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Speaker 1: Welcome back to Drilled. I'm Amy Westervelt. Today I'm talking

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Speaker 1: to investigative journalist Chris McGreal with The Guardian. He's just

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Speaker 1: come out with a story about a new and particularly

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Speaker 1: aggressive tactic that Excellent Mobile is using to try to

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Speaker 1: stop at least some of the climate liability cases that

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Speaker 1: have been filed against them. They've filed a petition in

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Speaker 1: Texas to try to bring officials from several of the

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Speaker 1: California counties and cities that have filed these suits to

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Speaker 1: Texas for depositions and to get their hands on communications

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Speaker 1: between those officials and their attorneys. They're invoking an obscure

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Speaker 1: Texas law to do that. It's actually the second time

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Speaker 1: they've tried to do something like this, and one of

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Speaker 1: the things that they're alleging is that these officials and

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Speaker 1: their attorneys are infringing on Exxon's First Amendment rates to

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Speaker 1: say whatever they'd like about climate change. Another argument they're

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Speaker 1: making is that these suits filed in California somehow infringe

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Speaker 1: on the sovereignty of Texas. We're going to get into

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Speaker 1: all of that and more right after this quick break.

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Speaker 2: My name is Chris mcgreel. I'm a reporter for The Guardian.

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Speaker 2: I'm based in New York, and I'm mostly focused on

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Speaker 2: writing about how the oil industry is coming at the

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Speaker 2: climate crisis, particularly its efforts over the years, but also

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Speaker 2: continuing right now to either deny the realities of climate

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Speaker 2: change or to change the conversation or distract from them.

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Speaker 1: Thanks for being here, Chris. I wanted to talk to

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Speaker 1: you because you've just done this great story in The

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Speaker 1: Guardian about a new and pretty aggressive tactic that Exon

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Speaker 1: Mobile is using to try to and off. Oh, these

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Speaker 1: lawsuits against it, tell us more about that. What are

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Speaker 1: they doing?

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Speaker 2: Yes, Excellon's being sued by states, municipalities, counties, cities across

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Speaker 2: the country, and they include eight California municipalities. The basis

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Speaker 2: of the lawsuit is that Exxon and other oil companies

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Speaker 2: and some of their front lobby organizations have essentially contributed

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Speaker 2: to the climate crisis by denying the realities of global heating.

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Speaker 2: They argue that Exon in particular, knew what was going

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Speaker 2: on way back in the sixties and seventies, that it

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Speaker 2: buried the evidence from its scientists and misled and lied

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Speaker 2: to the public about the fact that burning fossil fuels,

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Speaker 2: it was getting to create a climate crisis. So the

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Speaker 2: California municipalities were essentially suing for the damage that's been

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Speaker 2: done to their cities and counties by global heating. And one,

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Speaker 2: for instance, Imperial Beach down in southern California on the

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Speaker 2: border with Mexico, is facing flooding from rising seas waters.

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Speaker 2: It's now almost becoming an island at times surrounded on

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Speaker 2: by water. Others are facing wildfires, all the stuff that

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Speaker 2: you've actually been reading about from California over recent years,

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Speaker 2: and they have targeted Exon amongst other companies. Exon is

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Speaker 2: now fighting back by in essence, attempting to countersue the

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Speaker 2: officials of those cities and counties by claiming that get this,

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Speaker 2: that the lawsuit seeking to hold Exon accountable for climate

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Speaker 2: change is an infringement on Exon's free speech First Amendment

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Speaker 2: rights to deny climate change. Effectively, what Exon is saying

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Speaker 2: is it's gone to the Texas Supreme Court to use

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Speaker 2: a very unusual Texas law called Rule two O two.

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Speaker 2: And what Rule two oh too allows a company to

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Speaker 2: do is to question somebody to force them to give

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Speaker 2: a deposition under oath about a subject that, in this

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Speaker 2: case Exon wants to question about well, Exon actually having

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Speaker 2: filed a lawsuit to sue them. So, in other words,

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Speaker 2: it allows a company to go on a fishing expedition

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Speaker 2: to see if this person reveals anything that can then

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Speaker 2: be used in a lawsuit against them, and that is

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Speaker 2: what Exon is trying to do against officials from these

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Speaker 2: is about a dozen officials from eight municipalities. And it's

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Speaker 2: also added to a little rider by saying that by

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Speaker 2: suing Exon in California, these individuals and these municipalities are

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Speaker 2: also infringing on the sovereignty of Texas, which is an

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Speaker 2: interesting argument as well.

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Speaker 1: Wow, wow, that's really something. So this is super interesting

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Speaker 1: to me because I remember maybe four or five years

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Speaker 1: ago Exon trying to do this in Texas, but targeting

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Speaker 1: a bigger group. So really all of the lawyers bringing

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Speaker 1: cases against them all over the country and their expert

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Speaker 1: witnesses and foundations that were funding the lawsuits and accusing

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Speaker 1: them of a conspiracy against Exon. It seems like that

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Speaker 1: didn't work, so now they're trying a new approach, maybe

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Speaker 1: hoping that narrowing it will do the trick.

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Speaker 2: Those elements remain in this lawsuit, so they're going after

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Speaker 2: Matthew Power, who was one of the lawyers who was

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Speaker 2: very much behind trying to generate those two actions against

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Speaker 2: i think the Attorney generals of Massachusetts and New York.

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Speaker 2: But also in the lawsuit, Exon argues that it is

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Speaker 2: indeed a victim of a conspiracy, and that that conspiracy

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Speaker 2: is the infamous Santa Cruz conspiracy where all of these

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Speaker 2: climate activists got together and essentially decided to follow the

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Speaker 2: playbook of those that sued Big Tobacco over smoking. So

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Speaker 2: they've kept those elements in it, but they then taken

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Speaker 2: it this one step extra now in the hope of

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Speaker 2: also using the First Amendment argument. So it's a petition

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Speaker 2: to the Supreme Court because essentially, when Exon first tried

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Speaker 2: to file a case to get these official to come

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Speaker 2: to Texas where they were facer deposition so they all

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Speaker 2: have to trans Yeah, a lower court upheld that and said, yep,

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Speaker 2: you can go ahead and do that, and these officials

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Speaker 2: have to come to Texas. On appeal that was overturned

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Speaker 2: not because the appeal court was unsympathetic to the Exons argument.

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Speaker 2: It actually acknowledged Exon's argument, and it said it acknowledged

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Speaker 2: and I'm quoting here from the appeal Court's own judgment

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Speaker 2: and impulse to safeguard an industry that is vital to Texas'

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Speaker 2: economic well being, and said that lawfare is an ugly

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Speaker 2: tool by which to seek environmental policy changes, and by

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Speaker 2: lawfare they mean any attempt to sue Exon that's been

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Speaker 2: dressed up as some kind of illegitimate legal action, which

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Speaker 2: they call law fare. But the appeal Court said it

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Speaker 2: overturned the original court ruling because it said, actually, these

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Speaker 2: California officials didn't have enough of a connection with Texas.

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Speaker 2: They didn't live there, they didn't work there, they didn't

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Speaker 2: spend any time there, and that therefore Tech really didn't

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Speaker 2: have jurisdiction. So Exon has now gone to the Texas

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Speaker 2: Supreme Court and said with its own appeal saying it

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Speaker 2: wants the original judgment by the lower court reinstated on

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Speaker 2: the grounds that it's enough that Exon is headquartered in Texas.

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Speaker 2: That's the connection that should be sufficient grounds, and that

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Speaker 2: is what it's arguing to the Texas Supreme Court, which

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Speaker 2: will take the case up at some point in well, firstly,

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Speaker 2: it has to decide whether it will take the case up,

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Speaker 2: and if it does take the case up, then it

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Speaker 2: will hear the case in the coming months.

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Speaker 1: Okay, got it? So Greg Abbott, the governor of Texas

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Speaker 1: and its former attorney general and a former Texas Supreme

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Speaker 1: Court justice himself, he got involved here too, right. I

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Speaker 1: saw that he had submitted an amkus brief that was

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Speaker 1: filed with a lot of pretty amusing and dramatic language

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Speaker 1: about how these California officials were running away from Texas

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Speaker 1: justice and how the court needs to protect the state's

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Speaker 1: biggest industry. Does that argument show up in the complaint

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Speaker 1: to this idea that somehow the California courts are interfeering

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Speaker 1: with Texas's ability to protect this industry that's so important

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Speaker 1: to the state's economy.

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Speaker 2: Yes, very much so. In fact, part of the legal

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Speaker 2: position is very much built around the idea that this

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Speaker 2: is some kind of personal vendetta against the oil industry

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Speaker 2: and therefore against the state. That's the basis of the conspiracy,

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Speaker 2: and that Texas needs to stand up for itself and

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Speaker 2: its rights. But the Greg Abbott's intervention is very interesting

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Speaker 2: because he's the governor as you know of Texas. He

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Speaker 2: writes an amicus letter, a friend to the court letter

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Speaker 2: in support of Exxon. But this is quite an astonishing

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Speaker 2: thing for him to do. Firstly, he's the governor. You

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Speaker 2: would think that he would feel fairly obliged to stand

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Speaker 2: above the kind of judicial process, separation of powers and

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Speaker 2: all of that. But Greg Abbott actually appointed half the

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Speaker 2: members of the Texas Supreme Court. So he's writing to

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Speaker 2: the people he appointed and telling, look, this is the

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Speaker 2: way I want this to go. I'd like to go. Now.

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Speaker 2: I'm not saying that that will have enormous influence, but

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Speaker 2: I think we can imagine, you know, how that might

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Speaker 2: be viewed were it to happen in another country that

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Speaker 2: the person who appointed the judges to the land's highest

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Speaker 2: court was then writing to them telling them what he

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Speaker 2: thought the outcome of a case should be. I don't

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Speaker 2: think it would be viewed as a legitimate process, shall

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Speaker 2: we say. One of the other interesting things about this

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Speaker 2: is that the Attorney General of Texas is nowhere to

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Speaker 2: be seen, in part because he's actually been trying to defend,

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Speaker 2: in a completely different case, the idea that California has

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Speaker 2: a jurisdiction over something that's happening in Texas. So actually

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Speaker 2: he can't make this argument. He can't stand up for

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Speaker 2: Exxon because he's on the other side of the fence

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Speaker 2: in a different case.

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Speaker 1: Fascinating. Okay, So did you get any sense in your

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Speaker 1: reporting of why they've narrowed in on the California officials

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Speaker 1: and their lawyers in particular. I'm curious about this because

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Speaker 1: I saw that and I thought, hmm, I wonder, like,

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Speaker 1: why not Baltimore? Why not but you know, any of

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Speaker 1: the twenty other locations. Is it just that there's so

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Speaker 1: many cases in California or is it some sort of

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Speaker 1: Texas and the Fifth Circuit versus California and the Ninth

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Speaker 1: Circuit thing? What's going on there?

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Speaker 2: They haven't said why. It might just be the nature

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Speaker 2: of the evidence they've got to hand. One of the

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Speaker 2: things in the lawsuit that's quite interesting is that, you know,

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Speaker 2: Exon's petition to the Supreme Court gives some examples of

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Speaker 2: what it says officials stifling the speech of the Texas

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Speaker 2: Energy Center. So, for instance, the Oakland City attorney Barbara

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Speaker 2: Parker in twenty seventeen, and this is a quote from

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Speaker 2: Excell's law So issued a press release seeking to stifle

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Speaker 2: the speech of the Texas energy sector or actually likes

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Speaker 2: to refer to it big oil. The press release said,

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Speaker 2: it is past time to debate or question the reality

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Speaker 2: of global warming. Just like big tobacco, Big oil knew

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Speaker 2: the truth long ago and peedled miss him from to

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Speaker 2: con their customers and the American public. Now, Eixon is

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Speaker 2: arguing to the Sex of Supreme Court that that statement

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Speaker 2: that she made essentially stifling Exon's right to pedal in

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Speaker 2: misinformation essentially, and it does a similar thing with the

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Speaker 2: San Francisco City Attorney Dennis Herrera, he accused the fossil

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Speaker 2: fuel companies in general of launching a misinformation campaign to

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Speaker 2: deny and discredit the reality of global heating, and he

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Speaker 2: pledged to hold them to account. And Exon said, by

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Speaker 2: accusing them or accusing the company of a disinformation campaign,

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Speaker 2: it was intruding. He was intruding on Exon's free speech.

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Speaker 2: And they have been similar It picked up on similar

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Speaker 2: statements from other California officials, so that maybe they may

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Speaker 2: simply have chosen California, perhaps because as that's where the

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Speaker 2: majority of cases against Xon are, or because of these

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Speaker 2: particular kinds of statements. I think one of the interesting

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Speaker 2: things is that Exon's taking a step further because they

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Speaker 2: go after the lawyer representing these municipalities, and it's an

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Speaker 2: environmental lawyer in Boston, a guy called Matthew.

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Speaker 1: Yes, Matt Power. That's super interesting that they've focused in

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Speaker 1: on him. I mean, they have really targeted him for

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Speaker 1: a long time in general, but you know, he really

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Speaker 1: is the guy who came up with the whole idea

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Speaker 1: of climate liability more than a decade ago, and he's

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Speaker 1: tried multiple different strategies and refined his approach over the years.

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Speaker 1: But I mean, there's nothing wrong with any of that.

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Speaker 1: That's not nefarious. It's how legal strategy evolves in general.

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Speaker 2: The interesting thing about that to me is that they

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Speaker 2: are pursuing him too, because they describe him as quote

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Speaker 2: an outspoken advocate of misusing government power to limit free speech,

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Speaker 2: which is quite interesting. Now. One of the things about

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Speaker 2: them going after him is that they are trying to

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Speaker 2: get hold of his communications with those individual California municipalities

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Speaker 2: as part of the raw Twoho two deposition process. They

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Speaker 2: want to get hold of those documents, so then that

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Speaker 2: infringes on his ability to actually talk to his own

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Speaker 2: clients about these issues because they could become part of

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Speaker 2: the record. So now all of this, of course, we

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Speaker 2: as we all know, isn't really about excellence free speech

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Speaker 2: at all. It's about harassing its critics and intimidating them.

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Speaker 2: And you know, I think that going after your after

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Speaker 2: the lawyer concerned is pretty strong evidence that it's more

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Speaker 2: than just your average lawsuit.

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Speaker 1: Yeah, and there again, recruiting clients and talking to other lawyers,

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Speaker 1: none of that is out of the ordinary or illegal

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Speaker 1: in any way.

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Speaker 2: Well, I mean, you only have to watch the television,

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Speaker 2: don't you to see that all the ads for have

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Speaker 2: you had, you know, for instance, a reaction to a

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Speaker 2: particular kind of drug or out, they're recruiting people for

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Speaker 2: you know, class action laws. And so yeah, it does

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Speaker 2: seem to be pretty standard practice to go around and

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Speaker 2: find find clients for a particular legal action.

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Speaker 1: Wait, so that makes me wonder too if this is

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Speaker 1: somewhat of a preemptive strike on Exxon's part. I know,

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Speaker 1: there's been a lot of talk in the legal rum

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Speaker 1: about the potential for using racketeering laws RICO to allege

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Speaker 1: conspiracy against the oil companies and then, of course, the

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Speaker 1: oil companies themselves have used RICO to go after their critics.

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Speaker 1: Have you heard anyone talking about that with respect to

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Speaker 1: this whole thing.

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Speaker 2: Yes. So there's a famous RECO case against the tobacco industry.

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Speaker 2: It was a civil case, not a criminal case, but

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Speaker 2: a famous case brought by the federal government. The federal

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Speaker 2: government won, and that was partly the basis of the

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Speaker 2: enormous settlement that then came down the line against big tobacco.

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Speaker 2: And one of the striking things about the judgment in

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Speaker 2: that Reco case was that the judge talked about the

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Speaker 2: conspiracies that have been put together between the tobacco industry,

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Speaker 2: between the cigarette companies themselves and their lawyers actually as

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Speaker 2: it happened, and how the lawyers had was said that

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Speaker 2: they had dishonored an honorable profession through their conduct to

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Speaker 2: help the tobacco companies cover up the dangers of smoking

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Speaker 2: that you know, cigarettes caused cancer. And the evidence that

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Speaker 2: came out in that case was very damning for Big tobacco.

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Speaker 2: It showed not only that they knew, but actually that

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Speaker 2: they were trying to recruit a younger generation of smokers

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Speaker 2: to replace the older generation. That was dying from cancer,

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Speaker 2: even when they knew the dangers, and that was very

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Speaker 2: damaging for them in court. And I think that this

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Speaker 2: is the big This is the fear of the oil industry.

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Speaker 2: Part is that they will end up with something like

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Speaker 2: a civil reco case where everything will be laid bare

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Speaker 2: and they will end up paying so very much. That

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Speaker 2: is very much part of the conversation.

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Speaker 1: I wonder if part of this isn't being driven by

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Speaker 1: the fact that they're more and more fraud complaints starting

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Speaker 1: to pile up to because I don't know. I mean,

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Speaker 1: liability is a tough one. You know, the burden of

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Speaker 1: proof is high. You have to show that this particular

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Speaker 1: action caused that damage and that damage cost this much.

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Speaker 1: But with fraud, you know they're using state consumer protection

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Speaker 1: laws and it's a lot more straightforward. It's sort of

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Speaker 1: just did this company's advertisements and public statements mislead the

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Speaker 1: public about something? And there's a fair bit of evidence

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Speaker 1: that that, yes, that was happening. I just wonder if,

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Speaker 1: especially because the Massachusetts fraud case, which only names Exonmobile,

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Speaker 1: is really looking like it's going to move forward and

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Speaker 1: actually get into discovery.

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Speaker 2: Well, and I think it's that discovery process that scares

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Speaker 2: them as much as anything really, because you know, again

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Speaker 2: back to the tobacco cases, it was the information that

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Speaker 2: came out in the discovery cases that ultimately did for

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Speaker 2: the tobacco industry rather than juries deciding, you know, because

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Speaker 2: that discovery case stuff, it shifted public opinion and then

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Speaker 2: it shifted political opinion, and I would imagine that the

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Speaker 2: oil industry is very, very worried about the consequences of that.

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Speaker 2: It's also worth bearing in mind that quite a lot

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Speaker 2: of the lawyers that represented the tobacco industry are now

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Speaker 2: representing the oil industry. I think Excellon is quite scared,

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Speaker 2: and maybe this is all just desperation, you know, anything

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Speaker 2: to try and slow things up and to harass your

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Speaker 2: opponents and all the rest, because they don't really have

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Speaker 2: a strategy, do they. And they've clearly decided, unlike the

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Speaker 2: European oil companies, not even to try and bargain with

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Speaker 2: their critics.

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Speaker 1: That's it for this time. Big thanks to Chris mcgrill

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Speaker 1: for joining us. I will stick a link to his

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Speaker 1: story in the show notes. He'll be continuing to follow that,

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Speaker 1: so make sure that you're following him and his reporting

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Speaker 1: over at the Guardian, and thanks for listening. As always,

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Speaker 1: we will see you next week. Drilled is an original,

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Speaker 1: critical Frequent See production. The show is written, reported, and

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Speaker 1: hosted by me Amy Westervelt. Our producer is Jules Bradley,

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Speaker 1: mixing and mastering by Peter Duff. Our music this week

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Speaker 1: is by Martin Wissenberg. Our cover art is by Matt Fleming.

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Speaker 1: Our First Amendment Attorney is James Wheaton of the First

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Speaker 1: Amendment Project. If you'd like to support our reporting, you

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Speaker 1: You can also follow us on Twitter. I'm at Amy

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Speaker 1: Westervelt and the show is at We Are Drilled. Thanks

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Speaker 1: for listening and we'll see you next time. Bang Dyn

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Speaker 1: Dann Dann Dying, Dann b