By Karen Savage

When Massachusetts residents need to refuel, a quick visit to Exxon’s website directs them to the nearest filling station emblazoned with the familiar Exxon signs. Once there, consumers can use Exxon credit cards to purchase gasoline from pumps bearing the oil giant’s logo.

But in trying to shake its way out of an investigation into Exxon’s business practices in Massachusetts, the company attorneys argued in a hearing Tuesday that Exxon doesn’t sell gasoline in the state and therefore, Massachusetts Attorney General Maura Healey does not have jurisdiction to investigate the oil giant.

That comment from Exxon attorney Justin Anderson drew disbelief from one justice on the Massachusetts Supreme Judicial Court, who said the court “is going to have real trouble believing Exxon gasoline isn’t in Massachusetts.”

The arguments in Tuesday’s hearing focused on the licensing agreements between Exxon and its 300 Massachusetts franchises and whether they are sufficient to convey jurisdiction over the company.

Healey served Exxon Exxon with a Civil Investigative Demand (CID) in April 2016 as part of an investigation into whether the company deceived Massachusetts shareholders by failing to divulge potential climate change-related risks to their investments. Healey is also investigating whether the corporation violated Massachusetts consumer protection laws by misleading consumers on the impacts of its products on climate change.

The oil giant responded by petitioning a Massachusetts court claiming the lack of jurisdiction and alleging that Healey’s investigation was politically motivated.

Massachusetts Superior Court Judge Heidi E. Brieger said in January that “zealously” pursuing defendants does not make Healey’s actions improper and ordered Exxon to turn over the documents requested in the CID, rejecting Exxon’s allegation that Healey’s request was overbroad, arbitrary and burdensome.

Exxon filed a federal case in Texas, which was transferred to New York in March and is ongoing. In that case, Exxon is alleging the state investigations violate its First Amendment rights, an argument that drew skepticism from a U.S. District Court judge in a hearing last week.

Richard Johnston, an attorney for Healey’s office, said evidence to support jurisdiction in Massachusetts lies in the franchise agreements.

According to Johnston, the agreement states that Exxon controls the advertising and marketing for each franchise and refers to Massachusetts residents as “our customers.”  He said the CID asks for documents and information that could help his office determine if Exxon deceived Massachusetts customers on the effect its gasoline has on climate change.

Anderson argued that Exxon does not have sufficient business connections in the state.

Anderson said the franchises, not Exxon, are responsible for local advertising. Exxon contends its advertisements target a nationwide audience and don’t specifically target Massachusetts residents.

Johnston said that argument is asking the court to “suspend common sense.”

“They tell people where to go to buy products on websites. Press releases say they are partnering with Massachusetts State Police to develop an environmentally friendly motor oil,” said Johnston, who asked the court not to be tricked into focusing on the “little guy” or franchisees.

He also said that not telling Massachusetts customers about the detrimental effect of their product on climate change is deception.

Exxon also contends that it shouldn’t be subject to investigation for shareholder deception because it does not directly sell to investors in Massachusetts. Stock purchased in the state, Anderson said, is done through third parties.

“There is no evidence in the record that any of those stocks were purchased directly from Exxon,” said Anderson.

Anderson said an investigation into whether Exxon deceived third parties who sell to large numbers of shareholders would likely fall under the realm of a Securities and Exchange Commission (SEC) investigation, not a state investigation.

The current set of probes into Exxon has spanned three states and generated thousands of pages of court documents.

When asked by the court where to start, Johnston suggested they look at Exxon’s 2014 Managing the Risks report, which he said was sent to all shareholders, including those in Massachusetts. That report denied the risks of climate change and told investors that climate change would not result in the stranding of its assets.

Johnson said only two years later Exxon had announced it may have to strand assets and in 2017 they announced just that, resulting a shareholder suit in Texas that is still pending.

The Supreme Judicial Court justices now have the task of examining previous fillings from both sides and will attempt to render a decision within 130 days.

By Karen Savage

As attorney general of Massachusetts, Maura Healey has found a platform to fight a growing number of Trump administration policies and other scourges as she sees them: the rollback of employer mandates to cover birth control, repealing the Clean Power Plan, ending DACA and Affordable Care Act subsidies. She has sued Equifax for alleged negligence in its massive credit breach.

But none of her high-profile crusades have come with more pushback than her investigation of Exxon for climate fraud. In the nearly 18 months since it began, Exxon has sued her in Texas, a suit later transferred to New York. She’s been twice subpoenaed by Rep. Lamar Smith’s House Science Committee and she’s been accused by Exxon—along with a coalition of GOP attorneys general—of violating the oil giant’s First Amendment right to free speech.

“So far, we’ve been fighting it out in court, so far, we’ve been winning,” Healey said during a recent interview with Democracy Now.

“I hope that soon we will get the documents from Exxon so that we can have our questions finally answered,” she added.

The Massachusetts Supreme Court will soon decide if Exxon will be forced to turn over internal climate change-related documents showing what they knew about climate change and when. They are documents Healey requested in a Civil Investigative Demand (CID) in April 2016.

Healey believes Exxon 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.

So far, Healey appears unfazed by Exxon’s tactics. She refuses to back down and appears more determined than ever to move forward with the investigation.

Healey, 46, has emerged as a prominent force fighting not just Republican policies but corporate malfeasance since she was elected in 2014, becoming one of just five women Democratic state attorneys general in the country. The first openly gay attorney general, she is a former Harvard basketball star, who has used lessons learned from the world of sports to her advantage.  She gained a lot of ground in sports-crazy Boston when former Celtics star Bob Cousy—they both wore the number 14—endorsed her campaign.

“She was the consummate point guard,” said Kathy Delaney-Smith, Healey’s former coach at Harvard. “Which means she knows the system, she knows her teammates, she runs the show. You have to have an extraordinary level of confidence, you have to have thick skin because if you take too many shots or you don’t give somebody the ball, the finger gets pointed at you.”

Delaney-Smith, who has coached Harvard for 36 years, said on the court, Healey was a flashy passer who enjoyed sharing the spotlight. Off the court, she said Healey was quiet and humble, with a broad vision and an uncanny ability to get along with everyone.

“But she’s also fearless,” said Delaney-Smith, something she attributes to being the oldest of five children raised on a farm in New Hampshire.

Healey’s office dove into the Exxon investigation in the wake of reporting by InsideClimate News and the Los Angeles Times, which revealed that for decades Exxon internally acknowledged and planned for the effects of climate change while externally denying the risks of climate change.

New York Attorney General Eric Schneiderman struck the first blow, issuing a subpoena demanding company documents spanning decades of the company’s climate science work and communications.

Healey’s office followed with the CID. In it, Andrew Goldberg, an assistant attorney general in Healey’s Environmental Protection Division, requested 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 and current Secretary of State Rex Tillerson, and evidence to substantiate or refute claims made in several Exxon reports—including the 2014 Managing the Risks Report.

Goldberg 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.

In June 2016, within weeks of receiving the CID from Healey’s office, Exxon filed a complaint against Healey in the U.S. District Court for the Northern District of Texas, alleging the request is overbroad, arbitrary and burdensome.

Exxon also alleges Healey’s investigation is politically motivated and violates the corporation’s federal constitutional rights, including the right to free speech, right to due process of the law and its right to protection from unreasonable search and seizure.

Exxon amended the Texas complaint in November 2016 to include Schneiderman, but seemed to train its biggest guns on Healey. She was nearly forced to submit to a deposition by Ed Kinkeade, U.S. District Court Judge for the Northern District of Texas, who eventually relented and ruled in March 2017 that the case should be heard in New York.

Schneiderman said attorneys general have the ability to hold Exxon, other corporations and the Trump administration accountable for not following the law.

“There are a lot of tools in our constitutional tool box, it is just about having enough state A.G.s with the foresight and the courage to take these fights on,” Schneiderman told Vanity Fair. “Maura has proven to be an A.G. that is not gun shy.”

At the same time it was pushing back against Healey in Texas, Exxon was also petitioning a Massachusetts court to stop Healey’s investigation. Exxon, which is headquartered in Texas, asserted that the Massachusetts attorney general does not have jurisdiction to investigate Exxon because filling stations that bear its name in Massachusetts are franchised., which is headquartered in Texas.

In both proceedings, Exxon is alleging that Healey’s investigation is politically motivated, in part because she—along with Schneiderman and other attorneys general—met with two climate activists prior to press conference in March 2016 in which the group dubbed itself “AGs United for Clean Power.” Exxon claims Healey “embraced the activists’ agenda,” and cited Al Gore’s appearance at the press conference as further evidence of bias.

Exxon did not respond to requests for comment.

At the press conference in question, Healey announced that she was investigating Exxon for possible deception and called climate change a “matter of extreme urgency.”

“It appears certainly that certain companies, certain industries may not have told the whole story leading many to doubt whether climate change is real and to misunderstand and to misapprehend the catastrophic nature of its impacts,” said Healey.

“Fossil fuel companies that deceived consumers and investors about the dangers of climate change should be, must be, held accountable.”  

Healey scored a major victory in January when Massachusetts Superior Court Judge Heidi E. Brieger determined her office does have jurisdiction over Exxon in Massachusetts and ordered the oil giant  Exxon to turn over the requested documents.

Brieger wrote that Healey’s remarks “did not evidence any actionable bias,” adding that, “it seems logical that the Attorney General inform her constituents about the basis for her investigations.”

Brieger rejected Exxon’s allegation that Healey’s request was overbroad, arbitrary and burdensome, pointing out that “zealously” pursuing defendants does not make Healey’s actions improper. The judge also scoffed at the notion that a Texas court should decide a case involving Massachusetts laws and statutes, writing that “the Massachusetts Superior Court is certainly more familiar than would be a federal court.”

Exxon appealed Brieger’s decision and in August, the Massachusetts Supreme Judicial Court agreed to hear the case. Attorneys are expected to argue the case as soon as December.

However Healey fares in her pursuit of Exxon, her persistence—which now extends to at least 18 suits against Trump administration her office is party to—has convinced some that she has her sights on higher office, perhaps even running for governor.

But that’s something Healey insists she’s ruled out.

“What I’m doing right now is too important to me” to leave now,” Healey told the Bay Area Reporter after delivering a keynote address at an Emily’s List luncheon earlier this month, adding that she’s looking forward to another term as attorney general.

As she prepares for a reelection bid next year, Healey has the steadfast support of one of Massachusetts’ other firebrand politicians, Elizabeth Warren, and she has another potential role model in California’s Kamala Harris, who was that state’s attorney general until she was elected to the U.S. Senate last year.

“I’m just so proud of her strength moving forward,” said Delaney-Smith, adding that she’s “not one bit surprised” that Healey is taking Exxon to task over climate change or challenging the Trump administration. “I think she’s got her finger on the pulse of what this country needs, what this state needs, what women in particular need.”