If “justice” is this dirty in America relating to harms to the public done by the oil and gas industry, how dirty is it in Canada?
Whose idea was it for Supreme Court of Canada Justice Rosalie Abella to defame Ernst in the court’s ruling in Ernst vs AER? AER’s outside lawyer Glenn Solomon and or ex Chair of AER, ex VP of Encana Gerry Protti? Encana’s outside lawyer Maureen Killoran? Encana’s ex CEO Gwyn Morgan? Israel (that stole and wants to frac a multi-billion dollar gas field belonging to Palestine)?
The Supreme Court slammed Canada’s Charter, gave AER everything, including ordering Ernst to pay AER’s costs. There was no need to defame Ernst but the court did anyways.
Who gave Abella the idea/information to write her smear claiming that the AER found Ernst to be a vexatious litigant when documented evidence signed by AER shows the regulator judged Ernst to be a criminal, then in briefs filed in court seven years later changed that to terrorist, all without any due process, no hearing, no trial, fingerprints, criminal charges, no chance for Ernst to defend herself, while Ernst was reasonably asking the regulator to take responsible action against Encana’s law violations?
No evidence was allowed to be filed at the time Abella wrote her defamatory ruling and the court did not allow Ernst any chance to defend herself against the smear, just like AER didn’t. Most important, why did the Supreme Court knowingly publish the defamation (four judges, including then Chief Justice Beverley McLachlin, called Abella out on her smear in their dissent), and for no apparent reason other than to defame, include it in the ruling summary the court sent to the media, while leaving out the four dissenting judges calling Abella out on it? Again, under whose direction/suggestion?
Judicial Tragedy: U.S. District Judge William Alsup wanted to “stick to the science” and avoid politics, presided over standing room only tutorial on climate change, but let big oil off using politics. Science is on humanity’s side, the law is not.
Lawsuits in USA testing “attribution science.” Researchers can link weather events to emissions and companies responsible. “This body of literature…tells us that dangerous climate change is upon us, and people are suffering and dying…and it’s going to get worse.” For any potential uncertainty about climate attribution, there’s at least one truth that should override the rest: Fossil fuel companies “were aware decades ago what trouble climate change would be.”
Judge: More information needed to decide where Exxon Mobil lawsuit will be heard by Perla Trevizo, Jan. 19, 2020, Houston Chronicle
A Harris County judge has asked for more information before deciding whether a lawsuit against Exxon Mobil will be heard here or in Travis County, part of a battle between the state and county to go after violators.
On Aug. 1, the Harris County Attorney’s Office filed a suit against Exxon Mobil, after a chemical fire that injured 37 people in Baytown. It was the first time the office used an order approved by Commissioners Court in April that allows the office to file environmental suits without having to first get the county board’s approval on a case-by-case basis.
But the attorney general, who filed its own lawsuit against the company a few days later, says the county couldn’t have sued Exxon using the commissioner’s preauthorization.
“To the extent that Harris County implies the April 30 Order is necessary to respond to emergencies occurring between regular sessions of the Commissioners Court, the County is wrong,” the state wrote in court documents. “The Legislature has provided the County with the tools needed to address emergencies.”
The state is seeking for the county’s lawsuit to be dismissed in favor of the state suit filed in Travis County.
The decision will have an impact beyond this lawsuit as county commissioners had supported the measure to allow the county attorney’s office to sue “as it deems necessary” without having to wait for the next meeting to get approval.
Commissioners and county officials cited recent chemical fires as why the county attorney needed to file environmental lawsuits as soon as possible after an event to “protect the public and the environment, to preserve evidence; and to prevent additional negative impacts to the community.”
Who sues first dictates not only where the case will be heard, but also where the money will go if there are civil penalties. If Harris County leads with the state being a party to its lawsuit, the money is split between both parties. But if the state sues without the local government’s involvement, it goes back to the state’s general revenue.
“We strongly believe that the law is on our side — that the Harris County Attorney has the right to file the suit,” Harris County Attorney Vince Ryan said in a written statement after the Friday hearing before Judge Beau Miller.
“It is imperative that we keep issues like this in local courts for local juries to decide,” he added.
According to a news release from the county attorney’s office, Miller expressed concerns that decisions about Harris County were being made in Austin and “questioned whether or not intervention on behalf of Harris County was possible in the cases in Travis County.”
As chemical plant explosions and fires have disrupted lives and raised air-quality concerns in the Houston area this year, the state and its most populous county have been racing to the courthouse to take the lead in penalizing polluters.
Although, the state’s more active role has aroused suspicions among some local officials and environmentalists, who believe state leaders with a record of pro-business actions may be trying to take control to soften the blow of any court rulings against major corporations.
Miller is expected to decide on the case by Jan. 31.
Judge Clears Exxon in Investor Fraud Case Over Climate Risk Disclosure, The judge excoriated the New York AG, but also said: ‘nothing in this opinion is intended to absolve Exxon from responsibility for contributing to climate change.’ by Nicholas Kusnetz and David Hasemyer, Dec 10, 2019, Inside Climate News
A New York judge has cleared ExxonMobil of allegations that it misled investors about the risks posed to its business by climate regulations, handing the oil giant a major victory in the first trial of a fossil fuel company involving climate change.
Justice Barry Ostrager sided entirely with Exxon on the claims brought against it by the New York Attorney General’s Office, saying that he found all the company’s witnesses to be truthful [!!!!!!!!!!!!!!!!!!!!!!!!] and that the state had failed to present any evidence that convincingly cast doubt on their testimony. [Or, was it pro-polluter judicial bias at work, as usual?]
While he praised Exxon’s executives [!!!!!!!!!!!!!!!!!!! Judicial overkill?] for “rigorously discharging their duties in the most comprehensive and meticulous manner possible,” the judge excoriated the attorney general’s case, saying it failed to establish that any investor was misled.
Ostrager also made clear, however, that “nothing in this opinion is intended to absolve ExxonMobil from responsibility for contributing to climate change,” adding that the company’s emission of greenhouse gases was not on trial. “ExxonMobil is in the business of producing energy, and this is a securities fraud case, not a climate change case,” he wrote.
The attorney general had accused Exxon of essentially using two sets of books when it came to evaluating the costs of future climate regulations. Exxon did in fact have two different estimates for what those costs would be, one that was higher and made public in numerous reports, and another that was lower, not disclosed, and which the company used internally to evaluate its own investments. The state had argued that this practice falsely assured investors that the company was taking the risks of regulation seriously, when in fact it was being much less cautious.
In order to win, the attorney general had to establish that Exxon had made “materially misleading” statements—statements that were not only false but that a reasonable investor would have considered important when considering whether to buy or sell the company’s stock.
On both counts, Ostrager wrote, the attorney general failed.
Exxon spokesman Casey Norton said the ruling affirms that the company “provided our investors with accurate information on the risks of climate change,” adding, “lawsuits that waste millions of dollars of taxpayer money do nothing to advance meaningful actions that reduce the risks of climate change.”
Attorney General Letitia James viewed it through a different lens: “For the first time in history, ExxonMobil was compelled to answer publicly for their internal decisions that misled investors,” she said in a statement provided by spokesman Fabien Levy.
James maintained that Exxon had failed to tell the truth, which she said “further underscores the lies that have been sold to the American public for decades.”
While the ruling ends a grueling battle for Exxon against New York, the company still faces more than a dozen pending climate lawsuits across the country.
New York’s case relied on state securities fraud laws and focused narrowly on Exxon’s disclosures to investors over the past five years.
Most of the other lawsuits focus more broadly on the fossil fuel company’s allegedly deceptive marketing and public relations campaigns stretching back decades, and several legal experts said the New York ruling will have little if any impact on these cases.
“Exxon may have beat the rap” [Via diddle money in the judge’s pocket?] in the New York securities case, said Pat Parenteau, a professor of environmental law at the Vermont Law School, “but it can’t escape the history of deception that has exacerbated the damage from climate change.”
The decision by Ostrager, a judge in the commercial division of the New York Supreme Court in Manhattan, may have a more direct bearing on efforts to pressure oil companies to disclose more about the risks they face as governments try to limit greenhouse gas emissions. The trial centered around just such a campaign that Exxon had faced beginning in 2013.
“This doesn’t hold the company accountable for what it tells investors and what it does in practice,” said Natasha Lamb, managing partner of the sustainable investment firm Arjuna Capital, who was part of the 2013 campaign and testified against the company at trial.
“That sets a dangerous precedent that companies can say one thing and do another and not be held accountable,” she said.
But this is hardly the end of these cases, said Ken Kimmell, president of the Union of Concerned Scientists.
“ExxonMobil is not off the hook,” Kimmell said. “More than a dozen communities within the U.S. are already suing such companies for their fair share of local climate damages.”
Exxon’s Two Different Cost Estimates
New York launched its case against Exxon more than four years ago, when then-Attorney General Eric Schneiderman issued a subpoena seeking a broad set of documents covering decades of internal communications and records related to climate change, including research, marketing and business practices.
The subpoena followed an investigative series of stories by InsideClimate News, and later the Los Angeles Times, that disclosed that Exxon researchers knew in the mid-1970s that burning fossil fuels likely accelerated global warming and foresaw catastrophic consequences. Despite this knowledge, the companies later spent millions to promote misinformation about climate science.
When New York filed its complaint in October 2018, it focused squarely on what Exxon disclosed to investors and the company’s estimations of the future costs that climate regulations would impose on its business.
Specifically, the lawsuit said that even as the company was disclosing to investors that it used an escalating cost of carbon estimate to evaluate its investments, it was actually applying much lower estimates internally.
During the trial, Exxon executives—including former chief executive and former Secretary of State Rex Tillerson—explained that this higher, public figure, which it calls a “proxy cost,” was used only for estimating future oil and gas demand. The lower estimate, executives said—called a “ghg cost”—was used internally to approximate direct costs that Exxon’s operations would face from specific regulations, such as a tax in a given jurisdiction.
In its defense, Exxon’s witnesses repeatedly pointed to a single sentence in one report the company published in 2014 in response to the campaign by Lamb and other investors. Exxon argued that the sentence did in fact disclose that the company had a “ghg cost” distinct from its proxy cost that it used when evaluating investments. The attorney general’s lawyers argued that it was unreasonable to expect that investors would have understood the meaning of the sentence. They pointed to examples where a market analyst, Exxon’s external accountant and even one former executive appeared to conflate the two terms, arguing that no reasonable investor would have understood the distinction. Ostrager was unconvinced.
Perhaps, he wrote, the passage “could have been written in bold type, but the sentence was consistent with other ExxonMobil disclosures and ExxonMobil’s business practices.”
Ostrager also said the attorney general’s lawyers had failed to make the case that this distinction, or any alleged failure to provide clear disclosures about it, registered as important to the investment community.
That finding was a disappointment to Andrew Logan, who runs the oil and gas program at Ceres, a nonprofit that advocates sustainable business practices and was involved in the campaign to pressure Exxon in 2013.
“It’s really frustrating to see this judge not appreciate just how important of a financial issue climate change is for investors, to use language that is fairly sweeping in its scope that I think the evidence doesn’t support,” said Logan, who represents large institutional investors in communications with Exxon and other energy companies. “Hopefully this is an aberration in terms of the courts not being willing to acknowledge climate change as a material issue for mainstream investors.”
Climate Lawsuits Beyond New York
Ostrager’s ruling hands Exxon a major public relations victory as it battles a bevy of lawsuits it faces across the country. Massachusetts filed a complaint earlier this year that more broadly accuses Exxon of both consumer and investor fraud.
A spokeswoman for the Massachusetts attorney general’s office said the New York ruling will not deter prosecutors from pressing their case against Exxon.
“We will continue our work to hold the company accountable for its misrepresentations,” said Chloe Gotsis, spokeswoman for Attorney General Maura Healey.
The bulk of the climate lawsuits—brought by more than a dozen cities, counties and one state—are much different in nature. They accuse Exxon and other fossil fuel companies of harming the public by continuing to market and sell products that they knew posed a threat to society. These cases focus on the oil and gas industry’s decades-long effort to sow doubt about climate science, even as internal corporate reports had warned of the risks of climate change.
These plaintiffs are seeking compensation from the companies for helping to pay the costs associated with the effects of climate change, including worsening heat waves, more extreme rainfall and rising seas. And Ostrager’s ruling, experts say, is unlikely to influence rulings in these other cases.
“It’s a footnote, absolutely no more than that,” said David Bookbinder, who is part of the legal team representing a group of local governments in Colorado in their suit against Exxon and Suncor, a Canadian oil company. Bookbinder, who is also chief counsel at the Niskanen Center, a nonpartisan think tank, said Exxon’s lawyers may try to point to the ruling to establish the company’s credibility, but that it wouldn’t actually play into any decisions by judges overseeing his case or any similar lawsuits around the country.
Industry groups including the National Association of Manufacturers have dismissed these lawsuits as politically motivated, and Phil Goldberg, a special counsel for the manufacturers group welcomed Ostrager’s ruling, saying it showed that the lawsuits “have no place in the courtroom.”
In his opinion, Ostrager wrote that Schneiderman had made “certain politically motivated statements” before the case was filed, a position Exxon maintained during the course of the years-long investigation, but which the attorney general’s office denied.
Celia Taylor, a professor of securities and corporate law at the University of Denver, said Ostrager’s ruling is narrowly focused and not a sweeping win for Exxon or the industry. In particular, she said New York’s attorney general faced a much higher burden of proof in its case than its counterpart in Massachusetts.
“They simply have to prove Exxon deliberately misled the public through its advertising,” Taylor said of lawyers for the Massachusetts attorney general.
The ruling marks a win for Exxon and the industry, but it does not put them in the clear on climate change, said William Ruskin, a long-time New York industry defense lawyer who is active in environmental issues.
“This is a brutal and very reasoned decision by a judge extremely upset by the way the attorney general tried this case,” he said, adding, “Securities fraud is not the way to go after companies with poor track records on climate change.”
Emails Reveal U.S. Justice Dept. Working Closely with Oil Industry to Oppose Climate Lawsuits; DOJ attorneys describe working with industry lawyers as a ‘team,’ raising questions about whether government was representing the American people by David Hasemyer, Jan 13, 2019, Inside Climate News
In early 2018, a few months after the cities of Oakland and San Francisco sued several major oil companies over climate change, attorneys with the U.S. Department of Justice began a series of email exchanges and meetings with lawyers for the oil companies targeted in the litigation.
At one point, Eric Grant, a deputy assistant attorney general in the Justice Department’s Environment and Natural Resources Division, sent an email to Indiana’s solicitor general saying that his “boss” had asked him to set up a meeting to go over a plan for the government to intercede in the cases on the companies’ behalf.
The cities were arguing that oil companies should be held liable for catastrophic flooding, sea-level rise and other harmful consequences caused by climate change. The DOJ was preparing an amicus brief in support of the industry, and the Indiana solicitor general was leading the charge by Republican attorneys general from 15 states to also file a court brief supporting the industry.
In another email, an assistant U.S. attorney general referred to the DOJ attorneys and industry lawyers—many of them former DOJ environmental lawyers—as a “team.”
The messages were among 178 pages of emails exchanged by government and industry from February through May 2018 as they worked together to oppose the cities’ lawsuits. They were obtained by the Natural Resources Defense Council (NRDC) under a federal Freedom of Information Act request and shared with InsideClimate News.
Although the emails do not reveal the substance of discussions that took place during the meetings, they bespeak the unapologetically close relationship between the Trump administration and the oil industry. They also provide a window into the closely coordinated efforts to block the climate lawsuits between industry and the Justice Department’s environmental division, which touts itself as “the nation’s environmental lawyer, and the largest environmental law firm in the country.”
Legal experts say the conversations raise questions about the federal government’s objectivity and whether the Department of Justice, in these cases, was acting in the best interest of the country’s people.
The “boss” to whom Grant, the deputy assistant attorney general, referred in his email at the time was Jeff Wood, the Trump-appointed acting assistant attorney general leading the Environment and Natural Resources Division. Wood had landed at the DOJ after serving on the Trump-Pence campaign and after an earlier stint as staff environmental counsel to then-Sen. Jeff Sessions, who would become Trump’s attorney general.
Wood declined to comment, though he cited a footnote in the order by U.S. District Court Judge William Alsup dismissing the cases that the federal government’s amicus brief supporting the oil industry had been submitted “at the Court’s invitation.” The dismissal is now being appealed.
Judge Alsup Judicial Check:
Judicial Tragedy: U.S. District Judge William Alsup wanted to “stick to the science” and avoid politics, presided over standing room only tutorial on climate change, but let big oil off using politics. Science is on humanity’s side, the law is not.
End Judge Alsup Judicial Check!
Neither Grant nor his colleagues involved in the meetings with the industry responded to a request for comment. The Justice Department and industry lawyers also did not respond.
The climate lawsuits that grabbed Wood’s attention argue that the companies created a public nuisance—climate change—by producing fossil fuels that become the principal cause of global warming when burned.
“The rapidly rising sea level along the Pacific coast and in San Francisco Bay, moreover, poses an imminent threat of catastrophic storm surge flooding because any storm would be superimposed on a higher sea level,” the lawsuit filed by Oakland officials states. “This threat to human safety and to public and private-property is becoming more dire every day as global warming reaches ever more dangerous levels and sea level rise accelerates.”
The emails cover a period beginning in February 2018, six months after climate cases were filed, and ending in May, a few weeks after the Justice Department filed the amicus brief on behalf of the five oil giants named in the lawsuits.
At one time or another, six attorneys—one-quarter of the attorneys assigned to division’s Law and Policy Section—were brought into the loop with industry.
Justice Department attorneys had multiple conference calls with attorneys for BP and Chevron and hosted at least one in-person meeting at DOJ headquarters in Washington, prompting an attorney for BP to write at one point “thanks again for the helpful discussion last week,” according to the emails. The string of electronic notes shows the extensive effort DOJ attorneys made in coordinating various meetings with their oil industry counterparts.
One of the Justice Department lawyers the emails identified as participating in the strategy sessions with the industry has notified the appeals court considering the case that she will be appearing during the time allotted for the industry to present its arguments next month. [WOW, just filthy WOW!]
[Did Encana and Alberta govt lawyers have little chats with Ernst’s lead lawyer, Murray Klippenstein, suggesting/directing/threatening that he suddenly, for no valid reason, quit her lawsuit; rudely and bullyingly withhold her website and trust funds of $40,000.00 for about a year to further stress and harass her; and refuse to return Ernst’s files that she needs to proceed with her lawsuit (withheld now for over 500 days with no files in sight and Klippenstein ignoring Ernst’s correspondence even though he and Cory Wanless continue to represent clients that retained them years after Ernst did), as a cheap and easy way to get rid of Ernst while not hanging a rotting shadow over the courts and defendants? Perhaps discretely directed by a judge or two or nine? Canadian “justice” smelly sewer style?]
Just Raised Eyebrows or Red Flags?
Because the emails do not reflect the substance of the meetings, Justin Levitt , a law professor at Loyola Law School in Los Angeles, said it is difficult to assess whether ethical lines were crossed. [Is he a frac’d academic? Lots of those in North America.]
“If these meetings discussed the logistics of a DOJ amicus filing but not the substance of what the DOJ would file, it may be reason to raise an eyebrow but not a red flag,” he said.
It would be unusual and trigger questions if the meetings delved into the issues raised in the lawsuits, said Smith, a former deputy assistant attorney general in DOJ’s Civil Rights Division.
“It wouldn’t pass the sniff test if the DOJ was trying to address substantive issues,” he said. “If the meetings were about the logistics, there’s nothing improper.”
In its amicus brief, signed by Wood, the government argues the lawsuits violate the constitutional principle of separation of powers between the federal and state governments.
“Balancing the nation’s energy needs and economic interests against the risks posed by climate change should be left to the political branches of the federal government in the first instance,” Wood wrote in the brief. [Who in their right mind would trust the Trump govt, or anyone in it?]
“The United States has strong economic and national security interests in promoting the development of fossil fuels, among other energy resources,” he wrote.
Wood, who has since left the justice department to become a partner in a Washington D.C. law firm representing clients in federal enforcement actions, also cites a 2017 executive order issued by President Donald Trump saying: “It is in the national interest to promote clean and safe development of our Nation’s vast energy resources.” [Trouble is, no fossil fuels are cleanly and safely developed, especially now that most are frac’d!]
No Similar Conversations with the Cities
Pete Huffman, a staff attorney for NRDC, acknowledged the emails offer just a glimpse into the behind-the-scenes action, but says they are enough to raise serious questions.
“We would expect them to be working in what they think are the best interests of the United States,” he said.
“We don’t think that working with the industry against climate action in most of these places is in the best interests of the United States.”
“We don’t know all the facts from these documents, but it starts to look less like trying to get to the best interests of the United States and more like coordinating in the best interests of the industry,” he said.
The conclusion of favoritism cannot be discounted because the emails do not reflect an attempt by DOJ to contact either the cities of Oakland or San Francisco, Huffman said.
“I can tell you for sure that DOJ never reached out to us,” said Alex Katz, chief of staff for Oakland City Attorney Barbara J. Parker. The same for the San Francisco city attorney’s office, said spokesman John Cote.
A spokesman for the law firm now handling the two cases declined to comment.
Acting in Whose Best Interest?
Pat Parenteau, a professor of environmental law at the Vermont Law School, calls the apparent collaboration “troubling.”
While it’s within the realm of DOJ to express its view on the legal foundation of any case, the department should [Handy escape hatch word, one of the industry’s favs] remain as objective as possible without the appearance of taking sides, he said.
The government, he said, should have no contact with either side and simply express an opinion on the legal issues and allow the court to decide.
“From just the appearance standpoint here, it’s troubling to see any coordination,” Parenteau said.
That’s an especially disconcerting line to cross in the climate cases where the public has been put in jeopardy by the industry’s role in climate change, he said.
“The DOJ is supposed to represent the best interest of the people,” he said. “In these cases there is an existential threat to the public. So clearly the government is defending against the best interest of the public by cozying up to the industry.”
In a March 20 email, for example, Assistant U.S. Attorney Christine Ennis wrote to Ethan Shenkman, an attorney representing BP, inviting a conversation regarding the California cases.
“Jim Kilbourne, (an assistant U.S. attorney) who is copied here, told us that you would be interested in discussing the nuisance lawsuits filed against BP,” Ennis wrote. “Justin Smith and I would be happy to speak with you.”
The BP lawyer responds two days later: “Christine – many thanks for reaching out.”
A few weeks earlier, an attorney for one of the oil companies sent a note reminding a Justice Department lawyer that a judge in California had set a filing deadline for DOJ’s brief supporting the industry. [Dirty dirty dirty frac’ers, judges the dirtiest of them all!]
“Thank you for forwarding this,” Assistant U.S. Attorney Justin Heminger responded. “Best regards.”
The Oakland and San Francisco cases—as well as the dozen other climate lawsuits—remain gridlocked in various legal proceedings from California to New York.