Politics, not law, guiding Healey on Exxon suit

US Supreme Court should rein in politically motivated investigation

IN THE AGE OF TRUMPISM, political and legal norms are regularly cast aside.  The ends, we are told, justify the means.  It is in this context that businesses, particularly manufacturers, have become skeptical of Massachusetts Attorney General Maura Healey’s legal action against ExxonMobil as a centerpiece of her efforts to combat global climate change.  Along with her counterpart in New York, she is breaking new ground by using state police power against a business to achieve a public policy goal.

The latest twist and turn in Healey’s inquiry is that the US Supreme Court has now asked Healey to explain why her investigation of ExxonMobil’s climate change activities is a legitimate use of her authority.  In 2016, she served ExxonMobil with civil investigative demands to find out what ExxonMobil knew about climate change and when and whether the company broke any consumer or securities laws. New York’s then-Attorney General issued similar demands.  They argued that if ExxonMobil was not forthcoming about its knowledge of global warming in the 1970s and 1980s, they could file law enforcement action.

Partisans on all sides of the climate change debate have by-and-large viewed these investigations as not who-dunnit mysteries, but about expressing years of frustration that Washington has not been doing enough on climate change.  This investigation is part of a multi-front effort to use courts and lawsuits to circumvent Congress and drive climate change policy.  So far, these efforts have failed.  It is not illegal for businesses to sell the fuel Americans need to heat homes, turn on lights, and fuel cars.

Soon after Healey announced her investigation, several state attorneys general wrote an open letter expressing concern that using “law enforcement authority to resolve a public policy debate undermines the trust invested in our office[s].”  The Boston Herald editorialized that, regardless, the claims are “moot today.”  ExxonMobil “cooperates with several carbon-reduction programs, supports a tax on carbon dioxide emissions, and long has discussed climate risks in required financial disclosures,” the newspaper said.

A federal judge in Texas, though, uncovered a wrinkle that gave many people pause—and should have made Healey question her involvement.  Documents suggest that an environmental lawyer and an activist Healey met with in March 2016 before launching her inquiry were seeking legal action against ExxonMobil solely for political gain.  The judge, Ed Kinkeade, said emails related to a separate January 2016 meeting indicated the lawyer and environmental advocates discussed a plan to “delegitimize Exxon as a political actor . . . drive divestment from Exxon, [and] drive Exxon and climate change into the center for the 2016 election.”

These same lawyers have also been behind lawsuits that towns and counties have been filing in the past couple of years to make ExxonMobil and other energy companies pay for sea walls and infrastructure projects to deal with impacts of climate change.  Two of these lawsuits have already been dismissed.  It turns out that building sea walls and making energy producers pay for them has as much to do with climate change as Trump’s wall has to do with immigration.  They are symbolic media plays.

All citizens and businesses, regardless of political affiliation or stance on climate change, should be concerned when lawsuits and the police power of a state are used for extrajudicial purposes.  Sending a civil investigative demand to a private business is a powerful law enforcement tool.  It should be reserved for only those situations where there is evidence suggesting a material violation of law.  The authority Healey is asserting could easily be used by conservative attorneys general—just substitute a Jeff Sessions-type state attorney general for Healey and Planned Parenthood for ExxonMobil.

Former US labor secretary Robert Reich, a favorite son of Massachusetts, understood the double-edge sword of politically motivated litigations.  In the 1990s, he favored the use of litigation to achieve policy objectives.  Reich soon changed course, though, calling the lawsuits “faux legislation which sacrifices democracy.”  The right way to impose a political agenda is to win elections and control Congress and the presidency.

Now, all eyes are on the Supreme Court.  ExxonMobil petitioned the court for help in September.  The court has a history of stepping into climate change legal battles.  In 2007, it allowed Massachusetts to sue the US Environmental Protection Agency.  It found that Congress delegated authority to the EPA to regulate carbon emissions, and that EPA could not arbitrarily ignore that authority.  In 2011, it unanimously nixed a lawsuit by states against the private sector seeking to have judges supplant EPA as regulators of greenhouse gases.  Justice Ruth Ginsburg, writing for the court, explained that suing energy producers over climate change is not the proper way to set American energy policy.

The question for the court this time is whether Healey has the jurisdiction to conduct this investigation.  Under the Constitution, states have jurisdiction over only certain legal matters.  Andy Pincus, the Commerce Department’s general counsel under President Clinton, explained the issues Healey wants to investigate have no legal nexus to Massachusetts. He expressed concern in a brief for the National Association of Manufacturers and US Chamber of Commerce that states should not be “empowered to initiate investigations and regulate conduct that occurred entirely outside their borders.”

Meet the Author

Phil Goldberg

Director/Managing partner, Progressive Policy Institute's Center for Civil Justice/Shook Hardy & Bacon LLP
Healey now has until the end of this month to respond to the Supreme Court, though she has already asked for more time to file her response.  If the court takes the case, it could help curb politically motivated litigation against the private sector.  The better path is to work with businesses to develop the technologies needed to combat climate change.  Innovation is where American businesses excel.

Phil Goldberg is the director of the Progressive Policy Institute’s Center for Civil Justice and the office managing partner for Shook Hardy & Bacon LLP in Washington, DC.