Texas Backs ExxonMobil in Climate Fight

FORT WORTH (CN) — Texas and 10 other states came to ExxonMobil's defense Thursday in the company's lawsuit against Massachusetts' demand for 40 years of documents on whether it lied to investors about its knowledge of climate change.

Texas Attorney General Ken Paxton called Massachusetts' subpoena an "unconstitutional use of investigative powers," stemming from a "coalition of liberal" attorneys general who announced in March that they would "go after one side of the policy debate" on climate change.

"This overt use of governmental power to shut down particular viewpoints is a blatant violation of the Constitution," Paxton said in a statement Thursday evening. "In this case, the Massachusetts attorney general issued a civil investigative demand against ExxonMobil Corporation for its 'marketing and sale of fossil fuel-derived products and securities,' demanding over 40 years of internal company documents."

Irving-based ExxonMobil sued Massachusetts Attorney General Maura Tracy Healey in June in Federal Court, seeking an injunction against the subpoena. ExxonMobil says the demand imposes a "breathtaking burden" on it because it "would need to collect and review millions of documents to comply."

Paxton filed an amicus brief Thursday in support of an injunction, joined by attorneys general from Louisiana, South Carolina, Alabama, Michigan, Arizona, Wisconsin, Nebraska, Oklahoma, Utah, and Nevada.

Paxton said state attorneys general do have sovereign authority to investigate violations of law through the use of subpoenas.

"However, this power does not include the right to engage in unrestrained, investigative excursions to promulgate a social ideology, or chill the expression of points of view, in international policy debates," the 13-page brief states. "The concerns of amici and others regarding Massachusetts's tactics are expressed in a recent open letter. In it, the actions of Massachusetts and others are condemned, as 'this effort by our colleagues to police the global warming debate through the power of the subpoena is a grave mistake.' The signatories, representing a wide range of viewpoints on climate change, 'agree on at least one thing - this is not a question for the courts."

Paxton said attorneys general should not use their legal powers to "tip the scales" in a policy debate.

"The authority attorneys general have to investigate fraud does not allow them to encroach on the constitutional freedom of others to engage in an ongoing public policy debate of international importance," the brief states. "Thus, government action that restricts or chills speech because of the message embodied within that speech contravenes the First Amendment. ... The First Amendment generally prevents government from proscribing speech, or even expressive conduct, for the mere disapproval of the ideas expressed."

Paxton said the Fourth Amendment requires such subpoenas to be precise and used with "scrupulous exactitude."

"The Constitution was written to protect citizens from government witch-hunts that are nothing more than an attempt to suppress speech on an issue of public importance, just because a government official happens to disagree with that particular viewpoint," he said.

Texas and Alabama intervened on ExxonMobil's behalf in a similar lawsuit in May. ExxonMobil sued Virgin Islands Attorney General Claude Earl Walker in April in Tarrant County Court, seeking to block a similar subpoena for decades of climate change records.

ExxonMobil prevailed in that case in June, when Walked agreed to drop the subpoena.

Healey's office declined to comment on Texas' brief Friday morning, citing ongoing litigation.

Follow @davejourno

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit