Previous posts have discussed how the Judiciary seems unprepared for the mounting caseload of climate legal actions. Some background links are at the end, but this post is an update on two important court proceedings, thanks to Manhattan Contrarian Francis Menton. The essay is Complete Polarization In The World Of Politics: Climate Change Edition Excerpts in italics below with my bolds.

Menton provides examples of political polarization regarding climate, the first two being:

• The polls showing Republicans and Democrats holding widely different opinions on climate concerns;
• The recent confirmation battle over James Bridenstine, nominated to lead NASA, including GISS headed by climate alarmist Gavin Schmidt.

Then Menton gets into the contrary behavior of court decisions, two recent examples being:

• Ruling involving Exxon’s countersuits against criminal investigations by several State Attorneys General;
• Ruling involving Exxon’s legal claims against lawsuits from California cities.

And then we have the courts. You know — the places where the lady holding the scales of justice wears a blindfold to indicate that she won’t even peak to see whether politics would dictate a preferred result here. If you believe that, consider two recent results from two different courts.

As background, you probably are aware that the major oil companies, and most notably Exxon Mobil, have come under siege recently from government lawyers in deep blue jurisdictions, including the Attorneys General of New York (Schneiderman) and Massachusetts (Healey) and certain County and City Attorneys in California. In 2015 Schneiderman and Healey initiated what they claim to be “criminal” investigations, although three years in no charges have been filed (and no plausible potential charges have even been suggested). The Counties and Cities in California have brought civil lawsuits, sounding in common law “nuisance,” claiming potentially billions of dollars in damages from what they assert will be rising sea levels caused by climate change.

1. Exxon versus Attorneys General of New York and Massachusetts

In June 2016, Exxon tried a counterstrike by filing a lawsuit in federal court in Dallas, Texas seeking discovery against Schneiderman and Healey as to what it claimed was the political motives behind the supposed criminal investigation. Exxon supported its complaint with a litany detailing meetings between and among the AGs and climate activists, where the activists urged the AGs to use their powers to investigate oil companies. The Dallas judge (Kinkeade) initially issued an opinion containing some statements favorable to Exxon’s position, but then in March 2017 Judge Kinkeade transferred the case to the Southern District of New York. Transferring a case from one state to another is something that federal judges can do within the federal court system. Upon transfer, Exxon’s case came before Obama-appointee Valerie Caproni. On March 29 this year, Judge Caproni dismissed the case with an opinion that was highly critical of Exxon’s gambit. Key quote:

Exxon’s allegations that the AGs are pursuing bad faith investigations in order to violate Exxon’s constitutional rights are implausible and therefore must be dismissed for failure to state a claim.

From Judge Caponi’s Order (full text here) with my bolds.

Exxon contends the investigations are being conducted to retaliate against Exxon for its views on climate change and thus violate Exxon’s constitutional rights. The relief requested by Exxon in this case is extraordinary: Exxon has asked two federal courts—first in Texas, now in New York—to stop state officials from conducting duly-authorized investigations into potential fraud.

It has done so on the basis of extremely thin allegations and speculative inferences. The factual allegations against the AGs boil down to statements made at a single press conference and a collection of meetings with climate-change activists. Some statements made at the press conference were perhaps hyperbolic, but nothing that was said can fairly be read to constitute declaration of a political vendetta against Exxon.

2. Exxon versus California Cities and Counties

Meanwhile, in January of this year, Exxon initiated a similar gambit with regard to the California nuisance lawsuits. This time it brought its claim in the District Court of Tarrant County, Texas (Fort Worth) — that is, a state court, rather than a federal court. Like the previous case against Schneiderman and Healey, this complaint again seeks discovery against government lawyers responsible for the claims against the company; and also like the previous case, this one goes through the litany of efforts by activist environmental lawyers to induce the government agencies to use their powers to go after the oil companies. The new case also added a series of allegations from bond prospectuses of the California cities and counties seemingly in direct contradiction of their assertions in their complaints of imminent destructive sea level rise.

In this new Texas case, the California cities and counties did not “remove” to federal court (I don’t know why not), but rather moved to dismiss for lack of jurisdiction over them. The Fort Worth judge, Wallace, denied those motions in “Findings of Fact and Conclusions of Law” dated April 25. It’s fair to say that Judge Wallace’s conclusions are about the opposite of those of Judge Caproni on mostly the same allegations.

From the text of Judge Wallace Findings of Fact and Conclusions of Law  with my bolds.

ExxonMobil’s potential claims arise from an alleged conspiracy by California municipalities to suppress Texas-based speech and associational activities on climate policy that are out-of-step with the prevailing views of California public officials. According to ExxonMobil’s petition, the California municipalities alleged facts in their lawsuits against the Texas energy sector that are contradicted by contemporaneous disclosures to municipal bond investors. ExxonMobil seeks pre-suit discovery on whether the lawsuits were brought in bad faith as a pretext to suppress Texas-based speech and associational activities by members of Texas’s energy sector.

Findings of Fact
Pawa and Others Develop a Climate Change Strategy
State Attorneys General Adopt the Climate Change Strategy
State Attorneys General Conceal Ties to Pawa
State Attorneys General Target Texas-based Speech, Activities, and Property

Conclusions of Law
56. Texas has a substantial state interest in adjudicating claims concerning constitutional torts committed in Texas against Texas residents.

57.ExxonMobil has an inherent interest in obtaining convenient and effective relief by litigating its potential claims in Texas.

58.Exercising jurisdiction in this potential action would comport with the interstate judicial system’s interest in obtaining the most efficient resolution of controversies because ExxonMobil’s anticipated action encompasses claims and parties that are not part of the Potential Defendants’ California nuisance suits and ExxonMobil has objected to the exercise of personal jurisdiction in those suits.

59. Exercising jurisdiction in this potential action would support the shared interest of the several states in furthering substantive social policies because ExxonMobil’s anticipated action concerns a conspiracy to suppress and chill speech and associational activities of the Texas energy sector. Texas has an inherent interest in exercising jurisdiction over actions that concern the infringement of constitutional rights within its borders.

Menton Concludes: The issues for decision before the two judges were not completely congruent, but it’s fair to say that they viewed very similar matters from a completely opposite perspective based on the polarized political situation.

Anyway, I can’t wait for the California government lawyers and the environmental activists to get deposed by Exxon in their Texas case.

Background:

Judiciary Climate Confusion

Critical Climate Intelligence for Jurists (and others)