By Lynn Zinser
When an investigative series revealed that Exxon had been seriously studying the science behind climate change for more than 40 years and knew for decades that the crisis was not only happening but also driven largely by fossil fuel use, the company responded with not much more than a shrug.
The reaction everywhere else, however, has turned the question of who bears legal responsibility for climate change on its head. Knowing that the company curtailed that involvement in climate science and instead spent decades pushing climate denial to thwart any government action was the evidence many were seeking to hold the oil giant accountable.
The series, published by the nonprofit journalism site InsideClimate News in 2015 and followed by a similar investigation by the Los Angeles Times and Columbia University, quickly got the attention of New York Attorney General Eric Schneiderman, who has something most states don’t have at his fingertips: the Martin Act, which gives him broad power to investigate and bring civil or criminal actions against companies for securities fraud. New York, which was quickly followed by Massachusetts, launched an investigation and the issue divided many lawmakers and state attorneys general neatly into pro-Exxon and anti-Exxon camps.
Schneiderman fired the first shots in what would become a protracted battle when he subpoenaed Exxon in December 2015, seeking documents spanning four decades on what the company knew about climate change and what it told shareholders and the public. The attorneys general of Massachusetts and the U.S. Virgin Islands followed suit in early 2016, although only Massachusetts and its AG, Maura Healey, remains in the fight along with New York.
Below is a timeline of those investigations and the related legal maneuvers that have happened since:
March 2016: A group of 17 state attorneys general, calling themselves AGs United for Clean Power, staged a press conference and pledged to hold fossil fuel companies accountable for their conduct involving climate change. Former Vice President Al Gore called it “the best, most hopeful step in years,” and said, “What these attorneys general are doing is extremely important. These brave members of this coalition are doing their job like they did in the tobacco case.”
April 2016: Exxon filed a lawsuit to halt the Virgin Islands’ investigation. The USVI attorney general, Claude Walker, responded to Exxon’s pressure by eventually withdrawing his subpoena. He had demanded documents from Exxon and the Conservative Enterprise Institute, the libertarian think tank supported by Exxon that is known to have funded and promoted climate denial campaigns.
May 2016: Rep. Lamar Smith, Republican chair of the House Science Committee, requested documents from the 17 AGs as well as a number of NGOs, which he accused of conspiring to stage a politically motivated attack on Exxon. None of the AGs or groups would comply, so in July, Smith issued subpoenas and called a Congressional hearing on the issue.
June 2016: Exxon filed a lawsuit in Texas federal court to block Massachusetts’ investigation and later added New York, even though it had already turned over more than a million pages of documents to Schneiderman’s office.
After the suit was filed, 11 Republican attorneys general filed a brief supporting Exxon, while 13 Democratic AGs filed in support of Healey and Schneiderman. Both groups have since filed the same briefs in the New York federal court where the case was eventually transferred.
October 2016: U.S. District Court Judge Ed Kinkeade initially ruled in Exxon’s favor, ordering Healey to submit to a deposition by Exxon’s lawyers. Kinkeade said that Healey may have acted in “bad faith” in launching her investigation. Kinkeade made clear his sympathy for the company’s argument that Healey’s moves are political. In November, the company said it was considering widening its deposition to include the other AGs in the coalition as well as the green groups that met with them.
August 2016: Scheiderman’s office issues a subpoena to Exxon’s accounting firm PriceWaterhouse Coopers, demanding documents related to the company’s assessment of climate risks. The accounting firm was so slow in turning over documents, that Schneiderman asked New York Judge Barry Ostrager to compel compliance with the subpoena. PriceWaterhouse Coopers appealed Ostrager’s ruling that the accounting firm must comply.
December 2016: Healey filed an appeal with the Fifth Court Court of Appeals to block her deposition. But before the court issued its decision, Judge Kinkeade canceled his order that required Healey submit to questioning.
March 2017: New York’s investigators found an alias “Wayne Tracker” email account that Rex Tillerson used while chief executive of Exxon. Schneiderman’s office demanded the company turn over all of the emails in that account, accused the company of withholding them and demanded to know what happened to ones that are missing. The AG’s office said a year’s worth of those emails have not been turned over.
A New York judge then ordered Exxon to turn over the emails and explain why they were not included in the documents turned over to the attorney general.
March 2017: Kinkeade made the surprise move of ordering the Exxon case transferred to New York, because the press conference staged by the AGs that is at the heart of Exxon’s charges occurred in New York. U.S. District Judge Valerie E. Caproni promptly threw the case out, told Exxon it would need to re-file it in her courtroom. In the first hearing, she quickly indicated she would not be as sympathetic to Exxon’s arguments as Kinkeade.
May 2017: Exxon shareholders passed a first-ever resolution that calls on the company to disclose the risks climate change poses to its business. Investors have been proposing similar resolutions for decades and had not previously garnered more than 38 percent of the vote. This time, 62 percent voted for the measure, which was vigorously opposed by the company’s management.
May 23, 2017: A New York State appellate court rejected the appeal of Exxon’s accountant, PriceWaterhouse Coopers, and ordered the firm to turn over the documents related to climate risks that Schneiderman’s office had subpoenaed.
June 2017: As New York’s investigators continue to pore over documents, they have also been questioning Exxon employees in investigative examinations, which are similar to depositions. In those, Exxon employees involved in the attempted recovery of the “Wayne Tracker” emails reveal that as much as seven years worth of those emails may have been deleted.
June 2017: Schneiderman reveals in court filings that Exxon used two sets of calculations in its account of greenhouse gas emissions and climate change. One set was shared with the public and shareholders and the other was used internally. That led Schneiderman’s spokesperson to call the dual accounting “a substantial basis to suspect that Exxon’s proxy cost analysis may have been a sham.” Exxon’s response did not specifically address the different sets of numbers, but the company claimed it has been consistent in addressing climate risks.