Facing Overwhelming Opposition, Schneiderman Abandons #ExxonKnew Cabal; Now Claims #ExxonKnew Not Really About What Exxon Knew but What Exxon Predicts
Faced with overwhelming opposition from legal experts, mainstream editorial boards across the country, and even the AGs his climate coalition, New York Attorney General Eric Schneiderman is completely changing his tune and attempting to reboot the reason behind his investigation into ExxonMobil.
After months of the #ExxonKnew campaign telling us that these investigations are happening because the company “knew” about climate change in the 1970s and 1980s and then “lied” about it (and as Schneiderman continues to refuse to comply with public records laws) Schneiderman is now telling the New York Times that Exxon’s past statements are not the focus of his investigation at all. From the Times article:
But in an extensive interview, Mr. Schneiderman said that his investigation was focused less on the distant past than on relatively recent statements by Exxon Mobil related to climate change and what it means for the company’s future.
In other words, the question for Mr. Schneiderman is less what Exxon knew, and more what it predicts.
For example, he said, the investigation is scrutinizing a 2014 report by Exxon Mobil stating that global efforts to address climate change would not mean that it had to leave enormous amounts of oil reserves in the ground as so-called “stranded assets.”
Schneiderman went on to tell the Times, “The older stuff really is just important to establish knowledge and the framework and to look for inconsistencies.”
That’s really interesting considering that Schneiderman made it pretty clear last year when he announced his subpoena that he was 100 percent on board with whole #ExxonKnew narrative. In a November 10, 2015 interview with PBS, here’s what Schneiderman had to say:
“So we have subpoenaed, issued a broad subpoena to Exxon because of public statements they have made and how they have really shifted their point of view on this in terms of their public presentation and public reporting over the last few decades.
In the 1980s, they were putting out some very good studies about climate change. They were compared to Bell Labs as being at the leadership of doing good scientific work. And then they changed tactics for some reason, and their numerous statements over the last 20 years or so that question climate change, whether it’s happening, that claim that there is no competent model for climate change.” (emphasis added)
At the now infamous March 29, 2016 press conference with Al Gore, Schneiderman further noted,
“The specific reaction to our particular subpoena was that, uh, the public reports that had come out, um, um, Exxon said were ‘cherry-picked documents and took things out of context.’ We believe they should welcome our investigation ‘cause unlike journalists we will get every document and we will be able to put them in context so I’m sure they’ll be pleased that we’re gonna get everything out there and see what they knew, when they knew it, what they said, and, uh, what they might have said.” (emphasis added)
Those cherry-picked documents were the ones InsideClimate News and the Columbia School of Journalism featured in their #ExxonKnew hit pieces that came out late last year and Schneiderman specifically linked his investigation to those very articles.
Of course, all of this narrative shifting is happening while the AGs are refusing to comply with public records laws. Let’s just say, when the government is investigating companies and keeps changing its justification for doing so, and then those involved sign a common interest agreement to keep their correspondence secret, it’s pretty obvious that something fishy is going on.
This shift in the narrative comes curiously after new emails revealed that the AGs in Schneiderman’s climate coalition have been running as far away as they can from these investigations. Just a few days ahead of the March 29 press conference the communications director of the Virginia AG’s office wrote to Schneiderman’s staff saying that their attempts to link them to these investigations makes them “nervous.”
“At this point, we don’t know what we’re going to agree to, or really what Virginia’s laws and our authorities could allow us to do, so it makes me nervous to say we’ve ‘agreed to work together on key investigations. Is there any room to dial that back one notch?” (emphasis added)
In a previous batch of FOIA’d emails, we learned that the Vermont AG’s office also asked Schneiderman’s staff to dial back the rhetoric:
“Not all of the states have yet opened a formal investigation and there is some sensitivity here (and I suspect in some other states) to saying or indicating that we have.”
The Iowa AG’s office was apparently wishing they hadn’t signed on to join in the event at all. As Eric Tabor of the Iowa AG’s office writes to Iowa Deputy Attorney General Tam Ormiston on March 25th, “Tam — Just talked with Tom [Miller, Iowa AG]. He thinks we may be locked in on this and have to ride it through.” On March 28, Ormiston pings the Iowa AG’s Communications Director Geoff Greenwood saying, “I just returned from the evening’s activities. I will update you tomorrow but clearly Eric is himself the wild card for all.”
It’s not surprising that the AGs were trying to distance themselves considering that just about everyone thinks Schneiderman is on very flimsy legal ground. Columbia Law Professor Merritt B. Fox published an op-ed in the National Law Journal with a scathing review of Schneiderman’s use of the Martin Act to investigate ExxonMobil, noting,
“The Martin Act grants the attorney general extraordinary powers to subpoena private documents without either obtaining a court order, which is required in most ordinary New York criminal proceedings, or the filing of a complaint, which is required in an ordinary civil action and is subject to court review. The Exxon subpoena is an abuse of these extraordinary powers.” (emphasis added)
Fox went on to say, “At the extreme, the Martin Act subpoena power could be used to bully corporations into any kind of desired reform under the guise of a securities investigation.”
Dennis C. Vacco, who served as the attorney general of New York from 1995 to 1999 and even signed the tobacco Master Settlement Agreement in 1998, said in a recent column, “I can tell you from experience that our fight against the tobacco industry has almost nothing in common with today’s campaign by several state attorneys general against ExxonMobil — despite what supporters of the effort would like you to believe.”
Philip Hamburger, also a law professor at Columbia University, recently wrote that New York’s investigation of Exxon is “a prosecutorial threat to liberty and due process.” Harvey Silverglate, an attorney and a member of the ACLU, said recently that the Exxon investigation is “pure harassment.” He continued, “It is outrageous for any law enforcement official to be seeking to win this battle for minds by flexing law enforcement muscle and trying to shut up the other side.”
Brooklyn Law School professor James Fanto told Bloomberg News that the investigation seems “completely politically motivated.” Former U.S. attorney Matthew Whitaker recently called the investigations “unconstitutional and unethical.”
Tristan Brown, a lawyer and assistant professor of Energy Resource Economics at State University of New York who even admitted that he “empathizes” with the #ExxonKnew campaign, noted that the AGs launching climate investigations are essentially changing the definition of what it means to commit fraud, which sets a “dangerous” precedent.
Walter K. Olson, senior fellow at the Cato institute, said pursuing fraud charges against Exxon is like pursuing fraud charges against candy or ice cream makers, noting “It doesn’t matter even if the critique of ice cream is correct. You still don’t have fraud.”
Brendan Collins, a partner with the law firm Ballard Spahr and an expert on environmental regulations, said the evidence against the tobacco industry is pretty substantially different from the idea that Exxon may have duped me from getting a low-mileage [car] and now the island of Tuvalu is going to get covered by water.”
And as Kevin Ewing, an attorney with the Houston law firm Bracewell, explained, “Tobacco was shown to cause specific harm to specific individuals,” he added. “Not so with climate change, where we cannot yet discern the factual connection between a company’s conduct and individual harm, even though we can observe the global effects of climate change at large.”
At least 23 editorials from boards across the country have echoed these legal experts. Just to highlight a couple, Bloomberg News said Schneiderman’s actions are a “dangerous arrogation of power.” The Washington Post has expressed concern about the legal precedent of pursuing “criminal penalties over those involved in a scientific debate.” The New York Post has called Schneiderman’s investigation “a purely political vendetta in a blatant abuse of office.” Financial Times said, “The legal basis for these actions seems flimsy…Beyond that, the implications of the investigations for free speech on public policy issues are alarming.”
Which leaves us with the biggest question: if #ExxonKnew is now longer about what Exxon knew, what exactly is the motive here?