Group Intervenes in New York’s Exxon Case, Seeking Communications with Activists
- Jan 15, 2020 11:00 am GMTJan 15, 2020 5:55 pm GMT
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A new motion to intervene filed in the New York attorney general’s lawsuit against ExxonMobil attempts to unseal documents that could pull back the curtain on “machinations” between the attorney general and Matt Pawa, a climate activist and plaintiffs’ attorney who has met with several state attorneys general to encourage them to sue ExxonMobil.
Filed on the last possible day that the state could appeal its defeated case against ExxonMobil (they did not), the motion seeks access to a number of documents that were sealed per the attorney general’s request, including ExxonMobil’s un-redacted amended answer to the state’s complaint and certain briefs and accompanying exhibits that appear to pertain to Matt Pawa and his discussions with the attorney general’s office.
The proposed intervenors are Energy Policy Advocates (EPA), a nonproﬁt corporation in Washington State that uses federal and state transparency laws to gain access to and share information, and Robert Schilling, a Virginia-based radio and internet journalist who also serves on EPA’s Board of Directors.
According to the motion to intervene, EPA and Schilling can intervene in the case because they have statutory, common law and Constitutional rights at stake:
“… certain documents being withheld from the public are not only important to a vital public policy debate over policy and the increasing employment of state attorneys general at the request of private interests and to assist private ends.”
Target: Pawa’s Secret Presentation
In particular, one of these “certain documents” is believed to be a slide show that Pawa has presented to various state attorneys general over the years to lobby them to pursue climate litigation against ExxonMobil. As EID Climate has disclosed previously, two of the attorneys general who have supposedly received this presentation from Pawa include Illinois Attorney General Lisa Madigan and Massachusetts Attorney General Maura Healey.
According to a supporting memorandum filed with EPA and Schilling’s motion, after speaking to major political donor Wendy Abrams, one aide to the Illinois attorney general wrote to a colleague in February 2016, “The NY AG is investigating [ExxonMobil] and [Abrams] wanted to know if this was something the AG may be interested in supporting or signing on to…She would like to bring in a lawyer named Matt Pawa, who has offices in Boston and DC. Wendy says he may have been the one to go to the NY AG’s office about Exxon.” (emphasis added)
Further, Pawa presented a slide show presentation to the Massachusetts attorney general’s office:
It appears that this same Pawa presentation was likely one of the catalysts behind the New York attorney general’s crusade against the energy company, EPA and Schilling assert:
“[A collection of documents recently obtained from the Massachusetts attorney general] strongly suggests that it was this same information that Mr. Pawa used to lobby NY OAG to launch its expensive, failed litigation in this matter. For example, ‘I have been giving this presentation to various government officials and am told that it has been very helpful to their understanding of the situation as they consider options similar to those the NY AG has commenced.’
“Public records affirm that Mr. Pawa’s presentation was not ‘What Matt Pawa Knew’or ‘whistleblower’-type information, but ‘What Exxon Knew,’ citing publicly available news stories. Rather than representing confidential law enforcement investigative materials, this presentation is an effort by a tort lawyer to help his own cases by enlisting attorneys general, part of a coordinated campaign with activists and ‘prospective funders’, ‘going after climate denialism [sic]—along with a bunch of state and local prosecutors nationwide’.” (emphasis added)
Despite New York’s assertion that the documents should remain sealed because Pawa is a “whistleblower,” the documents received from Massachusetts suggest otherwise. Nothing in that correspondence supports those claims and letting the public know what was in Pawa’s correspondence with New York will not deter other actual whistleblowers from coming forward, the interveners claim.
It’s more likely that the New York attorney general is attempting to hide how it was directly influenced by one of the activists that created and is carrying out the “Exxon Knew” campaign, as Schilling and EPA suggest in their memo:
“The public deserves to see documentation of the effort by a tort lawyer to help his tort campaign against [ExxonMobil] by enlisting the New York Office of Attorney General, successfully, if in pursuit of terribly unsuccessful prosecution at a cost, clearly, of millions of taxpayer dollars.”
New York Supreme Court Justice Ostrager can deny the request, but, as EPA and Schilling note, “only by proof of a compelling governmental interest.” Counsel for the proposed intervenors has requested that Justice Ostrager hold a hearing on January 29 at 9:30 am or as soon as possible thereafter where they can present their arguments.
Should Ostrager choose to unseal these documents, it will likely shine a light on the politically-motivated campaign by private lawyers and activists to co-opt the power and authority of the government to attack energy producers.
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