California AG Xavier Becerra faces an open primary on TuesdayCalifornia AG Xavier Becerra faces a primary challenge from Dave Jones, who has advocated for a state investigation of Exxon. Photo credit: Stephan Lam/Getty Images

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By Jennifer Dorroh

Heading into Tuesday’s open primary elections in California, the candidates for state attorney general have all been clear about where they stand on a potential state investigation into whether oil giant ExxonMobil misled the public about climate change, except one: the incumbent.

While Xavier Becerra, a Democrat, continues to play his cards close to the vest about an investigation, Republicans Steven C. Bailey and Eric Early stand steadfastly against one. Only Democratic challenger Dave Jones says he would aggressively pursue a lawsuit against Exxon.

“Consistent with our longstanding policy and practice, we do not comment on any current or potential investigations or prosecutions,” a spokesperson for the attorney general’s office wrote in an email, which detailed Becerra’s many pro-environment legal actions, including those against oil companies

“Attorney General Becerra is standing against oil companies, including securing a $102 million settlement with BP over allegations that it intentionally overcharged the State of California for natural gas and preventing Valero Energy Corporation from acquiring the petroleum terminal in Martinez from the Plains All American Pipeline,” the spokesperson said. He also filed a friend-of-the-court brief on behalf of suits by two California cities against oil companies.

Becerra has not, however, followed through publicly on the investigation once promised by his predecessor, Kamala Harris. After Harris was elected to the U.S. Senate in 2016, Gov. Jerry Brown tapped Becerra, then a 12-term congressman representing downtown Los Angeles, to finish out Harris’ term, and many expected him to launch a public investigation.

Jones, the state insurance commissioner, has repeatedly attacked Becerra from the left, particularly on environmental issues, and cost Becerra the endorsement of the Democratic Party after neither won the 60 percent of delegates required for the party to endorse a candidate during its state convention. While Becerra is considered the frontrunner In Tuesday’s open primary, Jones has the potential to split Democratic support. The two candidates receiving the most votes will advance to the general election in November, regardless of their party affiliation.

Becerra has remained reluctant to announce a public probe of Exxon despite significant pressure from Jones, environmental groups, party activists and even close political allies like Rep. Mark DeSaulnier, a Democrat who represents California’s 11th congressional district.

“I would prefer that California be as aggressive as Massachusetts and New York,” DeSaulnier said. “I was disappointed that he didn’t join in that [investigation] and I’ve expressed that to him.” DeSaulnier, along with fellow California Democrat Ted Lieu, urged then-U.S. Attorney General Loretta Lynch to investigate Exxon in 2015.

“His defense is that it is better for him to be less than forthcoming” about a potential California investigation of Exxon, DeSaulnier said. “His expression, both publicly and privately, is that this is his strategy.”

Jones said he supports the attorney general in fighting Trump administration efforts to roll back emissions standards and other climate change policies, but believes Becerra should go further.

During a panel discussion at the nonprofit BizFed Institute and a debate at the University of California at Riverside last month, Jones repeatedly prodded Becerra on Exxon. “He’s failed to make sure that we go after ExxonMobil as New York and Massachusetts have,” Jones said at the debate. “Resist Trump, absolutely, but also do the job of Attorney General.”

Becerra did not take Jones’ bait.

When the Sacramento Bee editorial board pressed Becerra on the question recently, he pointed out that his office sometimes keeps its investigations under wraps for years, as it did with its anti-competition case against a Northern California hospital chain.

“Did you know that we were getting ready to sue Sutter Health? That was a six-year investigation. You did not know about that,” Becerra said, according to the Bee. “I could not tell you what, if anything, we’re doing, but I can tell you I’m fully aware of the issues involved with Exxon and I can tell you … we are on top of what we must do.”

“We don’t need to telegraph what we’re doing” on sensitive cases, Becerra told the Bee.  “It makes it difficult sometimes to get into some of these conversations, and it makes it awkward when you’re running in a campaign when people accuse you of things and you cannot respond.”

Jones set out to demonstrate how he stands in contrast with the incumbent by making bold statements about suing companies like Exxon and Facebook, said David McCuan, political science professor at Sonoma State University. Meanwhile, “Becerra talks about it in the ether.”

“The attorney general’s defense is that he doesn’t want to telegraph strategy,” but the oil companies are well-connected in Sacramento, McCuan said. “If an Exxon investigation is happening behind the scenes, they know.”

By holding back from a public investigation, Becerra also avoids or postpones putting his campaign in Exxon’s crosshairs.

“They use a very sophisticated legislative and public relations strategy,” McCuan said. “They go not just on the defensive. They go on the offensive. They’re proactive in talking about what they are doing for voters, while threatening the gun behind the door” in the form of ballot measures.

Environmental groups have been lobbying Becerra to launch a public investigation. “We understand from their public statements that they take this issue seriously, but they have yet to take on one of the most promising avenues for holding Exxon accountable, the courts,” said Jamie Henn, co-founder of 350.org, which has led a coalition of environmental activists on this issue. “I can only hypothesize about why, but maybe California feels like it already has enough fights on its hands.”

“It’s a huge state and a powerful office, with lots of resources to be deployed,” Henn said. “We understand this is another load to take on, but we think it’s a top priority. If we let the fossil fuel industry off the hook, it’s the taxpayers that will have to pay for this transition.”

Jones, in debates and campaign ads, has suggested that Becerra will go easy on oil companies because they contributed to his campaign.

Becerra accepted $7,300 each from Chevron and Phillips66, according to the state’s campaign finance disclosure database. Chevron is a defendant in the Oakland and San Francisco suits. Phillips 66, formerly part of ConocoPhillips, another defendant in the suit, was spun off from the oil giant in 2012 and is now an independent company. Becerra’s campaign manager denies any campaign contributions have influenced the AG’s work.

“There isn’t enough money in Becerra’s campaign to make that argument,” McCuan said. Companies “spread it around to everyone they like and don’t like.”

While he thinks Becerra is likely to win, it could be the runner-up who determines whether California publicly launches an investigation before the general election in November. “If Jones gets into the top two, the likelihood is greater that Becerra would pursue Exxon,” McCuan said. “If Jones is out of the way, the likelihood of a suit goes down, absent the action of the attorneys general of Massachusetts and New York.

“If they’re moving against ExxonMobil, the incumbent is not going to be left out.”