Stephanie Ebbert / The Boston Globe – 2017-01-12 23:44:12
http://www.bostonglobe.com/metro/2017/01/11/healey-wins-showdown-with-exxon-mobil/HwActch6RI8WQVKdlfJJ9I/story.html
Healey Wins Showdown with Exxon Mobil
Stephanie Ebbert / The Boston Globe
(January 11, 2017) — Massachusetts Attorney General Maura Healey won a major legal showdown against Exxon Mobil on Wednesday, when a judge ruled that the company must turn over 40 years of documents on climate change.
Suffolk Superior Court Judge Heidi E. Brieger denied the company an emergency motion or a protective order that would have blocked Healey’s demand for the company’s internal research on global warming.
The decision came on the same day Exxon Mobil’s former CEO Rex Tillerson was grilled by the Senate over his nomination to become President-elect Donald Trump’s secretary of state and refused to answer questions about Exxon’s understanding of climate change.
The ruling is a major victory for Healey, who, along with the attorney general of New York, pursued probes into Exxon Mobil after reports published in 2015 suggested the company had encouraged climate-change confusion for years after its own scientists established the risks.
In a statement, a spokeswoman for Healey said the Massachusetts court had affirmed her authority to investigate potential fraud and she blasted Exxon for its aggressive pushback.
“Exxon must now end its obstructive tactics and come clean about whether it misled Massachusetts consumers and investors about what it knew about climate change, its causes and effects,” she said.
An Exxon spokesman said the company is reviewing the decision.
Healey still faces a complaint from Exxon Mobil in a federal court in Texas, where the company is based. The judge in that case had seemed inclined to favor Exxon, originally demanding that both attorneys general appear in Texas to defend their jurisdiction. But he has postponed hearings and depositions while awaiting additional briefs due Feb. 1.
In the Massachusetts decision issued Wednesday, Brieger refused to grant Exxon Mobil a stay pending resolution of the case in Texas, determining the matter should be heard in Massachusetts, because it involves the Massachusetts consumer protection statute and Massachusetts case law arising under it, “about which the Massachusetts Superior Court is certainly more familiar than would be a federal court in Texas.”
After Healey announced her probe, Exxon Mobil sued Healey in two separate courts claiming she lacked jurisdiction to investigate, her demand was unreasonable, and her effort, politically motivated. As evidence, Exxon cited her comments at a March 2016 press conference as prejudicial.
Specifically, she had said: “Fossil fuel companies that deceived investors and consumers about the dangers of climate change should be, must be, held accountable. . . . We can all see today the troubling disconnect between what Exxon knew, what industry folks knew, and what the company and industry chose to share with investors and with the American public.”
Brieger wrote that Healey was merely explaining the basis for her belief that Exxon might have violated consumer protection statutes. The attorney general has not only the right, but also the duty to investigate the company if she believes it misled consumers and investors, Brieger ruled.
“Nothing in the Attorney General’s comments at the press conference indicates to the court that she is doing anything more than explaining reasons for her investigation to the Massachusetts consumers she represents,” Brieger wrote.
The judge also rejected Exxon’s argument that Healey’s request for documents lacked specificity and imposed an unreasonable burden on the company. Instead, Brieger wrote that the demand “seeks information related to what (and when) Exxon knew about the impacts of burning fossil fuels on climate change and what Exxon told consumers about climate change over the years.” The company had already provided documents to the New York attorney general, she noted.
Exxon has argued that the attorneys general, along with environmental groups, were scapegoating the company and mischaracterizing its research, which it says was evolving along with scientific consensus over time. Exxon Mobil dropped its public arguments denying climate change in 2007.
The probe by the attorney general is one of several efforts being waged through the courts. Additionally, environmental and community groups are trying to prod action on climate change through the courts by seeking to prove that companies profiting from fossil fuel consumption over the past four decades were well aware of the harm their product was causing to the planet.
The Conservation Law Foundation sued Exxon in US District Court in Boston in September over its failure to prepare its gas terminal in Everett for the foreseeable effects of global warming, and the toxic spills that could result from heightened sea levels and storm surges on the surrounding communities.
Environmentalists, who had been outraged that Exxon Mobil responded to Healey’s investigation with a lawsuit, celebrated the ruling Wednesday.
“Today’s decision sends a strong signal that no corporation is above the law,” said Conservation Law Foundation president Bradley Campbell. “Exxon Mobil has spent decades deceiving the public and gambling the health and safety of communities across the state, and Maura Healey has not just the right but the responsibility to investigate the full extent of the company’s wrongdoing.”
Environmental groups were also trying to draw attention to their issue with the spotlight on Tillerson, who just stepped down from Exxon after working there for more than 40 years, the past 10 as CEO.
At Tillerson’s confirmation hearing Wednesday, Democratic Senator Tim Kaine, who was Hillary Clinton’s running mate in the November election, questioned him about the company’s history on climate change.
“I’m asking you whether those allegations about Exxon Mobil’s knowledge of climate science and decision to fund and promote a view contrary to its awareness of the science, whether those allegations are true or false,” Kaine said.
Tillerson demurred. “The question would have to be put to Exxon Mobil.”
That prompted Kaine to ask: “Do you lack knowledge to answer my questions or are you refusing to answer my question?”
Tillerson answered: “A little of both.”
Massachusetts Politicians, Environmental Groups Target Exxon Mobil on Climate Change
Stephanie Ebbert / The Boston Globe
(December 19, 2016) — When he faced off with Exxon Mobil chief executive Rex Tillerson 6½ years ago, Edward J. Markey seized on walruses, to great effect.
Then chairman of a House subcommittee investigating the BP oil spill, Markey highlighted the sloppiness of four oil companies’ spill-response plans — nearly identical reports produced by one consultant, all featuring the same cringe-worthy reference to saving walruses in the Gulf of Mexico.
“As I am sure you know, there aren’t any walruses in the Gulf of Mexico, and there have not been for 3 million years,” Markey said, eliciting from the iron-jawed Tillerson this deadpan utterance: “It’s unfortunate that walruses were included.”
Now, Markey is on the Senate Foreign Relations Committee, which plans vigorous confirmation hearings on Tillerson’s nomination as secretary of state.
And Massachusetts environmental leaders and politicians, who had already cast Exxon Mobil as their lead villain in the story of climate change, are relishing the new forum for their ongoing fight against Big Oil.
Massachusetts activists have been trying to make an example of Exxon Mobil, through various legal efforts aimed at faulting the company for failing to prepare the world for the established effect of its products’ use: climate change.
In the first lawsuit of its kind, filed in September, the Boston-based Conservation Law Foundation contends Exxon Mobil has failed to prepare for rising sea levels and severe weather caused by climate change, potentially exposing the public to toxic breaches around its oil terminal on the Mystic River in Everett. While the lawsuit focuses on local concerns, its aim is clearly sweeping.
The lawsuit, the foundation says on its website, sets a precedent “for the dynamic role of local advocacy in taking down global giants.”
At the same time, Massachusetts Attorney General Maura Healey is seeking documents from Exxon Mobil for an investigation into what the company knew internally about the science of global warming over time.
Both legal actions followed reports in InsideClimate News and the Los Angeles Times suggesting the company’s scientists had accepted the legitimacy of climate change long before the company dropped its public arguments encouraging doubt and denial in 2007.
Exxon Mobil has disputed the conclusions of those reports and has resisted Healey’s investigation, refusing to turn over documents. Healey is hoping the Senate confirmation hearings will prod more action.
“If there’s a confirmation hearing in a matter of weeks or months, he’s going to be called upon to answer any number of questions,” said Healey, “including the questions that we’ve been asking for a long time here.”
George Bachrach, president of the Environmental League of Massachusetts, a nonprofit advocacy organization, said the hearing could become, “essentially, a free deposition — one that we might not have been able to get to, but for the fact of the nomination.”
Large corporations often have the financial resources and legal departments to prolong litigation for years, he noted.
“But all of a sudden you now have the CEO of the largest petroleum company on the witness stand, effectively, to be quizzed in the most public forum about what he knew and when he knew it,” Bachrach said.
Exxon Mobil had for years dismissed policy changes designed to curtail climate change, suggesting the evidence was not conclusive enough to warrant urgent action. The company signaled some shift in February 2007, the year after Tillerson became chief executive and after the United Nations’ Intergovernmental Panel on Climate Change declared unequivocally that the world was warming.
Tillerson stopped disputing the reality of global warming and agreed on the need to take action — while continuing to caution that there should be no rush to adopt policies to limit carbon emissions.
He has since called for a carbon tax and has expressed support for the Paris Agreement, an international pact designed to slow the rise of temperatures.
Environmental advocates remain skeptical about Exxon Mobil’s conversion, though, suggesting it’s saying the right things but not aggressively pursuing solutions.
A spokesman for Exxon Mobil, Alan T. Jeffers, declined to comment on the confirmation hearings. However, he has said the company’s research evolved concurrently with the global consensus on climate change and that the company intends to vigorously defend itself against the allegations raised by Healey and the attorney general of New York, in a parallel probe. Exxon Mobil contends the investigations are politically motivated and in bad faith.
The company has fought back, suing Healey in Massachusetts and Texas, where she was nearly sent for a deposition last week. (The judge who had initially scheduled the deposition is now entertaining additional briefs on jurisdiction.)
“This is a corporation that has taken the unprecedented step of actually suing a state attorney general to try to shut down an investigation,” Healey said. “That’s not good corporate practice. That’s just not the way we do business here in this country.”
Markey, Massachusetts’ junior senator, suggested the tactic by Exxon Mobil would carry over to the confirmation committee’s deliberations on Tillerson. He has already promised President-elect Donald J. Trump a major battle on the nomination.
“It’s this type of bullying tactic by Exxon that raises concerns about Rex Tillerson’s nomination to be America’s chief diplomat,” Markey said. “The rule of law and public transparency are bedrock American values that our secretary of state should reflect to the world.”
The Senate nomination hearings — already expected to be contentious because of Tillerson’s ties to Russia and a career spent exclusively at Exxon — could become a public debate on climate change, prodded by frustrated Democrats who are dismayed to see the incoming Trump administration employ so many Big Oil allies.
Ken Kimmell, president of the Union of Concerned Scientists, noted the secretary of state will be tasked with overseeing the Paris Agreement.
“My point is, he’s worked 40 years for this company and been CEO for the last 10 or so,” Kimmell said. “How does he get out of the mind-set of a fossil-fuel company that has every interest in expanding its oil and gas operation and understand he’s now representing a country as part of a world agreement that is moving in the other direction toward a clean-energy economy?”
Kimmell’s organization, based in Cambridge, has also been subpoenaed by Exxon Mobil, which is trying to show whether politicians were working with environmental groups behind the scenes to build a case against the company.
Even as Tillerson defends his record before the Senate and Exxon Mobil battles Healey in court, the Conservation Law Foundation’s lawsuit poses a quieter but potentially potent challenge to the oil company.
The heavy-hitting legal advocacy organization, which once forced the cleanup of Boston Harbor, filed the civil suit in US District Court in September. It accuses Exxon Mobil of violating the Clean Water Act and Resource Conservation and Recovery Act by failing to prepare for climate change.
The suit contends the company’s Everett terminal is especially vulnerable to sea level rise, increased precipitation, and an increased magnitude and frequency of storm events and storm surges due to its location, elevation, and lack of preventative infrastructure.
Because Exxon Mobil has not taken climate change into account, the suit says, the plaintiffs “are placed directly in harm’s way and have no reasonable assurance that they will be protected from pollutants released and discharged from the Everett terminal.
“Exxon Mobil is aware of these risks, yet has failed to design and implement protective measures to fortify the Everett terminal as required under federal law,” the suit asserts.
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