Texas justices grant ExxonMobil’s motion for leave in climate change case, motion brought in response to New York ruling

By David Yates

FORT WORTH – Last January, an appellate court heard arguments on whether ExxonMobil can use Texas courts to pursue counter-litigation against the public officials and private lawyers who teamed up to sue the oil industry in California over the alleged effects of climate change.

And although a year has already elapsed without a ruling, that doesn’t mean the case has come to a complete standstill.

On Jan. 10, the Second Court of Appeals granted Exxon’s motion for leave to file a post-submission brief that comes on the heels of a recent decision by the New York Supreme Court.

The ruling stems from a climate change lawsuit the state of New York brought against Exxon. The court found, among other things, that New York’s investigation of Exxon was “the result of an ill-conceived initiative of the Office of the Attorney General.”

The court also recognized that New York’s climate change action against ExxonMobil originated in “politically motivated statements by former New York Attorney General Eric Schneiderman.”

In Texas, the appeal was brought by several California cities and counties that seek to dismiss Exxon’s effort to depose numerous public officials and a private attorney they hired to orchestrate the climate change litigation against the oil industry.

The appeal came after a Texas judge found the cities and counties were hypocritical in suing Exxon. They 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, the judge ruled.

Climate change lawsuits, brought under the public nuisance theory, allege fossil fuel companies contributed to global warming-induced sea level rise and seek damages for past and future natural disasters, such as flooding.

Exxon’s petition alleges the California municipalities engaged in a civil conspiracy by planning and then filing climate change lawsuits in California against co-defendants Chevron, BP, ConocoPhillips and Royal Dutch Shell.

In response, the municipalities filed special appearances, challenging the Texas trial court’s jurisdiction.

On March 14, 2018, Judge R.H. Wallace Jr., 96th District Court, denied all of the special appearances, prompting the appeal, court records show.

In its motion, Exxon argues the New York decision is relevant to the Texas appeal because the court’s findings “indicate that politically motivated state politicians targeted ExxonMobil in a pretextual exercise of state power.”

On appeal, the California municipalities argued Exxon failed to meet its burden of establishing personal jurisdiction under the Texas long-arm statute, while Exxon contended the Texas trial court’s findings are supported by the law and “ample” evidence.

“Under the circumstances of this case, exercising personal jurisdiction over the potential defendants would comport with fair play and substantial justice,” Exxon’s post-submission brief states. “Nothing more is required under the Due Process Clause or the long-arm statute. The trial court’s findings of fact are equally correct. They are firmly rooted in the undisputed evidentiary record.

“Thus, ExxonMobil urges this Court to affirm the trial court in all respects.”

Exxon is represented in part by Duggins of Cantey Hanger and Nina Cortell of Haynes & Boone.

Appeals case No. 02-18-00106-CV

Trial court case No. 096-297222-18