The Boston Globe | Op-Ed | October 28, 2019
Just as New York state kicked off a politically motivated trial against ExxonMobil, along comes Massachusetts Attorney General Maura Healey with a similar claim against the energy giant filed on Thursday in Suffolk Superior Court.
The New York and Massachusetts attorneys general seek damages from ExxonMobil because, well, climate change.
ExxonMobil, of course, produces oil and gas — the emissions from which contribute to a changing climate. But, much as it may peeve climate activists, the production of oil that powers our cars and heats our homes and offices is not yet illegal in the United States.
So why is ExxonMobil on trial? Although a massive multiyear investigation by disgraced former New York attorney general Eric Schneiderman revealed no evidence that ExxonMobil committed corporate malfeasance, Schneiderman’s successors have latched onto a novel legal theory they hope will bring the energy giant to its knees.
Their contention is that ExxonMobil misled investors about the possible impact that future climate change regulations might have on its finances. The case is brought pursuant to an obscure New York law that does not require prosecutors to prove either ill intent or actual harm.
Healey’s case is based on similar assertions that the company made materially false and misleading claims to investors in violation of the Massachusetts Consumer Protection Act.
In short, prosecutors say ExxonMobil should pay the government unspecified monetary damages because it used one set of metrics in its public disclosures and another for internal purposes. Never mind that there exists no uniform accepted method of calculating potential business costs of new climate policies. Never mind that ExxonMobil disclosed its risk assessments to investors. Never mind that the Securities and Exchange Commission reviewed the company’s disclosures and found no basis for legal action.
Never mind all that. The New York and Massachusetts attorneys general are moving full speed ahead, attacking ExxonMobil’s economic modeling and accounting practices in an attempt to confuse state courts into awarding damages.
Democratic politicians in Massachusetts and New York are not the only government entities seeking to punish Big Oil for the public problem of climate change. A number of cities and counties have also filed climate claims against energy companies.
The state and local suits are the by-product of a 2012 summit in La Jolla, Calif., where activists cooked up a scheme to regulate energy and generate cash windfalls through litigation. Put simply, the goal of the campaign, hatched in La Jolla, is to “establish in [the] public’s mind that Exxon is a corrupt institution that has pushed humanity (and all creation) toward climate chaos and grave harm.”
Activists openly admit that the point of such climate lawsuits is to make the oil and gas industry “less competitive with wind, solar and other renewable energy sources and thus accelerat[e] the transition to a clean-energy economy.”
Thankfully, some judges still have some respect for the separation of powers. In 2018, a federal court in California threw out a lawsuit by the cities of San Francisco and Oakland that sought monetary damages from oil companies for the effects of climate change. Judge William Alsup acknowledged the scientific consensus that fossil fuels have “materially” accelerated climate change, but he held that the cities could not prove the companies created an unauthorized public nuisance.
“Our industrial revolution and the development of our modern world has literally been fueled by oil and coal,” Alsup wrote, and it is the job of the legislative and executive branches of government — not the courts — to “balance the social utility against the gravity of the anticipated harm” of climate change.
A federal court in Manhattan likewise dismissed nuisance claims by New York City on the grounds that federal regulation of greenhouse gas emissions by the Clean Air Act preempts common-law nuisance claims. In other words, Congress is the appropriate place to set climate policy. Not the courts.
Sadly, these rulings haven’t stopped politicians in Rhode Island from pursuing frivolous public nuisance claims.
Nor have they discouraged the attorneys general of New York and Massachusetts from advancing intellectually dishonest new theories to legally harass and extort the energy companies.
These state cases should also fail. But that won’t stop hypocritical politicians, all of whom use gasoline to get them to their campaign fund-raisers, from continuing their coordinated campaign against the companies that power our world.
Jennifer C. Braceras is director of Independent Women’s Law Center.