WASHINGTON (Legal Newsline) – A Texas judge has decided California officials suing the energy industry over climate change are talking out of both sides of their mouths, and the former top lawyer of the Golden State is disappointed in their actions.
It might be embarrassing, but California officials need to address their inconsistent claims, says Dan Lungren, California’s attorney general from 1991-1999 who recently penned an opinion piece on the subject in the Sacramento Bee.
Sued over the alleged future effects of climate change, Exxon’s argument (which has been signed off on by a Texas judge) is that the cities and counties alleging these impending disasters have failed to disclose them in their bond offerings.
“If this was happening in the private sector, I think I’d have a lawsuit for fraud,” said Lungren, who has also spent 18 years in the U.S. House of Representatives.
“I don’t think public entities should be held to such low standards that all we do is make sure they’re not found liable for intentional fraud. I would expect those acting in the name of the people to be held to a higher standard.”
The California officials might soon be forced to explain themselves. Exxon’s Texas strategy seeks to depose them and an attorney at Hagens Berman, which represents some of the California governments on a contingency fee.
On April 24, Tarrant County District Judge R.H. Wallace, Jr. signed proposed findings of fact and conclusions of law, changing little from what Exxon is claiming.
“While the California municipalities alleged in their complaints against the energy companies that the impacts of climate change were knowable, quantifiable and certain, they told their investors the exact opposite,” the document says.
“These contradictions raise the question of whether the California municipalities brought these lawsuits for an improper purpose.”
The California counties of Marin, Santa Cruz and San Mateo and the cities of San Francisco, Oakland, Santa Cruz, Richmond and Imperial Beach have filed suit against several energy companies - including Exxon, Chevron and BP - over climate change. The company is also being targeted by the attorneys general of Massachusetts and New York.
Similar lawsuits have been filed by New York City and Boulder, CO.
San Mateo County’s complaint says it is “particularly vulnerable to sea level rise” and that there is a 93% chance the county experiences a “devastating” flood before 2050. However, bond offerings in 2014 and 2016 noted that the county “is unable to predict whether sea-level rise or other impacts of climate change or flooding from a major storm will occur."
“I find it difficult to understand how, on one hand you can make a statement to the court with 92% certainty that these things are going to happen, and going to the people and saying it is unknown,” Lungren said.
As AG, Lungren was tasked with making sure state bond offerings were accurate – “Had we come across anything contrary to pleadings we were making with the courts, we would have corrected that.”
No matter how embarrassing it is, lawyers for the California plaintiffs should tell the judges presiding over their cases that they need to withdraw or amend their claims, Lungren said.
“If I were to find we inadvertently made statements in documents before the court that were contradicted by other documents – particularly those that the public is relying on the good faith offerings of the state - I would immediately take action to reconcile that,” Lungren said.
At a recent American Enterprise Institute event, an attorney representing Boulder noted that the bond offerings came with a statement regarding a final paper from the California Climate Change Center that said property in San Francisco Bay is vulnerable to impacts associated with sea-level rise.
But the cities did not present an opinion on the accuracy of those claims, which was noted by Competitive Enterprise Institute attorney who attended the event.
“You presume when you file, whether filing as an officer of the court or under oath, you’re saying what is contained in your document is truthful and factually correct,” Lungren said.
“So if you have two different documents contemporaneously - one before the court with respect to the lawsuit and the other under the various rules that say you have to have honest statements to potential investors, otherwise it’s subject to fraud – it’s at least hypocritical and a failure of legal responsibility in those instances.”