WASHINGTON, D. C. – District of Columbia Attorney General Karl A. Racine has joined a coalition of attorneys general from across the nation to again urge Rep. Lamar Smith, Chairman of the House Committee on Science, Space and Technology, to stop attempting to interfere with investigations by the State of New York and the Commonwealth of Massachusetts into possible securities and consumer protection law violations by the ExxonMobil Corporation. The letter also urges Rep. Smith to withdraw subpoenas sent to the attorneys general of Massachusetts and New York demanding information about the investigations.
The letter, signed by 15 attorneys general, echoes an earlier letter sent on August 11, 2016, which outlined why the unprecedented subpoenas exceed the committee’s constitutional authority and depart from the “proper respect for state functions” that has traditionally been shown by Congress and the courts. In the letter, the attorneys general note recent developments that further support their request and underscore the importance of each state attorney general’s responsibility to enforce state laws.
“Congress’ interference in ongoing investigations into suspected violations of state law is unprecedented, improper and unwarranted,” Attorney General Racine said. “Attorneys general have both the authority and obligation to exercise their independent authority to investigate wrongdoing and work on behalf of the residents of their states.”
In March of 2016, Massachusetts Attorney General Maura Healey announced her office was undertaking an investigation into whether Exxon made false statements, in violation of state law, to Massachusetts consumers and investors about its products’ impact on climate change and the risks to Exxon’s businesses. The attorneys general specifically noted the January, 2017 Massachusetts Superior Court order affirming Attorney General Healey’s authority to investigate whether Exxon engaged in unfair and deceptive acts or practices. The letter states: “In particular, the Massachusetts Superior Court…concluded that the Attorney General is authorized to investigate whether Exxon presented to consumers ‘potentially misleading information about the risks of climate change, the viability of alternative energy sources, and the environmental attributes of its products and services.’”
In November 2015, New York Attorney General Eric Schneiderman launched an investigation into whether Exxon has violated New York securities laws by making false and misleading statements to shareholders, regulators, and the public about the financial risks posed to the company by climate change. The letter states: “At a New York state court hearing on the attorney general’s application for an order to compel, the presiding judge observed that neither Exxon nor its auditor had asserted any objection questioning whether the investigative subpoena was ‘reasonable and appropriate’ or whether the attorney general was acting in ‘good faith.’ At the same hearing, Exxon’s counsel conceded that Attorney General Schneiderman has ‘the right to conduct the investigation.’”
The letter went on to note that the committee’s subpoenas may be an attempt by Exxon to obtain access to discovery that it is seeking in the court proceedings and is unable to obtain by court order. “This possibility illustrates how the committee’s subpoena not only impermissibly intrudes on the lawful authority of the attorneys general to conduct investigations into suspected violations of state laws, but also interferes with the authority of courts to oversee discovery in pending cases.”
Last year, in an attempt to thwart the independent investigatory powers of the states, Rep. Smith issued a series of letters to the attorneys general of New York, Massachusetts, Maryland and other states requesting that each state produce any and all documents pertaining to any undergoing investigations into Exxon. The states refused, and Chairman Smith then issued subpoenas, without a committee vote, to Massachusetts and New York.
Maryland Attorney General Brian E. Frosch led the coalition in drafting the letter. In addition to the District and Maryland, the letter was signed by attorneys general from California, Connecticut, Delaware, Illinois, Kentucky, Maine, Mississippi, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia and Washington.
A copy of the letter is attached.