NY Attorney General Defies Judge’s Order in Exxon Case

Guest post by David Middleton


IN DEFIANCE OF JUDGE’S RULING IN CLIMATE CASE, NEW YORK ATTORNEY GENERAL REFUSES TO COMPLY WITH DISCOVERY REQUESTS

MARCH 12, 2019 | SPENCER WALRATH


The New York Attorney General’s Office (OAG) is refusing to comply with ExxonMobil’s discovery requests even after the New York Supreme Court ruled the company could proceed with discovery related to the AG’s investigation of its climate change disclosures. The company is seeking documents that would support its allegation that the OAG is pursuing its investigation in bad faith.


Since the OAG initiated its investigation into ExxonMobil more than three years ago, its arguments have shifted multiple times, as each of the allegations of fraud has lacked evidence. However, in addition to highlighting the questionable legal agenda, recent court filings demonstrate how the OAG has methodically denied ExxonMobil’s discovery requests in an effort to delay the exercise, possibly in the hope that the OAG can convince the judge to dismiss the company’s defenses.


Right to Discovery Upheld by New York Supreme Court


Justice Barry Ostrager ruled in February that the OAG could file a motion to dismiss ExxonMobil’s defenses, but that in the meantime, “Exxon Mobil is privileged to pursue discovery on its defenses.”


“Civil litigants may not avoid their discovery obligations by challenging the legal viability of an adversary’s claims,” ExxonMobil writes in one letter to the OAG. “Therefore, ExxonMobil maintains that OAG’s objections are improper to the extent they are predicated on a legal challenge to ExxonMobil’s affirmative defenses. OAG may not credibly withhold documents responsive to the Affirmative Defense Requests.”


The OAG’s efforts to hinder ExxonMobil’s right to discovery stand in stark contrast to the actions of the defendant. For instance, the OAG claims that documents requested by ExxonMobil are protected by various privileges, “without identifying each document withheld and the basis for invoking any privilege,” according to one letter from ExxonMobil. In another letter, the company writes that the OAG’s reluctance to turn these documents over suggests that certain privilege assertions appear to be “facially dubious.”


Conversely, ExxonMobil has provided the OAG with more than 2,800 pages of privilege logs. In fact, throughout the entirety of this investigation, ExxonMobil has turned over more than four million pages of documents; so many pages that they would stand taller than the Empire State Building if stacked on top of each other.


New York’s Conflicting Statements


In letters to senior officials in the OAG, ExxonMobil refutes the legal basis of numerous discovery objections and highlight inconsistencies and contradictions made by the state’s top law enforcement office.
A prime example of New York’s attempts to stonewall the company is their failure to provide documents regarding their communications with third parties. 

[…]

Read more here: Energy in Depth

The EID article features a nice graphic:

In related news, the Trump Administration has filed an amicus brief in support of the oil companies being maliciously and fraudulently harassed by the New York City…


Federal Government Backs Oil Companies Fighting NYC Climate Suit


By Karen Savage


The Trump administration is supporting the five oil companies being sued by New York City to pay for damages related to climate change, filing a friend-of-the-court brief asking the Second Circuit Court of Appeals to uphold the dismissal of the case.


The federal government contends in the brief that the city’s claims against Exxon, BP, Shell, ConocoPhillips and Chevron shouldn’t be decided by a state court. It argues the Clean Air Act prevents the city from pursuing nuisance claims because the pollution that causes global warming originates from outside the state.  It also argues that the claims should not be considered in a federal court because that would violate the separation of powers guaranteed by the Constitution. 

The Trump administration also says that New York’s claims “interfere with the conduct of foreign policy and regulation of foreign commerce” and have “great potential for disruption or embarrassment for the United States in its international relations that cannot be outweighed by the relative interests of New York state.”

The city filed the case against the five oil giants in January 2018 and it was dismissed by U.S. District Court Judge John Keenan last July. The city appealed that decision to the Second Circuit.

[…]


Keenan ruled in July that the courts are not the proper forum to address harms resulting from climate change. He said issues stemming from greenhouse gas pollution should be tackled by the  executive and legislative branches.


The city’s appeal argues that Keenan “misunderstood the city’s allegations and, on the basis of that misunderstanding, erroneously concluded that various federal law doctrines barred the city’s claims.”

[…]


The oil companies maintain that the city’s claims involve domestic greenhouse gas emissions, which are covered under the Clean Air Act. They say New York City—and it’s residents—“have long consumed Defendants’ products and have thus willingly contributed to greenhouse gas emissions” that have caused climate change.

[…]

Climate Liability NewsThat’s a thing?

As flawed as the 2007 5-4 ruling in Massachusetts v EPA was, it renders all of these malicious, fraudulent, nuisance lawsuits null and void.

What did Exxon know?

In 1968, Exxon knew that a 25% increase in atmospheric
CO2 might lead to a lead to 1-7 °F rise in Earth’s average surface temperature…


1968 “THE ROBINSON REPORT”

Since Möller (1963) wasn’t a secret oil industry document, anyone else with a subscription to the Journal of Geophysical Research would have also been privy to this information. And anyone who even bothered to read the abstract of this damning paper would also know what we know today: “The theory that climatic variations are effected by variations in the
CO2 content becomes very questionable” if you factor in clouds…


On the influence of changes in the CO2 concentration in air on the radiation balance of the Earth’s surface and on the climate

F. Möller
Abstract


The numerical value of a temperature change under the influence of a CO2 change as calculated by Plass is valid only for a dry atmosphere. Overlapping of the absorption bands of CO2 and H2O in the range around 15 μ essentially diminishes the temperature changes. New calculations give ΔT = + 1.5° when the CO2 content increases from 300 to 600 ppm. Cloudiness diminishes the radiation effects but not the temperature changes because under cloudy skies larger temperature changes are needed in order to compensate for an equal change in the downward long-wave radiation. The increase in the water vapor content of the atmosphere with rising temperature causes a self-amplification effect which results in almost arbitrary temperature changes, e.g. for constant relative humidity ΔT = +10° in the above mentioned case. It is shown, however, that the changed radiation conditions are not necessarily compensated for by a temperature change. The effect of an increase in CO2 from 300 to 330 ppm can be compensated for completely by a change in the water vapor content of 3 per cent or by a change in the cloudiness of 1 per cent of its value without the occurrence of temperature changes at all. Thus the theory that climatic variations are effected by variations in the CO2 content becomes very questionable.


Journal of Geophysical Research
 

The full text of the paper is even better…


In this case, we must distinguish between the assumptions that the water vapor content (in cm l.e.) remains unchanged in spite of heating (cooling) of the atmosphere and that it increases (decreases).  Constant absolute humidity means that the relative humidity (f) decreases from 75 to 70.34 per cent with a 1° or lowered by 4.66 per cent per deg.  According to the above-mentioned calculations, an increase in CO2 from 300 to 600 ppm gives us a temperature change ΔT = +1.5° for Δ= -4.66 per cent per deg, and a temperature change ΔT = +9.6° for Δ= 0.


[…]


We recognize that for Δ= 0.8 per cent per deg the temperature change becomes infinite.  Very small variations effect a reversal of sign or huge amplifications.


It is not too difficult to infer from these numbers that the variation in the radiation budget from a changed CO2 concentration can be compensated for completely without any variation in the surface temperature when the cloudiness is increased by +0.006 or the water vapor content is decreased by -0.07 cm l.e.


[…]


These are variations in the cloudiness by 1 per cent of its value or in the water vapor content by 3 per cent of its value.  No meteorologist or climatologist would dare to determine the mean cloudiness or mean water content of the atmosphere with such accuracy; much less can a change of this order of magnitude be proved or its existence denied.  Because of these values the entire theory of climatic changes by CO2 variations is becoming questionable.

I hope that ExxonMobil, ConocoPhillips and/or Chevron file a RICO lawsuit against these @$$ hats. Every single one of the “secret” Exxon documents brandished by these morons can be parried in a similar fashion. The idiots have even cited Vail’s work on sea level cycles as “evidence” of some sort of conspiracy.

References

Möller, F. (1963), On the influence of changes in the CO2 concentration in air on the radiation balance of the Earth’s surface and on the climate. J. Geophys. Res., 68(13), 3877–3886, doi:10.1029/JZ068i013p03877.

Vail, P. R., R.M. Mitchum, and S. Thompson, III, 1977, Seismic stratigraphy and global changes of sea level, part 3: Relative changes of sea level from coastal onlap, in C.E. Payton, ed., AAPG Memoir 26: Seismic stratigraphy—Applications to hydrocarbon exploration: 63-97 (1977)

Further Reading

What did ExxonMobil Know and when did they know it? (Part 1)

What did ExxonMobil Know and when did they know it? (Part Deux, “Same as it ever was.”)

What did ExxonMobil Know and when did they know it? (Part 3, Exxon: The Fork Not Taken

“Smoke & Fumes”… The dumbest attack on ExxonMobil evah’

“Smoke & Fumes,” Part Deux: Exxon Knew “The entire theory of climatic changes by CO2 variations is questionable.”

Even dumber than the dumbest attack on ExxonMobil evah’

What Did Shell Know and When Did They Know It?

The Guardian: “Climate change denial won’t even benefit oil companies soon”… Is it even grammatically possible to deny climate change?

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63 thoughts on “NY Attorney General Defies Judge’s Order in Exxon Case

  1. RICO indeed! The Office of the New York State A.G. is about as Corrupt a Racket as exists in this Nation!! When it’s Senior Officials aren’t sexually harassing and RAPING fellow employees … they’re attempting to RAPE the American people

    • Failing to produce discovery could mean the AG loses the case. link

      The judge ruled that Exxon has the right to pursue discovery. He did not order the AG to produce discovery. In other words, if the AG doesn’t produce discovery, he is not in violation of a court order. That would mean he’s not in contempt of court. So, there’s no danger of jail time.

      The AG could drop the case. Exxon has accused the AG of bad faith. Presumably, Exxon could bring some kind of action against the AG but that is very difficult. The logic is that if people were able to go after the cops after being found innocent, the cops would be afraid to properly do their job. That means that if you are charged with murder and found not guilty, you wouldn’t go to jail but the legal fees would ruin you. You couldn’t recover the costs from the cops.

      Qualified immunity exists to protect the public from unwarranted timidity on the part of public officials, … link

      • “That means that if you are charged with murder and found not guilty, you wouldn’t go to jail but the legal fees would ruin you. You couldn’t recover the costs from the cops.”

        No. If you’re found not guilty the costs go to the state = going to taxpayers.

      • I would think there must be a world of difference between winning your case based on the evidence versus pursuing the accuser on the basis of politically motivated legal action by a state entity. That’s what we have here. An agent of the government is using government powers to pursue their personal political activity. In the absence of cause or evidence.

    • Because we are no longer a nation of laws and governments can choose either to follow or ignore a court ruling?

    • They can’t tell a judge to go fly a kite. There is an unwritten rule in legal actions: Don’t make the judge mad.

      The AG is just a party to an action. They are not supposed to get any special treatment. They might anyway, but it’s not supposed to be that way. The judge can hit him with a contempt order or other sanction. I”m not a lawyer, so I don’t know what else the judge can do, but sticking the AG in jail is one of them.

      Judges have a lot of power, and you don’t want to be on the wrong side of it. Exxon having won at the state supreme court, the AG may be in serious legal jeopardy if he doesn’t answer the discovery request. This is definitely on the list of things that makes a judge mad, so this might be a good time to buy popcorn.

  2. The NY – OAG, Letitia “Tish” James, should be charged with Obstruction of Justice for refusing to provide the judge-ordered documents and jailed until they are produced in full. NY Attorney General James has also just initiated a ‘fishing trip’ investigation into President Trumps business dealings. Subpoenas have been issued to several banks, without defining the crimes alleged. She is acting clearly as a socialist democrat political tool.

    • I wonder if ole “Tish” is getting any of that Tom Steyer money for her Office? Isn’t he on the lookout to buy U.S. attorneys to use for his partisan, political objectives? He doesn’t like CO2 and he doesn’t like Trump. Seems like the New York Attorney General is doing just what Tom Steyer would like for her to do. Maybe she is doing it free of charge.

    • “NY – OAG, Letitia “Tish” James, should be charged with Obstruction of Justice for refusing to provide the judge-ordered documents and jailed until they are produced in full.”

      Absolutely. And then she should be removed from office for failure to uphold the law and disbarred. I can’t decide if this is anarchy or mutiny. Regardless, the failure of public office holders to follow the Constitution of the United States should be criminalized, and scofflaws should be punished severely.

      • Removal for malfeasance and corruption. If there was more than one such instance, then they can get her under RICO…and anyone who was ‘supporting’ the effort, like Steyer or Soros.

  3. One would think that failure of the plaintiff to properly respond to a court order would lead to dismissal of the claims. I can see the outcome where discovery of documents showing collusion between activist groups and the state government will lead to dismissal of those involved for corruption or other charges. Once can only hope, but these people are slippery at best, and corrupt to the core at worst.

      • And the fact that the OAG refuses to turn them over indicates there is some very, very damning information in those documents.

        • One gets that impression, particularly with reference to third party communications with, perhaps, big money.

  4. If NY thinks they would be better off without fossil fuels, then why don’t they just ban them? If they don’t then they just show that this is nothing more than a farce and a blatant money grab.

    • Actually, New York City IS contemplating a plan to shut down most its power plants and replace them with renewable energy sources according to a Huffington Post report back in January….

      https://www.huffingtonpost.com/entry/new-york-city-power-plants_us_5c33bee2e4b05d4e96bb1d5f

      “…ASTORIA, N.Y. ― A top New York City councilman is preparing to introduce a bill mandating that the city come up with a plan by the end of the year to phase out nearly two dozen gas-fired power plants and replace them with renewable sources of electricity…”

      Exactly, where NYC is going to find enough space for a LOT of solar panels and wind turbines should be an interesting subject for discussion. Maybe requiring all rooftops to have solar panels and/or wind turbines is what they have in mind. And their Indian Point nuclear plant is shutting down as well.

      If they go through with this, I foresee blackouts in NYC’s future. Oh the ignorance….

    • Where is the money going to come from? NY is already broke, obligations exceeding sources, just not fully illiquid yet.

  5. It does look like New York City and State need to be hit with either a RICO or Federal Civil Rights prosecution. Abuse of process to extort a private company would fit either statute, and placing the rogue prosecutors in the role of defendant would be appropriate.

  6. Since when did half of the nation get to ignore any laws they don’t like?

    Time to begin prosecuting these people and sending them to jail…or maybe to Valenzuela where they would fit right in with the current illegal government.

  7. This stuff shows what a lawless rat’s nest America had become with “progressive” Dem and RINO parties in power. Hillary would have deepened the swamp mercilessly. We’d be seeing those first 500million solar panels and windmills begining to glaze and tuft the country under contract to the Champagne soshulists, cementing in huge E costs and massive subsidies.

    It’s also interesting to note the seminal work on climate science done by Exxon. The science has since virtually lost real knowledge, not the least for the destruction of data that was showing Catastrophic AGW to be 300% over blown even using the fiddled data they manufactured. The 1.5C increase calculated for a doubling from 300ppm to 600ppm, but with caveats, has turned out to be state of the art. You could throw away the literature generated since 1963, at the cost of trillions to taxpayers and foregone prosperity and real progress. I believe that when the Totes saw their hyperbolic projections bite the dust, they realized there is a looming possibility that with all stops pulled out we wouldnt achieve even 1.5C.

    So how did they repair the damage to their projections? With the satellites constraining temperature adjustments to the recent end of the temperature series they first pushed late 30s early 40s temperatures over half a degree C because1998 El Nino didnt break the heat record set in the 30s which meant all the global warming that had occurred by 2000 had happened before 1940! Oops. When they got the big hump straightened out, then they set about to teeter temperatures down in the past to steepen the whole series. Then instead of 2C+ above 1950s being the limit for a safe 2100, they pushed the goal posts back to 1850, bankrolled the 0.8C since then and then railed about the threshold reached by adding 0.7C more by 2100. Its all about the danger of adding 0.7C in a Century.

    • Yes indeed, you’ve hit the nail squarely on the head there. They’ve painted themselves into a corner, and they’re running out of road.

      If enough people understood that which you wrote, the whole rotten hoax would implode (and all those kids could stop skiving off school!).

      The usual suspects are still desperately clinging to moribund assertions of high ECS and catastrophic RCP8.5 outcomes, but the game’s up.

  8. Thank god for ExxonMobil.

    It’s about time that somebody with some backbone unleashed the legal attack dogs:
    “Cry havoc and let slip the dogs of war.”

    As a shareholder of XOM, RDS, CVX, TOT, BP, COP and others in the industry, I have been disgusted and appalled by management’s craven pandering to the climate extortionists of the Green mafioso.

    • Well, the war on coal means more money for oil and natural gas, because hydro is maxed out, new nuclear plants are effectively banned, and wind/solar have no chance of picking up most of the slack at industrial scale.

  9. David,,,,,run with this one..another NY

    Mayor de Blasio’s $10 BILLION plan to save Manhattan from rising sea levels: NYC proposes extending the city’s shoreline into the East River by TWO BLOCKS to create higher ground

    New York City Mayor Bill de Blasio has revealed a plan to protect Lower Manhattan from rising sea levels by surrounding it with earthen berms and extending its shoreline by as much as 500 feet (152 meters).

    https://www.dailymail.co.uk/sciencetech/article-6809285/NYC-mayor-Extend-shoreline-protect-city-storms.html

    • I thought these people were against building walls of any kind and especially any that discriminate against sealife wishing to immigrate to the US interior? What have they got against fish anyway?

  10. This all goes back to why the Left went ape-s#!t over Kavanaugh’s confirmation to the Supreme Court last Fall 2018. They wanted to hold that seat open until 2021 in hopes of a Demorat President.

    Everyone knows (knew) at some point the Supreme Court is going to weigh in on all these oil company-climate lawsuits in appeal and the kiddie-climate lawsuit, just as they did on Obama’s CPP in 2015 with a historic intervention stay until appeals were finished. That clearly told the Climate Hustlers that unless something changed on the Supreme Court bench, they were going to lose.
    Oddly then that historic SCOTUS intervention in the CPP was just one week before Justice Scalia went to sleep with the fish, with a pillow over his head in bed.
    The Left then thought they had it in the bag with Merrick Garland’s nomination from Obama, and then to Hillary’s inevitable SCOTUS nominees. And the Left is extremely worried about RBGinsburg’s ability to stay alive until 20121.

    So I Thank God for Trump. Even as he makes assinine comments on twitter, or does other stuff I don’t agree with, the alternative was far, far worse for the future of this country and the Free World. For that I support him 100%.

    • Wow! “…RBGinsburg’s ability to stay alive until 20121.” Through the next ice age and out the other side…

        • I certainly think that Democrats will use any and all means, legal and illegal, to keep Ginsburg on the bench until at least 20121… 😉

          • They’ll just put her clothes stuffed with straw in her seat like Mrs. Bates…

            and have a leftist doctor continually confirm that she is still “alive.”

        • Having a laugh out at the expense of your typo doesn’t necessarily indicate believing the typo was deliberate. But I trust you already knew that despite your reply.

      • RBG? Now that is one Jew the Democrats adore! I have no doubt that if she dies while still “serving” and Trump is still president they would mummify her and shove a speaker up her butt and haul her back and forth the court as needed so she would continue to “serve” if they thought they could get away with it.

      • Getting ready for the event – Ruthie – So sad to see ya go.
        For those who are prepping – One of the front runners :

  11. If the AG of New York didn’t have bad faith they/she/it/them wouldn’t have any faith at all.
    It also seems to me, as a non lawyer – thank God – that charges can and should be filed with the State Bar resulting in disbarment.

  12. In New York, the Supreme Court is actually the lowest state court, the trial court. It is the NY state equivalent of Federal District Court.

  13. I wonder If “i didn’t feel like following the speed laws” will cut it as a defense based on the fact that the OAG of NY can decide which laws to obey?

  14. What I find curious is the fact that the people bringing suits against the oil companies are willing to accept damage awards of money that were made by the production of oil.

    You can live the lifestyle and level of comfort made possible by a civilization fashioned on oil, yet you can reject the very basis of the lifestyle and comfort level to condemn oil, AND you can demand damage awards in dollars that are earned by oil production. … AND you are somehow noble for spending oil money won from a lawsuit against oil companies, and yet the oil company that made the money that you now have BECAUSE of them is evil. How are YOU too not evil for accepting money made by oil in a lawsuit won from the oil company that helps make your life so comfortable?

    It’s just too damn stupid.

    Can I move to another planet now?

    • Again and always … stupidity, uncaring hypocrisy, or evil manipulator?

      (I saw bill walton leaving the last basketball game that I went to. He was driving the biggest SUV available. Push your grandchildren out of your mind while driving that huge rental to the airport … get back into environmentalist save the planet mode while you sit & wait for the plane … push the kids back into the dark corner of your mind while the plane takes off …?

      or, I know I’m a lying POS, but I’m not rich enough and if I cater to the bandwagon crowd I’ll get richer … it’s for my grandkids?)

    • Robert K: You raise a good point, which begs this question- If they got all the money, and shut down all fossil fuel production, how would they spend the money? Build more windmills and solar panels? Without the evil fossil fuels, I don’t think they can be built. Spend on medical care for all? Might work once, but based on the cost of medical care, they’ll need to sue 5 more oil companies next year and every year thereafter- except they all closed because of the big court victory. These folks don’t seem to have the capacity to think down range. Progressives are so certain about the future, they don’t have to give it any thought at all.

      • Paul, indeed. Now that lawyers have applied leaches to the various tobacco companies, providing a stream of revenue, the various states are doing nothing to hamper that flow. Certainly not shuttering or impairing their ability to clear a profit and pay the states. (1)

        Since oil companies are so evil, it seems they should be shuttered forthwith. destroying all that future payout. They’ll do whatever they can to keep the companies viable and just profitable enough to make their regular settlement payments. Even as they crow about how evil they are.

        NY: “I’m shocked! Shocked to find oil production still going!”
        exon: (stage whisper) “Your profits, sir.”
        NY: “shoo!”

        (1) https://www.cagw.org/thewastewatcher/smoke-what-happened-tobacco-master-settlement-agreement-money

  15. This is a switch, usually liberals depend on the courts to advance their agenda. Maybe the power of an honest court is too much.

  16. Strangely, Fritz Möller and Syukuro Manabe found in december 1961 that CO2 and H2O LW radiation had a cooling effect in the radiative heat budget of the atmosphere :

    http://www.atmosp.physics.utoronto.ca/people/guido/PHY2502/articles/rad-convec/Manabe_Moller_1961.pdf

    Some extracts from p. 525 to p. 528 :

    “Mean vertical distributions of radiative heat balance components”

    “The latitudinal mean effect of the 15µ band of carbon
    dioxide turned out to be cooling. Because of the weak
    emission and the absorption of radiation from the warmer
    regions above and below, this cooling is at a minimum
    around the tropopause. Above this level it increases
    with height due to the radiation escaping to outer space.
    The importance of the 15µ band of carbon dioxide as a
    cooling effect in the stratosphere has already been emphasized by London et al. [35] and Ohring [48]. ”

    “In the stratosphere the strong increase of heating with height,
    due to the absorption of solar radiation by ozone, mainly
    compensates for that of cooling due to the long wave
    radiation by both carbon dioxide and water vapor.”

    “The cooling obtained by including the temperature effect
    on CO2, is smoller in the stratosphere and is larger in the
    troposphere than that obtained by neglecting it.”

    “The cooling due to the long wave radiation of water
    vapor is maximum in the upper troposphere owing to the
    sharp decrease of water vapor with height.”

    “Latitudinal diributions of radiative heat balance components”

    “The cooling due to the 15µ band of carbon dioxide
    sharply increases with increasing latitude because of
    both the latitudinal increase of temperature at this level
    and the latitudinal decrease of the temperature of the
    troposphere. A recent computation by Brooks [7] shows
    the same tendency, although the magnitude of the rate of
    the cooling he obtained is slightly larger than ours (by
    about 0.2°C per day).”

    So, what did happen ?

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