By Karen Savage

Massachusetts’ climate fraud case against Exxon belongs in state court because it alleges only violations of Massachusetts consumer protection law, according to Attorney General Maura Healey’s office. The AG made its latest arguments to keep the case in state court in a motion filed Thursday in U.S. District Court. 

The AG filed the lawsuit against Exxon in Massachusetts Superior Court in October, alleging the company has long known its products drive climate change and has misled consumers with deceptive advertising, failed to disclose climate-related risks to its investors and failed to disclose how catastrophic climate impacts from continued fossil fuel burning could threaten the global economy. 

Exxon moved the suit to federal court earlier this month. Fossil fuel defendants—which  are facing an increasing number of climate liability lawsuits across the country—believe they will be more successful in federal court.

Suits filed by state attorneys general however, typically involve claims based on state law.

“Contrary to Exxon Mobil Corporation’s self-serving and distorted description of the Commonwealth’s exclusively state-law-based complaint, this case does not concern carbon taxes, prohibitions on the sales of gasoline, or international climate agreements,” attorneys for the AG’s office wrote in the motion.

“The Commonwealth’s complaint does not allege that Exxon has violated any environmental laws or caused a public nuisance, and it seeks no damages for the climate change harms caused by greenhouse gas emissions attributable to Exxon’s operations and products,” the AG’s office  wrote, referring to Exxon’s reasoning for moving the case to federal court.

Exxon also says the Class Action Fairness Act (CAFA) dictates that cases like this, which are in essence class action suits,  belong in federal court, a premise the AG flatly rejects.

“No fewer than four federal courts of appeal and numerous district courts (none cited by Exxon) have held that CAFA does not apply to consumer protection actions brought by state Attorneys General,” the AG wrote. 

Exxon completely failed to prove the suit belongs in federal court, according to the AG’s office, which said Exxon’s removal of the case to federal court “misrepresents the Commonwealth’s detailed allegations, fails to cite controlling precedents, and recycles the same tired conspiracy theories regarding the Commonwealth’s investigation that have been rejected by state and federal courts.”

The court is expected to rule on the motion early next year. 

By Dana Drugmand

Massachusetts Attorney General Maura Healey sued ExxonMobil on Thursday in the first state lawsuit alleging both consumer and investor fraud over climate risks. 

Healey said that while Exxon has long known its products drive climate destabilization, the world’s largest publicly traded oil and gas company has misled consumers with deceptive advertising and failed to disclose climate-related risks to its investors. The AG said Exxon has also failed to disclose how catastrophic climate impacts from continued fossil fuel burning could be a larger risk to the global economy. 

“Exxon has known for decades about the catastrophic climate impacts of burning fossil fuels—its chief product,” Healey said. “Yet, to this day, Exxon continues to deceive Massachusetts consumers and investors about the dangerous climate harms caused by its oil and gasoline products and the significant risks of climate change—and efforts to address it—to Exxon’s business. We are suing to stop this illegal deception and penalize the company for its misconduct.”

The complaint, filed in Suffolk County Superior Court, follows a three-year investigation that Exxon has vigorously fought. The suit was filed just two days after the start of the trial in New York State’s similar lawsuit against the oil giant, which is being heard in New York Supreme Court. The New York attorney general’s office filed its lawsuit, which alleges only investor fraud in violation of the state’s anti-fraud law, the Martin Act, on this same date a year ago.

The Massachusetts complaint alleges Exxon repeatedly violated state laws and regulations regarding consumer and investor protections. The suit, while similar to New York’s case, has additional claims including the broader claim that Exxon misled investors about systemic financial risks relating to climate change. 

“Exxon has not been honest with investors,” Healey said after the suit was filed. “Exxon knows that continued burning of fossil fuels presents a systemic risk to the global economy.” 

The Massachusetts lawsuit also alleges Exxon misled consumers and engages in extensive green-washing—claiming its products are somehow compatible with a clean environment— in advertising and the marketing of its products. For example, Exxon claims that its gasoline and diesel oil products like “Synergy” and “green” Mobil 1 oil reduce CO2 emissions and enhance environmental performance, when in fact they are fossil fuels that contribute to transportation-sector emissions—the largest source of greenhouse gas emissions in the state. 

“Exxon’s products are a leading cause of climate change, not a solution,” Healey said. And while Exxon has contended her investigation and similar legal proceedings against it are “politically motivated” and part of a conspiracy, Healey told reporters that the case is simply about fraud. 

“It’s about the deception and misrepresentation made to every investor and every consumer,” she said. “That deception we allege continues to this day.”

Healey said her suit seeks relief in the form of civil penalties, attorney and investigation fees and monetary damages as well as an injunctive order to force Exxon to stop its alleged deception. The lawsuit is brought under the Massachusetts Consumer Protection Act and will be prosecuted by the AG’s Energy & Environment Bureau, with assistance from the Insurance & Financial Services Division and Consumer Protection Division. 

Judge Rejects Exxon’s Emergency Motion, Lawsuit Follows 

Massachusetts Superior Court Judge Heidi Brieger cleared the way for the suit earlier Thursday by denying Exxon’s emergency motion for a time extension. She ruled from the bench after a hearing to consider Exxon’s motion, which it filed one week after Healey’s office notified Exxon of its intent to sue. That Oct. 10 notification opened a five-day window for Exxon to respond and for the parties to initiate a “meet and confer” to discuss allegations before a lawsuit is filed. Exxon asked to put off the meeting until mid-November because its core attorneys would not be available until after the New York trial. 

Brieger denied that motion, saying,  “I don’t believe the extension is necessary for the reasons offered.”

“We’re not trying to block a lawsuit, at all,” Exxon attorney Thomas Frongillo said. “But we do have a statutory right to confer in person,” referring to a section of the Massachusetts Consumer Protection Act that requires an intended defendant to have “an opportunity to confer with the attorney general in person or by counsel or other representative as to the proposed action.”

“But that’s somewhat misleading,” Brieger responded, voicing skepticism at Exxon’s excuse that it could not meet in person right away. She said that there is surely someone from Exxon who could come and confer, though it may not be the company’s preferred representation. Exxon, she reasoned, is a large multinational corporation with many lawyers, not a “mom-and-pop shop” or sole proprietor. 

The legal process began when Healey served the company with a Civil Investigative Demand (CID) in April 2016. That followed a series of journalistic investigations that revealed the company’s decades-long history of sowing doubt about climate science. Exxon countered by trying to stop the investigation in both state and federal courts and Exxon has still not responded to the CID, which it is appealing in Massachusetts court.

“Exxon fights every effort to hold the company accountable,” Healey said. “We know this case isn’t going to be easy.” 

Despite Exxon’s resistance, the AG’s office said it has enough evidence to file the suit without the documents demanded in the CID. 

“We’re in a position having compiled sufficient information to file a complaint against Exxon,” Richard Johnston, chief legal counsel for the AG’s office, said during Thursday’s hearing. “We would like to move forward with our plan to sue Exxon as soon as we can.” 

Minutes later, they had.