Exxon Asserts First Amendment “Right to Hide” What They are Doing to Climate

Money is speech.
Lying is speech too, right?
Just not telling you what we’re doing to make worse the problem that we knew about in the 70’s, but covered up and obfuscated for 40 years.

Guardian

Exxon, an oil firm consistently ranked among the world’s top contributors to global carbon emissions, is suing the state of California over two climate-focused state laws, arguing that the rules infringe upon the corporation’s right to free speech.

The 2023 laws, known collectively as the California Climate Accountability Package, will require large companies doing business in the state to disclose both their planet-heating carbon emissions and their climate-related financial risks, or face annual penalties.

The laws would thereby force Exxon to “serve as a mouthpiece for ideas with which it disagrees”, says the lawsuit, filed in the US district court for the eastern district of California on Friday.

Asked for comment, Exxon referred the Guardian to the lawsuit. The state of California was not immediately available for comment.

Tara Gallegos, a spokesperson for Gavin Newsom, California’s governor, told the New York Times it was “truly shocking that one of the biggest polluters on the planet would be opposed to transparency”, adding that the laws “have already been upheld in court and we continue to have confidence in them.”

Exxon is asking the court to block the enforcement of the laws, which is set to begin in 2026. The company already reports emissions and climate risks voluntarily, using different methodologies, it said in the lawsuit.

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Complaint quoted below:

PLAINTIFF EXXON MOBIL CORPORATION’S COMPLAINT FOR
DECLARATORY AND INJUNCTIVE RELIEF – United States District Court – Eastern District of California:

1. California enacted two statutes that purport to require Exxon Mobil Corporation
   (“ExxonMobil”) to serve as a mouthpiece for ideas with which it disagrees. The goal is to “embarrass[]”1 large corporations that California believes are uniquely responsible for climate change into “tak[ing] meaningful steps to reduce GHG emissions.” Senate Judiciary Committee,
   S.B. 253 (Wiener), at 12 (Apr. 18, 2023).
2. The statutes compel ExxonMobil to trumpet California’s preferred message even though ExxonMobil believes the speech is misleading and misguided. But the Constitution does not permit a State to use speech mandates to turn private parties into “instrument[s] for fostering public adherence to an ideological point of view [they]
   fin[d] unacceptable.” Wooley v. Maynard, 430 U.S. 705, 715 (1977).
3. ExxonMobil has, for years, publicly disclosed its greenhouse gas emissions and
   climate-related business risks, and, to the best of its knowledge, no California official has ever suggested those disclosures are misleading or incomplete. But it has not done so using the reporting frameworks California law would compel it to embrace. In its public advocacy, ExxonMobil has consistently argued that those frameworks send the counterproductive message that large companies are uniquely responsible for climate change no matter how efficiently they
   satisfy societal demand for energy, goods, and services. And the California statutes’ legislative history shows that California seeks to force ExxonMobil to speak in service of that ideological premise, with one bill’s sponsors unabashedly proclaiming that its aim is to make “the very
   corporations who are most responsible for the . . . climate crisis . . . own the responsibility to change their own practices.” Senate Judiciary Committee, S.B. 253 (Wiener), at 14 (Apr. 18,2023).
4. ExxonMobil understands the very real risks associated with climate change and
   supports continued efforts to address those risks. But under the two statutes, California Senate Bill (“S.B.”) 253 and 261, ExxonMobil will be forced to describe its emissions and climate- related risks in terms the company fundamentally disagrees with, using frameworks that place disproportionate blame on large companies like ExxonMobil for being large, for the avowed purpose of spurring public opprobrium and policy responses. California may believe that companies that meet the statutes’ revenue thresholds are uniquely responsible for climate change; but the First Amendment categorically bars it from forcing ExxonMobil to speak in service of that misguided viewpoint.

The Lever:

Powerful business lobbyists are asking the U.S. Supreme Court to use the First Amendment to block California from requiring corporations to publish their emissions data.

Pro-industry trade groups and their lawyers argue that new transparency and disclosure requirements violate businesses’ free speech rights.

An emergency appeal filed in recent weeks by the U.S. and California Chambers of Commerce, as well as the American Farm Bureau Federation, the Los Angeles County Business Federation, the Central Valley Business Federation, and the Western Growers Association, accuses the Golden State of waging an “open campaign to force companies into the public debate on climate issues” and “pressure [firms] to alter their behavior.”

The letter’s authors complain that lawmakers are attempting to “make sure that the public actually knows who’s green and who isn’t.”

California’s new laws, set to go into effect Jan. 1, 2026, will require larger companies operating in the state to publicly state their “climate-related financial risk,” as well as issue emissions records and public assessments of their environmental impacts.

This follows a growing legal trend that sees businesses fight transparency rules by citing the Constitution’s “compelled speech” protections. Corporations claim that the First Amendment shields them from being forced to speak out on issues and have used the principle to fight emissions disclosures, drug price caps, social media reforms, and a suite of other consumer and public health protections.

Businesses say transparency rules, like California’s, illegally force them into speaking out on what they consider politically controversial topics, essentially arguing that the disclosure rules put words in their mouth. 

Experts are warning that if the courts agree with these firms, the effects could be devastating to wide-ranging regulatory efforts.

“Anything can be political and controversial because science doesn’t deal in absolute certainty,” James Wheaton, founder of the public-interest law firm the First Amendment Project, told The Lever’s Katherine Li last year. 

The U.S. Chamber of Commerce represents millions of businesses big and small, yet most of the trade group’s backing comes from just a handful of the powerful corporate interests. That includes the oil and gas-linked conservative Koch Foundation, which in the last 30 years has spent more than $140 million promoting climate denialism.