A Legal Strategy That May Have Run Out of Gas

Is the effort to hold ExxonMobil legally accountable for its reported chicanery on the risks of climate change effectively over already?

It’s still unclear exactly why Virgin Islands Attorney General Claude Walker gave up on his efforts to obtain documents from ExxonMobil that could have shed light on whether the fossil-fuel behemoth violated anti-fraud laws. Climate hawks were hoping that Walker might be able to find smoking-gun evidence that ExxonMobil swindled its shareholders about the magnitude of the threat climate change posed to its bottom line.

Climate hawks were also hoping that Massachusetts Attorney General Maura Healey–who, along with New York Attorney General Eric Schneiderman, has trying to get to the bottom of whether ExxonMobil committed fraud–might be able to make headway as well, but Healey has reportedly decided to stand down until ExxonMobil’s twin legal challenges to her efforts are resolved.

What if Healey and Schneiderman also decide to walk away from the noble effort to hold ExxonMobil responsible for its obstruction of climate justice? If so, could it be due to concerns that they cannot win this fight in the court of public opinion?

The news about Walker’s abandonment of his efforts to obtain documents from ExxonMobil broke right around the same time that the Wall Street Journal reported on the CO2 conglomerate’s push to get other fossil-fuel powerbrokers to support federal revenue-neutral carbon tax legislation as the “first-best policy” (in the words of WSJ columnist Holman W. Jenkins Jr.) to deal with emissions:

Exxon Mobil Corp. is ramping up its lobbying of other energy companies to support a carbon tax, marking a shift in the oil giant’s approach to climate change as the industry faces growing pressure to address the politically charged issue.

Exxon’s official position has long been the same—a carbon tax is the best way to address the risks of warming temperatures—but it has done little to actively advocate for that goal in recent years. Lately, Exxon has been making the case with its U.S. counterparts to support a carbon tax, arguing that the industry must not oppose all climate policies, according to people familiar with Exxon’s thinking.

Top Exxon officials have been more vocal about their support for a carbon tax and have met with Capitol Hill offices about related legislation, according to the company’s recent lobby disclosure forms.

For the past six months, Exxon has been asserting its position more in meetings within trade associations, including the American Petroleum Institute and American Fuel and Petrochemical Manufacturers, according to multiple reports from people who have attended meetings with Exxon officials…

Congress has made it clear it is unlikely to consider a carbon tax soon, especially under Republican control. But some in the energy industry believe a serious debate on additional climate measures isn’t far off, especially if Democrat Hillary Clinton wins the White House in November.

ExxonMobil may well be anticipating Republicans losing both the House and Senate this fall and Democrats aggressively pushing carbon-pricing legislation as the first order of legislative business in 2017. It would certainly be in ExxonMobil’s strategic interest to have carbon-pricing legislation passed, for two reasons. First, as the WSJ piece notes, a revenue-neutral carbon tax “would make coal more expensive compared with natural gas. Exxon, beyond its oil business, is the U.S.’s largest natural-gas producer.” Second, it would allow ExxonMobil to position itself in the public mind as a positive force in the discussion over climate policy. The average American may not know about ExxonMobil’s long history of climate denial, but if ExxonMobil uses its power to get Congress to pass legislation that will reduce emissions, the average American a) will not care about that history, b) will view ExxonMobil’s efforts as good corporate citizenship, and c) will regard Attorneys General who attempt to hold ExxonMobil responsible for its past actions as overzealous, harassing prosecutors.

ExxonMobil may have created something of a Catch-22 for climate hawks. On the one hand, the company should be held liable for its decades of deception on the climate crisis. On the other hand, ExxonMobil’s significant lobbying (and advertising) power is, unfortunately, necessary to break down the last remaining walls of Congressional opposition to the only economy-wide policy still politically feasible to address climate change after the attack on federal cap-and-trade legislation. There’s a profoundly bitter irony in having to “rely on the tiger” to bring about the passage of legislation that will protect the tigers, polar bears, and human beings.

UPDATE: Graham Readfearn argues that ExxonMobil is still engaged in climate chicanery.

D.R. Tucker

D. R. Tucker is a Massachusetts-based journalist who has served as the weekend contributor for the Washington Monthly since May 2014. He has also written for the Huffington Post, the Washington Spectator, the Metrowest Daily News, investigative journalist Brad Friedman's Brad Blog and environmental journalist Peter Sinclair's Climate Crocks.