Corporate Misbehavior
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OIL SLICK ... Exxon says climate lawsuits violate its right to free speech. Seriously.

Burgess COMMENTARY

Peter Burgess

OIL SLICK Exxon says climate lawsuits violate its right to free speech. Seriously.


Julie Dermansky / Corbis via Getty Images

Just a short time ago, it seemed like Exxon might finally be forced to reckon with the harm it had inflicted through the digging up, selling, and burning of fossil fuels.

A wave of cities led by San Francisco and Oakland filed suit against Exxon and other major polluters last year, alleging that the companies had purposefully misled the public about the effects of climate change in order to keep profits high. In March, a federal judge handed the California cities a small win: the chance to publicly debate polluters in court about their role in denying climate science.

But if we’ve learned anything from the way the tobacco industry rapidly went on the offensive when it was accused of peddling cancer sticks, it’s that getting industry to fess up to its wrongdoings is easier said than done. And Exxon, it seems, will do anything to shift the blame from its own shoulders, even if that means spinning an entirely new narrative around who the real victim is.

After the California cities filed suit, Exxon brought a petition before the Texas 2nd Circuit Court of Appeals claiming the lawsuits were part of a conspiracy intended to waylay the company’s right to free speech and force it to change its position on climate change. Yes, you read that correctly. Exxon argued that the cities were trying to make the company agree to a number of truths about climate change, which, in effect, violated Exxon’s First Amendment rights to say whatever the hell it wants about climate change.

Yeah, sounds crazy! But the Texas judge, R.H. Wallace Jr., bought the argument and handed Exxon a victory in April. That means the company can now grill California city officials about whether the climate suits, from the Bay to New York City, have been one big conspiracy to violate the company’s right to free speech.

Michael Burger, Executive Director of Columbia University’s Sabin Center for Climate Change Law, doesn’t think Exxon’s free speech argument holds up under scrutiny. Exxon already tried a similar tactic in a New York court. Former Attorney General Eric Schneiderman, who recently resigned after four women accused him of sexual assault, started investigating the company over climate change in 2015. Exxon’s lawyers argued Schneiderman tried to “silence and intimidate one side of the public policy debate on how to address climate change” by launching the probe.

The New York judge dismissed the case this year. When Exxon tried to edit, or “amend,” its original complaint, the judge denied the amendment “as futile,” which is a fancy way of saying the judge kicked Exxon in the gnads. The fact that Exxon already tried and failed to invoke its First Amendment rights doesn’t bode well for the company’s latest attempt in California. “The idea that these lawsuits could infringe on First Amendment rights is, as the judge in New York said, implausible,” Burger says.

So, while the Texas judge gave Exxon a small window of opportunity to question California officials about the alleged “conspiracy,” Burger says that doesn’t mean it’ll turn into a full-blown court case. California has already appealed Judge Wallace Jr.’s decision.

The First Amendment claim isn’t an entirely new invention — big companies have asserted such claims before, says Peter Lehner, former chief of the Environmental Protection Bureau of the New York State Attorney General’s office. But Exxon’s argument that the climate lawsuits are a big conspiracy, he says, is based on “flimsy ground.”

First of all, attorneys general communicate with each other often. And second of all, he says, “If the company is lying to their shareholders and to their consumers, then that is fraud.” It all comes back to the underlying issue: If California can prove Exxon knew about climate change and lied to the public about it, the company probably won’t be able to get out of an investigation by crying free speech. Why? Because the First Amendment doesn’t protect liars!

As for why Exxon might be pulling out the flawed free speech argument again, Burger raises one possibility: “It may well be that Exxon is threatening to bring a lawsuit in an effort to intimidate those [California] officials or enact some form of retribution.”

A major oil company acting like a huge bully? Nah, doesn’t sound like good ol’ Exxon. Psyche!