When Attorney General Maura Healey and other law enforcement officials announced last spring that they were pursuing fraud investigations against the world’s largest oil company, ExxonMobil, former vice president Al Gore called it “the most hopeful step I can remember in a long time” to combat climate change.
“Fossil fuel companies that deceived investors and consumers about the dangers of climate change should be, must be, held accountable,” Healey said at the time. “We can all see today the troubling disconnect between what Exxon knew, what industry folks knew, and what the company and industry chose to share with investors and with the American public.”
Now those words are being used against Healey, in a lawsuit filed by ExxonMobil. In a stunning offense-is-the-best-defense legal strategy, the company is trying to flip a politically loaded case on its head, saying the Massachusetts Democrat’s investigation violates their free speech and other constitutional rights, and that her comments demonstrate she had judged the company guilty before even conducting an investigation.
In its legal battle to shut down her investigation, ExxonMobil has demanded that she testify about her efforts and provide documents from her office — a fight that will play out this week in Suffolk Superior Court and next week in a Texas courtroom.
“We have no choice but to defend ourselves against politically motivated investigations that are biased, in bad faith, and without legal merit,” said Alan T. Jeffers, media relations manager for Exxon Mobil Corp. “We did not start this, but we will see it through and will vigorously defend ourselves against false allegations and mischaracterizations of our climate research and investor communications.”
Healey contends the corporate response is unprecedented: Not only is the subject of an investigation refusing to comply, it is demanding an investigation of the investigating agency.
“They took the tack of trying to shut down this investigation by suing us,” she said. “And that’s all this is: a big corporation who doesn’t like that we’re asking questions and exercising our responsibility and prerogative as the attorney general’s office to protect investors.”
Healey, a liberal Democrat who soared to her first election as attorney general in 2014, has since seized on audacious, high-impact legal battles, going after gunmakers to try to block “copycat” assault rifles and suing Volkswagen for knowingly selling diesel cars with emissions problems for years.
After an ugly presidential election campaign and a rise in complaints about bullying and discriminatory harassment, she launched a hate-crimes hot line that logged more than 400 calls in a week. In a fund-raising e-mail last week, Healey pledged to fight President-elect Donald Trump on any of his “unconstitutional campaign promises.”
“If he overreaches, I intend to be there as the People’s Lawyer to stop him — with my voice, with the law and with you at my side,” Healey wrote in the e-mail from her campaign committee.
But in the ExxonMobil case, she is being accused of politically motivated overreach herself.
When Healey issued subpoenas seeking ExxonMobil’s documents on climate change dating to the 1970s, she was “abusing the power of government to silence a speaker she disfavors,” lawyers for ExxonMobil wrote in their June lawsuit against her, alleging a violation of the company’s rights under the First, Fourth and 14th amendments to the Constitution.
And they criticized the stories that prompted the investigation: Reports published in 2015 by InsideClimate News and the Los Angeles Times suggested ExxonMobil had encouraged climate change confusion for years, despite its own research documenting the risks. Documents showed ExxonMobil had begun making accommodations to its properties, raising the decks of offshore platforms and protecting pipelines from coastal erosion before launching a campaign to discredit the likelihood of climate change effects.
Jeffers criticized “allegations pushed by activists and inaccurate media reports that claim we reached definitive conclusions about climate change decades before the world’s experts and while climate science was in an early stage of development.” “This is simply not credible,” he said.
In March, Healey joined New York Attorney General Eric Schneiderman and other states’ officials in announcing they planned to pursue investigations of the oil company with a creative legal strategy.
They were banding together to tackle an issue that had proved intractable on the federal level — in much the same way that states had successfully challenged tobacco companies — alleging the company had deceived consumers about the life-threatening perils of its own product.
Fourteen states and the District of Columbia formed a “Climate Change Coalition Common Interest Agreement” and agreed to share documents and information and to keep their deliberations confidential.
Only New York and Massachusetts have issued subpoenas to date, however.
Despite the sweeping ambitions expressed in the March news conference with Gore, Healey downplayed the states’ goals in an interview with the Globe on Friday, suggesting the attorneys general were merely working to protect consumer interests.
“Anytime we learn information suggesting or raising questions about whether consumers or investors were duped, we investigate,” Healey said.
“This is not about changing climate policy,” Healey added. “The goal of this investigation is to get to the bottom of what happened, whether or not it’s true that Exxon knew certain information and made misrepresentations to consumers and investors. It’s as simple as that.”
The Massachusetts Republican Party has criticized Healey for pursuing the case and for hiring one of the most expensive law firms in the Dallas area to represent her office in the Texas case.
“The attorney general has spared no expense when it comes to using public money to advance her political career,” said MassGOP’s chairwoman, Kirsten Hughes.
In resisting the states’ pressure to produce documents, ExxonMobil turned the tables on the attorneys general, requesting a treasure trove of documents from them in an apparent attempt to demonstrate they were coordinating strategy with environmental activists.
In addition, Representative Lamar Smith of Texas, a climate change skeptic who chairs the House Committee on Science, Space, and Technology, accused them of a conspiracy to quash “legitimate scientific debate about climate change” and issued subpoenas to Schneiderman, Healey, and environmental groups.
So far, they, too, have resisted. Massachusetts’ all-Democratic congressional delegation has countered with a letter to Smith, calling his efforts an abuse of power.
Ironically, this is happening at a time when there is little lingering debate about the realities of climate change. Even ExxonMobil acknowledges climate change is real, that it is caused by increasing carbon emissions, and that it warrants action.
Despite the election of Trump, who cast doubt on climate change during his campaign, public opinion seems to be moving, said Ken Kimmell, president of the Union of Concerned Scientists, which has received subpoenas from both the House committee and ExxonMobil.
“I think the tide is turning on the issue,” said Kimmell, who pointed to a federal court decision last month in Oregon that gave young people the right to sue the government for failing to protect them from the future effects of climate change.