ExxonMobil tries an unusual approach to marketing Texas law to target and intimidate its critics, claiming that lawsuits against the company over its long history of downplaying and denying the climate crisis violate the US constitution’s guarantees of free speech.
The US’s largest oil firm is asking the Texas supreme court to allow it to use the law, known as rule 202, to pursue legal action against more than a dozen California municipal officials. Exxon claims that in filing lawsuits against the company over its role in the climate crisis, the officials are orchestrating a conspiracy against the firm’s first amendment rights.
The oil giant also claimed that California court proceedings are an infringement on Texas sovereignty.
Eight California counties and cities have accused Exxon of violating state laws by misrepresenting or burying evidence. its own scientistsThe threat posed by rising temperatures. The municipalities seek billions of dollars in damages from wildfires, flooding, and other extreme weather events. They also want to cover the cost of building new infrastructure to deal with the rising global temperatures.
Rule 202 allows corporations to go on fishing expeditions for incriminating evidence. They can question individuals under oath to demand access to documents, even before any legal action is brought against them.
Exxon wants to use the provision to force the California officials to travel to Texas to be questioned by the firm’s lawyers about what the company describes as “lawfare” – the misuse of the legal system for political ends.
Exxon claims in a petition to the Texas supreme court that it is entitled to question the officials in order to collect evidence of “potential violations of ExxonMobil’s rights in Texas to exercise its first amendment privileges” to say what it likes about climate science.
“The potential defendants’ lawfare is aimed at chilling the speech of not just ExxonMobil, but of other prominent members of the Texas energy sector on issues of public debate, in this case, climate change,” the company claims in its petition.
The oil giant’s critics say Exxon’s attempt to use claims of free speech to curtail the first amendment rights of others follows a pattern of harassment toward those who challenge the company’s claims about the climate crisis.
Patrick Parenteau, a law professor and former director of the Environmental Law Center at Vermont law school, has described the company’s move as “intimidation” intended to make “it cost a lot and be painful to take on Exxon” whether or not the company wins its case.
In a highly unusual move, Texas’s governor, Greg Abbott, has written to the all-Republican court – half of whose members he appointed – in support of Exxon. He accused the California litigants of attempting “to suppress the speech of eighteen Texas-based energy companies on the subject of climate and energy policies”.
“When out-of-state officials try to project their power across our border, as respondents have done by broadly targeting the speech of an industry crucial to Texas, they cannot use personal jurisdiction to scamper out of our courts and retreat across state lines,” Abbott wrote.
In backing its claim, Exxon’s petition to the Texas supreme court gives the example of the Oakland city attorney, Barbara Parker, who in 2017 “issued a press release seeking to stifle the speech of the Texas energy sector or, as she likes to refer to it, ‘BIG OIL’”.
The press release said: “It is past time to debate or question the reality of global warming … Just like BIG TOBACCO, BIG OIL knew the truth long ago and peddled misinformation to con their customers and the American public.”
The company also names the then San Francisco city attorney, Dennis Herrera, because he accused fossil fuel companies of launching a “disinformation campaign to deny and discredit” the reality of global heating, and pledged to hold the companies responsible “to account”.
Exxon has also targeted Matthew Pawa (an environmental lawyer in Boston) who represents some California municipalities. The firm describes him as “an outspoken advocate of misusing government power to limit free speech” and alleges that Pawa “recruited” the California cities and counties to sue Exxon.
“Those lawsuits are an affront to the first amendment,” the company claims.
Naomi Oreskes is a Harvard professor who co-authored Merchants of Doubt. How a Handful of Science Obscured the Truth On Issues From Tobacco Smoke To Global Warming.
“Now that the arguments have moved into the legal sphere, this feels to me like an extension of the sort of harassment, bullying and intimidation that we’ve seen in the scientific sphere for the last two decades,” she said.
Oreskes claimed that the legal strategy is part a wider public relations campaign to portray Exxon as a victim of radical environmentalists, opportunistic politicians, and that Exxon should be celebrated for its efforts to combat climate change.
“Exxon Mobil has for a long time now tried to make themselves out to be the victim, as if somehow they’re the innocent party here,” she said.
The Texas supreme court is considering the case after a lower court backed Exxon’s attempts to use rule 202 against the California officials. The decision was overturned in appeal.
The appeal court sympathised with Exxon by acknowledging “an impulse to safeguard an industry that is vital to Texas’s economic well-being” and saying that “lawfare is an ugly tool by which to seek the environmental policy changes” pursued by California municipalities. The appeal court ruled that the defendants didn’t have enough direct connection to Texas to allow the case to be heard in Texas.
Exxon has tried to head off climate litigation before with lawsuits claiming that the attorney generals of Massachusetts and New York were violating the company’s rights by investigating it. These moves were stopped by the Massachusetts supreme Court and a federal court.
Exxon may be able to expect a more sympathetic hearing in Texas if the Texas supreme courts allows its rule 202 bid.
Exxon faces a series of lawsuits from across the US. Many others accuse Exxon, along with other fossil fuel firms, of violating consumer rights laws by disinformation about climate science.
Oreskes claimed that Exxon went further than other oil companies in its search for the best. hide the evidence of its own scientistsThe data was used to create disinformation campaigns and to collect information about global warming.
“They’re pushing their freedom of speech as an issue because more than any other company, it’s been proven by people like me and others that they have a track record of promoting half truths, misrepresentations and in some cases outright lies in the public sphere,” she said.
“This is so well documented that unless they can come up with some strategy to defend it, they’re in potentially pretty serious trouble.”
This story is part of Covering Climate Nowa global network of news outlets that focuses on the climate story.