Escalating Battle Over Exxon Investigation Subpoenas Could End Up in Court

As state attorneys general of N.Y. and Mass. bristle at Rep. Lamar Smith's subpeonas, the legal stakes get higher as the process becomes even more political.

Massachusetts Attorney General Maura Healey has said she will defy Rep. Lamar Smith's subpoena
Massachusetts Attorney General Maura Healey has said she will defy Rep. Lamar Smith's subpoena about her state's investigation of Exxon's climate history. Credit: City Year Boston, via Flickr

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Within hours of being served a subpoena by the head of the House Science Committee last week seeking information on her investigation of ExxonMobil, Massachusetts Attorney General Maura Healey defiantly said she would not comply with the subpoena.  

She has not budged on that position since and has no intention of doing so, according to her spokeswoman Chloe Gotsis.

Her defiant response was the latest peak in a simmering political and legal dispute over the investigation of the oil giant for potential climate fraud. It has been led on one side by Rep. Lamar Smith, the Republican chair of the science committee, and has raised questions about Smith’s use of subpoenas for what his critics see as a politically motivated defense of the largest corporation in his state.

And as Healey and the other state attorney general served, New York’s Eric Schneiderman, have responded by vehemently defending their right to investigate, the dispute may be destined to land in a federal court. There, they could potentially face a contempt citation.

But it’s a long, legal and political road to that courtroom, legal experts say.

Healey and Schneiderman, along with eight nongovernmental advocacy groups, were issued the subpoenas last week. Smith set July 27 as the deadline to turn over documents concerning their discussions of Exxon, climate change, and the ongoing investigations of the oil giant.

Healy has already made her stance clear, while Schneiderman’s office has said it is still considering its response. When asked at a press conference Tuesday to clarify what he’ll do, Schneiderman said, “This is an effort to distract and divert us from our path. We will not be distracted, and we will not be diverted.” Many of the nongovernmental organizations, meanwhile, say they are consulting attorneys before deciding whether to obey the subpoena.

Yet since May, each of the organizations as well as Schneiderman and Healey have refused repeated requests by Smith to surrender documents, suggesting they all will balk at complying with the subpoena.

That adversarial stalemate also raises the possibility that the attorneys general and organizations will go on the offensive. They could take the fight to Smith by going to court to have the subpoenas dismissed, a tactic similar to what Exxon is using by trying to block a Massachusetts subpoena in federal court in Texas.

“There are a number of intriguing scenarios that could be played out,” said Daniel Riesel, a former federal prosecutor now in private practice in New York who specializes in environmental issues.

Smith, who did not respond to a request for comment, served the subpoenas July 13 after the attorneys general and advocacy groups spurned three earlier requests to voluntarily turn over records.

In May, 13 Republican members of the committee sent letters to 17 state attorneys general and eight environmental groups and nonprofits. They demanded thousands of records on whether the groups and the state attorneys general worked together in coordinating probes of Exxon or other fossil fuel companies.

New York and Massachusetts state attorneys general have issued subpoenas as part of probes into whether Exxon misled the public and investors about what it knew about the dangers of climate change decades ago, and whether the company disclosed that information to investors properly.

Smith said his investigation is calculated to protect the First Amendment rights of academic institutions, scientists and companies engaged in climate research. His argument is that the attorneys general investigations and the collaboration by the nongovernmental groups amount to an attempt to silence alternative views of climate change.

The subpoena to the nongovernmental organizations seeks documents and communications related to dealings with any attorneys general or eight advocacy organizations. It specifically seeks records “relating to the investigation, subpoenas duces tecum, or potential prosecution of companies, nonprofit organizations, scientists, or other individuals related to the issue of climate change.”

Smith’s subpoena to the New York and Massachusetts attorneys general demands similar information but goes deeper by seeking records related to any interaction with various federal agencies, including the Department of Justice, the Environmental Protection Agency or the Executive Office of the President.

No matter which side goes on the offensive, the matter likely will end up in front of a judge, said Robert Collings, a former Environmental Protection Agency attorney now in private practice in Philadelphia who has represented clients in Congressional hearings.

“I don’t see the committee ordering the Sergeant at Arms to make arrests of the AGs or any of the NGOs for not complying,” Collings said.

That leaves Smith with the option of either negotiating compliance or seeking contempt citations, Collings said. Then politics will really kick in.

To get contempt citations, Smith will have to get a majority of the 39-member Science, Space, and Technology Committee—made up of 22 Republicans and 17 Democrats—to recommend that Congress issue the citation.

Congress would then have to approve the contempt citation.

“Because it becomes a political process, there is nothing that’s a given,” Collings said.

The path to winning a contempt case against the attorneys general is much steeper than against the nongovernmental organizations, Collings said.

Healey and Schneiderman could argue they are exercising their powers as law enforcement officers employing state laws to investigate Exxon, he said.  It would be a high bar to convince a judge to allow Congress to interfere with that right, Collings said.

The nongovernmental organizations can’t make that argument and would have to build a case that says disclosing their cooperation with the attorneys general would have a chilling effect on citizen assistance to law enforcement, he said.

Another tactic Collings said he foresees Smith employing if he decides to ratchet up the heat is to single out what he thinks is the most vulnerable of the nongovernmental agencies and attack that one.

“They may not have the resources to fight,” he said. “He may seek the weakest link to try to force compliance and then use that to leverage compliance from the others.”

But no matter the strategy employed by Smith, the Texas Republican with a history of climate denial will lose some control.

“Along the way, there certainly will be a test of the political will to see this through,” Collings said. “It will no longer be the wish of Mr. Smith, it has to be the desire of Congress.”

ICN reporter Nicholas Kusnetz contributed to this report.