Exxon's Opposition to Climate Fraud Probes Gets Less Sympathy From NY Judge

After case is transferred from Texas, judge skeptical of Exxon's appeal to stop NY and Mass. investigations, as company gets support of 11 GOP attorneys general.

Exxon has been under investigation by the attorneys general of New York and Massachusetts for more than a year. The probes focus on whether Exxon misled the public and investors about climate change. Credit: REUTERS/Jim Young

A New York judge has signaled to lawyers for ExxonMobil that she is skeptical of their arguments to derail climate fraud investigations by the attorneys general of New York and Massachusetts. Exxon's position had won the support of a judge in Texas whose rulings were heavily weighted in its favor.

U.S. District Court Judge Valerie E. Caproni made her observations during a hearing Friday, when she told Exxon's lawyers she disagrees with comments made by Judge Ed Kinkeade earlier this month when he transferred the case from Texas to New York.

Exxon had sought an injunction in Texas to halt climate change investigations by New York Attorney General Eric Schneiderman and Massachusetts Attorney General Maura Healey. There, Kinkeade's rulings mostly went in Exxon's favor, including a controversial order that would have allowed lawyers for Exxon to depose Healey and Schneiderman.   

In his last official action on the case, Kinkeade expressed skepticism about the two states' investigations into whether the company's climate record amounted to fraud.

"I have a different view of this case than Judge Kinkeade," Caproni said after listening to Exxon's lawyers explain why they think their case against the attorneys general should proceed.

In his decision earlier this month to send the case to New York, Kinkeade appeared to side with Exxon and questioned whether the investigations were intended to "squelch public discourse by a private company that may not toe the same line as these two attorneys general."

Kinkeade, who was appointed to the bench by President George W. Bush, ultimately agreed to transfer the case to New York because the heart of Exxon's lawsuit centered on a news conference a year ago hosted by Schneiderman. It was there that Schneiderman announced the formation of a coalition of attorneys general intent on holding Exxon and the fossil fuel industry accountable for climate change.

During the hour-long hearing before Caproni, who was appointed by President Barack Obama, lawyers argued over whether Exxon's request for an injunction even belonged in federal court.

Exxon has made the case that the investigations infringe on its constitutional rights, including the First Amendment's guarantee of free speech. The attorneys general said Exxon should be fighting the investigations in state court in New York and Massachusetts.

Caproni set May 19 as the deadline for Schneiderman and Healey to file motions to dismiss the federal case.

Before the hearing concluded, Exxon lawyer Justin Anderson made a final appeal to the judge to allow the company a "narrow discovery" order to bolster its claims that the attorneys general were colluding with non-governmental organizations aligned against Exxon. That request drew a measure of scorn from Caproni.

"Gimme a break," Caproni said. "You were going to depose the attorney general of Massachusetts."

Two days before the hearing, a group of 11 Republican state attorneys general filed a friend of the court brief to Caproni's court in support of Exxon. The brief claimed the two Democratic attorneys general investigating Exxon "falsely presume that the scientific debate regarding climate change is settled." The group of Republicans also accused Schneiderman and Healey of using their investigative power to silence opposing opinions.

The group essentially repeats the same arguments made last year in a friend of the court brief filed in Texas federal court, where Exxon initially sought its injunction.

Exxon has been under investigation by Schneiderman and Healey for more than a year. The probes focus on whether Exxon misled the public and investors about climate change.

The company went to court in Texas last year seeking an injunction barring the two attorneys general from enforcing a New York subpoena and a Massachusetts civil investigative demand. Those notices ordered the company to turn over decades of records related to the company's research on climate change and how that work factored into business decisions.

Ken Paxton, the attorney general of Texas, where Exxon is based, authored the brief that argues Exxon is being attacked by Schneiderman and Healey for expressing opinions that are "unpopular within their office or political constituency."

"No attorney general should abuse the investigative powers of his or her office to censor a particular viewpoint, particularly when it involves issues which are the subject of an ongoing international public policy debate and scientific inquiry," according to the brief. "Regardless of what one believes about global warming and climate change, no one's views should be silenced."

Paxton was joined by the attorneys general of Louisiana, South Carolina, Alabama, Michigan, Arizona, Wisconsin, Nebraska, Oklahoma, Utah and Arkansas.

Schneiderman's office said it will not be bowed by the Republican attorneys general.

"We will continue to pursue our fraud investigation under New York law, despite attempts by Exxon and Big Oil's beneficiaries to delay and distract from the serious issues at hand," Schneiderman spokeswoman Amy Spitalnick said in a written statement.

Healey declined to comment.

While the Republican attorneys general were the first to the New York courthouse with their friend of the court brief, 14 Democratic attorneys general were the first to file a brief last year when the case was in Texas.

They defended the Exxon investigation, arguing their offices have the responsibility to protect citizens from fraud.

"Such an injunction would undermine the fundamental authority of state Attorneys General to investigate and prevent consumer and investor harms in their States," according to the brief filed in the federal court of the Northern District of Texas.

The Democratic attorneys general have not yet filed a friend of the court brief in New York.

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