Exxon Climate Change Investigation Updates

Exxon’s dispute with Massachusetts AG Maura Healey’s civil investigative demand related to Exxon’s knowledge of climate change both deepened and potentially widened in the last week.

First, on October 13, 2016 United States District Judge Ed Kinkeade handed down an order that will allow Exxon to conduct discovery on Healey’s motives for issuing the CID.  The order stems from the AG’s argument, in moving to dismiss, that Exxon’s claim is improperly before the federal court in the Northern District of Texas pursuant to Younger v. Harris, 401 U.S. 37 (1971), in which the Supreme Court held that federal courts should abstain from hearing civil rights claims related to criminal prosecutions in state court while such proceedings are ongoing.  This policy, aimed at limiting undue federal interference with state courts, can also apply to civil proceedings where important state interests are at stake. See Health Net, Inc. v. Wooley, 534 F.3d 487, 494 (5th Cir. 2008).  Because proceedings related to the CID are ongoing in Massachusetts Superior Court, the AG argued for Younger abstention.

Judge Kinkeade resisted the AG’s Younger abstention argument, however, arguing that the doctrine may not be available if the CID was primarily political in motive.  Judge Kinkeade recounted AG Healey’s attendance at the March 29, 2016 press conference of AGs United for Clean Power, including a speech in which Healey called for “quick, aggressive action, educating the public, [and] holding accountable those who have needed to be held accountable for far too long.”  Judge Kinkeade characterized the speech as “anticipatory […] about the outcome of the investigation” of Exxon.”  Accordingly, Exxon will be able to conduct discovery on “Attorney General Healey’s comments and actions before she issued the CID.” In comments from her spokesperson, AG Healey made clear that she will not back down despite the Judge’s order.

In addition, Exxon moved to amend its complaint to include NY AG Eric Schneiderman and bar Schneiderman’s subpoena for documents similar to those sought by Healey’s CID.  Exxon blasted the subpoena as “sprawling” and “politically charged,” and argued that the subpoena’s “true purpose” was to “suppress speech” with which Schneiderman disagreed.  The amended complaint would also allege a new count of civil conspiracy, arguing that the two AGs conspired to investigate Exxon “with the ulterior motive of preventing ExxonMobil from enjoying and exercising its rights protected by the First, Fourth, and Fourteenth Amendments to the United States Constitution, as well as Sections Eight, Nine, and Nineteen of Article One of the Texas Constitution.”

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