Last April, I predicted that the Massachusetts Supreme Judicial Court’s decision to allow Attorney General Maura Healey’s civil investigative demand regarding Exxon’s knowledge of climate change to proceed had “ended a significant chapter in [the] long-running dispute.” In fact, that chapter managed to continue through January 7, 2019, when the United States Supreme Court rejected Exxon’s petition to review the SJC’s decision.
Exxon’s certiorari petition accuses the Massachusetts courts of “a breathtaking assertion of personal jurisdiction” that “flouts core notions of due process,” arguing that Exxon’s ability to control the advertising of its licensees in Massachusetts did not constitute sufficient contact with Massachusetts to be subject to a CID. Though devoted in large part to technical legal arguments about the Massachusetts’ long-arm statute, the petition – like all of Exxon’s major filings – also finds space to discuss the “AGs United for Clean Power” press conference in 2016 that Exxon has continually held up as evidence of AG Healey’s purported bias. Going one step further, Exxon accuses AG Healey of “seek[ing] to co-opt the power of the state courts” and operating “without any independent judicial oversight of the merits of the inquiry and with only minimal oversight of the scope of its document requests.”
Rhetoric aside, the Superior Court will continue to play an oversight role if Exxon moves to limit the CID – such as by time or subject – in the future. But given that over two and a half years have elapsed since the issuance of the CID, Exxon is unlikely to find much judicial patience for further delay.