Alaska joins in amicus brief on state’s rights issue

Litigation is linked to court case brought by several states who allege that Exxon Mobil is guilty of climate change fraud

Alaska is one of 20 states now joined in a multi-state amicus brief concerning the proper forum for challenging a state attorney general’s administrative subpoena, in a case stemming from litigation alleging climate change fraud by Exxon Mobil.

As the chief legal officers of their state, attorneys general have broad authority to investigate wrongdoing to protect their states’ citizens, and Alaska Attorney General Jahna Lindemuth agrees with the amicus brief written by the states of Massachusetts and New York that where there is a comprehensive process for challenging a subpoena in the courts of the attorney general’s state, that challenge should be brought in state court, not by going to a federal court in another state, said Cori Mills, legislative liaison for Lindemuth.

As the brief says, requiring people to use the state court system to resolve disputes ensures that the parties are meaningfully heard while still eliminating the risk of duplicative litigation and forum shopping,” Mills said in an email response Aug. 23 to a query.

So where does the state stand overall on the investigation launched by attorneys general of 20 states who alleged fraud by Exxon for “deceiving investors and consumers about the dangers of climate change: and suppressing the release of key climate information?

Lindemuth’s decision to sign onto the amicus brief supporting the states that brought the investigation is a shift on this issue under the new attorney general, Mills said. Still, the state s not commenting on the substance of the investigation, nor is the state going to draw conclusions on what that investigation may ultimately find, she said.

“Instead, the amicus brief attached that Attorney General Lindemuth, in consultation with the Governor, signed onto supports the principle that consumer protection investigations are generally the purview of the State, and a company should not be able to forum shop and challenge what is essentially a state issue about a state investigation in a federal court in another state.”

Back in November of 2015, New York State Attorney General Eric Schneiderman’s office began an investigation into whether Exxon lied to the public about risks of climate change, or to its investors on how such risks might adversely impact the oil industry. Schneiderman issued a subpoena to Exxon in pursuit of financial records and other documents.

Since then 20 other state attorneys general have voiced their support, while Exxon has continued to fight subpoenas in court.

But on June 2, Alaska and several other oil states wrote to the other state attorneys general opposing the investigation and calling it “a grave mistake.”
According to the “Coalition Response Letter, which was signed by then Alaska Attorney General Craig Richards, climate change is an unresolved issue.  The coalition letter also argued that the state investigation into Exxon’s alleged fraudulent activities violated Exxon’s first amendment rights.

Then on Aug. 17, Lindemuth, Alaska’s new attorney general, joined other states in opposing Exxon’s motion asking the federal court to dismiss the Exxon climate fraud case filed by the state of Massachusetts.  Signers of that amicus brief contend “protecting the state’s citizens and economy from fraud, deception and other improper conduct is a principal and critical state law responsibility of state attorneys general.”

Alaska is the only state to have signed both the June letter criticizing the state climate change fraud investigations, and then in August supporting a court motion supporting the right and responsibility of states to conduct such investigations, said marine conservation biologist Rick Steiner of Anchorage, who has followed litigation involving Exxon Mobil since the oil spill disaster in Prince William Sound.

“The only logical explanation for this apparent conflict is that Alaska has revered its opposition to the state investigations, which is good, but does not wish to affirm such by rescinding its endorsement of the June letter, which is not good,” he said.

The state of Alaska, an oil state, may not want to alienate the oil industry with such an overt admission, in particular as it hopes to secure an agreement with the major oil producers to build an Alaska gas pipeline,” Steiner said. “And perhaps it doesn’t want the embarrassment of being the only state in the nation to flip-flop on this issue.”

But if the state’s signing onto the amicus brief does indeed represent a reversal of the state’s position on state investigations into climate fraud by major fossil fuel companies, this is welcome news to Alaska climate activists who have long been waiting for action on climate change by the Walker administration, he said.

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Margaret Bauman is a veteran Alaska journalist focused on covering fisheries and environmental issues. Bauman has been writing for The Cordova Times since 2010. You can reach her at mbauman@thecordovatimes.com.