This post is part of the Environmental Law Review Syndicate, a multi-school online forum run by student editors from the nation’s leading environmental law reviews.
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By Chris Erickson a J.D. Candidate at the University of Michigan Law School and a Junior Editor of the Michigan Journal of Environmental & Administrative Law. This post is part of the Environmental Law Review Syndicate (ELRS).
In November 2015, New York Attorney General Eric Schneiderman began an investigation into whether ExxonMobil made public statements about climate change that conflicted with its own internal research.[1] Schneiderman issued a subpoena to ExxonMobil ordering production of documents related to its internal climate change research and the use of that research in making strategic decisions.[2] This investigation differentiates itself from previous climate change litigation by attempting to hold companies responsible for their contributions to climate change using laws unrelated to climate change. If New York is successful in its investigation, it could signal a new wave of climate change litigation centered on issues tangentially related to climate change.
The current investigation pursues a different strategy than past approaches to climate change litigation. Climate change litigation against greenhouse gas (“GHG”) emitters usually involves violations of federal law (such as the Clean Air Act or the National Environmental Policy Act).[3] If a GHG emitter has not violated any federal or state environmental law, plaintiffs bringing an action against a GHG emitter face the difficult task of proving tort law nuisance claims.[4] Avoiding this, New York’s investigation aims to hold GHG emitters accountable by attacking something more tangible: disclosures to investors.[5] The Martin Act, a New York statute, gives broad power to the attorney general to investigate companies for finance-related“deception, misrepresentation, concealment, suppression, [or] fraud.”[6] Investigating large GHG emitters under the Martin Act allows New York to confront the problem of climate change without the difficulties of pursuing a climate change nuisance claim under tort law.
New York has been leading the movement for an increase in the disclosures companies must make about their internal climate change research. Before its current investigation, New York settled with Xcel Energy and Dynegy, Inc. in 2008 and AES Corp. in 2009, after investigating their omissions of climate change risks in SEC filings.[7] As part of the settlement agreements, the energy companies agreed to disclose their potential financial exposure due to climate change, the incorporation of their internal climate change research and projections into their overall strategic plans, and the companies’ efforts to reduce, offset, or limit their GHG emissions.[8]
Following these settlements, the federal government also sought to provide investors with information about companies’ financial exposure to various aspects of climate change.[9] In 2010, the SEC began to require companies to make certain climate change related disclosures.[10] These disclosures include the impact of climate change regulations, climate change’s effect on business trends (e.g. decreased consumer demand for goods that produce significant GHG emissions), and climate change’s physical effects (e.g. rising sea levels threatening property).[11]
These new SEC regulations give New York and other states an additional basis to investigate GHG emitters; however, it is unclear whether this government-led form of litigation will become a standard form of litigation for regulating the conduct of GHG emitters. The evolution of cigarette litigation provides insight. Individuals and families led the initial two waves of litigation but were unsuccessful due to skepticism about the emerging scientific research and vigorous opposition from cigarette companies.[12] State governments, and not individuals, assumed the lead in the third wave of litigation and sued tobacco companies for the costs of treating people with tobacco-related illnesses.[13] This approach was successful, resulting in $246 billion in settlements and the disclosure of millions of documents about the health risks of cigarettes and the deceptive marketing of cigarettes.[14]
Like cigarette litigation, climate change litigation also faces political hurdles. Congress and the attorneys general of Alabama and Oklahoma opposed New York’s investigation into ExxonMobil.[15] Lamar Smith, Chairman of the House Space, Science, and Technology Committee, subpoenaed both Schneiderman and Massachusetts Attorney General Maura Healey, seeking information regarding their investigations of ExxonMobil.[16] Both Smith and the attorneys general criticized the investigation as an infringement on the First Amendment protections that allow ExxonMobil and other companies to disagree about the science of climate change.[17]
Other states seeking to investigate GHG emitters using an approach similar to New York’s may face additional restrictions. The Martin Act gives the Attorney General of New York powers that are not available to many other attorneys general.[18] The Martin Act differs from other fraud statutes because the attorney general does not need to prove intent to demonstrate liability.[19] It also allows multiple remedies. While injunctive relief was the original remedy, the Martin Act now allows the attorney general to bring criminal or civil charges.[20] Of the seventeen attorneys general supporting New York’s investigation into ExxonMobil, only Massachusetts Attorney General Maura Healy has similarly issued a subpoena. [21]
New York may broaden its investigation as it receives more information from ExxonMobil. Potential targets include organizations that both publicly question climate change research and receive funding from GHG emitters.[22] Discrepancies between the public statements of these organizations and the internal documents of the companies providing them funding could offer more proof for attorneys general seeking charges. Because many of the large GHG emitters have funded the same climate change denying organizations (such as the Global Climate Coalition), the investigation into these organizations could ensnare other GHG emitters in similar Martin Act investigations.[23]
New York’s investigation is still young, and there is little certainty about the outcome. If successful, the investigation could encourage other states to pursue similar investigations into ExxonMobil and other large GHG emitters. Climate change litigation may follow a similar path to cigarettes and other toxic torts, in which the increasing scientific evidence does not result in litigation success until the evidence becomes “overwhelming.”[24] Until climate change science becomes overwhelmingly accepted, litigation involving residual considerations, such as fraudulent misrepresentations to investors, may be the most effective legal option for affecting companies’ contributions to climate change.
[1] Clifford Krauss, Exxon Mobil Investigated for Possible Climate Change Lies by New York Attorney General, N.Y.Times, Nov. 5, 2015, at A1.
[2] Bob Simpson, New York Attorney General Subpoenas Exxon on Climate Research, Inside Climate News, https://insideclimatenews.org/news/05112015/new-york-attorney-general-eric-schneiderman-subpoena-Exxon-climate-documents (last visited Jan. 22, 2017).
[3] Richard Dahl, A Changing Climate of Litigation, 115 Environmental Health Perspective, no. 4, A204, A206 (2007).
[4] See Douglas A. Kysar, What Climate Change Can Do About Tort Law, 41 Environmental Law, no. 1, 10739, 10739 (2011).
[5] Justin Gillis and Clifford Krauss, Exxon Mobil Investigated for Possible Climate Change Lies by New York Attorney General, N.Y.Times, Nov. 5, 2015, at A1.
[6] N.Y. Business Law § 352 (McKinney 2016).
[7] Assurance of Discontinuance Pursuant to Executive Law §63(15), In the Matter of Xcel Energy Inc., (2008) (No. 08-012) [available at http://www.ag.ny.gov/sites/default/files/press-releases/archived/xcel_aod.pdf]; Assurance of Discontinuance Pursuant to Executive Law §63(15), In the matter of Dynegy, Inc. (2008) (No. 08-132) [available at http://www.ag.ny.gov/sites/default/files/press-releases/archived/dynegy_aod.pdf]; Assurance of Discontinuance Pursuant to Executive Law §63(15), In the Matter of AES Corp., (2008) (No. 09-159), 2009 [available at http://www.ag.ny.gov/sites/default/files/press-releases/archived/AES%20AOD%20Final%20fully%20executed.pdf].
[8] See Id.
[9] Commission Guidance Regarding Disclosure Related to Climate Change, 75 Fed. Reg. 6,297, (Feb. 2, 2010) (to be codified at 17 C.F.R. pt. 211, 231, 234).
[10] Id.
[11] Id.
[12] Lincoln Caplan,Will the “Tobacco Strategy” Work Against Big Oil?, News Desk, The New Yorker, Nov. 17, 2015, http://www.newyorker.com/news/news-desk/will-the-tobacco-strategy-work-against-big-oil.
[13] Id.
[14] Id.
[15] Laurel Brubaker Calkins, Oklahoma, Alabama Accuse NY of Stifling Climate Debate, Bloomberg, https://www.bloomberg.com/news/articles/2016-03-30/oklahoma-alabama-support-exxon-mobil-in-ny-led-climate-probe (last visited Jan. 22, 2017).
[16] David Hasemyer, State Attorneys General Subpoenaed by Rep. Lamar Smith for Exxon Fraud Probe, Inside Climate News, https://insideclimatenews.org/news/13072016/lamar-smith-exxon-climate-probes-subpoenas-state-ags-eric-schneiderman-maura-healey (last visited Jan. 22, 2017).
[17] This argument appears misguided as it does not address whether ExxonMobil committed actionable fraud or deception, as determined by the Martin Act, by not disclosing internal information about climate change.
[18] See Nicholas Thompson, The Sword of Spitzer, Legal Affairs, May–June 2004, https://www.legalaffairs.org/issues/May-June-2004/feature_thompson_mayjun04.msp.
[19] State v. Rachmani Corp., 525 N.E.2d 704, 708 (N.Y. 1988).
[20] Assured Guar. (UK) Ltd. v. J.P. Morgan Inv. Mgmt. Inc., 962 N.E.2d 765, 768 (N.Y. 2011).
[21] See David Hasemyer, Exxon Widens Climate Battle, May Depose 17 State AGs Over Investigations, Inside Climate News, https://insideclimatenews.org/news/09112016/exxon-climate-change-investigation-research-scandal-state-attorneys-general (last visited Jan. 22, 2017).
[22] Clifford Krauss, More Oil Companies Could Join Exxon Mobil as Focus of Climate Investigations, N.Y.Times, Nov. 7, 2015, at B3.
[23] See Id.
[24] Richard Dahl, A Changing Climate of Litigation, 115 Environmental Health Perspective, no. 4, A204, A204 (2007).