ExxonMobil has its corporate headquarters in Texas. Eight California cities and counties have accused Exxon and other oil firms of breaking state laws by misrepresenting and burying evidence — including from its own scientists — of the threat posed by rising temperatures. They are seeking billions of dollars in compensation for damage caused by wildfires, flooding, and other extreme weather events, and to meet the cost of building new infrastructure to prepare for the consequences of rising global temperatures.
In response, Exxon has adopted a new legal strategy. It seeks to use a Texas law known as Rule 202 to force officials from those cities and counties to come to Texas to be examined by its lawyers. According to The Guardian, the tactic is intended to uncover proof that the cities and counties are engaging in a broad conspiracy to deny the company its First Amendment right to free speech as guaranteed by the US Constitution.
The tactic works like this. Force all those town and city officials to stop what they are doing, travel to Texas to be grilled by Exxon’s lawyers for weeks and months on end, then make them defend themselves in Texas courts from Exxon’s claim that they are engaging in a grand conspiracy that the company’s legal beagles call “lawfare.” Exxon also claims the suits filed in California infringe on the sovereignty of the great state of Texas.
Exxon says it is the victim of harassment, and claims, “The potential defendants’ lawfare is aimed at chilling the speech of not just ExxonMobil, but of other prominent members of the Texas energy sector on issues of public debate, in this case, climate change.” In its petition to the Texas Supreme Court, Exxon claims it is entitled to question the officials in order to collect evidence of “potential violations of ExxonMobil’s rights in Texas to exercise its first amendment privileges” to say what it likes about climate science.
Texas Governor Greg Abbott has gotten in on the fun. He has filed an extraordinary brief with the Texas Supreme Court — composed entirely of Republicans, half of them appointed by Abbott himself — in which he accuses the California plaintiffs of attempting “to suppress the speech of eighteen Texas-based energy companies on the subject of climate and energy policies.”
His brief to the court adds, “When out-of-state officials try to project their power across our border, as respondents have done by broadly targeting the speech of an industry crucial to Texas, they cannot use personal jurisdiction to scamper out of our courts and retreat across state lines.”
Exxon has targeted Matthew Para, an environmental lawyer from Boston, who represents some of the California cities and counties. It describes him as “an outspoken advocate of misusing government power to limit free speech” and alleges that he “recruited” the California cities and counties to sue Exxon. “Those lawsuits are an affront to the First Amendment,” the company says in its legal filings.
ExxonMobil & Legal Intimidation
Patrick Parenteau, a law professor and former director of the Environmental Law Center at Vermont law school, has described the company’s move as “intimidation” intended to make “it cost a lot and be painful to take on Exxon” whether or not the company wins its case.
Naomi Oreskes, a Harvard professor and co-author of Merchants of Doubt: How a Handful of Scientists Obscured the Truth on Issues from Tobacco Smoke to Global Warming, tells The Guardian that Exxon has a long history of attempting to bully its critics into silence. “Now that the arguments have moved into the legal sphere, this feels to me like an extension of the sort of harassment, bullying, and intimidation that we’ve seen in the scientific sphere for the last two decades,” she says. “Exxon Mobil has for a long time now tried to make themselves out to be the victim, as if somehow they’re the innocent party here.”
Oreskes adds that the legal strategy is also part of a broader public relations campaign to paint the company as a victim of radical environmentalists and opportunistic politicians. Instead, Exxon argues, it should be heralded as a hero for its efforts to combat the climate crisis. She says Exxon has gone further than most other oil companies in seeking to hide the evidence of its own scientists collected about global heating and in running a disinformation campaign.
“They’re pushing their freedom of speech as an issue because more than any other company, it’s been proven by people like me and others that they have a track record of promoting half truths, misrepresentations, and in some cases outright lies in the public sphere,” she says. “This is so well documented that unless they can come up with some strategy to defend it, they’re in potentially pretty serious trouble.”
State Law, Federal Law, & The Constitution
One way or another, climate litigation is going to wind up in the laps of the 9 justices of the US Supreme Court — 6 of whom were suckled at the breast of the Federalist Society, an organization founded in part and supported financially by Charles Koch and other oil interests. It is an article of faith among Federalist Society acolytes that corporations can do no wrong and have greater legal rights than people.
There’s a reason why Chief Justice John Roberts and his ultra right wing confréres blithely stated in Citizens United and other rulings that of course corporations have the same rights of free speech as mere mortals. They are “people”according to the Constitution, even though the word “corporation” appears nowhere in that document.
So much for the much ballyhooed claim by these partisan political puppets that they are fierce guardians of “originalism,” a doctrine promoted by reactionaries that holds the Constitution means what a plain reading of its text says it means and there is no room for interpretation based upon changes in society since 1787. Yet somehow they feel entitle to find the word “corporation” in the Constitution and to repeal the phrase, “A well regulated Militia, being necessary to the security of a free State,” from the Second Amendment. Talk about your judicial activism!
The US Supreme Court has the constitutional duty to resolve disputes between the states. Clearly California and Texas are on a collision course here and the USSC will be called upon to sort things out. The law would appear to be clear. Corporations cannot lie, cheat, and steal just because it is good for business. But will John Roberts and his cohorts step up to do their duty or will they kowtow to corporate interests and ignore the climate crisis until the seas close over the Supreme Court building? If you have been following the doings of the current court, expect no acts of courage from the 6 ideologues who owe their positions on the court to the Federalist Society.
America has a legal system. What it lacks is a justice system. In other words, don’t get your hopes up, people. Corporate power is the basis of fascism and the bedrock of political life in America today. “We The People” are systematically marginalized or excluded from the operation of the American judicial system. This is going to get worse before it gets better.
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