Exxon says its franchisees sell gas in Massachusetts, so it should not be investigated for climate fraud there.Exxon is asking the Supreme Court to end Massachusetts' climate fraud probe because the state lacks jurisdiction. Photo credit: Eric Thayer/Getty Images

By Karen Savage

ExxonMobil has filed an appeal to the U.S. Supreme Court in a last-ditch effort to stop an investigation by Massachusetts Attorney General Maura Healey into possible climate change fraud by the oil giant.

Exxon, headquartered in Texas, contends that it does not directly sell gasoline in Massachusetts, so Healey should not have jurisdiction to investigate. In appealing to the Supreme Court on Monday, it said a Massachusetts court’s decision to allow Healey’s investigation to continue involves a “breathtaking assertion of personal jurisdiction of a nonresident defendant.”

In fighting the investigation, Exxon has argued that it does not directly sell its products in Massachusetts because they are sold through franchises. The company also says it does not control advertisements aired by its franchisees, so the Massachusetts court wrongly relied upon those ads to establish personal jurisdiction. It further argues that because the advertisements don’t discuss climate change, they “could not provide the requisite connection to requests for decades’ worth of documents regarding climate change.”

Healey began her investigation in March 2016, issuing Exxon a subpoena-like request for documents in order to help her determine whether the company violated Massachusetts consumer protection laws by misleading consumers on the impacts of its products on climate change. She also wants to know if the corporation deceived Massachusetts shareholders by failing to divulge potential climate change-related risks to their investments.

Exxon immediately pushed back, suing Healey in a Massachusetts court, claiming she lacked jurisdiction and alleging that her investigation was politically motivated.

Massachusetts Superior Court Judge Heidi E. Brieger dismissed Exxon’s suit in January 2017, ruling that “zealously” pursuing defendants does not make Healey’s actions improper and ordering Exxon to turn over the requested documents. Brieger’s decision was upheld earlier this year by the Massachusetts Supreme Judicial Court.

In a separate suit, Exxon also sued Healey in Texas, alleging that her investigation requests were an abuse of her political position and a violation of the company’s constitutional rights. That suit also named then-New York Attorney General Eric Schneiderman, who had also launched an investigation into possible climate fraud by Exxon. The case was eventually moved to New York, where it was dismissed with prejudice in March by U.S. District Court Judge Valerie Caproni, who called Exxon’s allegations that investigations are politically motivated a “wild stretch of logic.”

Healey is seeking transcripts of investor calls, evidence of internal discussions regarding the filing of Securities and Exchange Commission reports, documentation and research to back up public statements by former Exxon chief executive Rex Tillerson, and evidence to substantiate or refute claims made in several Exxon reports.

She is also asking Exxon to turn over internal scientific research, information related to public relations and media communication plans, as well as copies of communication with organizations such as ALEC, the American Petroleum Institute, the Heartland Institute, the George C. Marshall Institute, the Heritage Foundation and others.

A spokesperson for Healey’s office declined to comment on the ongoing litigation, but said the investigation continues.

Exxon did not immediately respond to a request for comment.

The Supreme Court is not obligated to accept the case. Generally, the court reviews only between 100 and 150 of the more than 7,000 cases it is asked to review each year.

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