ExxonMobil has gone on the offensive against those who have taken the oil giant to court in a series of Climate Change lawsuits. The company is going after the lawyers taking it to court in an apparent attempt to reframe itself as the victim of a conspiracy.
According to a Bloom-berg report, New York City and eight California cities and counties, including San Francisco and Oak-land, have sued Exxon and other oil and gas companies.
These cities allege that oil companies denied findings of climate-change scientists despite knowing that the use of fossil fuels posed “grave risk” to the planet. Specifically Attorneys General Eric Schneiderman of New York and Maura Healey of Massachusetts, are investigating whether Exxon covered up information on climate change defrauding shareholders and consumers.
The company has responded by targeting at least 30 people and organizations, including Schneiderman and Healey, hitting them with suits, threats of suits or demands for sworn depositions.
Others targeted include Matthew Pawa, whose firm represents Oakland, San Francisco and New York in their suits against Exxon.
The company is also seeking testimony from 15 municipal lawyers and officials in California. Exxon said it’s seeking evidence for “an anticipated suit” claiming civil conspiracy and violation of its First Amendment and other Constitutional rights.
According to ExxonMobil the lawyers, public officials and environmental activists are “conspiring” against it in a coordinated legal and public relations campaign which violates its free speech rights.
“The attorneys general have violated ExxonMobil’s right to participate in the national conversation about how to address the risks presented by climate change,” Dan Toal, a lawyer who represents Exxon is quoted as saying. “That is the speech at issue here — not some straw man argument about whether climate change is real.”
Labeling the campaign “The La Jolla playbook ” Exxon contends that two dozen people hatched a strategy against it at a meeting six years ago in an oceanfront cottage in La Jolla, California. The company had previously (in 2016) accused the Rockefeller family of waging a similar campaign through the provision of funding for much of the research and reporting that has called the company to account for its climate policies.
The Bloomberg report quotes an expert in complex litigation and a professor at Fordham Univer-sity School of Law in New York, Howard Erichson as saying that Exxon strategy is “an aggressive move.”
“Does Exxon really need these depositions or is Exxon seeking the depositions to harass mayors and city attorneys into dropping their lawsuits?” Ericson questioned.
Other experts are reported as saying that Exxon’s combative strategy is a clear sign of what’s at stake for the fossil-fuel industry.
Having denied the allegations it faces, Exxon says its defence is intended to show that it’s being punished for not toeing the line on climate change, even though it agrees with the scientific consensus.
Plaintiff lawyers and legal experts however contend that the oil giant’s tactics are meant to intimidate while shifting the spotlight away from claims of environmental damage. They also contend that there’s nothing improper about lawyers discussing legal strategies together.
“It’s crazy that people are subpoenaed for attending a meeting,” said Sharon Eubanks, a lawyer who was at the La Jolla gathering. “It’s sort of like a big scare tactic: reframe the debate, use it as a diversionary tactic and scare the heck out of everybody.”
Bloomberg notes that Exxon has focused on the La Jolla meeting as ground zero for its conspiracy claim.
The Rockefeller Brothers Fund, a nonprofit run by descendants of John D. Rockefeller who are pressing Exxon to address climate change issues, has funded organizations that led the La Jolla conference (Exxon, which grew out of John D.’s Standard Oil, also subpoenaed the fund to testify.)
A 35-page summary that was later made public explained that participants at the gathering met to discuss litigation strategies that could be applied to climate change.
Eubanks, a former Justice Department lawyer, talked about how the U.S. government used the racketeering law against cigarette makers, for example and more than four years after the meeting, received a subpoena from Exxon to testify about it. The subpoena is pending.
Last month, Exxon asked a state judge in Fort Worth, Texas, to order Pawa to turn over documents and testify under oath about the La Jolla conference and other conversations with lawyers and activists. He’s also been subpoenaed to testify in a federal action Exxon has brought against the state attorneys general.
Contrary to Exxon’s claims experts in litigation are reported as saying that lawyers in big lawsuits, including those targeting tobacco, guns and pharmaceuticals, routinely meet to share information and coordinate strategy.
“I don’t think there’s anything wrong with plaintiffs’ lawyers and attorneys general strategizing together,” said Fordham professor Erichson, ”just as I don’t think there’s anything wrong with lawyers for oil companies strategizing together.”
General Counsel of the National Association of Manufacturers, Linda Kelly, however has a different opinion. She has said the climate litigation is really a play for money and votes.
“It’s a coming together of plaintiffs’ lawyers who have a profit motive and a liability theory, environmental activists who have a political agenda and politicians who are looking to make a name for themselves with this issue,” Kelly said.
The most notable attack on a plaintiff lawyer in recent years came in 2011 when Chevron Corp., claiming it was target of an extortion scheme, successfully pursued a civil racketeering suit against Steven Donziger, the attorney behind a $9.5 billion Ecuadoran judgment against the company over pollution in the Amazon.
However experts say Exxon’s strategy goes beyond mere litigation tactics.
“People often try to use litigation to change the cultural conversation,” said Alexandra Lahav, a professor at the University of Connecticut School of Law, pointing to litigation over guns and gay rights as examples. “Exxon is positioning itself as a victim rather than a perpetrator.”