Three years after announcing her investigation into the company, with no documents discovered and no depositions taken, Massachusetts Attorney General Maura Healey is now threatening to bring a case against ExxonMobil over climate change. The effort began at an activist-organized press conference in 2016, where AG Healey was flanked on stage with Al Gore and former-New York Attorney General Eric Schneiderman.
AG Healey’s timing is no accident, but instead a politically motivated attempt to gain media attention and distract the company just days before it is set to go to trial for a similar case in New York.
As shown in the pre-emptive motion filed by ExxonMobil, along with newly published emails between the AG’s office and climate activists, Healey’s political calculus epitomizes her investigation overall: Under the long-term influence of activists and the plaintiff’s attorneys behind the #ExxonKnew campaign, Healey isn’t concerned about consumers; she is attempting to punish an energy producer.
Healey’s investigation and threatened lawsuit stem from the activists and lawyers who met at a La Jolla, Calif., retreat in 2012. Since that event, activists have been trying to convince state attorneys general to bring lawsuits against energy companies.
In March 2016, Healey joined a press conference hosted by then-NY AG Schneiderman, introducing a coalition of state attorneys general called “AGs United for Clean Power.” In its pre-emptive motion filed this week, ExxonMobil explains how Healey’s statements at the press conference indicated her bias prior to her investigation:
“[Healey] attributed the public’s failure to embrace her climate change policies to speech that caused ‘many to doubt whether climate change is real and to misunderstand and misapprehend the catastrophic nature of its impacts.’ Attorney General Healey asserted that those who purportedly ‘deceived’ the public—by disagreeing with her about climate change policy—‘should be, must be, held accountable.’ In the next breath, Attorney General Healey declared that she too had ‘joined in investigating the practices of ExxonMobil.’ She then promised ‘quick, aggressive action’ to ‘hold[]accountable those who have needed to be held accountable for far too long.’” (emphasis added)
Immediately prior to this press conference, activists Peter Frumhoff, the Director of Science and Policy for the Union of Concerned Scientists, and Matthew Pawa, now co-chair of plaintiffs’ firm Hagens Berman’s environmental law practice, gave separate, secretive presentations to AGs—including Healey—on using litigation to take action against energy companies on climate change.
The depths of their influence was not fully disclosed to the public until recently. In April 2019, the public interest legal group Government Accountability & Oversight requested emails between two officials in AG Healey’s office and Pawa, as well as Harvard researcher Naomi Oreskes—another major proponent of climate litigation and key player in the broader #ExxonKnew campaign.
Although the timeframe for the requested emails was properly constrained to a very narrow time period (January 2016 to April 2016) to coincide with when the two were pitching attorneys general to investigate and sue energy companies, AG Healey stonewalled on this request, ignoring mandates from the Massachusetts Secretary of State Records Office, and going to great lengths to keep its correspondence with these climate activists a secret.
However, in a shocking reversal recently, six pages of records were finally released by the AG, showing that Pawa was in contact with the office as early as December 2015, and subsequently pitched the AG in January 2016 to launch an investigation into ExxonMobil.
Pawa’s involvement is notable, as he was driving force of the #ExxonKnew campaign and participant at the 2012 La Jolla conference. From this conference the campaign to enlist a “single sympathetic Attorney General” to bring investigations and lawsuits against energy producers was born—a campaign that Pawa actively recruited AG Healey to join.
As ExxonMobil points out in its motion, it is unreasonable that the Massachusetts AG, which has not had a “substantive conversation” about the investigation with ExxonMobil in three years, refuses to wait just three weeks until the trial concludes to meet and confer with the company. This insistence on threatening a lawsuit now, along with Healey’s refusal to agree to a compromise on when the potential lawsuit could be appropriately addressed following the upcoming trial, shows the obvious political motivation behind her effort.
Notably, Healey’s action may also run afoul of Massachusetts law. On October 10, AG Healey’s office sent a letter to ExxonMobil explaining its intent to file a civil suit against the company. The AG said it would allow ExxonMobil the opportunity to meet with its office (as is required by law) prior to any legal action being filed. However, by threatening to file suit just days before another trial and refusing to meet afterwards, AG Healey is not allowing the company a chance to meet.
Further bolstering the argument that Healey’s threatened lawsuit is a politically motivated ploy is the fact that the AG’s office has not received any documents from the company, nor has it received witness testimony from current or former company employees.
This is because in June 2016, ExxonMobil and the AG entered into a tolling agreement, in which the AG agreed that it would not seek to act on the Civil Investigative Demand (CID) it issued ExxonMobil until two cases filed by ExxonMobil challenging the CID in federal and Massachusetts state court were closed.
Healey issued the CID shortly after announcing her investigation into ExxonMobil in March 2016. In the CID, she requested 40 years of records related to ExxonMobil’s marketing and sale of fossil fuel products and securities in Massachusetts. But, because ExxonMobil’s federal court challenge is still pending, the tolling agreement is still in place, meaning that Healey has never received any of these records. Yet now, despite not having access to any internal company documents nor having interviewed any current and former ExxonMobil employees, the AG is demanding a rushed lawsuit, a demand that appears to violate the 2016 tolling agreement.
AG Healey is not only acting against her office’s own interest in this case by threatening a maliciously-timed lawsuit against ExxonMobil, she is further proving the political and activist-influenced biases that are driving her investigation against the company.
In addition to threatening a lawsuit despite a lack of evidence—a result of the tolling agreement that her own office suggested—AG Healey is possibly violating state law by doing so. The AG’s insistence on meeting prior to the ExxonMobil’s trial in New York essentially makes it impossible for the company to have fair timing when it comes to a meet-and-confer prior to filing—a right in Massachusetts state court.
This carefully planned process demonstrates how the involvement of outside actors and activists within the justice system can have damaging repercussions for the rule of law and due process.
