Federal Court Delivers Stunning Blow to Mass. AG and #ExxonKnew Campaign

By Katie Brown. (h/t to Matt Dempsey)

In yet another stunning blow to the #ExxonKnew campaign, a federal judge today issued a discovery order against Massachusetts Attorney General Maura Healey to determine whether “bias or prejudgment” influenced her decision to initiate a “bad faith” investigation into ExxonMobil, just days after she appeared before news cameras with New York Attorney General Eric Schneiderman, Al Gore and other Democratic state attorneys general in New York.

As the Washington Post reported this afternoon, this “new discovery order could open the door for an intrusive examination of Maura Healey ’s internal phone records, other communications and depositions,” shedding light on the extent to which Healey, Schneiderman and others have conspired with outside activists, plaintiff attorneys and partisan political interests to carry out their failed #ExxonKnew campaign.

We know from FOIA’d emails that the AGs in Schneiderman’s climate coalition tried to hide behind a Common Interest Agreement, which would keep their correspondence on the Exxon investigations secret. But sunlight is the best disinfectant, they say, and that is exactly what taxpayers will get a result of today’s action. Here are the key passages from the federal court order related to Healey’s “bias” and “bad faith”:

“Attorney General Healey’s actions leading up to the issuance of the CID causes the Court concern and presents the Court with the question of whether Attorney General Healey issued the CID with bias or prejudgment about what the investigation of Exxon would discover.” (p. 3-4)

“The Court finds the allegations about Attorney General Healey and the anticipatory nature of Attorney General Healey’s remarks about the outcome of the Exxon investigation to be concerning to this Court. The foregoing allegations about Attorney General Healey, if true, may constitute bad faith in issuing the CID which would preclude Younger abstention. Attorney General Healey’s comments and actions before she issued the CID require the Court to request further information so that it can make a more thoughtful determination about whether this lawsuit should be dismissed for lack of jurisdiction.” (p. 5-6)

Last month, during the original hearing on this case, lawyers representing Healey’s office claimed that their subpoena was not political. But Judge Kinkeade wasn’t buying it, considering that the AGs announced their investigations at a press conference with Al Gore. As Judge Kinkeade said at the time, “like Al Gore wasn’t frickin’ involved!”

In his order, Judge Kinkeade highlights both the news conference and the fact that Healey and the other AGs in Schneiderman’s climate coalition attended a “closed door meeting” ahead of the conference, where they were briefed by top players in the #ExxonKnew campaign: Peter Frumhoff of the Union of Concerned Scientists and activist lawyer Matt Pawa, who has made a handsome living suing ExxonMobil. From the order:

“Prior to the issuance of the CID, Attorney General Healey and several other attorneys general participated in the AGs United for Clean Power Press Conference on March 29, 2016 in New York, New York. Notably, the morning before the AGs United for Clean Power Press Conference, Attorney General Healey and other attorneys general allegedly attended a closed door meeting. At the meeting, Attorney General Healey and the other attorneys general listened to presentations from a global warming activist and an environmental attorney that has a well-known global warming litigation practice. Both presenters allegedly discussed the importance of taking action in the fight against climate change and engaging in global warming litigation.

One of the presenters, Matthew Pawa of Pawa Law Group, P.C., has allegedly previously sued Exxon for being a cause of global warming. After the closed door meeting, Pawa emailed the New York Attorney General’s office to ask how he should respond if asked by a Wall Street Journal reporter whether he attended the meeting with the attorneys general. The New York Attorney General’s office responded by instructing Pawa ‘to not confirm that [he] attended or otherwise discuss’ the meeting he had with the attorneys general the morning before the press conference.” (p. 4)

Further outlining the cause of the court’s “concern” over the impetus of the investigation, Judge Kinkeade highlighted the potentially “biased” comments Healey made while speaking at the Schneiderman-Gore press conference:

“During Attorney General Healey’s speech, she stated that “[f]ossil fuel companies that deceived investors and consumers about the dangers of climate change should be, must be, held accountable.” Attorney General Healey then went on to state that, “[t]hat’s why I, too, have joined in investigating the practices of ExxonMobil. We can all see today the troubling disconnect between what Exxon knew, what industry folks knew, and what the company and industry chose to share with investors and with the American public.” The speech ended with Attorney General Healey reiterating the Commonwealth of Massachusetts’s commitment to combating climate change and that the fight against climate change needs to be taken “[b]y quick, aggressive action, educating the public, holding accountable those who have needed to be held accountable for far too long.” Subsequently, on April 19, 2016, Attorney General Healey issued the CID to Exxon to investigate whether Exxon committed consumer and securities fraud on the citizens of Massachusetts.” (p. 5)

While Healey’s comments and those of her cohorts at the Schneiderman-Gore event serve as prima facie evidence of “prejudgment” and “bias” by themselves, the discovery process could yield additional and more devastating behind-the-scenes documentation that would lead the court to a “bad faith” determination.

Considering all this, it’s unsurprising that the other AGs in Eric Schneiderman’s climate coalition tried to distance themselves from his investigation. FOIA’d emails revealed that the Virginia AG’s office said it makes them “nervous” to say they are working together and asked Schneiderman’s office to “dial that back one notch.” The Iowa AG’s office called Schneiderman a “wild card” and apparently tried to get out of attending the press conference at all, but felt they’d have to “ride it through.” Another set of FIOA’d emails revealed that just a few weeks after the Delaware AGs office agreed to sign on to the Common Interest Agreement (in which parties planned to keep their work concealed from the public records requests), the AG suddenly pulled out: “Our AG has determined that Delaware will not be involved in this worthy effort, and thus will not be signing the common interest agreement.”

While Healey, Schneiderman, and U.S. Virgin Islands Attorney General Claude Walker (who ended up having to retract his subpoena) were happy to march on with this biased and politically-motivated crusade, the other AGs were apparently smart enough to see the writing on the wall and bow out before being rebuked in the courts.

Federal Court Delivers Stunning Blow to Mass. AG and #ExxonKnew Campaign

Link to blog post: https://energyindepth.org/national/federal-court-delivers-stunning-blow-to-mass-ag-and-exxonknew-campaign/