This story was published in the upcoming issue of Covering Climate Now, a global network of news outlets that focuses on the climate story.
ExxonMobil has an ambitious goalTo use something unusual 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 nation’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 claims that California court action is infringing 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 are seeking billions in compensation for damage from wildfires, flooding, or other extreme weather events. In addition, they want to pay for the cost of new infrastructure to address the effects of rising global temperatures.
Rule 202 allows corporations to go on fishing expeditions for incriminating evidence. They are allowed to question individuals and demand documents before any legal action against them is filed. 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 files 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 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 is also co-author of Merchants of Doubt: How a Few Scientists Obscured the Truth About Issues From Tobacco Smoke To Global WarmingExxon, according to a statement, had a long history in trying to silence its critics.
“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 stated that the legal strategy is part of a larger public relations campaign to portray the company as a victim to radical environmentalists or opportunistic political politicians. Exxon, however, argues that it should be praised for its efforts in combating the climate crisis.
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 actions were blocked by the Massachusetts supreme and federal courts.
Exxon may be able to expect a more sympathetic hearing in Texas if the Texas supreme courts allows its rule 202 bid.
Exxon is currently facing a slew of lawsuits in the US. Many accuse Exxon and other fossil fuel companies of violating consumer protection laws by spreading misinformation about climate science.
Oreskes claimed that Exxon went further than other oil companies in its search for the best. It hides the evidence of its scientists collected about global heating and in running a disinformation campaign.
“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.”