Exxon Contretemps Escalates as Congress Gets Into the ActExpect lawsuits unto the end of time Jun 1 2016
Investigative reporting last fall by the Los Angeles Times and Inside Climate News revealed that Exxon hid research into climate change, all the while funding groups to debunk
global warming. That led to investigations of their own by a growing number of state attorneys general, with New York's Eric Schneiderman leading the charge.
But in a don't mess with Texas backlash, Republican Representative Lamar Smith of that state and chair of the House science committee has started a firefight on behalf of Texas-based Exxon, alleging a conspiratorial collaboration between Schneiderman's office and climate change activist groups, and calling on him to turn over all communications with such groups from 2012 forward.
The ranking Democrat of his own committee has accused him of improper use of the committee in an “ideological crusade” premised on “baseless conspiracy theories.”
Smith's letter to Schneiderman accuses him of acting “under the color of law to persuade attorneys general to use their prosecutorial powers to stifle scientific discourse, intimidate private entities and individuals, and deprive them of their First Amendment rights and freedoms”. It's an odd claim. The allegations against Exxon are of the company's failure to disclose research in decades past. There was no discourse to be stifled. Nor can attorneys generals' actions today stifle First Amendment rights exercised years ago. Rather, it is Exxon's claim that they had freely exercised their First Amendment rights in those earlier years to say whatever they chose.
Schneiderman and company are motivated to expose the fraud of the fossil fuel industry for its attempt to thwart any action against climate change and create a large public faction of disbelievers. Having accused him of stifling and intimidation, Smith's committee is doing the same, going after non-profit groups for the sin of exposing Exxon's duplicity. He has just demanded in a letter that 350.org "divulge every communication with state officials and many private organizations related to our constitutional right to ask elected officials to investigate what Exxon knew about climate change and when", says Bill McKibben, the group's leader.
The Union of Concerned Scientists is e-mailing for contributions, having just received the same demands from Smith's committee for "years' worth of communications with state officials, other non-profits, and climate science researchers, all in an effort to cow us into silence" and giving the organization a week to respond.
Smith is lashing out in all directions. In the wake of a paper by the National Oceanic and Atmospheric Administration (NOAA), Smith had already subpoenaed all communications within that agency about their underlying research, even a demand for private e-mail correspondence among its scientists (that last demand since dropped).
Climate change deniers and skeptics have long pointed to barely rising temperatures over the last 18 years as proof that climate change claims range from exaggerated to outright hoax. The NOAA paper said that the temperature hiatus disappeared from the temperature charts once adjustments were made to compensate for "inconsistent historical methods of measuring temperature, especially those involving seawater". Smith's accusations say the agency “altered historical climate data to get politically correct results" and rushed the paper into print in Science magazine last June to bolster its case ahead of the December climate summit in Paris.
NOAA countered that the paper had taken longer to write than usual and had undergone not one but two sets of peer reviews. They might also have pointed out how careful the naysayers are to always reach back far enough to include the year 1998 an unusually hot El Niño year 18 years ago to make it seem that little global temperature rise has happened since. Absent 1998, the hiatus argument collapses. Moreover, to insist that the hiatus continues into this 18th year ignores that the last two years have been the hottest on record, continuing a stretch in which 15 of 17 hottest years have occurred since 2000.findings
The web-based Inside Climate News conducted an eight month investigation that uncovered Exxon's research into whether climate change was occurring and what ramifications it would have on the company's operations. The site's multiple reports, spanning four decades of Exxon's explorations into climate science, made it a runner-up for what would have been its second Pulitzer. At one end of the globe in the 1980s, they report Exxon's alarm at discovering that one of the world's largest natural gas deposits in Indonesia was contaminated with immense amounts of carbon-dioxide, worrying that drilling would release and add to the threat of climate change. At the other end of the planet, the Los Angeles Times cites Exxon's reports from the Arctic in the 1980s and 1990s in which the company's scientists signaled management that "warming will clearly affect sea ice, icebergs, permafrost and sea levels” but that “potential global warming can only help lower exploration and development costs” in the Beaufort Sea.
By 1977, an Exxon senior scientist named James Black told the company’s management committee that there was “general scientific agreement” that man-made CO2 was likely causing the greenhouse effect of trapping heat in the atmosphere. He would later tell a larger audience in the company that research indicated that doubling the amount of carbon dioxide would increase temperatures two to three degrees Celsius.
The journalists' findings show that Exxon scientists were all along acknowledging global warming and human contribution, yet in those same years, Exxon, along with others in the fossil fuel industry, funded a group called the Global Climate Coalition and its long-term campaign to persuade people that there is no global warming problem. The group was shown to have refuted its own scientists when a leaked document surfaced in which they stated unequivocally that, “The scientific basis for the Greenhouse Effect and the potential impact of human emissions of greenhouse gases such as CO2 on climate is well established and cannot be denied.” That clearly was not what coalition backers wanted to hear. Much as the tobacco industry suppressed internal reports that found nicotine to be addictive, the Coalition adhered to its agenda of spreading disinformation. Instilling uncertainty was meant to blunt any outbreak of public demand for regulatory legislation. The Coalition was disbanded in 2002 as evidence of the human contribution to global warming overwhelmed its message.
But Exxon, merged as ExxonMobil, continued its campaign to make the public think that “the role of greenhouse gases in climate change is not well understood”. On its own, the corporation channeled some $16 million between 1998 and 2005 to a campaign of misinformation fed to a network of 43 advocacy organizations, according to a 2007 study by the Union of Concerned Scientists.free-for-all
Schneiderman subpoenaed ExxonMobil last fall for documents following the Los Angeles Times and Inside Climate News exposés. ExxonMobil has cooperated, turning over thousands of internal documents dating back to the late 1970s.
In March, Claude Walker, the attorney general of the Virgin Islands followed suit, subpoenaing documents and threatening to use RICO, the Racketeer Influenced and Corrupt Organizations Act, against the company. ExxonMobil filed suit to block the subpoena.
Walker also subpoenaed the Competitive Enterprise Institute, requesting a decade of communications, documents and private donor information for the years 1997-2007. CEI fired back with a full-page advertisement in the New York Times, adorned with 43 endorsements, against Schneiderman and others accusing them of "Abuse of Power" for investigating "100 businesses, nonprofits, and private individuals who question their positions on climate change". It is the only mention we have seen of so many investigative targets; the ad contains no substantiation. It says "every American should reject the use of government power to harass or silence those who hold difference opinions". There is no chastisement of Smith's committee for doing the same.
Walker revoked the subpoena. Apart from the hazards of the Virgin Islands picking a fight with the endless resources of Exxon's in-house legal staff, it is possible that the other attorneys general may have thought he had gone too far afield, their target being Exxon. But CEI won't let the matter drop. It is going forward "with our motion for sanctions" against "a constitutional outrage".is there a case?
Schneiderman has the investigative powers of New York's Martin Act and other laws unique to that state as a financial capital. He is investigating Exxon for “defrauding the public, defrauding consumers, defrauding shareholders.” At least four other states' attorneys general have announced that they are conducting investigations.
Exxon is saying that it was exercising its First Amendment rights to express its concerns. Schneiderman says the First Amendment is not a shield protecting fraud. But his claim of defrauding the public and consumers would seem overly broad. Exxon kept itself a step removed by funding others such as Global Coalition and the Cato Institute to do the disparaging of climate science. Won't they say there was no guilt by management for not reporting research warnings that they may have thought far-fetched? As a matter of law, Schneiderman's case against Exxon would seem limited to the company's failure to notify investors of the degree to which climate change could affect its operations and therefore its bottom line and share price.
Even that seems iffy. While it may be viewed as scandalous that Exxon was secretly concerned about CO2 likely to cause global warming as far back as the 1950s, a reminder is called for that there was nowhere near any certainty of cause and effect then, so who is guilty, and of what? As a spokesman for ExxonMobil said, “To suggest that we had definitive knowledge about human-induced climate change before the world’s scientists is not a credible thesis”.
That still holds true into the 1980s and 1990s. A legal defense would be that, at the time Exxon was carrying on its research, the question of whether or not human activity was the cause of warning was still hotly debated (and in certain steadily diminishing pockets still is), so again, absent any certainty that the hypothesis was true, why did Exxon owe the public an announcement of the product of its research? Exxon can also maintain that, as a major corporation with world-wide operations, it must look into every contingency that would affect its future, and that there was no hypocrisy in conducting scientific investigations while the non-scientists in management clung to a different view.
That's a legal defense, hardly credulous outside a courtroom. Just plain folk would find it deceitful, as when Lee Raymond, the Exxon CEO at the time, dismissed global warming as a “premise that defies…common sense”, refuting his own company's warnings, and at 1999's annual meeting said that “projections are based on completely unproven climate models" when Exxon's research reports in the 1980s and 1990s were based on climate models from the Canadian Climate Centre and NASA’s Goddard Institute.
But it does suggest that trying to make a case of clear culpability for harm to the general public will be difficult to prove. And it can be added that, while that general public was learning of the dire future that rising temperatures caused by the human release of carbon dioxide will bring, those were the years when we went on a spree of buying "gas guzzling" pick-up trucks and SUVs. So, who brought the harm? Millions with our uninterrupted and inefficient use of fossil fuels. It is rather like those who sued the tobacco companies for the death of a spouse from lung cancer, claiming that they didn't notice the warning label on all those packages in all those years.
The path that the activist groups are reportedly following is the same as the campaign as that which leveled Big Tobacco. It apparently began with a 2012 workshop in California with representatives from the Union of Concerned Scientists, the Climate Accountability Institute and the Massachusetts-based Global Warming Legal Action Project. They were subsequently joined by 350.org, the Al Gore-founded Climate Reality Project, Greenpeace and funding from the Rockefeller family philanthropies.
These groups realize that the most valuable by-product of the legal campaign is the negative publicity against the fossil fuel companies for their campaign of deception that fueled the denier belief that climate change is questionable or a conspiratorial lie.
And even if a suit were successful and led to a huge settlement, Schneiderman and cohort would look to a lifetime of motions for delay and appeals. Exxon is the company, let's remember, that was responsible for the 1989 Exxon Valdez oil spill that destroyed the ecology the birds, the fisheries of Prince William Sound, Alaska. The company then fought a jury award of $5 billion in damages for 20 years, finally paying in 2009 a tenth of the original amount.
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