The GOP group filed an amicus brief accepted Monday by U.S. District Judge Valerie Caproni supporting Exxon's claims that Attorneys General Maura Healey of Massachusetts and Eric T. Schneiderman of New York have conspired with environmentalists and like-minded attorneys general to suppress the company's free speech rights on the issue of climate change.
Attorneys general have a constitutional duty to act impartially and dispassionately and enforce the law evenhandedly, the amici AGs from from Texas, Louisiana, South Carolina, Alabama, Michigan, Wisconsin, Nebraska, Oklahoma, Utah, Arkansas, Nevada and Indiana argued in their brief.
“Here, defendants are not using their power in an impartial manner,” the brief stated. “Rather, they are embracing one side of a multi-faceted and robust policy debate, and simultaneously seeking to censor opposing viewpoints. This is bad faith.”
Healey and Schneiderman are investigating Exxon over whether the company misled consumers and investors about climate change and its potential effects on the company. However, the amici AGs argue that's a legal fig leaf covering up the prosecutors' real intention of harassing Exxon and other parties that have expressed skepticism over man-made climate change into silence with abusive subpoenas and investigative demands.
That was evidenced by a March 2016 press conference in which Healey, Schneiderman and other state attorneys general vowed to hold energy companies accountable for their past knowledge of climate change, the amici brief said.
“This is a constitutionally improper ploy by two state attorneys general to suppress the free speech of a company they disagree with,” Texas Attorney General Ken Paxton said in a statement Tuesday. “Using law enforcement authority to silence speakers in a public policy debate undermines the trust invested in our offices and threatens the First Amendment.”
Healey and Schneiderman claim Exxon's suit is an attempted end run around cases currently progressing in New York and Massachusetts state courts in which it is fully participating and have urged Judge Caproni to toss it.
Exxon says it has provided enough evidence to support its allegations and that dismissing the company's suit would give state officials the green light to go after political opponents without any oversight from the federal courts.
Schneiderman spokeswoman Amy Spitalnick blasted the AG amici brief and accused its authors of being puppets for Exxon.
"Exxon and its beneficiaries will do everything they can to delay and distract from our investigation, which we will continue to pursue under New York law,” Spitalnick told Law360 Tuesday. “This brief is a ventriloquist routine that, not surprisingly, makes no mention of the facts our investigation has uncovered about Exxon's significant potential investor fraud."
The spokeswoman was referring to evidence already provided by Exxon in response to Schneiderman's original subpoena in November 2015. The AG claims the evidence suggests that the company's disclosure to investors of so-called proxy costs of greenhouse gas emissions to its investments and impairments on the value of its assets may have been a “meaningless sham.”
Schneiderman and Exxon are squaring off in New York state court over his latest round of subpoenas for information about Exxon's use of proxy greenhouse gas costs. After a highly contentious June 16 hearing, New York Supreme Court Judge Barry Ostrager said that Schneiderman is entitled to take requested depositions of Exxon employees and others, and to serve Exxon with interrogatories that aren’t overly burdensome.
The judge also said Exxon has a continuing obligation to turn over any documents it finds that are responsive to Schneiderman's original subpoena issued in November 2015, but he declined to rule on whether or not the company must provide new material that wasn’t the subject of the first demand for information, saying the parties should meet and confer to try to come to some sort of agreement on how to move forward.
The amici AGs represent themselves.
Exxon is represented by Theodore V. Wells Jr., Michele Hirshman, Daniel J. Toal and Justin Anderson of Paul Weiss Rifkind Wharton & Garrison LLP, Ralph H. Duggins, Philip A. Vickers and Alix D. Allison of Cantey Hanger LLP, Nina Cortell of Haynes and Boone LLP and in-house counsel Patrick J. Conlon and Daniel Bolia.
Schneiderman is represented by Chief Deputy Attorney General Jason Brown, counsel Leslie B. Dubeck and Assistant Solicitor General Eric Del Pozo.
Healey is represented by Richard Johnston, Melissa Hoffer, Christophe Courchesne, Andrew Goldberg and Peter Mulcahy of the Massachusetts Attorney General’s Office.
The case is Exxon Mobil Corp. v. Eric Tradd Schneiderman et al., case number 1:17-cv-02301, in the U.S. District Court for the Southern District of New York.
--Additional reporting by Stewart Bishop. Editing by Jill Coffey.
