
District Court in Baltimore ruled against the plaintiffs on all
eight grounds. That's a pretty big deal and they now are
appealing to the State Supreme Court. That one will probably be
decided later this year, early next year. But that's the
biggest or nearest chance the plaintiffs have to achieving a
victory. But they have got no victory so far.
Chair Cruz. And isn't it true that many of these suits are
brought by cities and counties that lack the legal standing to
assert injuries on behalf of the entire public?
Mr. Kobach. Yes, Mr. Chairman and that's what I was
alluding to when I mentioned parens patriae. The State has the
responsibility--parens patriae is Latin of course for parent or
father of the country and the State Attorney General, which
represents the State at large, has that sovereignty. Our
Constitution contemplates that States have sovereignty and they
conceded some of that sovereignty to the Federal Government.
But localities are creations of State government,
localities do not possess the sovereignty the State does. And
so, while some people may be upset that we have 50 States and
the States take different positions in some of these legal
cases, the States have at least the right to represent their
residents. Cities do not, counties do not.
And so, it massively multiplies the, the potential
plaintiffs out there. And it becomes nonsensical in a legal
sense for a city in one end of a State and a city on the
opposite end of the State to both purport to represent the
residents of the same State. And in the cases I mentioned,
they're purporting to in a class action format, represent all
representatives, represent all citizens and residents of every
county in America. So they've taken public nuisance theory to a
bizarre extreme. And they've also usurped authority of State
Attorney's General.
Chair Cruz. Well, that may help explain why they're losing
so many of these cases. Mr. Walter, Sher Edling has filed
dozens of climate lawsuits. Are they being paid by the
Government entities they represent or by anonymous left wing
donor networks like the new Venture Fund?
Mr. Walter. I believe the vast majority of the funding
comes from the outside funders, yes.
Chair Cruz. Isn't it also true that one of the biggest
sources of funding for U.S. based environmental litigation
groups is Energy Foundation China, an organization run by a
former senior Chinese Communist Party official who helped craft
the CCP's 5-year energy plans?
Mr. Walter. Energy Foundation China channels tens of
millions of dollars to numerous environmental groups. Yes.
Chair Cruz. Now, Mr. Walter, my Democrat colleagues have
said that's a crazy conspiracy theory. What is the basis for
saying that energy Foundation China is funneling so many
millions of dollars into these suits?
Mr. Walter. Well, their own IRS filings because they're are
501c3 registered in San Francisco.
Chair Cruz. If this were really about reducing emissions,
wouldn't we expect Energy Foundation China to give a damn about
the worst polluter on the face of the planet, that being
communist China?
Mr. Walter. That would be logical. Yes, Senator.
Chair Cruz. And yet their lawsuits are designed to destroy
the American energy industry, which happens to perfectly
coincide with the political objective of Senate Democrats to
destroy the American energy industry. Would the result of that
help or hurt America and would it help or hurt China?
Mr. Walter. Well, obviously it would help China vis-a-vis
the United States and it would certainly be highly problematic
for everyone in the United States.
Chair Cruz. Thank you. Senator Whitehouse.
Senator Whitehouse. Just for the record, at least as to me,
my personal objective is to reduce fossil fuel emissions to the
point of safety, which can be done in a lot of ways, including
by reducing fossil fuel emissions or scrubbing them out of the
fossil fuel power plants or replacing burning water to make
steam with fossil fuel to run the turbines with boiling water,
with nuclear, solar, other ways to run the turbines.
So, this is not about destroying the fossil fuel industry.
This is about getting the fossil fuel industry to behave like a
responsible citizen while it is causing so much harm. On the
subject of harm, the International Monetary Fund has pegged the
subsidy to fossil fuel in the United States every year from
getting away with polluting for free, which is not moral, not
economic, not environmentally correct. At over $700 billion,
$700 billion.
No wonder it's such a monster in the political landscape
when it's defending a $700 billion annual subsidy. But more
than that, the damage that it does rolls forward. And one of
the areas we're seeing it most clearly now is through the
insurance industry. And Mr. Arkush, I'd like to ask you a
little bit about that [points at witness]. There have been
reports, not from green groups, from major insurance companies,
from major mortgage companies, from very respected financial
experts that once climate change makes weather and weather
conditions too unpredictable, there become areas of the country
that can't insure themselves any longer.
And once they can't insure themselves any longer in that
area, you can't get mortgages any longer, which means that
property values crash in that area and that local bankers
suffer because their loan to value ratios crash and their
mortgage revenue crashes. And that the combination of that
local economic effect with the property value loss to those
homeowners cascades into a full on 2008 style recession. Could
you walk us through that and where we're seeing some current
examples of that already beginning to appear?
Mr. Arkush. Sure. That's exactly right. Again, no less than
the Republican Chair of the Federal Reserve has said that there
are whole regions of the country that soon you won't be able to
get a mortgage and there may not be bank branches or ATMs. And
that is because of insurers withdrawing from those areas. And
the way this works is that climate harms raise insurance rates
or cause insurance insurers to withdraw entirely. They're
withdrawing from entire States. There are headlines about this
every other month.
When insurance becomes too expensive to afford or is just
unavailable, that dramatically drops home values because you
can't get a mortgage without insurance. And if you can't get a
mortgage on a property, that dramatically shrinks the buying
pool. And also, if the insurance is just really expensive, the
expenses of paying for any asset or any kind of ownership
reduce the value of the asset, right?
Senator Whitehouse. My point in my opening remarks, if the
average homeowners insurance price in Florida is now $14,000 a
year.
Mr. Arkush. Yes.
Senator Whitehouse. And if that's predicted to double or
triple, let's say it doubles, now you go to $28,000 a year.
Mr. Arkush. Yes.
Senator Whitehouse. If when you buy a home you're signing
up for $28,000 a year in expense out of your pocket?
Mr. Arkush. Just for insurance.
Senator Whitehouse. Just for insurance, what does that do
for the value the home?
Mr. Arkush [continuing]. Not for maintenance, not the home,
not the taxes, not for anything else. That's right. Then it
gets a lot harder to sell your home, that's for sure.
Senator Whitehouse. Yes. The price goes down.
Mr. Arkush. And the value of your property falls a lot.
Yes, that's absolutely right. And that's what we're seeing in
Florida, people are losing their insurance. It has some of the
highest premiums in the country. It has some of the fastest
premium increases in the country. According to data from the
Federal Insurance Office, there was a 168 percent increase from
2018 to 2022.
And Floridians who have to go to the State last resort
insurer, Florida Citizens because they can't get insurance from
anyone else. Ten percent of Florida homeowners already don't
have insurance. And more and more people are unable to afford
these premiums. It could easily cause a real estate crash that
has nationwide effects. As you said, just like the financial
crisis of 2008 which had its roots and a sharp decrease in home
values.
Senator Whitehouse. And Mr. Arkush, just a last question.
If an industry is lying to the public about the dangers of the
product that it sells, is that established to be a legally
actionable situation? And is the Tobacco Lawsuit an example of
that?
Mr. Arkush. That's exactly right. There are, these are not
novel legal theories. In fact, they're some of the oldest in
our country. Some of them go way back, way before our country
in English common law. If you're responsible for harms, you pay
for them. If you can't commit fraud to consumers you can't
engage in a fraud racket. And a fraud racket is exactly what
big tobacco engaged in and was successfully sued by the U.S.
Department of Justice for.
Senator Whitehouse. Thank you very much. And State
Attorneys' General points out our State Attorney General----
Mr. Arkush. And State Attorneys' General. That's absolutely
right.
Chair Cruz. Thank you. Senator Durbin.
Senator Durbin. I'd like to followup a little bit on this
discussion about lawsuits because I think that's part of why
we're here today. It isn't just trying to identify the threat
as being Chinese conspiracies or whatever it happens to be but
it's also to slow down the pace of lawsuits being filed against
major elements of the American economy.
In this case, the fossil fuel industry. Sheldon Whitehouse,
my colleague, mentioned the tobacco issue. I know that one
little bit because in 1988 in the House of Representatives, I
successfully passed a bill to ban smoking on airplanes. Yes,
that's true. We used to smoke on airplanes in the smoking
section. How about that for a fantasy?
And the fact that we had the largest frequent fire club in
the world, in the House of Representatives led to many revolt.
We banned smoking on airplanes, but in order to finally get
real regulation on tobacco and smoking, we couldn't do it
through the House or the Senate. It had to be done in court.
And it was done when States came together, General Kobach,
States came together and said, ``We're going to all sue the
tobacco companies.''
It took years for them to do it but they did it
successfully. And what happened? Tobacco became less of a
scourge to public health in America. And the likelihood that
young people sit in this audience smoke has diminished
dramatically. Now we have new challenges, social media
platforms that are exploiting young people. We've had testimony
before, Judiciary Committee, and we're all members of it, of
people whose children some committed suicide. Others were
exploited terribly with sexual images on the screen.
And the industry is oblivious to this because they're
protected under law under Section 230 from liability for this
activity. If we can crack through with lawsuits on the social
media platforms, we can change things dramatically. In the last
week or two, you probably heard about the opioid settlement, $7
or $8 billion to be distributed, lawsuits. The point I'm making
to you is part of the agenda here is to somehow assign to
lawsuits some insidious or evil motive and why they're being
formed and filed.
And the fact is that they're doing what we expect them to
do. Speak up for the consumer, try to bring some justice to a
situation which otherwise doesn't have it. We know the fossil
fuel industry is polluting this planet that we live on
terribly. I can tell you this, a couple of successful lawsuits
and they'll think twice about it. It changes. We changed the
tobacco industry. Opioids changed. They can change.
But you go to the courtroom to make that to happen. I don't
think it's necessarily the Chinese motivating us. We're looking
for justice. And that's fundamental. It doesn't come from
China. It comes from the heart of America too. The last point I
would like to make to you is that we have an opportunity here
to do something now, to provide opportunities for diminishing
the pollution that we're living with.
Ignore it and it'll be too late. We've got to show some
leadership in this country. The bill pending before the U.S.
Congress on Reconciliation eliminates most of the incentive
programs for renewable fuels. And that to me is something we'll
pay a price for years to come. This is not a thoughtful thing.
This is inspired by a President who calls global warming a
hoax. I don't think it's a hoax. I think it's reality. And I
think we need to do more about it. I yield.
Chair Cruz. Thank you. Senator Blumenthal.
Senator Blumenthal. Thanks, Mr. Chairman. The Tobacco
Lawsuit was in fact brought by State attorneys' general and
just as a historical footnote, we went to the Department of
Justice and asked them to join us. They refused to do it. They
said it couldn't succeed. And they also said the tobacco
companies have never lost a lawsuit. They have never settled a
lawsuit and you'll lose. Well, as it turned out, eventually,
all the Attorneys' General of the United States of America,
including Kansas, joined our lawsuit after a while, after we
were successful because of the legal action based on the Unfair
Trade Practices Act of the State of Connecticut, the State of
Minnesota, the State of Massachusetts, the State of Florida.
The core States that brought that lawsuit relied on
deceptive and unfair practice allegations, saying that the
tobacco companies were lying when they said, ``Our product
doesn't cause cancer. It doesn't cause death. It doesn't cause
disease.'' It was a good old-fashioned garden-variety consumer
protection case. It also involved antitrust allegations in
Mississippi. It was an equity action.
It's more complicated than I am describing it right now but
your State of Kansas, I think it's probably still getting
money. Every year, every State in the country gets money to
combat tobacco because it relied on the good old fashioned
consumer protection statutes that say, ``When you make a
promise to consumers, it has to be truthful and accurate.''
And so, I assume that all of the witnesses here support
those kinds of consumer actions, correct? I'll begin with you,
Attorney General?
Mr. Kobach. Yes, I do. When it fits into the correct legal
box. So, for example, the tobacco lawsuits were brought under
the State Consumer Protection Acts that you mentioned and every
State has one. And they're based on the notion, which is very
clearly laid out that the manufacturer of a product
misrepresents the product to the consumer of the product and
the consumer purchases it and suffers some injury or harm.
And it's because of that deception. It's much harder to fit
climate change lawsuits into that box because there's no secret
about the fact that fossil fuels are used in internal
combustion engines and that those internal combustion engines
emit CO2.
Senator Blumenthal. Well, but the State of Connecticut is
suing Exxon Mobil right now under the Connecticut Unfair Trade
Practices Act, saying basically it's lying about its product
and the dangers and damages done by its product. You were suing
Pfizer, same kinds of allegations, correct?
Mr. Kobach. The similarity is----
Senator Blumenthal. But no one is accusing you of trying to
destroy the American drug industry.
Mr. Kobach. No, I don't think so. But I think they're not
the same. The same, they both try to use a consumer protection
box to put the case in. In the case of the Pfizer, they made
certain representations about their product and that turned out
to be contrary to the information they had and the individual
took it to direct harm to himself.
In the case of fossil fuels, you have a broad public debate
about the harms and how big they are, who's causing the harms.
You also have third parties because it's not just the oil
company.
Senator Blumenthal. But in the court, Connecticut has to
prove its allegation, the facts behind the allegation that in
fact the company is misrepresenting its product just as you
have to prove by the way, as you well know----
Mr. Kobach. Right. Absolutely. Yes.
Senator Blumenthal [continuing]. Your case has been
remanded to State court. So you'll have your day in court there
but no less than if you were in Federal court. You're going to
have to offer evidence that proves your allegation. Same is
true of Connecticut in suing Exxon Mobil. I don't see how, as a
lawyer you can say, ``Well, the claims under the statute are
wrongly bought just because it's a different industry.'' And
because there is a public debate because----
Mr. Kobach. I'm not saying you can't----
Senator Blumenthal [continuing]. Also, about the American
drug industry.
Mr. Kobach. I'm not saying the claims are wrongly brought.
I'm saying they have a much harder time proving the claims
because there's less deception, there's also third parties and
also the--it's not just the fossil fuel extraction company. You
have the factory that uses, burns the fuels. You have the
individuals themselves who drive to work in a car. Probably
most of us flew here from some point on a plane.
Senator Blumenthal. My time has expired but I could take
the words exactly that you just uttered and substitute tobacco
and they would be identical to what the tobacco industry was
saying about our lawsuit at the time. Thanks, Mr. Chairman.
Chair Cruz. Thank you. I would note that multiple Democrats
said the idea that communist China was funding this litigation
and assault in American energy was a ``Conspiracy theory.'' I
thank Mr. Walter for pointing out the basis of it are the IRS
filings from the China Energy Foundation. I have in front of me
just one of those filings, the form 990 from 2023 and I turned
to their disbursements.
And in 2023, they gave the University of California
Berkeley $150,000. They gave the Rocky Mountain Institute
$350,000. They gave the International Council on Clean
Transportation, which I don't know what that is, but it's on K
Street in Washington, $770,000. They gave Harvard University
$80,000. They gave the Institute for Transformative and
Development Policy in New York, $254,000.
They gave the University of California Los Angeles
$150,000. They gave the University of Maryland College Park
$250,000 and they gave the Natural Resources Defense Council
$200,000. This is just 1 year. You can pull their 990 for every
year but I ask unanimous consent that this be admitted into the
record without objection.
[The information appears as a submission for the record.]
Senator Whitehouse. Without objection? I think it is
important to clarify at the end of the day which one of those
groups are actual litigants. You said litigants and whether the
money goes to the litigation as opposed to the activities that
those groups have legitimately in China trying to knock down
Chinese emissions. It is Republicans who are fond of saying,
``We might as well throw our hands up in the air about climate
stuff because the Chinese are doing so much polluting.''
So, I think it is good that, let's say NRDC is on the
ground in China fighting Chinese pollution in China. If that is
what they're doing. It is a very different thing than having a
Chinese conspiracy that funds a litigating group here in the
United States in U.S. litigation. So that's a perfectly
legitimate exhibit to enter into evidence. I have no objection
to it but it doesn't prove your point yet.
Chair Cruz. So, I guess you and I disagree in that. I don't
think it's good that these left wing activist groups that are
litigating and trying to destroy jobs in this country and
destroy American energy are being funded by the Chinese
communist and the Chinese communist interest are directly
antithetical to the interest of the American people. I'm going
to ask a couple of more questions and I'll get--I'm sorry. Mr.
Welch came back. Senator Welch, I didn't see you come back in.
Senator Welch. Thank you. So, Mr. Walter, I favor the
provisions of the IRA that are being repealed. You're aware of
what's going on there, right?
Mr. Walter. To some degree.
Senator Welch. All right. I mean, if all the people you've
mentioned, all of the folks who you indicted for kind of using
Ted Cruz's language, left wing radical ideas, how do you
distinguish between a person whose motivation is to be left-
wing Chinese sympathizer and people who just disagree with the
fossil fuel industry, that climate change in fact is real and
we have to do something about it? Can you explain to me?
Mr. Walter. Well at the beginning of my oral testimony
there, I made the distinction between whatever the intentions
of various folks may be. They're objectively assisting China in
its desire to compete with United States.
Senator Welch. Like the Hewlett Foundation?
Mr. Walter. Yes.
Senator Walter. Seriously? Walter Hewlett, his foundation
you think is in bed with the Communist Party?
Mr. Walter. Well, that's not what I said, is it? I said
that objectively they're aiding the Chinese communists but I
did not say that they themselves were communists.
Senator Welch. Right. But what you're doing is denying them
the ability to make their own judgment about what's good public
policy for the benefit of this country by saying that they're--
and this really is how I hear it. Dupes of the Communist Party
because what they're doing aligns you say with the communist?
Mr. Walter. Well, they give a good deal of money for
instance to the Energy Foundation China, that the Chairman has
been discussing, which is run by a former Chinese communist
official.
Senator Welch. So, if by virtue--does China have any
environmental problems?
Mr. Walter. It has grave environmental problems, yes.
Senator Welch. So, if there are some Chinese that want to
deal with their environmental problems and we agree that there
are environmental problems. And we also know that climate
change can't be solved by one country and other countries start
to do something about it, is that a problem for you?
Mr. Walter. Well, I have to say that I'm skeptical that
former Chinese communist officials are interested in doing
anything that would harm their country.
Senator Welch. Who are some of the other names? I don't
know if your statement here that you said are in effect,
``Dupes,'' if I can translate what you're saying of the
Communist Party because their climate agenda you say is being
funded by them?
Mr. Walter. I didn't talk about it being funded by them.
And what I did--what I did explain for--I mean, there are very
simple things. Massive U.S. Government subsidies for products
that use Chinese technology obviously is enhancing the Chinese
economy.
Senator Welch. Has the U.S. Government through its tax code
ever provided any incentives in tax preferences for the fossil
fuel industry?
Mr. Walter. Yes. A great deal.
Senator Welch. And you don't have a problem with that?
Mr. Walter. Well, I'm not an economist qualified to talk
about the relative value of the subsidies but I don't think
that it's remotely deniable that we currently subsidize all
sorts of green technology in which China is leading and
therefore helping the Chinese.
Senator Welch. So, the fact that we Senator Durbin here has
solar panels, does that make him a communist sympathizer?
Mr. Walter. No, I don't think so. Any more than my driving
to this hearing today makes me a mass murderer or an accessory
to mass murder.
Senator Welch. You know, this is the issue I have. We've
got a planet that's melting. All right? That's my view. The oil
industry doesn't agree with that. They think everything's fine.
And we went from a policy where it was all of the above to
essentially a policy that everything below is where we're going
to get our energy.
And what I'm seeing in the arguments that you were making
is you're trying to demean and disparage and discredit
arguments by people who believe that we need a radically
different policy. It does allow for the development of clean
energy to reduce carbon emissions. That's what I'm hearing.
And then one of the tools is to vilify folks who have that
point of view that they are dupes of the Communist Party that's
trying to take us down. Thank you, Mr. Chairman. I yield back.
Chair Cruz. Thank you. And I would note one of the reasons
why the left and the Chinese Communist resort to litigation is
because their ideas are incredibly unpopular when the American
people vote on them. So for example, in the U.S. Senate, every
Senate Democrat voted in favor of the California Waiver that
would effectively ban the internal combustion engine in 18
States across the country.
Every Senate Democrat voted in favor of it. But you know
what? The citizens aren't voting in favor of it. They're not
campaigning. We don't see our Democrat colleagues saying,
``We're going to ban the internal combustion engine.'' Even in
bright blue States, even in Vermont and Rhode Island, the
voters are not saying, ``Take away the car out of my
driveway.''
And yet, Democrat office holders are trying to use
government power to fight the Democrat wishes of their
electorate. General Kobach, let's talk about the courts. The
Climate Judiciary Project backed by the Environmental Law
Institute, Energy Foundation and private donors connected to
plaintiff's law firms has trained over 2000 judges, many in key
jurisdictions where these climate cases are pending.
Is it appropriate for sitting judges to receive climate
science, ``Education'' from advocacy groups like the
Environmental Law Institute, groups that are directly tied to
the plaintiffs in active litigation?
Mr. Kobach. No. Mr. Chairman, I do not believe it is any
more than it would be appropriate for a group of justices to go
on an extensive training conference and be trained in how to
dispute or defend the fossil fuel industry. When you have a
group of litigants in a pitch legal battle in approximately
three--well, more than three dozen cases, if we're talking
about more than just the ones brought by cities and counties.
The judges are there to be neutral.
And the worst thing I fear going into any case on any issue
is if I know that the judge has already dug in based on prior
things the judge has done or said against me. So I don't think
it's appropriate for litigants to be training the judges in
essentially what their experts are going to say in the trial.
Mr. Arkush. Mr. Chairman, may I respond to this as well?
Because----
Chair Cruz. No. Because we've got limited time. If someone
else wants to get into it. General Kobach, isn't it true that--
actually, go ahead, Mr. Arkush.
Mr. Arkush. I just wanted to say that what Mr. Kobach is
saying he opposes is exactly what's happening from the defense
side as well. The Environmental Institute has multiple oil
companies on its board, executives of oil companies, BP and
Shell and it has Counsel representing them in court in
important leadership positions.
Chair Cruz. So, we may be breaking news here or are you on
behalf of Public Citizen calling for The Environmental Law
Institute to stop training judges and indoctrinating judges?
Mr. Arkush. What I'm saying is it doesn't make any sense to
say that they're indoctrinating judges as some sort of leftist
plot against the oil companies----
Chair Cruz. Let's be clear. I'm calling for them to stop
training judges because I think they are indoctrinating them.
It's interesting you said that but you weren't willing to go to
the natural next step of therefore it should stop. General----
Mr. Arkush. I don't know much about it but I do know that
BP and Shell are on the board.
Chair Cruz. Mr. Arkush, if you believed what you were
saying, you would be willing to call for it to stop. You're not
and that suggests you know damn well what it is. They're
training the judges, and it's indoctrination, and you don't
want it to stop because you want the judges to be biased and
rule in favor of these crackpot theories. General Kobach, isn't
it true----
Mr. Arkush. I disagree that Shell and BP are on the board
of an organization that's indoctrinated and that is against
them.
Chair Cruz. Mr. Arkush, your time is done.
Mr. Arkush. Thank you.
Chair Cruz. Isn't it true that these programs often hosted
in conjunction with the Federal Judicial Center or the National
Judicial College can obscure ethics disclosure requirements
because they fall under judicial exemption categories?
Mr. Kobach. Yes, Chairman, you're correct. There are
definite ethical problems. And in addition to any the
overarching sort of Federal model of ethics, you also have
additional State ethical rules that may be violated as well.
But at the end of the day, it's judicial neutrality that is the
biggest ethical constraint on our entire Article III Courts and
State Courts. And that is the biggest problem I see going into
any case.
Chair Cruz. It's also been reported that the Chief Justice
of the Hawaii Supreme Court participated in these sessions at
the same time that his court was reviewing one of these climate
lawsuits. So active litigation and yet happily being
indoctrinated by interested parties in an ex parte setting
where the opposing Counsel had no opportunity to refute the
indoctrination.
Mr. Walter, the Climate Judiciary Project tells judges that
climate lawsuits are a, ``Unique opportunity for
accountability.'' Would you call that education or would you
call that political indoctrination disguised as training?
Mr. Walter. Accountability is the standard term used by
political activists to try to say, ``We want to hurt those
folks that we're opposed to.''
Chair Cruz. Do you believe Congress should investigate
whether these trainings are undermining the impartiality of the
judiciary?
Mr. Walter. Absolutely, Senator.
Chair Cruz. Thank you. Senator Whitehouse.
Senator Whitehouse. Well, the funny thing about this
conversation is that time did not begin yesterday. And for
years, public advocates have been objecting to fossil fuel
funded special trips, trainings, exotic locales behind closed
doors, indoctrination sessions of judges for like 20 years now.
This is a recurring phenomenon and now we're hearing
outrage about that same phenomenon when it's not all fossil
fuel funded, when it's a group that has fossil fuel executives
and attorneys on its board. But somehow this is the big
outrage. So yes, I don't think judges should be being
indoctrinated behind closed doors by special interests. And
I've been saying that for years.
But the experience of this is that the fossil fuel industry
has been at it like hammer and tongs for decades. And now to
suggest that a group that has fossil fuel folks on its board
is, I mean, this is an epic effort in projection and false
equivalency. And Mr. Arkush you wanted to say something a
little further--one other thing. The people in America don't
want to see a climate solution as a proposition is simply not
true. We have done polling that I have pretty good confidence
in that says penalties on polluting imports, like imports from
China that are built with coal powered power electricity and
have huge carbon footprints, putting a penalty on that higher
footprint.
Because they're not meeting our standards. Twelve percent
opposed, 74 percent support putting pollution limits on big
corporations. You can pollute this much and then no more.
Twelve percent oppose, 72 percent support putting a fee on big
polluters to fix that economic problem that I described. That
polluting for free violates the fundamental law of market
economics. That the harms of your product should be baked into
its cost.
That fee, 10 percent of Americans opposed, 74 percent
support. The problem with this issue isn't public support. The
problem with this issue is fossil fuel influence in this
building. And I contend that that is what today is all about.
And I'll just leave it at that.
Chair Cruz. Thank you, Senator Whitehouse. One final bit of
questioning for you, Mr. Arkush. Define for this Committee what
homicide means?
Mr. Arkush. Sure. So, homicide is a legal term that refers
to--it's essentially a blanket term for any form of unlawful
killing. And an unlawful killing is causing death with a
culpable mental state, causing a death means substantially
contributing to it or accelerating it. And a culpable mental
state could be negligence knowledge, recklessness.
Chair Cruz. So, you wrote an article in 2023 entitled,
``Climate Homicide prosecuting Big Oil for Climate deaths.'' In
that article, you argue that oil and gas executives could be
prosecuted not just sued but criminally prosecuted for
homicide, for murder based on climate change. Is that right?
Mr. Arkush. That's right. I mean, I would be careful with
the wording because murder again is a technical term and
definitely, we're not arguing that they could be prosecuted for
first degree murder. That's killing with intent.
Chair Cruz. But you want to put them in prison for
homicide, lock them up, treat them as criminals, put them in,
murderers get put, people who commit homicide get put in jails
with violent criminals. And your position is this is a
reasonable and rational thing that we should put the people
leading the energy companies in America producing 8.5 million
jobs, we should arrest them and throw them in jail. Is that
correct?
Mr. Arkush. It could be the case that some executives
should be prosecuted in that way, of course, if you can't put a
corporation in jail. So, there are other remedies in that
situation.
Chair Cruz. But you can put human beings in jail and
presumably you put the corporate officers in jail.
Mr. Arkush. Yes, you can.
Chairman Cruiz. You'd prosecute them for murder. So don't
let there be any ambiguity. And by the way, Senator Whitehouse
was really eager to make clear that you're the minority
witness, you're the witness he wanted, he was eager to
introduce you. I'm going to go on the record and say that is a
moonbeam wacky theory that you want to prosecute people
creating jobs and producing energy for murder. Let me ask you,
Mr. Arkush, how did you get to the capital today?
Mr. Arkush. So, here's what I want to tell you----
Chair Cruz. How did you get to the capital today?
Mr. Arkush. I took an Uber.
Chair Cruz. You took an Uber?
Mr. Arkush. Yes.
Chair Cruz. Now was that in an automobile?
Mr. Arkush. Yes.
Chair Cruz. Did that automobile have gasoline in it?
Mr. Arkush. Yes. This is very, very cute. I see where this
is going.
Chair Cruz. So, I'm glad you think it's cute. Under your
theory, you admitted you admitted carbon emissions----
Mr. Arkush. Yes.
Chair Cruz [continuing]. Should you be arrested in this
room right now and prosecuted for murder?
Mr. Arkush. No.
Chair Cruz. Why?
Mr. Arkush. That's not what the law holds. So, there is a--
--
Chair Cruz. So well, tell me why because you're willing to
say the guy who sold you the gasoline should be prosecuted for
murder. You are the one that benefited from it. Couldn't you
have ridden a bicycle or maybe like some fairy dust to get
here?
Mr. Arkush. The guy who sold the gas and 50 years ago knew
that it was going to cause globally catastrophic damage that
would cause problems for humanity so that--hold on.
Chair Cruz. But you have exquisite knowledge of this. You
are saying you are an expert. So on mens rea----
Mr. Arkush. I'm not done.
Chair Cruz [continuing]. You have a level of culpability
because you claim that the act of getting in that car was
violence. It was murder, that you should be locked up. Why do
you get to violate these principles in a way that you just want
to lock up the person who sold you the gas but not the
beneficiary of it?
Mr. Arkush. That's your claim, not mine. Because to be
liable, there are a bunch of reasons but one of them is you
have to substantially contribute to the harm to the death. And
I am not----
Chair Cruz. How many car rides is substantially? Is it 1,
is it 2, is it 10? How many?
Mr. Arkush. I am not--a single individual couldn't possibly
contribute enough. The point is----
Chair Cruz. Well, what about if say you're a Democrat
politician who present but--what about if you're a Democrat
politician----
Mr. Arkush. Do you want me to answer this?
Chair Cruz. What about if you're a Democrat politician who
flies private jet?
Senator Whitehouse. It would be helpful if you're asking
the questions. Doesn't he get to answer?
Chair Cruz. He gets to answer them in my time. Just like he
gets to answer them in your time when you are asking them.
Mr. Arkush. It seems like I don't.
Chair Cruz. So, what about democrat politicians who fly
private planes all the time? People like John Kerry who say,
``For someone like me, a private jet is the only reasonable way
to travel.'' John Kerry has the climate footprint of a small
town in Tennessee. Would you prosecute John Kerry for murder?
Mr. Arkush. So, depending on how you calculate it, U.S.
fossil fuel company or the oil majors, private oil majors are
responsible for around----
Chair Cruz. So, my question was----
Mr. Arkush [continuing]. Half of global emission.
Chair Cruz. My question was, would you prosecute John Kerry
for murder?
Mr. Arkush. Obviously not. No.
Chair Cruz. Okay. So, Democrat politicians are exempted?
Mr. Arkush. There is no individual who is----
Chair Cruz. Democrat activists are exempted?
Mr. Arkush. I'm not going after people for carbon
footprints. The whole thing is actually----
Chair Cruz. Well, why not though? Under your principle,
carbon is killing us. You claim it is homicide. By the way,
this is a whack job theory, you teach in law school. If one of
your law students wrote this on an exam, any law professor--
General Kobach, you were a law professor for years. If I wrote
it's homicide, lock them up. What grade would you give me and
why?
Mr. Kobach. Yes. It wouldn't be a good one. Part of the
problem here is the same problem that the Baltimore judge in
rejecting all of the eight claims brought by the city of
Baltimore pointed out with regard to public nuisance theory.
And that is, it's not just the company that took the oil out of
the ground. The individual consumer made a choice to use it as
well.
She dismissed all their claims, rejected their attempt to
stretch public nuisance doctrine to cover ``The results of
fossil fuel usage and gas emissions by third parties located
all over the world.'' You can't put the blame either in a
homicide case or in a public nuisance case just on the company
that extracted the oil from the ground because everybody's
using it and we're all involved in it.
And that's why it doesn't fit homicide easily and it
doesn't fit public nuisance easily either.
Mr. Arkush. With all due respect. I don't think that Mr.
Kobach is familiar with the relevant law in this case. A
defendant in a homicide case can't defend by saying somebody
used my products exactly as I intended them to while I was
lying to them about it----
Chair Cruz. So, you're saying we should prosecute you for
murder?
Mr. Arkush. No.
Chair Cruz. Because you drove an automobile here?
Mr. Arkush. No. I'm saying----
Chair Cruz. Well, you said you couldn't use a defense, the
fact that someone else does it----
Mr. Arkush. I'm saying the----
Chair Cruz. You contributed, you're a murderer--under your
wacky theory, you're a murderer too.
Mr. Arkush. I'm not sure I should be trying to speak. Can I
finish a sentence?
Chair Cruz. For once we agree. Senator Whitehouse.
Senator Whitehouse. Will you allow the witness to answer
without interruption during my time?
Chair Cruz. It's your time. You're welcome to----
Senator Whitehouse. You just interrupted him during my
time----
Chair Cruz. You're welcome to sing. Now, he was actually--
it was the end of my time. You're welcome to sing or you
conduct poetry, an ambic pentamete. You can blow a kazoo, you
can do whatever you wish.
Senator Whitehouse. Go ahead and answer the question that
you were prevented from answering.
Mr. Arkush. Yes, I'm a little lost now as to where we were.
But my point was that a fossil fuel producer in a criminal
trial would not be able to say--I mean, there, there's legal
doctrine on this, right? You can say there's an intervening
third party, intervening circumstances that disrupt the chain
of causation. You cannot say that when the third party, their
actions were completely foreseeable.
Like for example, a consumer using your product exactly as
you intended, you also can't use it when you defrauded them
into using your product exactly as you intended. So, with all
due respect, the Baltimore company is wrong.
Senator Whitehouse. That is the company can't use that
defense?
Mr. Arkush. Sorry?
Senator Whitehouse. The company can't use that defense when
it is on the delivery end of the fraud?
Mr. Arkush. It's meritless in a criminal context anyway.
Senator Whitehouse. Yes. And the tobacco case focused on
key organizations, not everybody who smoked and gave secondhand
smoke, lawyers know how to sort through this stuff. And I think
that we really do have to take the harm that is being caused by
these companies and protected behind the $700 billion a year
annual subsidy that Congress showers them with every year.
And that motivates them to be so influential and so
intrusive into Congress. So involved in elections, spending so
many millions of dollars in dark money and in direct money. And
in the meantime, just to use the very simplest example of the
articles I put into the record, here comes an insurance crisis
that's already fully engaged in Florida, that is hitting
southern Mississippi, southern Louisiana, southern Texas.
It's hitting all the coastal States as predicted by the
chief economist of Freddie Mac. Not a green group, not a
Chinese communist group, as predicted by that chief economist,
as predicted by the chairman of the Federal Reserve, far from
green, as predicted by the CEO of American AON, as predicted by
the board of Allianz, the biggest insurance company on the
planet.
You can make as much fun as you like of an article that Mr.
Arkush wrote but that doesn't take away from the fundamental
fact that the earth's natural systems are being badly degraded
by fossil fuel and that the fossil fuel industry knew that this
would happen. And that for years knowing that it would happen,
they lied about it. They set up whole organizations to lie
about it even more.
They fund an entire armada of front groups whose job is to
lie about it. And I do believe that it's proper to hold a
corporation accountable for that kind of misconduct. Mr.
Arkush.
Mr. Arkush. There are two things I'd like to say. One, it
does seem like we can all agree on one thing, which is that
group spending money to influence other people's behavior can
be problematic. And sometimes people don't do things for the
right reasons. They do things because they're getting paid,
right? And there is almost nobody in the world with more
resources than the fossil fuel industry to be paying people to
do their bidding.
And I think just as important to note that as Senator
Whitehouse noted one of them alone, ExxonMobil last year,
almost a billion dollars in profits a day, every day. That's
more than twice the amount that was on that chart that you held
up Mr. Chairman for all the environmental groups. So right.
ExxonMobil, twice that amount every single day. That's just
one of the oil companies I'm very concerned about spending
money on political influence. And it's a lot more on that side.
Second, I just want to say my understanding of this theory
about China is that--and tell me if I'm wrong. Is that China is
ahead of the U.S. right now and in manufacturing, some aspects
of renewable energy, right?
Solar panels, batteries. Ahead on critical minerals, right?
And I guess the theory is, I guess therefore they want to
stifle our fossil fuels so that we're dependent on them for
their renewable energy. I don't know why they'd want to stifle
fossil fuels when China is like a huge buyer of U.S. oil and
gas. Some of it they burn, some of it they flip. They flip a
lot of the oil and gas at a profit. If we are losing a
competition with China on the technologies of tomorrow, we
should be investing in those technologies and funding them,
right?
Imagine in the late 50's and early 60's when we were
worried we were losing the space race with the Soviet Union.
Imagine if instead of saying in 1962, Kennedy saying, ``We're
going to go to the moon by the end of this decade,'' he said,
``Do you know what? We're going to defund all of aeronautics
and stay on the ground.'' Is that the way to make America
strong and great? I don't think so.
And I wish that you would all join the people who are
trying to make America strong and great today and tomorrow by
funding the industries and the energy sources of tomorrow that
are cleaner, safer, and cheaper like renewables.
Chair Cruz. Thank you to each of the witnesses. A final
question, Mr. Walter. You're an expert on special interests,
when it comes to dark money, political funding. Where is more
of it found on the left or on the right? What are the biggest
funders?
Mr. Walter. It's considerably more on the left depending on
how you want to define dark money. Oddly enough, people who use
the term a lot tend not to define it with any legal precision.
But there is the largest of any such entity left or right
again, is the vast multi-billion-dollar network run by Arabella
advisors with hundreds of millions of dollars from the foreign
billionaire Mr. Wyss.
Chair Cruz. And oddly enough, my Democrat colleagues never
seem concerned by that massive money on the left, which is
considerably larger than the money that is supporting
Republicans.
Senator Whitehouse. Again, since you're speaking about me,
that's also not true. I am the actual lead sponsor of an Act
that would end dark money and it wouldn't end it just on your
side. It would end it for everyone. Everyone would know who is
funding people's campaigns. And every Democrat votes for that
bill to get rid of dark money. And every Republican votes
against that bill to protect dark money, largely because the
fossil fuel industry's dark money is the lifeblood of the
Republican political operation and you don't want to see that
exposed.
Chair Cruz. So that happens to be factually false. But I'll
point out, every year I've been in the Senate, I've introduced
legislation called the Super PAC Elimination Act that does two
very simple things.
One, it allows unlimited individual contributions directly
to Federal campaigns, as is the case in State law and many
States, including my home State of Texas. And two, it requires
immediate 24-hour disclosure of any contributions. As a
practical matter, Super PACs would go away. And every time
we've tried to vote on that, the Democrats uniformly oppose it.
I want to thank each of the witnesses for being here. This
concludes our hearing. Written questions can be submitted for
the record until Wednesday, July 2 at 5 p.m. and I will ask the
witnesses to answer and return the questions to the Committee
by July 16 at 5 p.m. This hearing is adjourned.
[Whereupon, at 4:17 p.m., the hearing was adjourned.]
[Additional material submitted for the record follows.]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
A P P E N D I X
The following submissions are available at:
https://www.govinfo.gov/content/pkg/CHRG-119shrg61887/pdf/CHRG-
119shrg
61887-add1.pdf
Submitted by Chair Cruz:
Ferate, Anthony J., letter....................................... 2
Convert Chinese Communist Lawfare, posters....................... 10
IRS, statement................................................... 14
Submitted by Ranking Member Whitehouse:
How much is your Texas home worth, Houston Chronicle............. 52
Inside the costly new reality of insuring a home in Texas,
Houston Chronicle............................................. 63
See where extreme weather is pushing up home insurance costs in
Texas, Houston Chronicle...................................... 85
Texas has a home insurance crisis, Houston Chronicle............. 95
[all]