GAO

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.

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.

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.