Court filings made publicly available yesterday show Massachusetts attorney general Maura Healey’s climate lawsuit against ExxonMobil is as flimsy as a similar case filed against the company by the New York attorney general last year – a case that was decisively defeated.
The release of these new filings marks the latest setback in the litigation campaign that not only continues to rack up losses inside courtrooms but also – importantly – does literally nothing to advance real solutions on climate change.
Healey launched the investigation in 2016 as she spoke at the “AGs United for Clean Power” press conference, claiming that ExxonMobil deceived the public about the risks of climate change.
It wasn’t until three years later that the investigation turned into a lawsuit, in which Healey alleges the company deceived Mass. consumers and investors about the risks its business (of selling gasoline) posed.
Only now, however, are cornerstone documents in the case being made public, all of which show that the lawsuit is based not on anything that exists in legal canon, but on the perceived political benefits that the Mass. AG believes she will realize in going after a company that activists have targeted for years.
What to Know About the Latest Filings
Over the summer, ExxonMobil filed two motions in the Massachusetts attorney general’s case. These motions sought to dismiss the lawsuit for its flagrant constitutional violations and failure to state a claim in support of the consumer and investor deception allegations.
The first of these filings was an anti-SLAPP (“strategic litigation against public participation”) motion, which aimed to dismiss the case by arguing that the attorney general has obstructed the company’s right to petition policymakers and the general public.
Soon after, the company filed a separate motion to dismiss the case, arguing that the attorney general’s lawsuit lacks personal jurisdiction, fails to plausibly allege investor and consumer deception, and seeks to compel speech.
In response to the company’s motions, the Massachusetts attorney general implicitly acknowledges that the company is correct on the merits of its arguments. Below are highlights from four of the key arguments made in the latest filings:
- Healey’s Entire Case is Based on Her Personal View that the Company Isn’t Moving Fast Enough on Climate
While ExxonMobil has been clear in its commitment to addressing climate change, Healey doesn’t believe the company is moving so fast enough. This disagreement, put simply, boils down to politics.
As the filings make clear, many of Healey’s fraud allegations are based on her dislike of the company’s public statements related to climate change.
As a Bloomberg article on the issue noted, this fraud case is “punishment” for the company not sharing the same view as Healey, a notion backed by the anti-SLAPP motion:
“The Office of the Attorney General for the Commonwealth of Massachusetts is at the forefront of an effort to cleanse the public square of political opposition it believes has ‘delay[ed] meaningful action to address climate change.’ … Those, like ExxonMobil, who decline to parrot the Attorney General’s call for an immediate transition to renewable energy are not simply diverse viewpoints in a public debate with state, federal, and global policy implications, but targets who must be silenced through ‘lawfare.’” (emphasis added)
Tellingly, the attorney general’s response to this motion doesn’t even address the substance of the criticism.
Rather, she argues that the anti-SLAPP statute cannot be applied in this case because the company is not a “person of modest means.” Interestingly, she includes not a single citation in this section of the filing. She literally just asserts it.
She seems totally ignorant of the fact that the actual anti-SLAPP statute contains no such requirement.
Rather than addressing the issues head-on, Healey’s filings spend most of their time wallowing in side-show, administrative arguments.
For example, the attorney general contends that since she is bringing this lawsuit “in the name of the commonwealth” it is, therefore “immune from scrutiny under the anti-SLAPP statute because it does not qualify as a ‘party.’”
As the ExxonMobil reply to the attorney general’s opposition points out, however, in doing so the attorney general “ignores the plain text of the statute” which applies “[i]n any case in which a party asserts that the civil claims…against said party are based on said party’s exercise of its right to petition under the constitution of the United States or of the commonwealth.”
In other words, the statute explicitly states that just because the lawsuit is being brought on behalf of the commonwealth, it is still a party.
Not to mention, as the reply points out, “[t]he Attorney General also ignores precedent in which Massachusetts courts applied the anti-SLAPP statute against government entities.”
So not only can the commonwealth be considered a party, it has applied this very statute to government entities itself. This kind of administrative gaming shows just how weak the attorney general’s defense is to the company’s criticisms.
Meanwhile, conspicuous in its absence is anything in the Healey filings that acknowledge that natural gas supplies over two-thirds of Massachusetts’ electricity, and the state’s own use of renewable energy come in well below the national average.
Healey has even opposed lawsuits brought by private parties to reduce emissions in the state. As ExxonMobil explains in its motion to dismiss:
“Massachusetts cannot excuse its inaction by deflecting blame on a single out-of-state corporation, even if the Attorney General might find it politically expedient to do so. The Attorney General seeks headlines, not solutions, in this lawsuit.”
- Healey Strains Credulity in Trying to Re-Assert Jurisdiction
The company also argues that the lawsuit should be dismissed on personal jurisdiction grounds, as none of the alleged fraudulent activity cited by Healy occurred in, or was otherwise targeted at, Massachusetts.
As the company explains, the attorney general’s claims are based on the company’s “statements of opinion regarding future energy demand, its products, and the company’s corporate activities,” none of which were made in, or have any other connection to, Massachusetts.
Therefore, these statements do not satisfy the personal jurisdiction requirements needed to bring a lawsuit in Massachusetts.
The company also did not specifically target Massachusetts with its alleged “deceptive” marketing, as the statements cited by the attorney general appear on the company’s website, which is accessible to the entire country and does not target anyone jurisdiction over another.
Although the attorney general alleges that the company runs “Massachusetts-specific advertisements,” the content of these ads isn’t actually in the complaint, which severely undercuts the credibility of Healey’s argument.
- Healey Tries to Argue that Using Green-Colored Label Amounts to … Fraud?
The attorney general claims the company’s marketing and sales of its Synergy and Mobil 1 products as more efficient than normal gasoline amounts to fraud because the company deceived consumers about the products’ ability “to reduce greenhouse gas emissions.”
The attorney general, however, is not asserting that the company’s statement that its motor oil makes engines more efficient is fraudulent or otherwise inaccurate.
Rather, Healey argues that because these products are marketed as being “energy efficient” and, in the case of Mobil 1, packaged with a green label and lid, consumers are led to believe that they will “reduce greenhouse gas emissions.”
However, the company never lied to consumers about the products’ association with greenhouse gas emissions or their impact on the environment. As the company explains in its motion to dismiss, no reasonable consumer would be “unaware of the connection between fossil fuels and climate change.”
The company continues:
“Here, the alleged ‘deception’ by ExxonMobil is that ‘technically true’ statements about a product’s relative improvement of engine performance and efficiency are nonetheless misleading if they fail to communicate the Attorney General’s view that any fossil fuel use ‘represents a direct threat to sustainability of human communities and ecosystems.’” (emphasis added)
The attorney general’s only response to this argument is to state that the company aims to “create a false and misleading impression in the minds of consumers that using the company’s fossil fuel products helps combat climate change” and complains that the company doesn’t disclose that its products increase “greenhouse gas emissions.”
This begs the question: Does anyone really think that a reasonable consumer would conflate better fuel efficiency and improved engine performance with no release of greenhouse gas emissions whatsoever?
Similarly, the attorney general claims that the company’s statements about its algae and plant-waste-based biofuels “would tend to confuse consumers about the nature of ExxonMobil’s business by creating the impression that ExxonMobil is no longer producing traditional fossil fuels.”
However, as the company points out – that’s absurd. No reasonable consumer “would be misled into believing that ExxonMobil, one of the world’s largest oil and natural gas companies, had abandoned its core business in favor of algae biofuels.”
- Healey Appears to Have Not Read the Judge’s Verdict Delivered in New York
To support her investor fraud claim, the attorney general relies on several similar investor fraud arguments that were completely rejected last year by a New York Supreme Court justice after a twelve-day trial between ExxonMobil and the New York attorney general.
Last December, New York Supreme Court Justice Barry R. Ostrager ruled that the New York attorney general presented no evidence that the company misled investors. Indeed, in his opinion detailing the New York attorney general’s loss, Justice Ostrager wrote:
“Applying the applicable legal standards, the Court finds that the Office of the Attorney General failed to prove by a preponderance of the evidence that ExxonMobil made any material misrepresentations that ‘would have been viewed by a reasonable investor as having significantly altered the “total mix” of information made available.’”
In defending her investor deception claims in light of New York’s loss, Healey simply states that the applicable law in Massachusetts is different than that in New York. The company shuts down this ill-conceived justification:
“The Attorney General does not dispute that it is pursuing the same claims here. Rather, it inaccurately implies that New York law differs from Massachusetts law on this claim. Not so. Massachusetts and New York law are the same on the element of materiality.” (emphasis added)
Even if the claims similar to New York’s were not factored into this case, Healey’s investor fraud claims still fall flat.
In the complaint, the Massachusetts attorney general faults the company for not affirmatively warning investors about “the financial risks posed by climate change to the Company, the oil and gas sector, and global financial markets.”
For good reason, the company argues that view is “pure nonsense”:
“[Massachusetts’ consumer protection law] imposes only a duty ‘to disclose material facts known to a party at the time of a transaction.’ … It does not impose liability for failing to disclose a mere ‘suspicion or a likelihood, rather than knowledge.’ And it certainly does not impose an obligation to adopt and parrot the concerns the Attorney General might have about potential climate-related risks.”
To summarize, some of the attorney general’s investor deception allegations have been shut down by another state court already, while the remainder isn’t even based in Massachusetts state law. Talk about a strong case…
What a Waste
Four years later and this where we stand.
It’s looking more and more like Massachusetts is going down the same failed path as New York. At the same time that Healey is pursuing this baseless, politically motivated lawsuit, ExxonMobil continues to make progress on reducing emissions and addressing climate change.
Just this week, the company announced its goal to cut the emissions intensity of its operations by 15 to 20 percent by 2025, and it plans to end the practice of routine flaring by 2030.
Meanwhile, the state of Massachusetts has increasingly relied on natural gas as a cleaner-burning, abundant fuel to provide power and heat for its residents.
This entire episode has proven that the Massachusetts attorney general is playing political games on climate while the nation’s top energy company is actually getting climate results.
Read more at EID Climate
Why do these people continue to believe that humans can control climate, by controlling CO2??
And if they believe fossil fuels are killing the planet, why don’t they ban them altogether, as well as going after the producers? The answer being obvious ……… Life would come to a shuddering halt.
These Lawsuits are based upon Junk Science and Politics not Science Logic and the Facts and therefore these lawsuits should to totaly dismissed
Some one wants to pad their Bank Accounts maybe they want to bu Another Leer Jet or a Yacht
What they learned with their ozone hole is that they can sell gaping holes.
https://tambonthongchai.com/2020/12/21/ozone-hole-environmentalism/