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Friday, April 10, 2020

Watchdog wants emails between anti-Exxon lawyer and New York Attorney General's Office; Company used them in its defense

Attorneys & Judges

By Daniel Fisher | Feb 10, 2020


NEW YORK (Legal Newsline) - A conservative energy-policy group has sued to unseal parts of ExxonMobil’s defense in a failed climate lawsuit by New York Attorney General Letitia James, saying “the public has an absolute right to know” about communications between the New York AG and a private lawyer pushing potentially lucrative climate change lawsuits around the country.

In pretrial jousting before New York lost the high-profile case, ExxonMobil filed a 50-page response to the state’s claims that included redacted references to emails attorney Matt Pawa exchanged with New York before it filed suit. ExxonMobil claimed in its defense that Pawa, a private lawyer who made millions suing ExxonMobil and other oil companies over the gasoline additive MTBE, conspired with New York to formulate the lawsuit to try to deprive it of its First Amendment right to speak publicly about energy policy. 

New York says there is no reason to unseal the records since Judge Barry Ostrager dismissed its claims in December and the state has declared it will not appeal. But the would-be intervenors, Energy Policy Advocates and Virginia journalist Robert Schilling, say the documents reflect communications between the New York Office of Attorney General “and a lobbyist, where the lobbyist urges the use of the OAG’s awesome powers and taxpayer-funded resources in what has proved to be a disastrous undertaking.”

While not technically registered in New York as a lobbyist, Pawa is a partner with Hagens Berman, a law firm that made hundreds of millions of dollars in tobacco litigation and represents municipalities suing oil companies over climate change on contingency fees. As is common with public/private litigation, the involvement of state attorneys general in such litigation greatly increases the chances private lawyers will be able to settle their cases on favorable terms and earn millions of dollars in fees.

Judge Ostrager rejected ExxonMobil’s conspiracy and First Amendment defenses and New York ultimately dropped most of its claims to focus on the Martin Act, an expansive state securities fraud statute that doesn’t require proof of bad intent, but merely that a company made statements that could be found materially misleading. Even under that standard, however, Judge Ostrager ruled the state failed to prove its “ill-advised” case.

Energy Policy Advocates is suing to unseal the record because it is important to understand all the evidence that Judge Ostrager considered, said Matthew Hardin, lawyer for the organization, which has filed similar requests for documents in other climate cases. 

“Whether the court did a wonderful job or terrible job, the public has a right to know how it reached its decision,” Hardin said. “Exxon won, but you can’t read their answer to the complaint. That’s not consistent with the First Amendment.”

Judges must make specific factual findings to justify sealing documents involving a government entity, Hardin said. In those findings, the judge must explain the dangers of releasing the information to the public, he said.

In the unredacted portions of its defense, ExxonMobil said former New York AG Eric Schneiderman solicited political donations from billionaire environmentalist Tom Steyer in connection with his ExxonMobil investigation, and the AG’s office participated in behind-the-scenes planning sessions with the Rockefeller Family Fund and others on how to use litigation to obtain internal documents that could be used in a public pressure campaign against the company.

Hardin said EPA isn’t funded by oil companies. Last year, the group sued Massachusetts AG Maura Healey to obtain documents about her office’s work with Democratic presidential candidate Michael Bloomberg’s “environmental fellows” program to place lawyers in AG’s offices for the sole purpose of environmental litigation. The group also obtained e-mails between Masschusetts and Pawa, including a 2015 email in which the private lawyer offered a “mini trial-type presentation” on what ExxonMobil knew about global warming, a key element of lawsuits claiming the company hid evidence its products are responsible for climate change.

In 2016, Healey filed a civil investigative demand with ExxonMobil seeking 40 years of records of any communications about climate science with a number of non-profit organizations including the American Enterprise Institute, the American Legislative Exchange Council, the Competitive Enterprise Institute and the Heritage Foundation. The Supreme Court rejected ExxonMobil’s appeal of that sweeping subpoena last year and the state launched its own climate lawsuit against ExxonMobil last October.

Energy Policy Advocates works with the public-interest law firm Government Accountability & Oversight, which earlier this month sued Washington AG Bob Ferguson for emails and memos showing his office’s interactions with Pawa. The group previously obtained documents from the Washington Department of Ecology showing that Ferguson’s office worked closely with climate activists and private lawyers working on contingency-fee lawsuits against the industry. 

News organizations and groups like EPA have had some significant successes in forcing state law enforcement officials to turn over records of their communications with outside groups, especially private lawyers pursuing climate litigation. In 2018, the Vermont attorney general was ordered to pay $66,000 in fees to a local newspaper publisher and other intervenors for improperly fighting their request for documents about the AG’s communications with other groups about climate litigation.

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Organizations in this Story

New York Attorney GeneralExxon MobilMassachusetts Attorney General's Office