Texas AG On Why He’s Defending Exxon Against Global Warming Subpoena

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Michael Bastasch Contributor
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Texas Attorney General Ken Paxton said his recent decision to intervene in the legal battle between ExxonMobil and the attorney general of the U.S. Virgin Islands was based on First Amendment and due process concerns.

“Exxon is a resident of the state of Texas, and we felt this was an attack on their first amendment rights,” Paxton, a Republican, told The Daily Caller News Foundation, adding the Virgin Islands’ investigation into Exxon is a “huge due process issue for us.”

Paxton recently filed a brief supporting Exxon’s argument a subpoena sent by Virgin Islands AG Claude Walker violated their First Amendment rights and their rights to due process. Exxon filed suit against Walker after he issued a subpoena demanding decades of documents related to the company’s global warming stance, including correspondence with conservative think tanks and scientists.

“They have every right to have their opinions on climate change. In my opinion you cross the line when you start prosecuting individuals for disagreeing with you,” he said.

Walker also subpoenaed the Competitive Enterprise Institute, a libertarian think tank as part of his Exxon investigation. CEI has fought back and recently asked federal court to fine and sanction Walker and the private law firm he’s using to handle his case. Walker has withdrawn his subpoena to CEI, but has also threatened to reissue it.

Paxton and Luther Strange, Alabama’s AG, are the first AGs to intervene in support of Exxon. That’s opposed to the AGs of California, Massachusetts, New York and the Virgin Islands — all of whom are investigating Exxon for supposedly lying to the public or investors about global warming. The investigations are based on reporting from InsideClimate News and Columbia University.

But news has come out since Walker began his investigation in April, including the AG’s use of a law firm specializing in big dollar class action lawsuits to handle his investigation. That’s the one of the details of Walker’s probe that bothers Paxton the most.

“This is a fishing expedition, we feel like he’d have better luck fishing off the Virgin Islands, not in Texas,” Paxton said.

Walker hired the D.C.-based firm, Cohen Milstein Sellers & Toll PLLC, which recently helped him get an $800 million settlement with the owner of an oil refinery who was sued under the same anti-racketeering law Exxon is being investigated under.

Cohen Milstein attorney Linda Singer won her firm $15 million for handling the refinery case, and Exxon and Paxton believe she is investigating Exxon in exchange for a percentage of the winnings as well.

Singer, the former attorney general for the District of Columbia, has made a career of getting business from cash-strapped attorneys general in exchange for a share of the financial rewards. A 2014 New York Times article detailed how Singer goes about getting AGs to sue — or threaten to sue — all sorts of industries, from pharmaceuticals to big banks, for huge sums of money. Her firm pays the upfront legal costs in exchange for a share of the rewards — usually between 15 to 25 percent of a settlement.

Paxton says the use of a private law firm with a financial incentive in seeing a judgement against Exxon violated the company’s constitutional rights. Paxton’s legal filing notes “the use of contingency fees is highly suspect in criminal cases and, more generally, when fundamental rights are at stake.”

But more importantly, Paxton hopes his intervention in the case sends a message to other AGs to stand up when individuals or companies in their state are being targeted for ideological reasons. He’s also hoping to dissuade other state and federal prosecutors from investigating fossil fuel companies for global warming.

“I’m hopeful this action we’ve taken we’ll make them think twice,” he said.

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