Acting like a wounded and cornered beast, ExxonMobil has launched what appears to be a blatantly retaliatory and frivolous lawsuit against Massachusetts Attorney General Maura Healey.
Beneath a very thin veil, this legal maneuver by Exxon is seemingly an effort to intimidate any and all who seek to hold the oil giant accountable for its multi-million dollar campaign to attack climate science and sow doubt through decades of deception.
Just to remind everyone – 17 Attorneys General are investigating what Exxon knew about climate science and when, as well as what the company has done to potentially mislead policymakers and the public in order to delay action to address climate change.
Exxon has claimed that there has always been uncertainty within the company about the role of fossil fuels in causing climate change.
Yet, as InsideClimate News and the LA Times and Columbia School of Journalism and the Center for International Environmental Law and other investigations have pointed out, Exxon and others in the oil industry had advanced knowledge of the link between fossil fuel combustion and global warming decades ago.
And DeSmog uncovered an Exxon document that unequivocally stated the company’s knowledge in the late 1970s. Read DeSmog's investigation: “There is no doubt”: Exxon Knew CO2 Pollution Was A Global Threat By Late 1970s
Here is the key document we uncovered, a 1980 report, “Review of Environmental Protection Activities for 1978-1979,” produced by Imperial Oil, Exxon’s Canadian subsidiary.
“There is no doubt.” Yet the company went on to peddle doubt and denial both directly, and through pumping at least $30 million of funding distributed to dozens of think tanks and front groups that have cast doubt on or outright denied climate science.
FROM THE DESMOG RESEARCH DATABASE: ExxonMobil's Funding of Climate Science Denial
So now Exxon is suing Massachusetts AG Healey in an effort to block her subpoena that would compel Exxon to hand over 40 years of internal communications with many of those Exxon-funded front groups.
Hmmm… if the company is so proud of its climate science legacy, then what do they have to hide?
Exxon filed the lawsuit in a notoriously industry-friendly jurisdiction in Fort Worth, Texas, where the company also brought a similar suit against Virgin Islands Attorney General Claude Walker for the same reasons.
In its 33-page filing against Massachusetts AG Healey, Exxon lays out what it sees as the “facts” about the efforts of Attorneys General to prudently investigate the company’s historical relationship with climate science.
The first of the “Facts” that ExxonMobil lays out in making its case is that 20 Attorneys General, led by New York AG Eric Schneiderman, held a press conference in New York City dubbed “AGs United for Clean Power.”
The horrors! Yes, this is in fact… a fact. Twenty courageous AGs bravely stepped in front of cameras and microphones — a press conference! — to rail against Washington gridlock on climate policy and announce their leadership efforts to find ways to hold the oil industry accountable for its insidious work to block climate policy action at the federal and state levels over the past several decades.
So Exxon’s first “fact” oddly confirms the legitimate and ordinary efforts of state AGs to work together to get things done in the absence of Washington leadership. In short, to identify and hold accountable those who have encouraged doubt and distraction in order to delay action on the most pressing issue of our time.
Over the ensuing five pages of its Complaint for Declaratory and Injunctive Relief, Exxon proceeds to list 34 more “facts” that rehash the details of the March 29, 2016 press conference. Seriously, five pages of quotes and ‘facts’ pulled from a very public, YouTubed press conference… imagine the hourly rate these Exxon attorneys earned for transcribing cherry-picked quotes?
So let’s sum this up – here we have a frivolous SLAPP-like lawsuit filed by a massive multinational oil company in an industry-friendly Texas jurisdiction seeking the court’s heavy-handed smackdown of a totally reasonable investigation (known in legal parlance as a Civil Investigative Demand or CID) launched by the attorneys general of 17 states.
And Exxon is seeking the court’s protection because…
- AGs held a press conference and launched formal investigations into potential fraud.
- AGs consulted scholars of climate denial at nonprofit groups, and law firms with expertise in fraud cases, in order to prepare to launch their investigations.
Like AGs tend to do…on the daily… in their service to represent the public’s interest.
That’s it. Oh, and Exxon thinks this legitimate investigatory process to assess potential fraud against the American people somehow interferes with the company’s constitutional rights.
Except fraud isn’t protected under the First Amendment, as AG Healey’s office confirmed to EcoWatch today:
“The First Amendment does not protect false and misleading statements in the marketplace,” Healey’s communications director Cyndi Roy Gonzalez said in a statement provided to EcoWatch.
[Elliot Negin from UCS has previously expanded on the reasons why Exxon is off the mark with its First Amendment defense in this EcoWatch piece.]
EcoWatch also got a response to the lawsuit against Healey from Matt Mittenthal, a spokesman for New York AG Eric Schneiderman:
“It is deeply troubling that Exxon has taken the extraordinary step of refusing to comply with a lawful subpoena sent in the course of a serious fraud investigation. The law is clear: The First Amendment does not give any corporation the right to commit fraud.”
Exxon is seemingly crying wolf — and bullying its critics — instead of facing the music for its admittedly “anti-social” pollution and its anti-science PR and lobbying campaigns.
Since when is it a crime for Attorneys General to hold press conferences together, or talk to experts on any particular issue in the course of their work to protect the public interest? (Hint: Since never.)
But here we go. Here is Exxon’s bullying allegation of harm to its ‘free speech’ rights as a non-human corporate being:
“…Attorney General Healey has deprived and will continue to deprive ExxonMobil of its rights under the United States Constitution, the Texas Constitution, and the common law. ExxonMobil therefore seeks a declaration that the CID violates ExxonMobil’s rights under Article One of the United States Constitution; the First, Fourth, and Fourteenth Amendments to the United States Constitution; Sections Eight, Nine, and Nineteen of Article One of the Texas Constitution; and constitutes an abuse of process under the common law. ExxonMobil also seeks an injunction barring enforcement of the CID. Absent an injunction, ExxonMobil will suffer imminent and irreparable harm for which there is no adequate remedy at law.”
Here’s the real reason Exxon filed this complaint.
The company knows that responding to these frivolous charges will not only be time consuming for the Attorney General’s office in Massachusetts, but it also could have a chilling effect on any other states that want to probe Exxon’s decades of deception on climate science to determine if those efforts were potentially fraudulent.
Bravo to the state Attorneys General who are bravely pursuing accountability for Exxon’s denial and deception. And shame on Exxon for playing the role of playground bully by filing these frivolous lawsuits.
UPDATES AND REACTIONS TO THE EXXON LAWSUIT AGAINST MASSACHUSETTS
May Boeve, Executive Director, 350.org
“Despite 2016 already being the hottest year in history, and with more record-smashing heat to come, it’s clear that Exxon will never turn from its destructive deception on climate change. Whether it's trying to block Attorney General Healey's investigation in Massachusetts or orchestrating coordinated attacks from Republican attorneys general across the country, it's clear that Exxon's only interest is in maintaining the status quo of its business model – planet and people be damned.
“This isn't surprising, given that after their own scientists discovered climate change decades ago, Exxon has since consistently been the most significant blocker of climate action at every level. But it isn't acceptable – and it's time for all of us to step up and demand true accountability for one of the worst cases of corporate fraud in history.”
Carroll Muffett, President of the Center for International Environmental Law
I share AG Strange’s deep concern that the actions of a handful of radical Attorneys General threaten to undermine the public’s trust in law enforcement; but our agreement ends there. That trust is undermined by State Attorneys General unwilling or unable to recognize potentially massive fraud in the face of mounting evidence. It is undermined by chief law enforcement officers who deny the reality of climate change.
It is undermined when officials vested with protecting the public interest choose instead to protect private profit. These investigations are not about public policy, they are about fraud. And if AG Strange is seeking a precedent for investigations targeting a “particular type of market participant” and “implicating an ongoing public policy debate”: see Tobacco.
Ken Kimmell, President, Union of Concerned Scientists
“No company has a First Amendment right to knowingly provide misinformation about the harm associated with its product. As recently as last month, CEO Rex Tillerson misleadingly spoke about uncertainties in climate science, while ExxonMobil continues to fund industry front groups that also sow doubt about the climate risks of burning oil, coal and gas. There is more than sufficient evidence to warrant the investigation by Attorney General Healey into whether state laws have been violated, and ExxonMobil’s preemptive strike to shut down the investigation before it is completed should not be countenanced.” [Read UCS's full statement here]