Exxon’s First Amendment Claims in Climate Fraud Case Draw Judge’s Skepticism

Eric Schneiderman

By Karen Savage. Crossposted from Climate Liability News.

Exxon’s quest to convince a federal judge that two state attorneys general are stifling their right to free speech is proving to be no easy task.

In a hearing Thursday in New York, U.S. District Court Judge Valerie Caproni said the oil giant’s rationale involved “wild leaps of logic” in claiming New York Attorney General Eric Schneiderman and Massachusetts Attorney General Maura Healey are infringing on the company’s First Amendment rights by pursuing climate fraud investigations.

The exchange took place during a nearly two-hour hearing on a motion filed by the attorneys general seeking to dismiss the case, which was first filed by Exxon in the U.S. District Court for the Northern District of Texas in June 2016, but has since been transferred to New York.

The suit alleges that investigations by Healey and Schneiderman into possible climate change-related deception are an abuse of their political positions and are in violation of the oil giant’s First, Fourth and Fourteenth amendment rights.

Thursday’s hearing focused on abstention doctrine, in which a court can refuse to hear a case that parallels a case in another court — in this instance, whether the New York case was duplicating a similar case filed by Exxon in Massachusetts and whether it could result in conflicting rulings.

Exxon filed a separate case against Healy in Massachusetts in 2016, alleging that her investigation is politically motivated and violates its First Amendment rights.

In January, Massachusetts Superior Court Judge Heidi E. Brieger ruled in favor of Healey, rejecting Exxon’s allegation that Healey’s request was overbroad, arbitrary and burdensome. Brieger pointed out that “zealously” pursuing defendants does not make Healey’s actions improper.

Exxon appealed Brieger’s decision and the appeal is scheduled to be heard on Dec. 5 before the Massachusetts Supreme Judicial Court.

Exxon attorney Justin Anderson told Caproni that evidence suggests the investigations were motivated by activists, including those associated with the Rockefeller Family Fund.

Caproni scoffed at the suggestion, suggesting that Exxon should then sue the Rockefellers.

Ironic,” said Caproni, who pointed out that it was Rockefellers who originally founded Standard Oil, a predecessor of Exxon.

Disturbing,” said Anderson.

Fascinating,” said Caproni.

Could be both,” said Anderson, adding that he wondered what happened to make them jump on the climate change bandwagon.

They care whether subsequent Rockefellers can breathe,” said Caproni.

Attorney Melissa Hoffer, representing Healey’s office, said the investigation is not politically motivated or driven by activists and told Caproni that the New York case should be dismissed because the case in Massachusetts is scheduled to be heard by the state’s highest court and is more advanced than the New York case.

Anderson argued that the New York case is necessary to rule on the company’s constitutional claims under the First, Fourth and Fourteenth Amendments that won’t be covered by the Massachusetts court.

Anderson told the judge that the two attorneys general were attempting to prevent Exxon from exercising its First Amendment right to free speech and said that Healey and Schneiderman were attempting to silence those who disagree with their opinions, specifically the causes, impacts, remedies and severity of climate change.

Caproni wasn’t convinced, telling Anderson that Healey and Schneiderman don’t care about Exxon’s opinion, they care about Exxon’s disclosure.

You don’t have the right to lie in your SEC filings,” said Caproni, who added that while Exxon can’t be penalized for its opinion, it can be penalized for lying.

Caproni ordered the attorneys general to submit a brief on the motion to dismiss for failure to state a claim. She also wants each side to share with her the same evidence they provided the Texas judge. The case is expected to continue into next year.

Main image: Attorney General Eric Schneiderman. Credit: Azi PaybarahCC BY-NC-ND 2.0