The New York Supreme Court Justice Barry Ostrager ruled in favor of ExxonMobil in the New York attorney general’s (NYAG) “historic” trial against the company, confirming once and for all that “Exxon Knew” is dead.
The NYAG trial was supposed to be the “Exxon Knew” campaign’s crowning achievement. An activist dream, this trial was the culmination of years of planning, a series of coordinated and paid-for media hit pieces, months of plotting with the NYAG’s office, a subsequent four year investigation, and the collection and review of over 4 million pages of company documents.
The result? A resounding failure.
The Birth of ‘Exxon Knew’
The “Exxon Knew” campaign was first conceived during a 2012 workshop in La Jolla, Calif., sponsored by wealthy, anti-fossil fuel foundations, where activists strategized about how to replicate the success of the lawsuits against “Big Tobacco” by “establishing accountability for climate change damages.”
Attendees discussed opportunities to obtain internal documents through investigations by state attorneys general or through litigation – a playbook they have followed to the letter in the intervening years. One lawyer noted that, “even if your ultimate goal might be to shut down a company, you still might be wise to start out by asking for compensation for injured parties.” (emphasis added)
Activists then launched an aggressive campaign against ExxonMobil, begging public officials like then- New York Attorney General Eric Schneiderman to bring a case against the company. In line with the La Jolla playbook, activists published “investigative” series – funded by the same billionaire backers behind the La Jolla conference – in the Los Angeles Times and InsideClimate News (ICN) with the social media hashtag “#ExxonKnew” and officially kicked off the campaign activists are still trying (albeit badly) to keep alive today. As ICN described in an addendum to their 2015 multi-part “Exxon Knew” series:
“In an online petition drive, in public statements and behind the scenes, environmental advocates and their political allies are pressing federal and state authorities to launch investigations, subpoenas or prosecutions to pin down what Exxon knew and when.”
After Schneiderman announced his investigation into ExxonMobil’s understanding of climate change, “Exxon Knew” activists lauded the NYAG’s case as proof of an ExxonMobil conspiracy to hide climate change from the public. Within months, many La Jolla attendees reconvened at Rockefeller Family Fund headquarters in New York to build out the next phase of their “Exxon Knew” campaign, including a coordinated media campaign to amplify their efforts and “delegitimize” ExxonMobil. ICN even used the launch of the NYAG’s investigation as justification for its consideration for a Pulitzer Prize.
A floundering investigation
Unsurprisingly, this politically-motivated investigation immediately started to unravel for the NYAG, since there was no wrongdoing to uncover. A year after announcing his investigation, Schneiderman tried and largely failed to convince other attorneys general to join his campaign – with the notable exception of Massachusetts Attorney General Maura Healey. Thirteen attorneys general across the county even criticized the move, saying they were “concerned that our colleagues’ investigation undermines the trust the people have invested in Attorneys General to investigate fraud.”
After finding no evidence to support his original allegations and losing the support of his colleagues across the country, Schneiderman was forced to change tactics and abandon his search for evidence that ExxonMobil had suppressed climate science; Six months into his investigation, he issued a second subpoena to the company, now alleging that ExxonMobil had failed to disclose risks to some of its assets under possible future climate policies – a huge departure from the original “Exxon Knew” allegations.
Holman W. Jenkins Jr., a columnist for the Wall Street Journal, explained this decision best:
“[Schneiderman] reveals that he’s no longer focusing on what Exxon knew/said but instead on how it goes about valuing its current oil reserves. In essence, Mr. Schneiderman here is hiding his retreat behind a recent passing fad in the blogosphere for discussing the likelihood that such reserves will become ‘stranded assets’ under some imaginary future climate regime.” (emphasis added)
Unsurprisingly, this tactic failed as well. A year and a half into his investigation with absolutely no evidence to bring a case against the company, Schneiderman shifted his legal argument for a third time, bringing this case to its current iteration regarding proxy costs of carbon – a last ditch attempt to bring any type of charge against the company in order to appease climate activists who are driven by a desire to destroy an industry, regardless of the facts.
An even poorer showing at trial
The case in front of the New York Supreme Court had nothing to do with “Exxon Knew” or the climate conspiracy originally pitched by activists. It’s was about accounting practices and relies on New York’s uniquely powerful Martin Act – a law described by the Wall Street Journal as the “the worst law in America.” Before the trial even began, the New York Post described the case as “the incredible collapsing ‘#ExxonKnew’ climate change lie”:
“The charge is not only a far cry from the original #ExxonKnew allegations, it’s also almost certain to fail…In fact, the entire thing has been a shameless exercise in prosecutorial abuse, from the outrageous harassment of nonprofits whose research the climate-crisis crew dislikes to the ethically dubious private funding of staff in the New York AG’s Office.”
Ignoring the facts of the case, activists and allied media organizations continued to cling to their “Exxon Knew” pipe dream ahead of trial, advertising the case as the “climate trial of the century” and comparing it to the take down of Al Capone.
During the trial, “Exxon Knew” activists were disappointed once again; discussions about climate science were nowhere to be found, no investors claimed to be harmed by the company, and the NYAG couldn’t provide any evidence that ExxonMobil intentionally tried to mislead anyone.
According to reporting from Bloomberg,
“New York rested its securities-fraud case against Exxon Mobil Corp. after nine days of trial testimony without appearing to produce any definitive evidence that the oil company intentionally misled investors about how it accounted for climate-change risks…
“For the second time during the three-week trial, climate protesters, most of them young people, picketed outside the courthouse, though the group was almost outnumbered by police. They held signs reading #ExxonKnew with variations on claims the company lied about climate change — which isn’t really what the case is about.” (emphasis added)
After a disastrous showing in court where they failed to provide any evidence to support their claims, the NYAG’s office dropped all charges against the company that alleged intent to defraud investors – a move that “speaks volumes about the hollowness of its case,” according to a post-trial filing from ExxonMobil.
The Death of ‘Exxon Knew’
Exxon Knew’s grave was dug by the New York Times Magazine last year when they dedicated an entire issue to debunking the “Exxon Knew” claims – the first time they had ever dedicated the entire issue to a single story. Since then, climate activists have had a hard time forgiving the Times and letting go of their politically motivated campaign. Even still, the NYAG’s failed attempt to bring an “Exxon Knew” case against the company – or indeed even mention the original “Exxon Knew” claims during trial – certainly put the final nail in the coffin.
After the NYAG decided to hinge their case solely on New York’s unique Martin Act – which requires neither proof of intent nor evidence of a single harmed investor – Massachusetts Attorney General Maura Healey made the perplexing decision to file her own, even more far-fetched case against the company. Healey is not only relying on the same documents obtained by NYAG’s office, but she also has no similarly broad statute to save her during the 11th hour of trial, when her investigation inevitably comes up empty.
Like New York’s case, Healey’s investigation stems from the same highly coordinated activist campaign seeking to “delegitimize” ExxonMobil and is unlikely to fare any better than the NYAG’s floundering case. It’s time for activists, and politically motivated public officials alike, to finally admit the truth: “Exxon Knew” is dead, and any further attempts to revive it are just a strain on taxpayer resources.
It’s time to find a new hashtag. We suggest #EveryoneKnew.
*Note: This article has been updated to reflect the court’s decision
