Prior to the trial in the New York attorney general’s (NYAG’s) case against ExxonMobil, climate activists and members of the media were certain the NYAG’s lawsuit would be the nail in the coffin for the fossil fuel industry. But as trial proceeded, and it became clear that the NYAG had zero evidence to back up its baseless claims that ExxonMobil had misled its investors, its activist allies abandoned the case, reversing their opinion and proclaiming loudly that this wasn’t actually “the climate trial of the century” as they had previously suggested, but instead represented an acceptable loss in an ongoing “war” wherein Massachusetts Attorney General Maura Healey is suddenly a supreme being of infinite power.

This revisionist history ignores the fact that the NYAG brought its charges under the Martin Act, the most powerful securities law in the country. While the Rockefeller-funded 350.org and their allies quickly pivoted to the case filed by Healey, claiming hers is “arguably even more important,” they ignore that Healey is up against even greater odds than the NYAG. As I wrote last month, and recently expanded upon in the Boston Globe:

“The deck is stacked against Healey. New York’s laws are more powerful than hers, and New York received over four million pages of internal company documents going back four decades, deposed employees, and took four years to build its case – only to get egg on its face in the courtroom. Healey has not received a single document from ExxonMobil, has not interviewed a single employee, and has had her investigation tied up in court for over three years. Not to mention that she’s still singing to the ‘Exxon Knew’ hymnal long after New York and others have moved on.”

Not only is Massachusetts’ lawsuit similar to the New York case, in many places it is a near photocopy. Considering how New York failed to produce any evidence that ExxonMobil misled investors, Attorney General Healey’s regurgitation of those same unfounded allegations should fall equally flat.” (emphasis added)

In his verdict published Tuesday, New York Supreme Court Justice Barry Ostrager highlighted several points regarding the lack of evidence that led him to his conclusion that “the Office of the Attorney General failed to prove, by a preponderance of the evidence, that ExxonMobil made any material misstatements or omissions about its practices and procedures that misled any reasonable investor.” Justice Ostrager deemed the case “ill-conceived,” “hyperbolic,” and “politically motivated.”

Ostrager’s verdict was well-argued and unequivocal in absolving ExxonMobil of any wrongdoing, which put the NYAG’s former cheerleaders in the awkward position of having to throw their ally under the bus. Now that the dust has settled, it’s worth taking a look at how they had described the case in the lead up to the trial and comparing those statements to what they’re saying today.

Activists Change Their Tune

The best example of activists’ revisionist history is provided courtesy of Mashable. On the opening day of trial, Mashable’s Mark Kaufman wrote that “Exxon is likely to come out an overall loser” and added that “the oil giant could not squirm out of what will almost certainly become a historic trial.” Patrick Parenteau, a law professor at Vermont Law School, said “There are tons of documents that we haven’t seen yet that the state has pried out of Exxon.” Carroll Muffett, president of the Center for International Environmental Law (CIEL), added “The evidence comes to light. It’s a worst-case scenario for the company.” Notably, Muffett also told Mashable, “We’re seeing the company for the first time confronted in open courts with the evidence of its climate deception.”

That all sounds pretty bad. Let’s see how their comments stack up now that all the evidence has come out and the company has been completely cleared of any wrongdoing.

“Exxon’s victory is not surprising,” Kaufman wrote this week, contradicting his previous prediction that the company would be “an overall loser.” Gone too were the references to the trial’s “historic” nature. Parenteau was disappointed that those “tons of documents” the NYAG “pried out of Exxon” instead “blew up in their faces.” And Muffett, who just two months prior said the company would be confronted in court with “evidence of its climate deception,” would now like everyone to know that “climate science wasn’t on trial” after all.

Muffett’s convenient reversal actually goes deeper. In 2018 he issued a statement praising the NYAG’s lawsuit against ExxonMobil: “the Attorney General’s suit presents a compelling case that Exxon has consistently misled investors and shareholders about the risks of climate change to the company’s products, profits, assets, and future.” Muffett added that “New York’s complaint alleges that these practices were sanctioned at the highest levels of the company and directly implicates former CEO Rex Tillerson in misconduct,” while CIEL tweeted that the lawsuit was a “BIG DEAL.”

Whoops! Those statements have been completely disproven after the NYAG dropped its two charges that alleged the company intentionally misled its investors. In his verdict, Justice Ostrager even took the time to directly address Muffett’s assertion, writing:

“What the evidence at trial revealed is that ExxonMobil executives and employees were uniformly committed to rigorously discharging their duties in the most comprehensive and meticulous manner possible…The testimony of these witnesses demonstrated that ExxonMobil has a culture of disciplined analysis, planning, accounting, and reporting. The Court heard testimony from ten present and former ExxonMobil employees [including Tillerson], most of whom were called by the Office of the Attorney General as adverse witnesses. There was not a single ExxonMobil employee whose testimony the Court found to be anything other than truthful.” (emphasis added)

Muffett was quick to apologize for rushing to judgement…just kidding. Instead, Muffett pivoted, saying “This is one chapter in the long story these companies are facing.” Muffett continued by drawing an analogy to the tobacco cases, which also initially failed, even though legal experts sympathetic to the climate activists have said those comparisons fall short. “The plaintiffs in the climate cases constantly compare them to the tobacco cases and they hope that they will turn out the same way,” said Michael Gerrard, a law professor at Columbia and an expert on climate litigation. “The major difference is that society does not need tobacco in order to operate, whereas fossil fuels are a basis for modern civilization.”

Union of Concerned Scientists president Ken Kimmell assured reporters in 2018 that “this is a very significant lawsuit,” adding, “The New York state attorney general has gotten a lot of documents and we should assume they filed the suit based on the information received during that process.” (emphasis added) You know what they say about people who assume.

After the NYAG lost their case for failing to provide any information to support their claims, Kimmell quickly forgot what he’d said just a year prior and joined the pivot party to shift focus to the public nuisance cases filed against energy producers. “The fossil fuel industry’s day of reckoning will come,” Kimmell added, making the same mistake as before and assuming that energy producers will be found guilty of…something.

350.org co-founder Bill McKibben noted in 2015 that the NYAG case was looking into “what could be the biggest corporate scandal of all time” and frequently promoted the case. “The only question is whether Exxon’s reprehensible action also broke the law,” he said shortly after then-New York Attorney General Eric Schneiderman filed his initial subpoena. After Justice Ostrager determined that ExxonMobil did not break the law (a law with an extremely law burden of proof, at that), McKibben managed to shrug off accountability for his prior boasting.

Even Naomi Oreskes, who helped start the “Exxon Knew” campaign, sought to distance herself from New York and set her sights on Massachusetts in a recent interview with Greenwire published during the trial, where she refused to comment on the case, saying only that “the tobacco industry won a lot of cases until they finally lost. And if New York state loses this case for whatever reason, I don’t think that’s the end of this story.”

What the Press is Saying

Meanwhile, the press largely recognized Justice Ostrager’s verdict for what it was: a thoughtful rebuke of the NYAG’s case.

The Wall Street Journal editorial board said the verdict was “embarrassing” for the NYAG and concluded: “The only fraud in this case was the AG’s lawsuit.” The editorial board of the New York Daily News broke down the flaws in the AG’s “weak legal case,” closing with, “More climate solutions, please. Less hot air.”

Tom Stebbins of the Lawsuit Reform Alliance of New York wrote in the New York Daily News that the “AG’s costly, quixotic crusade against Exxon” had come to an end, noting that it had come at great cost to taxpayers. “During the course of the trial, it became obvious to all observers that the state’s case was pitifully weak,” wrote David Blackmon wrote in Forbes, adding that the NYAG “could not even surmount the extremely low level of ‘proof’ required under the Martin Act.”

Law360 reporter Keith Goldberg called the verdict a “resounding victory” with implications for other climate cases, while Amanda Luz Henning Santiago at City & State New York characterized the decision as “a blow to the environmental movement” in which “New York lost its groundbreaking civil lawsuit against oil giant Exxon Mobil.” Robert Rapier wrote in Forbes that Justice Ostrager’s “decision is probably a sign of the way future cases will be decided.”