GAO

GAO and ClimateLitigationWatch readers are familiar with the effort by the State of Rhode Island to sue energy companies in state court for causing climate change, hoping to cash in after the administration concluded that the State’s “Assembly [had] very conservative leadership — don’t care about env’t”, leaving the Governor “looking for sustainable funding stream”.

So it should be no surprise that at her confirmation hearing to serve as Pres. Biden’s Secretary of Commerce Rhode Island Gov. Gina Raimondo continued the line that the “climate” agenda spending ambitions cost a lot of money, “We need funds”, and someone’s just going to have to suck it up and hand over their money to pay for them.

“We need funds”. — Commerce Sec. Nominee Gina Raimondo

According to two contemporaneous sets of notes from a meeting at (natch) the Rockefeller mansion — one set handwritten by a Rocky Mountain Institute aide, another by a rep from Tom Steyer’s energy Foundation — Raimondo’s own Cabinet aide, Department of Environmental Management chief Janet Coit, laid out that that meant suing “in state court” for “priority — sustainable funding stream”.

So dig deep, they’ve got a spending agenda. And you’re just the folks to pay for it.

Within hours of Energy Policy Advocates filing suit against the Minnesota Office of Attorney General this morning (noted by GAO at 10:40, here), in part over a missing contract hiring an outside law firm to sue energy companies for climate change, the Minnesota Office of Management and Budget provided the group with the contract in response to an outstanding records request.

To no one’s surprise, lawyers stand to make a fortune off of what the Attorney General claims are the taxpayers’ damages.

What is particularly strange is this following attestation by AG Ellison, given that Michael Bloomberg’s group provided him with not one but two privately hired attorneys to prepare and file this suit on which they’ve been working full-time, according to a remarkable and troubling boast of inside knowledge by one activist close to “Special Assistant AG” Leigh Currie.

One would think that, with the taxpayers financing a top-10 sized law firm in the state and at least one major political donor providing more, let’s say, targeted resources to pursue ideological priorities, that might be enough. Now, what else is going on to bankroll these suits?

Read the entire document here.

The government-transparency group Energy Policy Advocates filed a public records suit in Minnesota today.

In July 2020, EPA requested various records pertaining to Minnesota Attorney General Keith Ellison’s relationship with ‘climate nuisance’ tort law firm Sher Edling, LLP, including a contract which does now apparently exist, which contract a Minnesota good-governance law makes clear required approval but which, apparently, has not received approval. The AG’s Office ignored the request.

EPA’s complaint lays out the facts making this of great public interest:

BACKGROUND

1. 1. On June 24, 2020, the State of Minnesota filed suit against the American Petroleum Institute, Exxon Mobil Oil Corporation, Koch Industries, Inc., Flint Hills Resources LP, and Flint Hills Resources Pine Bend, alleging, inter alia, violations of Minnesota’s consumer fraud, deceptive trade practices, and false statements in advertising statutes.[1] The suit seeks, inter alia, restitution for asserted harm and injury caused to the State, and disgorgement of all profits made as a result of the alleged unlawful conduct. The case was removed to the Federal District Court for the District of Minnesota on July 27, 2020.
   2. The State did not seek a specific dollar amount of damages, but Attorney General Ellison has asserted the damages may be akin to Minnesota’s $7 billion dollar tobacco settlement.[2]
   3. Other sources also cite the Master Tobacco Settlement ($200 billion, in 1998 dollars) as the starting point for settlement of this litigation campaign.[3]
   4. On December 18, 2020, the Office of the Attorney General filed motions for admission pro hac vice, seeking to admit Vic Sher and Matt Edling of the law firm Sher Edling LLP as counsel for the Office and the State of Minnesota. The motions were granted on December 21, 2020.
   5. The Attorney General may not enter into legal services contracts in which the fees and expenses payable by the state exceed, or may be reasonably expected to exceed, $1,000,000 unless the attorney general first submits the proposed contract to the Legislative Advisory Commission and waits at least 20 days to receive possible recommendation. Minn. Stat. §8.065.
   6. Available information suggests that the Attorney General’s Office has not submitted a contract for legal services including Sher Edling, LLP as a party for review with the Legislative Advisory Commission.
   7. By contrast, the Attorney General’s Office has submitted a contract for legal services to the Legislative Advisory Commission related to the State’s statutory and common-law claims against JUUL and other Electronic Nicotine Delivery Systems companies in October 2019.[4]
   8. The Attorney General filed suit against JUUL Labs in December 2019, alleging, inter alia, violations of consumer fraud, deceptive trade practices, and false statements in advertising. Of particular relevance here, that suit seeks, inter alia, restitution for the alleged harm and injury caused to the State, and disgorgement of all profits received as a result of alleged unlawful conduct.
   9. Sher Edling, LLP’s contract in other “climate” litigation filed on behalf of a governmental entity, released under California’s public records law, suggests that the firm would receive $546,250,000 in fees if the State of Minnesota receives the $7 billion in damages AG Ellison suggests Minnesota has suffered.[5]

[1] http://blogs2.law.columbia.edu/climate-change-litigation/wp-content/uploads/sites/16/case-documents/2020/20200624_docket-62-CV-20-3837_complaint.pdf

[2] https://www.startribune.com/minn-files-climate-change-lawsuit-against-oil-companies-including-koch-exxon-mobil/571466182/

[3] See, e.g., “Could $200 Billion Tobacco-Type Settlement Be Coming Over ‘Climate Change?’,” Bloomberg Law, June 14, 2016, https://news.bloomberglaw.com/business-and-practice/could-200-billion-tobacco-type-settlement-be-coming-over-climate-change.

[4] https://mn.gov/mmb-stat/documents/budget/lac/legal-services-contract-review-11-15-2019.pdf

[5] See, e.g., paragraph 4.2 of Agreement Between City and County of San Francisco and Sher Edling LLP and Altshuler Berzon LLP; For Professional Legal Services, https://climatelitigationwatch.org/wp-content/uploads/2018/12/SF-CC-2018-11-20-Legal-Services-Agreement-SF-SE-AB-FINAL-EXECUTED.pdf.

The suit was filed for EPA by GAO’s Matt Hardin in Lyon County, which is also home to some of the Minnesotans targeted in the lawsuit which Ellison has brought in not one but two Michael Bloomberg-funded lawyers to file, and now a contingency(-ish) fee tort firm to conduct.

GAO Board Member Chris Horner has a piece in today’s Washington Times about the climate litigation industry and next week’s oral argument in the Mayor and City of Baltimore v. BP p.l.c.

An Excerpt:

Climate litigation industry comes to SCOTUS

Supreme Court will decide whether government donors, ideologues and the trial bar should prevail

Increasingly, societal institutions have enlisted as warriors in ideological and economically predatory litigation campaigns. These campaigns are typically coordinated among the trial bar and ideologically committed donors and activists. The “climate” entrants are particularly furious, and next week they make their way to the U.S. Supreme Court.

The question on Tuesday in Mayor and City of Baltimore v. BP p.l.c. actually has nothing to do with climate change, but is jurisdictional. Nonetheless, by settling whether these cases may be tried in local courts which the plaintiffs clearly see as their hope to provide the desired windfall, the court’s decision could make or break what has become a climate litigation industry.

Practitioners include a breadth of non-profit groups — both issue-advocacy and charitable foundations — as well as universities, and private tort law firms. The most concerning aspect of that effort has been participation by privately hired activist attorneys placed in the offices of progressive state attorneys general by a major political donor, Michael Bloomberg. It smacks of renting the offices.

This litigation campaign’s objectives are several, and include silencing dissenting voices on key issues of national policy; compelling regulation that has eluded advocates through the legislative and rulemaking processes; and obtaining from the targeted parties financial settlements contemplated to be in the hundreds of billions of dollars, which settlements would be used in part to further underwrite the advocates’ and their partners’ efforts, along with the condition that the litigation targets agree to advocate for the larger policy agenda.

The plaintiffs’ team are regularly found admitting these things, only to vehemently deny them when specifically asked whether this is an attempt to use the courts as substitute policymaker for a failed policy agenda that they simply have failed to sell to the public

Read the entire piece here.

From the Washington Times:

With a potentially bruising Department of Justice confirmation battles looming, both Joe Biden and Kamala Harris now vigorously deny that they would ever direct their Attorney General to do their political bidding or target specific opponents. This would be unremarkable, had they not promised the opposite with equal vigor – and disturbing specificity – during the 2020 campaign.

CNN reports Biden saying in an interview, “‘I’m not going to be telling them what they have to do and don’t have to do. I’m not going to be saying, ‘Go prosecute A, B or C.’ I’m not going to be telling them. That’s not the role. It’s not my Justice Department, it’s the people’s Justice Department’. … Harris echoed the sentiment of Biden’s remarks on the Department of Justice. ‘We will not tell the Justice Department how to do its job,’ Harris said.”

So pay no attention to their unambiguous promise to weaponize DoJ: “Biden will instruct the Attorney General to” do all manner of things to impose a political agenda or target opponents, including, “(iii) strategically support ongoing plaintiff-driven climate litigation against polluters”.

The latter point of course refers to an expanding litigation campaign by activists and the tort bar to force the progressive’s “climate” agenda on the country, and to enrich themselves through what are in effect taxes paid by consumers, run through massive settlements with energy companies.

The plaintiffs’ team regularly admit that this is an attempt to use the courts as substitute policymaker for an agenda that keeps failing through the democratic process.

Their objectives are to “bring down the fossil fuel companies”, coerce defendants “to the table” and ultimately to enlist them as lobbyists for desired climate policies. That is, the idea is to substitute verdicts for the failure to enact policy by convincing the public.

Things will inevitably get confusing, therefore, should DoJ soon deploy the awesome powers of the federal government to assist political-ally plaintiffs, against perceived enemies of the climate. So consider some facts about this litigation campaign.

First, the Biden-Harris vow revives the plan to federally prosecute the “climate” opposition, as revealed in a 2016 colloquy between Sen. Sheldon Whitehouse (D-RI) of the Senate Judiciary Committee and then-Attorney General Loretta Lynch.

That was shocking. This is even more deplorable given it’s not just a uniquely obsessive senator egging on an AG with a suspect record of politicization; this involves a president and vice president vowing a political hit for political allies, whose clumsily synchronized backpedal only adds to suspicions.

And of course, there is no reason to expect the threat to deploy government in this way is just against whomever they decide is a ‘climate polluter’. The targets will be wide-ranging, as Whitehouse suggested.

I spent two decades with the Competitive Enterprise Institute (CEI), a consistently effective opponent of the “climate” agenda which, therefore, found itself the subject of a subpoena campaign in an early, coordinated assault among state, DC and even territorial attorneys general.

That campaign resulted from an infamous call in 2011 by the same activists and tort lawyers for “a single sympathetic attorney general” to go after private parties with investigations, in order to extract records for use by the “climate tort” bar.

Thanks to newly released records, we now know that an ambitious young state AG from California helped organize this coordination between tort bar and law enforcement.

Bringing us to today, with that same ambitious lady having confessed that, if elected Vice President, she will direct the Attorney General of the United States to take over. And also that she would never ever do that.

Washington wouldn’t be The Swamp if the AG who subpoenaed CEI and 100 others, the U.S. Virgin Islands’ Claude Walker, wasn’t recently, quietly installed at the U.S. Environmental Protection Agency as deputy director of criminal enforcement. Don’t you just love it when a plan comes together?

Biden-Harris ran for office with a very specific, deplorable promise of weaponizing the Department of Justice on behalf of friends’ private civil litigation, to compel fealty to a failed ideological god and punish the heretics.

Soon they will turn to putting a “sympathetic Attorney General” in place. Confirmation hearings must confront this overt promise, generally, and detail this specific scheme by the climate litigation industry to occupy law enforcement offices.

Recall that billionaire activist and major Democratic donor Michael Bloomberg has already “embedded” privately hired attorneys in progressive state AG offices as “Special Assistant Attorneys General” to push this agenda. As the government-transparency group Energy Policy Advocates recently detailed, these mercenaries also were immediately tasked with assisting these private plaintiffs’ suits.

We have learned that this campaign’s lead tort firm has received “grants” of millions of dollars from a charitable foundation, plainly to underwrite its work despite contingency fee agreements promising massive payouts from any settlement. This is seemingly problematic, and not just for the poor optics of double-dipping.

We have also learned of “climate” plaintiff Rhode Island – home of Sen. Whitehouse – confessing that their goal in is to obtain a “sustainable funding stream” because the legislature would not pass the taxes required to finance left-wing spending ambitions.

The Biden-Harris vow to order their Attorney General to enlist the Department of Justice in this troubling campaign is scandalous. The Attorney General confirmation hearings must elicit from the nominee an unambiguous condemnation and disavowal of such thuggery.

Chris Horner is an attorney in Washington, DC and member of the board of the public interest law firm Government Accountability & Oversight, P.C.

From today’s Washington Times:

When Obama made the Paris climate agreement end run
Failure to act on its revival guarantees more such adventurism in a Biden-Harris administration

Recently, conservatives have called on President Trump to transmit the Paris climate agreement to the Senate as a treaty requiring “advice and consent” before it can in any way bind the United States, which Paris on its face so clearly is with its promises of adding ever-tightening regulations every five years, in perpetuity.

Doing so would restore the Senate’s role in our treaty process, and also protect Americans’ economy and system of governance…

Although a Freedom of Information Act lawsuit has revealed that an attorney for the Senate Foreign Relations Committee at the time of Mr. Obama’s Paris end-run decried this “disturbing contempt for the Senate’s constitutional rights and responsibilities,” the body did nothing.

Failure to act on Paris, now, guarantees we will see more such unilateral adventurism in a Biden-Harris administration on Iran and a host of other matters where Mr. Biden’s position lacks popular support.

Declaring Paris to be a treaty not only would pre-empt a President Biden from credibly “re-entering” Paris, as he vows to do on his first day in office. It also would smother in the crib the inevitable “Paris II,” with incoming “climate czar” John Kerry already loudly proclaiming, “Paris is not enough.”…

We know that progressive state attorneys general have malign intent; one of them, Massachusetts’ Maura Healey, promised Michael Bloomberg’s climate litigation group that any attorneys it provided her office would “be focused on ensuring that Massachusetts and neighboring states meet the long-term commitments set forth … in the Paris Agreement.”…

Longtime United Nations climate official Yvo de Boer acknowledged, “[t]he only way that a 2015 agreement [Paris] can achieve a 2-degree goal is to shut down the whole global economy.” That is why the Obama White House hailed Paris as more significant than all climate agreements that came before it – “the most ambitious climate change agreement in history,” more so than the Kyoto and UNFCCC treaties. It also is the reason for the audacious end-run around the Senate: The United States lacks popular support for, and indeed would never approve such commitments.

Presidential transmittal of Paris declaring it to be a treaty will undermine any claim that Paris compels U.S. action or inaction. It creates a dispute that cannot be undone by another president. Only the Senate can finally resolve it, one way or the other. And as French diplomat Laurent Fabius put it, “Whether we like it or not, if it comes to the Congress, they will refuse.”

Lacking Senate consent and with express disagreement among concurrent administrations, there would be no doubt that any claimed U.S. commitment to Paris was anything but a political commitment.

Any U.S. promises would be deemed “politically binding” at most, with no hope that adventurous courts or commissions of any gravity will issue the desired and otherwise certain rulings against U.S. economic development grounded in a supposed Paris commitment.

Mr. Obama’s Paris dare was an outrageous, brazen one that the Senate even more outrageously shied from confronting at the time. The sole cure is for Mr. Obama’s successor to restore our process, and the Senate’s role, and transmit Paris as a treaty requiring “advice and consent”.

Failing to do so, and allowing the Obama “climate coup” to stand, would enable future presidents to unilaterally adopt any treaties they and foreign elites want, simply by deeming them “not a treaty.” Such abandonment of our balance of powers in turn imperils American self-governance, and leaves U.S. energy and economic policies beholden to the demands of foreign leaders, U.N. bureaucrats and international pressure groups.

Read the entire piece here.

FOIA lawsuit seeks to highlight just how little ‘advice and consent’ went into the Paris Agreement

By Kevin Mooney

Getting documents out of a government agency is a heavy lift. That’s what the nonprofit organization Energy Policy Advocates aims to do in a Freedom of Information Act lawsuit, seeking State Department documents that describe how the Obama administration circumvented the Constitution to join a United Nations climate treaty.

A joint status report filed earlier this month suggests something of a “deep state” effort could be underway to delay the release of any such documents until after Joe Biden becomes president.

For reference, Inauguration Day is Jan. 20. In response to the suit, which was filed in November 2019, the State Department indicated it does not expect to begin releasing any of the requested documents until Jan. 26 and has proposed a deadline of Feb. 9 for another joint status report filed with the U.S. District Court for the District of Columbia.

Energy Policy Advocates has rejected the Jan. 26 deadline for the initial release of documents. The State Department, in turn, has rejected a proposed compromise date from the plaintiffs of Jan. 19 for the department to begin releasing documents and of Jan. 29 for a new joint status report…

Environmental [sic] Policy Advocates had sought to break loose the Obama-era Paris Agreement documents prior to the 2020 election so that voters could have insight into how the Obama administration sidestepped the Senate’s “advice and consent” role. But in September, the district court denied a motion for a preliminary injunction to compel the State Department to release records pertaining to the Paris Climate Agreement…

Government Accountability and Oversight, the public interest law firm that filed the FOIA suit on behalf of Energy Policy Advocates, has available on its website an 18-page document its client obtained detailing how Team Obama bypassed the constitutional process.

At issue is what’s known as a Circular 175 memo, which refers to the legal procedure that administrations follow when entering into treaties and other international agreements. If the document in question is the Circular 175 memo, then “it represents a major political and legal scandal with significant implications for U.S. participation in Paris, and the effort to bind the U.S. without following the Constitution,” Chris Horner, an attorney with GAO, says in a press release. The key arguments the Obama administration used to avoid activating the Senate’s “advice and consent” role amount to an insistence that the Paris Agreement was akin to other precedent executive agreements.

Horner is also the co-author of a report from the Competitive Enterprise Institute, a libertarian think tank in Washington, that finds “the Paris Climate Agreement is a treaty by virtue of its costs and risks …” Horner also warns in his report that it “endangers America’s capacity for self-government” since “it empowers one administration to make legislative commitments for decades to come without congressional authorization, and regardless of the outcome of future elections.”

Read the entire piece here.