Exxon is fighting back in court against California climate suitsExxon has responded to the California climate liability suits with a legal challenge in Texas. Photo credit: David McNew/Getty Images

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By Dana Drugmand

ExxonMobil is pushing back against a wave of climate liability lawsuits in California seeking to hold fossil fuel companies accountable for climate change impacts. In a petition filed Monday in a Texas district court, the company claims the suits amount to a conspiracy aimed to undermine the company’s First Amendment rights and coerce it into shifting its stance on climate change.

“It is clearly part of the larger strategy of pushing back against climate litigation by attacking government officials and environmental advocates in court,” said Michael Burger, executive director of the Sabin Center for Climate Change Law at Columbia University.

Exxon’s petition comes in response to a batch of suits filed in California state court over the past six months, but its fight is going to get a lot wider after New York City announced on Wednesday it has also filed suit against major oil companies to hold them accountable for climate impacts.

Exxon did not immediately respond to the news of that suit on Wednesday. Monday’s filing was concentrated on the suits filed recently by six communities in California. Last July, the counties of Marin and San Mateo and the city of Imperial Beach filed separate, nearly identical complaints against 37 fossil fuel companies alleging trespass, public nuisance, negligence, and product liability claims for substantially contributing to greenhouse gas emissions by selling and marketing their product knowing the harm it would cause. The cities of Oakland and San Francisco followed in September by suing five of the largest oil companies for public nuisance only but with a similar argument of defendants knowingly peddling a harmful product and downplaying the climate risks. Most recently in December, the city and county of Santa Cruz sued 29 of the companies over a wider range of climate impacts such as drought and wildfire in addition to flooding and rising seas.

Exxon is countering with a conspiracy claim and seeks to depose county and city officials and attorneys. It is not a counter suit, but rather a request for testimony and documents that would confirm its claim that the parties were illegally acting in concert.

“They are not even claiming to have any evidence of wrongdoing,” Ken Adams, coordinating counsel for the Center for Climate Integrity said in a response to the petition. “Most of the 60-page petition Exxon filed in the Texas court rehashes its grievances about the New York and Massachusetts Attorney General investigations, and tries to claim that somehow the lawsuits in California seeking compensation for the costs of addressing the damage caused by climate change are part of the same so-called conspiracy as the New York and Massachusetts investigations.

“If Exxon were not one of the largest publicly held corporations in the world, this would be laughable.”

It does not, however, surprise those familiar with Exxon’s pattern of opposing these efforts.

“Subpoenas and depositions have become the go-to intimidation tactic for Exxon and its allies,” said Carroll Muffett, president of the Center for International Environmental Law.

Burger said the company’s claim of a violation of its First Amendment rights mirrors what it said in suing to stop the investigations of the company by the attorneys general of New York and Massachusetts.

That suit is awaiting a ruling by U.S. District Court Judge Valerie Caproni, who is considering a motion to dismiss Exxon’s suit by the two attorneys general, who say Exxon’s recent announcement that it would disclose climate risks to its shareholders equates to an admission that the company has failed to do so in the past.

“It seems the only lesson Exxon has learned from all of this is that it should try filing in state court instead,” said Muffett.

Exxon’s Allegations

In its newest petition, Exxon claims the California municipalities are “abusing the legal process” to pressure Exxon and other fossil fuel companies to change their positions on climate change: “It is improper under the United States and Texas Constitutions for municipal governments to restrict the range of permissible viewpoints by bringing lawsuits against those identified with disfavored policy positions.”

The oil giant further alleges a discrepancy between the sea level rise impacts cited in the lawsuits and what the municipalities and counties disclose in their bond filings with creditors. “These lawsuits complain of imminent sea level rise and allege that ExxonMobil and other Texas-based energy companies bear responsibility for resulting harm. But these allegations…cannot be credited. In municipal bond offerings by these same municipalities…none of the municipalities disclosed to investors such risks,” the petition states. Exxon said discovery would shed light on the “irreconcilable differences between the allegations in the municipalities’ tort complaints and the disclosures in the municipal bond offerings.”

In its filing, Exxon acknowledges that it “lacks sufficient information to identify all the California municipal officials who might have participated in a potential conspiracy to violate ExxonMobil’s rights.”

Burger said Exxon is unlikely to convince a court with this argument, but will force the targeted officials and lawyers to spend time and money responding.

“If I were an Exxon shareholder, I would find the company’s behavior troubling,” Adams said. “A company that has nothing to fear responds to investigations and lawsuits by dispatching its lawyers to prove in court that the company has done nothing wrong. A responsible company that has created a mess, like the fossil fuel companies have, does what all of us learned to do when we were children—apologize and help clean up the mess.

Exxon is doing neither of those things. Instead it is lashing out with aggressive, bullying attempts to intimidate any government official who tries to hold the company accountable.”

Communities Not Backing Down

The municipal representatives and attorneys said they remain resolute in the face of Exxon’s retaliatory petition.

“We are reviewing Exxon’s petition, but this appears to be the same kind of bullying tactic that the industry uses again and again to avoid accountability,” said Imperial Beach Mayor Serge Dedina. “The City of Imperial Beach and our taxpayers shouldn’t have to pay for damages from sea level rise knowingly caused by Exxon and other fossil fuel companies. That’s what our lawsuits are all about and Exxon should own up to what they’ve done instead of resorting to the usual industry playbook.”

“At first review, the petition appears to be an attempt to dissuade cities and counties from pursuing their day in court,” Marin County Counsel Brian Washington said in a statement. “We will continue to stand up for our taxpayers so that they aren’t on the hook for all the costs of addressing the damage caused by Exxon and others in the fossil fuel [industry].”

“The evidence linking these anticipated local impacts to the conduct of the defendants has no bearing on any bond offering documents issued previously,” said Santa Cruz City Attorney Tony Condotti via email. “What this really amounts to is an attempt to divert attention from the fact that Exxon has known for nearly 50 years that greenhouse gas pollution from their products is causing global warming, sea-level rise and changes in global climate patterns that will force communities like ours to spend vast sums to protect our residents and businesses from the consequences.  Filing a baseless petition in Texas District Court is an obvious attempt at forum shopping that we’ll vigorously oppose.”

According to John Coté, spokesman for the San Francisco city attorney’s office, “This is an outrageous abuse of the legal process that seeks to limit the ability of law enforcement and local government to protect their residents. It’s an attempted end-run around the California courts that have jurisdiction over this matter. In other words, it’s exactly what you would expect from a company like Exxon.”

Muffett agreed that there is no surprise in Exxon’s actions, however ironic they may be. “At this point, Exxon’s subpoenas against its critics are becoming almost routine,” he said. “Everywhere Exxon looks, it sees a climate conspiracy. So perhaps where Exxon should be looking is in the mirror.”