Jessica Karmasek Jun. 29, 2016, 12:23pm


FORT WORTH, Texas (Legal Newsline) - ExxonMobil, the world’s largest publicly traded international oil and gas company, this month filed a lawsuit in Texas federal court seeking an injunction against Massachusetts Attorney General Maura Healey’s civil investigative demand.

At a one-day state attorneys general climate change conference in March, Healey and others were joined by former Vice President Al Gore in announcing they were committed to “aggressively protecting” the United States from and combating climate change.

New York Attorney General Eric Schneiderman, Vermont Attorney General William Sorrell, Connecticut Attorney General George Jepsen, Maryland Attorney General Brian Frosh, Virginia Attorney General Mark Herring and Claude Walker, attorney general of the U.S. Virgin Islands, joined Healey.

The attorneys general said they were exploring working together on key climate change-related initiatives, such as ongoing and potential investigations into whether fossil fuel companies misled investors and the public on the impact of climate change on their businesses.

ExxonMobil, headquartered in Texas, argues in its 33-page complaint, filed in the U.S. District Court for the Northern District of Texas, that the March 29 press conference was a “politically motivated event urged by activists.”

“The press conference was the culmination of years of planning,” attorneys for the company wrote in the June 15 filing. “Since at least 2012, climate change activists and plaintiffs’ attorneys have contemplated different means of obtaining the confidential records of fossil fuel companies, including the use of law enforcement power to obtain records that otherwise would be beyond their grasp.”

The company argues that statements made by Healey and others at the March press conference confirmed that the civil investigative demand, or CID, that was issued and served on ExxonMobil soon after was the product of the activists’ “misguided enterprise.”

“Attorney General Healey similarly pledged ‘quick, aggressive action’ by her office to ‘address climate change and to work for a better future,’” attorneys for ExxonMobil wrote. “She then announced that, in the service of those goals, her office also had commenced an investigation of ExxonMobil and that she already knew what the outcome of the just-launched investigation would be: It would reveal ‘a troubling disconnect between what Exxon knew’ and what it ‘chose to share with investors and with the American public.’

“Three weeks later, she served the CID on ExxonMobil.”

Healey’s CID purports to investigate whether ExxonMobil committed consumer or securities fraud by misrepresenting its knowledge of climate change in marketing materials and communications with investors.

“Its allegations, however, are nothing more than a weak pretext for an unlawful exercise of government power to further political objectives,” the company contends.

“The statute that purportedly gives rise to the investigation has a limitations period of four years. For more than a decade, however, ExxonMobil has widely and publicly confirmed that it ‘recognize[s] that the risk of climate change and its potential impacts on society and ecosystems may prove to be significant.’”

Despite the limitations period and the company’s public recognition of the risks of climate change, the CID demands that ExxonMobil produce effectively every document about climate change it has generated or received in the last 40 years, thereby imposing a “breathtaking burden” on ExxonMobil, the company argues.

ExxonMobil contends it would need to collect and review millions of documents to comply with the CID.

“Worse still, the CID targets ExxonMobil’s communications with the Attorney General’s political opponents in the climate change debate -- i.e., organizations and individuals who hold views about climate change, and the proper policy responses to it, with which, based on her statements at the press conference, Attorney General Healey disagrees,” attorneys for the company wrote. “The organizations identified by the CID each have been derided as so-called ‘climate deniers,’ meaning that they have expressed skepticism about the science of climate change or Attorney General Healey’s preferred modes of addressing the problem.”

The company argues Healey is abusing the power of government to “silence a speaker she disfavors.”

“The statements by the attorneys general at the press conference, their meetings with climate activists and a plaintiffs’ attorney, and the remarkably broad scope of the CID unmask the investigation launched by the Massachusetts Attorney General for what it is: a pretextual use of law enforcement power to deter ExxonMobil from participating in ongoing public deliberations about climate change and to fish through decades of ExxonMobil’s documents in the hope of finding some ammunition to enhance the Massachusetts Attorney General’s position in the policy debate concerning how to respond to climate change,” the lawsuit alleges.

The company seeks a declaration that the CID violates its rights under the U.S. Constitution, Texas Constitution and constitutes an abuse of process under the common law.

ExxonMobil also seeks an injunction barring enforcement of the CID.

Absent an injunction, the company contends it will suffer “imminent and irreparable harm.”

ExxonMobil contends the Northern District of Texas is the proper venue because all or “a substantial part” of the events giving rise to the claims occurred in the district. Specifically, the CID requires ExxonMobil to collect and review a substantial number of records stored or maintained in the district.

Suzanne McCarron, vice president of public and government affairs for ExxonMobil, has said the allegations leveled against the company are based on “discredited reporting” funded by activist organizations.

“The allegations are based on the false premise that ExxonMobil reached definitive conclusions about anthropogenic climate change before the world’s experts and before the science itself had matured, and then withheld it from the broader scientific community,” she said in March. “Such a claim is preposterous. It assumes that the expertise of a handful of Exxon scientists somehow exceeded the accumulated knowledge of the global scientific community at the time, and that the Exxon scientists somehow were able to reach definitive conclusions before the science had developed.

“It ignores the fact that Exxon’s scientists were fully engaged in the public discussion, openly sharing their findings in peer-reviewed publications and public archives, and actively contributing to the work of the UN’s Intergovernmental Panel on Climate Change.”

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

Organizations in this Story

Massachusetts Attorney General
1 Ashburton Pl
Boston, MA 02108

Exxon Mobil
5959 Las Colinas Blvd
Irving, TX 75039

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