It was billed as “the trial of the century.” A Big Oil company — indeed, one of the biggest — would finally be held accountable for climate damage. At least, that’s what New York’s attorney general promised when the case finally came to court.
Four decades worth of internal records. Four million pages of internal records, deliberations, discussions, investment models and executive exchanges. Press conferences that involved multiple states’ attorneys general promising retribution.
But after a three-week trial that featured a former U.S. secretary of state on the witness stand, the prosecutor’s promises fizzled as New York Supreme Court Justice Barry Ostrager ruled Tuesday that ExxonMobil had not misled investors about the impact of climate change regulations and had not broken any New York laws.
“The Court finds that the Office of the Attorney General has failed to establish by a preponderance of the evidence that ExxonMobil either violated the Martin Act or Executive Law,” Ostrager wrote in his decision.
The case originated with former New York Attorney General Eric Schneiderman, whose communications with Bloomberg Philanthropies were the subject of pre-trial rulings. Attorneys for ExxonMobil wanted access to internal discussions with activists who want to use the Tobacco Master Settlement Agreement as a model for going after energy companies.
Bloomberg Philanthropies has a program in which it will cover the costs for lawyers working inside state attorneys’ general offices to focus on environmental lawsuits. The Manufacturers’ Accountability Project, ClimateWatch.org and other groups have criticized this, saying that it sidesteps public accountability and unnecessarily polarizes legal work. At least seven states, including New York, participate in the program, which the Wall Street Journal editorialized as “ethically dubious.”
Current New York Attorney General Letitia James inherited the ExxonMobil lawsuit from Schneiderman, but her case unraveled over the course of the trial. She announced during her closing argument that the state would withdraw two charges and proceed solely on the allegation that ExxonMobil intentionally misled investors. The company was charged under the Martin Act, which carries a low burden of proof of merely misrepresenting information to investors.
“Not a single witness supported by the Office of the Attorney General’s apparent contention that the partial alignment was motivated by concern about a lack of clarity [in reports],” Ostrager — a Gov. Andrew Cuomo appointee — wrote in his decision. “No reasonable investor during this period from 2013-2016 would make investment decisions based on speculative assumptions of costs that may be incurred 20+ or 30+ years in the future with respect to unidentified future projects.”
Despite Ostrager ruling that the ExxonMobil employees who testified “were uniformly committed to rigorously discharging their duties in the most comprehensive and meticulous manner possible,” James issued a defiant statement Tuesday.
“For the first time in history, ExxonMobil was compelled to answer publicly for their internal decisions that misled investors,” she stated. “The oil giant never took seriously the severe economic impact that climate change regulations would have on the company, contrary to what they were telling the public. Throughout this case, we laid out how ExxonMobil made materially false, misleading, and confusing representations to the American people about the company’s response to climate change regulations.”
Her statement is at odds with Ostrager, who said, “There was not a single ExxonMobil employee whose testimony the Court found to be anything other than truthful.”
ExxonMobil rejected that claim. “The court agreed that the attorney general failed to make a case, even with the extremely low threshold of the Martin Act in its favor,” a spokesman said.
New York’s loss could complicate other lawsuits.
Massachusetts Attorney General Maura Healey filed a similar suit against ExxonMobil soon after the New York trial began. A spokeswoman for her office said that Massachusetts laws differ from New York’s so the cases are separate.
“We were the first state to challenge Exxon’s ongoing campaign to mislead Massachusetts consumers and investors about the climate dangers caused by its fossil fuel products, and we will continue our work to hold the company accountable for its misrepresentations,” said spokeswoman Chloe Gotsis.
Massachusetts alleges that ExxonMobil has misrepresented and failed to disclose material facts regarding systemic climate change risks; has deceived Massachusetts consumers by misrepresenting the environmental benefits of using its Synergy and “Green” Mobil 1 products and failing to disclose the risks of climate change caused by fossil fuel products; has deceived Massachusetts consumers by promoting false and misleading greenwashing campaigns; and has made materially false and misleading statements to Massachusetts investors regarding its use of a proxy cost of carbon.
Environmentalists and activists remain committed to holding ExxonMobil accountable.
“ExxonMobil is not off the hook,” said Ken Kimmell, president of the Union of Concerned Scientists. “As climate impacts worsen and become costlier, more frontline communities, political leaders and investors will demand accountability from the companies that created this crisis.
“While Judge Ostrager was writing his opinion in this case, the Commission on Human Rights in the Philippines ruled that fossil fuel companies could be found legally liable for climate harms,” Kimmell said. “… But, like the once untouchable tobacco and pharmaceutical industries, the fossil fuel industry’s day of reckoning will come, and ExxonMobil will face consequences for distorting science and deceiving the public about the dangers of its product.”