BOSTON – ExxonMobil is accusing the Massachusetts Attorney General’s Office of cropping a photograph presented to a witness in order to spark him into saying something incriminating about the company.
At issue is a photograph showing a sign at an Exxon station touting the company’s Synergy gasoline – a formula designed to improve gas mileage and reduce emissions. Then-AG Maura Healey said in a 2019 complaint that Exxon’s claims about Synergy and Mobil 1 motor oil are part of a “greenwashing” campaign to trick consumers into thinking the products are more environmentally friendly than they are.
But the photo, produced in a deposition last month by Assistant Attorney General Brian Clappier, didn’t show a lengthy disclaimer at the bottom of a sign touting Synergy as “3X cleaner for better gas mileage*.” He showed it to Yan Cote of Imperial Oil – a Canadian oil and gas company mostly owned by Exxon – and asked if the sign had disclaimers on it.
The full photo had already been introduced into evidence. Clappier could provide no reference number for his version when asked, and he questioned Cote, “Granted this is not a complete picture of the sign, however, there is no disclaimer other than the asterisk next to the word ‘mileage.’ Correct?”
Exxon objected. Clappier later found and presented the full photograph, but the company says that was too little, too late and has asked a Boston judge to strike Cote’s deposition testimony.
“(T)he Commonwealth introduced a photograph of an ExxonMobil advertisement that the Commonwealth attorney had doctored by cropping out the advertisement’s disclaimer,” attorneys for the company wrote.
“He then specifically questioned the witness about the supposed lack of a disclaimer, the very disclaimer he had deliberately removed from the photograph. In doing so, he attempted to elicit misleading and prejudicial testimony.”
Exxon calls Clappier’s conduct “inexcusable,” but he says it was simply a mistake. He claims other ads contained asterisks that led to no written disclaimers and that though he realized the photo had been cut off when he printed it, he thought it was the reference number that had been lost from it.
He points to the fact he started a question with, ”Granted this is not a complete picture of the sign,” while AG Andrea Campbell’s office calls Exxon’s version of events “a counterfactual world of the company’s own invention.”
Claiming the AG’s office used deception to further its consumer deception lawsuit is not the first time Exxon has accused the state of hypocrisy. There is a separate lawsuit in Suffolk County Superior Court, one filed by Exxon and one of its attorneys, over a records request on the state’s greenhouse gas-reduction program.
They showed regulators failed to report the annual greenhouse gas emissions of state vehicle fleets, even as Massachusetts was one of dozens of local and state governments to sue companies like Exxon and Chevron over global warming.
Documents the company eventually obtained revealed Massachusetts never complied with regulations the Department of Environmental Protection was charged with enforcing under a 2008 law. Those regulations, detailed in a report by the CommonWealth Beacon, require Massachusetts agencies that operate more than 30 vehicles to compile a variety of statistics including CO2 emissions and post the results on a public website.
Turning over those records should have ended the case, Massachusetts argued. But Exxon insists there is more to find and has asked to file an amended complaint that adds the Executive Office of Energy and Environmental Affairs as a defendant.
It and the state’s Department of Environmental Protection “cooked up a pretext to deny” Exxon’s lawful records request, Sidley Austin attorney Jack Pirozzolo wrote yesterday.
Documents and depositions of state officials show no emissions reports were compiled between 2017, when the regulations went into effect, and 2024, and DEP officials never demanded them.
The AG’s office’s lawsuit against Exxon will likely be impacted by a coming U.S. Supreme Court ruling on a climate case from Colorado. The justices will decide whether government officials can make claims under consumer-protection laws in state courts, or whether they are barred by the federal government’s interest in regulating the worldwide energy market.
