WV Rivers Coalition Faces State Subpoena Over Climate Claims

West Virginia Rivers, an environmental organization based in Charleston, must respond to a state subpoena by November 2. The request, issued in September by Attorney General J.B. McCuskey's office, demands ten years of documents related to the group's climate advocacy, internal deliberations, fundraising, and partnerships.

The legal dispute centers on whether the organization's public statements constitute a consumer protection violation. McCuskey's office argues that the group promoted outdated climate change theory in a way that harmed the state's fossil fuel economy. The Attorney General invoked the West Virginia Consumer Credit and Protection Act, a law the office describes as one of the broadest in the nation for safeguarding the marketplace.

The investigation specifically targets the group's use of a global warming scenario known as RCP8.5. This model, or Representative Concentration Pathway 8.5, projected an aggressive rise in global temperatures by the end of the 21st century. The scenario relied on an eight-fold increase in coal use and slow development of clean energy technologies. Although the model was retired in April by the Scenario Model Intercomparison Project, it was frequently labeled a "business-as-usual" trajectory.

The Attorney General's filing states that West Virginia Rivers published a "Citizen's Guide to Climate Change" containing warnings about heavy precipitation in the state. Those warnings were drawn directly from RCP8.5 projections. The office notes that the group endorsed comments submitted to FEMA in July 2023 that described RCP8.5 as the most likely path for the future. This endorsement occurred three years after the model's implausibility had become widely known.

West Virginia Rivers filed a federal lawsuit in response to the subpoena. The group requested a temporary restraining order, arguing that the investigation is a retaliatory effort to suppress protected speech. The lawsuit was assigned to U.S. District Judge Joseph Goodwin, who ordered the Attorney General's office to file a response by 3 p.m. on Monday.

In that filing, lawyers for the Attorney General stated that the office has probable cause to believe a violation occurred. They argued that the production of energy, including coal mining and natural gas extraction, is a critical part of West Virginia's economy and affects the affordability of daily life for residents. The office contends that the group's reliance on RCP8.5, even after it was discredited, provides the basis for the investigation.

"The potential violations under investigation here involve a narrow category of deceptive statements that rely on a model, assumption, or projection system that objectively overstates the potential harm of fossil fuels," the filing read. Lawyers added that while these examples might not individually violate the act, they establish the honest belief necessary to justify the subpoenas.

The hearing on the matter is scheduled for 1 p.m. on Thursday. The Attorney General's team maintains that the First Amendment protects the group's right to advocate for less fossil fuel use, but it does not permit them to knowingly mislead consumers about commercial matters.

Americans for Prosperity-West Virginia, a free markets organization, publicly supported the right of groups like West Virginia Rivers to engage in free speech. Jason Huffman, the state director, posted that while his group disagrees with the environmental rhetoric, the government should not use state-led investigations to tip the scale in policy fights.

"The freedom of speech and of peaceful assembly are sacrosanct," Huffman wrote. "And actions by government that, however well-meaning, chill free speech are antithetical to those unalienable rights. The principled approach to pushing back against speech with which we disagree is more speech, not less."