In her long-running battle to bring ExxonMobil to heel, state Attorney General (and one-time professional basketball player) Maura Healey has chalked up another point on the scoreboard. Last Friday’s ruling by the Massachusetts Supreme Judicial Court confirmed that her office does, in fact, have the authority to investigate the energy behemoth as to what and when it knew about its products contributing to climate change. She and her colleague in the battle, New York Attorney General Eric Schneiderman, could be considered the star forwards of a group of state attorneys general known as the “Green 20,” who are pursuing records from the corporation in an ongoing attempt to make them civilly accountable for man-made climate change.
The action by the attorneys general takes the legal tack that Exxon Mobil, by deliberately concealing for at least three decades data uncovered by its own scientists that its products contributed to climate change, committed fraud upon its own stockholders. ExxonMobil responded by suing the attorney general’s office both in state and federal courts. Friday’s ruling dismisses the company’s case in Massachusetts, as was the federal case in New York.
The philosophical argument behind mounting this legal offensive is simple: fossil-fuel energy companies have made enormous profits from their products, but the climatic consequences have left cities, states and nations having to pay for the damage wrought by rising sea levels, reduced crop yields and any number of other primary, secondary and tertiary effects of increased greenhouse gases.
ExxonMobil has brought all of its influence to bear to protect itself: Not once, but twice over the past two years, the House Science Committee, chaired by Representative Lamar Smith — a vociferous climate change-denier representing a district in ExxonMobil’s home state of Texas — has attempted to subpoena records from the AGs. The subpoenas hide behind the First Amendment, claiming the attorneys general seek “to deprive companies, nonprofit organizations, scientists and scholars of their First Amendment rights.” However, as the ranking minority member of the panel, Democrat Eddie Bernice Johnson, also of Texas, said, “[The subpoenas] are symbolic of the majority’s anti-science agenda and their efforts to shield oil, gas and mining interests, such as ExxonMobil, from legitimate oversight and public accountability.” Both times, the subpoenas were ignored based on the assertion that Congress has no right to subpoena documents from the states.
The string of victories against ExxonMobil, however, should not be considered conclusive. In fact, the latest call by the SJC is only another step in a protracted war. Ms. Healey’s office has not yet heard from the corporation’s legal team, but considering the possible damages at stake, appeals are expected to be filed in both the U.S. Supreme Court (stemming from the Massachusetts SJC’s ruling) and in the Second Circuit Court of Appeals in New York City (contesting the federal court ruling).
Should the attorneys general eventually prevail, they will be able to proceed with discovery, which means sifting through corporate files to determine what ExxonMobil knew, whether there was deliberate intent to hide a danger from the public and/or whether it sought to maintain an advantage as it confronted competition from alternate sources, such as wind and solar. The corporation can be expected to argue that even if it knew that climate change was occurring it could not anticipate its impact, and that the AGs cannot put a price tag on that impact.
The attorneys general show no sign of relenting in their offensive. While a legal outcome is far from certain, their determination should send a message to ExxonMobil and others that in the future, not only will they will have to pay attention to their bottom lines, but also to their behavior as corporate citizens.