You remember the 1980s, right? Big hair, badass music, Reaganomics, and the rise of Donald Trump. But you might not remember that Exxon, in addition to pumping oil, spent much of the decade producing climate research very much in line with today's scientific consensus. That's right: The company's researchers were saying that its own products were contributing to global catastrophe.
And the company listened, taking the research seriously when considering the emissions consequences of tapping large oil reserves. But toward the end of the decade, Exxon changed tack. Suddenly the company wasn't so sure of the science. So Exxon founded, and funded, organizations committed to reeducating the public on climate science.
Scientists, activists, and historians have linked those groups to the worldwide stall in taking action against climate change. A crime against humanity? Perhaps. But it's not humanity that is now holding Exxon accountable. The real crime, according to state attorneys general from New York and California, was against the company's shareholders.
Last week, California's attorney general announced it was investigating to see whether Exxon had lied about the risks of climate change. New York's attorney general launched a similar inquest last November. Both investigations pay lip service to possible harm the company's lies might have done to the public. There's an irony here: If the law finally does come down on an oil company, the charges won't be for damages done to the planet. It will more likely be the for the crime of lying to investors about the risks climate change posed to Exxon's own bottom line.
If corporations have an Achilles' heel, it's that they have an obligation to tell their investors about anything that might affect business. "Climate disruption is a risk to Exxon in two basic ways," explains David Driesen, professor at Syracuse University College of Law. "One is through directly disrupting their refineries and drilling operations." Through sea level rise, or intensified storms, for instance. "And the second is through regulatory risks," says Driesen.
Fear of regulation is possibly what spooked Exxon into forming organizations like the Global Climate Coalition, which cast doubt on the scientific consensus around climate change. According to Inside Climate News, whose 2015 investigative report called "The Road Not Taken" helped expose Exxon's pivot from research to denial, the company cofounded that group shortly after NASA's James Hansen briefed Congress on the dangers of climate change in 1988. That pivot is central to both states' investigations.
Beyond the heaps of evidence dug up by Inside Climate News---and a parallel investigation by the Los Angeles Times---the state attorneys have the power of subpoena, which lets them access internal company documents. And if those documents show that 1990s Exxon believed anything counter to public discourse, the company could be hosed. This doesn't necessarily need dripping red-handed admissions, like those found in the internal documents that tanked the tobacco industry in the 1990s. That's because the law is, in many ways, more protective of investors than it is of public health.
This goes way back to the Depression, when New York enacted the Securities Exchange Act of 1934. "If you make false statements, the prosecutor doesn't have to show that you knew they were false," says Driesen. This means corporations can't just spout off without knowing the facts. "You're not allowed to have the pure heart, empty mind excuse." California's laws aren't quite so strict, but the state is hoping to make headway on the same general grounds.
And it's not just adhering to strict securities laws that would have forced Exxon to keep up with climate research. As one of its former scientists told the LA Times in 2015:
That quote alone looks like pretty damning for Exxon. But to have a case, the state attorneys also have to prove that this deception harmed investors, or somehow altered investor behavior. "Some kind of signal that a reasonable investor would have even wanted that information," says Michael Chasalow, professor at USC's Gould School of Law.
Both states' attorneys general are also investigating Exxon for lying to the public. Which would probably be a more satisfying conviction for climate activists, but far more difficult to land. Think of it like trying to sue Exxon for personal injury or property damage through climate change: harmed health, ruined pensions, property damage, and so on. "Even Exxon is only responsible for a tiny part of world’s emissions," says Driesen.
Altogether, this means there's not much hope that climate activists will see criminal charges brought against Exxon. "There are some weaknesses in the securities law, and there’s also uncertainty on the side of ExxonMobil," says Chasalow. "That’s why I think it would ultimately be settled out of court."
Settlements aren't ideal, because even though they hit against a company's bottom line, they don't hold it legally responsible to change its behavior. But that's not to say the public shame of being brought to settle won't nudge Exxon in the right direction. And the threat of a big government settlement could convince other fossil fuel corporations to clean up their acts. "These companies are big enough that they could get away from oil and start investing in renewables, or nuclear," says Driesen. "They could invest in anything." For once, laws meant to protect Wall Street could end up helping everyone.
