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Exxon Mobil can’t sidestep climate change suit on basis of speech

The oil company failed to sway judges that an enforcement action from a state attorney general is the kind of vexatious litigation that has inspired legal protections for entities that speak about public issues.

(CN) — The Massachusetts Supreme Judicial Court refused Tuesday to let Exxon Mobil escape a lawsuit that says it hurt investors and consumers by making misleading statements about how oil production contributes to climate change.

Massachusetts Attorney General Maura Healey brought the case in 2019, accusing Exxon Mobil of violating the Massachusetts Consumer Protection Act by, among other things, “greenwashing” its image despite knowing the truth since the late 1970s about how its products contribute to global warming.

The company invoked the commonwealth’s anti-SLAPP statute — short for strategic lawsuit against public participation — to have the civil action dismissed. Exxon Mobil tried to frame the attorney general's action as retaliation for its petitioning activity over energy and climate change policy.

Refusing that attempt in an 18-page opinion Tuesday, however, the Supreme Judicial Court concluded that no entity can invoke anti-SLAPP protections to stave off a civil enforcement from the commonwealth’s chief law enforcement officer.

“Construing the anti-SLAPP statute to apply to the attorney general would place significant roadblocks to the enforcement of the Commonwealth's laws,” Chief Justice Scott Kafker wrote for the court.

Because an anti-SLAPP motion slows or even stops discovery, and it can be immediately appealed, Kafker also noted that a ruling in favor of Exxon would affect the “critical function of government” to deal with illegal activity.

An opening footnote of the opinion acknowledges the amicus brief filed by five former attorneys general for the commonwealth, who together have more than four decades of experience filing enforcement actions. Kafker later quoted that brief while reasoning that the language of the anti-SLAPP statute showed it did not apply to the office.

The former attorneys general entered their brief ahead of the case’s oral arguments in March, warning the court that it would morph the anti-SLAPP statute into “a weapon, rather than a shield,” if it endorsed Exxon Mobil’s interpretation.

Kafker explained Tuesday that the Massachusetts Legislature had created the anti-SLAPP statute to prevent “vexatious, private lawsuits, especially ones filed by developers to prevent local opposition to zoning approval.”

But the law has been applied expansively in recent years. The caselaw surrounding the anti-SLAPP statute, Kafker wrote in a footnote, has grown complex and cases that involve the statute are difficult to resolve.

Kafker saw no evidence, however, that the Legislature sought to expressly limit the attorney’s general authority with the act. Furthermore, individuals defending themselves against an attorney general action, unlike a suit initiated by private parties, can invoke constitutional protections such as the First Amendment.

Casey Norton, a spokesperson for Exxon Mobil, said the company was “reviewing the decision and evaluating next steps.”

Attorney General Healy described the ruling as a “resounding victory” against yet another baseless attempt by Exxon Mobil to block and delay her lawsuit against it.

“We look forward to proceeding with our case and having our day in court to show how Exxon is breaking the law and to put an end to the deception once and for all,” Healey said in a statement.

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