Lawyer: ExxonMobil made 'notable point' in petition regarding bond offerings in climate change suit

By John Breslin | Jan 24, 2018

FORT WORTH, Texas – ExxonMobil, in a legal filing against named Californian municipal officials, made "a very notable point" when it flagged up the failure to mention climate change dangers in bond offerings by cities and counties, according to a leading environmental law export.

The oil company filed a petition Jan. 8 in the Tarrant County District Court of Texas for depositions against 16 named officials from various California municipalities in a move that likely signals it wants to move forward with a civil conspiracy claim against them.

In lawsuits against ExxonMobil, each of the municipalities "warned that imminent sea level rise presented a substantial threat to its jurisdiction and laid blame for this purported injury at the feet of energy companies," the petition states.

"Notwithstanding their claims of imminent, allegedly near-certain harm, none of the municipalities disclosed to investors such risks in their respective bond offerings, which collectively netted over $8 billion for these local governments over the last 27 years," it continued in its Jan. 8 filing.

"It made a very notable point," Tristan R. Brown, a lawyer and assistant professor, SUNY Syracuse, College of Environmental Science and Forestry, told the Northern California Record. "A lot of them are saying one thing in bond offerings. It is a big risk."

Brown said this whole legal tangle is unprecedented, both the initial lawsuits and the oil company's response.

But it and other actions taken by state attorneys general has its genesis in the failure to pass any bipartisan cap-and-trade legislation, or other policies, beginning about a decade ago, Brown argued, adding coastal communities particularly could have expected funding under government programs.

Essentially, the lawsuits are a response to a lack of a climate change policy, which many coastal communities do believe will have a significant impact in the next several decades, Brown said.

"They believe they will need a source of revenue to pay for infrastructure, including, for example, sea walls around Manhattan," Brown said.

While stopping short of stating this is a type of extortion, the lawsuits are an attempt to raise a source of capital and that is why they have decided to go forward with them, he added.

While this is all uncharted legal territory, Brown believes the plaintiffs are going to have an extremely hard time under any normal litigation as they have to establish specific damages, and they have to show Exxon and other individual companies are responsible, he added.

"I have hard time seeing it succeed (and) would be very surprised," Brown said, adding that he does not believe the oil companies are going to fold and settle. 

In its filing, lawyers for ExxonMobil stated, "Through abusive law enforcement tactics and litigation in California, respondents and others are attempting to stifle ExxonMobil’s exercise, in Texas, of its First Amendment right to participate in the national dialogue about climate change and climate policy."

"It is repugnant that oil companies might sue public servants personally in an attempt to intimidate them from protecting their communities and environment,” said John Beiers, county counsel for San Mateo County, stated in a story published by SFGate. “We will not be intimidated.”

John Coté, spokesman for San Francisco City Attorney Dennis Herrera, said the filing against the officials it’s “exactly what you would expect from a company like Exxon," SFGate also reported.

San Francisco, Oakland, San Mateo County and other California local governments made specific claims about how climate change threatened their regions.

Oakland, for example, said it could have 66 inches of sea level rise by 2100, Exxon stated in the petition. San Mateo County alleged it has a 93 percent chance of experiencing a devastating flood within the next three decades. San Francisco alleged climate change has already caused flooding in low-lying areas, the petition states.

Anadarko Petroleum Corp., Apache Corp., BP, Citgo Petroleum, ConocoPhillips, Marathon Oil Corp., Occidental Petroleum Corp. are all been sued along with ExxonMobil.

As reported previously by the Northern California Record, ExxonMobil further claims in its filing that a 2012 climate change conference in La Jolla, California, was designed to impose a uniform perspective on climate policy that has resulted in abuses of government power.

As ExxonMobil filed its latest response to action from public officials, it described strategies that developed from the conference as the "La Jolla playbook," from which participants now advocate for government investigations and litigation against energy companies "to 'pressure' the targets to provide 'support for legislative and regulatory responses to global warming,'" the petition states.

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