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Exxon Lawsuit Signals the Start of a Big Tobacco-Style Showdown for Oil and Gas

The oil and gas giant has filed a lawsuit to keep lawmakers and environmentalists in the dark.

by Sarah Emerson
Apr 19 2016, 1:00pm

ExxonMobil's offshore drilling platform "Heritage." Image: Flickr/Glenn Beltz

Exxon (now ExxonMobil) is showing signs that it's gearing up for history's largest ever battle over the future of fossil fuels and climate change.

The oil and gas titan has been sowing the seeds of climate change denial since the 1980s, when it and other energy giants created the Global Climate Coalition to aggressively lobby Congress and lawmakers to their side, and away from environmentalists concerned over early evidence of global warming.

As the seeds began to grow, doubt and a fierce anti-science mentality flowered among public opinion. In 2002, the coalition disbanded, explaining that it had "served its purpose by contributing to a new national approach to global warming." Since then, Exxon has funneled hundreds of millions of dollars to powerful climate change denial organizations both through traceable funds and secret "dark money" transactions filtered through veiled third-parties.

But all the while, the corporation has been sitting on a hidden cache of scientific evidence that starkly contradicts the very idea it has fought so hard to snuff out. Evidence, that if brought into the light, could allow Exxon to be tried for criminal violations.

As InsideClimate News revealed last year after an eight month investigation into company documents, Exxon itself had quietly funded some of the first cutting-edge climate research ever conducted, as early as the 1970s.

According to an email from Exxon's former scientific advisor, the company was aware of climate change and CO2's adverse effects by 1981, which was seven years before the issue came into public focus. But when NASA scientist James Hansen brought climate change to the fore in 1988, Exxon was already starting to reverse its position on the validity of the science it helped to put forth.

Now, multiple probes into the energy giant's decades of alleged deceit have blossomed out of the ICN investigation. Most recently, the attorney general of the US Virgin Islands issued a subpoena for nearly 40 years of climate change documents from Exxon through a Washington, DC law firm. Attorney General Claude Walker's push for additional information makes the Virgin Islands the fourth party to launch a legal investigation into the corporation's knowledge of fossil fuel's role in global warming, joining US states New York, California, and Massachusetts.

Exxon attempted to block the subpoena last week by suing over allegations that Walker's request violates the corporation's First and Fifth Amendment constitutional rights, and compels it to present documents that extend beyond the five-year statute of limitations.

While some of the technicalities around Exxon's stand-off are easily lost in the weeds, here's what you need to know about why the corporation's legal flexing is so significant.

Who is the group leading the investigation into Exxon's alleged criminal activity?

Earlier this year, a coalition of 17 state attorneys general formed an alliance to press Exxon on its knowledge of climate science and the negative impacts of fossil fuel burning. The group includes the top legal authorities from California, Connecticut, Washington, DC, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Mexico, Oregon, Rhode Island, Virginia, Vermont, Washington, and the US Virgin Islands. All of the attorneys general are Democrats.

Every member has vowed to open an investigation into whether Exxon knowingly deceived shareholders and the public for decades about the catastrophic consequences of anthropogenic climate change. What the multistate effort hopes to find is evidence of fraud on the basis that Exxon allowed the production and consumption of its product with full knowledge of its dangerous effects, and also played a key role in the manufacturing of climate change denial.

In other words, the states' attorneys general believe that Exxon put the environment at risk while knowingly deceiving people by manufacturing climate science doubt, and profiting off that manufactured disbelief.

"Every attorney general does work on fraud cases, and we are pursuing this as we would any other fraud matter. You have to tell the truth, you can't make misrepresentations of the kinds we've seen here," said New York Attorney General Eric Schneiderman. "The scope of the problem we are facing, the size of the corporate entities and their alliances, the trade associations and other groups, is massive and it requires a multistate effort."

The coalition has been supported by former vice president Al Gore, who remarked that Exxon and other climate change denial lobbyists "are likely now, finally, at long last, to be held to account."

Each state's laws and investigative authorities are different, but through their joint probes, the attorneys general hope to create a nexus between Exxon's alleged deception and the damages that have been inflicted upon consumers.

What kinds of documents would Exxon have to hand over according to the subpoena?

According to Attorney General Walker's subpoena, Exxon is required to submit documents sent from or received by Exxon regarding climate change and its impacts; communications regarding the likelihood that Exxon products played a role in climate change; studies, research, and reviews published by Exxon or any of the third-parties acting on its behalf; information regarding Exxon sales and revenue that would have been impacted by acting on climate change; and meetings with or funding of third-parties.

If compelled to hand over 100 percent of the requested material, Exxon would be sharing nearly 40 years of memos, emails, studies, speeches, publications, and strategy reports, dating back to January 1, 1977.

Attorney General Walker has also included in his subpoena all communications regarding last year's investigation into Exxon's climate science funding conducted by ICN and the Los Angeles Times.

In his subpoena, what is Attorney General Walker accusing Exxon of having done?

Attorney General Walker has accused Exxon of violating two state laws under the Virgin Islands' anti-racketeering legislation called the "Baby RICO" statute.

As presented in the subpoena, Exxon is suspected to have engaged in, or be engaging in, "conduct misrepresenting its knowledge of the likelihood that its products and activities have contributed and are continuing to contribute to Climate Change" in order to defraud the government and consumers by obtaining money under false pretenses and conspiring to do so.

The "Baby RICO" statute that Walker has invoked was adopted by the Virgin Islands and other states and territories after Congress enacted the Racketeer Influenced and Corrupt Organizations Act (RICO) in 1970, which it created to try Mafia enterprises as a whole, rather than singular cases of lesser criminal associates. What the federal law allows prosecutors to do is build cases from lots of broader evidence.

The Virgin Islands' RICO statute, while not identical to the federal law that preceded it, can potentially be even more broad sweeping. In order for federal prosecutors to use the RICO Act, they must first prove reasonable suspicion that patterns of racketeering activity exist, and that the defendant obtained money through false pretenses.

Last year, New York Attorney General Eric Schneiderman also issued a subpoena for similar documents—with which Exxon has complied—but did so using the state's powerful securities fraud law called the Martin Act. Some legal experts believe that Attorney General Schneiderman is in a much better position to subpoena Exxon for evidence than Walker and other attorneys general in the coalition.

"I don't think the Virgin Island statutes are nearly as comprehensive. They don't speak directly to the subpoena power given to the attorney general of New York. I have some doubts about what the Virgin Islands attorney general is doing," Pat Parenteau, a professor of environmental law at the Vermont Law School, told me.

According to ICN, this marks the first time "a prosecutor has cited racketeering law to probe Exxon over its longtime denial of climate change and its products' role in it."

Several influential prosecutors, and even Al Gore, have encouraged the Department of Justice (DOJ) to launch an investigation into Exxon over potential violations of the RICO Act.

How is Exxon using existing laws to push back against Attorney General Walker?

Exxon is not about to hand over thousands of potentially confidential documents without a legal fight. In their lawsuit against Walker and the Washington, DC firm that issued the subpoena, Exxon alleges the request for information violates its constitutional rights.

The corporation's complaint, which was filed in its homebase of Texas, accuses Walker of infringing on its First Amendment right to freedom of speech by asking it to participate in the national discussion around its alleged fraud by deception. Exxon is allowed to make this claim because of the Supreme Court's 2010 ruling in favor of corporate personhood. Invoking the First Amendment may sit well in Texas, and an early ruling that Walker's subpoena is baseless due to an infringement of corporate free speech would be an undue win for Exxon, according to Parenteau.

Exxon has also cited the Fifth Amendment in its suit, which exists to protect people from being forced to incriminate themselves but does not generally apply to corporations, and would likely not be a persuasive defense against Walker's subpoena.

Additionally, the corporation claims the probe requests documents that extend past a five-year statute of limitations. While the statute of limitations in territories such as the Virgin Islands is more nuanced than it is in US states, if upheld, it could drastically curtail the volume of potential evidence that Exxon is required to submit.

Walker's subpoena, the lawsuit also alleges, "constitutes an abuse of process, in violation of common law," because the documents requested, Exxon's lawyers claim, appear to target individuals who hold policy viewpoints that stand in direct opposition to those supported by the attorney general.

"The First Amendment does not shield any company from being investigated for fraud," said Walker in a statement.

What this complaint suggests is that Exxon is posturing itself for future inquiries into its alleged knowledge of anthropogenic climate change and fraudulent behavior. While the corporation may be forced to comply with Walker's subpoena, it could still be years before any battle with Exxon escalates to a lawsuit. The risk in pushing too hard, said Parenteau, would be courts ruling in Exxon's favor over misuse of criminal law or political retaliation.

Will the documents subpoenaed by state attorneys general become public?

When, and whether or not, the Exxon documents acquired through current and future subpoenas become available to the public depends entirely on how the offices of the attorneys general negotiate their exchange. Some pieces of evidence may very well be confidential under the Privacy Act or heavily redacted, but Exxon can be expected to hand over material with the stipulation that it never becomes public.

Has this type of large-scale, corporate investigation ever happened before?

The main reason why legislators and environmentalists have encouraged the DOJ to use the RICO Act against Exxon is because the powerful law was previously invoked to bring down the tobacco industry in the 1990s.

In the United States v. Philip Morris, the DOJ successfully sued the country's most influential tobacco companies over fraudulent and unlawful conduct. The companies were held liable for violating RICO by deliberately concealing the health risks of smoking and marketing their products to the public.

"In the tobacco case, people were harmed by false beliefs propagated by the companies and were tricked into dangerous behavior," former state attorney general Sen. Sheldon Whitehouse told ICN. "In the case of climate change, there is the general harm, the damage that carbon is wreaking, and the cost to the government of flooding, wildfires and other disasters."

But if the case against Exxon is anything like the one involving the tobacco industry, it would also require strong bipartisan support among a class of politicians who have strong ties to the oil industry.

Ultimately, there are various legal options that prosecutors could pursue to venture deeper into Exxon's decades of darkness. Investigators have only just begun to dig, but look at how much they've been able to uncover so far.