Exxon Widens Climate Battle, May Depose 17 State AGs Over Investigations

Court ruling in Texas, company says, opens the opportunity to inquire about the motivations of all states investigating the oil giant for potential climate fraud.

An attorney for ExxonMobil told a New York judge that the company is working on deposing at least 17 attorneys general and their staffs who joined with New York Attorney General Eric Schneiderman under the banner of AGs United for Clean Power. Credit: ExxonMobil Chairman and CEO Rex Tillerson/Reuters Media Express

Attorneys for ExxonMobil have revealed a plan to ratchet up pressure on state attorneys general who have vowed to hold Exxon and fossil fuel companies accountable for their conduct on climate change.

Exxon attorney Theodore Wells told a New York judge that the company is working on deposing at least 17 attorneys general and their staffs who earlier this year joined with New York Attorney General Eric Schneiderman under the banner of AGs United for Clean Power.  

By pulling those attorneys general into the fight, Exxon could trigger years of legal wrangling over disclosure of its understanding of climate risks.

That plan came to light during a hearing in Exxon's battle with Schneiderman over his office's investigation into whether the company violated consumer fraud laws in connection with climate change-related disclosures.

Massachusetts Attorney General Maura Healey, who is locked in a court battle with Exxon in Texas over her investigation of the company, said Exxon's legal strategy is "calculated to initiate no-holds-barred discovery" against the attorneys general, according to a motion her office filed in the Texas case.

Neither an Exxon spokesman nor company lawyers returned calls for comment.

This recent round of saber rattling is the latest in a year of escalation since the New York attorney general's office hit Exxon with a subpoena for records spanning four decades of Exxon's research findings and communications about climate change. The subpoena came in the wake of reporting, including an InsideClimate News investigative series, that the company was warned by its own researchers in the late 1970s about the possible catastrophic consequences of climate change and then led efforts to block solutions.

Schneiderman was first to open an investigation under the state's consumer protection laws. Massachusetts' Healey and Claude Walker, attorney general of the U.S. Virgin Islands, followed, although Walker has since suspended his investigation.

The three are part of a coalition announced  by Schneiderman during a news conference in  March. Members of the coalition—known as the Green 17—also include the attorneys general from California, Maryland, Vermont, Oregon and nine other states and the District of Columbia.

Although until recently Exxon had been cooperating with New York investigators, turning over 1.2 million pages of records, it now seeks to block the investigation through the same Texas court where it is battling Massachusetts.
 
Now Exxon is using a discovery order issued by the judge overseeing the Texas case as a weapon in a possible wide-ranging attack on its opponents.
 
In a ruling last month, Judge Ed Kinkeade said Healey may have acted in "bad faith" when she issued a criminal investigation demand, an order  similar to a subpoena, to the oil company for 30 years of documents.
 
To allow Exxon the opportunity to explore whether Healy was prejudiced against the company, Kinkeade granted the company's request for the discovery order. 
 
That appeared to set the stage for an extensive review of Healey's internal records associated with her investigation.
 
But Wells, the Exxon lawyer, told a New York judge last month that the company was interpreting Kinkade's order more broadly.
 
"Right now we have the right, as we read the order, to take the deposition of both the Mass. AG, people and really everybody, as we read it, that was at that March 29th conference," Wells said, according to a transcript of the hearing.
 
"We are going to try to take depositions of the state AGs."
 
Wells was speaking during a hearing to contest a subpoena Schneiderman's office issued to the company's auditors, PricewaterhouseCoopers (PWC), for records related PWC's review of Exxon's books.
 
Exxon wanted to prohibit disclosure of the documents based on auditor-client privilege, but the New York judge ordered PWC to comply with the subpoena. The decision has been appealed by Exxon and PWC.
 
So far Exxon has only targeted the New York and Massachusetts attorneys general and their staffs, but Healey predicts other state attorneys general will "vigorously object" if Exxon uses the Texas ruling to go on a wider fishing expedition.
 
If the court endorses Exxon's effort, Healey said in her latest motion in Texas court, it will likely achieve "Exxon's goal of putting off as long as possible any investigation into the critically important question of whether Exxon broke the law and deceived consumers and investors about the role of its products in causing climate change."
 
The company has also instructed non-governmental groups, including the Union of Concerned Scientists, to keep communications related to climate change they have had with the attorneys generals coalition, other environmental groups, former Vice President Al Gore and the media.
 
"We believe that you may have documents that are relevant to pending and potential litigation involving the investigations of ExxonMobil, including but not limited to materials concerning the events and communications leading up to the investigations," according to the letter to the Union of Concerned Scientists.

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