IN THE AGE OF TRUMPISM, political and legal norms are regularly cast aside. The ends, we are told, justify the means. It is in this context that businesses, particularly manufacturers, have become skeptical of Massachusetts Attorney General Maura Healey’s legal action against ExxonMobil as a centerpiece of her efforts to combat global climate change. Along with her counterpart in New York, she is breaking new ground by using state police power against a business to achieve a public policy goal.
The latest twist and turn in Healey’s inquiry is that the US Supreme Court has now asked Healey to explain why her investigation of ExxonMobil’s climate change activities is a legitimate use of her authority. In 2016, she served ExxonMobil with civil investigative demands to find out what ExxonMobil knew about climate change and when and whether the company broke any consumer or securities laws. New York’s then-Attorney General issued similar demands. They argued that if ExxonMobil was not forthcoming about its knowledge of global warming in the 1970s and 1980s, they could file law enforcement action.
Partisans on all sides of the climate change debate have by-and-large viewed these investigations as not who-dunnit mysteries, but about expressing years of frustration that Washington has not been doing enough on climate change. This investigation is part of a multi-front effort to use courts and lawsuits to circumvent Congress and drive climate change policy. So far, these efforts have failed. It is not illegal for businesses to sell the fuel Americans need to heat homes, turn on lights, and fuel cars.
Soon after Healey announced her investigation, several state attorneys general wrote an open letter expressing concern that using “law enforcement authority to resolve a public policy debate undermines the trust invested in our office[s].” The Boston Herald editorialized that, regardless, the claims are “moot today.” ExxonMobil “cooperates with several carbon-reduction programs, supports a tax on carbon dioxide emissions, and long has discussed climate risks in required financial disclosures,” the newspaper said.
A federal judge in Texas, though, uncovered a wrinkle that gave many people pause—and should have made Healey question her involvement. Documents suggest that an environmental lawyer and an activist Healey met with in March 2016 before launching her inquiry were seeking legal…
