Today, the government-transparency group Energy Policy Advocates filed a petition and proposed brief in support of certiorari in the State of Rhode Island’s “climate nuisance” case which, as the brief notes, subtly shifted its focus after filing — and after “nuisance” claims were dealt further defeats in federal courts — to emphasizing alleged consumer fraud.
Per the brief (citations omitted, footnotes and links available in EPA’s brief):
The District Court’s discussion of the factual background in this matter begins with the sentence “Climate change is expensive, and the State wants help paying for it.” App. 27a. By the time the Circuit Court handed down its opinion in this case, however, plaintiff had transformed its argument from a focus on obtaining for Rhode Island some “help” paying for climate change, into a new argument more focused on alleged failure to warn or false advertising. The First Circuit summarized the state’s evolving position as follows: “Rhode Island sued a slew of oil and gas companies for the damage caused by fossil fuels while those companies misled the public about their products’ true risks.” App. 6a (emphasis added).
This shift, through rhetorical sleight of hand on appeal, coincided with a change in approach by “climate” plaintiffs from seeking relief based on the law of nuisance to seeking relief grounded in consumer protection after plaintiff filed suit in 2018, and after the nuisance claims suffered setbacks in federal court on both coasts.2 Yet this case has always been a public nuisance suit, and was even listed in an “Amendment to Confidentiality Agreement Regarding Participation in Climate Change Public Nuisance Litigation” among ideologically aligned state attorneys general, signed by Rhode Island on November 26, 2019.3 That pact, claiming a common interest among attorneys general from coast to coast “in one or more cases brought, or that will be brought, in state court or U.S. District Court, or appealed to state or federal courts of appeal, including the highest state appellate court or the U.S. Supreme Court” cited seven cases “referred to herein as the ‘Litigation.’ ” That list of cases included “Rhode Island v. Chevron Corp. (R.I. Super. Ct. PC-2018-4716, and D. R.I. 18-00395).”
Elsewhere, the brief explores the confession by Rhode Island:
EPA has obtained emails and handwritten and typewritten notes under public records laws that shed light on the motives behind this proceeding. These documents expressly acknowledge the state’s motives not only for pursuing this litigation (its General “Assembly [led by] very conservative leadership – doesn’t care about env’t,” which has left the state’s executive branch “looking for sustainable funding stream” for its spending ambitions) but also for pursuing it in state court.
These two sets of notes each purport, independently, to record the emphasis by a cabinet-level state of Rhode Island official that this lawsuit was filed in “State court against oil and gas” because of the executive’s “Priority – sustainable funding stream” needed to fulfill certain spending ambitions which the executive failed to convince the voters’ elected representatives to satisfy through the ordinary process of taxation.
These public records obtained by EPA document the political impetus for filing suit, while offering a remarkable “tell” about the plaintiff ’s true feelings about its claims of loss and looming disaster, especially in light of the state’s professed intention to rely on purportedly planet-killing activities as a “sustainable” funding source. Even more concerning, both sets of notes identify plaintiff ’s emphasis on the “state court” aspect of its plan, reflecting that the state shares the fear expressed by other members of its team that its claims may be doomed by the faithful application of federal law by federal courts.
EPA’s brief also notes the following, linking to newly obtained records.
[C]onsider the description by a member of the state’s outside legal counsel’s own team. After U.S. District Judge William Alsup dismissed the City of Oakland’s “climate nuisance” suit against many of the same defendants in June 2018, and immediately prior to the state of Rhode Island filing its suit in Rhode Island Superior Court, UCLA Law professor and also consultant to plaintiff ’s counsel Sher Edling, Ann Carlson,17 reiterated her belief, for whatever reason, that the plaintiff ’s chances for recovery are much better in state fora.18 And a recent Los Angeles Times news article quoted Carlson’s colleague and also apparently consultant for plaintiff ’s counsel, Sean Hecht, on this topic of state courts being “more favorable to ‘nuisance’ lawsuits.”19
Following the link to Prof. Carlson’s reports to the University informing it of her service on the plaintiff’s team, the careful observer will note the absence of the signature indicating departmental receipt, and that all the reporting forms are dated December 6, 2020. That’s up to several years after they were required to be filed, if not long after after Government Accountability & Oversight, P.C. sought them.
(Note: Prof. Carlson has, at least for the time being, put aside both her work helping to sue oil companies via a private tort law firm and service as the media’s go-to source for objective academic insight on the merits of climate litigation. She is on leave from her tenured professorship at UCLA and is now the Biden Administration’s chief counsel for NHTSA, where she will have great influence over ideas such as exporting, nationwide, California’s automobile policies banning internal-combustion vehicles, and otherwise using the federal government to implement the climate agenda. The latter being — as EPA’s brief also documents — one of the key objectives of the climate litigation campaign.)