GAO Files Suit Against Washington Attorney General
Seeks Release of Memos Relating to “Climate Change” Plaintiffs’ Tort Campaign
Cites Unfolding Revelations of Tort Lawyer Influence on Attorneys General, AG Ferguson’s Practice of Improperly Withholding Non-Privileged Information, and New Records
OLYMPIA, WA – On Wednesday, the public interest law firm Government Accountability & Oversight, P.C. (GAO) filed a Public Records Act (PRA) lawsuit against Washington State Attorney General Bob Ferguson’s Office (OAG), seeking specific, unredacted emails and memos showing the interactions between OAG officials and a plaintiff’s lawyer, Matt Pawa, who has been exposed as recruiting attorneys general to pursue the targets of his tort litigation campaign.
The complaint was filed the same day the 9th Circuit federal court of appeals hears oral argument by Oakland and San Francisco appealing the dismissal of their “climate nuisance” lawsuits against energy companies. Those cases were originally brought by Mr. Pawa.
Records obtained in 2019 by the plaintiff, Spokane-based public records group Energy Policy Advocates (EPA), show that the day Ferguson’s Office received activist group petitions to investigate ExxonMobil, it circulated three memos about doing so. Two were dated in November 2015; one, a three-page memo to Deputy AG Rob Costello, was written that same day.
The memos’ production by OAG suggests that one or all of them, and several emails, cite to Pawa. EPA’s suit seeks these memos which, although redacted in full other than To, From, and Date, nonetheless reveal a fascinating chronology, and an OAG very attentive to activists.
Record requests to other AGs confirm the activist petitions, passed along by an official of the National Association of Attorneys General (NAAG), were sent only to certain offices. WA OAG redacted all of its comments discussing this plea by activists to pursue their political opponents, which EPA also seeks in full or at least in more properly redacted form after review by a judge.
Public records EPA obtained from OAG’s counterparts at the Washington Department of Ecology — which is subject to the same records law, but chose to comply with it — reveal Ferguson’s Office searching for ways to join the litigation campaign against energy companies initiated by former New York AG Eric Schneiderman, and explaining why it did not. OAG improperly withheld from EPA these same non-privileged discussions about its involvement.
Wednesday’s suit comes on the heels of GAO’s recent request to unseal records between the New York OAG and Pawa who, emails obtained from other OAGs show, widely recruited attorneys general in his quest for “a single sympathetic attorney general” to subpoena records from the energy company targets of his civil litigation campaign. In December, New York’s AG suffered a humiliating loss in its costly trial against ExxonMobil filed as part of the AG/activist effort.
Massachusetts Attorney General Maura Healey refused for months to release her own Pawa correspondence, claiming it would undermine her ExxonMobil investigation. As the deadline came for her Office to answer EPA’s complaint — and respond to very specific, troubling factual allegations about Pawa’s relationship with and influence on Healey’s Office — OAG abruptly released all of the emails in dispute. These show that MA OAG insisted on hiding these similar records from the public improperly, as they are in no way investigative, but only embarrassing.
Mr. Pawa pitched numerous attorneys general offices to undertake these investigations. Other public records show Mr. Pawa or his firm gave this presentation seeking “sympathetic” law enforcement officers to aid his cause to, e.g., California’s OAG on January 14, 2016, Illinois OAG on March 21, 2016, Connecticut OAG on April 19, 2016, Maryland AG Brian Frosh on February 18, 2016, Massachusetts OAG on January 11, 2016, and to many AGs on March 29, 2016 — presentations the AGs and Mr. Pawa sought to conceal.
After speaking to major political donor Wendy Abrams one Illinois OAG aide wrote to a colleague, “The NY AG is investigating the company and [Abrams] wanted to know if this was something the AG may be interested in supporting or signing on to…Wendy says [Pawa] may have been the one to go to the NY AG’s office about Exxon.” Emails to IL OAG, and to Massachusetts’s OAG, affirm that Pawa was pitching the same news items arranged for by allies.
These materials reflect an effort by a tort lawyer to help his own cases by enlisting attorneys general to subpoena his targets. One federal court called this a “‘strateg[y] to win access to internal documents’ of fossil fuel companies”.
AG Ferguson participated in a briefing by Pawa prior to a press conference with investor Al Gore, at which AGs vowed to use whatever means necessary to impose climate policies through law enforcement. Emails showed that OAGs sought to keep this secret. This was followed by what one participant called a “secret” briefing by this campaign for AG staff and “prospective funders” in pursuit of “potential state causes of action against major carbon producers”.
GAO board member Chris Horner says, “Recently obtained public records about this campaign of recruiting AGs toward private ends make clear the public interest in releasing these memos. A UCLA law professor involved in the campaign indelicately, if candidly, described it to a funder as “going after climate denialism [sic]—along with a bunch of state and local prosecutors nationwide.” The public deserve to know how their institutions came to be employed this way.
“These records about a plaintiffs’ lawyer recruiting law enforcement to pursue private parties in aid of his litigation campaign are of immense public interest, and GAO looks forward to their release to the public, withholding only legitimately privileged and exempt information.”
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