Charles Langston:Exxon Ramps Up Free Speech Argument in Fighting Climate Fraud Investigations

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ExxonMobil turned the volume back up this week in its ongoing fight to block two states’ investigations into what it told investors about climate change risk, asserting once again that its First Amendment rights are being violated by politically motivated efforts to muzzle it.

In a 45-page document filed in federal court in New York, the oil giant continued to denounce New York Attorney General Eric Schneiderman and Massachusetts Attorney General Maura Healey for what it called illegal investigations.

“Attorneys General, acting individually and as members of an unlawful conspiracy, determined that certain speech about climate change presented a barrier to their policy objectives, identified ExxonMobil as one source of that speech, launched investigations based on the thinnest of pretexts to impose costs and burdens on ExxonMobil for having spoken, and hoped their official actions would shift public discourse about climate policy,” Exxon’s lawyers wrote.

Healey and Schneiderman are challenging Exxon’s demand for a halt to their investigations into how much of what Exxon knew about climate change was disclosed to shareholders and consumers.

The two attorneys general have consistently maintained they are not trying to impose their will on Exxon in regard to climate change, but rather are exercising their power to protect their constituents from fraud. They have until Jan. 19 to respond to Exxon’s latest filing.

U.S. District Court Judge Valerie E. Caproni ordered written arguments from both sides late last year, signaling that she may be close to ruling on Exxon’s request.

Exxon, in its latest filing, repeated its longstanding arguments that Schneiderman’s and Healey’s investigations were knee-jerk reactions to an investigative series of articles published by InsideClimate News and later the Los Angeles Times. The investigations were based on Exxon’s own internal documents and interviews with scientists who worked for the company when it was studying the risks of climate change in the 1970s and 1980s and who warned executives of the consequences.

“The ease with which those articles are debunked unmasks them as flimsy pretexts incapable of justifying an unlawful investigation,” Exxon’s lawyers wrote in the document. InsideClimate News won numerous journalism awards for its series and was named a finalist for the Pulitzer Prize for public service.

Exxon says the company’s internal knowledge of global warming was well within the mainstream thought on the issue at the time. It also claims that the “contours” of global warming “remain unsettled even today.”

Last year, the company’s shareholders voted by 62 percent to demand the oil giant annually report on climate risk, despite Exxon’s opposition to the request. In December, Exxon relented to investor pressure and told the Securities and Exchange Commission that it would strengthen its analysis and disclosure of the risks its core oil business faces from climate change and from government efforts to rein in carbon dioxide emissions from fossil fuels.  

Exxon has been in federal court attempting to shut down the state investigations since June 2016, first fighting Massachusetts’s attorney general and later New York’s.