ExxonMobil's claim last week in a Texas court that the First Amendment bars an attorney general's investigation into its history of climate denial is probably a loser.
Big Tobacco tried to use the First Amendment defense to shield itself when the U.S. Department of Justice sued the cigarette makers for conspiring to mislead the public about smoking's dangers under the federal racketeering law or RICO.
But federal courts came to a simple conclusion: The constitution doesn't protect fraud.
That was the opinion of the judge who tried the government's RICO case, and of the United States Court of Appeals for the District of Columbia, the nation's second highest court, which issued a scathing opinion upholding the trial judge's ruling that Big Tobacco's long history of denial of cigarettes' lethality was a deliberate lie intended to defraud the public and therefore not protected speech.
"Of course, it is well settled that the First Amendment does not protect fraud," the appeals court noted.
ExxonMobil raised the First Amendment defense when it sued in Tarrant County, Texas on April 13th. It argued that a subpoena by the attorney general of the Virgin Islands charging it with violating the V.I.'s Criminally Influenced and Corrupt Organizations Act, its version of RICO (the Racketeer Influenced and Corrupt Organizations Act), is politically-motivated and should be quashed as a violation of ExxonMobil's constitutional right to participate "in ongoing public deliberations about climate change..."
(Theodore Wells Jr., a lawyer on ExxonMobil's Texas action, was co-lead counsel for Philip Morris, the biggest tobacco company in the world, during the federal government's RICO case.)
In addition to ExxonMobil, the Virgin Islands has subpoenaed records from the Competitive Enterprise Institute, a think tank in Washington, D.C. that received substantial amounts of money from ExxonMobil to promote climate denial.
In its subpoena to ExxonMobil, the Virgin Islands charges the company with "misrepresenting its] knowledge of the likelihood that [its] products and activities have contributed and are continuing to contribute to Climate Change in order to defraud" the government and consumers of the Virgin Islands.
ExxonMobil's lawsuit is part of a recent campaign, mostly conducted in the media, to push back against action by several attorneys general to hold the company accountable for promoting the denial of legitimate climate science.
A recent article in the Wall Street Journal about ExxonMobil's legal counter-attack also aired the charge, detailed at length in the company's Texas lawsuit, that a March 29th meeting of 17 attorneys general was "a politically motivated event, urged on by activists intolerant of contrary views." Four of the 17 attorneys general are investigating ExxonMobil and potentially other fossil fuel companies for denying what they knew was the truth about global warming.
"Frustrated by the federal government's inaction" on climate, Exxon argued in its Texas lawsuit, the attorneys general are illegimately trying to use the legal process to force change. The result will be to chill legitimate debate about climate.
The announcement Tuesday that two more attorneys general are investigating whether ExxonMobil and other fossil fuel companies misled the public about the reality of global warming raised more questions than it answered - particularly as to whether this round of attorney general activism really has goals - or resources - like those of the state tobacco lawsuits of twenty years ago.
Some seventeen attorneys general attended or sent representatives to the all-day meeting hosted by New York Attorney General Eric Schneiderman, which was not in fact about litigation specifically, but about how to fight the the climate obstructionism of fossil fuel companies and their allies.
With this new round of announcements, four AGs - from New York, California, Massachusetts and the U.S. Virgin Islands - are now running active investigations.
Only four months after New York started its first-in-the-nation investigation into ExxonMobil, the sight of a small stage crowded with seven attorneys general pledging to hold fossil fuel companies accountable was an extraordinary one.
However, specifics about what a legal case against the fossil fuel companies would look like, or what the AGs hope to achieve, were notably absent from the press conference.
In brief speeches, the AGs called attention to abnormal flooding, storms and other climate-related events that make climate a critical priority for state law enforcement along with the opioid epidemic, fraudulent investments and other business more usually associated with the office.
"We try as attorneys general to build a community, a safe community for all. But what good is that if annually everything is destroyed? And people begin to say, 'Why am I living here?' " said Attorney General Claude Walker of the Virgin Islands, noting the ever-worsening battering the islands receive as hurricanes become more destructive.
Several other speakers compared the AGs' current mission on climate to the succesful campaign of tobacco lawsuits by attorneys general twenty years ago. However, missing from the press conference stage was one irreplaceable part of the AGs' tobacco effort of the 1990s: private lawyers.
With only a few exceptions, the AGs launched and won their fusillade of tobacco lawsuits with the help of private plaintiff's lawyers.
These lawyers ran the cases both day-to-day and strategically. They came up with the Medicaid-recovery legal theory relied on by all 50 states, a theory that charged Big Tobacco with costing the states billions in health care costs over the years and one that forced the industry to agree to a settlement worth almost $300 billion, along with changes in marketing and advertising.
The Climate Investigations Center has sued the U.S. Department of Energy to force the release of records pertaining to Southern Company's "clean coal" power plant in Kemper County, Mississippi.
In a lawsuit filed late last week in federal District Court in Washington, D.C., CIC noted that it has waited almost a year for the release of records spanning a period in the late nineties through 2010 during which the technology deployed at Kemper was being developed and the plant was planned and construction took place.
CIC's Freedom of Information Act request notes that Southern Company subsidiaries Mississippi Power and Southern Company Services were granted a total of $293 million in DOE funds, as well as hundreds of millions in tax credits from the Internal Revenue Service, to defray the enormous cost of what eventually became a 582 megawatt power facility.
DOE originally agreed to fund a coal project in Orlando, Florida that was about half the size of Kemper. While the Orlando facility was to employ a first-of-its-kind technology that would burn coal more cleanly than older plants, it was not designed to capture carbon dioxide from the plant's waste stream.
Kemper theoretically will remove 65 percent of the carbon dioxide from the waste stream, compress it, and send it through a pipeline for injection into old oil fields to boost production - a process called Enhanced Oil Recovery.