Massachusetts Subpoenas Exxon’s Communications With Nonprofit Groups

Oil company asks court to block ‘an unlawful exercise of government power’

Exxon Mobil
June 15, 2016

The attorney general of Massachusetts subpoenaed oil giant ExxonMobil in April as part of an ongoing legal and political offensive by Democratic state officials that the company says amounts to the prosecution of political dissent, court filings reveal.

The subpoena, released on Wednesday as part of a legal action brought by ExxonMobil, demands 40 years of records from the company, including its communications with a dozen conservative and libertarian nonprofit groups accused of abetting fraudulent statements about global climate change.

Massachusetts attorney general Maura Healey served the subpoena in April, but its existence was only made public as part of a legal motion filed by ExxonMobil on Wednesday seeking to block it.

Healey and other state AGs with which she is collaborating allege that Exxon deliberately misled shareholders regarding the potential financial consequences of climate change for the company’s share price.

Exxon called the allegations "nothing more than a weak pretext for an unlawful exercise of government power to further political objectives" in the motion filed Wednesday.

The subpoena is the third issued by state attorneys general seeking internal ExxonMobil documents as part of a nationwide legal campaign against the company. New York attorney general Eric Schneiderman, who is leading the effort, subpoenaed the company last year.

U.S. Virgin Islands attorney general Claude Walker issued his own subpoena in March demanding communications between Exxon and nearly 100 academic and nonprofit groups that work on energy and climate policies.

Walker served a separate subpoena against CEI in April. It remains in force in that U.S. territory, but Walker has since withdrawn his attempt to enforce it in the District of Columbia, where CEI is based.

CEI is one of the groups targeted by Healey’s subpoena. Others include prominent conservative nonprofits such as the Heritage Foundation, the American Enterprise Institute, and the Mercatus Center.

Walker and Healey are both members of a coalition of state attorneys general led by Schneiderman that are coordinating legal efforts against Exxon.

Schneiderman hosted former vice president Al Gore and other AGs involved in the effort at a March press conference to announce and promote their joint legal campaign. Exxon says that Healey’s remarks at the event demonstrate the political motives of her, and other AGs’, efforts against the company.

"The states represented here today have long been working hard to sound the alarm, to put smart policies in place, to speed our transition to a clean energy future, and to stop power plants from emitting millions of tons of dangerous global-warming pollution into our air," Healey said at the event.

Those are policy goals, Exxon says, not matters of law enforcement. The company claims Healey and her fellow "Green 20" AGs are trying to advance political and policy objectives through the legal system.

They also claimed in their motion that they have not done business in Massachusetts in recent years, and therefore that Healey does not have standing to pursue legal action against the company.

That legal action is the product of years of collaboration between attorneys general and activists frustrated at the lack of federal policymaking aimed at restricting the production and consumption of fossil fuels.

Documents obtained through open records requests show that Schneiderman, Healey, and other AGs were coordinating behind the scenes with activist groups such as the Union of Concerned Scientists in crafting their anti-Exxon legal strategy.

That group also counseled a group of academics behind a letter to President Barack Obama and attorney general Loretta Lynch asking them to pursue civil racketeering charges against oil companies and policy groups to which they have donated.

In emails to professors at George Mason University leading that effort, UCS advised against pursuing federal charges under the Racketeering Influenced and Corrupt Organizations Act. Instead, the group suggested enlisting state-level law enforcement officials.

Exxon’s injunction request came just two days after Republican members of Congress sent a letter to Lynch, who has referred the question of RICO prosecution to the FBI, to "express our deep concern" about the legal campaign against Exxon and conservative energy policy advocates.

"It is not the role of law enforcement officials to address perceived shortcomings in our legislative process by using their investigative and prosecutorial powers to bully private entities into compliance with their preferred policies," the congressmen wrote.

"The [state] attorneys general may indeed hold strong views on [climate change], and they might consider dissenting views poorly reasoned; but that does not justify using the tools of law enforcement as just another means of advancing their side of a policy debate."