In 2015, Inside Climate News published an article claiming ExxonMobil knew decades ago that burning fossil fuels was detrimental to the environment. But instead of sharing that knowledge with the public and its shareholders, it decided instead to fund a campaign to discredit climate science using many of the techniques perfected by the tobacco industry. The Los Angeles Times picked up on the story and wrote a major story about how burning fossil fuels was endangering the Arctic.
New York & Massachusetts Sue ExxonMobil
Subsequently, Eric Schneiderman, attorney general for the state of New York, and Maura Healey, attorney general for the state of Massachusetts, opened investigations into whether ExxonMobil, then headed by Rex Tillerson, had deliberately misled its shareholders about the effect climate change could have on the value of the company’s stock.
You might think a company lying to its stockholders would be a proper subject for inquiry by officials responsible for protecting the public interest, but ExxonMobil reacted like a wounded rhinoceros and went into full retaliation mode, lashing out at the two attorneys general by filing suit in federal court in Texas accusing them of willfully, knowingly, and deliberately violating the company’s rights under the First and Fourth Amendments to the US Constitution. In essence, the company claimed it had a constitutional right to say anything it wanted, even if what it said was a lie, pursuant to the free speech provision of the First Amendment.
ExxonMobil filed suit in Texas because that’s where its headquarters are, and besides, Texas is an oil state. If an oil company can’t get a fair hearing in Texas, where can it get one? At first, US district court judge Ed Kinkeade seemed sympathetic to the company’s plight. He approved a request by the company to depose Schneiderman and Healey. Presumably, the deposition would show the two were little more than thugs — co-conspirators bent on ginning up some bogus charges against the company in order to win reelection. The company hinted the two were in cahoots and were little more than modern day racketeers.
Eventually judge Kinkeade became convinced Texas was not the proper place to pursue the litigation and ordered the case transferred to the federal court for the southern district of New York. Last week, judge Valerie Caproni dismissed the case brought by ExxonMobil. In her decision, she had unkind things to say about the company and its legal theories, calling its claim that the two state officials were conspiring against it “implausible.”
Judge Scoffs At ExxonMobil Claims
As reported by ThinkProgress, the judge’s decision went on to characterize ExxonMobil’s strategy as “running roughshod over the adage that a best defense is a good offense.” She wrote that the company’s lawsuit was based on “extremely thin allegations and speculative inferences.”
After the judge rendered her decision, New York’s attorney general, Eric Schneiderman, issued a statement to the press. “I am pleased with the court’s decision to dismiss Exxon’s frivolous, nonsensical lawsuit that wrongfully attempted to thwart a serious state law enforcement investigation into the company. As the Court noted, Exxon’s claims in this lawsuit were ‘implausible’ and unsupported, while its strategy amounted to a type of ‘legal jiu-jitsu’ that resulted in nothing more than a ‘huge waste’ of time and money.”
Ken Kimmell, president of the Union of Concerned Scientists, also commented on the court’s decision. “The district court cut right through the fog of ExxonMobil’s misguided effort to block lawful and proper investigations by state attorneys general. With ExxonMobil’s suit dismissed, one can hope that the truth will finally come out.”
If I were ExxonMobil and had just paid megadollars to some high-powered law firm to build a case that was laughed out of court, I would demand my money back. But ExxonMobil won’t care, and perhaps that’s all it expected. It bought itself one more year before its day of reckoning arrives. Its obscene profits during that time will more than outweigh what it paid its feckless attorneys.
Slash & Burn, Baby
ExxonMobil’s slash and burn legal defense is now the norm in major cases like this. Corporations have virtually unlimited funds to hire attorneys willing to delay, deny, obfuscate, and obstruct. There is an old adage in the law biz that delay always works to someone’s advantage. Giant law firms have entire departments whose only mission is to devise new and creative methods to defer the final result while their clients continue to gorge themselves on the profits realized from bad behavior. Attorneys general have budgets. For all intents and purposes, ExxonMobil and its nefarious brethren have no such constraints.
ExxonMobil has mounted aggressive counterattacks against others who have dared to take it to court. Some might compare those strategies to the “scorched earth” tactics employed by General Sherman during his infamous March To The Sea. Earlier this year, it responded to a suit brought against it by several cities and counties by calling the plaintiffs participants in a conspiracy “designed to coerce ExxonMobil … to adopt policies aligned with those favored by local politicians in California.” It’s all the fault of those wine swilling, fondue eating liberals, your honor! For all intents and purposes, ExxonMobil regards anyone who challenges it as little more than a terrorist engaged in a jihad designed to topple one of the pillars of civilized society.
A Rising Tide Of Legal Woes
“There is a real risk that these things are intended to and will succeed in chilling speech and intimidating local government officials from taking progressive action,” Michael Burger, executive director of Columbia University’s Sabin Center for Climate Change Law, told ThinkProgress in February. If that’s the strategy, however, it doesn’t seem to be working. An old legal maxim holds “the strength of one’s argument is inversely proportional to the strength of one’s case.” If that’s so, ExxonMobil is in deep water and the tide against it is rising fast.