A state judge in Texas has left the door open for ExxonMobil to seek deposition testimony from many of the key players who are the driving force behind climate change lawsuits from local governments like San Francisco, Oakland, and New York City.
Exxon is claiming it is the target of conspiracies by individuals and government officials who want to gain access to the energy giant’s internal documents, and regulate the company’s speech, especially as it relates to climate change and fossil fuels.
San Francisco, Oakland, New York City, and a handful of other smaller governments alleged in federal court that energy producers like Exxon, BP, and Chevron knew as early as the 1980s that their product contributed to climate change, but then ignored those conclusions in favor of a public relations campaign that would sow doubt about potential environmental harm.
Exxon's court filing in Texas, where it is headquartered, claims "the allegations in the [original lawsuits] are not honestly held and were not made in good faith," and further stated that a "collection of special interests and opportunistic politicians are abusing law enforcement authority and legal process to impose their viewpoint on climate change."
The legal moves by the oil giant are not currently a lawsuit, however, and are only a petition for "pre-suit depositions." A spokesman with the City of San Francisco's city attorney called the developments a "smokescreen."
Judge R.H. Wallace, Jr. issued "Findings of Fact" on the case last week that appeared to acknowledged many key claims by the company. In doing so, Judge Wallace confirmed the court had jurisdiction over the matter, meaning some of the primary movers in the federal complaints from places like San Francisco could be deposed. But at the same time, he foreclosed access to seven other individuals Exxon had hoped to depose.
The timeline for the conspiracy alleged by Exxon dates back to 2012, when attorney and environmental activist Matt Pawa was a featured speaker at a conference on "climate accountability" in La Jolla, Calif.
Exxon is painting an outline by which they say Pawa, who is also counsel on the litigation being brought by San Francisco and Oakland, spearheaded the litigation campaign for political reasons, and not because of "a bona fide belief in any tortious conduct by the defendants or actual damage to their jurisdictions."
In Judge Wallace's filing, he referenced the 2012 La Jolla conference, writing:
- During the conference, participants discussed strategies to "[w]in [a]ccess to [i]nternal [d]ocuments" of energy companies, like ExxonMobil, that could be used to obtain leverage over these companies. The conference participants concluded that using law enforcement powers and civil litigation to "maintain pressure on the industry that could eventually lead to its support for legislative and regulatory responses to global warming." One commentator observed, "Even if your ultimate goal might be to shut down a company, you still might be wise to start out by asking for compensation for injured parties."
- At the conference, the attendees also concluded that "a single sympathetic state attorney general might have substantial success in bringing key internal documents to light."
New York Attorney General Eric Schneiderman held a press conference in March 2016 from his offices with several other Democratic attorneys general announcing they would be investigating ExxonMobil. Former Vice President Al Gore, an Academy Award winner for his documentary on climate change, was also in attendance and feted by Schneiderman.
Matt Pawa was not on the stage. However, emails obtained by the free-market think tank E&E Legal via the Vermont Public Records Law show he was involved with the day's press conference.
After being contacted by a reporter with the Wall Street Journal, Pawa emailed the spokesperson to AG Schneiderman's office asking how, or if, he should respond.
"My ask is if you speak to a reporter, to not confirm that you attended or otherwise discuss the event," Lem Srolovic, Schneiderman's spokesperson, responded.
Judge Wallace wrote that his court had jurisdiction to allow the depositions because Pawa had "[instigated] state attorneys general to commence investigations of ExxonMobil in order to obtain documents stored in Texas."
The judge's ruling also referenced a small number of bond offerings issued by the cities, noting that "[w]hile the California municipalities alleged in their complaints against the energy companies that the impact of climate change were knowable, quantifiable, and certain, they told their investors the exact opposite."
"These contradictions raise the question of whether the California municipalities brought these lawsuits for an improper purpose," he wrote.
A spokesman with the city of San Francisco dismissed the developments.
"These proceedings in Texas are simply a smokescreen," said John Coté, communications director for the San Francisco city attorney's office.
"Exxon's attack on the California cities and counties that have sued Big Oil is part of the company's usual playbook," Coté continued. "Exxon similarly sued the attorneys general of Massachusetts and New York after those states launched investigations. A federal judge just dismissed Exxon's case there, finding it was based on ‘extremely thin allegations and speculative inferences.' Here's the bottom line: The oil industry has known about climate change for decades, they knew their products were causing it, and they misled the public about it. No legal shell game in Texas is going to change that."
Coté was referencing a ruling in federal court in which U.S. District Court Judge Valerie Caproni dismissed Exxon's lawsuits against two of the attorneys general for initiating "bad faith" investigations into the company's activities related to climate change research and communications. Caproni dismissed the suit with prejudice, meaning the company cannot try to bring it again.
Requests for comment from Pawa and from Attorney General Schneiderman's office were not returned.