Exxon found victory in the latest round of its climate change legal battle following an unprecedented ruling by a federal judge effectively reaffirming an order that Massachusetts Attorney General Maura Healey must submit herself for questioning by Exxon’s legal team.
Healey filed a motion to stop an order that essentially allows the opposing counsels to rummage through all of her internal records in connection with the investigation.
U.S. District Court Judge Ed Kinkeade dismissed her motion, saying only that he has come to the decision after “careful consideration”.
The judge’s decision to allow a company under investigation to return the favor and “investigate the investigator” is said to be highly unusual.
Talking to InsideClimate, University of Texas law professor Tom McGarity said it’s the first he heard of such a case.
“I’ve never heard of such a thing. The court certainly has the power to order a deposition, but I have never heard of that happening in anything like this.”
The judge’s order is believed to based on a belief that the prosecution is driven by political bias.
Nevertheless, the judge’s decision to allow such a thing could send a “chilling” message to attorney generals across the U.S. who might consider pursuing a case against industry giants.
“That’s a message to AGs that if they are considering bringing a case against industry, they could be open to questioning about their motive,” McGarity told InsideClimate.
“That’s a message the AGs will hear. They may not be intimidated, but it is something that will be a factor in their decisions about what cases, what industry to pursue.”
The judge said the deposition order was intended to allow him the chance to ascertain whether or not Healey has let “bias or prejudgment” cloud her mind in making the decision to launch an investigation against the company.
The sweeping discovery order, however, is likely to hurt the case and evidences that Healey has painstakingly built against Exxon.
“Allowing discovery to go forward here would set a troubling precedent by allowing the target of a state government investigation to confound and effectively halt state law enforcement efforts by filing suit in the target’s favored federal forum and permitting the target to ‘investigate the investigator,'” her attorneys wrote in a memorandum of law.
Exxon, on the other hand, claims that the opportunity to question Healey will afford them the chance to ‘expose’ her abuse of power.
“The Attorney General has no discretion to misuse her prosecutorial powers to stifle ExxonMobil’s speech in an attempt to place a thumb on the scale of an ongoing policy debate,” the company wrote in response to Healey’s motion to dismiss the deposition.
Meanwhile, Conservation Law Foundation President Brad Campbell finds the judge’s ruling sinister.
“It turns law enforcement on its ear,” Campbell told InsideClimate. “It removes the advantage of conducting an investigation without the subject of that investigation being privy to law enforcement’s strategy and tactics.”
“What this ruling does is create a special set of rules for Exxon and presumably any other company with Exxon’s resources to second guess an attorney general’s ability to conduct investigations,” he added.
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