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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
EXXON MOBIL CORPORATION,
Plaintiff,
v.
ERIC TRADD SCHNEIDERMAN,
Attorney General of New York, in his
official capacity, and MAURA TRACY
HEALEY, Attorney General of
Massachusetts, in her official capacity,
Defendants.

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NO. 4:16-CV-469-K

EXXONMOBIL’S FIRST AMENDED COMPLAINT
FOR DECLARATORY AND INJUNCTIVE RELIEF
Exxon Mobil Corporation (“ExxonMobil”) brings this action seeking declaratory
and injunctive relief against Eric Tradd Schneiderman, the Attorney General of New
York, in addition to Maura Tracy Healey, the Attorney General of Massachusetts.
Attorneys General Schneiderman and Healey have joined together with each other as well
as others known and unknown to conduct improper and politically motivated
investigations of ExxonMobil in a coordinated effort to silence and intimidate one side of
the public policy debate on how to address climate change.

ExxonMobil seeks an

injunction barring the enforcement of a subpoena issued by Attorney General
Schneiderman and a civil investigative demand (“CID”) issued by Attorney General
Healey to ExxonMobil, and a declaration that the subpoena and CID violate
ExxonMobil’s rights under federal and state law. As demonstrated in this amended
pleading, the same claims and arguments asserted against Attorney General Healey apply

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with equal force against Attorney General Schneiderman.

For its First Amended

Complaint, ExxonMobil alleges as follows based on present knowledge and information
and belief:
INTRODUCTION
Frustrated by the federal government’s apparent inaction on climate
change, Attorney General Schneiderman assembled a coalition of state attorneys general,
including Attorney General Healey, to use law enforcement powers as a means of
promoting a shared political agenda.

According to an agreement executed by its

members, this coalition embraced two goals.1 First, it sought to “limit[] climate change”
by pressing for a reduction in the use of fossil fuels.2 Second, the coalition explicitly
advocated for restrictions on speech and debate to accomplish that political agenda,
listing as an objective “ensuring the dissemination of accurate information about climate
change.”3 The coalition’s agreement was concealed from the public until third parties
recently obtained it from one coalition member under public records laws.

Other

coalition members continue to resist similar demands for transparency.
The coalition first publicly surfaced when Attorney General Schneiderman
hosted a press conference in New York City on March 29, 2016,4 with former Vice
President and private citizen Al Gore as the featured speaker.5

Attorney General

Schneiderman pledged that the coalition would “deal with the problem of climate

1
2
3
4
5

See Paragraphs 52 to 53 below; see also Ex. R at App. 171–74.
Ex. V at App. 196.
Id.
See Paragraphs 27 to 39 below.
A transcript of the AGs United for Clean Power Press Conference, held on March 29, 2016, was
prepared by counsel based on a video recording of the event, which is available at
http://www.ag.ny.gov/press-release/ag-schneiderman-former-vice-president-al-gore-and-coalitionattorneys-general-across. A copy of this transcript is attached as Exhibit B and is incorporated by
reference.

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change” by using law enforcement powers “creatively” and “aggressively” to force
ExxonMobil6 and other energy companies to support the coalition’s preferred policy
responses to climate change.7 Considering climate change to be the “most pressing issue
of our time,” Attorney General Schneiderman said the coalition was “prepared to step
into this [legislative] breach.”8
Attorney General Healey similarly pledged “quick, aggressive action” by
her office to “address climate change and to work for a better future.”9 She announced an
investigation of ExxonMobil that she had already determined would reveal a “troubling
disconnect between what Exxon knew” and what it “chose to share with investors and
with the American public.”10

The statements of Attorney General Schneiderman,

Attorney General Healey, Mr. Gore and others made clear that the press conference was a
purely political event.
It was also the result of years of planning and lobbying by private
interests.11 For nearly a decade, climate change activists and certain plaintiffs’ attorneys
have sought to obtain the confidential records of energy companies as a means of
pressuring those companies to change their policy positions. A 2012 workshop examined
ways to obtain the internal documents of companies like ExxonMobil for the purpose of
“maintaining pressure on the industry that could eventually lead to its support for
legislative and regulatory responses to global warming.”12

6

7
8
9
10
11
12

The attendees at that

ExxonMobil was formed as a result of a merger between Exxon and Mobil on November 30, 1999.
For ease of discussion, we refer to the predecessor entities as ExxonMobil throughout the Complaint.
Ex. B at App. 9 –10.
Id. at App. 9, 11.
Id. at App. 21.
Id. at App. 20.
See Paragraphs 40 to 51 below.
Ex. C at App. 56.

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workshop concluded that “a single sympathetic state attorney general might have
substantial success in bringing key internal documents to light.”13
In the months leading up to the press conference, these activists and
attorneys met at the offices of the Rockefeller Family Fund in New York to discuss the
“[g]oals of an Exxon campaign,” which included to “delegitimize [it] as a political actor”
and to “force officials to disassociate themselves from Exxon.”14
The leadership of this group of activists and attorneys attended a meeting
with “sympathetic state attorney[s] general” prior to the March 29 press conference.
While this Court and the public have not been told what was discussed, a copy of the
agenda for the meeting includes presentations on the “imperative of taking action now on
climate change” and on “climate change litigation.”15
Members of the coalition recognized that the behind-the-scenes
involvement of these individuals—especially a private attorney likely to seek fees from
any private litigation made possible by an attorney general-led investigation of
ExxonMobil—could expose the special interests behind their so-called investigations and
the bias underlying their deployment of law enforcement resources for partisan ends.
When that same private attorney asked Attorney General Schneiderman’s office what he
should tell a reporter if asked about his involvement, Lemuel Srolovic, Chief of the
Environmental Protection Bureau, asked the private attorney not to confirm his
attendance at the conference.16

13
14
15
16

Id. at 40.
Ex. D at App. 67.
Ex. E at App. 70.
Ex. F at App. 80.

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The investigations launched by Attorneys General Schneiderman and
Healey amount to nothing more than an unlawful exercise of government power to
further political objectives. The shifting justifications they have presented for their
investigations are pretexts that have become more and more transparent over time. 17
Invoking state laws with limitations periods no longer than six years, the Attorneys
General claim to be investigating whether ExxonMobil committed consumer or securities
fraud by misrepresenting its knowledge of climate change.
But for more than a decade, ExxonMobil has widely and publicly
confirmed18 that it “recognize[s] that the risk of climate change and its potential impacts
on society and ecosystems may prove to be significant.”19 ExxonMobil has also publicly
advocated a tax on carbon emissions since 2009.20 Moreover, in conducting its business,
ExxonMobil addresses the potential for future climate change policy by estimating a
proxy cost of carbon, which seeks to reflect potential policies governments may employ
related to the exploration, development, production, transportation or use of carbon-based
fuels.21 This cost, which in some regions may approach $80 per ton by 2040, has been
included in ExxonMobil’s Outlook for Energy for several years.22 Further, ExxonMobil
requires all of its business lines to include, where appropriate, an estimate of greenhouse
gas-related emissions costs in their economics when seeking funding for capital
investments.23 Despite the applicable limitations periods and ExxonMobil’s longstanding

17
18
19

20
21
22
23

See Paragraphs 74 to 76 below.
See Paragraphs 63 to 64 below.
Ex. G at App. 93; see also Ex. H at App. 103 (“Because the risk to society and ecosystems from rising
greenhouse gas emissions could prove to be significant, strategies that address the risk need to be
developed and implemented.”).
Ex. T at App. 182.
Ex. T at App. 190.
Id.
Id.

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public recognition of the risks associated with climate change, the subpoena and the CID
seek documents going back nearly four decades, seeking anything having to do with the
issue.
Worse still, the New York Attorney General’s subpoena and the
Massachusetts Attorney General’s CID target ExxonMobil’s communications with those
who the Attorneys General perceive to have different political viewpoints in the climate
change debate. The subpoena seeks ExxonMobil’s communications with oil and gas
trade associations and industry groups that advocate on energy policy, and the CID
demands ExxonMobil’s communications with a list of organizations labeled by the
coalition as so-called “climate deniers,” i.e., those who have expressed skepticism about
the science of climate change or the coalition’s preferred policies regarding climate
change.24 The CID also identifies statements made by ExxonMobil about the tradeoffs
inherent in climate change policy and demands that ExxonMobil produce records
supporting those disfavored statements.
Recent events have fully unmasked the pretextual nature of these
investigations and the improper bias and unconstitutional objectives animating them.25
When Attorney General Schneiderman launched his investigation, he claimed to be
investigating ExxonMobil’s scientific research in the 1970s and 1980s. Subject to the
assertion of privilege, including First Amendment privileges, ExxonMobil initially
provided documents to Attorney General Schneiderman with the expectation that his
office would conduct a neutral, even-handed investigation. As events unfolded over the

24
25

See Paragraphs 66 and 73 below.
See Paragraphs 74 to 76 below.

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ensuing months—including the politicized press conference in March and the secret
agreement’s coming to light over the summer—that expectation has evaporated.
Within the last month, and well after ExxonMobil commenced this action,
Attorney General Schneiderman continued his practice of providing unprecedented
briefings to the press on the status of his “investigation” of ExxonMobil and announced
his expectation that a “massive securities fraud” will be uncovered. During one of those
briefings, Attorney General Schneiderman conceded that he has abandoned his original
inquiry into ExxonMobil’s historical scientific research and is now pursuing a new theory
of investor fraud. That shift further demonstrates that Attorney General Schneiderman is
simply searching for a legal theory—any legal theory—to continue his efforts to pressure
ExxonMobil and intimidate one side of a public policy debate.26
It is now indisputable that the subpoena and the CID were issued in bad
faith to deter ExxonMobil from participating in ongoing public deliberations about
climate change and to fish through decades of ExxonMobil’s documents in the hope of
finding some ammunition to enhance the coalition’s, and its climate activist
confederates’, position in the policy debate over climate change. Through their actions,
Attorneys General Schneiderman and Healey have deprived and will continue to deprive
ExxonMobil of its rights under the United States Constitution, the Texas Constitution,
and the common law.
ExxonMobil therefore seeks a declaration that the subpoena and the CID
violate its rights under Articles One and Six of the United States Constitution; the First,
Fourth, and Fourteenth Amendments to the United States Constitution; Sections Eight,
Nine, and Nineteen of Article One of the Texas Constitution; and constitutes an abuse of
26

See Paragraphs 74 to 81 below.

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process under the common law. ExxonMobil also seeks an injunction barring further
enforcement of the subpoena and the CID. Absent an injunction, ExxonMobil will suffer
imminent and irreparable harm for which there is no adequate remedy at law.
PARTIES
ExxonMobil is a public, shareholder-owned energy company incorporated
in New Jersey with principal offices in the State of Texas. ExxonMobil is headquartered
and maintains all of its central operations in Texas.
Defendant Eric Tradd Schneiderman is the Attorney General of New
York. He is sued in his official capacity.
Defendant Maura Tracy Healey is the Attorney General of Massachusetts.
She is sued in her official capacity.
JURISDICTION AND VENUE
This Court has subject matter jurisdiction over this action pursuant to
Sections 1331 and 1367 of Title 28 of the United States Code. Plaintiff alleges violations
of its constitutional rights in violation of Sections 1983 and 1985 of Title 42 of the United
States Code. Because those claims arise under the laws of the United States, this Court
has original jurisdiction over them. 28 U.S.C. § 1331. Plaintiff also alleges related state
law claims that derive from the same nucleus of operative facts. Each of Plaintiff’s state
law claims—like its federal claims—is premised on statements by Attorneys General
Schneiderman and Healey at the press conference and during the course of their
investigations, their issuance of the subpoena and the CID, the demands made therein,
and their intention to muzzle ExxonMobil’s speech in Texas. This Court therefore has
supplemental jurisdiction over those claims. 28 U.S.C. § 1367(a).

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Venue is proper within this District pursuant to Section 1391(b) of Title 28
of the United States Code because all or a substantial part of the events giving rise to the
claims occurred in the Northern District of Texas.

The subpoena was emailed to

ExxonMobil in Texas, and both the subpoena and CID target and seek to suppress speech
emanating from Texas. They also require ExxonMobil to collect and review a substantial
number of records stored or maintained in the Northern District of Texas.
FACTS
A.

Attorney General Schneiderman Opens His Investigation of ExxonMobil
with a Press Leak Followed by a Television Interview.
In

November

2015,

ExxonMobil

received

Attorney

General

Schneiderman’s subpoena at its corporate headquarters in Irving, Texas.27 Within hours,
the press was reporting on the subpoena’s issuance and its contents. An article in The
New York Times reported that the subpoena “demand[ed] extensive financial records,
emails and other documents” and that the “focus” of the investigation was on “the
company’s own long running scientific research” on climate change.28

The article

identified as sources “people with knowledge of the investigation,” all of whom “spoke
on the condition of anonymity saying they were not authorized to speak publicly about
investigations.”29 To state the obvious, ExxonMobil did not alert The New York Times or
any other media to the subpoena’s existence or its contents.
This press leak was unsettling.

It is customary for law enforcement

officials to maintain confidentiality of their investigations, both to protect the integrity of
the investigative process and to avoid unfair prejudice to those under investigation. But

27
28
29

Ex. I at App. 108.
Ex. A at App. 2.
Id. at App. 2–3.

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Attorney General Schneiderman’s investigation of ExxonMobil has been conducted with
a marked disregard for traditional concerns about confidentiality or unfair prejudice.
Before ExxonMobil had even accepted service of the subpoena, it had received multiple
media inquiries about the subpoena and could read about the investigation in online news
accounts.30
Within a week of issuing the subpoena, Attorney General Schneiderman
appeared on a PBS NewsHour segment, entitled “Has Exxon Mobil misle[d] the public
about its climate change research?”31

During that appearance, Attorney General

Schneiderman described the focus of his investigation on ExxonMobil’s purported
decision to “shift[] [its] point of view” and “change[] tactics” on climate change after
“being at the leadership of doing good scientific work” on the issue “[i]n the 1980s.”32
Attorney General Schneiderman said his probe extended to ExxonMobil’s “funding [of]
organizations.”33 While he did not refer to them expressly as his political adversaries, he
derided them as “climate change deniers” and “climate denial organizations.”34 Those
organizations included the “American Enterprise Institute, . . . the American Legislative
Exchange Council, . . . [and the] American Petroleum Institute.”35
Renewable energy was another focus of the interview. Attorney General
Schneiderman said he was “concerned about” ExxonMobil’s purported “overestimating
the costs of switching to renewable energy,” but he did not explain how any supposed
error in that estimate could conceivably constitute a fraud or mislead any consumer.36

30
31
32
33
34
35
36

Ex. A at App. 2–7; Ex. J at App. 110–112.
Ex. K at App. 114.
Id. at App. 115.
Id. at App. 116.
Id. at App. 116, 118.
Id. at App. 116.
Id.. at App. 117.

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Attorney General Schneiderman did not discuss ExxonMobil’s oil and gas
reserves or its assets at all during this interview.
Later that month at an event sponsored by Politico in New York, Attorney
General Schneiderman said that ExxonMobil appeared to be “doing very good work in
the 1980s on climate research” but that its “corporate strategy seemed to shift” later.37
Attorney General Schneiderman claimed that the company had funded organizations that
he labeled “aggressive climate deniers,” again specifically naming his perceived political
opponents at the American Enterprise Institute, the American Legislative Exchange
Council, and the American Petroleum Institute.38

Attorney General Schneiderman

admitted that his “investigation” of ExxonMobil was merely “one aspect” of his office’s
efforts to “take action on climate change,” commenting that society’s failure to address
climate change would be “viewed poorly by history.”39
After this initial flurry of statements to the press, relative quiet followed,
and ExxonMobil attempted in good faith to produce records demanded by the subpoena.
It provided Attorney General Schneiderman with documents related to its historical
research on global warming and climate change.
B.

The “Green 20” Coalition Plans to Use Law Enforcement Tools for Political
Goals.
The playing field changed on March 29, 2016, when Attorney General

Schneiderman hosted a press conference in New York City. Calling themselves the
“AGs United For Clean Power” and the “Green 20,” Attorneys General Schneiderman
and Healey were joined by other state attorneys general and Al Gore to announce their

37
38
39

Ex. L at App. 123.
Id.
Id. at App. 124.

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plan to take “progressive action to address climate change” by investigating
ExxonMobil.40 Attorneys general or staff members from over a dozen other states were
in attendance, as was Claude Walker, the Attorney General of the United States Virgin
Islands.
Expressing dissatisfaction with the supposed “gridlock in Washington”
regarding climate change legislation, Attorney General Schneiderman said that the
coalition had to work “creatively” and “aggressively” to respond to “th[e] most pressing
issue of our time,” namely, the need to “preserve our planet and reduce the carbon
emissions that threaten all of the people we represent.”41
Attorney General Healey agreed, opining that “there’s nothing we need to
worry about more than climate change.”42 She considered herself to have “a moral
obligation to act” to remedy what she described as a threat to “the very existence of our
planet,” and she vowed to take “quick, aggressive action” to “address climate change and
to work for a better future.”43
Echoing those themes, Attorney General Walker stated that “the American
people . . . have to do something transformational” because “[w]e cannot continue to rely
on fossil fuel.”44

In private communications with other members of the Green 20

coalition, Attorney General Walker expressed his hope that the coalition’s efforts would
“identify[] other potential litigation targets” and “increase our leverage” against

40
41
42
43
44

Ex. M at App 127.
Ex. B at App. 9–11.
Id. at App. 20.
Id. at App. 20–21.
Ex. B at App. 24.

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ExxonMobil to replicate or improve on an $800 million settlement he had previously
obtained against another energy company.45
For the Green 20, the public policy debate on climate change was over and
dissent was intolerable. Attorney General Schneiderman declared that he had “heard the
scientists” and “kn[e]w what’s happening to the planet.” 46 To him, there was “no dispute
but there is confusion, and confusion sowed by those with an interest in profiting from
the confusion and creating misperceptions in the eyes of the American public that really
need to be cleared up.”47 Clearing up that “confusion”—what the First Amendment
safeguards as protected political speech—was an express objective of the Green 20.
According to Attorney General Healey, “[p]art of the problem has been
one of public perception,” causing “many to doubt whether climate change is real and to
misunderstand and misapprehend the catastrophic nature of its impacts.” 48 She promised
that those who “deceived” the public—by disagreeing with her about climate change—
“should be, must be, held accountable.”49 Mr. Gore agreed, denouncing those he accused
of “deceiving the American people . . . about the reality of the climate crisis and the
dangers it poses to all of us.”50
The attorneys general embraced the renewable energy industry, in which
Mr. Gore is a prominent investor and promoter, as the only legitimate response to climate
change. Attorney General Schneiderman said, “We have to change conduct” to “mov[e]
more rapidly towards renewables.”51 Attorney General Healey promised to “speed our

45
46
47
48
49
50
51

Ex. N at App. 131, 134.
Ex. B at App. 10.
Id.
Id. at App. 20.
Id.
Id. at App. 14.
Id. at App. 27–28.

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transition to a clean energy future”52 According to Attorney General Walker, “[w]e have
to look at renewable energy. That’s the only solution.”53 Mr. Gore urged the coalition of
state attorneys general to investigate his business competitors for “slow[ing] down this
renewable revolution” by “trying to convince people that renewable energy is not a viable
option.”54
The assembled attorneys general had nothing but praise for Mr. Gore,
whose financial interests aligned with their political agenda.

Attorney General

Schneiderman enthused that “there is no one who has done more for this cause” than Mr.
Gore, who recently had been “traveling internationally, raising the alarm,” and “training
climate change activists.”55 Equally embracing the public support of Mr. Gore, Attorney
General Healey praised him for explaining so “eloquently just how important this is, this
commitment that we make,” and she thanked him for his “inspiration” and
“affirmation.”56

Virgin Islands Attorney General Walker hailed the former Vice

President as one of his “heroes.”57
In an effort to legitimize what the attorneys general were doing, Mr. Gore
cited perceived inaction by the federal government as the justification for action by the
Green 20. He observed that “our democracy’s been hacked . . . but if the Congress really
would allow the executive branch of the federal government to work, then maybe this
would be taken care of at the federal level.”58 Reading from the same script, Attorney
General Schneiderman pledged that the Green 20 would “step into th[e] [legislative]

52
53
54
55
56
57
58

Id. at App. 21.
Id. at App. 24.
Id. at App. 17.
Id. at App. 13.
Id. at App. 20.
Id. at App. 23.
Id. at App. 17.

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breach” created by this alleged federal inaction.59 He then showed that his subpoena was
a tool for achieving his political goals:
We know that in Washington there are good people who want to do the
right thing on climate change but everyone from President Obama on
down is under a relentless assault from well-funded, highly aggressive and
morally vacant forces that are trying to block every step by the federal
government to take meaningful action. So today, we’re sending a message
that, at least some of us—actually a lot of us—in state government are
prepared to step into this battle with an unprecedented level of
commitment and coordination.60
Attorney General Schneiderman linked the coalition’s political efforts to
his investigation of ExxonMobil, reminding the audience that he “had served a subpoena
on ExxonMobil” to investigate “theories relating to consumer and securities fraud.”61 He
also suggested that ExxonMobil faced a presumption of guilt in his office, arguing that
ExxonMobil had been “using the best climate models” to determine “how fast the sea
level is rising” and to “drill[] in places in the Arctic where they couldn’t drill 20 years
ago” while telling “the public for years that there were no ‘competent models,’ . . . to
project climate patterns, including those in the Arctic.”62

Attorney General

Schneiderman went on to suggest there was something illegal in ExxonMobil’s alleged
support for “organizations that put out propaganda denying that we can predict or
measure the effects of fossil fuel on our climate, or even denying that climate change was
happening.”63
Attorney General Healey was equally explicit in her prejudgment of
ExxonMobil. She stated that there was a “troubling disconnect between what Exxon

59
60
61
62
63

Id. at App. 11.
Id. at App. 12.
Id. at App. 11.
Id.
Id.

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knew, what industry folks knew, and what the company and industry chose to share with
investors and with the American public.”64 Those conclusions were announced weeks
before she even issued the CID to ExxonMobil.
The political motivations articulated by Attorneys General Schneiderman,
Healey, and Walker, Mr. Gore, and the other press conference attendees struck a
discordant note with those who rightfully expect government attorneys to conduct
themselves in a neutral and unbiased manner.

The overtly political tone of the

conference even prompted one reporter to ask whether the press conference and the
investigations were “publicity stunt[s].”65
Even some members of the coalition were apprehensive about the
expressly political focus of its ringleader.

Attorney General Schneiderman’s office

circulated a draft set of “Principles” for the “Climate Coalition of Attorneys General” that
included a “[p]ledge” to “work together” to enforce laws “that require progressive action
on climate change.”66

Recognizing the overtly political nature of that pledge, an

employee of the Vermont Attorney General’s Office wrote: “We are thinking that use of
the term ‘progressive’ in the pledge might alienate some. How about ‘affirmative,’
‘aggressive,’ ‘forceful’ or something similar?”67
C.

In Closed-Door Meetings, the Green 20 Meet with Private Interests.
The impropriety of the statements made by Attorneys General

Schneiderman and Healey and the other members of the Green 20 at the press conference
is surpassed only by what is currently known about what they said behind closed doors.

64
65
66
67

Id. at App. 20.
Id. at App. 25.
Ex. M at App. 127.
Id. at App. 126.

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During the morning of the press conference, the attorneys general attended
two presentations. Those presentations were not announced publicly, and they were not
open to the press or general public. The identity of the presenters and the titles of the
presentations, however, were later released by the State of Vermont in response to a
request by a third party under that state’s Freedom of Information Act.
The first presenter was Peter Frumhoff, the Director of Science and Policy
for the Union of Concerned Scientists.68 His subject was the “imperative of taking action
now on climate change.”69
According to the Union of Concerned Scientists, those who do not share
its views about climate change and responsive policy make it “difficult to achieve
meaningful solutions to global warming.”70 It accuses “[m]edia pundits, partisan think
tanks, and special interest groups” of being “contrarians,” who “downplay and distort the
evidence of climate change, demand policies that allow industries to continue polluting,
and attempt to undercut existing pollution standards.”71
Frumhoff has been targeting ExxonMobil since at least 2007. In that year,
Frumhoff contributed to a publication issued by the Union of Concerned Scientists, titled
“Smoke, Mirrors, and Hot Air: How ExxonMobil Uses Big Tobacco’s Tactics to
Manufacture Uncertainty on Climate Science.”72 This essay brainstormed strategies for
“[p]utting the [b]rakes” on ExxonMobil’s alleged “[d]isinformation [c]ampaign” on
climate change.73

68
69
70
71
72
73

Ex. O at App. 138.
Ex. E at App. 70.
Ex. P at App. 146.
Id. at App. 146–47.
Ex. Q at App. 160, 163.
Id. at App. 166.

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Matthew Pawa of Pawa Law Group, P.C., hosted the second presentation
on the topic of “climate change litigation.”74 The Pawa Law Group, which boasts of its
“role in launching global warming litigation,”75 previously sued ExxonMobil and sought
to hold it liable for causing global warming. That suit was dismissed because, as the
court properly held, regulating greenhouse gas emissions is “a political rather than a legal
issue that needs to be resolved by Congress and the executive branch rather than the
courts.”76
Frumhoff and Pawa have sought for years to initiate and promote litigation
against fossil fuel companies in the service of their political agenda and for private profit.
In 2012, for example, Frumhoff organized and Pawa presented at a workshop entitled
“Climate Accountability, Public Opinion, and Legal Strategies.”77 The workshop’s goal
was to consider “the viability of diverse strategies, including the legal merits of targeting
carbon producers (as opposed to carbon emitters) for U.S.-focused climate mitigation.”78
The 2012 workshop’s attendees discussed at considerable length
“Strategies to Win Access to Internal Documents” of fossil fuel companies like
ExxonMobil.79

Even then, “lawyers at the workshop” suggested that “a single

sympathetic state attorney general might have substantial success in bringing key internal
documents to light.”80 The conference’s attendees were “nearly unanimous” regarding
“the importance of legal actions, both in wresting potentially useful internal documents
from the fossil fuel industry and, more broadly, in maintaining pressure on the industry
74
75
76

77
78
79
80

Ex. E at App. 70.
Ex. S at App. 176.
Ex. C at App. 41; see also Native Vill. of Kivalina v. ExxonMobil Corp., 663 F. Supp. 2d 863, 871–77
(N.D. Cal. 2009), aff’d, 696 F.3d 849 (9th Cir. 2012).
Ex. C at App. 30–31, 61, 63.
Id. at App. 32–33.
Id. at App. 40–41.
Id. at App. 40.

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that could eventually lead to its support for legislative and regulatory responses to global
warming.”81
In January 2016, Pawa and a group of climate activists met at the
Rockefeller Family Fund offices to discuss the “[g]oals of an Exxon campaign.”82 The
goals included:


To establish in [the] public’s mind that Exxon is a corrupt
institution that has pushed humanity (and all creation) toward
climate chaos and grave harm.



To delegitimize [ExxonMobil] as a political actor.



To force officials to disassociate themselves from Exxon, their
money, and their historic opposition to climate progress, for
example by refusing campaign donations, refusing to take
meetings, calling for a price on carbon, etc.



To drive divestment from Exxon.



To drive Exxon & climate into [the] center of [the] 2016 election
cycle.83
The investigations by the New York and Massachusetts Attorneys General

and the Green 20 press conference represented the culmination of Frumhoff and Pawa’s
collective efforts to enlist state law enforcement officers to join them in a quest to silence
political opponents, enact preferred policy responses to climate change, and obtain
documents for private lawsuits.
The attorneys general in attendance at the press conference understood
that the participation of Frumhoff and Pawa, if reported, could expose the private,
financial, and political interests behind the announced investigations. The day after the

81
82
83

Id. at App. 56 (emphasis added).
Ex. D at App. 67.
Id.; see also Ex. U at App. 192–94.

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conference, a reporter from The Wall Street Journal contacted Pawa.84

Before

responding, Pawa dutifully asked Lemuel Srolovic, Chief of Attorney General
Schneiderman’s Environmental Protection Bureau, “[w]hat should I say if she asks if I
attended?”85 Mr. Srolovic—the Assistant Attorney General who had sent the New York
subpoena to ExxonMobil in November 2015—encouraged Pawa to conceal from the
press and the public the closed-door meetings. He responded, “[m]y ask is if you speak
to the reporter, to not confirm that you attended or otherwise discuss the event.”86
The press conference, the closed-door meetings with activists, and the
activists’ long-standing desire to obtain ExxonMobil’s “internal documents” as part of a
campaign to put “pressure on the industry,” inducing it to support “legislative and
regulatory responses to global warming,”87 form the partisan backdrop against which the
New York and Massachusetts investigations must be considered.
D.

The Green 20 Attempt to Conceal their Misuse of Power from the Public.
Recognizing the need to avoid public scrutiny, Attorneys General

Schneiderman, Healey, and fifteen others entered into an agreement pledging to conceal
their activities and communications in furtherance of their political agenda from the
public. In April and May of 2016, the Green 20 executed a so-called “Climate Change
Coalition Common Interest Agreement,” which memorialized the twin goals of this illicit
enterprise.88 The first goal listed in the agreement, “limiting climate change,” reflected
the coalition’s focus on politics, not law enforcement.89 The second goal, “ensuring the
dissemination of accurate information about climate change,” confirmed the coalition’s
84
85
86
87
88
89

Ex. F at App. 80.
Id.
Id.
Ex. C at App. 40, 56.
Ex. V at App. 196–214.
Id. at App. 196.

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willingness to violate First Amendment rights to carry out its agenda. 90 They appointed
themselves as arbiters of what information is “accurate” as regards climate change and
stood ready to use the full arsenal of law enforcement tools at their disposal against those
who did not toe their party line.
To conceal communications concerning this unconstitutional enterprise
from public disclosure, the signatories agreed to maintain the confidentiality of their
communications by pledging that, “unless required by law,” the parties “shall . . . refuse
to disclose” any “(1) information shared in organizing a meeting of the Parties on March
29, 2016, (2) information shared at and after the March 29 meeting . . . and (3)
information shared after the execution of this Agreement.”91

The common interest

agreement stifles not only public debate about the motivations and legality of the Green
20, but also prevents the public from learning of the political genesis of the Green 20.
E.

The Attorneys General of Other States Condemn the Green 20’s
Investigations.
The overtly political nature of the March 29 press conference drew a swift

and sharp rebuke from other state attorneys general who criticized the Green 20 for using
the power of law enforcement as a tool to muzzle dissent and discussions about climate
change. The attorneys general of Alabama and Oklahoma stated that “scientific and
political debate” “should not be silenced with threats of criminal prosecution by those
who believe that their position is the only correct one and that all dissenting voices must
therefore be intimidated and coerced into silence.”92

90
91
92

Id.
Id. at App. 196–97
Ex. X at App. 225.

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inappropriate for State Attorneys General to use the power of their office to attempt to
silence core political speech on one of the major policy debates of our time.”93
The Louisiana Attorney General similarly observed that “[i]t is one thing
to use the legal system to pursue public policy outcomes; but it is quite another to use
prosecutorial weapons to intimidate critics, silence free speech, or chill the robust
exchange of ideas.”94

Likewise, the Kansas Attorney General questioned the

“‘unprecedented’” and “strictly partisan nature of announcing state ‘law enforcement’
operations in the presence of a former vice president of the United State[s] who,
presumably [as a private citizen], has no role in the enforcement of the 17 states’
securities or consumer protection laws.”95 The West Virginia Attorney General criticized
the attorneys general for “abusing the powers of their office” and stated that the desire to
“eliminate fossil fuels . . . should not be driving any legal activity” and that it was
improper to “use the power of the office of attorney general to silence [] critics.”96
In addition, on June 15, 2016, attorneys general from thirteen states wrote
a letter to their “Fellow Attorneys General,” in which they explained that the Green 20’s
effort “to police the global warming debate through the power of the subpoena is a grave
mistake” because “[u]sing law enforcement authority to resolve a public policy debate
undermines the trust invested in our offices and threatens free speech.” 97 The thirteen
attorneys further described the Green 20’s investigations as “far from routine” because
(i) they “target[] a particular type of market participant,” namely fossil fuel companies;
(ii) the Green 20 had aligned itself “with the competitors of [its] investigative targets”;
93
94
95
96
97

Id.
Ex. Y at App. 227.
Ex. QQ at App. 435.
Ex. RR at App. 438–39.
Ex. SS at App. 444.

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and (iii) “the investigation implicates an ongoing public policy debate.”98 In conclusion,
they asked their fellow attorneys general to “[s]top policing viewpoints.”99
The actions of Defendants and their Green 20 allies caught the eye of
Congress. The Committee on Science, Space, and Technology of the United States
House of Representatives launched an inquiry into the investigations undertaken by the
Green 20.100 That committee was “concerned that these efforts [of the Green 20] to
silence speech are based on political theater rather than legal or scientific arguments, and
that they run counter to an attorney general’s duty to serve as the guardian of the legal
rights of the citizens and to assert, protect, and defend the rights of the people.”101
Perceiving a need to provide “oversight” of what it described as “a coordinated attempt to
attack the First Amendment rights of American citizens,” the Committee requested the
production of certain records and information from the attorneys general. 102

The

attorneys general have thus far refused to voluntarily cooperate with the inquiry.103
After Attorney General Schneiderman refused to turn over documents
requested by the House Committee and criticized its “unfounded claims about the
NYOAG’s motives,”104 the House Committee issued subpoenas to Attorney General
Schneiderman, Attorney General Healey, and eight environmental organizations in order
to “obtain documents related to coordinated efforts to deprive companies, nonprofit
organizations, scientists and scholars of their First Amendment rights.”105 It further

98
99
100
101
102
103
104
105

Id.
Id. at App. 447.
Ex. Z at App. 229.
Id. (internal quotation marks omitted).
Id. at App. 232.
See, e.g., Ex. TT at App. 449; Ex. UU at App. 453.
Ex. AA at App. 237.
Ex. BB at App. 240.

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criticized the attorneys general for “hav[ing] appointed themselves to decide what is valid
and what is invalid regarding climate change.”106
Several senators have urged United States Attorney General Loretta Lynch
to confirm that the Department of Justice is not investigating, and will not investigate,
United States citizens or corporations on the basis of their views on climate change.107
The senators observed that the Green 20’s investigations “provide disturbing
confirmation that government officials at all levels are threatening to wield the sword of
law enforcement to silence debate on climate change.”108 The letter concluded by asking
Attorney General Lynch to explain the steps she is taking “to prevent state law
enforcement officers from unconstitutionally harassing private entities or individuals
simply for disagreeing with the prevailing climate change orthodoxy.”109
F.

The Subpoena and the CID Reflect the Improper Political Objectives of the
Green 20 Coalition.
The twin goals of the Green 20—advancing a political agenda and

trammeling constitutional rights in the process—are fully reflected in the subpoena and
the CID.
The New York Subpoena
Attorney General Schneiderman is authorized to issue a subpoena only if
(i) there is “some factual basis shown to support the subpoena”; 110 and (ii) the
information sought “bear[s] a reasonable relation to the subject matter under investigation
and the public purpose to be served.”111 Neither standard is met here.

106
107
108
109
110
111

Id.
Ex. DD at App. 248.
Id.
Id.
Napatco, Inc. v. Lefkowitz, 43 N.Y.2d 884, 885–86 (1978).
Myerson v. Lentini Bros. Moving & Storage Co., 33 N.Y.2d 250, 256 (1973).

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The New York subpoena purports to investigate whether ExxonMobil
violated New York State Executive Law Article 5, Section 63(12), General Business Law
Article 22-A or 23-A and “any related violation, or any matter which the Attorney
General deems pertinent thereto.”112 These statutes have at most a six-year limitations
period.113
During the six-year limitations period, however, ExxonMobil made no
statements that could give rise to fraud as alleged in the subpoena. For more than a
decade, ExxonMobil has publicly acknowledged that climate change presents significant
risks that could affect its business.

For example, ExxonMobil’s 2006 Corporate

Citizenship Report recognized that “the risk to society and ecosystems from rising
greenhouse gas emissions could prove to be significant” and reasoned that “strategies that
address the risk need to be developed and implemented.”114

In addition, in 2002,

ExxonMobil, along with three other companies, helped launch the Global Climate and
Energy Project at Stanford University, which has a mission of “conduct[ing] fundamental
research on technologies that will permit the development of global energy systems with
significantly lower greenhouse gas emissions.”115
ExxonMobil has also discussed these risks in its public SEC filings. For
example, in its 2006 10-K, ExxonMobil stated that “laws and regulations related to . . .
risks of global climate change” “have been, and may in the future” continue to impact its
operations.116 Similarly, in its 2015 10-K, ExxonMobil noted that the “risk of climate

112
113

114
115
116

Ex. EE at App. 251.
See, e.g., State ex rel. Spitzer v. Daicel Chem. Indus., Ltd.,840 N.Y.S.2d 8, 11–12 (1st Dep’t 2007);
Podraza v. Carriero, 630 N.Y.S.2d 163, 169 (4th Dep’t 1995); State v. Bronxville Glen I Assocs., 581
N.Y.S.2d 189, 190 (1st Dep’t 1992).
Ex. H at App. 103.
Ex. FF at App. 270.
Ex. GG at App. 277–78.

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change” and “current and pending greenhouse gas regulations” may increase its
“compliance costs.”117

Long before the six-year statute of limitations period,

ExxonMobil disclosed and acknowledged the risks that supposedly gave rise to Attorney
General Schneiderman’s investigation.
Notwithstanding that six-year limitations period and the absence of any
conduct within that timeframe that could give rise to a statutory violation, the document
requests in the subpoena span 39 years and extend to nearly every document ExxonMobil
has ever created that in any way concerns climate change. For example, the subpoena
demands “[a]ll Documents and Communications” from 1977 to the present,
“[c]oncerning any research, analysis, assessment, evaluation, modelling or other
consideration performed by You, on Your behalf, or with funding provided by You
Concerning the causes of Climate Change.”118
The subpoena includes 10 other similarly sweeping requests, such as (i) a
demand for all documents and communications that ExxonMobil has produced since
1977 relating to “the impacts of Climate Change”; and (ii) exemplars of all
“advertisements, flyers, promotional materials, and informational materials of any type”
that ExxonMobil has produced in the last 11 years concerning climate change.119 Other
requests target Attorney General Schneiderman’s perceived political opponents in the
climate change debate by demanding ExxonMobil’s communications with trade
associations and industry groups that seek to promote oil and gas interests.120

117
118
119
120

Ex. HH at App. 284.
Ex. II at App. 257–58 (Request No. 1).
Id. at App. 258–59 (Request Nos. 2, 8).
Id. at App. 258 (Request No. 6).

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In response to some of these requests, ExxonMobil asserted First
Amendment privileges, including in connection with ExxonMobil scientists’ participation
in non-profit research organizations.
Moreover, almost all of the sweeping demands in the subpoena reach far
beyond conduct bearing any connection to the State of New York. Ten of the eleven
document requests make blanket demands for all of ExxonMobil’s documents or
communications on a broad topic, with no attempt to restrict the scope of production to
documents or communications having any connection to New York. 121 Only two of the
requests even mention New York.122 And, while the subpoena seeks ExxonMobil’s
communications with five named organizations, only one of them is based in New
York.123
The Massachusetts CID
The CID was served by Attorney General Healey on ExxonMobil’s
registered agent in Suffolk County, Massachusetts, on April 19, 2016. According to the
CID, there is “a pending investigation concerning [ExxonMobil’s] potential violations of
[Mass. Gen. Laws] ch. 93A, § 2.”124 That statute prohibits “unfair or deceptive acts or
practices” in “trade or commerce”125 and has a four-year statute of limitations.126 The
CID specifies two types of transactions under investigation: ExxonMobil’s (i) “marketing
and/or sale of energy and other fossil fuel derived products to consumers in the
Commonwealth,” and (ii) “marketing and/or sale of securities” to Massachusetts

121
122
123
124
125
126

Id. at App. 258–59 (Request Nos. 1, 10).
Id. at App. 259 (Request Nos. 9, 11).
Id. at App. 258 (Request No. 6).
Id. at App. 286.
Mass. Gen. Laws ch. 93A, §2(a).
Mass. Gen. Laws ch. 260, § 5A.

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investors.127 The requested documents pertain largely to information related to climate
change in the possession of ExxonMobil in Texas where it is headquartered and
maintains its principal place of business.
ExxonMobil could not have committed the possible offenses that the CID
purports to investigate for at least two reasons. First, at no point during the past five
years—more than one year before the limitations period began—has ExxonMobil (i) sold
fossil fuel derived products to consumers in Massachusetts, or (ii) owned or operated a
single retail store or gas station in the Commonwealth.128 Second, ExxonMobil has not
sold any form of equity to the general public in Massachusetts since at least 2011, which
is also well beyond the limitations period.129 In the past decade, ExxonMobil has sold
debt only to underwriters outside the Commonwealth, and ExxonMobil did not market
those offerings to Massachusetts investors.130
The CID’s focus on events, activities, and records outside of
Massachusetts is demonstrated by the items it demands that ExxonMobil search for and
produce. For example, the CID demands documents that relate to or support 11 specific
statements.131 None of those statements were made in Massachusetts.132 The CID also
seeks ExxonMobil’s communications with 12 named organizations,133 but only one of
these organizations has an office in Massachusetts and ExxonMobil’s communications
127
128

129
130

131
132
133

Ex. II at App. 86.
Any service station that sells fossil fuel derived products under an “Exxon” or “Mobil” banner is
owned and operated independently. In addition, distribution facilities in Massachusetts, including
Everett Terminal, have not sold products to consumers during the limitations period.
Ex. JJ at App. 317.
Id. This is subject to one exception. During the limitations period, ExxonMobil has sold short-term,
fixed-rate notes, which mature in 270 days or less, to institutional investors in Massachusetts, in
specially exempted commercial paper transactions. Id.; see Mass. Gen. Laws ch. 110A, § 402(a)(10);
see also 15 U. S. C. § 77c(a)(3).
Ex. II at App. 299–300 (Request Nos. 8–11).
Id. (Request Nos. 8–11).
Id. at App. 298 (Request No. 5).

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with the other 11 organizations likely occurred outside of Massachusetts. Finally, the
CID requests all documents and communications related to ExxonMobil’s publicly issued
reports, press releases, and Securities and Exchange Commission (“SEC”) filings, which
were issued outside of Massachusetts,134 and all documents and communications related
to ExxonMobil’s climate change research, which also occurred outside of
Massachusetts.135
The absence of any factual basis for investigating ExxonMobil’s alleged
fraud is glaring, particularly in light of the heavy burden imposed by the CID. Spanning
25 pages and containing 38 broadly worded document requests, the CID unreasonably
demands production of essentially any and all communications and documents relating to
climate change that ExxonMobil has produced or received over the last 40 years. For
example, the CID requests all documents and communications “concerning Exxon’s
development, planning, implementation, review, and analysis of research efforts to study
CO2 emissions . . . and the effects of these emissions on the Climate” since 1976 and all
documents and communications concerning “any research, study, and/or evaluation by
ExxonMobil and/or any other fossil fuel company regarding the Climate Change
Radiative Forcing Effect of” methane since 2010.136 It also requests all documents and
communications concerning papers and presentations given by ExxonMobil scientists
since 1976137 and demands production of ExxonMobil’s climate change related speeches,
public reports, press releases, and SEC filings over the last 20 years. 138 Moreover, it fails

134
135
136
137
138

Id. at App. 301–03 (Request Nos. 15–16, 19, 22).
Id. at App. 297–98, 300–03 (Request Nos. 1–4, 14, 17, 22).
Id. at App. 297, 302 (Request Nos. 1, 17).
Id. at App. 297–98. (Request Nos. 2–4).
Id. at App. 299 (Request No. 8 (all documents since April 1, 1997)); id. at App. 302–03 (Request No.
22 (all documents since 2006)); id. at App. 299–302 (Request Nos. 9–12, 14–16, 19 (all documents
since 2010)). The CID also demands the testimony of ExxonMobil officers, directors, or managing

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to reasonably describe several categories of documents by, for example, requesting
documents related to ExxonMobil’s “awareness,” “internal consideration,” and “decision
making” with respect to certain climate change matters.139
The CID’s narrower requests, however, are in some instances more
troubling than its overly broad ones. They appear to target groups simply because they
hold views with which Attorney General Healey disagrees. All 12 of the organizations
that ExxonMobil is directed to produce its communications with have been identified by
environmental advocacy groups as opposing policies in favor of addressing climate
change or disputing the science in support of climate change.140 The CID also targets
statements that are not in accord with the Green 20’s preferred views on climate change.
These include statements of pure opinion on policy, such as the suggestion that “[i]ssues
such as global poverty [are] more pressing than climate change, and billions of people
without access to energy would benefit from oil and gas supplies.”141
G.

Attorney General Schneiderman Shifts Investigative Theories in a Search for
Leverage over ExxonMobil in a Public Policy Debate.
After receiving Attorney General Schneiderman’s subpoena, ExxonMobil

made a good-faith effort to comply with his request for information about its climate
change research in the 1970s and 1980s. ExxonMobil provided his office with well over
one million pages of documents, at substantial cost to the Company, with the expectation
that a fair and impartial investigation would be conducted. Less than a month ago, and
well after ExxonMobil commenced this action against Attorney General Healey, the

139
140
141

agents who can testify about a variety of subjects, including “[a]ll topics covered” in the CID. Id. at
App. 306 (Schedule B).
Id. at App. 298–99, 302 (Request Nos. 7–8, 18).
See, e.g., Ex. VV at App. 455–57.
See, e.g., Ex. II at App. 299–300 (Request No. 9).

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spokesman for Attorney General Schneiderman stated that ExxonMobil’s “historic
climate change research” was no longer “the focus of this investigation.”142
Rather than close the investigation, however, Attorney General
Schneiderman simply unveiled another theory. As he explained in a lengthy interview
published in The New York Times, Attorney General Schneiderman now focused on the
so-called “stranded assets theory.” His office intended to examine whether ExxonMobil
had overstated its oil and gas reserves and assets by not accounting for “global efforts to
address climate change” that might require it in the future “to leave enormous amounts of
oil reserves in the ground”—i.e., cause the assets to be “stranded.”143 Without offering—
or possessing—any supporting evidence whatsoever, Attorney General Schneiderman
inappropriately opined that there “may be massive securities fraud” at ExxonMobil based
on its estimation of proved reserves and the valuation of its assets.144
Attorney General Schneiderman has directed ExxonMobil to begin
producing documents on its estimation of oil and gas reserves, and ExxonMobil has
engaged in a dialogue with his office about that request. It is now apparent that Attorney
General Schneiderman is simply searching for a legal theory, however flimsy, that will
allow him to pressure ExxonMobil on the policy debate over climate change. With the
filing of this lawsuit, ExxonMobil is challenging what has now been revealed as a
manifestly improper investigation being conducted in bad faith.

142
143
144

Ex. KK at App. 321.
Ex. MM at App. 351.
Id.

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H.

Page 32 of 49 PageID 3383

An Investigation of ExxonMobil’s Reporting of Oil and Gas Reserves and
Assets Is a Thinly Veiled Pretext.
Attorney General Schneiderman’s decision to investigate ExxonMobil’s

reserves estimates under a stranded asset theory is particularly egregious because it
cannot be reconciled with binding regulations issued by the SEC, which apply strict
guidelines to the estimation of proved reserves.
Those regulations prohibit companies like ExxonMobil from considering
the impact of future regulations when estimating reserves. To the contrary, they require
ExxonMobil to calculate its proved reserves in light of “existing economic conditions,
operating methods, and government regulations.”145 The SEC adopted that definition of
proved reserves as part of its efforts to provide investors with a “comprehensive
understanding of oil and gas reserves, which should help investors evaluate the relative
value of oil and gas companies.”146 The SEC’s definition of proved oil and gas reserves
thus reflects its reasoned judgment about how best to supply investors with information
about the relative value of energy companies, as well as its balancing of competing
priorities, such as the agency’s desire for comprehensive disclosures, that are not unduly
burdensome, and which investors can easily compare. Attorney General Schneiderman’s
theory of “massive securities fraud” in ExxonMobil’s reported reserves cannot be
reconciled with binding SEC regulations about how those reserves must be reported.
The same rationale applies to Attorney General Schneiderman’s purported
investigation of the impairment of ExxonMobil’s assets.

The SEC recognizes as

authoritative the accounting standards issued by the Financial Accounting Standards

145

146

Modernization of Oil & Gas Reporting, SEC Release No. 78, File No. S7-15-08, 2008 WL 5423153, at
*66 (Dec. 31, 2008) (emphasis added).
Id. at *1.

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Board (“FASB”).147 The FASB’s rules concerning the impairment of assets require
ExxonMobil to “incorporate [its] own assumptions” about future events when deciding
whether its assets are impaired.148 Contravening those rules, the Attorney General’s
theory requires that ExxonMobil adopt his assumptions about the likelihood of possible
future climate change regulations and then incorporate those assumptions into its
determination of whether an asset has been impaired. Attorney General Schneiderman
cannot hold ExxonMobil liable for complying with federal law.
Attorney General Healey’s investigation also purports to encompass the
same unsound theory of fraud.149 The decision to embrace this theory speaks volumes
about the pretextual nature of the investigations being conducted by Attorneys General
Schneiderman and Healey.

To read the relevant SEC rules is to understand why

ExxonMobil may not account for future climate change regulations when calculating its
proved reserves. And to read the applicable accounting standards is to understand why it
is impermissible for the Attorneys General to impose their assumptions about the
financial impact of possible future climate change regulations on companies that are
required to develop their own independent assumptions. The Attorneys General’s claims
that they are conducting a bona fide investigation premised on ExxonMobil’s supposed
failure to account for the Attorneys Generals’ expectations regarding the financial impact
of future regulations thus cannot be taken seriously. Their true objectives are clear: to

147

148

149

See Commission Statement of Policy Reaffirming the Status of the FASB as a Designated PrivateSector Standard Setter, 68 Fed. Reg. 23,333–401 (May 1, 2003).
See FASB Accounting Standards Codification 360-10-35-30; see also Statement of Financial
Accounting Standards No. 144 ¶ 17.
Ex. NN at App. 367, 372; Opp’n. of Att’y Gen. Maura Healey to Pl. Exxon Mobil Corp.’s Mot. for
Prelim. Inj. at 8, ExxonMobil v. Healey, No. 4:16-cv-00469-K (N.D. Tex. Aug. 8, 2016) (Dkt. No. 43)
(“If substantial portions of Exxon’s vast fossil fuel reserves are unable to be burned due to carbon
dioxide emissions limits put in place to stabilize global average temperature, those assets—valued in
the billions—will be stranded, placing shareholder value at risk.”).

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fish indiscriminately through ExxonMobil’s records with the hope of finding some
violation of some law that one of them might be empowered to enforce, or otherwise to
harass ExxonMobil into endorsing the Green 20’s policy views regarding how the United
States should respond to climate change.
The desire of Attorneys General Schneiderman and Healey to impose
liability on ExxonMobil for complying with SEC disclosure requirements, and the
accounting methodologies incorporated in them, would create a direct conflict with
federal law. Even if the New York or Massachusetts Attorneys General were to seek
only to layer additional disclosure requirements beyond those imposed by the SEC, this
would frustrate, and pose an obstacle to, Congress’s and the SEC’s efforts to create a
uniform market for securities and provide consistent metrics by which investors can
measure oil and gas companies on a relative basis.
I.

ExxonMobil Files Suit to Protect its Rights.
ExxonMobil has challenged members of the Green 20 for violating its

constitutional rights. Attorney General Walker issued a subpoena to ExxonMobil on
March 15, 2016.150

ExxonMobil responded by seeking a declaratory judgment that

Attorney General Walker’s subpoena was illegal and unenforceable because it violated
ExxonMobil’s rights under the United States and Texas constitutions.151

150
151

Ex. WW at App. 459–77.
Ex. LL at App. 323–49.

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The Attorneys General of Texas and Alabama intervened in that action in
an effort to protect the constitutional rights of their citizens. They criticized Attorney
General Walker for undertaking an investigation “driven by ideology, and not law.”152
The Texas Attorney General called Attorney General Walker’s purported investigation “a
fishing expedition of the worst kind” and recognized it as “an effort to punish Exxon for
daring to hold an opinion on climate change that differs from that of radical
environmentalists.”153 The Alabama Attorney General echoed those sentiments, stating
that the pending action in Texas “is more than just a free speech case. It is a battle over
whether a government official has a right to launch a criminal investigation against
anyone who doesn’t share his radical views.”154
On June 30, 2016, Attorney General Walker and ExxonMobil entered into
a joint stipulation of dismissal, whereby the Attorney General agreed to withdraw his
subpoena and ExxonMobil agreed to withdraw its litigation challenging the subpoena.
ExxonMobil commenced this action on June 15, 2016, seeking a
preliminary injunction from this Court that would bar Attorney General Healey from
enforcing the CID. In an attempt to defend Attorney General Healey’s constitutionally
infirm CID, Attorney General Schneiderman, along with other attorneys general, filed an
amicus brief on August 8, 2016.155 They argued that Attorney General Healey has a

152
153
154
155

Ex. OO at App. 395.
Ex. CC at App. 244–45.
Ex. W at App. 216.
Mem. of Law for Amici Curiae States of Maryland, New York, Illinois, Iowa, Maine, Minnesota,
Mississippi, New Mexico, Oregon, Rhode Island, Vermont, Washington, and the District of Columbia
and the U.S. Virgin Islands in Support of Def.’s Mot. to Dismiss and in Opp’n. to Pl.’s Motion for a
Prelim. Inj. at 1, Exxon Mobil Corp. v. Healey, No. 4:16-CV-469-K (N.D. Tex. Aug. 8, 2016) (Dkt.
No. 47).

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“compelling interest in the traditional authority” of her office “to investigate and combat
violations of state law.”156
Recognizing that there was nothing “traditional” about Attorney General
Healey’s use of state power, attorneys general from eleven states filed an amicus brief in
support of ExxonMobil’s preliminary injunction motion.157 “As chief legal officers” of
their respective states, they explained that their investigative power “does not include the
right to engage in unrestrained, investigative excursions to promulgate a social ideology,
or chill the expression of points of view, in international policy debates.” 158 As a result,
they noted that “[u]sing law enforcement authority to resolve a public policy debate
undermines the trust invested in our offices and threatens free speech.”159

They

concluded, “Regrettably, history is embroiled with examples where the legitimate
exercise of law enforcement is soiled with political ends rather than legal ones.
Massachusetts seeks to repeats that unfortunate history. That the statements and workings
of the ‘AG’s United for Clean Power’ are entirely one-sided, and target only certain
participants in the climate change debate, speaks loudly enough.”160
ExxonMobil’s motion for a preliminary injunction against Attorney
General Healey has been briefed and argued and is now submitted before this Court.
THE SUBPOENA AND CID VIOLATE EXXONMOBIL’S RIGHTS
The facts recited above demonstrate the pretextual nature of the stated
reasons for the investigations conducted by Attorneys General Schneiderman and Healey.

156
157

158
159
160

Id.
Br. of Texas, Louisiana, South Carolina, Alabama, Michigan, Arizona, Wisconsin, Nebraska,
Oklahoma, Utah, and Nevada as Amici Curiae in Supp. of Pl.’s Mot. for Prelim. Inj. at Attachment 2,
Exxon Mobil Corp. v. Healey, No. 4:16-CV-469-K (N.D. Tex. Sept. 8, 2016) (Dkt. No. 63).
Id. at 1.
Id.
Id. at 9.

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The statements Attorneys General Schneiderman and Healey made at the press
conference and after, the climate change coalition common interest agreement, and
recently released emails reveal the improper purpose of the investigations: to change the
political calculus surrounding the debate about policy responses to climate change by
(1) targeting speech that the Attorneys General perceive to support political perspectives
on climate change that differ from their own, and (2) exposing ExxonMobil’s documents
that may be politically useful to climate activists.
The pretextual character of the investigations is brought into sharp relief
when the scope of the subpoena and the CID—which demand nearly 40 years of
records—are contrasted with the, at most, six-year limitations periods of the statutes that
purportedly authorize the investigations.
Neither Attorney General Schneiderman nor Attorney General Healey
(nor, indeed, any other public official) may use the power of the state to prescribe what
shall be orthodox in matters of public concern. By deploying the law enforcement
authority of their offices to target one side of a political debate, their actions violated—
and continue to violate—the First Amendment.
It follows from the political character of the subpoena and the CID and
their remarkably broad scope that they also violate the Fourth Amendment.

Their

burdensome demands for irrelevant records violate the Fourth Amendment’s
reasonableness requirement, as well as its prohibition on fishing expeditions. Indeed, the
evolving justifications for the New York and Massachusetts inquiries confirm that they
are investigations driven by the identity of the target, not any good faith belief that a law
was broken.

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The investigations also fail to meet the requirements of due process.
Attorneys General Schneiderman and Healey have publicly declared not only that they
believe ExxonMobil and other fossil fuel companies pose an existential risk to the planet,
but also the improper purpose of their investigations: to silence ExxonMobil’s voice in
the public debate regarding climate change and to pressure ExxonMobil to support
polices the Attorneys General favor. Even worse, Attorney General Schneiderman has
publicly accused ExxonMobil of engaging in a “massive securities fraud” without any
basis whatsoever, and Attorney General Healey declared, before her investigation even
began, that she knew how it would end: with a finding that ExxonMobil violated the
law.161

The improper political bias that inspired the New York and Massachusetts

investigations disqualifies Attorneys General Schneiderman and Healey from serving as
the disinterested prosecutors required by the Constitution.
In the rush to fill what Attorney General Schneiderman described as a
“[legislative] breach” in Congress regarding climate change, both he and Attorney
General Healey have also openly and intentionally infringed on Congress’s powers to
regulate interstate commerce. Their investigations seek to regulate speech and conduct
that occur almost entirely outside of New York and Massachusetts. Where a state seeks
to regulate and burden out-of-state speech, as the subpoena and the CID do here, the state
improperly encroaches on Congress’s exclusive authority to regulate interstate commerce
and violates the Dormant Commerce Clause.
Attorneys

General

Schneiderman

and

Healey’s

new

focus

on

ExxonMobil’s reporting of proved reserves and assets is equally impermissible. They
seek to hold ExxonMobil liable for not taking into account possible future regulations
161

Ex. B at App. 20–21.

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concerning climate change and carbon emissions when estimating proved reserves and
reporting assets. But that theory cannot be reconciled with the SEC’s requirement that
ExxonMobil calculate its proved reserves based only on “existing” regulations, not future
regulations. This facet of the investigation, therefore, impermissibly conflicts with, and
poses an obstacle to, the goals and purposes of federal law. That conflict is also present
in the Attorneys General’s investigation of how ExxonMobil determines under binding
accounting rules whether an asset has become impaired.
The subpoena and the CID also constitute an abuse of process because
they were issued for the improper purposes described above.
ExxonMobil asserts the claims herein based on the facts available to it in
the public record from, among other things, press accounts and freedom of information
requests made by third parties. ExxonMobil anticipates that discovery from Attorneys
General Schneiderman and Healey, as well as third parties, will reveal substantial
additional evidence in support of its claims.
EXXONMOBIL HAS BEEN INJURED BY THE SUBPOENA AND THE CID
The subpoena and the CID have injured, are injuring, and will continue to
injure ExxonMobil.
ExxonMobil is an active participant in the policy debate about potential
responses to climate change. It has engaged in that debate for decades, participating in
the Intergovernmental Panel on Climate Change since its inception and contributing to
every report issued by the organization since 1995.

Since 2009, ExxonMobil has

publicly advocated for a carbon tax as its preferred method to regulate carbon
emissions. Proponents of a carbon tax on greenhouse gas emissions argue that increasing

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taxes on carbon can “level the playing field among different sources of energy.” 162 While
Attorneys General Schneiderman and Healey and the other members of the Green 20 are
entitled to disagree with ExxonMobil’s position, no member of that coalition is entitled to
silence or seek to intimidate one side of that discussion (or the debate about any other
important public issue) through the issuance of baseless and burdensome subpoenas.
ExxonMobil intends—and has a constitutional right—to continue to advance its
perspective in the national discussions over how best to respond to climate change. Its
right to do so should not be violated through this exercise of government power.
As a result of the improper and politically motivated investigations
launched by Attorneys General Schneiderman and Healey, ExxonMobil has suffered,
now suffers, and will continue to suffer violations of its rights under the First, Fourth, and
Fourteenth Amendments to the United States Constitution and under Sections Eight,
Nine, and Nineteen of Article One of the Texas Constitution.

Attorneys General

Schneiderman’s and Healey’s actions also violate Articles One and Six of the United
States Constitution and constitute an abuse of process under common law.
Acting under the laws, customs, and usages of New York and
Massachusetts,

Attorneys

General

Schneiderman

and

Healey

have

subjected

ExxonMobil, and are causing ExxonMobil to be subjected, to the deprivation of rights,
privileges, and immunities secured by the United States Constitution and the Texas
Constitution.

ExxonMobil’s rights are made enforceable against Attorneys General

Schneiderman and Healey, who are acting under the color of law, by Article One, Section
Eight of the United States Constitution, and the Due Process Clause of Section 1 of the
Fourteenth Amendment to the United States Constitution, all within the meaning and
162

Ex. PP at App. 402.

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contemplation of 42 U.S.C. § 1983, and by Sections Eight, Nine, and Nineteen of Article
One of the Texas Constitution.
Absent relief, Attorneys General Schneiderman and Healey will continue
to deprive ExxonMobil of these rights, privileges, and immunities.
In addition, ExxonMobil is threatened with further imminent injury that
will occur if it is forced to choose between conforming its constitutionally protected
speech to Attorneys General Schneiderman and Healey’s shared political views or
exercising its rights and risking sanctions and prosecution.
The subpoena and the CID also threaten ongoing imminent injury to
ExxonMobil because they subject ExxonMobil to an unreasonable search in violation of
the Fourth Amendment. Complying with this unreasonably burdensome and unwarranted
fishing expeditions would require ExxonMobil to collect, review, and produce millions
more documents, and would cost millions of dollars.
If ExxonMobil’s request for injunctive relief is not granted, and Attorneys
General Schneiderman and Healey are permitted to persist in their investigations, then
ExxonMobil will suffer these imminent and irreparable harms. ExxonMobil has no
adequate remedy at law for the violation of its constitutional rights.
CAUSES OF ACTION
A.

First Cause of Action: Conspiracy
ExxonMobil repeats and realleges paragraphs 1 through 104 above as if

fully set forth herein.
The facts set forth herein demonstrate that, acting under color of state law,
Attorneys General Schneiderman and Healey have agreed with each other, and with
others known and unknown, to deprive ExxonMobil of rights secured by the law to all,
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including those guaranteed by the First, Fourth, and Fourteenth Amendments to the
United States Constitution, as well as Sections Eight, Nine, and Nineteen of Article One
of the Texas Constitution.
In furtherance of these objectives, Attorneys General Schneiderman and
Healey have, among other things, issued the unlawful subpoena and CID and entered the
common interest agreement described above at paragraphs 52–53. The subpoena and
CID were issued without having a good faith basis for conducting any investigation, and
with the ulterior motive of preventing ExxonMobil from enjoying and exercising its
rights protected by the First, Fourth, and Fourteenth Amendments to the United States
Constitution, as well as Sections Eight, Nine, and Nineteen of Article One of the Texas
Constitution.
ExxonMobil has been damaged, and has been deprived of its rights under
the United States and Texas Constitutions, as a proximate result of the unlawful
conspiracy entered into by Attorneys General Schneiderman and Healey. The conduct of
Attorneys General Schneiderman and Healey therefore violates both 42 U.S.C. § 1985
and the Texas common law.
B.

Second Cause of Action: Violation of ExxonMobil’s First and Fourteenth
Amendment Rights
ExxonMobil repeats and realleges paragraphs 1 through 104 above as if

fully set forth herein.
The focus of the subpoena and the CID on one side of a policy debate—in
an apparent effort to silence, intimidate, and deter those possessing a particular viewpoint
from participating in that debate—contravenes, and any effort to enforce the subpoena or
CID would further contravene, the rights provided to ExxonMobil by the First

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Amendment to the United States Constitution, made applicable to the State of New York
and the Commonwealth of Massachusetts by the Fourteenth Amendment, and by Section
Eight of Article One of the Texas Constitution.
The subpoena and the CID are impermissible viewpoint-based restrictions
on speech, and they burden ExxonMobil’s political speech.

Attorneys General

Schneiderman and Healey issued the subpoena and the CID based on their disagreement
with ExxonMobil regarding how the United States should respond to the risks of climate
change. And even if the subpoena and the CID had not been issued for that illegal
purpose, they would still violate the First Amendment, because they burden
ExxonMobil’s political speech without being substantially related to any compelling
governmental interest.
C.

Third Cause of Action: Violation of ExxonMobil’s Fourth and Fourteenth
Amendment Rights
ExxonMobil repeats and realleges paragraphs 1 through 104 above as if

fully set forth herein.
The issuance of the subpoena and the CID contravenes, and any effort to
enforce the subpoena would further contravene, the rights provided to ExxonMobil by the
Fourth Amendment to the United States Constitution, made applicable to the State of
New York and the Commonwealth of Massachusetts by the Fourteenth Amendment, and
by Section Nine of Article One of the Texas Constitution, to be secure in its papers and
effects against unreasonable searches and seizures.
The subpoena and CID are each unreasonable searches and seizures
because each of them constitutes an abusive fishing expedition into 40 years of
ExxonMobil’s records, without any legitimate basis for believing that ExxonMobil

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violated New York or Massachusetts law.

Page 44 of 49 PageID 3395

Their overbroad and irrelevant requests

impose an undue burden on ExxonMobil and violate the Fourth Amendment’s
reasonableness requirement, which mandates that a subpoena be limited in scope,
relevant in purpose, and specific in directive.
D.

Fourth Cause of Action: Violation of ExxonMobil’s Fourteenth Amendment
Rights
ExxonMobil repeats and realleges paragraphs 1 through 104 above as if

fully set forth herein.
The investigations conducted by Attorneys General Schneiderman and
Healey contravene the rights provided to ExxonMobil by the Fourteenth Amendment to
the United States Constitution and by Section Nineteen of Article One of the Texas
Constitution not to be deprived of life, liberty, or property without due process of law.
The subpoena and CID deprive ExxonMobil of due process of law by
violating the requirement that a prosecutor be disinterested. The statements by Attorneys
General Schneiderman and Healey at the Green 20 press conference and elsewhere make
clear that they are biased against ExxonMobil.
E.

Fifth Cause of Action: Violation of ExxonMobil’s Rights Under the Dormant
Commerce Clause
ExxonMobil repeats and realleges paragraphs 1 through 104 above as if

fully set forth herein.
Article I, Section 8 of the United States Constitution grants Congress
exclusive authority to regulate interstate commerce and thus prohibits the States from
doing so. The issuance of the subpoena and the CID contravenes, and any effort to
enforce the subpoena and the CID would further contravene, the rights provided to
ExxonMobil under the Dormant Commerce Clause.
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The subpoena and the CID effectively regulate ExxonMobil’s out-of-state
speech while only purporting to investigate ExxonMobil’s marketing and/or sale of
energy and other fossil fuel derived products to consumers in New York and
Massachusetts and its marketing and/or sale of securities to investors in New York and
Massachusetts.
The subpoena and the CID demand documents that relate to (1) statements
ExxonMobil made outside New York and Massachusetts, and (2) ExxonMobil’s
communications with organizations residing outside New York and Massachusetts. The
subpoena and CID therefore have the practical effect of primarily burdening interstate
commerce.
F.

Sixth Cause of Action: Federal Preemption
ExxonMobil repeats and realleges paragraphs 1 through 104 above as if

fully set forth herein.
Article VI, Clause 2 of the United States Constitution provides that the
laws of the United States “shall be the supreme law of the land.” Any state law that
imposes disclosure requirements inconsistent with federal law is preempted under the
Supremacy Clause.
Federal law requires ExxonMobil to calculate and report its proved oil and
gas reserves based on “existing economic conditions, operating methods, and government
regulations.” This requirement reflects the SEC’s reasoned judgment about how best to
supply investors with information about the relative value of oil and gas companies, as
well as its balancing of competing priorities, such as the agency’s desire for
comprehensive disclosures, that are not unduly burdensome, and which investors can
easily compare. Similarly, accounting standards recognized as authoritative by the SEC
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require ExxonMobil to use its own assumptions about future events when determining
whether assets are impaired, not the assumptions of the Attorneys General. Attorneys
General Schneiderman and Healey have stated that they seek to impose liability on
ExxonMobil for failing to account for what they believe will be the financial impact of
as-yet-unknown “carbon dioxide emissions limits put in place to stabilize global average
temperature” in estimating and reporting ExxonMobil’s proven reserves and valuing its
assets.

The Attorneys General therefore would seek to punish ExxonMobil for

complying with federal law and the accounting standards embedded therein.
Even if the New York or Massachusetts Attorneys General were to seek
only to layer additional disclosure requirements concerning oil and gas reserves and asset
valuations beyond those imposed by the SEC, this would frustrate, and pose an obstacle
to, Congress’s and the SEC’s efforts to create a uniform market for securities and provide
consistent metrics by which investors can measure oil and gas companies on a relative
basis.
Because these investigations under New York and Massachusetts law
create a conflict with, and pose an obstacle to, federal law, the application of New York
and Massachusetts law to this case is preempted.
G.

Seventh Cause of Action: Abuse of Process
ExxonMobil repeats and realleges paragraphs 1 through 104 above as if

fully set forth herein.
Attorneys General Schneiderman and Healey committed an abuse of
process under common law by (1) issuing the subpoena and the CID to ExxonMobil
without having a good faith basis for conducting an investigation; (2) having an ulterior
motive for issuing and serving the subpoena and the CID, namely, an intent to prevent
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ExxonMobil from exercising its right to express views with which they disagree; and
(3) causing injury to ExxonMobil’s reputation and violating its constitutional rights.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff prays that Attorneys General Schneiderman and Healey
be summoned to appear and answer and that this Court award the following relief:
1.

A declaratory judgment pursuant to 28 U.S.C. § 2201, declaring that the

subpoena and the CID violate ExxonMobil’s rights under the First, Fourth, and
Fourteenth Amendments to the United States Constitution; violate ExxonMobil’s rights
under Sections Eight, Nine, and Nineteen of Article One of the Texas Constitution; and
violate the Dormant Commerce Clause and the Supremacy Clause of the United States
Constitution;
2.

A declaratory judgment pursuant to 28 U.S.C. § 2201, declaring that the

issuance of the subpoena and the CID constitute an abuse of process, in violation of
common law;
3.

A preliminary and permanent injunction prohibiting enforcement of the

subpoena and of the CID;
4.

Such other injunctive relief to which Plaintiff is entitled; and

5.

All costs of court together with any and all such other and further relief as

this Court may deem proper.

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Dated: October 17, 2016

EXXON MOBIL CORPORATION
By: /s/ Patrick J. Conlon
Patrick J. Conlon
(pro hac vice)
State Bar No. 24054300
patrick.j.conlon@exxonmobil.com
Daniel E. Bolia
State Bar No. 24064919
daniel.e.bolia@exxonmobil.com
1301 Fannin Street
Houston, TX 77002
(832) 624-6336

/s/ Nina Cortell
Nina Cortell
State Bar No. 04844500
nina.cortell@haynesboone.com
HAYNES & BOONE, LLP
2323 Victory Avenue
Suite 700
Dallas, TX 75219
(214) 651-5579
Fax: (214) 200-0411

/s/ Theodore V. Wells, Jr.
Theodore V. Wells, Jr.
(pro hac vice)
twells@paulweiss.com
Michele Hirshman
(pro hac vice)
mhirshman@paulweiss.com
Daniel J. Toal
(pro hac vice)
dtoal@paulweiss.com
PAUL, WEISS, RIFKIND, WHARTON &
GARRISON, LLP
1285 Avenue of the Americas
New York, NY 10019-6064
(212) 373-3000
Fax: (212) 757-3990

/s/ Ralph H. Duggins
Ralph H. Duggins
State Bar No. 06183700
rduggins@canteyhanger.com
Philip A. Vickers
State Bar No. 24051699
pvickers@canteyhanger.com
Alix D. Allison
State Bar. No. 24086261
aallison@canteyhanger.com
CANTEY HANGER LLP
600 West 6th Street, Suite 300
Fort Worth, TX 76102
(817) 877-2800
Fax: (817) 877-2807

Justin Anderson
(pro hac vice)
janderson@paulweiss.com
2001 K Street, NW
Washington, D.C. 20006-1047
(202) 223-7300
Fax: (202) 223-7420
Counsel for Exxon Mobil Corporation

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CERTIFICATE OF SERVICE
I hereby certify that on October 17, 2016, a copy of the foregoing instrument was
served on the following party via the Court’s CM/ECF system in accordance with the
Federal Rules of Civil Procedure:
Maura Healey
Massachusetts Attorney General’s Office
One Ashburton Place
Boston, MA 02108-1518
Phone: (617) 727-2200

/s/ Ralph H. Duggins
Ralph H. Duggins

49