By Andy May
Update: Unfortunately, the Texas Supreme Court declined to review the court of appeals decision that the California governments do not have sufficient minimum contacts with Texas. This means the court cannot intervene in the case. However, the lower appeals court did say, according to the Texas Civil Justice League:
“The court of appeals described in great detail Pawa’s involvement in recruiting plaintiffs for the lawsuit, providing an anatomy of an orchestrated and premediated lawfare campaign. … TCJL’s brief called out this outrageous behavior for what it is: a concerted effort to use the courts to effect policy changes that they cannot achieve by the appropriate constitutional methods: the ballot box and the legislative process.”
I’ve written before about the ongoing war being waged against ExxonMobil by far-left greedy tobacco lawyers like Mathew Pawa and environmental zealots like Naomi Oreskes and the leaders of the far-left Union of Concerned Scientists (UCS). You can find these posts here, here, here, and here.
The tobacco lawsuits worked because tobacco does cause cancer, and cancer has a measurable effect on people and governments due to the additional medical costs and premature deaths it causes. To make matters worse, the tobacco companies withheld information they had on the dangers of smoking from the public. These two facts led to Matthew Pawa and the other tobacco lawyers winning their cases.
The idea that Pawa, cities in California, and UCS have used to sue ExxonMobil is based on their claim that ExxonMobil knew about the dangers of climate change and withheld this information from the public and should pay as a result. But as I explain in my last book (pages 158-170), ExxonMobil published all their climate studies and had employees on every side of the issue who engaged in lively debates about climate change, its possible dangers, and its possible human origins. Further, unlike tobacco, no significant negative effects of recent climate changes (man-made or otherwise) have been observed or measured. The whole debate is over who is projecting the future more accurately, the alarmists or the skeptics, and so far, no one is winning that argument, everyone has been wrong so far.
So, are these spurious lawsuits accusing ExxonMobil of damage that does not exist, causing measurable harm to ExxonMobil and the great state of Texas? ExxonMobil is countersuing the cities and the tobacco lawyers, so we will find out! The lawsuit is before the Supreme Court of Texas and the petition is here. It claims that the lawsuits harmed and violated the rights of Texas and Texans, as well as ExxonMobil.
The lawsuit specifically says the tort lawsuits, by Pawa and several California cities, including San Francisco, targeted the free speech rights of ExxonMobil and its executives, as well as ExxonMobil publications like their famous Outlook for Energy annual report.
It is interesting that while cities claimed that the dangers of climate change are certain in their lawsuits, they claimed in their municipal bond offerings that the dangers of climate change were uncertain. ExxonMobil requested discovery and commenced a Rule 202 proceeding to investigate claims and preserve evidence. ExxonMobil is supported in these suits by Governor Abbott of Texas, the Texas Oil and Gas Association, and Texans for Lawsuit Reform.
Can ExxonMobil sue a California city in Texas? Governor Abbott says the following in his letter to the court:
“[T]he energy industry is vital to economic growth in Texas, employing hundreds of thousands of Texans and contributing billions of dollars a year in taxes and royalties. … Petitioner is an oil-and-gas company headquartered in Texas. Respondents are California officials and local governments, plus a Massachusetts lawyer, who are allegedly using tort lawsuits in California courts as a pretext to suppress the speech of eighteen Texas-based energy companies on the subject of climate and energy policies. By engaging in such ‘lawfare,’ respondents have flouted ‘principles of state sovereignty and comity [dictating] that a State may not impose economic sanctions on violators of its laws with the intent of changing the tortfeasors’ lawful conduct in other States.’* More importantly, for present purposes, they have subjected themselves to the jurisdiction of Texas courts. When out-of-state officials try to project their power across our border, as respondents have done by broadly targeting the speech of an industry crucial to Texas, they cannot use personal jurisdiction to scamper out of our courts and retreat across state lines.”
This is going to be fun to watch.
I’m an ex-employee of Exxon, an ExxonMobil stockholder, and terribly biased in this fight. So, sue me!
*BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 572 (1996).