Exxon: First Amendment Ruling on NRA Applies to Climate Probes

ExxonMobil is using a recent court ruling involving the National Rifle Association to try to convince an appeals court to stop two states from investigating it for potential climate fraud.

The oil giant has been pursuing a case against the attorneys general of New York and Massachusetts since 2016, alleging that their investigations are an abuse of their political positions and violate the oil giant’s First, Fourth and Fourteenth amendment rights. That suit was dismissed earlier this year by U.S. District Court Judge Valerie Caproni, who called Exxon’s allegations “implausible.”

In its appeal to the Second Circuit Court of Appeals, however, Exxon is doubling down on its First Amendment claim. It uses a ruling handed down earlier this month by another U.S. District judge that said the NRA may pursue a First Amendment claim in its attempt to keep New York State officials from investigating potential insurance law violations by the NRA’s Carry Guard insurance program.

The decision, by U.S. District Judge Thomas J. McAvoy in National Rifle Association of America v. Cuomo, did not say the NRA’s rights have been violated, but that the organization provided enough facts to pursue a First Amendment claim.

Exxon aims to use that ruling in its appeal of Caproni’s decision. In a letter to the Second Circuit, Exxon attorney Justin Anderson said McAvoy’s ruling in the NRA case rejects many of the arguments the attorneys general made in convincing Caproni to dismiss Exxon’s First Amendment claims.

In his ruling, McAvoy wrote that “actual chilled speech is not necessary to make out a plausible First Amendment claim.”

Anderson said the court also “found viewpoint discrimination plausible without requiring a showing that the government lacked a reasonable basis to investigate.”

New York and Massachusetts, however, have another recent ruling by the Second Circuit to bolster their side. Earlier this year, then-New York AG Eric Schneiderman argued to Caproni that a ruling by the Second Circuit upholds his contention that Exxon cannot use a First Amendment claim to squelch the climate fraud probes by the two states.

That ruling dismissed a Citizens United suit against Schneiderman that, similar to Exxon’s suit, alleged Schneiderman’s office violated the organization’s First Amendment rights.

“The First Amendment does not prevent anti-fraud enforcement,” the judges wrote in that decision.

As a result of New York’s investigation, current New York Attorney General Barbara Underwood last month filed suit against Exxon under the state’s Martin Act, alleging that the company deceived and defrauded investors by not disclosing the financial risks it faces from climate change.