Massachusetts Court to Exxon: Turn Over All Climate Documents Since 1976


Another day, another investigation in search of a crime.

“Massachusetts’s top court on Friday ordered Exxon Mobil, Inc. to turn over company records to the state attorney general, who is investigating the firm for deceptive acts related to its knowledge of climate change and its public statements about the issue,” E&E News reports.

The article continues: “Exxon must comply with a demand for documents Massachusetts Attorney General Maura Healey (D) sent two years ago, requesting decades’ worth of files about climate change and climate science, company research projects and corporate finances, the court said.”

Healey and New York Attorney General Eric Schneiderman are partners in AGs United for Clean Power, a gang of 25 Democratic AGs who burst onto the scene in March 2016 at a press conference headlined by Al Gore. Comparing Big Oil to Big Tobacco, the AGs accuse fossil fuel companies of knowingly selling dangerous products while hiding the financial and environmental risks from shareholders and the public.

So far, their litigation campaign has been a bust. Healey and Schneiderman appear to be the only active partners in the campaign. ExxonMobil turned over an estimated 3 million pages of documents to Schneiderman’s office as of last November, with no indictments to show for it. Healey claims “There is an awful lot we still don’t know.” Well, of course, if someone is not guilty, there is much you don’t know about crimes they did not commit.

Exxon-bashing and climate change litigation are resume-builders for progressive politicians, so that may partly explain Healey’s antics. However, we should not underestimate either the greed or malice of the municipal and state officials seeking to loot and bankrupt fossil energy companies.   

The Massachusetts Supreme Court upheld Healey’s “civil investigative demand” (C.I.D) for Exxon climate-related documents dating back to 1976. The rationale is bizarre. Healey does not need to “have probable cause to believe Exxon” violated the state statute, General Law 93a, which prohibits “unfair or deceptive acts or practices in the conduct of any trade or commerce.” Healey simply needs to believe that Exxon’s conduct may violate the law. Such violation may occur because Exxon has 300 branded service stations in Massachusetts, it controls franchisee advertising, and thus the company “communicates directly with Massachusetts consumers about its fossil fuel products.”

Well, of course, it does. Exxon franchisees communicate with customers about how Exxon-blended gasoline and lubricants support engine performance. They also post information about prices and the convenience of buying gas with Exxon’s Speedpass. The court does not cite a scrap of evidence that any of that is fraudulent. Nor do Healey or the court produce a single example of an Exxon franchisee communicating overt or even subliminal climate change messages to consumers.

The court says Healey “seeks information about the nature and extent of Exxon’s Massachusetts advertisements, including those disseminated through Exxon’s franchisees.” (p. 14) Healey lives in Massachusetts. She doesn’t need to requisition millions of documents from Exxon HQ in Texas to find out what 300 service stations in Massachusetts are advertising. She can just tell her staff to drive to the stations and look, or ask local business bureaus whether customers complain about deceptive advertising.

The court continues: “More broadly, the C.I.D. seeks information concerning Exxon’s internal knowledge of climate change.” No, there’s nothing “more broadly” about it. The two topics are totally unrelated. The company’s thinking about climate change has no bearing on its franchisees’ communications about fuel additives, lubricants, and the like.

The court next suggests Exxon may be defrauding consumers through lies of omission: “Our cases … establish that advertising need not be totally false in order to be deemed deceptive in the context of G. L. 93a. … The criticized advertising may consist of a half-truth, or even may be true as a literal matter, but still create an overall misleading impression through failure to disclose material information.”

Okay, let’s spell it out. In the court’s wisdom, Exxon’s commercial speech must also include political speech about how the company’s products destroy the planet, or the firm fails to disclose material information. So, when you pull into an Exxon station, and you don’t get a climate sermon, the company is defrauding you and should be prosecuted. Will the court please cite the law that compels companies to commingle commercial and political speech? If any state has such a law, it is violating the First Amendment.

By approving Healey’s document request, the court also implies that Exxon has been failing to proselytize you (or your parents) about climate change since 1976. Mindboggling. The IPCC itself did not claim to know whether anthropogenic global warming had begun until its third assessment report in 2001.

More importantly, even today, the urgency and extent of climate change risk are matters of debate and speculation rather than firm science. As Cato Institute scientist Patrick Michaels points out, scary-sounding climate change forecasts come from models that predict two to three times as much global warming as has actually occurred since the late 1970s. Only one model, known as NA4, accurately tracks global temperatures at the surface and in the bulk atmosphere over the past 39 years. When that model is run with a realistic emissions scenario (where natural gas continues to replace coal for electric generation), the predicted 21st century warming is about 1.5°C. That means the world is already on track to meet the Paris Climate Treaty’s maximum goal, but with no new climate policies.

In addition, an abundance of empirical data show that progress towards a better world continues in the Age of Global Warming, with no end in sight. The global trends for life expectancy, infant mortality, health of the elderly, access to safe drinking water, per capita income, poverty, hunger, crop yields, and deaths from extreme weather show sustained and often dramatic improvements. None of those advances would be possible absent the abundant, affordable, and reliable energy mankind derives from fossil fuels. 

As discussed in previous posts, Healey and her allies have no idea how easily they can be hoist on their own petard. If minimizing climate risk is prosecutable fraud, so is exaggerating climate risk, especially if undertaken to enrich industry allies. Hyping climate risk is the global warming movement’s stock in trade, and AGs United for Clean Power unabashedly seek to “transform”—that is, rig—energy markets in favor of renewable energy companies.

Similarly, if minimizing climate change risk is fraud, then so is minimizing climate policy risk. More than 1 billion people still have no access to electricity, and billions more have too little commercial energy to sustain development. That is the real energy crisis. Yet Healey and her comrades talk as if governments can put an energy-starved planet on an energy diet, and nobody except fossil-fuel CEOs could possibly get hurt. That’s about as fraudulent as it gets.