Speaker 1: Welcome back to Drilled. I'm Amy Westervelt. Today I'm talking
Speaker 1: to investigative journalist Chris McGreal with The Guardian. He's just
Speaker 1: come out with a story about a new and particularly
Speaker 1: aggressive tactic that Excellent Mobile is using to try to
Speaker 1: stop at least some of the climate liability cases that
Speaker 1: have been filed against them. They've filed a petition in
Speaker 1: Texas to try to bring officials from several of the
Speaker 1: California counties and cities that have filed these suits to
Speaker 1: Texas for depositions and to get their hands on communications
Speaker 1: between those officials and their attorneys. They're invoking an obscure
Speaker 1: Texas law to do that. It's actually the second time
Speaker 1: they've tried to do something like this, and one of
Speaker 1: the things that they're alleging is that these officials and
Speaker 1: their attorneys are infringing on Exxon's First Amendment rates to
Speaker 1: say whatever they'd like about climate change. Another argument they're
Speaker 1: making is that these suits filed in California somehow infringe
Speaker 1: on the sovereignty of Texas. We're going to get into
Speaker 1: all of that and more right after this quick break.
Speaker 2: My name is Chris mcgreel. I'm a reporter for The Guardian.
Speaker 2: I'm based in New York, and I'm mostly focused on
Speaker 2: writing about how the oil industry is coming at the
Speaker 2: climate crisis, particularly its efforts over the years, but also
Speaker 2: continuing right now to either deny the realities of climate
Speaker 2: change or to change the conversation or distract from them.
Speaker 1: Thanks for being here, Chris. I wanted to talk to
Speaker 1: you because you've just done this great story in The
Speaker 1: Guardian about a new and pretty aggressive tactic that Exon
Speaker 1: Mobile is using to try to and off. Oh, these
Speaker 1: lawsuits against it, tell us more about that. What are
Speaker 1: they doing?
Speaker 2: Yes, Excellon's being sued by states, municipalities, counties, cities across
Speaker 2: the country, and they include eight California municipalities. The basis
Speaker 2: of the lawsuit is that Exxon and other oil companies
Speaker 2: and some of their front lobby organizations have essentially contributed
Speaker 2: to the climate crisis by denying the realities of global heating.
Speaker 2: They argue that Exon in particular, knew what was going
Speaker 2: on way back in the sixties and seventies, that it
Speaker 2: buried the evidence from its scientists and misled and lied
Speaker 2: to the public about the fact that burning fossil fuels,
Speaker 2: it was getting to create a climate crisis. So the
Speaker 2: California municipalities were essentially suing for the damage that's been
Speaker 2: done to their cities and counties by global heating. And one,
Speaker 2: for instance, Imperial Beach down in southern California on the
Speaker 2: border with Mexico, is facing flooding from rising seas waters.
Speaker 2: It's now almost becoming an island at times surrounded on
Speaker 2: by water. Others are facing wildfires, all the stuff that
Speaker 2: you've actually been reading about from California over recent years,
Speaker 2: and they have targeted Exon amongst other companies. Exon is
Speaker 2: now fighting back by in essence, attempting to countersue the
Speaker 2: officials of those cities and counties by claiming that get this,
Speaker 2: that the lawsuit seeking to hold Exon accountable for climate
Speaker 2: change is an infringement on Exon's free speech First Amendment
Speaker 2: rights to deny climate change. Effectively, what Exon is saying
Speaker 2: is it's gone to the Texas Supreme Court to use
Speaker 2: a very unusual Texas law called Rule two O two.
Speaker 2: And what Rule two oh too allows a company to
Speaker 2: do is to question somebody to force them to give
Speaker 2: a deposition under oath about a subject that, in this
Speaker 2: case Exon wants to question about well, Exon actually having
Speaker 2: filed a lawsuit to sue them. So, in other words,
Speaker 2: it allows a company to go on a fishing expedition
Speaker 2: to see if this person reveals anything that can then
Speaker 2: be used in a lawsuit against them, and that is
Speaker 2: what Exon is trying to do against officials from these
Speaker 2: is about a dozen officials from eight municipalities. And it's
Speaker 2: also added to a little rider by saying that by
Speaker 2: suing Exon in California, these individuals and these municipalities are
Speaker 2: also infringing on the sovereignty of Texas, which is an
Speaker 2: interesting argument as well.
Speaker 1: Wow, wow, that's really something. So this is super interesting
Speaker 1: to me because I remember maybe four or five years
Speaker 1: ago Exon trying to do this in Texas, but targeting
Speaker 1: a bigger group. So really all of the lawyers bringing
Speaker 1: cases against them all over the country and their expert
Speaker 1: witnesses and foundations that were funding the lawsuits and accusing
Speaker 1: them of a conspiracy against Exon. It seems like that
Speaker 1: didn't work, so now they're trying a new approach, maybe
Speaker 1: hoping that narrowing it will do the trick.
Speaker 2: Those elements remain in this lawsuit, so they're going after
Speaker 2: Matthew Power, who was one of the lawyers who was
Speaker 2: very much behind trying to generate those two actions against
Speaker 2: i think the Attorney generals of Massachusetts and New York.
Speaker 2: But also in the lawsuit, Exon argues that it is
Speaker 2: indeed a victim of a conspiracy, and that that conspiracy
Speaker 2: is the infamous Santa Cruz conspiracy where all of these
Speaker 2: climate activists got together and essentially decided to follow the
Speaker 2: playbook of those that sued Big Tobacco over smoking. So
Speaker 2: they've kept those elements in it, but they then taken
Speaker 2: it this one step extra now in the hope of
Speaker 2: also using the First Amendment argument. So it's a petition
Speaker 2: to the Supreme Court because essentially, when Exon first tried
Speaker 2: to file a case to get these official to come
Speaker 2: to Texas where they were facer deposition so they all
Speaker 2: have to trans Yeah, a lower court upheld that and said, yep,
Speaker 2: you can go ahead and do that, and these officials
Speaker 2: have to come to Texas. On appeal that was overturned
Speaker 2: not because the appeal court was unsympathetic to the Exons argument.
Speaker 2: It actually acknowledged Exon's argument, and it said it acknowledged
Speaker 2: and I'm quoting here from the appeal Court's own judgment
Speaker 2: and impulse to safeguard an industry that is vital to Texas'
Speaker 2: economic well being, and said that lawfare is an ugly
Speaker 2: tool by which to seek environmental policy changes, and by
Speaker 2: lawfare they mean any attempt to sue Exon that's been
Speaker 2: dressed up as some kind of illegitimate legal action, which
Speaker 2: they call law fare. But the appeal Court said it
Speaker 2: overturned the original court ruling because it said, actually, these
Speaker 2: California officials didn't have enough of a connection with Texas.
Speaker 2: They didn't live there, they didn't work there, they didn't
Speaker 2: spend any time there, and that therefore Tech really didn't
Speaker 2: have jurisdiction. So Exon has now gone to the Texas
Speaker 2: Supreme Court and said with its own appeal saying it
Speaker 2: wants the original judgment by the lower court reinstated on
Speaker 2: the grounds that it's enough that Exon is headquartered in Texas.
Speaker 2: That's the connection that should be sufficient grounds, and that
Speaker 2: is what it's arguing to the Texas Supreme Court, which
Speaker 2: will take the case up at some point in well, firstly,
Speaker 2: it has to decide whether it will take the case up,
Speaker 2: and if it does take the case up, then it
Speaker 2: will hear the case in the coming months.
Speaker 1: Okay, got it? So Greg Abbott, the governor of Texas
Speaker 1: and its former attorney general and a former Texas Supreme
Speaker 1: Court justice himself, he got involved here too, right. I
Speaker 1: saw that he had submitted an amkus brief that was
Speaker 1: filed with a lot of pretty amusing and dramatic language
Speaker 1: about how these California officials were running away from Texas
Speaker 1: justice and how the court needs to protect the state's
Speaker 1: biggest industry. Does that argument show up in the complaint
Speaker 1: to this idea that somehow the California courts are interfeering
Speaker 1: with Texas's ability to protect this industry that's so important
Speaker 1: to the state's economy.
Speaker 2: Yes, very much so. In fact, part of the legal
Speaker 2: position is very much built around the idea that this
Speaker 2: is some kind of personal vendetta against the oil industry
Speaker 2: and therefore against the state. That's the basis of the conspiracy,
Speaker 2: and that Texas needs to stand up for itself and
Speaker 2: its rights. But the Greg Abbott's intervention is very interesting
Speaker 2: because he's the governor as you know of Texas. He
Speaker 2: writes an amicus letter, a friend to the court letter
Speaker 2: in support of Exxon. But this is quite an astonishing
Speaker 2: thing for him to do. Firstly, he's the governor. You
Speaker 2: would think that he would feel fairly obliged to stand
Speaker 2: above the kind of judicial process, separation of powers and
Speaker 2: all of that. But Greg Abbott actually appointed half the
Speaker 2: members of the Texas Supreme Court. So he's writing to
Speaker 2: the people he appointed and telling, look, this is the
Speaker 2: way I want this to go. I'd like to go. Now.
Speaker 2: I'm not saying that that will have enormous influence, but
Speaker 2: I think we can imagine, you know, how that might
Speaker 2: be viewed were it to happen in another country that
Speaker 2: the person who appointed the judges to the land's highest
Speaker 2: court was then writing to them telling them what he
Speaker 2: thought the outcome of a case should be. I don't
Speaker 2: think it would be viewed as a legitimate process, shall
Speaker 2: we say. One of the other interesting things about this
Speaker 2: is that the Attorney General of Texas is nowhere to
Speaker 2: be seen, in part because he's actually been trying to defend,
Speaker 2: in a completely different case, the idea that California has
Speaker 2: a jurisdiction over something that's happening in Texas. So actually
Speaker 2: he can't make this argument. He can't stand up for
Speaker 2: Exxon because he's on the other side of the fence
Speaker 2: in a different case.
Speaker 1: Fascinating. Okay, So did you get any sense in your
Speaker 1: reporting of why they've narrowed in on the California officials
Speaker 1: and their lawyers in particular. I'm curious about this because
Speaker 1: I saw that and I thought, hmm, I wonder, like,
Speaker 1: why not Baltimore? Why not but you know, any of
Speaker 1: the twenty other locations. Is it just that there's so
Speaker 1: many cases in California or is it some sort of
Speaker 1: Texas and the Fifth Circuit versus California and the Ninth
Speaker 1: Circuit thing? What's going on there?
Speaker 2: They haven't said why. It might just be the nature
Speaker 2: of the evidence they've got to hand. One of the
Speaker 2: things in the lawsuit that's quite interesting is that, you know,
Speaker 2: Exon's petition to the Supreme Court gives some examples of
Speaker 2: what it says officials stifling the speech of the Texas
Speaker 2: Energy Center. So, for instance, the Oakland City attorney Barbara
Speaker 2: Parker in twenty seventeen, and this is a quote from
Speaker 2: Excell's law So issued a press release seeking to stifle
Speaker 2: the speech of the Texas energy sector or actually likes
Speaker 2: to refer to it big oil. The press release said,
Speaker 2: it is past time to debate or question the reality
Speaker 2: of global warming. Just like big tobacco, Big oil knew
Speaker 2: the truth long ago and peedled miss him from to
Speaker 2: con their customers and the American public. Now, Eixon is
Speaker 2: arguing to the Sex of Supreme Court that that statement
Speaker 2: that she made essentially stifling Exon's right to pedal in
Speaker 2: misinformation essentially, and it does a similar thing with the
Speaker 2: San Francisco City Attorney Dennis Herrera, he accused the fossil
Speaker 2: fuel companies in general of launching a misinformation campaign to
Speaker 2: deny and discredit the reality of global heating, and he
Speaker 2: pledged to hold them to account. And Exon said, by
Speaker 2: accusing them or accusing the company of a disinformation campaign,
Speaker 2: it was intruding. He was intruding on Exon's free speech.
Speaker 2: And they have been similar It picked up on similar
Speaker 2: statements from other California officials, so that maybe they may
Speaker 2: simply have chosen California, perhaps because as that's where the
Speaker 2: majority of cases against Xon are, or because of these
Speaker 2: particular kinds of statements. I think one of the interesting
Speaker 2: things is that Exon's taking a step further because they
Speaker 2: go after the lawyer representing these municipalities, and it's an
Speaker 2: environmental lawyer in Boston, a guy called Matthew.
Speaker 1: Yes, Matt Power. That's super interesting that they've focused in
Speaker 1: on him. I mean, they have really targeted him for
Speaker 1: a long time in general, but you know, he really
Speaker 1: is the guy who came up with the whole idea
Speaker 1: of climate liability more than a decade ago, and he's
Speaker 1: tried multiple different strategies and refined his approach over the years.
Speaker 1: But I mean, there's nothing wrong with any of that.
Speaker 1: That's not nefarious. It's how legal strategy evolves in general.
Speaker 2: The interesting thing about that to me is that they
Speaker 2: are pursuing him too, because they describe him as quote
Speaker 2: an outspoken advocate of misusing government power to limit free speech,
Speaker 2: which is quite interesting. Now. One of the things about
Speaker 2: them going after him is that they are trying to
Speaker 2: get hold of his communications with those individual California municipalities
Speaker 2: as part of the raw Twoho two deposition process. They
Speaker 2: want to get hold of those documents, so then that
Speaker 2: infringes on his ability to actually talk to his own
Speaker 2: clients about these issues because they could become part of
Speaker 2: the record. So now all of this, of course, we
Speaker 2: as we all know, isn't really about excellence free speech
Speaker 2: at all. It's about harassing its critics and intimidating them.
Speaker 2: And you know, I think that going after your after
Speaker 2: the lawyer concerned is pretty strong evidence that it's more
Speaker 2: than just your average lawsuit.
Speaker 1: Yeah, and there again, recruiting clients and talking to other lawyers,
Speaker 1: none of that is out of the ordinary or illegal
Speaker 1: in any way.
Speaker 2: Well, I mean, you only have to watch the television,
Speaker 2: don't you to see that all the ads for have
Speaker 2: you had, you know, for instance, a reaction to a
Speaker 2: particular kind of drug or out, they're recruiting people for
Speaker 2: you know, class action laws. And so yeah, it does
Speaker 2: seem to be pretty standard practice to go around and
Speaker 2: find find clients for a particular legal action.
Speaker 1: Wait, so that makes me wonder too if this is
Speaker 1: somewhat of a preemptive strike on Exxon's part. I know,
Speaker 1: there's been a lot of talk in the legal rum
Speaker 1: about the potential for using racketeering laws RICO to allege
Speaker 1: conspiracy against the oil companies and then, of course, the
Speaker 1: oil companies themselves have used RICO to go after their critics.
Speaker 1: Have you heard anyone talking about that with respect to
Speaker 1: this whole thing.
Speaker 2: Yes. So there's a famous RECO case against the tobacco industry.
Speaker 2: It was a civil case, not a criminal case, but
Speaker 2: a famous case brought by the federal government. The federal
Speaker 2: government won, and that was partly the basis of the
Speaker 2: enormous settlement that then came down the line against big tobacco.
Speaker 2: And one of the striking things about the judgment in
Speaker 2: that Reco case was that the judge talked about the
Speaker 2: conspiracies that have been put together between the tobacco industry,
Speaker 2: between the cigarette companies themselves and their lawyers actually as
Speaker 2: it happened, and how the lawyers had was said that
Speaker 2: they had dishonored an honorable profession through their conduct to
Speaker 2: help the tobacco companies cover up the dangers of smoking
Speaker 2: that you know, cigarettes caused cancer. And the evidence that
Speaker 2: came out in that case was very damning for Big tobacco.
Speaker 2: It showed not only that they knew, but actually that
Speaker 2: they were trying to recruit a younger generation of smokers
Speaker 2: to replace the older generation. That was dying from cancer,
Speaker 2: even when they knew the dangers, and that was very
Speaker 2: damaging for them in court. And I think that this
Speaker 2: is the big This is the fear of the oil industry.
Speaker 2: Part is that they will end up with something like
Speaker 2: a civil reco case where everything will be laid bare
Speaker 2: and they will end up paying so very much. That
Speaker 2: is very much part of the conversation.
Speaker 1: I wonder if part of this isn't being driven by
Speaker 1: the fact that they're more and more fraud complaints starting
Speaker 1: to pile up to because I don't know. I mean,
Speaker 1: liability is a tough one. You know, the burden of
Speaker 1: proof is high. You have to show that this particular
Speaker 1: action caused that damage and that damage cost this much.
Speaker 1: But with fraud, you know they're using state consumer protection
Speaker 1: laws and it's a lot more straightforward. It's sort of
Speaker 1: just did this company's advertisements and public statements mislead the
Speaker 1: public about something? And there's a fair bit of evidence
Speaker 1: that that, yes, that was happening. I just wonder if,
Speaker 1: especially because the Massachusetts fraud case, which only names Exonmobile,
Speaker 1: is really looking like it's going to move forward and
Speaker 1: actually get into discovery.
Speaker 2: Well, and I think it's that discovery process that scares
Speaker 2: them as much as anything really, because you know, again
Speaker 2: back to the tobacco cases, it was the information that
Speaker 2: came out in the discovery cases that ultimately did for
Speaker 2: the tobacco industry rather than juries deciding, you know, because
Speaker 2: that discovery case stuff, it shifted public opinion and then
Speaker 2: it shifted political opinion, and I would imagine that the
Speaker 2: oil industry is very, very worried about the consequences of that.
Speaker 2: It's also worth bearing in mind that quite a lot
Speaker 2: of the lawyers that represented the tobacco industry are now
Speaker 2: representing the oil industry. I think Excellon is quite scared,
Speaker 2: and maybe this is all just desperation, you know, anything
Speaker 2: to try and slow things up and to harass your
Speaker 2: opponents and all the rest, because they don't really have
Speaker 2: a strategy, do they. And they've clearly decided, unlike the
Speaker 2: European oil companies, not even to try and bargain with
Speaker 2: their critics.
Speaker 1: That's it for this time. Big thanks to Chris mcgrill
Speaker 1: for joining us. I will stick a link to his
Speaker 1: story in the show notes. He'll be continuing to follow that,
Speaker 1: so make sure that you're following him and his reporting
Speaker 1: over at the Guardian, and thanks for listening. As always,
Speaker 1: we will see you next week. Drilled is an original,
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Speaker 1: hosted by me Amy Westervelt. Our producer is Jules Bradley,
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Speaker 1: is by Martin Wissenberg. Our cover art is by Matt Fleming.
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