A federal judge this week delivered a major blow to the #ExxonKnew campaign and the two state attorneys general investigating the company, ruling “The merits of each of Exxon’s claims involve important issues that should be determined by a court.” The decision transferred the case to the United States District Court for the Southern District of New York.

The judge believed the New York District Court was the appropriate venue to hear Exxon’s case because “a substantial part of the events or omissions giving rise to the claim occurred” in New York City at an infamous March 29, 2016 press conference with Al Gore. The judge gave credence to Exxon’s concerns that the AG investigations were politically motivated, pointing to the AGs’ meeting with #ExxonKnew activists ahead of their press conference and noting the AGs’ many appearances in the media discussing the case.

In his order, Judge Ed Kinkeade asked many pointed questions of New York Attorney General Eric Schneiderman’s and Massachusetts Attorney General Maura Healey’s investigations, providing a direction for the New York court to take:

“Was the action by the attorneys general attempting to squelch public discourse by a private company that may not toe the same line as these two attorneys general? Are the two attorneys general trying to further their political agendas by using the vast power of the government to silence the voices of all those who disagree with them?” (emphasis added)

Kinkeade also castigated Healey and Schneiderman for supposedly investigating Exxon based on reports by InsideClimate News and the Columbia School of Journalism, which focused on the company’s public climate research in the 1970s and 1980s. The judge suggested that InsideClimate and Columbia, far from being objective news outlets, may be active participants in the campaign:

“The attorneys general say now that they are investigating Exxon because of two different periodicals published in the fall of 2015 (arguably trying to pursue the same climate change policy agendas as the attorneys general are)…. The Court is uncertain if it is common practice for attorneys general to begin to investigate a company after reading an article that accuses a company of possibly committing a wrongdoing decades ago. What the Court does know is that Exxon has publicly acknowledged since 2006 the possible significant risks to society and ecosystems from rising greenhouse gas emissions, yet the attorneys general have only recently felt compelled to look further into Exxon’s documents from the last 40 years to see if Exxon knew more than it shared with the public and investors about climate change.” (emphasis added)

At multiple points in the order, Judge Kinkeade suggested the AGs were actively trying to hide something from the public, referencing an email from Schneiderman’s office telling #ExxonKnew activist Matt Pawa “to not confirm that you attended or otherwise discuss” the briefing he provided to the AGs ahead of their March 29 press conference.
“Does this reluctance to be open suggest that the attorneys general are trying to hide something from the public?” the judge wrote.

The Common Interest Agreement signed by multiple state attorneys general also gave the federal judge pause:

“The aspect of the Climate Change Coalition Common Interest Agreement that raises a question with this Court is that the Agreement states that the Parties to the Agreement, which include the Office of the New York Attorney General and the Massachusetts Attorney General’s Office, ‘shall. . . refuse to disclose any Shared Information unless required by law‘ which includes ‘(1) information shared in organizing a meeting of the Parties on March 29, 2016, (2) information shared at and after the March 29 meeting . . . and (3) information shared after the executive of this Agreement.’ (emphasis added). Discovery regarding this refusal would seem in order.” (emphasis added)

Schneiderman’s office appeared in court this week after it was sued by the Energy & Environment Legal Institute for refusing to release public records related to the AGs’ investigation of Exxon.

Kinkeade further accused the AGs of courting the media by misrepresenting their case and prioritizing garnering media coverage over actually conducting an investigation.

“The Court recognizes the authority of the attorneys general to conduct their respective investigations, however, the Court also recognizes how the attorneys general have conveniently cherry picked what they share with the media about their investigations.” (emphasis added)

The judge closed his order by laying out the facts of the case as he sees it and setting the tone for the proceedings in the New York District Court:

“Should not the attorneys general want to share all information related to the AGs United for Clean Power press conference to ensure the public that the events surrounding the press conference lacked political motivation and were in fact about the pursuit of justice? The attorneys general should want to remove any suspicion of the event being politically charged since it was attended by (1) former Vice President Al Gore, a known climate change policy advocate in the political arena, (2) Mr. Peter Frumhoff, a well-known climate change activist, and (3) Mr. Matthew Pawa, a prominent global warming litigation attorney who attended a meeting two months prior to the press conference at the Rockefeller Family Fund to discuss an ‘Exxon campaign’ seeking to delegitimize Exxon as a political actor. Any request for information about the events surrounding the AGs United for Clean Power press conference should be welcomed by the attorneys general.”

Regardless of what ultimately happens, it’s clear that the AGs are now on defense, and must continue to explain why they are hiding emails and coordinating with environmental activists.