[Vision2020] "Exxon: Liar Liar Earth on Fire" Re: Exxon Conspiracy Charges...

[Ted Moffett]

Vision2020 Post: Ted Moffett
-----------------------------------------
Exxon’s Conspiracy Charges Aim To Derail Climate Lawsuits
https://www.desmogblog.com/2018/02/20/exxon-s-conspiracy-charges-aim-derail-climate-lawsuits?utm_source=dsb%20newsletter

By Guest <https://www.desmogblog.com/user/guest> • Tuesday, February 20,
2018 - 06:28

*by David Halperin, crossposted from Republic Report
<https://www.republicreport.org/2018/exxons-conspiracy-charges-aim-derail-climate-lawsuits/>*

Oil giant ExxonMobil
<https://www.desmogblog.com/exxonmobil-funding-climate-science-denial> 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
<https://insideclimatenews.org/content/Exxon-The-Road-Not-Taken> in 2015
showed <http://graphics.latimes.com/exxon-arctic/> that Exxon scientists
have known
<http://www.nybooks.com/articles/2016/12/08/the-rockefeller-family-fund-vs-exxon/>,
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
<http://www.greenpeace.org/usa/global-warming/exxon-and-the-oil-industry-knew-about-climate-change/exxons-climate-denial-history-a-timeline/>
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
<https://www.huffingtonpost.com/davidhalperin/with-exxon-ceo-in-trump-s_b_13589728.html>
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
<https://www.republicreport.org/2016/judges-radical-exxon-ruling-could-turn-the-legal-system-upside-down/>,
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
<http://climatecasechart.com/case/exxon-mobil-corp-v-healey/> 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
<https://www.nytimes.com/2018/01/10/nyregion/new-york-city-fossil-fuel-divestment.html>,
have sued Exxon
<https://www.courthousenews.com/irony-big-oils-global-warming-case-could-hinge-on-jurisdiction/>
and
other fossil fuel companies, alleging harm
<https://www.sheredling.com/climate-change-pr/> to their communities from
climate change.

*Related DeSmog investigation: “There is no doubt”: Exxon Knew CO2
Pollution Was A Global Threat By Late 1970s
<https://www.desmogblog.com/2016/04/26/there-no-doubt-exxon-knew-co2-pollution-was-global-threat-late-1970s>*

The new lawsuits brought by California cities and counties — the cities of San
Francisco, Oakland
<https://www.latimes.com/politics/essential/la-pol-ca-essential-politics-updates-climate-1505933864-htmlstory.html>,
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
<https://thinkprogress.org/richmond-california-climate-lawsuit-478382e0d16e/>
 will make it easier to prove
<https://www.vice.com/en_us/article/43qw3j/meet-the-lawyer-trying-to-make-big-oil-pay-for-climate-change>
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
<http://climatecasechart.com/case/exxon-mobil-corp-v-healey/> and public
communications
<http://corporate.exxonmobil.com/en/key-topics/understanding-the-exxonknew-controversy/timeline-of-exxonknew>
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
<https://www.bloomberg.com/news/articles/2018-02-13/exxon-sues-the-suers-in-fierce-bid-to-defeat-climate-lawsuits>
.

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
<https://www.scribd.com/document/368760851/Rule-202-Petition-Re-CA> 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
<http://www.washingtonexaminer.com/the-trial-lawyers-behind-the-climate-litigation-racket/article/2648919>
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
<https://www.eastbaytimes.com/2018/01/22/another-east-bay-city-sues-oil-companies-over-climate-change/>,
“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
<https://www.ucsusa.org/publications/got-science/2016/got-science-may-2016#.Wos-8RPwai4>
 and make their cases
<http://www.nybooks.com/articles/2016/12/22/rockefeller-family-fund-takes-on-exxon-mobil/>
out
in the open. A 2012 meeting in La Jolla, California, among private lawyers
and climate experts that Exxon repeatedly cites
<https://www.scribd.com/document/368760851/Rule-202-Petition-Re-CA> as the
birthplace of the secret plot was meticulously documented and photographed
<http://www.climateaccountability.org/pdf/Climate%20Accountability%20Rpt%20Oct12.pdf>
by
the participants themselves.

There’s also nothing sinister or unusual
<https://www.huffingtonpost.com/davidhalperin/judges-radical-exxon-ruli_b_13354710.html>
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
<https://www.huffingtonpost.com/davidhalperin/judges-radical-exxon-ruli_b_13354710.html>.
Nor are public statements by officials regarding those probes proof of
political bias or an impingement on Exxon’s First Amendment rights
<https://www.washingtonpost.com/opinions/exxonmobils-climate-change-smoke-screen/2016/06/24/2df8b29c-38c4-11e6-9ccd-d6005beac8b3_story.html?utm_term=.b485c8870b89>.
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.


*Image credit: Linda Cooke for 350.org <http://350.org> via Flickr CC
<https://www.flickr.com/photos/350org/27218268756/in/photolist-HtbK2N-EjofZV-ANQDSo-Hq2ZaP-Hq32Xx-HtbKnN-HtbKJQ-HnArYU-W9CLd7-WtVV9N-EhaAVA-EhaA6u-EjoiAM-EqifLN-W9CL5b-E1uPhq-EjorGg-EsBTEP-EsBXxt-W9CKWA-AWAEEG-ArjKYg-BoJWUt-Sj2BEy-HCFi8g-Sj2BNj-Sj2B4o-S8UvVs-Hk9zCp-R5Z1oE-BoJY3a-Ard2Gf-ArcXo5-WFmSfu-UiCbeU-WFmS4C-WFmSnU-WJYF7M-WtVVjC-WtVUZQ-W9CKSh-W9CL7q-WFmRYN-FJQoGW-B61Nb8-FQHfR7-FT1kdr-VPmAug-VqEUAY-EXyKk3>*
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