WEBVTT - Exxon Takes Its First Amendment Battle to the Texas Supreme Court

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<v Speaker 1>Welcome back to Drilled. I'm Amy Westervelt. Today I'm talking

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<v Speaker 1>to investigative journalist Chris McGreal with The Guardian. He's just

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<v Speaker 1>come out with a story about a new and particularly

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<v Speaker 1>aggressive tactic that Excellent Mobile is using to try to

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<v Speaker 1>stop at least some of the climate liability cases that

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<v Speaker 1>have been filed against them. They've filed a petition in

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<v Speaker 1>Texas to try to bring officials from several of the

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<v Speaker 1>California counties and cities that have filed these suits to

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<v Speaker 1>Texas for depositions and to get their hands on communications

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<v Speaker 1>between those officials and their attorneys. They're invoking an obscure

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<v Speaker 1>Texas law to do that. It's actually the second time

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<v Speaker 1>they've tried to do something like this, and one of

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<v Speaker 1>the things that they're alleging is that these officials and

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<v Speaker 1>their attorneys are infringing on Exxon's First Amendment rates to

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<v Speaker 1>say whatever they'd like about climate change. Another argument they're

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<v Speaker 1>making is that these suits filed in California somehow infringe

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<v Speaker 1>on the sovereignty of Texas. We're going to get into

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<v Speaker 1>all of that and more right after this quick break.

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

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<v Speaker 2>I'm based in New York, and I'm mostly focused on

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<v Speaker 2>writing about how the oil industry is coming at the

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<v Speaker 2>climate crisis, particularly its efforts over the years, but also

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<v Speaker 2>continuing right now to either deny the realities of climate

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<v Speaker 2>change or to change the conversation or distract from them.

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<v Speaker 1>Thanks for being here, Chris. I wanted to talk to

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<v Speaker 1>you because you've just done this great story in The

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<v Speaker 1>Guardian about a new and pretty aggressive tactic that Exon

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<v Speaker 1>Mobile is using to try to and off. Oh, these

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<v Speaker 1>lawsuits against it, tell us more about that. What are

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<v Speaker 1>they doing?

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<v Speaker 2>Yes, Excellon's being sued by states, municipalities, counties, cities across

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<v Speaker 2>the country, and they include eight California municipalities. The basis

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<v Speaker 2>of the lawsuit is that Exxon and other oil companies

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<v Speaker 2>and some of their front lobby organizations have essentially contributed

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<v Speaker 2>to the climate crisis by denying the realities of global heating.

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<v Speaker 2>They argue that Exon in particular, knew what was going

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<v Speaker 2>on way back in the sixties and seventies, that it

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<v Speaker 2>buried the evidence from its scientists and misled and lied

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<v Speaker 2>to the public about the fact that burning fossil fuels,

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<v Speaker 2>it was getting to create a climate crisis. So the

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<v Speaker 2>California municipalities were essentially suing for the damage that's been

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<v Speaker 2>done to their cities and counties by global heating. And one,

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<v Speaker 2>for instance, Imperial Beach down in southern California on the

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<v Speaker 2>border with Mexico, is facing flooding from rising seas waters.

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<v Speaker 2>It's now almost becoming an island at times surrounded on

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<v Speaker 2>by water. Others are facing wildfires, all the stuff that

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<v Speaker 2>you've actually been reading about from California over recent years,

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<v Speaker 2>and they have targeted Exon amongst other companies. Exon is

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<v Speaker 2>now fighting back by in essence, attempting to countersue the

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<v Speaker 2>officials of those cities and counties by claiming that get this,

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<v Speaker 2>that the lawsuit seeking to hold Exon accountable for climate

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<v Speaker 2>change is an infringement on Exon's free speech First Amendment

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<v Speaker 2>rights to deny climate change. Effectively, what Exon is saying

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<v Speaker 2>is it's gone to the Texas Supreme Court to use

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<v Speaker 2>a very unusual Texas law called Rule two O two.

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<v Speaker 2>And what Rule two oh too allows a company to

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<v Speaker 2>do is to question somebody to force them to give

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<v Speaker 2>a deposition under oath about a subject that, in this

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<v Speaker 2>case Exon wants to question about well, Exon actually having

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<v Speaker 2>filed a lawsuit to sue them. So, in other words,

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<v Speaker 2>it allows a company to go on a fishing expedition

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<v Speaker 2>to see if this person reveals anything that can then

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<v Speaker 2>be used in a lawsuit against them, and that is

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<v Speaker 2>what Exon is trying to do against officials from these

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<v Speaker 2>is about a dozen officials from eight municipalities. And it's

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<v Speaker 2>also added to a little rider by saying that by

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<v Speaker 2>suing Exon in California, these individuals and these municipalities are

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<v Speaker 2>also infringing on the sovereignty of Texas, which is an

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<v Speaker 2>interesting argument as well.

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

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<v Speaker 1>to me because I remember maybe four or five years

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<v Speaker 1>ago Exon trying to do this in Texas, but targeting

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<v Speaker 1>a bigger group. So really all of the lawyers bringing

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<v Speaker 1>cases against them all over the country and their expert

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<v Speaker 1>witnesses and foundations that were funding the lawsuits and accusing

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<v Speaker 1>them of a conspiracy against Exon. It seems like that

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

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<v Speaker 1>hoping that narrowing it will do the trick.

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<v Speaker 2>Those elements remain in this lawsuit, so they're going after

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<v Speaker 2>Matthew Power, who was one of the lawyers who was

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<v Speaker 2>very much behind trying to generate those two actions against

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<v Speaker 2>i think the Attorney generals of Massachusetts and New York.

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<v Speaker 2>But also in the lawsuit, Exon argues that it is

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<v Speaker 2>indeed a victim of a conspiracy, and that that conspiracy

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<v Speaker 2>is the infamous Santa Cruz conspiracy where all of these

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<v Speaker 2>climate activists got together and essentially decided to follow the

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<v Speaker 2>playbook of those that sued Big Tobacco over smoking. So

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<v Speaker 2>they've kept those elements in it, but they then taken

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<v Speaker 2>it this one step extra now in the hope of

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<v Speaker 2>also using the First Amendment argument. So it's a petition

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<v Speaker 2>to the Supreme Court because essentially, when Exon first tried

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<v Speaker 2>to file a case to get these official to come

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<v Speaker 2>to Texas where they were facer deposition so they all

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<v Speaker 2>have to trans Yeah, a lower court upheld that and said, yep,

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<v Speaker 2>you can go ahead and do that, and these officials

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<v Speaker 2>have to come to Texas. On appeal that was overturned

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<v Speaker 2>not because the appeal court was unsympathetic to the Exons argument.

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<v Speaker 2>It actually acknowledged Exon's argument, and it said it acknowledged

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<v Speaker 2>and I'm quoting here from the appeal Court's own judgment

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<v Speaker 2>and impulse to safeguard an industry that is vital to Texas'

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<v Speaker 2>economic well being, and said that lawfare is an ugly

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<v Speaker 2>tool by which to seek environmental policy changes, and by

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<v Speaker 2>lawfare they mean any attempt to sue Exon that's been

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<v Speaker 2>dressed up as some kind of illegitimate legal action, which

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<v Speaker 2>they call law fare. But the appeal Court said it

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<v Speaker 2>overturned the original court ruling because it said, actually, these

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<v Speaker 2>California officials didn't have enough of a connection with Texas.

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<v Speaker 2>They didn't live there, they didn't work there, they didn't

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<v Speaker 2>spend any time there, and that therefore Tech really didn't

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<v Speaker 2>have jurisdiction. So Exon has now gone to the Texas

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<v Speaker 2>Supreme Court and said with its own appeal saying it

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<v Speaker 2>wants the original judgment by the lower court reinstated on

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<v Speaker 2>the grounds that it's enough that Exon is headquartered in Texas.

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<v Speaker 2>That's the connection that should be sufficient grounds, and that

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<v Speaker 2>is what it's arguing to the Texas Supreme Court, which

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<v Speaker 2>will take the case up at some point in well, firstly,

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<v Speaker 2>it has to decide whether it will take the case up,

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<v Speaker 2>and if it does take the case up, then it

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<v Speaker 2>will hear the case in the coming months.

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<v Speaker 1>Okay, got it? So Greg Abbott, the governor of Texas

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<v Speaker 1>and its former attorney general and a former Texas Supreme

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<v Speaker 1>Court justice himself, he got involved here too, right. I

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<v Speaker 1>saw that he had submitted an amkus brief that was

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<v Speaker 1>filed with a lot of pretty amusing and dramatic language

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<v Speaker 1>about how these California officials were running away from Texas

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<v Speaker 1>justice and how the court needs to protect the state's

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<v Speaker 1>biggest industry. Does that argument show up in the complaint

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<v Speaker 1>to this idea that somehow the California courts are interfeering

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<v Speaker 1>with Texas's ability to protect this industry that's so important

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<v Speaker 1>to the state's economy.

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<v Speaker 2>Yes, very much so. In fact, part of the legal

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<v Speaker 2>position is very much built around the idea that this

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<v Speaker 2>is some kind of personal vendetta against the oil industry

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<v Speaker 2>and therefore against the state. That's the basis of the conspiracy,

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<v Speaker 2>and that Texas needs to stand up for itself and

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<v Speaker 2>its rights. But the Greg Abbott's intervention is very interesting

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<v Speaker 2>because he's the governor as you know of Texas. He

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<v Speaker 2>writes an amicus letter, a friend to the court letter

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<v Speaker 2>in support of Exxon. But this is quite an astonishing

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

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<v Speaker 2>would think that he would feel fairly obliged to stand

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<v Speaker 2>above the kind of judicial process, separation of powers and

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<v Speaker 2>all of that. But Greg Abbott actually appointed half the

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<v Speaker 2>members of the Texas Supreme Court. So he's writing to

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<v Speaker 2>the people he appointed and telling, look, this is the

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<v Speaker 2>way I want this to go. I'd like to go. Now.

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<v Speaker 2>I'm not saying that that will have enormous influence, but

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<v Speaker 2>I think we can imagine, you know, how that might

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<v Speaker 2>be viewed were it to happen in another country that

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<v Speaker 2>the person who appointed the judges to the land's highest

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<v Speaker 2>court was then writing to them telling them what he

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<v Speaker 2>thought the outcome of a case should be. I don't

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<v Speaker 2>think it would be viewed as a legitimate process, shall

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<v Speaker 2>we say. One of the other interesting things about this

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<v Speaker 2>is that the Attorney General of Texas is nowhere to

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

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<v Speaker 2>in a completely different case, the idea that California has

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<v Speaker 2>a jurisdiction over something that's happening in Texas. So actually

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<v Speaker 2>he can't make this argument. He can't stand up for

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<v Speaker 2>Exxon because he's on the other side of the fence

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<v Speaker 2>in a different case.

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<v Speaker 1>Fascinating. Okay, So did you get any sense in your

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<v Speaker 1>reporting of why they've narrowed in on the California officials

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<v Speaker 1>and their lawyers in particular. I'm curious about this because

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<v Speaker 1>I saw that and I thought, hmm, I wonder, like,

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<v Speaker 1>why not Baltimore? Why not but you know, any of

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<v Speaker 1>the twenty other locations. Is it just that there's so

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<v Speaker 1>many cases in California or is it some sort of

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<v Speaker 1>Texas and the Fifth Circuit versus California and the Ninth

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<v Speaker 1>Circuit thing? What's going on there?

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<v Speaker 2>They haven't said why. It might just be the nature

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<v Speaker 2>of the evidence they've got to hand. One of the

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<v Speaker 2>things in the lawsuit that's quite interesting is that, you know,

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<v Speaker 2>Exon's petition to the Supreme Court gives some examples of

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<v Speaker 2>what it says officials stifling the speech of the Texas

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<v Speaker 2>Energy Center. So, for instance, the Oakland City attorney Barbara

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<v Speaker 2>Parker in twenty seventeen, and this is a quote from

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<v Speaker 2>Excell's law So issued a press release seeking to stifle

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<v Speaker 2>the speech of the Texas energy sector or actually likes

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<v Speaker 2>to refer to it big oil. The press release said,

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<v Speaker 2>it is past time to debate or question the reality

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<v Speaker 2>of global warming. Just like big tobacco, Big oil knew

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<v Speaker 2>the truth long ago and peedled miss him from to

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<v Speaker 2>con their customers and the American public. Now, Eixon is

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<v Speaker 2>arguing to the Sex of Supreme Court that that statement

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<v Speaker 2>that she made essentially stifling Exon's right to pedal in

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<v Speaker 2>misinformation essentially, and it does a similar thing with the

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<v Speaker 2>San Francisco City Attorney Dennis Herrera, he accused the fossil

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<v Speaker 2>fuel companies in general of launching a misinformation campaign to

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<v Speaker 2>deny and discredit the reality of global heating, and he

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<v Speaker 2>pledged to hold them to account. And Exon said, by

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<v Speaker 2>accusing them or accusing the company of a disinformation campaign,

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<v Speaker 2>it was intruding. He was intruding on Exon's free speech.

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<v Speaker 2>And they have been similar It picked up on similar

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<v Speaker 2>statements from other California officials, so that maybe they may

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<v Speaker 2>simply have chosen California, perhaps because as that's where the

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<v Speaker 2>majority of cases against Xon are, or because of these

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<v Speaker 2>particular kinds of statements. I think one of the interesting

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<v Speaker 2>things is that Exon's taking a step further because they

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<v Speaker 2>go after the lawyer representing these municipalities, and it's an

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<v Speaker 2>environmental lawyer in Boston, a guy called Matthew.

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

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<v Speaker 1>on him. I mean, they have really targeted him for

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<v Speaker 1>a long time in general, but you know, he really

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<v Speaker 1>is the guy who came up with the whole idea

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<v Speaker 1>of climate liability more than a decade ago, and he's

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<v Speaker 1>tried multiple different strategies and refined his approach over the years.

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

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<v Speaker 1>That's not nefarious. It's how legal strategy evolves in general.

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<v Speaker 2>The interesting thing about that to me is that they

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<v Speaker 2>are pursuing him too, because they describe him as quote

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<v Speaker 2>an outspoken advocate of misusing government power to limit free speech,

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<v Speaker 2>which is quite interesting. Now. One of the things about

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<v Speaker 2>them going after him is that they are trying to

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<v Speaker 2>get hold of his communications with those individual California municipalities

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<v Speaker 2>as part of the raw Twoho two deposition process. They

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<v Speaker 2>want to get hold of those documents, so then that

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<v Speaker 2>infringes on his ability to actually talk to his own

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<v Speaker 2>clients about these issues because they could become part of

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<v Speaker 2>the record. So now all of this, of course, we

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<v Speaker 2>as we all know, isn't really about excellence free speech

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<v Speaker 2>at all. It's about harassing its critics and intimidating them.

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<v Speaker 2>And you know, I think that going after your after

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<v Speaker 2>the lawyer concerned is pretty strong evidence that it's more

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<v Speaker 2>than just your average lawsuit.

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<v Speaker 1>Yeah, and there again, recruiting clients and talking to other lawyers,

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<v Speaker 1>none of that is out of the ordinary or illegal

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<v Speaker 1>in any way.

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<v Speaker 2>Well, I mean, you only have to watch the television,

0:13:41.720 --> 0:13:44.360
<v Speaker 2>don't you to see that all the ads for have

0:13:44.480 --> 0:13:46.960
<v Speaker 2>you had, you know, for instance, a reaction to a

0:13:46.960 --> 0:13:51.280
<v Speaker 2>particular kind of drug or out, they're recruiting people for

0:13:51.760 --> 0:13:54.160
<v Speaker 2>you know, class action laws. And so yeah, it does

0:13:54.160 --> 0:13:56.200
<v Speaker 2>seem to be pretty standard practice to go around and

0:13:56.200 --> 0:13:59.680
<v Speaker 2>find find clients for a particular legal action.

0:14:00.000 --> 0:14:02.400
<v Speaker 1>Wait, so that makes me wonder too if this is

0:14:02.520 --> 0:14:06.560
<v Speaker 1>somewhat of a preemptive strike on Exxon's part. I know,

0:14:06.600 --> 0:14:08.280
<v Speaker 1>there's been a lot of talk in the legal rum

0:14:08.280 --> 0:14:12.680
<v Speaker 1>about the potential for using racketeering laws RICO to allege

0:14:12.800 --> 0:14:16.560
<v Speaker 1>conspiracy against the oil companies and then, of course, the

0:14:16.600 --> 0:14:20.240
<v Speaker 1>oil companies themselves have used RICO to go after their critics.

0:14:20.320 --> 0:14:23.000
<v Speaker 1>Have you heard anyone talking about that with respect to

0:14:23.080 --> 0:14:23.720
<v Speaker 1>this whole thing.

0:14:24.280 --> 0:14:28.920
<v Speaker 2>Yes. So there's a famous RECO case against the tobacco industry.

0:14:28.960 --> 0:14:31.160
<v Speaker 2>It was a civil case, not a criminal case, but

0:14:31.200 --> 0:14:34.200
<v Speaker 2>a famous case brought by the federal government. The federal

0:14:34.240 --> 0:14:37.440
<v Speaker 2>government won, and that was partly the basis of the

0:14:37.920 --> 0:14:41.960
<v Speaker 2>enormous settlement that then came down the line against big tobacco.

0:14:42.600 --> 0:14:46.000
<v Speaker 2>And one of the striking things about the judgment in

0:14:46.040 --> 0:14:49.640
<v Speaker 2>that Reco case was that the judge talked about the

0:14:49.680 --> 0:14:53.440
<v Speaker 2>conspiracies that have been put together between the tobacco industry,

0:14:53.480 --> 0:14:57.160
<v Speaker 2>between the cigarette companies themselves and their lawyers actually as

0:14:57.200 --> 0:15:00.720
<v Speaker 2>it happened, and how the lawyers had was said that

0:15:00.760 --> 0:15:04.360
<v Speaker 2>they had dishonored an honorable profession through their conduct to

0:15:04.600 --> 0:15:08.240
<v Speaker 2>help the tobacco companies cover up the dangers of smoking

0:15:08.480 --> 0:15:12.160
<v Speaker 2>that you know, cigarettes caused cancer. And the evidence that

0:15:12.200 --> 0:15:15.600
<v Speaker 2>came out in that case was very damning for Big tobacco.

0:15:15.880 --> 0:15:18.920
<v Speaker 2>It showed not only that they knew, but actually that

0:15:19.000 --> 0:15:22.640
<v Speaker 2>they were trying to recruit a younger generation of smokers

0:15:22.680 --> 0:15:27.120
<v Speaker 2>to replace the older generation. That was dying from cancer,

0:15:27.320 --> 0:15:29.680
<v Speaker 2>even when they knew the dangers, and that was very

0:15:29.720 --> 0:15:32.440
<v Speaker 2>damaging for them in court. And I think that this

0:15:32.520 --> 0:15:35.880
<v Speaker 2>is the big This is the fear of the oil industry.

0:15:36.120 --> 0:15:38.320
<v Speaker 2>Part is that they will end up with something like

0:15:38.360 --> 0:15:41.400
<v Speaker 2>a civil reco case where everything will be laid bare

0:15:41.880 --> 0:15:44.800
<v Speaker 2>and they will end up paying so very much. That

0:15:44.920 --> 0:15:46.680
<v Speaker 2>is very much part of the conversation.

0:15:46.920 --> 0:15:48.960
<v Speaker 1>I wonder if part of this isn't being driven by

0:15:48.960 --> 0:15:52.000
<v Speaker 1>the fact that they're more and more fraud complaints starting

0:15:52.040 --> 0:15:54.760
<v Speaker 1>to pile up to because I don't know. I mean,

0:15:54.960 --> 0:15:57.360
<v Speaker 1>liability is a tough one. You know, the burden of

0:15:57.440 --> 0:15:59.960
<v Speaker 1>proof is high. You have to show that this particular

0:16:00.600 --> 0:16:04.320
<v Speaker 1>action caused that damage and that damage cost this much.

0:16:04.400 --> 0:16:07.760
<v Speaker 1>But with fraud, you know they're using state consumer protection

0:16:07.920 --> 0:16:10.360
<v Speaker 1>laws and it's a lot more straightforward. It's sort of

0:16:10.440 --> 0:16:14.280
<v Speaker 1>just did this company's advertisements and public statements mislead the

0:16:14.280 --> 0:16:17.440
<v Speaker 1>public about something? And there's a fair bit of evidence

0:16:17.480 --> 0:16:22.040
<v Speaker 1>that that, yes, that was happening. I just wonder if,

0:16:22.160 --> 0:16:26.720
<v Speaker 1>especially because the Massachusetts fraud case, which only names Exonmobile,

0:16:27.360 --> 0:16:29.560
<v Speaker 1>is really looking like it's going to move forward and

0:16:29.600 --> 0:16:31.120
<v Speaker 1>actually get into discovery.

0:16:31.280 --> 0:16:33.720
<v Speaker 2>Well, and I think it's that discovery process that scares

0:16:33.720 --> 0:16:36.160
<v Speaker 2>them as much as anything really, because you know, again

0:16:36.240 --> 0:16:39.320
<v Speaker 2>back to the tobacco cases, it was the information that

0:16:39.400 --> 0:16:42.120
<v Speaker 2>came out in the discovery cases that ultimately did for

0:16:42.160 --> 0:16:46.280
<v Speaker 2>the tobacco industry rather than juries deciding, you know, because

0:16:46.440 --> 0:16:50.240
<v Speaker 2>that discovery case stuff, it shifted public opinion and then

0:16:50.480 --> 0:16:54.000
<v Speaker 2>it shifted political opinion, and I would imagine that the

0:16:54.040 --> 0:16:57.400
<v Speaker 2>oil industry is very, very worried about the consequences of that.

0:16:57.520 --> 0:16:59.880
<v Speaker 2>It's also worth bearing in mind that quite a lot

0:16:59.880 --> 0:17:02.360
<v Speaker 2>of the lawyers that represented the tobacco industry are now

0:17:02.480 --> 0:17:05.760
<v Speaker 2>representing the oil industry. I think Excellon is quite scared,

0:17:05.800 --> 0:17:08.880
<v Speaker 2>and maybe this is all just desperation, you know, anything

0:17:08.920 --> 0:17:12.400
<v Speaker 2>to try and slow things up and to harass your

0:17:12.400 --> 0:17:15.240
<v Speaker 2>opponents and all the rest, because they don't really have

0:17:15.320 --> 0:17:18.879
<v Speaker 2>a strategy, do they. And they've clearly decided, unlike the

0:17:18.920 --> 0:17:22.920
<v Speaker 2>European oil companies, not even to try and bargain with

0:17:22.960 --> 0:17:23.720
<v Speaker 2>their critics.

0:17:31.920 --> 0:17:34.960
<v Speaker 1>That's it for this time. Big thanks to Chris mcgrill

0:17:35.080 --> 0:17:37.480
<v Speaker 1>for joining us. I will stick a link to his

0:17:37.520 --> 0:17:41.239
<v Speaker 1>story in the show notes. He'll be continuing to follow that,

0:17:41.400 --> 0:17:44.280
<v Speaker 1>so make sure that you're following him and his reporting

0:17:44.400 --> 0:17:48.120
<v Speaker 1>over at the Guardian, and thanks for listening. As always,

0:17:48.440 --> 0:17:59.080
<v Speaker 1>we will see you next week. Drilled is an original,

0:17:59.200 --> 0:18:03.760
<v Speaker 1>critical Frequent See production. The show is written, reported, and

0:18:03.800 --> 0:18:08.200
<v Speaker 1>hosted by me Amy Westervelt. Our producer is Jules Bradley,

0:18:08.480 --> 0:18:12.920
<v Speaker 1>mixing and mastering by Peter Duff. Our music this week

0:18:13.160 --> 0:18:16.840
<v Speaker 1>is by Martin Wissenberg. Our cover art is by Matt Fleming.

0:18:16.960 --> 0:18:19.920
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0:18:19.960 --> 0:18:24.600
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0:18:24.640 --> 0:18:27.520
<v Speaker 1>can do that and we very much appreciate it. That's

0:18:27.560 --> 0:18:31.359
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0:18:37.600 --> 0:18:40.200
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0:18:48.320 --> 0:18:51.160
<v Speaker 1>You can also follow us on Twitter. I'm at Amy

0:18:51.200 --> 0:18:54.680
<v Speaker 1>Westervelt and the show is at We Are Drilled. Thanks

0:18:54.760 --> 0:19:01.040
<v Speaker 1>for listening and we'll see you next time. Bang Dyn

0:19:01.200 --> 0:19:02.600
<v Speaker 1>Dann Dann Dying, Dann b