Brief provides comprehensive summary of climate litigation industry, cites new documents supporting the claim that climate plaintiffs’ hunt for “sympathetic” state judges is behind fight to keep cases from federal courts
Energy Policy Advocates does it again. EPA filed another friend of the court brief, this time in NYC v Exxon Mobil et al., removed by the defendants from state court to the U.S. District Court for the Southern District of New York.
The filing comprehensively walks through the donor-activist-AG axis behind the climate litigation industry. The SDNY will now hear arguments for where these cases should be heard — state court or federal.
“The only chance the [California climate] cases had was to stay in state court, where there might be a sympathetic state judge who would let the cases go forward.”
Prof. Edward Richards, Director, LSU Law Center climate change law and policy project, to “Disaster Law” listserv
This Court ruled against NYC in a prior case against largely the same defendants, in which the City made largely the same allegations which it has now repackaged in the guise of municipal, consumer-law claims in an effort to have a state court hear their argument. The 2nd Circuit Court of Appeals upheld that prior ruling.
Also, however, in April 2018 this very same Court dismissed Exxon Mobil’s effort to bar these AG investigations on the grounds that they clearly were unconstitutional efforts to prohibit unwanted political speech, recruited and instigated by certain outside private actors. As UCLA Law Prof. Cara Horowitz candidly described that effort, “going after climate denialism” — which as EPA points out, whatever that is it is necessarily speech — “along with a bunch of state and local prosecutors nationwide.”
The Court dismissed that case, claiming a “missing link between activists and AGs.” That ruling has been pending before the 2nd Circuit for over a year and a half.
The assessment that these suits have come about by a series of unrelated coincidences among parties who just happen to view the world similarly is simply untenable in the face of EPA’s latest filing.
The next step is whether a court also can still maintain that, because the AGs filed the suits, well, they must truly believe the claims, too, so so what. EPA’s brief lays out in stark, voluminous and inescapable detail whose idea these suits are. Indeed, they are typically and so far as the facts suggest likely universally prepared by outside parties, at whose request they then also are brought.
For the moment, however, the key issue is which jurisdiction should hear what is, as EPA documents, a deliberate “nationwide” campaign, to find “new sources of revenue” and coerce the defendants “to the table” to agree to national policy demands.
EPA argues, as the SDNY and 2nd Circuit agreed, previously, that this campaign belongs in federal court.
Some of the new information includes comments made by academics on a listserv about that jurisdictional issue.
Read the brief here.