Texas Gov. Greg Abbott has filed an amicus curiae brief on behalf of Exxon Mobil in the case, Exxon Mobil Corp. v. City of San Francisco, asking the Texas Supreme Court to reverse a lower court decision preventing the Texas-based corporation from deposing the plaintiffs in the climate lawsuit.
Public officials from San Francisco and other California municipalities, sued Exxon and other energy companies in 2017, claiming emissions from the oil and gas produced by the defendants were causing damages from rising sea levels. Exxon countersued. At issue is a Texas appeals court’s refusal to allow Exxon to depose California officials and seek documents in discovery, prompting an appeal to the Texas Supreme Court.
Climate Lawsuits and Countersuits
Exxon alleges the defendants are part of a large conspiracy between environmental activists, local governments and trial attorneys, seeking to penalize the company for its views on climate change. Exxon argues the same officials downplayed climate change in bond-offering disclosures, which the company contends demonstrates the claims made against it in the lawsuit were not made in good faith.
The cities claimed Texas courts lacked jurisdiction over them.
In 2018, Tarrant County District Judge R.H. Wallace, Jr. ruled Texas courts did have jurisdiction over the cities, granting Exxon’s request for depositions and discovery.
In June 2020, a three-judge panel of Texas’ Second Court of Appeals in Fort Worth overturned Wallace’s decision, ruling Texas courts lacked jurisdiction over the municipal defendants Exxon was suing.
Abbott Weighs In
Abbott issued a friend of the court brief in support of Exxon’s request for the Texas Supreme Court take up its appeal and allow it to depose the California officials.
In his brief, Abbott characterized the California officials as out-of-state activists seeking to suppress the free speech and economic rights of Texas companies, which the state had an interest in defending.
“Respondents are California officials and local governments, plus a Massachusetts lawyer, who are allegedly using tort lawsuits in California courts as a pretext to suppress the speech of eighteen Texas-based energy companies on the subject of climate and energy policies,” Abbott’s brief said. “When out-of-state officials try to project their power across our border, as respondents have done by broadly targeting the speech of an industry crucial to Texas, they cannot use personal jurisdiction to scamper out of our courts and retreat across state lines.”
Abbott’s brief cited a ruling in, BMW of N. Am., Inc. v. Gore, in which the court ruled, “By engaging in such ‘lawfare,’ respondents have flouted ‘principles of state sovereignty and comity [dictating] that a State may not impose economic sanctions on violators of its laws with the intent of changing the tortfeasors’ lawful conduct in other States.’”
The cities suing Exxon are acting hypocritically in multiple ways, says James Taylor, president of the Heartland Institute, which publishes Environment & Climate News.
“The plaintiff are acting hypocritically by suing oil companies for producing a product the cities themselves rely on and use daily; any emissions come from the cities and their residents using oil, not the production and sale of it,” Taylor said. “The cities claim oil companies’ carbon dioxide emissions are causing rising seas, yet, when the plaintiffs offer bonds for sale, they fail to mention rising seas as a material threat to their infrastructure.
“Also, the cities demand that courts force Exxon to disclose private documents concerning the company’s climate knowledge and strategies, yet it wants the court to block Exxon’s request for similar disclosure from the plaintiffs,” Taylor said.
Kevin Stone (firstname.lastname@example.org) writes from Dallas, Texas