AUSTIN – The parties accused of orchestrating climate change “lawfare” against the energy sector are feigning shock that their attempts to chill speech and commandeer public policy could be subjected to personal jurisdiction in Texas courts, ExxonMobil argues in a recently filed brief.
Last June, an appellate court ruled it does not have jurisdiction over California cities and counties pursuing climate change lawsuits against the energy sector.
The case is now currently before the Texas Supreme Court. Justices have been tasked to decide if ExxonMobil has the authority to investigate those who allegedly orchestrated the litigation.
Exxon argues that the “potential defendants use tort suits to impose their preferred climate and energy policies on Texas.”
The oil giant claims Matt Pawa, a Hagens Berman attorney who is pursuing many of the cases on a contingency fee, recruits state attorneys general and applies the “Big Tobacco playbook” to sue in order “to suppress the speech of Texas-based energy companies.”
Exxon believes Pawa promoted his playbook to California municipalities, urging them to become potential plaintiffs in tort litigation against energy companies, and seeks to depose Pawa and the California municipalities to lay the groundwork for a counter-lawsuit.
Both Pawa and the California governmental entities filed responses to Exxon’s petition on March 5, asking the Supreme Court of dismiss Exxon’s petition for review, court records show.
The California parties question whether Texas courts have jurisdiction over them based on Exxon’s allegation that they wrongfully intended to “chill” the company’s future speech in Texas.
In his response, Pawa makes the argument the high court would have to adopt new rules in order to reach a different conclusion than the appellate court.
Court records show that April 5 Exxon filed a reply brief in support of its petition to review, arguing that non-residents using “lawfare” to suppress Texas speech and alter Texas policy are subject to personal jurisdiction.
“Respondents feign shock that out-of-state actors who reach into Texas to chill speech, impose their viewpoint, and commandeer public policy could be subject to personal jurisdiction in Texas courts,” the brief states. “They have it entirely backward. It would be shocking if Texas courts lacked jurisdiction over those who intentionally direct tortious conduct at the state. Potential defendants have targeted the state by filing lawsuits against 18 Texas-based oil and gas companies to suppress free speech in Texas and coerce the adoption of so-called progressive views on climate change in Texas.
“Their attempt to wrest an important policy debate from Texas citizens is an assault on Texas itself.”
Several groups have rallied behind Exxon and submitted amicus curiae briefs with the high court, including Texans for Lawsuit Reform.
“Texas and its citizens have a long and close relationship with the energy industry including specifically the oil and gas industry,” TLR’s letter states. “It is beyond cavil that this case is important to the jurisprudence of Texas and is the type of case that this Court should review and decide regardless of the outcome.”
The Texas Oil & Gas Association has also submitted a brief, stating that the group has an interest in the case because its members may become “the victims of the same type of targeting to which ExxonMobil has been subjected.”
“Suffice it to say, when a defendant uses ‘lawfare’ to extinguish the plaintiff’s primary conduct in the forum state (such as the exercise of free speech and associational rights), there is an activity and occurrence in the forum from which the plaintiff’s claim arises and that justifies the exercise of specific jurisdiction under existing Supreme Court precedent,” the brief states.
“Here, by targeting conduct in order to stop it from happening in Texas, the potential defendants have availed themselves of the privilege of acting within this State and made themselves subject to Texas jurisdiction.”
Back in October, the Texas Civil Justice League submitted a brief stating the case “mounts a wholesale attack on the most important sector of the Texas economy and poses a serious economic threat to this state and to every citizen who calls Texas home.”
TCJL maintains that even though the lower appellate court didn’t side with Exxon, justices still recognized that climate change litigation “constitutes a shameless exercise of ‘lawfare’ and a naked attempt not only to silence the free speech of the oil and gas industry, many of which have headquarters in Texas, but to also create economic chaos in the state that leads the nation, and much of the world, in energy production.”
Case background
The case currently before the high court stems from a petition Exxon filed in Tarrant County District Court in response to the climate change litigation, seeking pre-suit discovery for a potential lawsuit against the California municipalities and officials and Pawa.
Exxon’s case against the California municipalities ended up in the Second Court of Appeals after a Texas judge found the cities and counties were hypocritical in suing Exxon.
The municipalities had claimed doom to their infrastructures will be caused by rising sea levels, but when issuing bond offers to potential investors, they had neglected to mention this alleged, near-certain destruction.
Exxon maintains the California climate change suits were crafted using a “playbook” to alter Big Oil’s viewpoint on climate change and pressure the oil industry through litigation to change to renewable energy.
The oil giant argued its suit against them belongs in Texas because they have purposeful contacts within the state.
However, on June 18, 2020, the Second Court found that was not enough to keep the litigation here, despite feeling an impulse to protect the energy sector.
Exxon is represented in part by attorneys Patrick Conlon, Ralph Duggins (Cantey Hanger) and Nina Cortell (Haynes and Boone).
Pawa is represented by Fort Worth attorney Steven Hayes.
The California parties are represented by the law firms of McKool Smith and Altshuler Berzon.
Supreme Court case No. 20-0558