TCJL today filed an amicus curiae brief in the Texas Supreme Court in Exxon Mobil Corp. v. The City of San Francisco, et al (No. 20-0558). This case arises from a lawsuit filed in a California state court against ExxonMobil, ConocoPhillips, Shell, and 15 other Texas-based oil and gas producers. The plaintiffs, several California municipalities and counties headed by the City of San Francisco, seek billions of dollars of relief from the industry for future rises in sea levels allegedly caused by climate change, although their bond disclosures state that the future effects of climate change are uncertain.
In response to the lawsuit, ExxonMobil commenced a proceeding under Rule 202, Texas Rules of Civil Procedure, in a Midland state court seeking limited pre-suit depositions of the individual plaintiffs and document production from the municipal and individual plaintiffs to preserve evidence for potential tort litigation against the plaintiffs for viewpoint discrimination against ExxonMobil and the other producers. ExxonMobil contends that the plaintiffs’ have engaged in intentional tortious conduct and abuse of process to chill or affect its speech in violation of the U.S. and Texas Constitutions. The trial court found that the defendants were subject to personal jurisdiction in Texas and ordered limited discovery pursuant to Rule 202. The Fort Worth Court of Appeals reversed, holding that the defendants did not have sufficient minimum contacts with Texas so that Texas courts could exercise personal jurisdiction, though the court of appeals pointedly commented that the defendants have engaged in “lawfare” by attempting to regulate an industry through litigation rather than legislation.
The California lawsuit is part of a national effort to recruit local governments and state attorneys general to sue major energy producers led by Boston-area attorney Matthew F. Pawa, a partner in the Seattle-based firm of Hagens Berman. The firm’s website describes Pawa, a former state’s attorney in Chittenden County, Vermont, as follows:
Prior to joining Hagens Berman, Mr. Pawa was the president of Pawa Law Group P.C. where he was the founder and leader of the litigation firm specializing in major environmental cases. He handled jury trials, bench trials and argued appeals in state and federal courts in Massachusetts and across the nation and collaborated with state attorneys general and non-profit clients on a major global warming case that went to the U.S. Supreme Court. Mr. Pawa forged the small law firm into a nationally known entity with a reputation for successfully litigating against some of the country’s largest corporations.
The court of appeals describes in great detail Pawa’s involvement in recruiting plaintiffs for the lawsuit, providing an anatomy of an orchestrated and premediated lawfare campaign:
In June 2012, Pawa, a climate-change litigator, attended the “Workshop on Climate Accountability, Public Opinion, and Legal Strategies” in La Jolla, California. Among the conference organizers was Peter Frumhoff, the Director of Science and Policy for the Union of Concerned Scientists.
At the conference, Pawa spoke about one of his pending cases against the energy industry seeking damages for coastal flooding allegedly caused by anthropogenic climate change. According to him, “Exxon and the other defendants [in that case] distorted the truth.” Pawa also stated that litigation is not only a remedy for those suffering the effects of climate change but also “a potentially powerful means to change corporate behavior.”
Conference participants discussed strategies for getting energy companies’ internal documents and concluded that law- enforcement powers and civil litigation could be used to pressure the energy industry to support legislative and regulatory responses to climate change. Participants also planned to enlist state attorneys general to launch investigations into climate change that could bring “key internal documents to light.”
In March 2015, Pawa sent a memorandum to NextGen America—a nonprofit group funded by Tom Steyer, the California billionaire hedge-fund manager, environmental activist, and erstwhile candidate in the 2020 Democratic presidential primary —summarizing Pawa’s legal strategy against fossil-fuel companies “for their contributions to California’s injuries from global warming.” The memo stated that “certain fossil[-]fuel companies (most notoriously ExxonMobil), have engaged in a campaign and conspiracy of deception and denial on global warming.” Pawa further stated that “[a] global warming case would be grounded in the doctrine of public nuisance” and noted that “simply proceeding to the discovery phase would be significant” and that “obtaining industry documents would be a remarkable achievement that would advance the case and the cause.”
Early the following year, in January 2016, Pawa and others met at the Rockefeller Family Fund offices in New York City to discuss the goals of an “Exxon campaign.” According to the meeting’s draft agenda, the goals included (1) establishing in the public’s mind that “Exxon is a corrupt institution that has pushed humanity (and all creation) toward climate chaos and grave harm”; (2) delegitimizing Exxon as a political actor; (3) driving divestment from Exxon; and (4) forcing “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.” As “main avenues for legal actions [and] related campaigns,” the participants identified “AGs” and tort suits. The participants planned to use these avenues to obtain discovery and create scandal.
TCJL’s brief calls out this outrageous behavior for what it is: a concerted effort to use the courts to destroy the oil and gas industry wherever it is. At the same time, this litigation is a naked power grab aimed to subverting Texas sovereignty and the right of all Texans—not just the oil and gas defendants themselves—from exercising their freedom of speech and association in connection with ongoing public policy debates surrounding climate change. Consequently, the plaintiffs can reasonably expect to be haled into a Texas court to answer for their conduct. As we state in our brief:
The court of appeals wrestled with the question of whether the Respondents’ activities rose to the level of potentially tortious conduct in this state. Exxon Mobil argues that the whole point of the litigation is to repress the First Amendment right of the company to engage in a national (and indeed international) policy discussion about the causes and impacts of climate change. TCJL would add that the Respondents’ attempt to establish such policy through litigation, as opposed to the ballot box, constitutes a direct attack on the sovereignty of this state. Aiming to use its own courts to regulate the political conduct and business activities of Texas residents, the Respondents seek to chill the speech rights of all Texans in a policy area of existential importance to their personal and community well-being. From TCJL’s perspective, Respondents, having acted at the behest of a private lawyer who actively (and presumably profitably) orchestrates lawfare campaigns across the country, should fully expect to be haled before a Texas court to answer for their conduct. By endeavoring to legislate for Texas by litigating in California, they have caused and plan to cause injury to Texas residents and have provoked Texas residents to seek the protection of our courts. As Justice Guzman, quoting the United States Supreme Court, observed in Moncrief Oil:
A state has an especial interest in exercising judicial jurisdiction over those who commit torts within its territory. This is because torts involve wrongful conduct which a state seeks to deter, and against which it attempts to afford protection, by providing that a tortfeasor shall be liable for damages which are the proximate result of his tort. Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 776, 104 S.Ct. 1473, 79 L.Ed. 790 (1984). See Moncrief Oil at 152.
Respondents commit wrongful conduct in Texas by conducting a public smear campaign against our residents under the cloak of the judicial process. Their whole purpose is to cause reputational and financial harm to our residents by crippling the energy industry in furtherance of their political agenda. There can be no question that Texas has an “especial interest in exercising judicial jurisdiction” over those who seek to do such widespread and indiscriminate injury to so many.
Exxon Mobil filed its petition for review on Friday of last week. We expect that other organizations will follow suit with their own amicus submissions as well.