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