With the launch of an investigation into Exxon Mobil Corp.'s climate stance by New York's attorney general, talk of wide-ranging tobacco-style litigation against Exxon and other oil and gas companies has amplified.
But if the Exxon inquiry does blow up into a battle against civil and criminal charges, the oil and gas major may have one big advantage that the tobacco industry, which for years denied that smoking was injurious to human health, did not: lessons from the tobacco industry's flawed defensive tactics that led to a $206 billion settlement.
Recent investigations by InsideClimate News and the Los Angeles Times in collaboration with the Columbia University Graduate School of Journalism uncovered a deep disconnect between Exxon's public stance on climate change and what its own research confirmed as early as the 1980s. The revelations invited the ire of not just environmentalists but Democratic presidential hopefuls like Bernie Sanders and Hillary Clinton, who called for probes into whether Exxon misled the public and its own shareholders about the threat from climate change to its business.
Last week, ClimateWire spoke to Steve Coll, author of "Private Empire: ExxonMobil and American Power" and dean of the Columbia Journalism School, about his scrutiny of Exxon for the 2012 book and his later involvement with students at the school in the investigation of the company.
About halfway through reporting for what became a 600-page tome on Exxon's extraordinary economic and political clout, Coll realized that a credible account of the massive company's history couldn't omit its early discoveries of the climate threat and its later bid to question the science that supports it.
While reporting on Exxon's climate strategies for the book, Coll described how some people who were knowledgeable about the issue told him: "Don't let them tell you they thought the science was uncertain, because the message that came into our department was, see how a warming Earth will create exploration opportunities." The two-time Pulitzer Prize-winning journalist was thunderstruck.
Coll dealt with Exxon's climate stance in a chapter titled "Is the Earth Really Warming?" a rhetorical question posed by Exxon's CEO at the time, Lee Raymond, at the 15th World Petroleum Congress in Beijing in 1997. Exxon brought Brian Flannery, a climate modeler, on board as early as 1980, according to Coll. The scientist was later involved in the Intergovernmental Panel on Climate Change (IPCC) reports, which are authoritative evaluations about the state of climate science. Apart from doing publicly accessible research on climate change, "Exxon's climate scientists ... produced internal assessments of the scientific and policy questions for Exxon's Management Committee," the book noted.
Coll's book did not dwell on Exxon's early research, but it left a trail of evidentiary breadcrumbs that would eventually be used in two systematic investigations of the company's early climate research.
The 2012 book did describe how, when Flannery approached climate modelers at the Massachusetts Institute of Technology, he directed them, by his own admission, to "[e]mbrace the uncertainty in all of this." This maxim informed much of Exxon's public posturing on climate change in the 1990s, when it famously opposed action on the Kyoto Protocol.
A 'litigation-proofing' shift?
Exxon today explicitly acknowledges the threat from climate change, a position it quietly slid into after facing years of vociferous criticism. The move came under Rex Tillerson, who succeeded Raymond as CEO in 2006. In 2007, under mounting pressure from activist shareholders, the company announced that it would no longer fund such work or groups.
"In 2008 we will discontinue contributions to several public policy groups whose position on climate change could divert attention from the important discussion on how the world will secure energy required for economic growth in an environmentally responsible manner," Exxon declared in its 2007 Corporate Citizenship report. By then, the company had poured tens of millions of dollars, according to Greenpeace, into supporting research and advocacy groups that denied that global warming was occurring.
In "Private Empire," Coll makes a pointed mention of an ad in Life magazine taken out by the company's predecessor, Humble Oil, in 1962. "Each Day Humble Supplies Enough Energy to Melt Seven Million Tons of Glacier!" the ad boasted. Exxon, which became Exxon Mobil in 1999, makes no reference to melting glaciers in promotions today. However, it continues to drill into public consciousness the necessity of meeting ever-growing energy demand through fossil fuels, even in the face of climate change.
When the oil major orchestrated this shift from being an aggressive climate denier to distancing itself from its attempts to undermine scientific consensus about climate change, it did so with the awareness that it was vulnerable to litigation in the future. It consciously fortified itself against an attack similar to the one that dealt a body blow to the tobacco industry in the 1990s. When he was piecing together the maneuver for his book, Coll said, "it became clear to me that the form of the shift was basically litigation-proofing."
Some of the tobacco cases were beginning to yield defeats for tobacco companies around the same time that Exxon was crafting a modified response to climate change.
"Exxon Mobil recognizes that climate risks are real and responsible actions are warranted," Ken Cohen, the company's vice president of public and government affairs, said during a recent press conference about the subpoena (E&ENews PM, Nov. 6).
2 series and a subpoena
The subpoena from New York state's top attorney requires Exxon to submit extensive financial records, emails and other documents in order to determine if there was deception that can be construed as an offense under consumer protection laws. The attorney general has the power to issue a subpoena even when there is no lawsuit pending. This is the kind of action the company should have had to weather probably 10 years ago, Coll said.
But although the problem started to come into focus at the close of his own reporting into Exxon, it remained unfinished business in his 2012 book. To take the story forward when he became the dean of Columbia's Graduate School of Journalism in 2013, Coll proposed that a team of postgraduate fellows look into the company. The first piece from the yearlong investigation by the team, led by veteran investigative reporter Susanne Rust, was published last month.
InsideClimate News (ICN), a nonprofit online news publication, conducted its own investigation into Exxon that started earlier this year and published its findings in late September. David Sassoon, founder and publisher of ICN, said the investigations were independent. "We consulted his excellent book as we worked on the project, but it was not the source of the idea for our investigation," he said, referring to Coll's book on Exxon.
"The idea of finding whistleblowers inside fossil fuel companies was a topic of discussion amongst a roomful of journalists at a 2014 conference. I was one of the journalists in the room. That's when ICN begin to think about launching an investigation," Sassoon added.
It has since been revealed that both teams knew of each other's pursuit of the same story. "I wish they had called us in June or July, or whenever it was that they were hyped up about this, and said, 'Can we cooperate?'" Coll said of ICN, "because I would have said yes."
Sassoon said that collaboration had not been an option because ICN had already "broken open the story for ourselves." When ICN learned of the tie-up between the Los Angeles Times and Columbia Journalism School, he said, it was about to embark on the writing phase of its project.
The last installment of ICN's seven-part series was published last month. "Since publication, I've put out a feeler to see if collaboration would be desirable and possible moving forward," Sassoon said, "but I don't think they are done publishing significant work on their own." The Los Angeles Times and Columbia brought out the second story in what has been described as an "occasional" series on Oct. 23.
As of last week, Exxon said it was still assessing its response to New York state's subpoena. Both groups of journalists said they were keen to see what the subpoena would extract from Exxon.