“SCOTUS CASE PUTS SPOTLIGHT ON NATIONALLY COORDINATED CLIMATE LITIGATION CAMPAIGN”, By WILLIAM ALLISON

While the court will rule on a key procedural question, common sense shows that climate litigation is a national campaign that’s been supported by a network of plaintiffs law firms, activist groups….”

SCOTUS CASE PUTS SPOTLIGHT ON NATIONALLY COORDINATED CLIMATE LITIGATION CAMPAIGN

JANUARY 13, 2021 | WILLIAM ALLISON

On January 19, the U.S. Supreme Court will hear oral arguments in BP P.L.C., et al. v. Mayor and City Council of Baltimore to decide whether climate lawsuits should be heard in state or federal court. While the court will rule on a key procedural question, common sense shows that climate litigation is a national campaign that’s been supported by a network of plaintiffs law firms, activist groups, and wealthy donors.

For nearly a decade, proponents of climate litigation have fought hard to have lawsuits heard in state courts, believing those venues would bolster their chances of success. Alleging that climate change impacts are specific to their state, the public officials bringing these lawsuits – and the wealthy foundations and environmental groups backing them – have argued that keeping them in state court is necessary and that they are acting in their constituents’ best interest. Evidence proves otherwise, however, exposing these lawsuits for what they are: a highly coordinated national campaign.

Coalition of State Attorneys General Supporting Climate Litigation

The climate litigation campaign has been led in large part by a coalition of state attorneys general. Most recently, in 2018, a group of state attorneys general signed on to a “Confidentiality Agreement Regarding Participation in Climate Change Public Nuisance Litigation” in order to share documents, intelligence and other correspondence related to their state- and municipal-driven cases targeting energy companies. The agreement – the initiator of which is unknown – details the “common interest” its signatories have in this type of litigation and, by becoming party to the agreement, what activity it permits:

“The Parties to this Agreement have a common interest in ensuring the proper application of the federal and/or state common law of public nuisance arising from the effects of climate change, including sea level rise. … The Parties agree to share information for the purpose of advancing their common interest, to keep such information and materials confidential, and to protect any privileges attaching to such information and materials to the extent authorized by law. The Parties also agree that the sharing of information, both written and oral, among their governing boards, staff, management, consultants, experts, clients, and counsel will further their common objectives.” (emphasis added)

Energy Policy Advocates, a nonprofit organization, obtained the agreement via public records request. In a subsequent request, EPA found that this agreement was amended in 2019 to include (conveniently) communications related to Baltimore’s public nuisance climate change lawsuit. The organization detailed these agreements to the Supreme Court in an amicus brief filed in November, and made sure to note both the questionable legal standing of these arrangements and also how they perfectly illustrate how the climate litigation campaign is national in nature:

“[Baltimore’s lawsuit] and those like it, admittedly by these parties and apparently by all counsel to all such plaintiffs, are parts of a coordinated nationwide effort to raise ‘funding streams’ and influence federal policies which have eluded the plaintiffs through the proper democratic processes. … These cases are not proper vehicles for their desired ends but are the proper subject of federal officer removal jurisdiction.” (emphasis added)

But this coordination didn’t start with this latest privacy agreement. The litigation campaign kicked off at the La Jolla conference – the 2012 meeting of activists, lawyers and academic where the campaign playbook was developed, including the effort to find “a single sympathetic attorney general” to introduce climate lawsuits. In 2016, that resulted in former New York Attorney General Eric Schneiderman hosting a press conference with former Vice President Al Gore and 16 other state attorneys general to announce the “AGs United for Clean Power” coalition, where Massachusetts Attorney General Maura Healey and then-U.S. Virgin Islands Attorney General Claude Walker stated their offices were both filing climate change investigations into an energy company.

Underscoring the coordination among these dozen-plus state attorneys general, Schneiderman’s office called it “an unprecedented coalition of top law enforcement officials” who “are exploring working together on key climate change-related initiatives.”

It was later revealed that the group of attorneys general were personally briefed before the press conference by plaintiffs’ attorney Matt Pawa and Peter Frumhoff of the Union of Concerned Scientists. UCS hosted the 2012 La Jolla Conference where Pawa was also present and he has since gone one to represent many of the current climate lawsuits.

Importantly, while the AGs United for Clean Power has since mostly dissolved as a formal organization, they still continued their coordination behind closed doors. Emails show that this group of attorneys general signed a Common Interest Agreement in the spring of 2016 that allowed them to share documents and coordinate strategy.

Information sharing between attorneys general has already taken place under this Common Interest Agreement, as the Massachusetts attorney general’s lawsuit against ExxonMobil – filed just as the New York attorney general’s failed lawsuitwas going to trial – relied on information from the New York investigation, rather than the company itself. As Bloombergnoted, Massachusetts Attorney General Maura Healey “gathered information from banks, advertising agencies, New York’s investigation and other sources.” (emphasis added)

That was only the first such agreement. In 2019, according to open records requests, 21 states and D.C. signed a Common Interest Agreement for climate litigation according to the Wall Street Journal, and attorneys general in Vermont, Michigan, and Washington are fighting to keep their communications with activists groups and plaintiffs law firms from being made public.

Cases Boosted by Bloomberg-Funded Law Fellow Program

Adding yet another layer of coordination between these lawsuits is the fact that many of the state attorneys general who have filed climate lawsuits in recent years have hired law fellows from the State Energy & Environmental Impact Center at the New York University Law School. The SEEIC was created by Michael Bloomberg, who ran for national office in 2020, and pays the salaries of these law fellows to serve as Special Assistant Attorneys General to work on climate lawsuits and other environmental enforcement actions.

If a major law school in the nation’s largest city is paying for attorneys to serve in state law enforcement offices and who are all working towards the same goals, it’s a clear indication this is a nationally coordinated campaign. Some contracts with state attorneys general offices also required that the SAAGs report their activities back to the SEEIC, which begs the question what kind of influence the center had over the work performed by these SAAGs.

The SEEIC’s website even lists the law fellow program’s application requirement as:

“Five to 10 years of experience in clean energy with preference for relevant experience in legal or policy issues of regional or national importance, such as those matters that cross jurisdictional boundaries or raise legal questions or conflicts that have nationwide applicability.” (emphasis added)

One Law Firm Is Driving Many of the Cases

A common thread linking together numerous climate lawsuits introduced by municipalities and states is they have hired the same San Francisco-based law firm, Sher Edling, to serve as outside counsel, including Delaware, Charleston, S.C., and Honolulu, among several others.

This fact begs a couple questions: if these cases belong in state court due to alleged violations of state law, why are these municipalities and states hiring a San Francisco-based law firm? And if the same law firm is arguing for similar claims against the same group of companies, does that not make these lawsuits a national issue?

EID Climate has previously noted how connected Sher Edling is to a national network of activists and the firm has also received $1.75 million in grant funding to boost their work from the Resources Legacy Fund – a non-profit that supportsenvironmental projects across the United States and other countries.

One of the firm’s partners, Vic Sher, also gave a presentation at the UCLA Law School in 2017 where he acknowledged that he worked with Richard Heede of the Climate Accountability Institute to develop so-called “attribution research” to build the case for climate lawsuits. Heede later said that his work attempting to assign a specific amount of carbon emissions to certain companies was done not in the pursuit of science, but to support litigation.

For support, the firm has even enlisted two law school professors from each side of the country: Michael Burger, the Executive Director of Columbia University Law School’s Sabin Center for Climate Change Law, and Ann Carlson of the UCLA Law School’s Emmett Institute on Climate Change and the Environment. Both Burger and Carlson frequently speak with media in support of litigation campaign – a notable stance, considering Carlson has been working as a consultant for Sher Edling on these case for several years.

D.C. AG: We Only Learned About It Yesterday, Swear!

On June 24, 2020, Minnesota Attorney General Keith Ellison filed a climate change lawsuit against a group of energy companies and an energy industry trade association over allegedly deceiving Minnesotans about climate change. Less than 24 hours later, Washington D.C. Attorney General Karl Racine filed a suspiciously similar lawsuit against energy producers based on the same unfounded allegations of consumer deception.

Noticing the convenient timing of and similarity between the two lawsuits, the D.C. attorney general faced media questions as to whether he had known about the Minnesota lawsuit. Reuters reported that Racine said that “his office only learned of Minnesota’s lawsuit when it was filed yesterday and had been preparing this [lawsuit] long before.”

However, the fact that a partner at the law firm representing D.C. in its lawsuit, Sher Edling, participated on a panel about pursuing climate litigation in Minnesota along with the Minnesota attorney general just months before, would suggest otherwise. As does the fact that Minnesota Attorney General Ellison then quietly hired Sher Edling as outside counsel for his climate case only a few months later.

Not to mention, entire sections of Washington, D.C. and Minnesota’s lawsuits are almost identical. For example, both complaints give almost the exact same background on the American Petroleum Institute – despite API only being named as a defendant in Minnesota’s lawsuit, not Washington D.C.’s:

Activist Groups Bring National Presence

The final piece connecting these lawsuits is their funding and activist backing. Not only have state attorneys general coordinated on lawsuits and benefited from the same law centers and outside counsel, they’re also being supported by national activist groups with country-wide ambitions.

As EID Climate has shown previously, a network of Rockefeller organizations has manufactured the entire climate litigation campaign. The Rockefeller Family Fund, Rockefeller Brothers Fund, and Rockefeller Philanthropy Advisors financially propped up various individuals and organizations in the activist, media, legal, PR and academic realms of this effort.

More recently, one of the groups funded by the Rockefellers has taken on an especially important role in the climate litigation campaign: The Center for Climate Integrity. CCI and its parent organization, the Institute for Governance & Sustainable Development, have played key roles in recently-introduced lawsuits and helped lay the groundwork for future cases.

In fact, the Institute for Governance & Sustainable Development was found to be paying for the legal fees in the Hoboken, New Jersey climate lawsuit after a resolution was passed by the municipality to accept their funding for legal counsel in January 2020. The lawsuit itself, however, wasn’t announced until September 2020. During the intervening months, CCI worked to build momentum for climate litigation in New Jersey, going so far as planning a panel on the subject featuring a partner from the law firm they chose to represent the city – Emery Celli Brinckerhoff & Abady LLP.

Moreover, CCI teamed up with Fresh Energy, a local activist group in Minnesota, to personally persuade Minnesota Attorney General Keith Ellison to file his climate lawsuit. If that weren’t enough, CCI and Fresh Energy hosted the climate change litigation panel in which Attorney General Ellison and Vic Sher of Sher Edling participated in October 2019.

It now seems that CCI is applying these tactics elsewhere. As EID reported in November, the group has now set its sights on Maine. The group conducted a poll on the issue of climate litigation, ran congressional ads about climate liability in the state and hosted not one, but two panels, about climate liability last year. Unsurprisingly, the second panel the group hosted in Maine late last year, which focused on introducing a lawsuit in the state, featured a CCI attorney who argued that climate lawsuits should be heard in state courts. When asked why the lawsuits haven’t been brought as a class action lawsuit, similar to tobacco, CCI attorney Corey Riday-White responded:

“Part of that answer comes back to these plaintiffs’ desires to have these complaints heard in state court. That is for a number of reasons. I’d say most importantly because the first wave of climate litigation earlier this century was really focused on GHG emissions and were filed in federal court. The federal court said a federal public nuisance claim was displaced by the Clean Air Act. Thus, the cases were all dismissed. With this current wave of litigation, they want to avoid federal court as much as possible to avoid that same fate. If you were to do a multi-district class act, it’d really have to be in federal court.” (emphasis added)

Conclusion

After connecting all these pieces, it’s clear that climate lawsuits are part of a politically motivated and nationally coordinated campaign despite its supporters arguing the cases should be heard in state courts. From similar complaints, to law firms and activists working together, to a coalition of state attorneys general relying on outside support, this is and always has been a national effort.