Mass AG, ExxonMobil locked in titanic courtroom battle
This story was first published at CleanTechnica.
ExxonMobil has been sued by the attorneys general of both Massachusetts and New York, who claim the company knew 40 years ago that burning fossil fuels would lead to significant climate change but engaged in a concerted campaign of lies, half truths, and deception to cover up what it knew. The best defense is a good offense. ExxonMobil has hit back with a furious array of legal assaults on several fronts.
Keep in mind that ExxonMobil has access to flotillas of Gucci-shod attorneys. Attorneys general have an office full of overworked staffers who make civil servant wages. When you are using people who bill at $5,000 per hour or more, you expect bang for your bucks. If that is the case, ExxonMobil should be very happy with its dream team of legal representatives.
Merchants Of Doubt
The whole thing started with a book entitled Merchants of Doubt by Naomi Oreskes and Erik M. Conway. Published in 2010, it details how powerful interests pay shills posing as scientists to sow doubt about things like the dangers of smoking, acid rain, DDT, and climate change. The book was made into a movie in 2014.
The term “fake news” has gone viral as a result of the recent election, but it has been around for a long time. It is nothing more than a muscular version of the old adage that a lie repeated often enough becomes the truth. What is at the core of such strategies is money. Wealthy individuals and corporations have virtually unlimited powers to propagate lies. If it takes decades for them to have the desired effect, so be it.
For decades, tobacco companies paid for research that supposedly proved there was no link between smoking and lung cancer. Common sense suggested that inhaling millions of puffs of tobacco smoke over a lifetime might not be the wisest thing to do, but the tobacco companies and their prostitutes kept hammering home their message.
Merchants of Doubt alerted the public that the same tactics used by Big Tobacco were later adopted by Big Oil. Proof of this can be seen in the number of fake news stories planted in mainstream media outlets starting last spring when Koch Industries announced a $10 million dollar campaign to promote the benefits of fossil fuels.
Suddenly, so-called op-ed pieces began popping up in the Washington Post, the Wall Street Journal, the Los Angeles Times and dozens of lesser news sources singing the praises of fossil fuels and America’s need to keep drilling and fracking until every molecule of oil and gas has been wrested from the earth’s crust.
The power of money is what the US Supreme Court failed to take into account in its embarrassingly shallow decision in Citizens United. That case should have been more accurately entitled Corporations United. Couched in simplistic terms about how corporations should have the same right to say what is on their mind as ordinary folks, the Court completely overlooked that the man in the street with a megaphone is easily shouted down by a corporate advocate with a 1 gigawatt sound system.
ExxonMobil’s first line of defense was to claim with a straight face that is was not subject to the jurisdiction of the state of Massachusetts because it did no business within the state. Now don’t laugh. Exxon actually went into court and claimed that every Exxon station in Massachusetts was independently owned. Just because they had a bright red EXXON sign out front did not mean they were directly affiliated with ExxonMobil. The company was laughed out of court and rightly so. Score one for Attorney General Maura Healey.
Healey then issued a subpoena demanding ExxonMobil turn over its corporate records for the past 40 years. The AG’s office wanted to see exactly what had been said inside the company’s board room during all that time.
ExxonMobil’s response was novel and worthy of the millions in legal fees it was shelling out. It sued AG Healey in federal court in Texas, claiming that her entire investigation was based on personal bias, not sound investigative policy. It told the court that its right of free speech — the basis for the Citizens United decision — was being infringed. In other words, Exxon Mobil contended in court that it had the right of free speech includes to the right to to tell lies and half truths.
Lawyers for the company told the court in Texas it should be allowed to question Healey to expose her alleged abuse of prosecutorial authority and her personal biases. “The Attorney General has no discretion to misuse her prosecutorial powers to stifle ExxonMobil’s speech in an attempt to place a thumb on the scale of an ongoing policy debate,” they said. US District Court Judge Ed Kinkeade agreed and has ordered Healey to travel to Texas to be examined as to her bona fides.
Notice that ExxonMobil is still relying on the worn out shibboleth that reasonable people can disagree about climate change, despite overwhelming and irrefutable evidence that changes are happening, that human activity is responsible, and that the consequences will have devastating effects on hundreds of millions of people. The company feels its right to earn a profit should take priority over all those considerations.
Massachusetts Court Rules For Healey
That’s not the end of the story. This week Massachusetts Superior Court judge Heidi Brieger denied a request by ExxonMobil’s attorneys to quash a subpoena for 40 years of company records. Those records must now be produced unless an appeals court reverses that decision.
In Oregon, another federal District Court judge has ruled in favor of 21 young plaintiffs who seek to hold the federal government responsible for climate policies that have endangered their health. ExxonMobil and Koch Industries are but two of the powerful corporate interests opposing that litigation. This sets up a potential conflict between two federal circuits courts of appeal.
The Ninth Circuit, which hears appeals from lower federal courts in western states including Oregon, is notoriously liberal. The Fifth Circuit Court, which hears appeals from lower federal courts in the southern tier of states including Texas, is notoriously conservative. There is a strong possibility that both courts could reach opposing decisions if the Exxon case and the Our Children’s Trust case are appealed.
Disputes between circuit courts are decided by the US Supreme Court, whose decisions then become the law of the land. About 5 nanoseconds after Donald Trump’s inauguration, the US Congress will finally fill the vacancy on the Supreme Court left by the death of Antonin Scalia. The nominee will be someone who philosophically is slightly to the right of Attila the Hun. You can see where this is going, can’t you?
At some point, ExxonMobil will pull every legal maneuver and try every trick in the book to get the Massachusetts case removed from state court and transferred to federal court. In the meantime, Maura Healey and her colleagues in the Massachusetts Attorney General’s office now have a court order requiring ExxonMobil to turn over all its records for the past 40 years.
What Is ExxonMobil Hiding?
Healey and the rest of the civilized world know what is in those records — a determined campaign to hide the fact that ExxonMobil executives, including new Secretary of State Rex Tillerson — knew emissions from fossil fuels were a danger to civilization and spent untold millions of dollars on a deliberate campaign to deny it. They will also show that ExxonMobil funded organizations to create fake scientific reports, sow doubts about climate change, and vilify climate scientists like James Hanson who have raised the alarm about global warming.
In the end, those records will show that ExxonMobil put profits ahead of the fate of mankind and willingly subjected billions of people to toxic emissions that threatened their health, shortened their lives, and degraded the earth’s climate to the point that human beings must now consider vacating the planet and moving to Mars to avoid the toxic stew ExxonMobil and other fossil fuel companies have created.
Did Exxon Invent The Hybrid Car?
There is a corollary to this story. There actually was a time when Exxon (before it merged with Mobil) was a leader in the field that would later be known as “cleantech.” In fact, engineers working for Exxon researchers who were part of the company’s ELVECS team may have invented the hybrid car technology that eventually lead to the Toyota Prius.
But one day in the early 1980s, that research program was shut down, never to be restarted. Here’s a suggestion for Attorney General Maura Healey. When you get ExxonMobil’s records — if you ever do — look for notes about the decision to shut down the ELVECS program.
That’s where you will find your smoking gun. That’s where the campaign to deny climate change began. Exposing it to public view will mark the time when what Bill McKibben calls “the most consequential lie in human history” will begin to unravel.