Exxon strikes back against Marin, others over climate change lawsuit.
Marin County and four other cities and counties seeking to hold fossil fuel companies accountable for climate change damages have responded to a threatened lawsuit by ExxonMobil Corp.
Last summer, Marin County, San Mateo County and the city of Imperial Beach sued 37 oil, gas and coal companies asserting the companies knew their fossil fuel products would cause sea level rise and coastal flooding but failed to reduce their greenhouse gas pollution. Since then the county of Santa Cruz and the cities of San Francisco, Oakland and Santa Cruz have joined the suit as plaintiffs.
In January, ExxonMobil struck back, petitioning the Tarrant County District Court in Texas to allow it to question 17 government officials who work for the plaintiffs and a Hagens Berman lawyer. The move has been interpreted as the first step toward ExxonMobil suing the government entities. ExxonMobil did not respond to a request for comment.
Among the officials that ExxonMobil wants to depose are County Administrator Matthew Hymel and Marin County Counsel Brian Washington.
“It’s not technically a lawsuit yet,” Washington said, “but they’ve filed in court to ask for permission to do investigative depositions to try to find evidence for a lawsuit.”
Washington said the city and counties involved in the litigation are fighting ExxonMobil’s right to take those depositions.
“We don’t think the Texas court has jurisdiction over this issue,” Washington said. “That is being litigated in Texas right now.”
ASSERTS BAD FAITH
ExxonMobil is asserting the suit against the oil companies demonstrates bad faith because while the government entities are asserting global warming will result in costly damages to their jurisdictions they have not disclosed this fact in their bond offerings.
For example, ExxonMobil says that in the suit Marin County asserts a 99 percent risk it will experience a devastating flood before 2050 but has not disclosed this to investors in bond offerings.
Last week, Marin and the other four plaintiffs counterpunched with the help of Martha Mahan Haines, who headed the U.S. Securities and Exchange Commission’s Office of Municipal Securities from 2001 to 2011. Prior to that, Haines worked for more than 20 years as a municipal bond attorney in private practice.
In a detailed report, Haines wrote, “None of the municipal governments either made an untrue statement of a material fact regarding sea level change, or where relevant, climate change in their respective documents for the securities offerings identified in (ExxonMobil’s) petition or omitted such a material fact necessary in order to make the information included therein, not misleading.”
In addition, Haines wrote, “There is no inconsistency or conflict between the allegations in the complaints filed by the municipal governments in connection with their respective civil tort claims against Exxon and other fossil fuel companies regarding sea level rise and the disclosures made by such governments in their respective disclosure documents.”
Since January, ExxonMobil’s line of argument has been taken up by the National Association of Manufacturers (NAM) and the Competitive Enterprise Institute, who sent letters to the SEC asking for an investigation into these allegations. NAM’s president, Jay Timmons, repeated the claims on a radio talk show in Boston, and the charges are being blogged and tweeted via the internet.
Supervisor Damon Connolly said, “Exxon’s accusations are nothing more than a PR and legal stunt designed to distract attention from their role in causing the climate change-related damages facing Marin and other communities.
“The Haines Report unequivocally refutes Exxon’s claims, as well as those from the National Association of Manufacturers and other fossil fuel industry surrogates, so we are not concerned about liability,” Connolly said. “Thus far, we’ve only expended staff time on this issue. It’s important that we stand up to their efforts to intimidate us, and the Haines report only helps our cause.”
At the end of March, U.S. District Judge Valerie Caproni in New York City dismissed with prejudice an ExxonMobil lawsuit seeking to stop the states of New York and Massachusetts from investigating whether the oil and gas company had knowledge about climate change and lied to investors and the public concerning that knowledge.
ExxonMobil sued in June 2016 after receiving subpoenas from the state attorneys general of New York and Massachusetts requesting documents about the company’s historical understanding of global warming and communications with shareholders and other interest groups. ExxonMobil accused the attorney generals, both Democrats, of conspiring to “silence and intimidate one side of the public policy debate,” thus violating its rights to free speech and due process.
On Jan. 9, New York City announced it is separately suing the world’s five largest oil companies — ExxonMobil, BP, Chevron, Conoco-Phillips and Royal Dutch Shell — seeking unspecified financial compensation for present and future damage to the city caused by climate change.
“You have to expect these Rambo litigator tactics; the oil companies are not going to go gently,” said Rep. Jared Huffman, D-San Rafael. “The liability that this litigation could present for them is historic and transformative.”
Huffman expects the oil companies to borrow from the tobacco companies’ playbook.
“When they were being held accountable for profiteering at the expense of the public health, they went after the character, habits and actions of the smokers who died because of their product,” Huffman said. “You’re going to see Exxon and the other fossil fuel companies do the exact same thing in this case.”
Huffman predicts in the end, however, the oil companies will be no more successful than the tobacco companies.
“They will be held accountable,” he said, “and that liability has the potential to really transform this climate change issue like almost nothing else.”
Source: by Richard Halstead
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