In a long-expected move, U.S. District Court Judge Valerie Caproni dismissed ExxonMobil’s lawsuit against two state attorneys general yesterday. ExxonMobil had sued the officials for initiating “bad faith” investigations of the company’s climate research and related disclosures, alleging that the investigations were part of a larger political campaign against the company.

Those following the case have known for months that Judge Caproni was unlikely to side with ExxonMobil. But a careful reading of Judge Caproni’s decision reveals that she curiously downplayed the role of anti-fossil fuel activists in initiating and supporting the AGs’ investigations, while also ignoring relevant questions raised by the federal judge who previously presided over the case.

Judge Ed Kinkeade, the U.S. District Court Judge for the Northern District of Texas, stated a very different opinion of ExxonMobil’s case when he transferred it to Judge Caproni, whom he believed had jurisdiction over the case. Judge Caproni is a U.S. District Judge for the Southern District of New York, and the claims made by ExxonMobil centered on a March 29, 2016, meeting in New York City. The meeting preceded the infamous “Al Gore press conference” that same day.

In his order transferring the case to New York, Judge Kinkeade raised questions over New York Attorney General Eric Schneiderman’s and Massachusetts Attorney General Maura Healey’s motivations for investigating ExxonMobil:

“Was the action by the attorneys general attempting to squelch public discourse by a private company that may not toe the same line as these two attorneys general? Are the two attorneys general trying to further their political agendas by using the vast power of the government to silence the voices of all those who disagree with them?” (emphasis added)

While Judge Caproni seemed to accept all of Schneiderman’s arguments at face value and accused ExxonMobil of cherry-picking statements made by the AG, Judge Kinkeade expressed healthy skepticism of Schneiderman’s and Healey’s statements:

“The Court recognizes the authority of the attorneys general to conduct their respective investigations, however, the Court also recognizes how the attorneys general have conveniently cherry picked what they share with the media about their investigations.” (emphasis added)

Judge Caproni, however, was sympathetic to the views of Schneiderman and Healey, and dismissed evidence that showed the AGs were actively colluding with anti-fossil fuel activists, who have waged a multi-year campaign to attack the company and make millions of its internal documents available to the public.

At one point Judge Caproni writes:

“The SAC [Second Amended Complaint] presents this press conference [March 29, 2016] as the culmination of a campaign by climate change activists to encourage elected officials to exert pressure on the fossil fuel industry…The relevance of these allegations depends on two inferences: first, that the activists have an improper purpose—that is, that they know state investigations of Exxon will be frivolous, but they see such investigations as politically useful; and second, that this Court can infer from the existence of meetings between the AGs and the activists, that the AGs share the activists’ improper purpose. The Complaint and SAC do not plausibly allege facts to permit the Court to draw either inference.”

However, Judge Caproni’s statement ignores evidence she cites earlier in her 48-page opinion that confirmed the company’s allegation. Take, for example, a memo prepared for a meeting at the offices of the Rockefeller Family Fund and Rockefeller Brothers Fund, which have bankrolled the campaign against ExxonMobil.

The meeting gathered the leading activists in the anti-Exxon campaign and discussed their goals, including “To establish in public’s mind that Exxon is a corrupt institution that has pushed humanity (and all creation) toward climate chaos and grave harm” and “delegitimize them as a political actor.” The group also suggested using state AGs “for getting discovery” and “creating scandal,” while asking “Do we know which offices may already be considering action and how can we best engage to convince them to proceed?” (emphasis added)

One attendee of that meeting was Matt Pawa, who together with the Union of Concerned Scientists’ Peter Frumhoff pitched the assembled state AGs and their staffs on launching investigations of ExxonMobil. Pawa is currently leading climate liability lawsuits filed by New York City, San Francisco, and Oakland against ExxonMobil and other oil and natural gas companies. Both also presented at the infamous 2012 conference in La Jolla, Calif., where activists devised their playbook for convincing public officials to aid them in “getting discovery” of confidential industry materials.

In the playbook published after the conference, under a section titled “Strategies to Win Access to Internal Documents,” the activists write that “State attorneys general can also subpoena documents, raising the possibility that a single sympathetic state attorney generalmight have substantial success in bringing key internal documents to light” (emphasis added).

Contrary to Judge Caproni’s opinion, the evidence clearly shows that anti-fossil fuel activists found not one but two sympathetic attorneys general in Schneiderman and Healey.

Judge Caproni’s opinion continues:

“According to the SAC, Exxon’s political opponents, led primarily by Matthew Pawa and Peter Frumhoff, have, since a 2012 meeting in La Jolla, California, sought to use litigation to gain access to Exxon’s internal documents regarding climate change and to ‘maintain[] pressure on the industry that could eventually lead to its support for legislative and regulatory responses to global warming…There are no allegations that either the NYAG or MAG attended the La Jolla conference or the conferences in July 2015 and January 2016, so these allegations have limited relevance to the AGs’ motives in issuing the CID and Subpoena.”

What Judge Caproni curiously ignores is the widely reported pitch, mentioned numerous times elsewhere in her opinion, made by Frumhoff and Pawa on March 29, 2016, to convince more state AGs to join Schneiderman’s investigation. Judge Caproni also ignored a statementmade by Naomi Oreskes, a Harvard researcher and organizer of the 2012 La Jolla conference, to Congress in the summer of 2016:

I was invited about a year or so ago to New York to speak to the staff of the New York Attorney Generals’ office mostly about the work we did in Merchant of Doubt – the history of misinformation and what our findings were. It was a fact based presentation. And I also participated a few weeks ago in a meeting in Boston with some colleagues from the Union of Concerned Scientists, which also involved the staff of Attorney Generals offices from a number of states who came to listen to again factual presentations about climate science, history of climate disinformation and also a presentation by Sharon Eubanks who had led the US Department of justice prosecution of tobacco industry under the RICO statues.” (emphasis added)

Oreskes’ account was confirmed by Kathy Mulvey, a campaign director for the Union of Concerned Scientists, who also addressed Congress on the topic at the same hearing:

“UCS has also been involved in providing information to attorneys general who are moving into the issue on whether these companies violated any state laws in providing this information to shareholders and the public.  Our interest is really in ensuring they have access to the best science on which to base any actions and also documenting the responsibilities of these companies in terms of their emissions and their role in providing this information. So our chief scientist Peter Frumhoff who’s actually here with me as well and he has briefed a number of the AGs and he co-convened a session with the Harvard law school back in April that was attended by staff (inaudible) many of the AGs (inaudible).” (emphasis added)

Email showing the title of Matt Pawa’s presentation to state AGs: “What Exxon Knew – and When It Did Anyway”

This mountain of evidence, provided by the activists themselves, contradicts the opinion written by Judge Caproni. Discussing the presentation made by Frumhoff and Pawa to the AGs and their staff on March 29, 2016, Judge Caproni adds:

“Frumhoff’s presentation was entitled the ‘imperative of taking action now on climate change’ and Pawa’s presentation was on ‘climate change litigation.’…It is pure speculation to suggest that the content of the presentations was to encourage baseless investigations of Exxon.” (emphasis added)

Yet again, the evidence shows otherwise. Emails obtained from the Connecticut Attorney General’s office show that Pawa’s presentation to the AGs was called “What Exxon Knew – and What It Did Anyway.”

Though Judge Caproni dismissed ExxonMobil’s case, serious questions remain around the AGs’ investigations – including their collusion with anti-fossil fuel activists.

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Featured image source: NY AG’s office

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