On January 27, the New York attorney general filed a motion opposing Energy Policy Advocates’ (EPA) and Robert Schilling’s motion to intervene in the attorney general’s “ill-conceived” securities fraud lawsuit against ExxonMobil. New York lost their case in a resounding defeat in December. EPA, a public interest law firm, and Schilling, a Virginia-based radio and internet journalist who also serves on EPA’s Board of Directors, asked New York Supreme Court Justice Barry Ostrager to unseal documents raised in the case last March that concern correspondence between the attorney general’s office and Matt Pawa, a climate activist and plaintiffs’ attorney who has met with several state attorneys general in recent years to encourage them to sue ExxonMobil.
New York Attorney General and Pawa Respond
In its opposition filed with the court, the New York attorney general claims EPA and Schilling have no “substantial interest” in the outcome of the case, stating that they are not presenting “any claim or defense that shares a common question of law or fact with the main action.” The attorney general argues that the parties not only do not have a connection to this case, but they also do not identify any New York statute that grants them a right to intervene.
Pawa also filed a motion requesting to be permitted to submit an amicus brief to the court. The proposed amicus brief echoes the attorney general’s arguments, repeating its claim that EPA’s and Schilling’s motion is untimely, its interests were “adequately” represented by ExxonMobil when the company initially argued over these documents, the organization lacks substantial interest to intervene and all of this is, at best, a “sideshow.”
Transparency in the Public Interest
According to the group’s website, EPA’s purpose is to “bring transparency to the realm of energy and environmental policy.” Their memo replying to the attorney general’s opposition (they refer to the attorney general by the acronym “OAG”) explains that they are acting in accordance with that mission:
“OAG has failed to offer in its papers any reason why the documents at issue are privileged, secret, sensitive, or otherwise exempt from public disclosure. The documents appear to reflect nothing more than communications between OAG and a lobbyist, where the lobbyist urges the use of the OAG’s awesome powers and taxpayer funded resources in what has proved a disastrous undertaking. The public has an absolute right to know how this came about, and how this Court has addressed the claims made by the parties. Intervention in this case is an appropriate procedural mechanism to make that happen.” (emphasis added)
In filing their motion to intervene, EPA and Schilling say they are only attempting to bring transparency and understanding to a case that has been muddled with the attorney general’s shifting arguments. EPA argues that the public – especially the New York taxpayers who footed the bill for their attorney general’s three-year investigation and subsequent “show trial” – has a right to know the information within these documents.
The Proof is in the Presentation
EPA and Schilling also fired back at the attorney general’s argument that the motion is untimely, explaining that the intervenors did not come forward earlier because they wanted to “enable a fair trial” without outside interference. They waited until the New York attorney general announced it wouldn’t appeal Justice Ostrager’s sweeping ruling against the public official in a case they fought based on evidence that doesn’t exist.
The memo also points out that EPA’s and Schilling’s motion comes “after obtaining similar ‘recruiting’ correspondence with Mr. Pawa from another Office of Attorney General.” This hints at one key document that this motion is hoping to reveal: a slideshow that Pawa presented to various state attorneys general over the years to encourage them to pursue climate litigation against ExxonMobil. This presentation was reportedly shown to Illinois Attorney General Lisa Madigan and Massachusetts Attorney General Maura Healey.
Pawa and public officials in multiple states have fought to keep this slideshow hidden from the public, raising questions about the presentation’s content and what these parties are trying to hide.
If EPA and Schilling took the attorney general’s advice and tried to obtain the documents by other legal means, it would cause “delay and prejudice,” they argue, both of which the public has already seen plenty of as a result of the attorney general’s four-year saga against ExxonMobil.
What’s Next?
New York Supreme Court Justice Ostrager can deny the intervenors’ request, but, as EPA and Schilling note, “only by proof of a compelling governmental interest.” How Justice Ostrager views all of these motions will be the deciding factor and may culminate in a hearing in the coming weeks.
If unsealed, these documents could help pull back the curtain and reveal the extent to which “sympathetic” attorneys general allowed their offices and their power to be co-opted by climate activists as part of a politically-motivated strategy to “bring down” energy producers.
