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ExxonMobil Calls Out New York AG For Shifting, 'Unraveling' Investigative Theories

ExxonMobil Corp. charged Friday that New York Attorney General (AG) Eric Schneiderman made "inflammatory, reckless and false allegations" to justify expanding his investigation with "ever-shifting and unraveling investigative theories" when he misstated how the supermajor assesses the potential impacts of climate policy on its business.

Schneiderman has spearheaded a probe of the Irving, TX-based company since late 2015, a back-and-forth legal battle that alleges ExxonMobil has misled investors about how its operations may impact climate change. The company has been subpoenaed for financial records, emails and other documents that date back to the 1970s under New York's Martin Act, which gives the state attorney general extraordinary powers and discretion to investigate financial fraud, exceeding those given any regulator in any other U.S. state.

"From the outset of this investigation, it has been clear that the attorney general is working backwards from an assumption of ExxonMobil’s guilt, searching in vain for some theory to support his prejudgment," ExxonMobil said in a brief filed with the Supreme Court of the State of New York. The case is People of the State of New York v PricewaterhouseCoopers LLP and ExxonMobil Corp., [No. 451962/2016]. The brief was filed by ExxonMobil’s lead lawyer, Ted Wells Jr., of Paul, Weiss, Rifkind, Wharton & Garrison LLP.

The latest salvo followed an amicus brief filed in April in U.S. District Court for the Southern District of New York by 11 Republican AGs that called for the wide-ranging investigation to be dismissed.

In the brief filed Friday, the company provided an explanation of how it uses a proxy cost of carbon to assist in assessing potential impacts of climate-change policies on global energy demand in its annual forecast, the Outlook for Energy. In addition, where appropriate, the company considers the impacts of current and potential future greenhouse gas regulations as one of many factors when assessing the economics of individual projects.

"The attorney general inaccurately alleged in a court filing on June 2 that the company's carbon pricing practice amounted to a 'sham' because the company used what he described as publicly stated figures of the proxy cost of carbon and a 'secret internal version' in its analyses," according to ExxonMobil. "Furthermore, he said he could find no evidence in millions of pages of documents turned over by the company of the consistent application of a proxy cost, but he points to no instance where a cost of carbon was not applied but should have been."

Said the brief, "For a prosecutor proceeding in good faith, the absence of any evidence of wrongdoing is grounds for closing an investigation, not expanding it. Even more frivolous is the attorney general's claim that it was inappropriate to use the actual cost of carbon...when assessing overall project economics, rather than hypothetical figures. There is no basis in law or logic to find fault for relying on actual costs when available."

Schneiderman suggested that the generally accepted accounting principles, aka GAAP, and U.S. Securities and Exchange Commission (SEC) regulations require ExxonMobil to use a single estimate of carbon pricing when evaluating impairment or estimating reserves. However, the brief indicated there is no such requirement under GAAP rules and SEC regulations governing reserve estimates "expressly bar consideration of the hypothetical impact of future policies, which is a key purpose of the proxy cost."

The company use of "different metrics, in different circumstances, to accomplish different goals evinces prudent financial stewardship, applying appropriate assumptions in appropriate cases. There is nothing untoward or surprising about any of this," the brief stated.

Schneiderman's latest claim, that ExxonMobil was internally underestimating the impact of climate change on its business "is in direct contradiction to the thesis that led to the investigation in the first place. When he launched the investigation at a press conference in 2015, Schneiderman accused ExxonMobil of downplaying the risks of climate change, but secretly taking the effects of climate change into account in its business decisions," the company said.

"This is just another example of the 'heads I win, tails you lose' approach to investigating employed by the attorney general," said the brief. "While it might be too much to expect consistency from the attorney general, his failure to present a coherent rationale for further investigation is fatal to his current plea to this court."

The brief was filed in support of an application to quash additional subpoenas issued by Schneiderman.

"The attorney general offers one justification for his new document subpoena: rank speculation that ExxonMobil's public statements about a proxy cost of carbon were false or misleading," said the brief. "Despite having 2.8 million pages of ExxonMobil's documents and 18 months to review them, the attorney general has found no valid basis for believing misrepresentations have taken place."

ExxonMobil also called out Schneiderman for distributing the filing to the media before submitting it to the court in what it called a transparent attempt at headlines.

"No further evidence is required to establish the political motivation of the attorney general's fruitless year-and-a-half long investigation pursing his ever-shifting and unraveling investigative theories," the brief said. "It is an abuse of the powers of his office and the court system itself, furthering only the attorney general's transparent political ambitions and ultimately bound to taint a prospective jury pool, thereby depriving ExxonMobil of a fair trial in the event this political witch hunt were to reach that unlikely stage."

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