From Energy in Depth:
BY SPENCER WALRATH
In recent years, attorneys general in the District of Columbia, New York, Maryland and a handful of other states have sought to burnish their climate credentials by pursuing investigations and litigation against oil companies. In some cases, they have welcomed outside support through a controversial, Michael Bloomberg-funded law program, which was set up to help state AGs litigate climate and other environmental cases.
Yet as these AGs profess a desire to uncover the truth about what energy producers knew and when they knew it, an Energy In Depth review shows how they are simultaneously evading transparency laws, hiding their communication with wealthy anti-fossil fuel funders, refusing to make documents public and even ignoring court orders for more transparency.
Strings Attached from Bloomberg Funds
District of Columbia Attorney General Karl Racine is one of the most recent AGs to publicly pursue climate litigation against ExxonMobil. His office’s proposal to hire outside counsel on a contingency fee basis raised eyebrows, but what’s equally concerning is his office’s past secrecy regarding its climate activities.
As EID has previously noted, the Competitive Enterprise Institute filed a suit against the District of Columbia’s Office of the Attorney General (OAG) when it failed to cooperate with an open records request asking for communications regarding the office’s involvement with the Michael Bloomberg-funded Environmental Impact Center at NYU School of Law. The Environmental Impact Center embeds seasoned environmental attorneys in Democratic AG offices to pursue litigation and other work related to climate change, covering their salaries and requiring the attorneys to report back on their work.
Like Racine, Maryland AG Brian Frosh is trying to keep his office’s application with this Bloomberg-funded law group a secret. In February, public interest law firm Government Accountability & Oversight filed a Public Information Act lawsuit against Frosh. GAO’s lawsuit centered on a single document—the OAG’s application with the Environmental Impact Center—which would likely reveal what the OAG had promised the NYU Center in exchange for its support.
If Frosh’s office had appointed a Bloomberg-funded special assistant attorney general, it could create problems for the AG, as his office lacks the legal authority to do so. Maryland law requires that any outside attorney helping the OAG work pro-bono, yet this special assistant attorney general position came with a $125,000 annual salary plus benefits, funded by billionaire environmentalist Michael Bloomberg.
As GAO further explained, Frosh is potentially one of many AGs who have made legally-suspect promises in their applications:
“Other OAGs, recognizing that this document is not privileged for hiding from the public, have released applications containing highly unflattering and problematic aspects of their own arrangements. In New Mexico’s application for Bloomberg funds, Hector Balderas’s Office candidly professed its objective in using law enforcement: ‘the Office would work with the NYU Law Fellow to identify “pressure points” on which litigation can be used to most effectively influence policy’. Even more legally and ethically troubling, Virginia’s OAG — now in court with GAO over its claim it has no record of any analysis of the legality or ethics of the arrangement — asked for financing ‘to advance the agenda represented by’ Bloomberg’s activist group.” (emphasis added)
Like Maryland and the District of Columbia, Virginia’s AG office tried to feign ignorance when asked about the legality of its work with the Bloomberg attorneys, claiming—contrary to Virginia State Code—that it had no documentation on this partnership’s legality.
What’s astonishing in all three cases is that the AGs are trying to accept funds from interests and individuals outside of their jurisdictions, and then refusing to provide their constituents with information on these partnerships.
Virginia’s General Assembly recognized this conflict of interest, however, and amended its 2019 biennial budget to make such arrangements impossible. The amendment requires that, with few exceptions, only state or federal government employees may work for the AG, and their salaries must be publicly funded.
What Are They Hiding?
Evading transparency is neither new nor solely related to work with the Bloomberg-funded attorneys. AGs pursuing litigation against oil companies have tried to ignore public record requests for years. For example, the Vermont AG entered into a “common interest agreement” in 2016 with other members of “AGs United for Clean Power,” a coalition of attorneys general who came together alongside Al Gore to call for policy action on climate change. This common interest agreement, argued the Vermont AG, permitted it to avoid releasing any documents related to its climate litigation pursuits. Yet as a 2016 statement from the Energy & Environment Legal Institute (E&E Legal) explained:
“To be legitimate, parties to a common interest agreement must have imminent litigation, a clear scope and clearly shared interests. Instead, documents obtained to date show that these AGs and their green-group colleagues with inherently disparate interests have entered not a legitimate CIA, but a pact of secrecy, covering broad topics, not specific matters, simply to avoid scrutiny of otherwise public records relating to their extraordinarily controversial abuse of political opponents’ First Amendment rights.” (emphasis added)
E&E Legal was ultimately successful in challenging the Vermont AG’s attempts at secrecy, providing an early win for climate litigation transparency. Yet that did not deter other climate-focused AGs from attempting subterfuge.
Most recently, the New York AG refused to comply with a ruling from the New York Supreme Court, which found that ExxonMobil had a right to discovery, meaning that the AG could “not credibly withhold documents responsive to the Affirmative Defense Requests.” At the center of ExxonMobil’s discovery request are documents that pertain to the AG’s communications with third parties.
Yet the New York OAG continues to defy this ruling. In early March the AG notified ExxonMobil of its intent to motion to dismiss the company’s defenses, claiming that it was no longer obligated to comply with ExxonMobil’s discovery request while the motion is pending.
Transparency laws are meant to hold public officials who wield tremendous power accountable for their actions. The public has a right to know how their elected officials are spending taxpayer money and whether they are accepting funding or in-kind support from wealthy, politically-motivated donors. If these AGs are acting in the public interest, they should have nothing to hide.