State AGs’ ‘Al Gore problem’ revealed in district court hearing today

#ExxonKnew activist Naomi Oreskes admitted she’s been working closely with Attorney General Schneiderman on his investigation

By Katie Brown, PhD, EnergyInDepth

The politics of the #ExxonKnew campaign took center stage in U.S. District Court today as attorneys for Exxon Mobil requested injunctive relief from Massachusetts Attorney General Maura Healey’s subpoena for company records.

Healey’s office has denied any political motivation for its subpoena, which was announced earlier this year during an “AGs United for Clean Power” press conference that featured former Vice President Al Gore. For much of today’s hearing, a photo of that press conference was displayed on screen.

As the legal case for #ExxonKnew collapses – and as New York Attorney General Eric Schneiderman continues to change his justification daily for launching this near-unprecedented action  – today’s hearing is just the latest event to showcase how this is a political crusade parading as a “legal case.”

The hearing today also showed how Al Gore’s involvement in all this could create legal headaches for the attorneys general who have signed on to the campaign.

When the lawyers representing Healey’s office tried to put forth the argument that their subpoena was not political, Judge Ed Kinkeade was not exactly buying it. He challenged Healey’s legal team to explain how a case like this could not be based on politics, adding in jest: “like Al Gore wasn’t frickin’ involved!”

Of course, the very fact that the AGs formed a climate coalition at all – not to mention that it featured Al Gore – speaks volumes.

Healey’s office argued today that the case was analogous to what the attorney general did during the Volkswagen emissions case. But as a June letter from 13 Republican attorneys general denouncing these investigations explains,

“[T]hough some of us may have investigated diesel emissions, we have not launched our investigations with other auto companies present or identified ourselves as ‘AGs United for Diesel Alternatives.’ Implying a safe harbor for the ‘Clean Power’ energy segment, which some estimate at $200 billion, or approximately the size of the pharmaceutical industry, is a dangerous practice.”

Legal experts and columnists say #ExxonKnew investigations politically motivated; not on solid legal ground

After the Wall Street Journal broke the news last week that Schneiderman had changed his tune again (in a nutshell he went from saying his investigation was about what Exxon “knew” to what it “predicts” to what it “failed to predict”), a number of legal experts and columnists have noted that he is on very shaky legal ground.

Tristan Brown, a lawyer and assistant professor of Energy Resource Economics at State University of New York, wrote in a Seeking Alpha piece that Schniederman’s shift in focus highlights the huge flaws in his investigation. As Brown puts it,

“To borrow an analogy from American football, it strikes me that Mr. Schneiderman’s office called Hail Mary passes on the first two plays of possession. Those failed to result in a quick touchdown and now, with allegations swirling that they were actually part of a campaign fundraising effort, his office has settled for a basic run play in the hope of extending the drive or, at the very least, gaining better field position for a punt.”

Reuters columnist Sara Silver published a piece this morning looking at Schneiderman’s shifting justification, making the point that “The third time isn’t looking like the charm for New York’s attorney general.”

“The attorney general’s pursuit of Exxon has brought accusations that it’s politically motivated. However ambitious he may be, though, Schneiderman is entitled to scrutinize companies’ disclosures. The trouble is, it’s beginning to look as if he is struggling to find any incriminating evidence. If he can’t produce it soon, he’d be better off backing down.”

Prof. Jonathan Turley of George Washington University Law School, whom Politico Pro called a “liberal law professor,” testified at last week’s Science Committee hearing on Congressional oversight of state attorneys general involved in ExxonMobil climate RICO investigations. As he explained,

“Indeed I think that for public interest groups, many of which I support, the arguments go too far. For these groups this amounts to sawing off the branch you’re sitting on. Because the arguments being made against the committee are the same arguments that were made against the original investigation in terms of countermanding free speech, associational rights and the like.” (emphasis added)

As for the attorneys general themselves, Turley noted,

“And I don’t think that the state attorneys general are trying to [return to a McCarthy-era ‘Red Scare’]. I do think that they have been incautious. I do think that what they have done contravenes academic freedom and free speech, even though I agree with their position on climate change.” (emphasis added)

Elizabeth Price Foley, a constitutional law professor at Florida International University College of Law, also testified before the committee, explaining,

“When the attorneys general used their prosecutorial power to investigate scientists because the scientists are not embracing an orthodox view of climate change or anything else – that is an abuse of prosecutorial power.” (emphasis added)

Exxon only the beginning

One particularly telling moment occurred when Judge Kinkeade asked Healey’s team how it came to be that it was only focusing on ExxonMobil.  If this were about climate change, shouldn’t other energy companies be on the radar? Healey’s team admitted that if they were successful in their efforts against Exxon, they may look other places as well.

Of course, that’s right in line with what #ExxonKnew activists have been pushing for all along.  At a friendly forum hosted by the Congressional Progressive Caucus #ExxonKnew activist Naomi Oreskes not only admitted that she’s been working closely with Schneiderman on his investigation, but that if she had the subpoena power of a congressional committee or a state attorney general, she would issue subpoenas to other energy companies.

Originally posted Sept 19, 2016 at EnergyInDepth