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With wildfires across the West and sea level rise threatening coastal communities, ExxonMobil should not be surprised that it finds its record on climate change under investigation, lawyers for Massachusetts Attorney General Maura Healey said in a new court filing.
"Where governments are facing threats from climate change that endanger their residents and may cost billions of public dollars to address, it follows that some are actively seeking to investigate or take action against those fossil fuel companies, like Exxon, that are widely recognized to be responsible for a major share of the world's carbon dioxide pollution," the lawyers wrote.
Healey and New York Attorney General Eric Schneiderman have been pursuing investigations for more than two years into how much of what Exxon knew about climate change risks was disclosed to investors and consumers. The oil giant has been fighting in federal court to block those investigations since June 2016.
"It would indeed be unusual if, given these risks and Exxon's and others' alleged roles in deliberately misrepresenting them over the years, state and local governments were not considering and pursuing investigations and legal actions," Healey's lawyers wrote in a 13-page document filed in New York federal court on Friday.
Such scrutiny is especially warranted, they said, because Exxon's own internal documents show that the company knew the burning of fossil fuels had the potential to cause "catastrophic" climate change and that Exxon may have misled the public, including consumers and investors, about what it knew.
Exxon Argues Freedom of Speech
This was the latest volley in a court battle that Exxon launched nearly two years ago to try to shut down the states' fraud investigations.
Schneiderman and Healey responded Friday that neither claim has merit.
Schneiderman, in a separate response, wrote that Exxon has not come close to articulating "a coherent, let alone cognizable," reason why it should escape investigation.
Could the Judge Be Close to Ruling?
Judge Valerie E. Caproni of the federal district court in New York ordered this latest round of written arguments from both sides.
The case landed on Caproni's calendar nearly a year ago after a Texas judge ruled New York was the proper jurisdiction but not before questioning the motives of Healey and Schneiderman. Caproni has expressed skepticism of Exxon's motives.
The nearly two-year court battle, which has spawned thousands of pages of briefs and exhibits, is not unusual considering how much is at stake, said Tom McGarity, a University of Texas law professor who has been following the proceedings.
If the judge doesn't request more briefings in the next few weeks, that may be a sign that she's close to issuing a ruling, he said.
A Road Map for Future Court Cases
Reading the judicial tea leaves is especially difficult in this case, though, because it's unique, said Pat Parenteau, a professor of environmental law at the Vermont Law School.
First there are the novel legal theories being employed by the attorneys general that a major corporation can be held liable for deceiving the public regarding environmental issues of global importance, Parenteau said.
Then there is the consideration of how this case could become a roadmap for future litigation.
In addition to the state investigations, Exxon and other fossil fuel companies are facing civil lawsuits by coastal communities in California over the effects of climate change, and New York City filed a similar lawsuit last week. Exxon has started pushing back on those, as well, using a Texas court and similar arguments about conspiracies and freedom of speech.
"This judge is going to take her time," Parenteau said. "She has to realize how high-profile this case is and how hard it's been argued, and that her ruling will be looked at closely now and into the future."