In Refusing to Join #ExxonKnew, Is California AG Learning from New York’s Failure?

Every time climate activists think they’re gaining steam in their attacks on ExxonMobil, another wheel falls off their campaign.

Last week, New York Attorney General Eric Schneiderman announced that he was once again shifting his justification for probing the oil and natural gas company. An investigation that began with a stated concern over whether ExxonMobil downplayed the risks of climate change was now accusing the company of inflating those same risks.

Schneiderman’s multi-year investigation has thus far yielded nothing to support his initial public accusations about fraud or misleading investors. The investigation is also the only material remainder of the #ExxonKnew campaign, which was sparked in the fall of 2015 when environmental activists posing as journalists published cherry-picked stories about ExxonMobil’s climate research. Reports from the website InsideClimate News suggested the energy company “knew” about climate change in the 1970s, but then deliberately funded a campaign to deny it existed

The New York AG’s missteps and failures could explain why California Attorney General Xavier Becerra has thus far refused to join the #ExxonKnew campaign, despite loud protests from anti-Exxon groups.

‘Quietly Faded’

At the campaign’s peak, three attorneys general – from New York, Massachusetts, and the Virgin Islands – had open investigations into ExxonMobil’s research and policy positions on climate change.

But in a major setback that would foreshadow the campaign’s unraveling, Claude Walker, the attorney general for the Virgin Islands, announced he had withdrawn his subpoena after his office and ExxonMobil came to an agreement. The decision to drop the subpoena also came after a non-profit that Walker had insisted on including in his probe asked the court to fine Walker’s office and pay attorneys’ fees.

Public interest in the campaign faded quickly after that. Having found nothing after nearly a year of reviewing documents, New York’s AG decided to shift his focus in August 2016 by examining what the company was saying about climate change and “the future.”

The shift in emphasis signaled Schneiderman’s rationale for opening the investigation had yielded none of the damning evidence that he hoped to find.

The campaign continued to unravel when David Kaiser and Lee Wasserman from the Rockefeller Family Fund finally admitted that they funded the “journalists” to develop the anti-Exxon narrative that sparked the investigations in the first place. Kaiser and Wasserman also admitted to pressuring Schneiderman to launch an investigation.

By January of this year, Bloomberg News reported that the campaign had “quietly faded.”

Schneiderman’s latest announcement about ExxonMobil’s price forecasts was no doubt an attempt to revive #ExxonKnew, though the New York AG was likely not expecting the public to notice he had changed the justification for his investigation yet again. ExxonMobil, meanwhile, accused Schneiderman of “inflammatory, reckless, and false allegations” that were “prepared for the press” instead of the courts.

California Dreamin’

Previous missteps notwithstanding, #ExxonKnew activists have been pressuring California’s attorney general, Xavier Becerra, to launch his own investigation. A petition from CREDO – which is also a sponsor of InsideClimate News – reads in part: “Tell Attorney General Becerra: Join the investigation into Exxon’s possible climate fraud.”

But thus far, Becerra has stayed away from the anti-Exxon campaign. It’s unclear why California has refused to open an investigation, since the attorney general’s office has declined to comment. But the mountain of bad press and legal filings against Schneiderman could certainly be serving as a deterrent.

Last year, the Competitive Enterprise Institute – a free market think tank in Washington, DC – sued Schneiderman for refusing to comply with the state’s freedom of information law (FOIL). The court ruled in favor of CEI and accused Schneiderman’s office of a “complete failure of its obligation.” Earlier this year the court also largely granted CEI’s fee petition to recover its costs from the lawsuit.

Statements from other attorneys general that have distanced themselves from Eric Schneiderman and #ExxonKnew may also provide some insight.

In the fall of 2016, a handful of attorneys general formed a group called AGs United for Clean Power, which launched with a press conference featuring former Vice President Al Gore. The members developed internally what they called a Common Interest Agreement, which was an informal pact to refuse to disclose information requested under public records laws.

The Delaware Attorney General’s office initially agreed to sign on to the agreement. But after the group began discussing a public records request from Vermont, Delaware Deputy Attorney General Ralph Durstein announced an abrupt exit. “Our AG has determined that Delaware will not be involved in this worthy effort, and thus will not be signing the common interest agreement,” Durstein wrote.

In the days leading up to the press conference with Al Gore, the AGs drafted a release announcing the event and the group’s purpose. The draft declared that the “states agreed to work together on key investigations, such as any ongoing or any potential investigations into whether fossil fuel companies misled investors and the public on the impact of climate change on their businesses.” The draft went on to mention ExxonMobil by name.

In reviewing the draft, Michael Kelly, director of communications for the Virginia attorney general’s office, wrote that the language “caught my eye,” adding that he had understood “there was not going to be proactive mention of that.”

“At this point, we don’t know what we’re going to agree to,” Kelly wrote, “or really what Virginia’s laws and our authorities could allow us to do, so it makes me nervous to say we’ve ‘agreed to work together on key investigations.’” Kelly asked the group if it could “dial that back one notch.”

Another internal email from the Iowa attorney general’s office expressed frustration that they “may be locked in on this and have to ride it through.” Iowa’s deputy attorney general, Tam Ormiston, even referred to New York AG Schneiderman as a “wild card.”

Curiously, when InsideClimate News submitted its stories on Exxon’s climate research to the Pulitzer committee in January 2016, it declared that news reports “confirm the California attorney general is also investigating Exxon,” even though the attorney general’s office declined any comment on the issue.

Since then, InsideClimate News has quietly retreated from what it told the Pulitzer committee, and now admits “only three AGs launched investigations,” which does not include California.

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