On November 4, the New York State Attorney General Eric Schneiderman subpoenaed Exxon Mobil for extensive records, as part of an investigation to determine whether the company lied to the public or investors about the risks of climate change. According to the New York Times, “people with knowledge of the case said the attorney general’s investigation of Exxon Mobil began a year ago, focusing initially on what the company had told investors about the risks that climate change might pose to its business.”
The investigation follows a series of accounts that Exxon Mobil funded a “disinformation campaign” to sow doubt about climate change and undermine climate science. In February, reports surfaced that a researcher critical of established climate science, Dr. Wei-Hock Soon, had received extensive funds from fossil fuel companies, including Exxon Mobil, without disclosing them. In September and October, InsideClimate News and the Los Angeles Times published exposés detailing a $30 million, multi-decade effort by Exxon Mobil to sow doubt about climate change, despite evidence that the company knew as early as 1977 that its product was contributing to climate change. Recent books have also written about “doubtmongering” tactics used by the fossil fuel industry generally, and Exxon Mobil specifically – such as Doubt is Their Product (2008), The Climate War (2010), Merchants of Doubt (2010), and Private Empire: ExxonMobil and American Power (2012) – as well as research papers such as “Institutionalizing Delay” (Brulle 2013) and “The Climate Deception Dossiers” (Union of Concerned Scientists 2015).
Exxon Mobil, for its part, has stated that it is “committed to pursuing climate change research. . . . What we have understood from the outset – and something which over-the-top activists fail to acknowledge – is that climate change is an enormously complicated subject.” Exxon Mobil representatives have also claimed that around 2005, the company “made the call we needed to back away from supporting the groups that were undercutting the actual risk” involved in climate change. In a separate statement, the company said it “unequivocally reject[s] allegations that ExxonMobil suppressed climate research.”
The November 4 subpoena seeks extensive financial records, emails, and other documents and “focuses on whether statements the company made to investors about climate risks as recently as this year were consistent with the company’s own long-running scientific research.” There is also review of the “period of at least a decade during which Exxon Mobil funded outside groups that sought to undermine climate science, even as its in-house scientists were outlining the potential consequences – and uncertainties – to company executives.”
Bloomberg has called this inquiry by the New York Attorney General the “toughest U.S. climate crackdown yet.” While the subpoena itself has not been released, InsideClimate News reports that the subpoena is 18 pages long and requests documents going back to January 1, 1977. Bloomberg reports that an unnamed source said the inquiry is based on “whether the company may have violated state consumer protection law or the Martin Act, a state law that gives the New York attorney general broad powers to combat financial fraud.” In particular, the Martin Act “provides New York’s Attorney General with power that exceeds that of any regulator in any other state” and is even more powerful than equivalent federal financial fraud laws, because the Act “gives the New York State Attorney General exceptionally broad enforcement authority to bring both civil and criminal action without a showing of scienter or intent to defraud.” (A federal investigation under federal racketeering laws has also been sought and the proposal has been endorsed by the three major Democratic Presidential candidates – Hillary Clinton, Bernie Sanders, and Martin O’Malley. The DOJ has “declined to comment on whether it is considering its own probe of Exxon.”)
There are also reports that the New York Attorney General has spent the last two years investigating Peabody Energy, the nation’s largest coal producer, over whether the company properly disclosed financial risks related to climate change, although it “not resulted in any charges or other legal action against Peabody.” (Edited to add that, just as this blog post was being published, Peabody Energy agreed to file revised shareholder disclosures regarding climate change risks.) The New York Times has suggested that, as more internal documents become public, other fossil fuel companies may also soon be under investigation.
Exxon Mobil says that it is currently “assessing its response” to the November 4 subpoena. Under New York State rules, a subpoena must receive a response within twenty days.
Lauren Kurtz is the Executive Director of the Climate Science Legal Defense Fund, which seeks to protect the scientific endeavor. For more information, please visit http://climatesciencedefensefund.org/
 http://insideclimatenews.org/content/ Exxon-The-Road-Not-Taken; http://graphics.latimes.com/exxon-arctic/
Reprinted with permission from Climate Law Blog
For more information about LexisNexis products and solutions connect with us through our corporate site