Saturday, April 16, 2016

ExxonMobil Fights Back Against Climate Zealots

Subtitle: Un-Constitutional and Baseless Subpoena to Provide Records from Virgin Islands AG

ExxonMobil Corporation, headquartered in Irving, Texas, this week fired back in the battle over global warming.   ExxonMobil filed a lawsuit in Tarrant County seeking declaratory relief from the unlawful subpoena of the Attorney General of the United States Virgin Islands.

As background, ExxonMobil is a giant multinational oil company with interests in oil fields, drilling and production systems, pipelines, tankers, terminals, refineries, petrochemical plants, plus natural gas fields, gas pipelines, natural gas plants, LNG plants, LNG tankers, and retail outlets.  ExxonMobil has been accused in the press of conducting research into global warming caused by fossil fuel burning, and suppressing that research in order to promote its oil and gas business.   The AG of the US Virgin Islands accused ExxonMobil as follows:

(quoting from page 1 of the Subpoena)
"You are suspected to have engaged in, or be engaging in, conduct constituting a civil
violation of the Criminally Influenced and Corrupt Organizations Act, 14 V.I.C. § 605, by having engaged or engaging in conduct misrepresenting Your knowledge of the likelihood that Your products and activities have contributed and are continuing to contribute to Climate Change in order to defraud the Government of the United States Virgin Islands ("the Government") and consumers in the Virgin Islands, in violation of 14 V.I.C.§ 834 (prohibiting obtaining money by false pretenses) and 14 V.I.C. § 551 (prohibiting conspiracy to obtain money by false pretenses)."

 ExxonMobil lists a number of defenses in its lawsuit for declaratory relief.  Among these are:

1) US Virgin Islands has no jurisdiction over ExxonMobil because the statute relied upon, CICO, has a 5-year statute of limitations.   The statute "requires the occurrence of at least one predicate act of fraud within the last five years. For more than a decade, however, ExxonMobil has widely and publicly confirmed that it “recognize[s] that the risk of climate change and its potential impacts on society and ecosystems may prove to be significant.”" -- Paragraph 6 of Petition for Declaratory Relief. 

2) "ExxonMobil has engaged in no conduct in the Virgin Islands that could give rise to a violation of Virgin Islands law. ExxonMobil has no physical presence in the Virgin Islands; it owns no property, has no employees, and has conducted no business operations in the Virgin Islands in the last five years" -- paragraph 7 of Petition for Declaratory Relief

3) AG from US Virgin Islands has no reasonable suspicion on which to issue the subpoena -- paragraph 9 and footnote 5, Petition for Declaratory Relief. 

4) ExxonMobil’s constitutionally protected rights of freedom of speech. "The subpoena improperly targets political speech and amounts to an impermissible content-based restriction on speech. The effect of the subpoena is to (i) deter ExxonMobil from participating in the public debate over climate change now and in the future and (ii) chill others from expressing an opinion on climate change that runs counter to the view held by a coalition of some state officials, including Attorney General Walker, now and in the future."-- paragraph 66 of Petition for Declaratory Relief.    

Note, ExxonMobil appears to rely on the US Supreme Court's decision in Citizens United v Federal Election Commission, 558 U.S. 310 (2010), in which corporations are held to have rights to free speech, citing Bellotti.  Such freedom is especially important in issues of great political import, including climate change and its various causes, if any.   It is un-Constitutional, a violation of ExxonMobil's rights to free speech, for a government to penalize any participant in a public debate for taking a position on a matter of public discourse.  

5) freedom from unreasonable searches and seizures, a Fourth Amendment violation.  The US Constitution's Fourth Amendment prohibits unreasonable searches and seizures by the government in a criminal matter.  ExxonMobil contends that the subpoena is invalid because "it is vastly overbroad, constitutes an abusive fishing expedition, and imposes an unwarranted burden."  -- paragraph 70 of Petition for Declaratory Relief

6) due process of law violation.  ExxonMobil alleges it will "be deprived of life, liberty, or property without due process of law" if the subpoena is upheld. -- paragraph 72 of Petition for Declaratory Relief

7) The subpoena constitutes the common law tort of abuse of process.   "Defendants committed an abuse of process under common law by (i) issuing and mailing the subpoena without reasonable suspicion, as required by the authorizing statute, in what amounts to a fishing expedition; (ii) having an ulterior motive for issuing and mailing the subpoena, namely an intent to prevent ExxonMobil from exercising its right to express views disfavored by Defendants and to extract an unwarranted financial settlement from ExxonMobil; and (iii) causing injury to ExxonMobil’s reputation and its ability to exercise its First Amendment rights as a result." -- paragraph 75 of Petition for Declaratory Relief. 


This entire episode is extremely interesting for a number of reasons.  The false-alarmists, those climate scientists who fervently believe that man-made carbon dioxide in the atmosphere will result in a catastrophic increase in global temperatures, and their like-minded allies, are reduced to legal action such as this questionable (at best) subpoena.  If the science, the data, the proof, were at all obvious and clear, there would be no need to resort to the courts.   One could, for example and in another context, point to humans with neurological disorders after contact with lead-containing substances as a basis for eliminating lead-based products.   One could point to similar clear linkages between the use of mercury and mercury poisoning.  Yet, false-alarmists cannot point to such clear and obvious evidence.  

Surface Temperatures by Population Size, J. Goodridge
showing no warming in low-population counties
Indeed, there are numerous and valid arguments that any warming that may have occurred is entirely due to humans living in close proximity to one another, as the famous Goodridge graphs showed where zero warming occurred over almost 100 years in California counties with low populations, while substantial measured warming occurred in California counties with populations greater than 1 million.   There is also the absence of predicted outcomes that false-alarmists have made over more than 30 years: polar bears disappearing, snow disappearing, polar ice disappearing, sea levels rising at unprecedented rates, hurricanes and tornadoes occurring more often and with greater severity, and many others. 

The fact that no US state attorney general where ExxonMobil does do business issued the subpoena, but one who obviously has no grounds for such, gives one pause to consider the ramifications.  It may be that the false-alarmists are simply testing the waters, drawing out ExxonMobil to see what defenses they would assert.  It may also be simple grand-standing.   It may also be a ploy to garner public support to the false-alarmists' side and thus harm ExxonMobil by encouraging consumers to not buy their products.  Or, it could be for a host of other reasons.   

The simple fact is that, in the United States, government may not pick and choose those speakers that will be allowed to speak, nor those that will not be allowed to speak on matters that are protected by the First Amendment.  While there are a few categories of unprotected speech, such as defamation, clear and present danger, pornography, and others, the on-going debate over what constitutes climate change and what, if anything, is the cause, is certainly protected speech.  Also, corporations have the right to free speech, as the US Supreme Court has made very clear on many occasions.  

Indeed, "Political speech is “indispensable to decision making in a democracy, and this is no less true because the speech comes from a corporation rather than an individual.” -- Bellotti, 435 U. S. 765 (1978), at 777

Also, "only when a general political issue materially affects a corporation's business, property or assets may that corporation claim First Amendment protection for its speech or other activities entitling it to communicate its position on that issue to the general public." -- Bellotti, at 772.   In this controversy, clearly ExxonMobil's business will be materially affected if it is not allowed to speak on the issue of climate change. 

All in all, it's been a very interesting week in the climate change and legal arena.  

The Petition for Declaratory Relief, with Attachment A as the Subpoena, and Attachment B as the meeting transcript from a number of state Attorney Generals can be found at this link. 

Roger E. Sowell, Esq.
Marina del Rey, California

copyrignt © 2016 by Roger Sowell, all rights reserved

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