NY Attorney General Eric Schneiderman’s Exxon climate change fraud investigation just became ridiculous, as revealed in his interview in today’s NY Times.
Way down in John Schwartz’s story, Schneiderman admits the Exxon investigation will “mirror” (using Schwart’s word) a similar investigation into Peabody Energy, the world’s largest coal producer, which declared bankruptcy last year.
The problem is, the Peabody investigation was a disaster for Schneiderman.
It started in 2013 with a subpoena demand for documents from the St. Louis-based company and ended last year with a whimper, not the big PR bang Schneiderman had hoped for.
Schneiderman was not able to secure a criminal charge, never mind a prosecution.
Schneiderman was not able to fine Peabody.
The only thing he did achieve was to get Peabody to revise it’s Security and Exchange Commission disclosure statements to shareholders.
“There is no other action associated with this settlement, no admission or denial of wrongdoing and no financial penalty,” Peabody said last Nov. “The company has always sought to make appropriate disclosures.”
To understand just how toothless Schneiderman’s “victory” was, here are the two disclosures Peabody agreed to, taken from the company’s Nov. 9, 2015 press release:
- The use of the International Energy Agency’s (IEA) World Energy Outlook scenarios. Peabody has long cited IEA’s World Energy Outlook regarding global energy scenarios. In the future, the company has agreed to enhance its disclosure around all the published scenarios when referencing IEA’s World Energy Outlook.
- The ability of the company to estimate impacts from prospective future laws or regulations. The company has previously stated that it cannot predict the impact of potential laws or regulations on Peabody due to the uncertainty surrounding those predictions. Nonetheless, the company has agreed that any future statements concerning the difficulty of making particular projections or predictions shall be accompanied by a statement that Peabody has made projections of the impact of scenarios involving certain potential laws and regulations relating to climate change or coal, which could result in materially adverse effects on its markets or company. To evaluate risks and allocate capital, Peabody has examined the potential impact of hypothetical future laws on coal markets.
This is the model for NY’s investigation into Exxon? What a waste of taxpayer money and limited investigation resources.
In April, I interviewed David Kwok, assistant professor with the University of Houston Law Center, about Schneiderman’s Exxon investigation. In Prof. Kwok’s opinion, there is no basis for criminal charges.
“The climate change research, there’s a lot of participants in this, and it’s not clear that energy companies are the ones who know best about climate change,” he said.
“Therefore, would the results of that research have been material to an investor at that time period given what they otherwise knew in the popular knowledge or what a reasonably informed investor would have researched?”
Prof. Kwok’s answer to that question was, no.
Just like Peabody Energy.
And, yet, Schneiderman is wasting money and resources once again with the Exxon investigation and will most likely achieve similar results.
Why is Schneiderman pursuing a lost cause?
The answer lies in the March 29 press release he issued during a media conference that included Al Gore and other Democratic AGs:
“With gridlock and dysfunction gripping Washington, it is up to the states to lead on the generation-defining issue of climate change. We stand ready to defend the next president’s climate change agenda, and vow to fight any efforts to roll-back the meaningful progress we’ve made over the past eight years.”
Politics. That’s the answer to my question. It couldn’t be plainer.
Schneiderman is chasing headlines to support President Barack Obama’s climate change policies, which are vigorously opposed by States, including in the courts.
And, as I argued in the April 6 column (linked to above), part of Schneiderman’s political strategy is to work closely with environmental groups like the Union of Concerned Scientists in order to revitalize the American environmental movement in the same way the fight against the Keystone XL pipeline did a decade ago.
When the 2018 election for attorney general rolls around, New York voters may want to ask themselves if they support Schneiderman wasting valuable state resources pursuing his personal political agenda.
And in an upcoming column, I’ll suggest ways Schneiderman and the other AGs could pursue a more productive strategy with Exxon. Assuming, of course, that mitigating climate change really is the AGs’ goal in the first place.