Texas Governor Greg Abbott has urged his state’s Supreme Court to accept a case that seeks to look into constitutional violations and conspiracy potentially committed by environmental plaintiffs’ attorney Matt Pawa and several California municipal officials suing energy companies for their alleged role in climate change impacts.
On Thursday, Governor Abbott filed an amicus brief supporting ExxonMobil’s effort to overturn a Texas appellate court decision that dismissed the company’s petition to conduct pre-suit discovery and depositions against Pawa and the California officials:
“When out-of-state officials try to project their power across our border, as respondents have done by broadly targeting the speech of an industry crucial to Texas, they cannot use personal jurisdiction to scamper out of our courts and retreat across state lines.”
Although a three-justice panel of the state’s Second Court of Appeals in Fort Worth criticized the municipalities for engaging in “lawfare” to pursue “environmental policy changes,” it held that Pawa and the California officials “lack the requisite minimum contacts with Texas to be subject to personal jurisdiction” in the state. The appellate court said that for Texas courts to have jurisdiction over the California parties, their conduct would need to target Texas – and not just one of the state’s residents.
In his brief, Governor Abbott argued that the decision contradicts federal rulings and thus Texas should exercise jurisdiction over the “California officials who have deployed abusive litigation to dictate the behavior and speech of the energy industry in Texas” (emphasis added). He continued:
“After all, no Texan voted for any of these meddling California officials. Respondents should mind their own business in California if they want to stay out of court in Texas.” (emphasis added)
In a filing last month, the company explained that the appellate court erred in that ruling, because Pawa and the officials brought these suits to “[conform] Texas energy and climate policy to California’s preferred policies,” an effort that is an “affront to Texas sovereignty.”
As such, Pawa and these officials should be subject to personal jurisdiction. The company argued that the lawsuits are “a purposeful, strategic targeting of the Texas energy sector,” amounting to an “assault on free speech and association within Texas, meant to shape public policy through litigation”:
“It would be shocking if Texas courts lacked jurisdiction over those who intentionally direct tortious conduct at the state. …Potential defendants have targeted the state by filing lawsuits against 18 Texas-based oil and gas companies to suppress free speech in Texas and coerce the adoption of so-called progressive views on climate change in Texas. Their attempt to wrest an important policy debate from Texas citizens is an assault on Texas itself.” (emphasis added)
The company argued that if Pawa and the municipal officials’ “lawfare” is successful, “they will deprive all Texans of their First Amendment rights ‘to inquire, to hear [and] to use information’ from [the energy] industry.”
In January 2018, the company filed a petition under Texas Rule of Civil Procedure 202 – a unique statute that allows for pre-suit discovery to investigate the initiation and motivations behind a lawsuit – to find out if the California litigation had been brought “for an improper purpose.”
Tarrant County District Court Judge H. Wallace Jr. ruled to let the case move forward later that year, finding that the petition was both warranted and belonged in Texas district court.
An appellate court reluctantly overturned Judge Wallace’s ruling in June 2020; in a concurring opinion, however, Second Court Chief Justice Bonnie Sudderth lamented the position she was in and urged 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)
Along with Chief Justice Sudderth, Governor Abbott joins the Texas Oil & Gas Association, Texans for Lawsuit Reform and the Texas Association of Business, and the Texas Civil Justice League in calling for the state Supreme Court to take up ExxonMobil’s petition for review.
A decision from Texas’s high court is expected in the coming months. Should it choose to review the case, it will once again open the door to learning more about the coordination and motivations behind these lawsuits – and potentially others like it.
