Early in November, the New York Attorney General (NYAG) wrapped up its long-awaited court case against ExxonMobil by dropping two of the four charges in its final argument. This case ended with more of a whimper than a bang, but this lawsuit is only a small part of a much broader anti-fossil fuel litigation campaign that environmental activists and their attorneys have been waging for years.
Despite a recent flurry of activity with the NY trial and ill-considered lawsuits recently announced by Massachusetts, Honolulu, and Maui, it’s worth stepping back and recognizing how far the litigation campaign hasn’t come.
Massachusetts’ uphill battle
More than four years have passed since then-New York Attorney General Eric Schneiderman first announced his ExxonMobil subpoena in November 2015. Shortly thereafter, more than a dozen state attorneys general joined Schneiderman’s AGs United for Clean Power, but then all but Massachusetts Attorney General Maura Healey very quickly backed out.
During the opening days of the NYAG trial in early October of this year, Massachusetts Attorney General (MAAG) Maura Healey announced that, three years after kicking off her investigation of the company, her office was filing charges against ExxonMobil.
This was a long-delayed announcement. Healey first revealed her plan to investigate the company in 2016, after she attended a secretive presentation by Peter Frumhoff of the Union of Concerned Scientists and plaintiffs’ attorney Matthew Pawa, and was pitched by Pawa on this issue earlier that year. The announcement seemed to be strategically timed as well, since after three years, Healey finally made the lawsuit official when ExxonMobil happened to be in court during the midst of the NYAG trial.
Proving a case against ExxonMobil will be more difficult for Healey than for Attorney General Letitia James in New York. Despite reviewing over four million pages of ExxonMobil’s internal documents and interviewing employees over the course of four years, the NYAG was unable to find any evidence to support claims that it purposefully misled the public on climate change.
Even after the NYAG severely narrowed the scope of its case to focus on an accounting question, they still were unable to prove that ExxonMobil had misled its investors. The NYAG also had the benefit of bringing its case under the Martin Act, a state law granting the AG’s office broad powers to investigate and prosecute investor fraud. The Martin Act does not require the NYAG to show proof of intent of wrongdoing to secure a conviction. No similar statute exists in Massachusetts.
This has already impacted AG Healey’s ability to access the internal company documents that the climate activists believe hold the key to winning a climate liability suit. Three years after announcing her investigation into ExxonMobil, Healey’s office had “not interviewed a single ExxonMobil employee or gathered one piece of evidence from the company” before filing its complaint. Instead, the MAAG relied on information “gathered from banks, advertising agencies, New York’s investigation and other sources.”
This does not bode well for the MAAG – nor the state’s taxpayers. According to the Boston Herald, Healey’s misguided fight against fossil fuels cost Massachusetts taxpayers $63,000 in the first year alone. New York spent nearly $1 million in taxpayer funds just on two ”expert” witnesses, so Healey’s costs could rise quickly.
Compounding Healey’s daunting challenge, she has expanded on the claims made in the New York case by alleging that the company misled consumers about the climate impacts of its products. Specifically, Healey is alleging that consumers were misled because the company did not place global warming warnings on its gas pumps and advertisements. In other words, she is suing ExxonMobil for breaking laws that do not exist.
Honolulu charges headfirst into losing battle
Likewise, more than a dozen municipalities and a group of fishermen have filed public nuisance lawsuits against energy producers since 2017. So far, they have absolutely nothing to show for it. In fact, they have less than nothing to show for it, because three of these cases have already been thrown out. Yet Honolulu and Maui decided to boldly stride into this legal quagmire, urged onward by a bevy of anti-fossil fuel activists desperate to show some kind of momentum in their losing campaign.
In early November, Honolulu Mayor Kirk Caldwell announced that the two municipalities would soon file suits. His announcement was anything but a surprise, however, as activists hoping to uncover evidence of a “climate conspiracy” and trial attorneys looking for a large payout have been courting city officials in Hawaii for months.
In June, for example, Vic Sher, the attorney representing twelve other municipalities in anti-energy lawsuits, spoke on a panel hosted by the University of Hawaii Richardson Law School, along with Ann Carlson, an environmental law professor at UCLA Law. The event, which was co-hosted by two leading climate liability lawsuit cheerleaders—the Union of Concerned Scientists and the Center for Climate Integrity—was a clear attempt to promote climate litigation, as it did not feature a single speaker opposed to the lawsuits and was followed by an op-ed co-signed by the organizers that called on Hawaii to sue energy producers. It also featured other speakers who have advocated for or assisted with climate liability suits, like Alyssa Johl, a former attorney for the Center for International and Environmental Law who is currently working for the Center for Climate Integrity.
Like San Francisco and Baltimore, Honolulu and Maui County will be trying to prove that a fossil fuel company is somehow liable for damages caused by the greenhouse gases emitted by the consumers who use their products. This argument has been a stretch in other climate liability cases, but activists just won’t give up on it.
