Exxon contines to fight climate fraud probes with a First Amendment defenseExxon continues to fight state climate fraud probes with a First Amendment defense. Photo credit: Scott Olson/Getty Images

By Karen Savage

Exxon continues to cry foul, alleging that two state attorneys general are violating its First Amendment right to express its  opinion on climate change.

In a brief filed last week in New York, attorneys for Exxon once again asserted that that investigations by Massachusetts Attorney General Maura Healey and New York Attorney Eric Schneiderman are part of a politically motivated conspiracy against the company and an attempt to silence the oil giant through intimidation.

The filing was the latest effort by Exxon to thwart investigations by the attorneys general into possible climate change-related deception by the company. It follows a filing by the AGs in December urging a dismissal of Exxon’s suit against them, based on the company’s recent announcement that it would begin considering climate risks on its business in disclosures to its stockholders. Healey and Schneiderman contend that announcement equates to an admission that Exxon has not been forthcoming about those risks as the AGs have alleged.

But Exxon continues to insist that the investigations are an abuse of Healey’s and Schneiderman’s political positions and are violations of the oil giant’s First, Fourth and Fourteenth amendment rights.

In November, New York U.S. District Court Judge Valerie Caproni ordered each side to submit written arguments in the case, which was first filed by Exxon in the U.S. District Court for the Northern District of Texas in June 2016, but has since been transferred to New York.

In its most recent brief, attorneys for Exxon said the attorneys general are targeting Exxon with “burdensome” and “harassing” investigations because of the company’s views on climate change. Attorneys also link Healey and Schneiderman to climate activists who Exxon says are seeking to “harass perceived political opponents” and “delegitimize” Exxon.

Attorneys for Healey call Exxon’s allegations absurd, particularly considering Exxon has taken the public stance of supporting the overwhelming scientific consensus on climate change.  

“Exxon asserts that Attorney General Healey has joined in an illegal conspiracy to violate Exxon’s rights because she does not agree with Exxon’s views about climate change. Yet Exxon also states that it now endorses climate science, the existence of climate change, and efforts to combat it—consistent with Attorney Healey’s position,” Healey’s attorneys wrote in a recent brief.

Schneiderman’s attorneys said that for Exxon to prevail on a free speech allegation, it must plead and prove its right to free speech has been violated, something they contend Exxon has not done.

They point to Exxon’s own court filings, in which the company said it speaks publicly about the risks of climate change and shares its perspective on climate change on the company’s website.

In a website posting last week, Exxon denounced a recent climate change-related lawsuit filed against it by New York City and reiterated its climate change perspective. A video shared on the company’s Twitter page carried a similar message.

“These public statements demonstrate that, far from being muzzled, Exxon regularly engages in corporate advocacy concerning climate change,” wrote attorneys for Schneiderman, adding that a state investigation is not a violation of Exxon’s constitutionally protected rights.

Schneiderman also said that fraudulent statements are not protected by the First Amendment.

Exxon fired back, alleging that not only are its statements protected but also the company has been harmed by having to endure the “burden and expense” of the investigations.

“Based on the record before this Court, there is no basis to classify ExxonMobil’s speech on climate change and climate policy as anything but fully protected by the First Amendment,” wrote attorneys for Exxon.

But attorneys for Healey said Exxon’s recent filing with the Securities and Exchange Commission that promised climate risk disclosure raises further questions about the company’s truthfulness.

That decision came after 62 percent of Exxon shareholders voted in favor of requiring the company to produce a report outlining financial risks to the company from global efforts to prevent temperatures from rising more than 2 degrees Celsius.

“This filing makes clear that, at a minimum, Exxon’s prior disclosures to investors, including Massachusetts investors, may not have adequately accounted for the effect of climate change on its business and assets,” attorneys for Healey wrote.

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