Why, then, Was Exon Mobil Taken to Court Over ‘Climate Change’?



by Selvam Canagaratna

‘What men call gallantry, and gods adultery, / Is much more common where the climate’s sultry.’
— Byron, Don Juan, (1819-24)

The case of People of the State of New York v. Exxon Mobil Corp., concluded last week. It is part of a wave of litigation directed at the titans of the fossil fuel industry making its way through courts across the country. "It’s only the second climate-change case ever to go to trial in the United States," Michael Gerrard, a Columbia Law School professor and one of the world’s leading experts on climate liability litigation, told The Intercept. "And it’s the first where the plaintiffs were able to obtain discovery from any of the fossil-fuel companies," wrote The Intercept’s Ryan Devereaux.Should New York Attorney General Letitia James succeed in the case, Exxon Mobil could be on the hook for up to $1.6 billion in damages!

On paper, the Exxon Mobil case in New York was not about the climate crisis – at least not directly. Instead, the suit was about representations Exxon made to its shareholders about potential future costs related to the crisis. Those representations, the Attorney General’s office claimed, "were false and amounted to an enormous case of securities fraud."

As reporters waited for opening arguments to begin, news broke that the US Supreme Court had rejected a plea from more than two dozen multinational energy companies, Exxon Mobil included, to block a state-level lawsuit filed by the city of Baltimore – one of more than a dozen filed by state and local governments across the country. The following day, the Massachusetts Attorney General’s office filed its own lawsuit against Exxon Mobil – an even more sweeping case than the one unfolding in lower Manhattan!

Journalists at Inside Climate News, the Los Angeles Times, and the Columbia School of Journalism published a series of stories in late 2015 based on a trove of internal company documents and dozens of interviews describing how Exxon "conducted cutting-edge climate research decades ago and then, without revealing all that it had learned, worked at the forefront of climate denial, manufacturing doubt about the scientific consensus that its own scientists had confirmed."

Then-New York Attorney General Eric Schneiderman, soon joined by the attorneys general of Massachusetts and the Virgin Islands announced that they too would be joining New York in investigating Exxon Mobil.

Exxon’s pushback was immediate and intense. And the pressure had an effect: Three months after announcing that his office was joining with New York and Massachusetts, the Attorney General for the Virgin Islands withdrew his subpoena for nearly four decades’ worth of Exxon documents.

Among the measures Exxon took in response to the investigations was to hire Ted Wells, one of the nation’s most prominent white-collar defense attorneys, whose clients have ranged from I. Lewis "Scooter" Libby – the former adviser to Vice President Dick Cheney – to financial giants such as Citigroup, Bank of America, and JP Morgan.

Tall and bald, with a voice that carries, Wells zeroed in on Schneiderman’s 2016 press conference in his opening statement in New York, describing it as the extension of an "agenda to vilify ExxonMobil falsely." "Your Honour, I know at the end of the day, you will base your decision on the four-corners of the complaint, but I think the question in everybody’s mind is the elephant in the room: Why would they do something like this?" and then answered his own question: "They did it because they didn’t stay in their lane of objectivity and fairness. They got confused. Eric Schneiderman took them into the wrong lane. And I hope they get back ultimately into the right lane."

To Bill McKibben, the well-known environmentalist author and founder of 350.org, the current moment feels like the start of a new chapter. "We’re at the very beginning of what will be a long, official reckoning for one of the really astonishing crimes of our time," McKibben told The Intercept. "The underlying offenses started a very long time ago, the very end of the 1980s and the 1990s, with the decision to build this architecture of deceit and denial around whether climate change was real – a question that the oil companies knew full well the answer to."

While reliance on the courts can be a tricky thing for activists – "because they’re out of your control in the end" – McKibben highlighted one case in particular as deserving of "special credit" in this moment of heightened legal action: Juliana v. United States.

Known as the "climate kids" lawsuit, the case was filed in 2015 on behalf of 21 youth plaintiffs. Juliana differs from the other major climate cases playing out in New York, Massachusetts, and elsewhere: It sets its sights on the government, arguing that through its actions to permit, authorize, and subsidize the fossil industry – while at the same time understanding the catastrophic harm that industry was causing – the government violated the plaintiffs’ constitutional rights and failed to protect them under the doctrine known as public trust.

The legal rationale behind the litigation was developed by Mary Christina Wood, a law professor at the University of Oregon, whose theory of "Atmospheric Trust Litigation" argues that the legal canon of public trust – the idea that the government must protect critical environmental systems for the public good – should also apply to the atmosphere. Thus, the government would be required to pursue actions that will protect, rather than endanger, the environmental well-being of future generations.

On November 10, 2016, two days after Trump’s election, Ann Aiken, a federal judge in Oregon, denied a government motion to dismiss the case. "I have no doubt that the right to a climate system capable of sustaining human life is fundamental to a free and ordered society,"

If it does succeed, implications for the fossil fuel industry could be historic.

"It’s done an enormous amount to educate," McKibben said. "And it’s gotten further than I think a lot of people thought it would when it first began. Great credit to them."

The state rested its case in the New York Exxon Mobil trial late last week. Wells, the Exxon attorney, described the "meritless" case as a "cruel joke." A verdict is expected in December.

The most high-profile witness to take the stand during the multiweek affair was former Exxon CEO Rex Tillerson, who oversaw the company for a decade before embarking on a one-year stint as Secretary of State under President Donald Trump.f Tillerson was unnerved by the questions from the Attorney General’s office, he didn’t show it. Dressed in a navy blue suit and a red tie, the longtime oil man explained how Exxon takes climate change seriously and had in fact spent years researching the issue. He left out the parts about the company keeping its critical findings secret while waging a disinformation war to undermine outside climate science that was coming to the same conclusions.

In recent years, Tillerson told the judge, Exxon has laid claim to the "largest and most diverse resource base in the industry," with a total of 92 billion barrels of elemental materials under its control – 25 billion in proven reserves, 28 billion in the design or development stage, and 39 billion in the evaluation stage. When it came to the climate crisis and how it would impact Exxon’s overall strategy, its day-to-day operations, and its obligations to shareholders, Tillerson said, "We tried to be responsible.

At the same time, he acknowledged, "We are in the depletion business."

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