Thought Piece

Spenser Walrath has written an interesting group of pieces this weekend about the confirmation of climate groups and their “climate conspiracy against energy industry.”  It’s harder and harder to find a trustworthy voice these days. Like the evolution of “global warming,” it all depends on who is choosing the words, the  “relevant facts” and who is doing the math. It simply depresses me beyond belief.

Ultimately, the best of intentions and the bad outcomes of wrong-headedness are not strangers to each other. For example, the startling claim by the IMF recently that coal emissions costs the world $5.3 trillion per year seems greatly exaggerated. I simply don’t know where to start the refutation of all of these highly political voices.

California public officials who are suing ExxonMobil for climate change are part of a conspiracy to punish the company for its views on the issue, according to a recent filing by a Texas District Court judge. The filing is the most authoritative confirmation of ExxonMobil’s claims to date and directly contradicts a federal judge’s ruling last month that there was no evidence of collusion between anti-oil and gas activists and public officials.

The judge’s stunning conclusion is that the evidence presented by ExxonMobil indeed shows the California municipalities may have “brought these lawsuits for an improper purpose.”

In January, ExxonMobil petitioned a Texas court to allow it to depose several public officials responsible for the handful of climate liability lawsuits filed in California against ExxonMobil and several other oil and gas companies. ExxonMobil found a discrepancy between the municipalities’ lawsuits against the company and their bond prospectuses, suggesting that the cities and counties were either exaggerating the risks of climate change in their lawsuits or downplaying the risks to their investors. The company also asked to depose Matt Pawa, a climate activist and trial lawyer who has doggedly pursued ExxonMobil for more than a decade. Pawa is representing San Francisco and Oakland in their lawsuits.

Judge R.H. Wallace Jr., the Texas District Court judge overseeing the petition, initially denied ExxonMobil’s petition to depose Pawa and the California officials. ExxonMobil requested that the judge file “findings of fact and conclusions of law” supporting his decision “based on the uncontested evidentiary record.”

In other words, the facts stated by the judge in his filing are indisputable, which is going to create some headaches for the activists and public officials.

Judge Wallace traced the lawsuits and AG investigations back to the infamous 2012 conference in La Jolla, Calif., where Matt Pawa and other anti-oil and gas activists developed their playbook for bringing litigation against oil and gas companies. Judge Wallace distilled the essence of the conference in his filing:

“During the conference, participants discussed strategies to ‘[w]in [a]ccess to [i]nternal [d]ocuments’ of energy companies, like ExxonMobil, that could be used to obtain leverage over these companies. The conference participants concluded that using law enforcement powers and civil litigation to ‘maintain[ ] pressure on the industry that could eventually lead to its support for legislative and regulatory responses to global warming.’ One commentator observed, ‘Even if your ultimate goal might be to shut down a company, you still might be wise to start out by asking for compensation for injured parties.’” (emphasis added)

The activists and public officials have followed this strategy to the letter. All of the municipalities in California, New York City, and most recently in Colorado, have gone to great lengths in their filings to insist they are only asking for oil and gas companies to pay for the alleged past and future damages caused by global warming. But as the La Jolla playbook makes clear, and as Judge Wallace has affirmed, the real goal is to shut down the energy industry.

Judge Wallace also zeroed in on the secret closed-door meeting in 2016 at the Manhattan offices of the Rockefeller Family Fund, where activists and their donors plotted the next steps in their campaign:

“At the conference, Potential Defendant Pawa targeted ExxonMobil’s speech on climate change, and identified such speech as a basis for bringing litigation. Mr. Pawa claimed that ‘Exxon and other defendants distorted the truth’ (as Mr. Pawa saw it) and that litigation ‘serves as a ‘potentially powerful means to change corporate behavior.’’…

“In January 2016, Mr. Pawa engaged participants at the Rockefeller Family Fund offices in New York City to further solidify the ‘[g]oals of an Exxon campaign’ that Mr. Pawa developed at the La Jolla conference. According to a draft agenda for the meeting, the goals of this campaign included: (i) ‘[t]o establish in [the] public’s mind that Exxon is a corrupt institution that has pushed humanity (and all creation) toward climate chaos and grave harm’: (ii) ‘[t]o delegitimize [ExxonMobil] as a political actor’…

“According to the draft agenda, Mr. Pawa and the other participants aimed to chill and suppress ExxonMobil’s speech through ‘legal actions & related campaigns,’ including ‘AGs’ and ‘Tort[]’ suits. The draft agenda notes that participants planned to use ‘AGs’ and ‘Tort[]’ suits to ‘get[] discovery’ and ‘creat[e] scandal.’” (emphasis added)

Within a few months of that secret meeting, Pawa had briefed several state attorneys general on the prospect of investigating ExxonMobil. The assembled state AGs held a press conference immediately following Pawa’s presentation:

“On March 29, 2016, New York Attorney General Eric Schneiderman, Massachusetts Attorney General Maura Healey, and other state attorneys general, calling themselves the ‘Green 20,’ held a press conference where they promoted regulating the speech of energy companies, including ExxonMobil, whom they perceived as an obstacle to enacting their preferred policy responses to climate change. Attorneys General Schneiderman and Healey discussed their investigations of ExxonMobil. They were also joined by former Vice President Al Gore, an investor in alternative energy companies…

“Attorney General Healey similarly echoed themes from the strategy Mr. Pawa developed at La Jolla…Attorney General Healey announced that those who ‘deceived’ the public ‘should be, must be, held accountable.’ In the next sentence, she disclosed that she too had begun investigating ExxonMobil and concluded, before receiving a single document from ExxonMobil, that there was a ‘troubling disconnect between what Exxon knew . . . and what the company and industry chose to share with investors and with the American public.’” (emphasis added)

Turning from the AG investigations, which a federal judge in Texas has suggested may have been initiated in “bad faith,” Judge Wallace explains how Pawa pursued the next strategy outlined in the La Jolla playbook:

“With the investigations of the state attorneys general underway, Mr. Pawa next promoted his La Jolla strategy to California municipalities, as potential plaintiffs in tort litigation that would be filed against energy companies, including ExxonMobil.

“Mr. Pawa sent a memo outlining this strategy to NextGen America, the political action group funded by political activist Tom Steyer. The memo ‘summarize[d] a potential legal case against major fossil fuel corporations,’ premised on the claim that ‘certain fossil fuel companies (most notoriously ExxonMobil), have engaged in a campaign and conspiracy of deception and denial on global warming.’ Mr. Pawa emphasized that ‘simply proceeding to the discovery phase would be significant’ and ‘obtaining industry documents would be a remarkable achievement that would advance the case and the cause.’…

Following through on the strategy Mr. Pawa outlined in his memorandum to NextGen America, Potential Defendants Parker, Herrera, and the Cities of Oakland and San Francisco filed public nuisance lawsuits against ExxonMobil and four other energy companies, including Texas-based ConocoPhillips. Mr. Pawa represents the plaintiffs in those actions…” (emphasis added)

After listing some of the allegations made by the California plaintiffs in their lawsuits, namely that the oil and gas industry somehow hid climate change from the public to protect its profits, Judge Wallace dealt a major blow to the municipalities:

“These allegations are contradicted by the Respondents’ own municipal bond disclosures. While the California municipalities alleged in their complaints against the energy companies that the impacts of climate change were knowable, quantifiable, and certain, they told their investors the exact opposite. These contradictions raise the question of whether the California municipalities brought these lawsuits for an improper purpose.” (emphasis added)

Near the end of his filing, Judge Wallace summarized Matt Pawa’s centrality to the anti-oil and gas campaign, noting that the climate lawsuits and the attorney general investigations all stem from the 2012 La Jolla conference:

“Mr. Pawa initiated contact and created a continuing relationship with Texas by, among other activities, (i) initiating a plan to use litigation to change corporate behavior of Texas-based energy companies at the La Jolla conference; (ii) engaging with the Rockefeller Family Fund to solidify and promote the goal of delegitimizing ExxonMobil as a political actor; (iii) instigating state attorneys general to commence investigations of ExxonMobil in order to obtain documents stored in Texas; and (iv) soliciting and actively promoting litigation by California municipalities against the Texas energy industry, including ExxonMobil, to target Texas-based speech and obtain documents in Texas.” (emphasis added)

The scope of the campaign to bring down energy companies is breathtaking. Judge Wallace’s “findings of fact and conclusions of law” validates much of what Energy In Depth and others have exposed over the past few years.

The ruling will likely lead to additional scrutiny for anti-fossil fuel activists, their funders, and the public officials involved in the climate litigation campaign – including Mr. Pawa himself, whose role in a political campaign to suppress speech has just been identified by court of law.