The New York Attorney General’s years-long investigation into ExxonMobil’s views on climate policy is an “abusive and discriminatory exercise of state power,” the company said Monday in a court filing asking the U.S. Second Circuit Court of Appeals to keep alive its lawsuit against Attorney General Barbara Underwood. ExxonMobil argued that its allegations of constitutional violations by the NY AG are still valid even as Underwood sought to shield herself by filing her own lawsuit against the company.

AG’s Complaint Doesn’t Undo Constitutional Violations

The NY AG’s lawsuit against ExxonMobil was the culmination of an investigation that dragged on for over three years as the company turned over millions of documents in response to the AG’s wide-ranging probe. Underwood filed her lawsuit only after a judge gave her a deadline to stop burdening the company with document requests and either file a complaint or move on. As ExxonMobil’s lawyer put it, “They should put up or shut up.”

ExxonMobil told the Second Circuit that “ending” the investigation and filing a complaint doesn’t negate the fact that the NY AG’s office violated the company’s constitutional rights while it was ongoing, and these violations warrant judicial review:

“In NYAG’s telling, its voluntary decision to close its investigation, while continuing to seek documents and testimony in a civil action on the same subject matter, deprives this Court of subject matter jurisdiction over ExxonMobil’s appeal.  If that were so, constitutional violations could be insulated from judicial review by the pretense of closing the challenged investigation and pursuing the same misconduct in a ‘new’ investigation or, as here, in civil proceedings.”

If ExxonMobil’s Case Is Dismissed, NY AG Could Bring Another Unconstitutional Investigation

Another reason ExxonMobil urged the Second Circuit to allow its case to proceed is because if the court does not, there is nothing stopping the NY AG from launching another similar, politically-motivated investigation in the future. According to the company’s brief:

“The conduct challenged here is NYAG’s burdening ExxonMobil with document and deposition requests because of NYAG’s disagreement with ExxonMobil about climate policy. Nothing in the record establishes that this conduct will not recur.” (emphasis added).

ExxonMobil noted that when the NY AG terminated the investigation, her office “reserved its ‘right to seek . . . [discovery]’ in [its] civil enforcement action,” and even communicated that it was reserving its right to again investigate the company in the future, writing “the Attorney General has taken affirmative steps to close this specific investigation of Exxon.”

NY AG’s Actions Were Costly and Unduly Burdensome

Additionally, ExxonMobil argued that its appeal against the NY AG should not be dismissed because, over the course of the three-plus-year investigation, the Empire State’s chief law enforcement officer made the company jump through a number of needless hoops and hurdles that were costly, burdensome, and for which the company has received no remedy. What’s more, Exxon explained, is that these difficulties are only going to become more taxing, given the NY AG’s investigation is now a civil lawsuit:

NYAG’s prior misconduct had the effect of imposing costs and burdens on ExxonMobil for its viewpoint on climate policy.  Nothing in the record suggests that those effects have been remedied.  If anything, NYAG has broadened them through its civil action.  By NYAG’s own admission, the civil lawsuit draws on information ExxonMobil provided during the course of the investigation, and ExxonMobil has preserved the same constitutional challenges to that lawsuit as are presented here.  (Br. 6, 11.)  NYAG’s civil lawsuit is yet another form of abusive and discriminatory official action NYAG has taken against ExxonMobil because of its disagreement over policy.” (emphasis added)

New Year, New AG

The NY AG will now have an opportunity to respond to ExxonMobil’s filing, and will likely be one of the first formal actions NY AG-elect Letitia James will make when she takes over next year. Then the decision of whether the case will move forward or be dismissed will be up to the court. Regardless of who holds the office and what they do with their power, ExxonMobil made clear that it intends to vigorously defend its right to participate in discussions on public policy:

“It does not matter whether NYAG relies on subpoenas, investigations, or litigation to impose burdens and costs on ExxonMobil – if NYAG uses its state power to target ExxonMobil because of its viewpoint, NYAG violates the First Amendment.” (emphasis added)