The #ExxonKnew team was clearly ready with statements and tweets to celebrate and claim credit when, after four years of investigation, the New York Attorney General’s office finally filed its lawsuit against ExxonMobil over climate change.
As EID previously pointed out, it was “put up or shut up time” in court. Justice Barry R. Ostrager had ordered the New York AG to wrap up the endless investigation and decide to either press charges or move on.
So who was ready with bells and whistles when the announcement was finally made?
Bill McKibben gleefully tweeted that this is “huge news”:
Geoffrey Supran – a Harvard researcher and advocate for fossil fuel divestment – cited a flawed paper he co-authored with fellow activist Naomi Oreskes as ammunition for the New York AG. Supran’s paper was heavily criticized by the foremost expert on content analysis, Kimberly A. Neuendorf, Ph.D., who said the paper was “unreliable, invalid, biased, not generalizable, and not replicable.” Undeterred, Supran did his best to use the lawsuit as an opportunity to reignite interest in his flawed paper.
The Union of Concerned Scientists released a statement which also clamored for credit:
“The lawsuit comes after more than three years of investigations by several state attorneys general as well as reports by the Union of Concerned Scientists (UCS), Inside Climate News, the Los Angeles Times and others that found that ExxonMobil executives were well aware of the threat posed by their products, but spent tens of millions of dollars to sow doubt about those risks and block government action.”
The Center for International Environmental Law also reinforced the narrative that this is a “BIG DEAL”:
And New York City Comptroller Scott M. Stringer, who politicized New York City’s pension funds in order attack companies like ExxonMobil on climate change, said:
“ExxonMobil has been hiding behind a smokescreen for years – refusing to give investors meaningful information about climate change risks and the company’s future.
New York City has repeatedly called for ExxonMobil to tell investors the truth about climate change. We’ve demanded these exact disclosures, and now the company is being sued to make them. The fraud alleged in the Attorney General’s suit is systematic, intentional, and originates from the highest levels of Exxon management – including the Chairman of the board of directors. It’s daunting and means that this lawsuit is ultimately a failure of the board.
I commend Attorney General Barbara Underwood for her efforts to seek accountability and disclosure, and protect investors with this lawsuit.”
But while activists were partying in the streets, experts who took the time to assess the lawsuit from an objective point of view came to a much different conclusion. In fact, the same activists who wasted no time cheering the New York AG may soon express a similar degree of disappointment, as the lawsuit faces long odds.
Matt Levine, a columnist for Bloomberg View and experienced financial attorney, wrote an in-depth analysis of the New York AG’s legal theory against Exxon. Levin’s conclusion mirrors that of two federal judges, who earlier this year threw out lawsuits against Exxon from the cities of San Francisco, Oakland and New York City. Levine and the judges argue that the lawsuits are attempting to substitute action from the federal government:
“In a sense, by suing Exxon for ignoring proxy costs, Underwood is demanding that Exxon do the government’s work for it. If governments took stronger actions to address climate change, that would impose more costs on Exxon, and those costs would flow through Exxon’s financial statements. If they don’t, though, those costs will only be hypothetical, and will only flow through Exxon’s alternative reports as proxy costs. Underwood wants Exxon to take those government actions seriously and treat them as real costs—but she can’t be sure that the government actions will ever happen. If you can’t get governments to do something, you can’t really expect the markets to act like they will.”
Levine also suggested what could be the true motivation for the lawsuit. Namely, that it is an easy way for a politically-minded AG to claim to be “doing something” about climate change and identify a scapegoat. Levine wrote:
“You can accomplish a lot of the expressive-emotional-political aims of punishment by punishing polluters for securities fraud. ‘Pollution is bad,’ you say, and then ‘we have punished the polluters,’ and everyone is vaguely satisfied. But you haven’t regulated pollution! You haven’t done the hard work of figuring out the problem and building consensus on addressing it and going through the democratic process and building a regulatory scheme and doing the cost-benefit analysis and writing the regulations.”
Meanwhile the Wall Street Journal editorial board called the lawsuit an “embarrassment” because Underwood is saying that ExxonMobil purposely misled investors on something that is unknowable:
“The reality is that nobody knows the future cost of carbon, and it will hinge as much on politics as on the evolving science and facts of climate change. President Trump sharply reduced the regulatory cost of carbon in the U.S. by rescinding Barack Obama’s Clean Power Rule, fuel-economy (Cafe) standards and methane regulations.”
Aside from the glaring problems with the case itself, others noted that this is could be an example of a pay-to-investigate scheme within the New York AG’s office. Investigative journalist John Soloman wrote:
“So it seems likely that Bloomberg privately cheered the news Wednesday that New York’s attorney general had filed a lawsuit against ExxonMobil alleging the oil giant deceived investors over its financial risks from climate change regulations.
The suit hit ExxonMobil right in its pocketbook, which is quite the pressure point.
Actually, though, Bloomberg did a whole lot more: He literally bought his way into the case.
That’s right. He used his money to fund a prosecutor on the New York attorney general’s staff, who then worked on the lawsuit.”
Tom Stebbins, the executive director of the Lawsuit Reform Alliance of New York also called attention to the lawyers and donors who are pulling the levers behind the scenes on the climate lawsuits:
“New York politicians like to claim their leadership in the fight against climate change, but behind the scenes a small group of lawyers and donors are the ones pulling the levers.
Environmental activists, plaintiff’s lawyers and government representatives gathered late last month at Columbia University to discuss expanding their effort to use the civil justice system to combat the effects of climate change. In recent years private contingency-fee lawyers have worked hard to conscript like-minded, headline-hunting elected officials including Mayor Bill de Blasio and disgraced former Attorney General Eric Schneiderman to file lawsuits and join the litigation.”
When asked about the lawsuit, Judge Andrew Napolitano pulled no punches:
‘“Who gets the money if the plaintiff wins?’ he said on Thursday during an interview with FOX Business’ Stuart Varney. ‘The government of the state of New York. It’s absolutely a money grab.’”
Given the years of effort and resources devoted to promoting the baseless #ExxonKnew conspiracy, it is unsurprising that activists were ready to party. But that party may be short lived. Many long-time observers of the effort have called out #Exxonknew for what it is – a desperate political attack that will likely be dismissed, as many of the lawsuits from municipal governments already have been.