California Attorney General Xavier Becerra has been noncommittal about whether his state is conducting or plans a climate fraud investigation against Exxon. Photo credit: Drew Angerer/Getty Images

By Seamus McGraw

It has been more than 18 months since Kamala Harris, then California’s attorney general, privately assured supporters that her office would join New York and Massachusetts in an aggressive probe of ExxonMobil. She seemed all but set to join the inquiry into whether the oil giant committed fraud by downplaying the science in its own climate change studies and misled its investors and the public on the nature of the threat.

Since then, Harris was elected to the U.S. Senate and her successor, Attorney General Xavier Becerra, has maintained near total silence on the status of the state’s investigation, refusing even to confirm that there is one.

But now, as Becerra gears up to run for his first full term as attorney general, he is facing mounting pressure both from environmental activists and from within his own party to take a prominent—and public—role in the ongoing investigation.

So far, he has resisted.

Becerra’s silence is in keeping with the official policy of the California attorney general’s office—which has long had a policy of staying mum on pending investigations—but differs from Harris’ stance. In the waning days of her tenure, Harris confirmed to several people—including reporters for the Los Angeles Times—that the office was indeed conducting an investigation into Exxon.

“California Attorney General Kamala Harris is investigating whether ExxonMobil repeatedly lied to the public and its shareholders about the risk to its business from climate change—and whether such actions could amount to securities fraud and violations of environmental law,” the Times reported in January 2016.

Exxon continues to deny the allegations and has vowed to vigorously contest them.

It was as a direct result of that report that one environmental organization, Climate Hawks, agreed to endorse Harris in her bid for the Senate.

Activists hoped California would add its considerable weight to the growing pressure on Exxon, which started in December 2015 when New York Attorney General Eric Schneiderman issued a sweeping subpoena seeking four decades worth of documents about Exxon’s climate research and communications to the public. Schneiderman said he had been already looking into Exxon’s conduct when several news organizations, including InsideClimate News and the Los Angeles Times, published investigations detailing the company’s duplicity. Massachusetts Attorney General Maura Healey was the next into the water with her investigation.

A few weeks after Harris’ first acknowledgement of an investigation, at a campaign event in Fresno, Harris again confirmed to one activist that her office had launched a probe into Exxon’s actions. That probe, Harris told the activist, began in October 2015, almost immediately after the allegations against the company first surfaced. She said she was confident that it would result in prosecution. “I’m suing them,” Harris told the activist. “Investigating first, then suing.”

And then, “nothing happened,” said the activist, who spoke only on condition of anonymity.

The radio silence that ensued from Sacramento after that was remarkable. Normally accessible sources inside the attorney general’s office went silent, and what few reports did leak out were inconclusive and often contradictory.

“I chalked it up to politics,” the activist said.  Harris was “running a fairly safe and cautious Senate race and didn’t want to rock the boat.”

Neither Harris’ Senate office nor her former campaign staff responded to a request for comment.

After Harris won her Senate election in a landslide, there was a sense among many environmentalists that Becerra, a seven-term congressman from Los Angeles with a 92 percent lifetime voting score from the League of Conservation Voters, would throw his weight behind the probe. It was widely expected that California would become at least as active on the issue as New York and Massachusetts.

After all, both Becerra and the man who appointed him to fill Harris’ unfinished term, Gov. Jerry Brown, had expressed a willingness to stand up to the Trump administration on a host of issues, including the environment and climate. It was widely assumed that posture would extend to powerful corporate interests like Exxon. California also has muscular corporate fraud laws, which rival New York’s Martin Act for the latitude they allow an attorney general in such cases, which would provide the authority needed to launch the probe.

Instead, the attorney general’s office has become even more opaque. Becerra has made few statements on the Exxon probe—declining even to confirm its existence.  “Understand that the last thing we want is to let people know what we’re doing,” he said at a town hall in June, adding cryptically, “I am well aware of the issue involving Exxon.”

But there is a growing sense among activists that the attorney general may be doing little or nothing.  Those who have been monitoring the probe in Massachusetts and New York State say they have seen no evidence of any activity from California.

That has sparked speculation among activists from California to Cape Cod that Becerra, who is facing the voters next year in a bid to win a full term may be taking a page from Harris’s playbook, and trying not rile Exxon and its deep-pocketed supporters before the 2018 election. They speculate that Becerra may be letting New York and Massachusetts take the lead on the Exxon probe and plans to join later. A similar scenario played out decades ago in the landmark suit filed by a handful of states against the tobacco industry, they note, when those small states did the spadework and were joined later by dozens of larger states.

Others say Becerra may be marshaling California’s resources for potentially complicated and costly action against the Trump administration on other issues ranging from offshore drilling to immigration. On Monday, for example, California joined four other states in suing the Trump administration for delaying an Obama-era rule that encouraged automakers to produce fleets that meet or exceed federal fuel efficiency standards.

But there is little doubt that environmentalists, activists and partisans not just in California but across the country are growing increasingly frustrated with Becerra’s silence on the Exxon probe.  As Blair Horner, executive director of NYPIRG and a keen observer of the probe in New York, put it, “I don’t want to speak for”  Schneiderman, “but I assume if you’re an attorney general who is bringing a significant legal entity against an extraordinarily powerful and profitable company, it’s better to do it with friends… Being at the point of the spear sometimes means that you can get hammered. It certainly strengthens the argument in New York if another big state that has legal firepower weighs in.”

“Given California’s significance in the country as well as its…political predisposition to be interested in corporate fraud issues as well as climate change issues, having them in would strengthen the hand of the (New York) attorney general.”

Now, as the clock ticks toward the start of Becerra’s election campaign, there is mounting political pressure on him to declare at last whether his office has or will throw its weight behind the Exxon probe.

Becerra’s former Democratic colleague in the House of Representatives, Congressman Ted Lieu, is among those urging Becerra to join the fight publicly.  “I don’t really understand the policy of the California Attorney general’s office,” Lieu said.  “It’s different than other attorney general’s office where they will publicly acknowledge whether they are investigating or not.”

Lieu had sent letters in 2015 to former U.S. Attorney General Loretta Lynch, the Securities and Exchange Commission and the FBI urging them to launch a federal investigation into Exxon’s handling of its climate research. He said the election of President Trump had made it all the more urgent for Becerra to let the public know where his office stands on the issue.

“For the next three and half years—or less—we will be relying on the good work of states’ attorneys general in this investigation as well as other environmental issues because the president has put in climate change deniers both at the Department of Justice as well as the federal EPA,” Lieu said.

What’s more, California Insurance Commissioner Dave Jones, who has emerged from a murky field as Becerra’s chief rival in the 2018 election, has vowed to make the probe, and the attorney general’s silence on the subject, a campaign issue.

“Were I attorney general, I would be fully engaged with New York and Massachusetts in demanding that Exxon produce documents and I’d be conducting a thorough and complete investigation,” Jones told Climate Liability News.

“I can think of no reason why we would delay in that investigation.  California is a leader with regard to climate change and climate risk and we ought to be fully engaged playing a leadership role in the investigation of Exxon,” Jones said.  “Like the Massachusetts and New York attorneys general, I would have acted much earlier, given the information that’s been made available for years now. “

Becerra’s office did not respond to repeated requests for comment.