Photo: River North Photography/iStockphoto.com.

Justices on Fort Worth's Second Court of Appeals in a recent ruling called climate-change litigation against Exxon Mobile Corp. "lawfare" and lamented that California courts hearing the lawsuits may join the "battlefield" when conservative Texas courts would not.

In the case, Exxon was litigating to obtain pre-lawsuit depositions to see if California litigation against it regarding climate change was brought in bad faith, just to try to suppress the company's speech on climate change.

Exxon's allegations and deposition request targeted a Massachusetts-based climate change litigator, and a group of California cities, counties, and their in-house attorneys and officials.

'Enlisting the judiciary'

The Second Court's three-justice panel threw out Exxon's request to do the depositions because they found Texas courts don't have jurisdiction over the California parties, since none of their actions happened in the Lone Star State and they didn't significantly contact or target Texans.

Yet the final two pages of the 49-page majority ruling made it clear the justices really wanted to side with Exxon.

Justice Elizabeth Kerr, joined by Chief Justice Bonnie Sudderth and Justice J. Wade Birdwell, confessed to "an impulse to safeguard an industry that is vital to Texas's economic well-being," the opinion said.

"Lawfare is an ugly tool by which to seek the environmental policy changes the California parties desire, enlisting the judiciary to do the work that the other two branches of government cannot or will not do to persuade their constituents that anthropogenic climate change has been conclusively proved and must be remedied by crippling the energy industry," the opinion said.

Noting that the Second Court is very conservative and follows settled legal principles, the ruling cast some doubt about what the California courts in the climate-change litigation might do.

"California courts might well be philosophically inclined to join the lawfare battlefield in ways far different than Texas courts," the ruling said.

At the highest levels of the nation's judiciary, U.S. Supreme Court Chief Justice John Roberts Jr. has frowned upon politicians who use partisan attacks to criticize judicial rulings. In public remarks he's said judges don't sit on opposite sides of the isle or serve one party or interest. He has said there are no "Obama judges or Trump judges, Bush judges or Clinton judges."

Strategic attacks on Exxon?

Exxon might appeal the loss.

"The court recognized that municipalities suing energy companies over climate change are engaged in 'Lawfare,'" Exxon spokesman Casey Norton wrote in a statement. "We are reviewing the court's decision and are evaluating our appellate options."

The California cities involved in the dispute are San Francisco, Oakland, Imperial Beach and Santa Cruz, and the counties are San Mateo, Marin and Santa Cruz. The case also includes city and county attorneys, other government officials and two of the cities' outside counsel—climate change litigator Matthew Pawa of Hagens Berman Sobol Shapiro in Newton, Massachusetts.

McKool Smith Principal Robert Manley, who represented the cities, didn't immediately return an email seeking comment. The counties' attorney, Pete Marketos, partner in Reese Marketos in Dallas, didn't immediately return a call. Stanley Law Group President Marc Stanley of Dallas, who represents Pawa, declined comment.

Exxon alleged that Pawa in the past formulated a legal strategy to sue energy companies for creating a climate change, a public nuisance, and then communicated the strategy to states and cities that sued the company.

The California parties sued Exxon in California in 2017. The case alleged that fossil-fuel emissions caused global warming, rising sea-levels, coastal flooding, erosion and salt-water intrusion. They said Exxon knew its products caused the damage, yet continued to produce and sell them, the opinion said.

Exxon claimed that in bond offering statements, the California parties contradicted claims they had made in the lawsuits. That's why the energy company alleged the lawsuits were really trying to silence and delegitimize Exxon, the opinion said. Pawa's involvement was further evidence that the cases were brought for an improper purpose, claimed Exxon.

'Blessing and curse'

Arguments arose about the court's jurisdiction. Even though a Tarrant County trial court ruled that it did have jurisdiction to decide if Exxon could depose the parties, the Second Court reversed that decision.

But not because they wanted to do it.

"Being a conservative panel on a conservative intermediate court in a relatively conservative part of Texas is both blessing and curse: blessing, because we strive always to remember our oath to follow settled legal principles set out by higher courts," the opinion said. "Curse, because in this situation, at this time in history, we would very much like to follow our impulse instead."

In a concurring opinion, Sudderth wrote, "Doing one's job and abiding by rules is not always a comfortable path."

She urged the Texas Supreme Court to reexamine the jurisdictional precedent that caused the court to rule this way.

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