On Thursday, an intermediate appellate court in Texas reluctantly denied a petition filed by ExxonMobil that sought pre-suit discovery of attorney Matt Pawa and the California municipalities bringing public nuisance lawsuits against the company for the alleged damages caused by climate change.
Although the Second Court of Appeals in Fort Worth ultimately dismissed the petition, the three-justice panel expressed reluctance in its opinion, acknowledging the merits of ExxonMobil’s claims and criticizing the municipalities for engaging in “lawfare” to pursue “environmental policy changes”:
“Lawfare is an ugly tool by which to seek the environmental policy changes the California Parties desire, enlisting the judiciary to do the work that the other two branches of government cannot or will not do to persuade their constituents that anthropogenic climate change (a) has been conclusively proved and (b) must be remedied by crippling the energy industry. And we are acutely aware that California courts might well be philosophically inclined to join the lawfare battlefield in ways far different than Texas courts.” (emphasis added)
Despite its “impulse to safeguard an industry that is vital to Texas’ economic well-being,” the court found its hands bound by a technical legal issue; the question at hand being if ExxonMobil’s petition had proper jurisdiction to target out-of-state actors. Overturning a lower court’s decision, the Second Court of Appeals ruled that Pawa and the California officials “lack the requisite minimum contacts with Texas to be subject to personal jurisdiction” in the state, and therefore cannot be compelled to cooperate in pre-suit discovery.
But, as put by ALM Media’s Angela Morris, “the final two pages of the 49-page majority ruling made it clear the justices really wanted to side with Exxon.”
Background
In January 2018, ExxonMobil filed a petition in Tarrant County District Court seeking pre-suit discovery under Texas Rule of Civil Procedure 202 to see if it could sue the California municipalities for constitutional violations and conspiracy.
The company asked for the authority to depose and obtain documents from fifteen local California public officials from the cities of Imperial Beach, Oakland, San Francisco and Santa Cruz and the counties of Marin, San Mateo and Santa Cruz, in addition to Hagen Berman’s attorney Matt Pawa, who at the time represented the cities of Oakland and San Francisco in their respective public nuisance climate change lawsuits.
In its petition, the company argued that the municipalities are “attempting to stifle ExxonMobil’s exercise, in Texas, of its First Amendment right to participate in the national dialogue about climate change and climate policy.” Discovery could therefore support potential claims of the “abuse of process, civil conspiracy and violations of ExxonMobil’s constitutional rights” the company could bring in a countersuit against the local officials and Pawa.
The municipal public officials challenged the jurisdiction of ExxonMobil’s petition and asked that it be dismissed. Tarrant County District Judge R.H. Wallace Jr. denied their requests in 2018, effectively ruling that the petition 1) was warranted and 2) belonged in Texas district court; that decision was subsequently appealed to the Second Court of Appeals.
What is Legal is Not Always Just
Though the appellate court overturned Judge Wallace’s final ruling, its opinion included a recitation of his 2018 Findings of Fact and Conclusion of Law that acknowledged that the California municipalities may have “brought these lawsuits for an improper purpose.”
In addition, the ruling explains that the municipalities’ “bond-offering disclosures are at odds with the claims made in their lawsuits” and includes a factual background that details Pawa’s “climate crusade” against ExxonMobil.
The justices, for example, describe Pawa’s involvement in the La Jolla conference, where “participants … planned to enlist state attorneys general to launch investigations into climate change that could bring ‘key internal documents to light’” and his attendance at a 2016 Rockefeller Family Fund meeting that was set up “to discuss the goals of an ‘Exxon campaign.’”
The 49-page opinion also notes Pawa’s participation in a “closed-door meeting” with the Massachusetts and New York attorneys general before the Green 20 press conference in March 2016:
“Just before that March 2016 press conference, Pawa and Frumhoff attended a closed-door meeting with the AGs, and Pawa briefed them on ‘climate[-]change litigation.’ Pawa tried but failed to conceal from the media his involvement in the meeting. During the press conference, the AGs promoted regulating the speech of energy companies like Exxon—companies that they perceived as hostile to AGs’ policy responses to climate change.” (emphasis added)
With this knowledge, Chief Justice Bonnie Sudderth filed a concurring opinion lamenting the position she was in and urging the Texas Supreme Court to eventually take up the case, should ExxonMobil appeal this decision:
“As intermediate appellate court justices, we are, on occasion, somberly reminded that our job is not to mete out justice, but to apply the law. For me, this is one such occasion.
“I urge the Texas Supreme Court to reconsider the minimum-contacts standard that binds us.” (emphasis added)
As Justice Sudderth implied in her ruling, there is a clear pattern of activists utilizing the legal process to stigmatize fossil fuel producers – technical questions about jurisdiction don’t change that fact.
