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.
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 News… That’s a thing?
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…
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
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.
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 Δf = -4.66 per cent per deg, and a temperature change ΔT = +9.6° for Δf = 0.
We recognize that for Δf = 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.
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)