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Massachusetts AG Strikes Back at ExxonMobil in Fight Over Climate Change Probe

ExxonMobil Corp.’s dispute with state attorneys general into the company’s climate change research is heating up, with a North Texas district court now holding a key in how the case moves forward. At the same time an industry group has charged the attorneys general coalition is politically directed at furthering the Obama administration’s climate change initiative.

New York AG Eric Schneiderman, later joined by 15 state and Washington, DC, AGs, last fall subpoenaed ExxonMobil, demanding financial records, emails and other documents that date back to the 1970s regarding its climate change research (see Daily GPI, June 30; Oct. 23, 2015).

Massachusetts AG Maura Healey, who joined Schneiderman’s probe, issued a separate subpoena in her state to ExxonMobil in April. ExxonMobil in turn sued Healey in U.S. District Court for the Northern District in Fort Worth to block the effort, calling the probe a “fishing expedition”  [ExxonMobil Corp. v. Healey, No. 4:16-cv-469]. ExxonMobil also sought in the Texas court to bar enforcement of Healey’s civil investigation demand (CID), also filed in Massachusetts.

In briefs filed late Monday, Healey urged U.S. District Judge Ed Kinkeade in Fort Worth to dismiss ExxonMobil’s lawsuit on the grounds that the rights of states to investigate corporate wrongdoing are being trampled. The lawsuit by ExxonMobil “is nothing more than an attempt to put its practices beyond the reach of state prosecutors,” Schneiderman said in a statement.

The brief, backed by states that include Mississippi, New Mexico, Oregon, Rhode Island and Vermont, said respect for states’ sovereign rights long has dictated that federal courts “should not needlessly impede this core duty of state attorneys general to detect and halt misconduct.”

Healey, in her brief, said the supermajor may have committed fraud by understating data and attempting to sow public doubt about climate change. She also accused ExxonMobil of “forum-shopping,” thus allowing the Texas court to intervene in a Massachusetts case.

“This court should reject Exxon’s transparent attempt at forum-shopping and dismiss this case,” the brief stated. “Exxon has challenged the validity of [Healey’s subpoena] in Massachusetts state court and will have a full and fair opportunity to press its claims there.

“Notwithstanding that fact, Exxon also elected to file a nearly identical suit in this court and asks the court to exercise personal jurisdiction over Attorney General Healey -- despite the fact that all relevant events alleged in the complaint occurred in Massachusetts or New York and no relevant events occurred in Texas.”

Healey also is opposing ExxonMobil’s attempt in the Texas court to obtain a preliminary injunction against the CID she filed in Massachusetts.

ExxonMobil had no comment on the pending court case. However, documents are being provided to Schneiderman under his separate subpoena, the brief indicated.

The pro-industry Energy & Environmental Legal Institute (E&E Legal) on Tuesday posted a copy of a letter dated March 7 of what the group claims is a “secrecy pact” between Schneiderman and Vermont AG William Sorrell to other “ideologically aligned” AGs.

The letter, obtained through state open records laws, invited other AGs to join in an “informal coalition…to stop climate change and expand the availability and usage of renewable energy.”

The letter, according to EE Legal, “makes the AGs’s claims to ‘privilege’ to keep their otherwise public records secret -- grounded in that purported 'common interest agreement,’ which plainly lacks the hallmarks such an agreement must have to be proper -- not just implausible but patently unlawful.”

The letter “makes inescapable the fact that the AGs’ goal was to defend and extend Obama’s environmental agenda,” said E&E Legal Executive Director Craig Richardson. “That is a political cause, which the AGs seek to extend by improper means, circumventing the proper, democratic political process.”

"It is unprecedented to have the top state law enforcement officers waging a political war on behalf of the president at the cost of the First Amendment protections they are charged with upholding," said E&E Legal’s Chris Horner, senior legal fellow. “This letter lays bare that the purpose of their investigations was to launch a political campaign to silence critics of the administration.”

E&E Legal plans to “pursue all public records these AGs are trying to keep secret by this purported CIA, or secrecy pact drafted” by Schneiderman’s office. The group already has filed several lawsuits toward that end.

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