One Year after Standing by Al Gore, New York AG Has Little to Show for #ExxonKnew Campaign
On March 29, 2016, a coalition of nearly 20 state attorneys general held a press conference to announce a joint campaign to investigate and prosecute ExxonMobil, based on the spurious accusation that the company hid its scientific findings on climate change. The AGs invited former Vice President and climate change activist Al Gore to present the case at the now infamous “AGs United for Clean Power” event held in New York.
One year later, the campaign is in disarray. Internal divisions have forced some of the AGs to focus on other tasks, if not abandon the effort altogether. Emails obtained through freedom of information requests have exposed how the effort was part of a political effort by anti-fossil fuel groups and wealthy foundations. Contrary to repeated claims by the Columbia School of Journalism and InsideClimate News about “editorial independence,” the financial backers of the reports used as an impetus for the investigation recently admitted they got what they paid for.
As the dwindling case stands today, all but two of the original “Green 20” have run for the hills, with only New York’s Eric Schneiderman and Massachusetts’ Maura Healey carrying the torch for their wealthy donors and activist allies. Both have been subpoenaed (twice) by the U.S. House Science Committee to answer for their attempts to criminalize dissent on public policy, with which they have refused to comply. Both also await a federal court decision on whether they can proceed with their investigations.
Undeterred, Schneiderman recently tried to revive the failing campaign by revealing former ExxonMobil CEO Rex Tillerson had used a secondary email address while serving at the helm of America’s largest oil and natural gas company. The company pointed out a curious component of Schneiderman’s tabloid journalism strategy: the New York Attorney General was aware of the issue as early as last year, because the company had already produced emails containing the email address for his office.
Below is an abridged account of how the #ExxonKnew campaign continued its downward spiral over the past year.
It Was Always About Politics
Schneiderman launched his own investigation two years ago after speaking to representatives of the Rockefeller Family Fund, the leading sponsors of the #ExxonKnew campaign. After getting his marching orders from wealthy liberal donors, Schneiderman began pulling together his team of Democratic AGs with the goal of legitimizing his case.
The other AGs, though they shared Schneiderman’s positions on climate policy, saw through his charade and began planning their hasty exits from his witch-hunt as soon as it began. The Iowa AG’s office called Schneiderman a “wild card” and tried to get out of attending the Al Gore press conference. Ultimately, the Iowa AG’s team decided they would have to “ride it through” before refusing to sign the coalition’s Common Interest Agreement, which spelled out a strategy for refusing to comply with public records request about the campaign.
The Virginia AG’s office, meanwhile, was “nervous” about joining the coalition and asked Schneiderman’s team to “dial that back one notch,” referring to language in the release for the Al Gore press conference. The Delaware AG’s office initially agreed to sign the Common Interest Agreement before suddenly pulling out at the last minute.
Numerous legal experts of all disciplines called out Schneiderman and his allies. Elizabeth Price Foley, a constitutional law professor at Florida International University College of Law, testified with a panel of other legal experts before the U.S. House Science Committee, calling certain procedures of the investigation “an abuse of prosecutorial power.” Another expert, Professor Jonathan Turley of George Washington University Law School, said the AGs’ “arguments go too far” and “what they have done contravenes academic freedom and free speech.”
Indeed, Schneiderman’s and Healey’s allies even admit their investigation is pure politics. Former Maryland AG Douglas Gansler spoke at a Center for American Progress event examining the AG investigation last year, telling the crowd,
“The idea that AGs are politically motivated is an old one and a real one. Yes, they’re politically motivated in the sense that they are part of the political process; they have to run for office, they have to do what their constituents ask for, the voters that put them in office ask for, and there is no bigger issue that they ought to be thinking about and working on than climate change. And yes, that’s politically motivated. It’s good politics.” (emphasis added)
The “Green 20” have also been harshly criticized by their peers, who noted in a 2016 letter,
“We think this effort by our colleagues to police the global warming debate through the power of the subpoena is a grave mistake… Actions indicating that one side of the climate change debate should fear prosecution chills speech in violation of a formerly bi-partisan First Amendment consensus.” (emphasis added)
In addition to pursuing a partisan “inquisition,” Schneiderman has used his investigation as a fundraising vehicle, citing the case while soliciting donations from billionaire eco-activist Tom Steyer on at least two occasions. Schneiderman’s antics prompted the New York Post to run an editorial titled, “Eric Schneiderman should announce he’s running for governor or quit his politicking.”
A court filing by ExxonMobil released earlier this month lays bare the extent to which Schneiderman’s campaign is purely political. Schneiderman broke the New York Supreme Court’s rules by running to the press and filing a complaint in court before attempting to settle a dispute with ExxonMobil outside of court:
“Such an approach does not serve the productive resolution of discovery disputes, but it does serve the NYAG’s well-established preference to litigate his case in the press rather than court.”
Investigating the Investigators
In a twist, one year after the Al Gore press conference, it is now the AGs who are being forced to fend off investigations from a federal court and the House Science Committee.
A federal judge in Texas believes the AGs may have acted in “bad faith” when pursuing their investigation of Exxon and has issued a broad discovery order to determine whether “bias or prejudgment” influenced the AGs’ investigations. The discovery order has turned the tables on the AGs, allowing ExxonMobil to examine their internal documents which may reveal the extent of their collusion with environmental activist groups.
Tellingly, the judge cited the Al Gore press conference as the basis for his suspicion that the investigations of Exxon are politically motivated. When Healey’s lawyers tried to argue that her case wasn’t political, the judge shot back: “like Al Gore wasn’t frickin’ involved!”
Congress is also investigating the AGs, with the House Science Committee issuing subpoenas to the AGs last July and again this February after they refused to comply last year. “Instead of pursuing real threats to America, these attorneys general are going down a path of partisan politics and attacking people who disagree with their conclusions about climate change,” Rep. Darin LaHood (R-IL), a former Assistant U.S. Attorney, said when the subpoenas were issued last year. “These individuals, scientists, and organizations have the right to conduct research, form their own opinions, and voice those opinions.”
Independent groups have also gotten involved, suing some of the AGs to force their compliance with public records laws. The Energy and Environment Legal Institute (E&E Legal) is in court this week with Schneiderman, seeking emails his office exchanged with #ExxonKnew campaigners and funders.
The Competitive Enterprise Institute (CEI), an early target of the AGs’ investigation, has also sued Schneiderman to get access to his documents related to the Exxon investigation. In November, a New York state judge ruled in favor of CEI, ordering Schneiderman to turn over the documents. The New York Post called it, “The disclosure that could end Eric Schneiderman’s career.”
Meanwhile, Schneiderman has continuously changed the rationale for his investigation in an endless search for something he can label as “fraud.” After rooting through millions of pages of Exxon’s documents and emails spanning some 40 years, he has yet to find any evidence of fraud. His “bombshell” finding thus far is former CEO Rex Tillerson’s alternate email address – a common practice among CEOs – and hardly the proof of climate fraud Schneiderman has so desperately sought.
One year after the high point in his crusade, Eric Schneiderman finds himself in dire straits. It was a campaign designed to prosecute an oil and natural gas company, but the company he hoped to demonize just saw its former CEO confirmed as U.S. Secretary of State. His friends and allies have abandoned him, and he is being investigated by a federal court and the U.S. Congress.
What a difference a year makes.