GAO

Here We Go Again — Latest in Long Line of ‘Historic Climate Pacts’ Now a “First Step”

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Wall Street Journal columnist Walter Russell Mead writes, about former Vice President Joe Biden’s vow, if elected, to re-impose the Paris climate treaty on the United States, that Paris was “envisioned as the first step in a globally coordinated campaign to limit the emission of greenhouse gases.” Finally, a first step!

Or rather, Here we go again.

A quick if very abbreviated reminder:

The United Nations writes of itself, “In 1992, its ‘Earth Summit’ produced the United Nations Framework Convention on Climate Change (UNFCCC) as a first step in addressing the climate change problem.” 

Of the 1997 Kyoto Protocol amending that agreement, UNFCCC Executive Secretary Christiana Figueres said “The Kyoto Protocol was the first critical step – today we must take further and more far reaching action towards a truly sustainable future for seven billion, rising to over nine billion, people.”

Of the 2009 amendment to UNFCCC agreed in Denmark, German Chancellor Angela Merkel declared, “Copenhagen is a first step toward a new world climate order, nothing more but also nothing less”.

There were more such initial forays but, anyway, now Paris represents that first step mankind could, at long last, take.

Evocative of Mr. Biden’s pronouncement that it’s time those high-earners who pay the overwhelming share of individual income taxes finally “put some skin in the game”, his party’s leading voices insist that decades of international climate agreements and costly domestic policies constitute “climate inaction”. Rather than years more of make-believe, let’s recognize what the taxpayer has spent on this agenda, and assess what we have received for the “investment.

Transparency Group Files SCOTUS Amicus Brief with Records Proving State “Climate” Lawsuit Is to Obtain “Sustainable Funding Stream”

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Same two sets of notes from July Rockefeller-hosted meeting, confessing the revenue-raising motive, at were recently accepted by 1st Circuit over objection by plaintiff’s tort counsel

WASHINGTON, D.C., April 30, 2020 – The transparency group Energy Policy Advocates (“EPA”) today filed a Friend of the Court brief with the Supreme Court of the United States in BP P.L.C. et al. v. Mayor and City Council of Baltimore, providing public records showing the epidemic of “climate nuisance” lawsuits being pursued by the plaintiff’s tort bar in state courts across the country is a pursuit by governments for a “sustainable funding stream.” The tort bar recently turned to state courts after having their campaign shut down in the federal courts by SCOTUS in American Electric Power v. Connecticut, 564 U.S. 410 (2011).

This campaign was already confessed by the tort bar to be an effort to obtain unpopular “climate” policies denied their clients by the democratic process. It now is burdened by notes proving it to be an effort to raise hundreds of billions of dollars from the consumer, hiding the politically risky move to raise the revenues openly through taxes which, the documents presented to the Court also affirm, also are politically unattainable. Both are impermissible uses of the courts, and reflect a movement pinning its hopes for a radical agenda on state court bias. As such, the brief argues, belong in federal court.

Today’s Amicus Curiae brief argues that:

“States and municipalities are engaged in a campaign through the courts to overturn ‘unpopular federal laws.’ Rather than recognizing the Constitution and federal laws as supreme, governmental ‘climate nuisance’ plaintiffs are applying ‘narrow, grudging’

interpretation of the removal statute to seek to overturn federal law through imposing ostensible tort liability in state courts.” And

“This Court should prevent litigants from seeking the most favorable forum to obtain political and policy ends by judicial means.”

In the memo accompanying its motion, EPA provided the Court with two independent sets of notes obtained under a state open records law and which purport to record a damning confession by Janet Coit, a senior State of Rhode Island official: the objective of this litigation is to obtain a “sustainable funding stream” for the State’s spending ambitions, having failed to convince the voters’ elected representatives to provide one. Each of these, independently, “document the State’s concession that Rhode Island’s elected representatives are insufficiently moved by the State’s claims of loss and looming disaster to enact laws raising the revenues the State’s executives desire; and, that Plaintiff is thus ‘looking for [a] sustainable funding stream’, having been reduced to ‘suing big oil’ for its ‘Priority – sustainable funding stream’. Notably, both sets of notes capture the Plaintiff as having emphasized the ‘state court’ aspect of its plan.”

These notes were taken during a two-day meeting in July 2019 hosted by the Rockefeller Brothers Fund at the Rockefeller family mansion at Pocantico, NY, as a forum for policy activists and their funders to coordinate with senior government officials from 15 states. It is to these officials the Director Coit made her confession, captured at the time by two participants.

Rhode Island, in Rhode Island v. Chevron, et al. shares the same legal counsel with the Mayor and City Council of Baltimore. EPA presented the United States Court of Appeals for the First Circuit with these same records recently in that action, over the opposition of Rhode Island and its lawyers, Sher Edling.

Today’s brief noted, “That Rhode Island and the City of Baltimore share not only claims and legal strategies but legal counsel, whose recruiting team has emphasized to targeted governmental entities the desire to keep these matters in state court as the ‘more advantageous venue for these cases,’ given this Court’s ruling in American Electric Power, raises concerns that the climate nuisance plaintiffs also share the hope for state court biases in the campaign to eliminate budgetary shortfalls and otherwise make policy through tort litigation.”

The brief proceeded to cite emails obtained under open records laws in which “a lobbyist hired to assist with recruiting more governmental plaintiffs for Sher Edling passed along a note of encouragement to one prospective client whose counsel had expressed concern over [yet another federal judge dismissing a ‘climate nuisance’ case…that] flatly stated (or forwarded) the team’s position that state courts are the ‘more advantageous venue for these cases.’” (citations omitted)

Baltimore’s outside tort counsel ultimately agreed to consent to today’s Amicus brief, having previously and unsuccessfully filed a brief in opposition to the First Circuit seeing these records.

The Fourth Circuit Baltimore case before the Supreme Court is one among many proliferating in state courts, from coast to coast, an epidemic that now is admittedly about obtaining the “sustainable funding stream” that elected representatives are unwilling to impose the taxes to obtain. Quoting the U.S. District Court for the Southern District of New York in Chevron Corp. v. Donziger, which involved an infamous abuse of the judicial process, EPA highlighted a consideration relevant to the climate litigation tsunami: “The point of the multi-front strategy thus was to leverage the expense, risks, and burden to [defendant] of defending itself in multiple jurisdictions to achieve a swift recovery, most likely by precipitating a settlement.” That opinion was later upheld at Chevron Corp. v. Donziger, 833 F.3d 7 4 (2d Cir. 2016), cert. denied at 137 S. Ct. 2268 (2017).

Matthew Hardin, who represents GAO in numerous lawsuits, filed on EPA’s behalf.


Government Accountability & Oversight is a 501(c)3 non-profit organization dedicated to transparency in public officials’ dealings on matters of energy, environment and law enforcement

Vermont Attorney General Sued to Compel Release of Improper Secrecy Pacts with other Attorneys General

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AGO entered at least six contracts giving other states’ AGs veto power over Vermonters’ right to see Vermont public records, forcing requesters to sue; claims the pacts themselves are secret

MONTPELIER, VT, April 27, 2020 – Today the public interest law firm Government Accountability & Oversight, P.C. (GAO) filed suit against the Vermont Office of the Attorney General (AGO) under Vermont’s Public Records Law, on behalf of the transparency group Energy Policy Advocates (EPA). The lawsuit, filed in the Superior Court for Washington County by GAO board member and attorney Matthew Hardin, aims to compel the AGO to release several secrecy pacts with other state AG offices. This suit was brought after AGO made the remarkable claim that it has contracted its way out of the legal obligation to provide the public with their own records.

On March 27, 2020, EPA requested four categories of records, only one category of which is at issue in this lawsuit. Specifically, EPA requested that AGO provide copies of certain “common interest agreements” signed in 2019 or 2020 concerning the “climate” agenda.

AGO denied this request, claiming that six purported common interest agreements are exempt from disclosure as attorney-client communications or attorney work product. EPA filed the required administrative appeal, which AGO upheld in favor of itself on April 23, 2020, stating, “The agreements are subject to attorney-client privilege because they are confidential communications between the parties’ attorneys to facilitate the rendition of legal services to clients. In addition, the agreements constitute attorney work product because they were prepared by attorneys in anticipation of litigation. Furthermore, the agreements are subject to the common interest privilege as they were made in furtherance of the parties’ shared interests and strategies.”

The complaint notes that “Although the Public Records Act reflects the legislative intent of making records available to the public on a liberal basis, and Chapter 1, Article 15 of the Vermont Constitution provides that only the legislature has the power to suspend the laws of the State of Vermont, AGO has admitted in the exhibits mentioned above that it has entered into at least six purported “Common Interest Agreements” during 2019-2020, which it uses to shield records from the public eye, while nevertheless sharing such records with” third parties.

Hardin previously won several open records cases fighting “a bogus effort” by Vermont’s AGO to hide records from the public on the same topic, also including a similar secrecy pact among the same parties (the New York courts rightly acknowledged that purported common interest agreement was no such thing, and not privileged, in Competitive Enterprise Institute v. The State of New York. N.Y.App.Div., 161 A.D.3d 1283 (2018), 76 N.Y.S.3d 640).

About that pact, Vermont’s Deputy AG Scot Kline had written to New York’s AGO expressing concern over adopting “an affirmative obligation to always litigate” record requests looking into their efforts. The actions prompting today’s suit prove that AGO concluded that releasing records about its political alliances poses the greater risk, making requesters file suit after – as other public records show – contracting to give other states’ AG offices a veto over the release of Vermont records.

The Caledonian-Record, in an editorial “AG Smackdown,” captured a key and highly relevant moment from those prior AGO open records cases Hardin litigated:

“We get a request from [a group] and so one thing we might consider is where are they — who are these people?” [Chief Assistant Attorney General Bill] Griffin said in a transcript of the hearing. “Where are they going with this? And we Google them and we find, you know, coal or Exxon or whatever — and so we’re thinking this is — we better — we better give this some thought before we — before we share information with this entity.”

“Or it might be a news organization and we think, well, what are they going to do with it?” he continued. “Well, they’re going to publish it to the world. So that would be — I mean, that would be my mental impression and, you know, let’s exercise some caution. Is there some public interest publishing this information at this time? Probably not.”

To Griffin’s first argument, Vermont Judge Mary Miles Teachout asked… “So is that your argument?… That the Attorney General’s Office never has to comply with any public records request because it is the attorney for the state of Vermont?”

To which Griffin replied “We have to determine what’s in the best interest of the state.”

History, and that same unlawful bunker mentality, appears to be repeating itself here.

About today’s suit Hardin noted, “The Attorney General is improperly hiding contracts with other states, entered into on behalf of Vermont’s citizens yet designed to hide otherwise public records from those same citizens. The notion that a public office can shield from the public a contract, particularly one purporting to create a double wall of secrecy allowing that office to shield still more records from the public, has no support in Vermont’s Public Records Act or any other law.”

“The public has a right to know how its institutions are being used, and what contracts it enters into in the public’s name,” said Hardin.

Government Accountability & Oversight is a 501(c)3 non-profit organization dedicated to transparency in public officials’ dealings on matters of energy, environment and law enforcement

Virginia Attorney General Sued to Compel Release of Improper Secrecy Pacts with other Attorneys General

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AGO hiding at least four contracts giving other states’ AGs veto power over Virginians’ right to see Virginia public records, claiming the secrecy pacts themselves are secret

CHARLOTTESVILLE, VA, April 29, 2020 – Today the public interest law firm Government Accountability & Oversight, P.C. (GAO) filed suit against the Virginia Office of the Attorney General (AGO) under Virginia’s Freedom of Information Act, on behalf of Commonwealth citizen and GAO board member Chris Horner. The lawsuit, filed in the General District Court for Albemarle County by GAO attorney and board member Matthew Hardin, aims to compel the AGO to release several secrecy pacts with other state AG’s offices by which it claims to have contracted its way out of the legal obligation to provide the public with their own records.

On April 2, 2020, Horner requested any common interest agreement signed in 2019 or 2020 by Environmental Section Chief Paul Kugelman, Jr. AGO took an extension of ten business days before denying the request in full, withholding every word of every such agreement. Remarkably, Virginia’s AG stated that “The Office has identified approximately four (4) records responsive to your request. These records, in their entirety, constitute attorney-client privileged communications and/or attorney work product.”

The complaint notes that those privileges in Virginia exempt “advice of legal counsel”, “mental impressions” and “legal memoranda,” none of which the request sought. Also, Horner “only requested signed agreements, not draft or other inchoate records. Thus, the responsive records can only possibly include contracts to which the Commonwealth is a party. Having entered into contracts to deprive the citizens of Virginia of access to their own records, OAG now wants to keep the citizens from seeing the secrecy contracts as well.” 

Hardin, a former Commonwealth’s Attorney for Greene County, VA, previously won several open records cases fighting “a bogus effort” by Vermont’s AGO to hide records from the public on the same topic, also including a similar secrecy pact, to which Virginia AGO was also a party (the New York courts rightly acknowledged that purported common interest agreement was no such thing, and not privileged, in Competitive Enterprise Institute v. The State of New York. N.Y.App.Div., 161 A.D.3d 1283 (2018), 76 N.Y.S.3d 640). 

About that earlier pact also joined by Virginia, Vermont’s Deputy AG Scot Kline had written to New York’s AGO expressing concern over the AG offices adopting “an affirmative obligation to always litigate” record requests looking into their efforts. The actions prompting today’s suit prove that AGO concluded that releasing records about its political alliances poses the greater risk, making requesters file suit after – as other public records show – contracting to give other states’ AG offices a veto over the release of Virginia records. 

About today’s suit Hardin noted, “The Attorney General is improperly hiding contracts with other states, entered into on behalf of Virginia’s citizens yet designed to hide otherwise public records from Virginia’s citizens. The notion that a public office can shield from the public a contract, particularly one purporting to create a double wall of secrecy allowing that office to shield still more records from the public, has no support in Virginia’s or any other law.”

“The public has a right to know how its institutions are being used, and what contracts it enters into in the public’s name,” said Hardin. “AGs have tried to hide these same kinds of secrecy pacts in the past and failed. This instance should prove no exception.”

Government Accountability & Oversight is a 501(c)3 non-profit organization dedicated to transparency in public officials’ dealings on matters of energy, environment and law enforcement

The Most Teachable ‘Earth Day’ Ever

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On this, the 50th birthday of “Earth Day,” it is fitting that much of the world remains in lockdown, racked with terrible economic anxiety and possibly facing a worldwide depression. The day has become a celebration for the political Left, those seeking slower economic growth — even “degrowth” — if a much larger regulatory state, as well as for their cousins seeking to “Smash Capitalism”, end humans’ “parasitoid relationship with the Earth,” and so forth. 

Climate has consumed the environmental movement, and so Earth Day became about the climate agenda. Earth Day is therefore inherently political — one cannot “politicize” it,  the climate agenda is inescapably a list of demands for imposition of tax and other policies through the political process.

OK. The plan used to be to obtain these things through the political process. Now the climate industry seeks to impose its demands through the courts, recognizing — most recently after the  “Green New Deal” bombed on release — that those demands will never be obtained through regular order. More on a stunning campaign on that front, soon. 

For now, true, there’s bit of fun to be had with a long-in-the-tooth Earth Day movement’s inability, in these times, to gather together and sign petitions promoting the most inane fear-mongering, or litter all manner of public spaces. 

But today presents a terrific opportunity to educate on themes specific to the moment — from the agenda demanding “wrenching transformation” based on dodgy computer-modeled projections, to the greens’ celebrating the economic downturn as a dress rehearsal, confessing it’s what they want, forever, and want to use the awesome power of the state to force it into reality.

The New York Times gleefully finds silver linings, such as that the virus has caused traffic and pollution to plummet. “Rep. Alexandria Ocasio-Cortez, D-N.Y., tweeted – then quickly deleted – a celebration of the news that U.S. equity markets crashed on Monday, with oil prices turning negative for the first time in history.”

But the provision and consumption of affordable, reliable energy runs together with economic activity — meaning also jobs, health and dignity, and the wealth that must be attained and maintained for societies to agree to an ever larger, ever more stringent environmental regulatory state. The agenda demanded with increasing and disturbing giddiness comes at the cost of this. Indeed, it means much, much worse. 

This is an economy with employment rates on track to contract by about 40% on an annualized basis. But the headlines now ask, “Could coronavirus beat the Green Deal in Slowing Climate Change?”

“It’s a good start” seems to be the conclusion about the current economic devastation. From E&E News we see a practical acknowledgement: 

“A growing number of prognosticators expect that global carbon dioxide emissions could fall 5% this year as a result of the coronavirus pandemic, amounting to the largest annual reduction on record. But climate researchers say there is little reason for celebration, for people or the planet [because]…Mostly, the emissions projections show just how much work the world needs to do to green the economy.”

We even have activist-officials bemoaning/confessing that if economic recovery becomes a priority the climate agenda will take a back seat. Which is a bit of a U-turn, what? Political leaders, who for years have assured us almost in unison that the way to prosperity was the climate agenda, now confess that “green” projects must be delayed due to the coronavirus response. 

Why, is there something they weren’t telling us?

The invaluable GWPF newsletter the past few days has covered these timelier issues. One item circulated this week noted, “an austere future where their parents are out of work and their prospects for their own futures look bleak. This is basically the same as #netzero or the Green New Deal of course, but a global depression won’t save the planet in the process. Hence why some climate fanatics are OK with lockdown and economic ruin as long as it morphs long term into Green austerity.”

This is either/or. Remember that when U.S. politicians insist they favor massive infrastructure spending, and rejoining the Paris climate treaty. We know you can’t do both. Ask them, which will it be?

In the Good News department, just yesterday the DC Superior Court granted motions for costs and attorneys fees to critics (including the National Academy of Sciences) wrongly sued for defamation, having criticized a Stanford researcher’s implausible claim that renewables (including hydro, btw, which the greens generally will not allow) could meet U.S. energy needs 25 years from now. 

The defendants had pointed out that, as a writer for MIT Technology Review put it — are you seated? — the researcher’s “modeling errors and implausible assumptions could distort public policy and spending decisions.” Now, where have we heard about that recently?

The coronavirus has led to more candor about the green/climate agenda than we have become accustomed to, and other parallels including economic devastation and those modeling perils becoming more apparent by the day. Seizing it, today is time to also acknowledge that, this year more than ever, it is time to consign the Earth Day agenda to the dustbin. 

Wealthier is healthier. Wealthier is cleaner. Wealthier is greener. What’s going on now, and where the climate movement want to take us, is the wrong prescription for human health and the environment.

GAO Files Suit against University of California Seeking Information on Law School Involvement with Climate Litigation Industry

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University dragging its feet on details of work advising East Coast AG to prosecute “climate denialism”, fund climate tort litigation boiler room

LOS ANGELES, April 1, 2020 – Today the public interest law firm Government Accountability & Oversight, P.C. (GAO) filed suit against the Board of Regents of the University of California under California’s Public Records Act (CPRA). The lawsuit, filed in the Superior Court for the County of Los Angeles by local counsel Jim Hunter, aims to compel the University of California at Los Angeles (UCLA) Law School to respond to a request for documents shedding further light on the use of law enforcement to advance private interests. The suit also seeks records that would illuminate the school’s delay in handling the initial request.

The complaint seeks “records concerning the University’s work with private outside parties including law enforcement to develop theories of litigation against, and pursue as targets of investigation, perceived opponents of a political and policy agenda shared by these outside parties and certain faculty, and the University’s Emmett Institute on Climate Change and the Environment for which they work.” It also notes, “[t]hat policy agenda is in the name of ‘climate change’, which is the basis for proposals to urgently redesign our national (and the global) economic and political/policymaking system and for siccing law enforcement on free speech in order to silence it, all in the name of planetary salvation.”

This role was first revealed in the agenda of an April 2016 “secret meeting” — according to one presenter — hosted by Union of Concerned Scientists (UCS) for “prospective funders” and attorneys general offices, released by the Vermont Office of Attorney General only after resisting in court for eighteen months. The secrecy of that pitch for “potential state causes of action against major carbon producers” is affirmed not only by that fight but by other documents obtained from California’s AG, and by UCS. At that secret meeting, UCLA’s Cara Horowitz advocated “climate”-related “Consumer protection claims” be brought against energy companies. The Massachusetts Office of Attorney General (OAG) sent five attorneys to this briefing, and subsequently filed a complaint against ExxonMobil for “potential violations of the Massachusetts consumer protection statute” which is now pending in a Massachusetts state court.

Ms. Horowitz is Co-Executive Director of the Emmett Institute on Climate Change and the Environment. This lawsuit seeks Ms. Horowitz’s correspondence with Massachusetts’ OAG following the meeting. It also seeks correspondence with “Dan Emmett”, to whom Ms. Horowitz boasted, in an email sent from the Harvard meeting, that the effort was “about going after climate denialism [sic]—along with a bunch of state and local prosecutors nationwide.” GAO learned of this in litigation with UCLA over a previous open-records stonewall. In that matter the University conjured a non-existent PRA exemption to hide discussions of “the Dan Ask”, which context indicates involved Emmett funding for subsequent Horowitz/Prof. Ann Carlson activities. This might refer to the real estate mogul who first underwrote the Emmett Center, or his son and renewable energy entrepreneur Daniel Emmett, who also is on its board.

The suit seeks the same correspondence from UCLA Prof. Ann Carlson, also a consultant for the tort litigation firm filing most of these “climate nuisance” suits. Possibly that complication relates to UCLA’s delay. As detailed in the complaint, UCLA hasn’t explained an apparent slow-walk.

Months later, the University still has produced only electronic case filing (ECF) notification emails which, by their nature, could not conceivably require delay for exclusion review for exempt material. After promising to release the substantive materials by a belated (and thoroughly) arbitrary date of March 26, 2020, UCLA instead cited to the novel coronavirus, and continued with its practice of merely releasing ECF notices, thereby continuing to withhold any correspondence between the faculty and their benefactors or with the Massachusetts AG, simply delaying the inevitable public education on key facts.

GAO attorney Chris Horner noted, “It is clear the University has been dragging its feet on releasing records about its role in the climate litigation industry, including its fundraising around that role, which has entailed recruiting law enforcement against opponents. Our past experiences with the University include attempts to hide this involvement by inventing a fictitious “donor strategy” exemption to CPRA – which argument the University ultimately abandoned, given it was an ad hoc fiction. The same mindset seems to have driven the handling of these requests.”

“The public has a right to know how its institutions are being deployed in this partnership with activists, donors and law enforcement to ‘go after’ opponents of their shared agenda,” said Horner.

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