Eric Schneiderman got a break from his run of bad luck in his case against Exxon Mobil earlier this month when a state judge in New York refused even to look at records that might threaten his ability to move forward with the case.
New York's ambitious attorney general is trying to punish Exxon Mobil for allegedly hiding what it knew about climate change decades ago. The flimsy pretext of Schneiderman's case is that the company somehow deceived shareholders with this concealment, inflating predictions of future earnings and thus stock prices.
The Free Market Environmental Law Clinic sought, through New York's Freedom of Information Law, documents from Schneiderman's office that it says prove this prosecution of Exxon Mobil is politically motivated and coordinated with green activist Tom Steyer and the Rockefeller Funds, and other groups that support left-wing environmental causes.
Justice Marvin Mendez of the New York County Supreme (trial-level) court said he would not even review the records. The Free Market Environmental Law Clinic said it will appeal.
The Attorney General's Office log of emails it contends it doesn't have to turn over includes dozens of contacts between staffers and green activists. Many have "Following up on conversation re: company specific climate change information" in the subject line and "Law Enforcement" or "Intra/InterAgency and Law Enforcement" in the ‘exemption or privilege' column.
If it can be established Schneiderman essentially deputized green groups to form a politically motivated case, his federal suit against Exxon Mobil could be thrown out, and its countersuit against him for harassment would get a major boost.
Some think Schneiderman already has crossed the line. In March, the attorneys general of 11 states wrote a friend of the court brief in which they accused Schneiderman and Maura Healey, attorney general of Massachusetts, of "an unconstitutional abuse of investigative power" and "textbook viewpoint discrimination."
The House Science, Space and Technology Committee also has asked for communications between Schneiderman and green groups because "the Committee is concerned that these efforts to silence speech are based on political theater rather than legal or scientific arguments."
And Exxon Mobil seeks records for its lawsuit of contacts between Schneiderman's office and a group of green extremists who it says have been working since early 2016 to develop the legal strategy Schneiderman adopted in going after the company.
The group, which first met in the headquarters of Greenpeace and included prominent environmentalist Bill McKibbon of 360.org, had as its chief goal "to establish in the public's mind that Exxon is a corrupt institution that has pushed humanity (and all creation) to grave harm."
It sought to establish goals, such as "delegitimize them as a political actor;" to "force officials to disassociate themselves from Exxon, their money and their historical opposition to climate progress" and to "drive divestment from Exxon."
Then, in late March 2016, 17 state attorneys general and a variety of activists groups held a press event to announce formation of the Green 20, which sounded the group's themes in promising unprecedented cooperation among government officials and environmental activists to oppose those who question the government's view of climate science.
Al Gore was there and called for prosecuting energy companies for fraud. Before you know it, liberal state attorneys general were bringing such cases to court.
Lee Wasserman of the Rockefeller Family Foundation admitted later that he reached out to Schneiderman's office to discuss the "activities of specific companies regarding climate change," and that two years later RFF had specifically lobbied Schneiderman to launch this investigation.
"The Rockefeller Family Fund informed state attorneys general of our concern that Exxon Mobil seemed to have failed to disclose to investors the business risks of climate change. Wasserman said, "We were particularly encouraged by Schneiderman's interest in this matter…"
Today, most of the other AGs involved in the original investigative effort have quietly backed away from Schneiderman's and Healy's lawsuit. Schneiderman should do the same. Whatever one thinks of climate change, the attorney general is not there to prosecute companies that disagree on public policy issues. And, even with this minor victory, it's getting more and more obvious that's exactly what he's doing.
Brian McNicoll is a freelance writer based in Alexandria, Va. Thinking of submitting an op-ed to the Washington Examiner? Be sure to read our guidelines on submissions.