GAO
GAO Climate-Industry Litigation: CA Court Rules in Part, Demands Further Detail and Briefing on UCLA Docs
A trial hearing that had been delayed several times finally took place on January 20, 2022, in Government Accountability & Oversight’s California Public Records Act (PRA) litigation against the Regents of the University of California. The case involves certain records pertaining to UCLA Law School’s donor-enhanced role in staffing and providing spokespersons for the climate litigation industry.
Specifically, at issue is a request seeking correspondence between two faculty and two email addresses associated with a major donor, some of which have already helped shed light on the relationship between public institutions and private interests. That request was prompted by an email to that donor, Dan Emmett, describing a “secret meeting at Harvard” for state attorney general staff, activists and “prospective funders” as being “about going after climate denialism — along with a bunch of state and local prosecutors nationwide.”
The Superior Court for the County of Los Angeles issued its ruling, which sets up two issues for appeal should either party so choose and also gives the University one more chance to meet its burden of describing over six hundred records it is withholding as exempt (in full) or as “not public records.” All of these withheld records are to, from or include the email address of two companies associated with Emmett, the namesake benefactor of UCLA’s Emmett Institute on Climate Change and the Environment and significant funder ($499,999.00) of the (UCLA Law Prof., on leave) “Ann Carlson Discretionary Fund“. That latter account received at least $1.5 million between Emmett and another donor, for the use of Prof. Carlson (presently serving as a political appointee in the Biden Administration) solely as she sees fit.
Carlson was, prior to her recent appointment to advance the climate agenda in the federal government, the New York Times‘s go-to commentator on all things climate, including particularly litigation for which both she and the Emmett Institute served on the plaintiff’s tort lawyer team. Carlson also assisted the climate plaintiff’s firm, Sher Edling, LLP, in what appears to be an effort to recruit other academics to the team of surrogates. In hindsight, the proliferation of commentary by bth Carlson and her co-host for the recruitment webinar, Vermont Law School’s Pat Parenteau, in some news outlets’ coverage does stand out.
Related to this, among all other institutions whose faculty participated in a briefing arranged by Carlson and Parenteau for Sher Edling and its non-lawyer communications director — i.e., a ‘comms’ briefing — it was the University of Texas that denied that it had any records which, other schools proved, do in fact exist. One’s guess is as good as ours as to how that came to be, and/or why. It has happened before and, as GAO has learned, public schools are sensitive to examination by the public of their roles in the climate litigation industry.
The LA Court ruled that Regents had sufficiently satisfied its burden to claim exemption for a small handful of correspondence and attachments claimed to be “pre-publication research.” GAO argued that, particularly given the emails were from a faculty member to her and her Center’s principal financial backer, a commercial real estate developer, they likely “were not between a researcher and a third party source whose assistance in improving the work in progress was being solicited or provided. Rather, as William Happer posits is more plausible in his declaration, the nine Pre-Publication Documents were exchanged ‘to make a major donor feel catered to and privy to advance information””.
In fact, the relevant part of Prof. Carlson’s Declaration presented something of a moving target on that, shifting mid-stream from discussion of such valuable sources to the value of the major donor to fundraising (¶ 14). The one email among these that has been seen by either the Court or GAO, because UCLA let it slip in redacted from in response to another request, shows without doubt that at least some of the supposed exempt, pre-publication research is no such thing.
The Court did not examine the records, but ruled the University had sufficiently described records that would be exempt. Whether this is true on scrutiny might be a question for future deliberations but for the moment the University is permitted to keep them from the public.
The Court did order UCLA to produce records it claimed were protected under FERPA, even though that claim is not available to the University for these materials, as affirmed by US Supreme Court precedent, which was even cited in a California Court of Appeals case litigated by none other than Regents. GAO argued that that claim, tossed in late in the proceedings apparently on realization its other claims to keep certain records from the public would also not make the grade, was one of many signs the University slow-walked and otherwise obstructed GAO’s request. The Court ruled that it is open to further evidence but is not yet persuaded on that.
Activist Backstory to New Biden Climate-car Standards
NHTSA is expected tomorrow to issue new global warming standards dictating what sort of vehicles Americans can drive. GAO is engaged in long-running public-records litigation with Carlson’s employer from whom she took a leave of absence to perform this job, UCLA Law School (technically, Regents of the University of California).
That suit seeks certain records sent to or from Carlson and her colleague Cara Horowitz, famous for boasting to their Center’s namesake and biggest donor about discussions at the “Secret Meeting at Harvard” for attorneys general and “prospective funders” of a coordinated campaign by activists/tort bar/law enforcement about using government to get their ideological way on climate:
Tomorrow’s rules are the job Carlson was brought in to do.
For context of where these rules are coming from, a little backstory on Carlson’s appointment can be found in her leave documents here and here. Much more on her involvement with the climate litigation industry as a member of the trial bar’s team can be found here. Related, required (but obviously quite belated) reporting filings signed the day before they were produced, citing work with both the tort firm and another group enlisted in the litigation campaign (Environmental Law Institute), can be found here.
Another curiosity recently produced by UCLA can be found here.
UPDATE: The Biden administration has nominated Ms. Carlson to run the Highway Transportation Safety Administration.
The emails responsive to GAO’s Public Records Act request for Carlson NHTSA Biden Administration (21-8746) can be found here, here, and here.
The emails responsive to GAO’s Carlson Leave Records PRA request (21-8782) can be found here.
Records responsive to GAO’s Carlson Outside Professional Activities PRA request (20-8525) can be found here and here.
Records responsive to GAO Carlson contracts + outside activity forms PRA Request (20-8590) can be found here.
A selection of interesting documents from these public records is here.
Curious Chronology re DoI Official’s Ethics Claims
“1001” Reasons Congress Needs More Information
A timeline of events surrounding Elizabeth Klein’s appointment as Senior Counselor to the Secretary of the Interior sheds some light on the Department’s ethical lapses and raises even more questions.
January 21, 2021 Elizabeth Klein, recent-former Deputy Director of the Michael Bloomberg group created to plant activist attorneys in state AG offices to, among a very few other things, file suit against federal agencies including the Department of the Interior, joins the Department of the Interior, per Klein’s LinkedIn page.
April 24, 2021 WaPo reports that bipartisan Senate opposition has scuttled Klein’s expected appointment to be Deputy Secretary of the Interior.
May 25, 2021 House Natural Resources Subcommittee holds a hearing at which Klein testified and during which the following exchange occurred:
Representative Boebert: Ms. Klein, the White House pulled your potential nomination to be the Deputy Secretary because your conflicts of interest were so severe that you faced bipartisan opposition. Has the ethics office at the Department provided you with a recusal list? Yes or no.
Ms. Klein: Thank you for that question. Yes, I have been consulting on an ongoing basis with our ethics officials and am taking my responsibilities and ethics requirements seriously and I have an ethics agreement that I operate under.
Representative Boebert: So, you have been provided with a recusal list. Who and what matters are you currently recused from and would you provide the Committee with that full list?
Ms. Klein: I am happy to provide the list.
(emphasis added)
June 3, 20201 Reps. Westerman, Gosar and Boebert send letter to Klein/DoI reminding them of this exchange and the promise to produce, noting there has been no production, and requesting records by COB June 10, 2021. These include:
- A copy of Ms. Klein’s signed ethics pledge.
- A copy of the information Ms. Klein provided to DOI’s Ethics Office describing her work at SEEIC.
- A document describing the role and responsibilities of the Deputy Director of SEEIC during Ms. Klein’s tenure in the position.
- A document listing the regulatory challenges supported or advocated by SEEIC or its legal fellows.
- A document listing the matters and actions on which Ms. Klein advised or supported through her work at SEEIC.
- A document listing the decisions, deliberations, and actions that include Ms. Klein’s participation as a DOI employee from January 20, 2021 to June 2, 2021.
June 4, 2021 DoI provides Klein with “Ethics Guidance on Recusal Obligations”, “supplement[ing] and replac[ing] the interim ethics guidance on recusal obligations provided to you in earlier draft memoranda”.
June 5, 2021 (Saturday) Klein provides a signed and dated (that day) “Ethics Recusals & Screening Arrangement” stating, inter alia, “this memorandum fulfills the requirement established in Section 4(a)(iii) of Executive Order 13989 entitled, “Executive Order on Ethics Commitments by Executive Branch Personnel” (Jan. 20, 2021) (Ethics Pledge).”
June 10, 2021 DoI writes to the Committee to provide these documents, seemingly affirming in its cover note that Ms. Klein had no ethics agreement in place at the time she testified that she was operating under an ethics agreement. This raises concerns, particularly given 18 USC §1001 (which sets forth criminal penalties for providing false information to the U.S. Government).
May 28, 2021 Days after Ms. Klein’s appearance, United States District Court for DC Judge James Boasberg schedules a hearing for June 4, 2021 on Energy Policy Advocates’ (EPA) motion for a preliminary injunction to compel DoI to release Klein’s ethics recusals letter and related documents, under a federal FOIA request and lawsuit filed by EPA.
At the hearing Judge Boasberg orders the case to proceed under an expedited briefing schedule, moving it forward on the calendar by many months.
This makes Ms. Klein’s ethics records, including any pledge in effect on May 25, 2021, and all back-and-forth in preparing any ethics and recusal agreement and other related documents, subject to a federal court’s order for expedited consideration.
As such, regardless of any follow-up legislative oversight, further records informing a conclusion about this testimony should become available in coming weeks.
EPA Heavily Redacts Official’s Recusal Information
The Biden Environmental Protection Agency (USEPA) has released selected, often heavily redacted records pertaining to the conflicts and recusals for Principal Deputy Assistant Administrator, and Acting Assistant Administrator for Air and Radiation (i.e., “climate”), Joe Goffman.
The recusal statement is notable for what it does and does not include. As for the redactions, they appear to be heavy-handed given past EPA practice. The refusal in full to release draft recusals appears to be an improper withholding of the “back-and-forth” known to be subject to release.
Readers may recall Energy Policy Advocate’s amicus brief in State of New York et al., v EPA, which revealed Goffman’s role consulting for progressive attorneys general on particular regulatory matters presently before USEPA, and under Goffman’s present remit. For example, the scheme to use the “NAAQS” regime to sneak in what the Wall Street Journal called “Biden’s ‘Back Door’ Climate Plan”.
There is no mention of any such work or recusal in what USEPA did release…including the recusal statement (it seems that learning what the drafts contain will require litigation). As such, these records sharpen the question — increasingly appropriate for Biden’s climate “all-star” team — of what Goffman disclosed about his prior work to his ethics officer(s) and when he he disclosed it.
The release is timely, incomplete though it may be. Appointees can remain in an “Acting” capacity for a limited number of days. There is scuttlebutt that the Biden White House intends to game the law and calendar to keep Goffman in place as “Acting” AA for as long as possible to put off or even avoid subjecting him to the scrutiny/accountability of the confirmation process.
The “Back Door Climate Plan” and the past consulting with AGs adverse to USEPA in litigation on matters in Goffman’s portfolio may well be two reasons for that.
In an interview last week with Politico — he is getting around these days (and ducking the same question, as well as at least one question about the NAAQS scheme) — Goffman dodged a question whether he expects a change in his status as only one of two confirmable USEPA appointees about whom the White has yet to produce paperwork.
Do you want to be nominated to be the assistant administrator for air and radiation?
I haven’t thought about that in quite a while. I’m extremely content with what I’m doing now on a day-to-day basis.
The recusal letter and what it contains — as well as what it does not — seems likely to be an issue in the event the Biden Administration seeks to formalize Mr. Goffman’s role and subject him to the required accountability. Given the increasingly obvious reluctance to facilitate congressional oversight and exploration of these activities, presumably the Senate Environment and Public Works Committee plans to schedule a hearing on its own.
CLIMATE LITIGATION BOMBSHELL: New Paper Exposes AG “Climate” Suit as Illicit Product of Private Lobbying, Misrepresentation, Paid ‘Cutouts’
Today the public interest law firm Government Accountability & Oversight, P.C., published a paper on behalf of its client the government-transparency group Energy Policy Advocates, titled “Private Funders, Public Institutions: ‘Climate’ Litigation and a Crisis of Integrity”.
Minnesota’s “climate” lawsuit and its replica filed the next day in Washington, D.C., like all of these suits, represent transparent attempts to manufacture state jurisdiction for a litigation campaign that, its proponents previously admitted, is national, belongs in federal courts, and seeks to substitute verdicts for Congress’s refusal to adopt their desired policy agenda.
The paper reveals, for the first time, damning details confirming who is actually conducting this purportedly governmental litigation campaign and how they are doing it, as described in the parties’ own hand.
This paper, and yesterday’s Supreme Court opinion in BP p.l.c. et al. v Mayor & City Council of Baltimore, serve as bookend reminders of the importance of this jurisdictional issue in the wave of “climate” litigation washing over state courthouses around the country, and the impropriety of their proceeding in local courts.
Read the paper here.
Banking Committee Rs to Biden: Cool it on Fossil Fuel Finance Freeze-Out
Another fed gov’t campaign to strangle legal businesses’ access to capital
From the Senate Banking Committee Republicans, a letter to the Biden White House’s climate-treaty czar John Kerry and the administration criticizing efforts to coerce banks into de-platforming fossil energy companies, and taking aim at a new global warming disclosure mandate on publicly traded companies.
Toomey, GOP Banking Members Demand Kerry, Biden Administration Stop Trying to De-Bank Energy Companies
Also Push Back on New Global Warming Disclosure Mandates for SEC-regulated Companies
Washington, D.C. – Ahead of President Biden’s Leaders Summit on Climate, U.S. Senate Banking Committee Ranking Member Pat Toomey (R-Pa.) and all Republican members of the committee sent a letter calling on Special Presidential Envoy for Climate John Kerry to stop pressuring banks to make energy-related lending commitments.
In the letter, the members argue that abusing government power to influence bank lending and investment practices will distort capital allocation, raise energy costs for consumers, and slow economic growth. The members also reminded Mr. Kerry that one of the main drivers of America’s economic success has been that our government is based on the rule of law—not coercion.
“Beyond the poor track record associated with central economic planning, this apparent attempt to prevent energy companies from obtaining capital disturbingly resembles the Obama administration’s notorious ‘Operation Choke Point’ scandal, in which financial regulators attempted to coerce banks into denying services to legal yet politically-disfavored businesses.”
The letter also expresses concern that President Biden will soon sign an Executive Order setting in a motion a new mandate forcing publicly-traded companies to disclose non-material information on global warming. The members wrote:
“The apparent objective of this effort is not to protect investors, but to punish lawful energy companies by deterring lending to, and investment in, such firms.”
Read the full letter here.
The Lady Doth Protest Too Much, We Think
New York Attorney General Letitia James’s Office led the development of what the Wall Street Journal editorial board called “Biden’s ‘BackDoor’ Climate Plan,” a clever if likely unlawful way to sneak in the Green New Deal under the auspices of controlling ozone — ditching failed climate messaging on “Polar ice caps and the polar bears [which] have become the climate change ‘mascots,'” because, “Unfortunately, climate change in the abstract is an increasingly – and consistently – unpersuasive argument to make.”
The plan is laid out in months of emails between James’s Office and other OAGs with former EPA career attorneys and officials, and even the current Biden EPA climate chief. It is what a James-led lawsuit filed by those same AGs the day before the inauguration set in motion, as detailed in an amicus brief here.
It’s what they are doing. Understandably, AG James doesn’t like having that pointed out, according to her letter to the WSJ editors that ran last Friday.
Regardless, the albatross of climate doomsaying and Green New Deal moon battery has yielded, for practical purposes, to a new narrative “about our neighbor with respiratory illness,” a rhetorical sleight of hand “highlighting the children’s health dimension to all of our major initiatives,” to capture those “many Americans who otherwise would oppose many of our regulatory actions.”
This is the plan, as laid out on The Most Cynical EPA Memo, Evah™, re-released by GAO on the document’s anniversary last month. EPA and its allies are doing what they said for years, among themselves, they needed to do. And which a paper trail shows that James’s Office prepared for months to do. Exposure of which has only prompted AG James to insist that you shouldn’t believe your lying eyes but instead, remember your neighbor with respiratory illness. Which, the paper trail shows, is not what this clever move is about.
AG James’s LTE simply protests — and proves — too much.
