By David Halperin, who engages in public advocacy on a wide range of issues, and advises organizations on strategy, policy, communications, and legal matters. He is of counsel to Public.Resource.Org. Cross-posted from DeSmog Blog.
Oil giant ExxonMobil is engaged in unprecedented efforts to sue and harass in court the very people who are investigating and suing the company over global warming. Faced with determined efforts by states and localities to hold it and other fossil fuel companies accountable for contributing to, and concealing the evidence of, climate change, Exxon is crying foul, contending that it’s the victim of politically- and financially-motivated conspiracies.
But in reality there are no improper schemes behind the cases against Exxon. Instead, what’s troubling is an apparent effort by Exxon, one of the world’s wealthiest corporations, and its powerhouse corporate lawyers, to avoid a courtroom reckoning by making specious legal arguments and outspending their foes in the legal arena.
Through its attorneys at New York’s Paul Weiss Rifkin Wharton and Garrison, and Texas-based firms Haynes & Boone and Cantey Hanger, ExxonMobil has sued the attorneys general of Massachusetts, New York, and the U.S. Virgin Islands. And the company has recently targeted for depositions and document subpoenas, and threats of more lawsuits, numerous state officials, private attorneys, and advocates.
Exxon’s legal counterattack began after the Massachusetts, New York, and Virgin Islands AGs started investigating whether Exxon misled consumers and investors about the dangers of global warming and the potential impact of those dangers on the company’s bottom line. Investigative reporting in 2015 showed that Exxon scientists have known, and told Exxon management for decades, that burning fossil fuels was heating up the planet, but rather than educate the public on the dangers and change its business strategy, Exxon instead spent millions supporting efforts to question and deny the science of climate change. The state AGs also started investigating whether ExxonMobil has properly accounted for its oil reserves in the wake of global price drops and evidence of global warming.
The Massachusetts AG, Maura Healey, has explained that her investigation focuses “on whether Exxon may have misled consumers and/or investors with respect to the impact of fossil fuels on climate change, and climate change-driven risks to Exxon’s business,” in marketing energy products and in marketing Exxon securities, in violation of the state consumer protection law. Similarly, New York’s AG, Eric Schneiderman, has indicated that he is investigating whether ExxonMobil’s public statements about climate change conflicted with its internal research, which could have led to “state law violations, including under the Martin Act,” the New York law that prohibits financial deception and fraud. (The New York AG reached settlements with Xcel Energy and Dynegy, Inc. in 2008 and with AES Corp. in 2009 based on those companies’ failures to disclose climate change risks in securities filings.)
In 2016, Exxon launched its response, suing Healey, Schneiderman, and U.S. Virgin Islands attorney general Claude Earl Walker in federal courts in its home region of Dallas-Fort Worth. The suit against Walker succeeded when his small office halted its investigation of the oil titan, but the other two AGs persisted.
U.S. District Judge Ed Kinkeade approved Exxon’s demand that Healey and Schneiderman submit to depositions by Exxon lawyers — an unwarranted, and virtually unprecedented move, as prosecutors aren’t normally required to face cross examination by people whom they’re investigating. Healey and Schneiderman fought back, seeking an unusual mid-case appeal to the 5th Circuit U.S. Court of Appeals, after which Kinkeade backed down, cancelled the depositions, and transferred the case to a federal court in New York.
As Exxon continues its efforts to convince a Manhattan federal judge to allow it to depose the two state AGs and, ultimately, to block their probes, it faces a new wave of lawsuits: since September 2017, eight cities and counties in California, plus New York City, have sued Exxon and other fossil fuel companies, alleging harm to their communities from climate change.
Related DeSmog investigation: “There is no doubt”: Exxon Knew CO2 Pollution Was A Global Threat By Late 1970s
The new lawsuits brought by California cities and counties — the cities of San Francisco, Oakland, Santa Cruz, Richmond, and Imperial Beach, plus Santa Cruz, San Mateo, and Marin counties — could pack a powerful punch. The suits allege that ExxonMobil, Chevron, ConocoPhillips, BP, Royal Dutch Shell, and others knew for decades that fossil fuel-driven global warming and rising seas threatened human life, but continued to expand their production, while deceiving consumers about the risks. Asserting that this conduct violates various state tort rules — public nuisance, failure to warn, design defect, negligence, and trespass — the suits demand that the companies pay for the costs of environmental harms like damages to seawalls, and dangers from severe weather, droughts, and fires.
These new lawsuits have a stronger chance of success than a 2008 case filed against fossil fuel companies by the small Alaskan community of Kivalina, seeking to recover the cost of relocating their village, which was threatened by rising sea levels. A federal judge dismissed that case, concluding that the village could not trace its injuries to any particular defendant. But today there is much more evidence that global warming is real, accelerating, and caused by burning fossil fuels, and that oil companies knew such information, suppressed it, and sought to counter it. Also, lawyers for the California cities and counties believe that recent scientific advances will make it easier to prove that the specific defendants’ activities harmed or threaten their client communities.
Faced with these mounting challenges to its conduct, ExxonMobil is relentlessly trying to change the subject.
In legal papers and public communications attacking the New York and Massachusetts attorney general investigations, Exxon has charged that various meetings among lawyers, advocates, and charitable foundation officials to discuss climate change liability issues, and communications between such people and attorneys general offices, are evidence of an untoward conspiracy against the company. Exxon further alleges that the AG probes attack the company’s First Amendment rights. “The attorneys general have violated Exxon Mobil’s right to participate in the national conversation about how to address the risks presented by climate change,” Dan Toal, one of Exxon’s lawyers at the Paul Weiss firm told Bloomberg.
Now Exxon and its allies are aiming to tie the new California lawsuits into this alleged conspiracy. The company is seeking to depose more than a dozen California officials, plus private attorney Matt Pawa, in anticipation of a threatened lawsuit alleging violation of the company’s free speech and other constitutional rights. In a January 8 Texas court petition seeking the depositions, Exxon charges, “A collection of special interests and opportunistic politicians are abusing law enforcement authority and legal process to impose their viewpoint on climate change.”
A recent op-ed by New York business consultant John Burnett attacked some of the California cities and counties for hiring outside lawyers to sue Exxon and paying them on a contingent basis — meaning they get paid if and only if Exxon loses in court or settles — even though this consultant acknowledges that the cities and counties couldn’t afford to pay the lawyers any other way. He calls the arrangement “a perilous new frontier in the world of ambulance-chasing by elected officials.” Similarly, Linda Kelly, general counsel for the National Manufacturers Association, told a reporter, “From Richmond, California, to New York City, activist-driven lawsuits are being filed to undermine manufacturers in America without regard to the facts.”
But these counterattacks on those pursuing Exxon are themselves fueled by false information and unwarranted charges.
I’ve worked for many years in association with some of the people Exxon has claimed are part of the alleged conspiracy. They aren’t conspirators. They generally do their work and make their cases out in the open. A 2012 meeting in La Jolla, California, among private lawyers and climate experts that Exxon repeatedly cites as the birthplace of the secret plot was meticulously documented and photographed by the participants themselves.
There’s also nothing sinister or unusual about scientists, private lawyers, other experts, or simply concerned citizens providing evidence and arguments to state attorney general offices regarding potential legal violations, including, indeed especially, in complex matters involving powerful actors. There’s nothing wrong with state and local law enforcement officials working in parallel on probing a common issue or target — it happens frequently. Nor are public statements by officials regarding those probes proof of political bias or an impingement on Exxon’s First Amendment rights. And nor is it unusual or improper for local governments to hire private lawyers to protect their residents’ interests in court.
The AGs and local officials are doing their jobs — pursuing evidence of law-breaking. If Exxon believes it has behaved properly with respect to climate change, it should use its expensive and talented lawyers to defend itself on the merits, rather than harassing others over invented conspiracy theories.
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Thanks for sharing this info! Good to see all these efforts to hold fossil fuel companies responsible for their decades of lies and disasters (for decades/centuries to come) even if Exxon is going a route that makes Tobacco companies look like the Girl Scouts.
With all this going on, can we finally cut off the billions in welfare we give to Exxon and other fossil fuel companies each year?
“As of October 2017, Oil Change International estimates United States fossil fuel exploration and production subsidies at $20.5 billion annually.”
http://priceofoil.org/fossil-fuel-subsidies/
Geophrian,
On the demand side, Valero gas stations are just Exxon stations re-branded to avoid the boycott.
To be fair to the poor little Exxon corporation that’s doing what a business has to do to survive, let’s do buy Exxon gas again once Prince William Sound is clean and the fish have returned and all costs have been paid by Exxon.
Meanwhile, do your duty and instead, patronize independent stations that while they may use gasoline from major’s refineries, they sell it cheaper and without the branding and political influence of the majors.
This of course after riding your bike, walking, car pooling, etc.
Hadn’t realized Valero was Exxon – thanks for the info.
I remember seeing Valero stations for the first time in Alaska 15+ years ago and wondered where this new-to-me company came from. Now it all makes sense – with the Exxon Valdez spill still in the public consciousness, it’s no wonder they wanted to ‘rebrand’ themselves starting in Alaska.
Valero stations are excellent places to park your car at the pumps, use the restroom, put air in the tires,–remember you can also use the air hose to blow out dirt from your car, throw away your garbage and clean your windows. Just don’t spend a cent there.
If so many people start doing this that it becomes so effective that the gas stations so targeted start having the police arrest space-taking non-purchasers for tresspassing . . . . what could wanna-be boycotters do then? Or if actually parking at the pumps without gassing up could in itself be tresspassingly arrestable, what could wanna-be boycotters do?
They could make the tiniest possible purchases so as to stay oh-so-exquisitely within the boundaries of the letter of the law. While at the same time still costing Exxon ( through costing its stations) enough time and money to make the Exxon Mothership feel it. So drive in, buy a slow and careful quart of gas ( or maybe a pint), and drive very slowly out again
There is an evil conspiracy afoot to save the environment of the planet. This is obviously a follow-on from the nefarious plot to prevent nuclear war. Ii believe many people are colluding in both activities indicating the subversiveness of these plots. I think some of these people are even opposed to gun violence, which is clearly un-American.
BTW – it is also clear that Fergie was conspiring with “Black Lives Matter” as she didn’t take a knee during the national anthem but decided to sing it instead, thereby subjecting the national anthem to ridicule. http://www.syracuse.com/celebrity-news/index.ssf/2018/02/fergie_national_anthem_video_nba_all-star_game.html
When I saw the headline, I assumed they were going after environmental advocacy groups, but state AG’s? I’m not sure if that’s a sign of supreme chutzpah, or the desperation move of a business that knows its been lying and that its profitability outlook is negative.
The propaganda efforts from the industry apologists are hilarious. “They’ve hired lawyers! These efforts are led by activists!” Yeah, so? Who else would you use for legal actions? Are people not supposed to get involved with their community? Good ol’ neoliberal moral denouncing of people trying to change things via non-market methods.
If Exxon has become so brazenly effronterous as to countersue State AGs, one wonders whether the State AGs will become so huffily offended as to counter-countersue
Exxon? If the State governments which those State AGs work for have other divisions ( state police, fish and game, etc.) which have gassed up their fleets at Exxon up to now, might those State government fleet-managers have their fleets gas up at some non-Exxon venue instead?
Or switch to EVs charged with electricity from their own solar panels and only consider Exxon if they can compete on supplying the solar panels and charging stations.
Or switch to EVs, as you say.
Actually, if enough millions of consumetarians get long-term concerned enough about the Exxon conspiracy against Life on Earth . . . .concerned enough to re-arrange their lifestyles enough to do a little something against Exxon every day for months, years and decades . . . then some of those millions could “slowcott” Exxon as I have suggested, and other millions could EV their personal transportation as you have suggested.
My suggestion might be useful for those who cannot go Full Metal EV at this time, but would still like to do something real.
And of course those people who have, or get, plug-in hybrid electric cars could do some of both. Charge up when possible from rooftop solar panels, and buy gas when necessary from NON-Exxon venues.
People who worry that ten million “tiny little bits” would still add up to basically nothing might remember the Czarist Army era quote: ” Quantity has a quality all its own.”
Exxon has long acted amorally. I am sure there are immoral people at Exxon, but they are mainly amoral. Exxon obeys the letter of the law and pursues their profits within those constraints and only those constraints. Exxon has every right to counter-sue, harrass, and protect itself under the law.
Alas. Perhaps it is time to change the law.
funding a similar propaganda campaign wound up costing big tobacco, so maybe not entirely within the constraints of the civil law, or possibly criminal if they committed fraud. i dont think they ever wound up paying the full costs of the exxon valdez disaster, either.
“The Massachusetts AG, Maura Healey, has explained that her investigation focuses “on whether Exxon may have misled consumers and/or investors with respect to the impact of fossil fuels on climate change, and climate change-driven risks to Exxon’s business,” in marketing energy products and in marketing Exxon securities, in violation of the state consumer protection law. Similarly, New York’s AG, Eric Schneiderman, has indicated that he is investigating whether ExxonMobil’s public statements about climate change conflicted with its internal research, which could have led to “state law violations, including under the Martin Act,” the New York law that prohibits financial deception and fraud. (The New York AG reached settlements with Xcel Energy and Dynegy, Inc. in 2008 and with AES Corp. in 2009 based on those companies’ failures to disclose climate change risks in securities filings.)”
Exxon paid peanuts for the Valdez and then wrote that off income anyway.
“Exxon has every right to counter-sue, harrass, and protect itself under the law.”
True, within certain bounds. Exxon definitely appears to be pushing those bounds, and I guarantee the AG’s are already preparing FRCP Rule 11motions: https://www.law.cornell.edu/rules/frcp/rule_11
The problem is — like the banksters — generally any sanction a court will impose is peanuts to a corp like Exxon. However, Rule 11 does provide “A sanction imposed under this rule must be limited to what suffices to deter repetition of the conduct or comparable conduct by others similarly situated.” How many are similarly situated to Exxon? Hypothetically, a court could slap Exxon with the biggest sanction in American history.
The AGs could ask the Courts to make the Rule 11 sanctions big enough to deter Exxon itself from trying it ever again. The theory could be that Exxon is identical to Exxon itself, and “identical” is the strongest and purest form of “similarly situated” there is.
I am not familiar with legal and juridical history, but it seems to me that the actions of Exxon’s lawyers indicate some sort of phase change. I think it is probably the result of 3/4 of a century effort by the neoliberal thought collective (as per Philip Mirowski) and the libertarian rich, to force a market paradigm on society. This effort is rapidly eradicating the classical republican ideals on which USA was founded, including civic virtue, democratic representation, and equality before the law. Serious thought will have to be given — if humanity survives the planetary plundering enabled by the market totalitarians — to how we remove the Federalist Society minions from their lifetime appointments on the bench.
The classical republican ideals upon which America was found might include civic virtue though I cannot think of a document which cites that.
As for democratic representation, it was certainly not a founding principle since it took a century or so before non-landed, non-white males could vote in much of the country. Women got the right to vote only in 1920. Native Americans could vote in 1887 but only if they renounced their tribe. I won’t bother detailing black voter rights here; I would argue that they still don’t really have representation.
Equality before the law was not a founding principal either, nor is it one now. This is simply shown by voting rights. One goes with the other. Blacks and Native Americans had limited, nearly nonexistant, legal rights in court (de facto rights) prior to the end of the last century.
Exxon is not going through a paradigm shift. Exxon has always behaved this way..or worse. Does anyone really need a history lesson on the origins of Exxon?
Rudyard Kipling
Administratively, there was unlimited and meticulous legality, with a multiplication of semi-judicial offices and titles; but of law-abidingness, or of any conception of what that implied, not a trace.
Actually, I agree with Tony in large part. What I see here is the “potential” for a major phase shift. I think this whole fight (see my comment above) will revolve around the Rule 11 motions the State AGs bring. Viewed from the bench as a “conspiracy” to interrupt the “wisdom of the market” will mark a MAJOR phase shift toward enshrining neoliberalism as gospel. To rule that the suit Exxon is bringing is indeed frivolous or not warranted by existing law, would be a massive blow to the neoliberal interpretation of the world.
Have no doubt … this is huge. I’m thinking this litigation will rank in importance right up there with County of Santa Clara v. Southern Pacific Railroad. That was a phase shift as Tony put it. If Exxon wins, this will be too.
Well . . . if Exxon loses, that would also be a phase shift in the opposite direction.
And if enough millions of the Consumetariat can be informed about this Exxon behavior and can decide to motivate themselves to feel and apply the kind of long-held cold hatred and bitterness against it which causes lasting changes in consumption behavior, then those millions of consumetarians will undergo their own phase shift of sorts, and be willing to endure some inconvenience and even discomfort involved in using less gas and only buying it from non-Exxon sources . . . in order to inflict greater pain on Exxon.
Perhaps I am willing to endure athletes foot for the rest of my life if I can be assured that each of my enemies will get their legs sawed off in return. ( Or slowly chewed off by the patient hyenas of permanent terminal boycott).
I’m with you. I fished commercially in AK for years and haven’t purchased a drop of Exxon gas since Valdez. However, putting Exxon out of business will not impact the decisions of Federalist Society “originalist” judges who view the free market as sacrosanct.
Think of this as an extreme example of an ag-gag law, whcih we have here in Idaho. Farmers and ranchers can break laws, but private citizens can’t knowingly seek to penetrate these farms by getting hired and then reporting on the conditions they find. The evidence will not be allowed in court and the individual is liable to prosecution.
The message … don’t mess with the market. The message in this case if Exxon wins … the market is absolutely sacrosanct.
So? So what. It would still put Exxon out of bussiness. That could well weaken the power of Big Oil and Carbon enough to pull it down within reach of other degrade-and-attrit attacks.
If a hundred million people each lift a finger, that’s a hundred million lifted fingers. And what is a Federalist Society Judiciary going to do about that? Criminalize individuals for practicing conservation driving and targeted gas purchasing?
I have a beautiful vision. Picture a hundred million pairs of Strong Blue Hands wrapped around the throat of Big Koch, Koal and Karbon.
No need to preach to this choir. Yes, it would be nice if they got slapped by the Court. It would be nice to have some favorable precedent to work from. However, as bad as SCOTUS is on civil rights over the last 1/2 century … they’re worse whjen it comes to rulings that favor big business.
I hear tea tree oil or propylene glycol antifreeze has been effective for athlete’s foot problems. The antifreeze worked once for me, a long time ago.
Interesting and good to know. Perhaps people should store just a little polyethylene glycol for use against athlete’s foot, as needed. Especially in case of a long-decline future where the medical fungicide factories might all go out of production. And legacy fungicide might only last a few years in storage. Whereas polyethylene glycol would last many many years.
And in the absence of antibiotics, one might want to kill an athlete’s foot infection real quick, before bacteria invade the fungus-wound.
Oh no!!
Posting a Rudyard Kipling quote in response the the American virtues, has me in “moderation.”
Obviously none of us use any petroleum products. Nor drive or allow to be driven by petroleum. Exxon may be made to be the example, but billions must perish before a world without petroleum can exist.
I have to shut up and let Exxon commit fraud because I drive a car or I’m a hypocrite.
Got it. Thanks for the false dichotomy logical fallacy.
Since I once practiced law myself, I’m not inclined to criticize lawyers for saying what their clients want them to say. But.
The assertions of the Paul Weiss lawyer are stupid, and evidence that he is stupid as well. Also, he’s a Quisling and I hope climate change damages his children’s inheritance.
As a practicing lawyer myself, I am inclined to criticize lawyers who zealously represent their clients in violation of Rule 11. This seems the definition of frivolous.