The New Yorker cites a Stanford Law Review article written by Professor Robert Rabin on how the legal actions taken by oil companies mirror those of tobacco companies in the late eighties and early nineties. 

According to InsideClimate News, the office of New York State Attorney General Eric Schneiderman had been investigating ExxonMobil for a year before it issued a recent subpoena for “documents on what Exxon knew about climate change and what it told shareholders and the public.” The subpoena compelled ExxonMobil to hand over scientific research and communications about climate change dating back to 1977. (Exxon and Mobil merged to become a single corporation in 1999.) The investigation is based on New York State’s consumer-protection and general-business laws and, crucially, the state’s Martin Act, InsideClimate News reported. That statute prohibits fraud or misrepresentation in the sale of securities and commodities, and gives the Attorney General extraordinary power to fight financial fraud.

Exxon had no duty to share with the public the information it gathered about climate change starting almost forty years ago, but it was forbidden to deceive shareholders and potential buyers of its shares. Earlier this fall, InsideClimate News and the Los Angeles Times reported that Exxon scientists warned executives about the potential environmental catastrophe from the use of fossil fuels, and that, even so, the company deliberately spread doubt about that scientific view. In cases like this, the Martin Act is a particularly potent tool because the state must prove only misrepresentation, omission of a material fact, or other conduct that deceives or misleads the public. It doesn’t require the Attorney General’s office to show proof of intent to defraud or proof that anyone was defrauded.

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In the second wave, from the nineteen-eighties to the early nineties, individuals and families brought almost two hundred cases against the tobacco companies based on new legal theories, like the companies’ failure to warn about the hazards of smoking. The companies and their lawyers smugly used scorched-earth tactics and maintained their almost perfect record. As a lawyer for one of the companies put it, “the way we won these cases was not by spending all of [R. J. Reynolds’s] money, but by making the other son of a bitch spend all of his.” The legal scholar Robert Rabin wrote in the Stanford Law Review that the tobacco companies’ skill at driving up their opponents’ costs and pushing them out of court with delaying tactics was “unique in the annals of tort litigation.” Judge Kessler later wrote about the “absolutely central role” that lawyers played in the “fraudulent schemes”: “What a sad and disquieting chapter in the history of an honorable and often courageous profession.”