Article Sept. 6, 2018
Understanding the #ExxonKnew controversy
Funders of the “#ExxonKnew” campaign have placed “pay to play” news stories, released flawed academic reports and coordinated with politicians to launch investigations.
Article Sept. 6, 2018
Understanding the #ExxonKnew controversy
What is #ExxonKnew?
#ExxonKnew is an orchestrated campaign that seeks to delegitimize ExxonMobil and misinterpret our climate change position and research. For the past several years, activist organizations have sought to punish ExxonMobil for voicing its opinion on climate policy, even though ExxonMobil supports policies to limit climate change.
What organizations were involved?
The #ExxonKnew campaign is the outgrowth of a plan devised by environmental activists and class-action lawyers at a conference in La Jolla, California in 2012, as activists themselves confirmed in The New York Times. The Climate Accountability Institute (CAI) and the Union of Concerned Scientists (UCS) held this workshop to brainstorm how they could use litigation to gain access to internal energy industry documents on climate change, in hopes of creating scandal that would force a settlement similar in scope to the one reached with Big Tobacco. They put their strategy into a report called, “Establishing Accountability for Climate Change Damages: Lessons from Tobacco Control.”
How was the campaign funded?
The #ExxonKnew campaign is extremely well-funded and includes paid media coverage, legal support, activist groups, and academic research. Foundations providing financial support for the campaign include: Rockefeller Brothers Fund, Rockefeller Family Fund, Rockefeller Philanthropy, Open Society Foundations, Energy Foundation, V. Kann Rasmussen Foundation, Grantham Foundation for the Protection of the Environment, and Mertz Gilmore Foundation.
What was the outcome?
In 2015, environmental activists and class-action lawyers succeeded in securing an investigation of ExxonMobil by New York Attorney General Eric Schneiderman, as originally envisioned in the La Jolla report. The investigation was widely founded on claims that scientists and researchers from ExxonMobil knew that man-made emissions caused global climate change in the 1970s and 1980s, but that the company kept those findings secret. Contrary to their claims, ExxonMobil's understanding of climate change has tracked the scientific consensus on climate change, and its research on the issue has been published in publicly available peer-reviewed journals.
Timeline of #ExxonKnew
This coordinated campaign dates back to a 2012 meeting of environmental activists and class-action lawyers in La Jolla, CA.
June 14-15, 2012: Rockefeller-funded organizations hold conference in La Jolla, California to brainstorm how they could use racketeering laws against ExxonMobil.
The Union of Concerned Scientists (UCS) and the Climate Accountability Institute (CAI) organize a conference for activists such as Naomi Oreskes (author of Merchants of Doubt), Peter Frumhoff of the Union of Concerned Scientists and attorney Matt Pawa, who served on the board of CAI.
Editorial boards and legal experts denounce #ExxonKnew campaign
Leading voices from across the country have denounced the #ExxonKnew campaign. From the Wall Street Journal to the Washington Post, editorial boards have expressed first amendment concerns.
Dallas Morning News
Exxon says there's a conspiracy against the company among environmental activists, and it's probably right
“The narrative of an organic movement of environmental defenders taking on Big Oil has been depicted by some as a David-versus-Goliath showdown. But as more and more facts emerge, it is becoming increasingly clear that Exxon has been unfairly maligned by a group of activists and lawyers driven by politics but bereft of facts.” (Aug. 3, 2018)
Wall Street Journal
AG Campaign is an 'Attempt to Stamp Out All Disagreement on Global-Warming' Policy
“Even with the fearsome power of the Martin Act, this investigation appears built for media consumption more than courtroom success. There are no “facts” about the eventual extent and impact of climate change that Exxon or anyone else can hide, because inside or outside the company there are only estimates based largely on computer models.” (Nov. 8, 2015)
Investigation is 'Dangerous Arrogation of Power'
“Much as one may sympathize with Schneiderman's desire to encourage stronger action on climate change, this is not the way to go about it…Engaging in scientific research and public advocacy shouldn't be crimes in a free country. Using the criminal law to shame and encumber companies that do so is a dangerous arrogation of power.” (Nov. 10, 2015)
Exxon 'Didn't Commit a Crime,' science depends on allowing criticism
“Legitimate scientific inquiry depends on allowing strong, even unfair, criticism of the claims that scientists make. As the Exxon investigations show, respecting that principle will not lead to positive outcomes in all cases. But it nevertheless demands that the government leave a sizable buffer zone between irresponsible claims and claims it believes may be criminally fraudulent.” (Nov. 14, 2015)
ExxonMobil has a right to its opinion
"Schneiderman's push is based on an extraordinarily powerful New York law known as the Martin Act. It only requires prosecutors to prove a factual error — not fraudulent intent. This is the type of law that should be used with great caution for critical public purposes. There lies the irony in using a law designed to protect investors to go after the oil giant. The investigation won't push Exxon to reevaluate its public stance on climate change so future investors won't be misled. The company did that years ago. And the most likely effect of a costly legal examination of Exxon's past statements is a lower stock price, hurting current investors." (Nov. 22, 2015)
Legal basis for AG investigation is flimsy, free speech implications are alarming
"The investigations launched by the attorneys generals of some U.S. states and the Virgin Islands set a troubling precedent for other policy debates, and threaten to undermine the cause that they aim to support…The legal basis for these actions seems flimsy…Beyond that, the implications of the investigations for free speech on public policy issues are alarming." (April 24, 2016)
Healey should pull out of this foolish effort to basically try to regulate speech
"Exxon can hire squads of lawyers to defend every statement it ever made about its research (they already are challenging Healey in court). The issue is moot today. The company cooperates with several carbon-reduction programs, supports a tax on carbon dioxide emissions and long has discussed climate risks in required financial disclosures." (June 27, 2016)
New York Post
Schneiderman's new claim in Exxon probe is a 'ludicrous stretch'
"Attorney General Eric Schneiderman must have hit a wall with his Exxon climate-change probe, since he’s suddenly changed his target.… Schneiderman’s new tack will only continue to politicize scientific debate and reinforce New York’s image as anti-business. It’s time for him to put the public’s interests before his own desire to please enviro-radicals — and end this probe for good." (Aug. 21, 2016)
Merritt B. Fox
Professor, Columbia University School of Law
“The Martin Act grants the attorney general extraordinary powers to subpoena private documents without either obtaining a court order, which is required in most ordinary New York criminal proceedings, or the filing of a complaint, which is required in an ordinary civil action and is subject to court review. The Exxon subpoena is an abuse of these extraordinary powers […] At the extreme, the Martin Act subpoena power could be used to bully corporations into any kind of desired reform under the guise of a securities investigation.” (Aug. 15, 2016)
Professor, Columbia University
“Mr. Schneiderman’s subpoena to Exxon Mobil thus stands apart. His ability to demand information in this way is a quintessential case of the fox guarding the henhouse. The threats to privacy in our society are not merely technological; they also are legal. In addition to electronic surveillance, nonjudicial subpoenas allow government to examine private documents as if they were an open book. And as shown by Mr. Schneiderman, when attorneys general can issue such subpoenas, a valuable judicial power becomes a prosecutorial threat to liberty and due process.” (May 11, 2016)
Former Attorney General, State of New York
"I was proud to play a major role in holding tobacco companies responsible for the damage they caused and in setting America on a healthier path. We had a clear, convincing legal case and a noble cause. The same cannot be said for attorneys general involved in the current crusade […] The tobacco companies were deceivers. ExxonMobil has been open. But that doesn’t seem to matter to the politicized attorneys general pursuing the company. A chilling impact on public debate is not in our collective interest." (July 14, 2016)
Civil Liberties Attorney; Member, ACLU
“The Exxon investigation is “pure harassment [….] It is outrageous for any law enforcement official to be seeking to win this battle for minds by flexing law enforcement muscle and trying to shut up the other side.” (June 16, 2016)
Professor, State University of New York; Attorney
“In the interest of full disclosure, I should point out that I am in the camp that believes that climate change is occurring, and that it will ultimately impose tremendous costs on the global financial system as its impacts increase in magnitude […] That said, the Democratic coalition is pursuing a dangerous means of achieving its goal of reducing greenhouse gas emissions. Its unprecedented definition of fraud threatens to impose an undue and possibly unachievable regulatory burden on energy firms and their investors.” (June 21, 2016)
C. Boyden Gray
Former U.S. Ambassador to the EU; Former White House Counsel
"The decision to single out Exxon is especially ill-conceived, because when it comes to actual proposals for real legislative action on climate change, Exxon’s advocacy has been indistinguishable from some of the leading environmental organizations. The Sierra Club’s former chief climate counsel has recounted how he and ExxonMobil’s climate policy manager “found common ground when we realized that we actually agreed on the best approach to climate policy” — namely a revenue neutral carbon tax — hardly the strategy one would expect from a company dedicated to covering up climate science" (Feb. 11, 2016)
Elizabeth Price Foley
Constitutional Law Professor, Florida International University
“When the attorneys general used their prosecutorial power to investigate scientists because the scientists are not embracing an orthodox view of climate change or anything else — that is an abuse of prosecutorial power.” (Sept. 14, 2016)
"On the very day in March when more than a dozen state attorneys general accused Exxon-Mobil of "fraud" and "deceiving the American people" on climate change, New York's attorney general, who led that news conference, met secretly with environmental activist organizations to discuss how they could attack oil companies. Email records show the New York AG's office urging activists "to not confirm that you attended or otherwise discuss the event" if reporters come calling. Exxon-Mobil won the first round in its fight against these coordinated state attorneys general in getting the truth-ignoring ringleader of this assault, who hails from the U.S. Virgin Islands, to withdraw his unreasonable subpoena. It should continue to take the fight to the other states that are coordinating with the green activists." (Sept. 16, 2016)
Columnist, Wall Street Journal
"The first thing to know about the crusade against Exxon by state attorneys general is that it isn’t about the law. The second thing to know is that it isn’t even about Exxon. What these liberal prosecutors really want is to shut down a universe of their most-hated ideological opponents… The goal of the Exxon probe isn’t to protect consumers or help the environment. It’s a message: Oppose us, and we will marshal our terrifying government powers to intimidate and threaten you, to force you to spend millions defending yourself, to eat up the time you’d otherwise use speaking out." (June 16, 2016)
Holman Jenkins Jr.
Columnist, Wall Street Journal
"The premise of the assault on Exxon, the Journal, other campaigns against “deniers,” is worse than foolish. The climate crowd has turned to persecuting critics as a substitute for meaningful climate action because, as President Obama has acutely observed, voters won’t support their efforts to jack up energy prices." (June 28, 2016)
Columnist, Washington Post
"Progressivism’s determination to regulate thought by regulating speech is apparent in the campaign by 16 states’ attorneys general and those of the District of Columbia and the Virgin Islands, none Republican, to criminalize skepticism about the supposedly “settled” conclusions of climate science […] The attorney general of the Virgin Islands accuses ExxonMobil of criminal misrepresentation regarding climate change. This, even though before the U.S. government in 2009 first issued an endangerment finding regarding greenhouse gases, ExxonMobil favored a carbon tax to mitigate climate consequences of those gases." (April 22, 2016)
Columnist, New York Post
"The Columbia project serves as a warning: A premier university hires an activist to run its J-school. It partners with an activist online Web site to target an energy company previously savaged by its new dean in his book. The effort is funded by foundations whose role as fossil-fuel critics was hidden from readers. In the end, the journalists themselves wind up playing defense." (March 1, 2016)
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