ExxonMobil’s Threat to Climate Science, and to Law Enforcement
Absent an egregious abuse of civil rights, federal courts rarely intervene in state law enforcement prior to a conviction, and almost never step in prior to an arrest or indictment. Regular folks subject to a criminal investigation have to comply with subpoenas from prosecutors and grand juries unless they assert their right against self-incrimination.
Not so for ExxonMobil, which last week amended a request to a federal court in Texas, asking that it kill a subpoena issued by New York Attorney General Eric Schneiderman just as had in the case of a similar subpoena served on ExxonMobil by Massachusetts Attorney General Maura Healey.
The federal court’s willingness to stop state law enforcement at ExxonMobil’s behest should be concerning to every American who expects major corporations to obey the law.
The subpoenas at issue were sparked in part by independent investigations by InsideClimate News and the Los Angeles Times, showing that Exxon’s own scientists had confirmed as early as the Nixon Administration that carbon emissions from fossil fuel use are responsible for climate change, and that if unchecked, those emissions would be catastrophic. By 1978, ExxonMobil’s then Scientific Advisor J.F. Black was telling the corporation that “[p]resent thinking holds that man has a time window of five to ten years before the need for hard decisions regarding changes in energy strategies might become critical… Atmospheric scientists generally attribute this growth in CO2 to the combustion of fossil fuel.”
Internally, the corporation used its undisputed science to enhance its bottom line, hardening oil rigs and pursuing arctic oil fields once thought inhospitable to exploration.
But externally, ExxonMobil spent hundreds of millions of dollars on lawyers, lobbyists, advertising, and deceptively named shills (“the Global Climate Coalition,” “Frontiers of Freedom”) to undermine the very climate science it had confirmed and was using internally, a pattern of deceit stretching from the Nixon era through the Obama Administration. Last year alone, according to Bloomberg News, ExxonMobil and three other corporations or front groups spent over $115 million to cast doubt on the current and largely undisputed scientific consensus on climate change.
For most, the policy and political implications of this deceit are obvious. But the unlawfulness and possible criminality of this deceit may not be. That’s why the investigations by Eric Schneiderman, Maura Healey and over a dozen other state attorneys general working with them, as well as a separate investigation by the Securities and Exchange Commission (SEC), are so important. And it’s why Exxon is so plainly desperate to put up roadblocks in their way – roadblocks that would never be available to an ordinary citizen subject to a government investigation.
How could ExxonMobil’s climate deceit break laws and result in crimes? In many possible ways:
* Fraud on the markets: The U.S. has some of the strictest criminal laws in the world for misleading shareholders, and the certainty that fossil fuel use will be curbed has direct impact on the value of ExxonMobil’s fast fossil fuel holdings and the future viability of its business model. As the attorney general who polices Wall Street, Mr. Schneiderman has no choice but to investigate.
* Fraud in consumers: Many states have strict laws in place imposing civil or criminal liability on companies that engage in deceptive advertising. Here again, attorneys general charged with enforcing those laws have a duty to investigate whether ExxonMobil crossed the line into criminality.
* False statements to regulators: Exxon’s vast operations are extensively regulated, and most of that regulation depends on reporting by the company itself, on issues ranging from how they manage polluted water to what safeguards must be in place to protect surrounding communities. Like the federal government, states generally have laws making false statements to regulatory agencies a crime, and the attorneys general have a compelling basis to believe ExxonMobil’s climate deceit resulted in a myriad of criminal acts.
In a recently filed civil lawsuit, the first in the nation holding Exxon accountable for its climate deceit, our organization has found that ExxonMobil routinely lied to regulators about the readiness of its Everett, Massachusetts facility to manage both existing and future climate conditions without a potentially catastrophic release of oil and hazardous substances in surrounding, densely populated communities. Those false statements alone justify Attorney General Healey’s investigation, which the federal court in Texas has hobbled at the behest of the corporation.
ExxonMobil’s decades-long climate deceit has poisoned our politics and brought us to the brink of a global crisis. Federal courts should not be giving the corporation unheard-of-protection from states probing ExxonMobil’s law-breaking in perpetrating that deceit.