BOSTON - The judge in charge of ExxonMobil’s lawsuit seeking potentially embarrassing documents about how Massachusetts failed to enforce its own climate laws today expressed irritation with how long the case has gone on and skepticism it will last much longer.
Judge Robert Gordon repeatedly admonished ExxonMobil for trying to relitigate constitutional claims another judge dismissed, telling the company its lawsuit against the State was limited to discovering whether Massachusetts had turned over all the documents requested and whether it will have to pay ExxonMobil’s legal fees.
ExxonMobil’s quest in state court has shown Massachusetts failed to hold its agencies to emissions standards on state vehicles while simultaneously suing the company over climate change. ExxonMobil’s lawyer Jack Pirozzolo argued the case, over a response to documents, was still at the pleading stage and the court needed to resolve the question of whether Massachusetts was stonewalling evidence discovery.
“You can say it’s at the pleading stage, and I say it’s close to being dismissed,” said a displeased-looking Judge Gordon.
The open-records lawsuit parallels the state’s lawsuit claiming ExxonMobil caused increased global warming by misleading consumers about the effects of burning hydrocarbon fuels. As part of its defense, the oil company sought records detailing how Massachusetts had failed to enforce its own climate law requiring the Department of Environmental Protection to collect data on vehicle emissions, including by the state’s own fleet of buses and other vehicles.
After the judge in the climate case rejected ExxonMobil’s discovery request, Pirozzolo filed an open-records request on the letterhead of his law firm, Sidley Austin. Massachusetts officials went about collecting the documents until officials in the governor’s office of Energy and Environmental Affairs realized Pirozzolo represented ExxonMobil, then blocked the release of the information.
The state reversed course last year and turned over what it said were all relevant documents not covered by the attorney-client privilege. ExxonMobil argues the state can’t have turned over everything, since entire department areas were said to have nothing, and disputes the state’s assertion of privilege.
Monday’s hearing was supposed to be about whether ExxonMobil can amend its lawsuit to add the office of Energy and Environmental Affairs as a defendant, whether the court should quash ExxonMobil’s remaining discovery requests and whether more information must be handed over. Judge Gordon deferred the last request and firmly suggested he would rule against ExxonMobil on the first.
He repeatedly said ExxonMobil should have challenged the ruling by Judge David Deakon, who previously oversaw the case, dismissing equal-protection claims. ExxonMobil argues subsequent depositions showed state officials resisted turning over documents because they feared “reputational harm” if the public learned they weren’t enforcing their own climate law.
“All of the rest of this, of the motives, who thought what… all of that goes to your claim as to constitutional violations,” the judge said. “It has nothing to do with whether or not there is a public records violation here.”
Later in the hearing, the judge asked Cory Flashner, a private lawyer representing the state, whether anything had been done during the two-month window Judge Deakon this March ordered for additional discovery. Flashner fumbled for an answer, and the judge jumped in.
“Here we are, four months later, more than twice as long as the 60-day window Judge Deakon prescribed, and we are nowhere,” Judge Gordon snapped.
The state has done nothing because ExxonMobil is asking for multiple additional depositions and reams of documents, Flashner responded, and “we were never going to produce enough witnesses or enough evidence.”
Documents 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.
