“An Orchestrated Campaign” (behind those climate lawsuits)

Well-devised and generously funded environmental campaigns are nothing new. But from the very beginning, the #ExxonKnew campaign has been different. It has brought together activists, rich donors (like the Rockefellers), academics, and even organizations that pass themselves off as news outlets.

It has manufactured its own echo chamber not just as a vehicle for advocacy, but also to prod government officials to open investigations into entities that haven’t supported the kinds of policies that environmentalists want.

If you think that sounds like a threat to free speech, you’re right – and the #ExxonKnew activists have admitted they are doing exactly that. But first, let’s take a look at how all of this started.

Background

The origins of #ExxonKnew go back several years, with the most obvious starting point being a June 2012 conference in La Jolla, California. Two organizations – the Union of Concerned Scientists and the Climate Accountability Institute – held a strategy session on how they could develop a campaign to seek financial compensation from American energy companies for the effects of climate change. Attendees included environmental campaigners, lawyers with a history of suing the oil and natural gas industry, and even academics like Harvard University’s Naomi Oreskes.

The workshop attendees identified how strategic litigation could bring internal company documents into the public domain, which activists could then use to develop new narratives against the targeted companies. Their goal from the beginning: use litigation to link energy producers and tobacco companies, according to a summary report that the workshop attendees published:

One of the most important lessons to emerge from the history of tobacco litigation is the value of bringing internal industry documents to light.

The first suggested means of obtaining internal documents was through legal avenues—including recruiting friendly state attorneys general to launch investigations under racketeering laws.

State attorneys general can also subpoena documents, raising the possibility that a single sympathetic state attorney general might have substantial success in bringing key internal documents to light.

Both strategies began to take shape in 2015.

Phase 1:  Priming the Pump with “Sympathetic State Attorneys General”

As documents made available through Freedom of Information Act (FOIA) requests have shown, activists present at the La Jolla conference have been meeting with state attorneys general and encouraging them to launch a campaign against ExxonMobil, just as they said they would in 2012.

One log of correspondence shows that Lee Wasserman with the Rockefeller Family Fund contacted the New York Attorney General’s Office frequently in early 2015 regarding the “activities of specific companies regarding climate change.” The Rockefeller Family Fund has bankrolled groups like Bill McKibben’s 350.org, the Union of Concerned Scientists, and InsideClimate News, all of which have played prominent roles in attacking energy companies over climate change.

In a July 21, 2015, email to a fellow activist, Peter Frumhoff with the Union of Concerned Scientists wrote, “we think there’ll likely be a strong basis for encouraging state (e.g. AG) action forward, and in that context, opportunities for climate scientists to weigh in.”

Friends of the Earth President Erich Pica emailed the Maryland Attorney General’s office in November 2015, offering to brief him on “the potential consumer related complaints and other authorities re: ExxonMobil.”

Phase 2: Publish “News” for AG Investigation

The timing of the actions by the Rockefeller Family Fund and the Union of Concerned Scientists are important, because they preceded publication of major reports that suggest those actions were indeed part of a broader political campaign.

On September 16, 2015, InsideClimate News published the first article in its #ExxonKnew series, falsely alleging that ExxonMobil worked on the cutting edge of climate research, but then “curtailed” that research and funded groups to deny the existence climate change.

A few weeks later, on October 9, 2015, the Los Angeles Times published another article that was nearly identical in focus and tone, written by students at Columbia University’s Graduate School of Journalism. Both InsideClimate News and the Columbia Graduate School of Journalism have received large sums of money from Rockefeller-linked foundations, including the Rockefeller Brothers Fund and the Rockefeller Family Fund.

InsideClimate News, in its cover letter for consideration for the Pulitzer Prize, described the Columbia team’s work as “completely independent” of theirs, but conceded that the Los Angeles Times’ story “corroborated our accounts.” However, two months before the Pulitzer cover letter was submitted, E&E News reported that “both teams knew of each other’s pursuit of the same story.”

Documents obtained in public records requests have also confirmed that InsideClimate News, far from an objective news source, was an active participant in the #ExxonKnew campaign all along. Prior to publication of one of its #ExxonKnew stories in September 2015, David Sassoon – InsideClimate News’ publisher – emailed an embargoed version to several staffers at Climate Nexus, a Rockefeller-backed PR firm. A Climate Nexus staffer then emailed a group of activists calling for government prosecution of climate skeptics, adding that the #ExxonKnew story would provide the “perfect news hook” for their effort to go after “deniers.”

The InsideClimate News and Columbia teams’ work attracted attention because these organizations had published previously unseen documents, providing an obvious media hook, which was also a key tactic outlined during the La Jolla conference in 2012. Sassoon even told the Pulitzer committee that his team had “unearthed” the papers.

But many of the documents, reports, and memos cited in the Los Angeles Times and InsideClimate News reports were procured from ExxonMobil’s own public archives at the University of Texas, as well as peer-reviewed academic journals. However, the Rockefeller-backed entities had done their job: the public discussion was now on these “key internal documents,” as the La Jolla activists had envisioned it.

Within weeks of these reports’ publication, the most “sympathetic” state attorney general – Eric Schneiderman (D) of New York – announced he had opened an investigation into ExxonMobil’s statements on climate change. In the months that followed, attorneys general from Massachusetts and the Virgin Islands announced their own probes.

The same day that the New York AG’s office issued its subpoena, InsideClimate News referenced a “person familiar” with Schneiderman’s investigation, who told the group that the Los Angeles Times and InsideClimate News reports made the issue “more ripe” for an investigation of ExxonMobil.

Less than a week later, in response to questions referencing the reports from InsideClimate News and the Los Angeles Times, Schneiderman told PBS that “the public record is troubling enough” that “we decided we had to bring this investigation.”

Phase 3: Activist “Delegitimize” Strategy Begins

On March 29, 2016, Schneiderman, flanked by several other state attorneys general and former Vice President Al Gore, held a press conference announcing an “historic state-based effort to combat climate change.” During the presser, Massachusetts Attorney General Maura Healey announced that she would launch an investigation of ExxonMobil, basing her decision on information learned through the InsideClimate News and Los Angeles Times reports. But her comments suggested she had already determined ExxonMobil’s guilt before her investigation had even begun:

Fossil fuel companies that deceived investors and consumers about the dangers of climate change should be, must be, held accountable. That’s why I too have joined in investigating the practices of ExxonMobil. We can all see today the troubling disconnect between what Exxon knew, what industry folks knew, and what the company and industry chose to share with investors and with the American public.

The #ExxonKnew activists, however, had played a key role behind the scenes prior to that press conference.

As Reuters reported in April 2016, the AGs present at the press conference “received guidance from well-known climate scientists and environmental lawyers in March as some of them opened investigations into Exxon Mobil for allegedly misleading the public about climate change risks.” Reuters went on to describe this as a “previously unknown level of coordination with outside advisors.” Those advisors included Peter Frumhoff from the Union of Concerned Scientists and Matt Pawa, who previously “litigated against Exxon in a global warming case,” according to Reuters. Frumhoff helped organize the 2012 La Jolla conference, while Pawa had been a key presenter on possible legal tactics.

When asked about the meeting, Lee Wasserman from the Rockefeller Family Fund said the coordination should be “considered a good thing – not a conspiracy.”

But that was not the only coordination. A leaked memo from a meeting at the Rockefeller Family Fund’s offices in New York detailed a January 8, 2016, strategy session that brought together folks like Bill McKibben and Jamie Henn of 350.org, Kert Davies, Sharon Eubanks, Bradley Campbell of the Conservation Law Foundation, Carroll Muffett of the Center for International Environmental Law, Naomi Ages of Greenpeace, and – once again – Matt Pawa.

The goals listed on the agenda included establishing “in the public’s mind that Exxon is a corrupt institution,” and to “delegitimize [ExxonMobil] as a political actor.” They would also consider which strategies would be ideal for “creating scandal.”

Phase 4 (present): Cover Blown, but Campaign Continues

In June 2016, facing public backlash and concerns about threats to the First Amendment, the Virgin Islands’ AG withdrew his #ExxonKnew subpoena. In October 2016, a federal judge issued a discovery order to Massachusetts Attorney General Maura Healey to determine whether “bias or prejudgment” influenced her decision to initiate a “bad faith” investigation into ExxonMobil. The judge referenced Healey’s remarks at the press conference with Al Gore, and how her comments suggested she had prejudged the outcome of her investigation. In November, the judge extended that discovery order to include Schneiderman.

Emails obtained under Freedom of Information requests have also shown that many of the state AGs invited to the March 29, 2016, press conference with Schneiderman and Al Gore actually refused to join the #ExxonKnew campaign, over concerns about its scope and intent.

David Kaiser of the Rockefeller Family Fund and Valerie Rockefeller Wayne of the Rockefeller Brothers Fund appeared on CBS This Morning with Charlie Rose in December 2016 and confirmed what InsideClimate News and the Columbia Graduate School of Journalism had repeatedly denied: they funded those groups with the explicit purpose of writing the original #ExxonKnew pieces.

When asked about the Rockefellers funding the #ExxonKnew reports few months earlier, Lee Wasserman from the Rockefeller Family Fund told Reuters that their support was more general in scope:

We supported public interest journalism to better understand how the fossil fuel industry was dealing with the reality of climate science internally and publicly…. No specific company was targeted in our push to drive better public understanding and better climate policy.

But Kaiser and Wasserman then admitted the exact opposite, writing in the New York Review of Books in December 2016:

With help from other public charities and foundations, including the Rockefeller Brothers Fund (RBF), we paid for a team of independent reporters from Columbia University’s Graduate School of Journalism to try to determine what Exxon and other US oil companies had really known about climate science, and when. Such an investigation seemed promising because Exxon, in particular, has been a leader in the movement to deny the facts of climate change.

That same month, Kaiser and Wasserman finally disclosed in a separate column that they met with New York Attorney General Eric Schneiderman and pressured him to launch an investigation:

The Rockefeller Family Fund (RFF) informed state attorneys general of our concern that ExxonMobil seemed to have failed to disclose to investors the business risks of climate change. We were particularly encouraged by Schneiderman’s interest in this matter, because New York’s Martin Act is arguably the most powerful tool in the nation for investigating possible schemes to defraud.

Today, the #ExxonKnew campaign continues, but the wealthy donors and environmental activists who manufactured the controversy have little to show for their years of work. New York’s investigation has been such a dead end that Schneiderman has repeatedly changed his stated purpose for launching the probe, desperately searching for any new angle to justify his crusade. Research published by #ExxonKnew activists confirmed that the campaign was about attacking a company for its advocacy on particular policies, suggesting an attempt to squelch free speech – a far cry from the original claims about so-called “fraud.”

Perhaps frustrated by the lack of progress from the state attorneys general, the La Jolla activists have adjusted their strategy. They have convinced several cities and counties, mostly in California, to sue energy companies over alleged “damages” from climate change. But that new tactic may be backfiring: the municipal plaintiffs are suing for damages that they downplayed to their own investors, raising questions about possible securities fraud. Several of the plaintiffs misrepresented evidence and were called out by a federal judge. New York City is suing oil and natural gas companies for causing climate change, even as it uses oil and natural gas to mitigate climate change.

From the very beginning, the #ExxonKnew campaign was orchestrated by the Rockefellers and anti-fossil fuel activists who want oil and natural gas companies to “pay” for climate change. It started in La Jolla, but it’s unclear where it will end.

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This article originally appeared at Energy in Depth. Readers are encouraged to follow climate legal issues here.