Energy Policy Advocates filed a friend of the court brief in the Mayor & City of Baltimore climate nuisance case, after it was sent back to the United States Court of Appeals for the Fourth Circuit from the United States Supreme Court. Key points illuminated for the Court include (footnoted citations and links omitted):
* “EPA has obtained records demonstrating the improper use of public institutions toward these ends and the origins of the veritable tsunami of “climate nuisance” state court lawsuits — which since the filing of this suit have been retooled elsewhere to focus on state consumer protection claims in a further effort to hide their pursuits from federal jurisdiction, if organized and assisted behind the scenes by the same outside parties — including the one now before this Court.”
* “[C]ases such as the instant one are demonstrably based on the desire of certain activists and parties to obtain national policy, among other improper uses of the judicial system (e.g., prospecting for “sustainable revenue streams” or “new streams of revenue,” see, infra). Such cases, therefore, are classic candidates for a resolution in the Nation’s federal courts. Recently obtained public records from numerous public institutions demonstrate that the national effort of which this lawsuit is a part involves deep-pocketed private advocacy interests using their resources to enlist local activist groups as their intermediaries, and often law faculty and attorneys general, to arrange for lawsuits to be filed in state courts against traditional “fossil fuel” energy companies, as well as others involved in energy production and transport, in order to impact national policy. This is true in the City of Baltimore, as well as Annapolis and Anne Arundel County Maryland, all of which have filed similar lawsuits after behind the scenes and until-recently secret lobbying by the same party, which correspondence describes as the “lawyers advising Rockefeller family fund” [sic](“RFF”).2 That same group, the Center for Climate Integrity (“CCI”), pitches these lawsuits in, e.g., correspondence to at least one state attorney general by her private Gmail account, as a means to raise “new streams of revenue.” Emails show the Rockefeller Family Fund providing its intermediary groups with sample pleadings to lobby these public institutions to file in their own jurisdictions, after having organized the media campaign to support the filing of such lawsuits, as has been established in judicial proceedings in the states of Texas and New York.”
* “In public records litigation involving the amicus, the City of Baltimore first characterized these activist groups (the Union of Concerned Scientists (“UCS”)4 and Center for Climate Integrity (“CCI”)5) as “outside energy firms” each of which the City considered calling as a testifying expert in this matter.6 The public record makes clear that this in no way accurately characterizes these groups and the City later changed tack to characterize them instead as “outside, for lack of a better way to describe them, environmental groups who are, you know, climate change environmental groups,” (Energy Policy Advocates v. Mayor and City Council of Baltimore, Circuit Court of Baltimore City, Case No. 24-C-20-001784, Transcript of October 23, 2020 hearing at 4:13 et seq.), and “…groups that we were working with and talking to” prior to filing a climate nuisance and product liability lawsuit against nearly two dozen entities (Id., at 6:21-7:1). Public records have now revealed that not only did such groups lobby the Plaintiff here to file such suits in an attempt to obtain preferred policy outcomes, but CCI has gone so far as to pay for private attorneys to bring a municipality’s suit,7 and is serving as legal advisors for RFF, which has bankrolled this litigation campaign.”
* “The two aforementioned groups, UCS and CCI, have been revealed in public records to be the two principal outside organizations approaching municipalities and attorneys general to lobby them to file the purported climate nuisance and similar lawsuits. This role is clear and set forth in numerous to public records productions from coast to coast… [W]hile CCI is, e.g., raising funds for this venture and lobbying officials alongside ideological fellow travelers at the Rockefeller Family Fund, CCI does not enter consulting arrangements with its recruiting targets. Instead, it lobbies them.
Although the City of Baltimore has refused to produce its correspondence with CCI and UCS, newly released emails from Minnesota illustrate the anatomy of these suits that CCI brings about, in the context of a similar lawsuit now pending before the 8th Circuit: RFF engaged a local activist group to recruit local law faculty, working with its ghost-co-writer attorneys at CCI, to write a memorandum to Minnesota Attorney General Keith Ellison urging him to file what emerged as his June 2020 “climate” lawsuit against fossil fuel companies.8 That is, a New York donor enlisted a local activist group for this task to recruit public institutions in support of the donor’s desired litigation campaign against private parties, working with lawyers provided for by the donor, who edited and ghost co- wrote the (official, University) memorandum to the Attorney General seeking the litigation and outlining what suit the AG should (and did) bring.”
“More specifically, the donor provided the Minnesota advocacy group’s director with pleadings to help prepare him prior to “making initial calls” to enlist University law faculty in “this project,”9 what the latter called, in another email to RFF’s Director, “our joint project.”10 The activist, Michael Noble and his organization called “Fresh Energy,” “only accepted a modest amount of money” at the outset, because he did not “want to launch any big effort unless [Ellison] wants to do it.”11 The local activist Noble in turn engaged Ellison transition team members, including another Minnesota Law faculty member, Prentiss Cox, who, public records show, then began using an Office of the Attorney General email account to correspond about, inter alia, this matter despite having no publicly acknowledged position with the AG’s Office; Noble arranged for a different University of Minnesota Law professor, Alexandra Klass, to work with “lawyers advising the Rockefeller family fund [sic]” so as to learn “what is needed” in the memo to Minnesota’s AG urging him to file this lawsuit.12 The professor then produced a memo with these outside lawyers Center for Climate Integrity but placed on Minnesota letterhead as the scholarship of the professor and four research-assistant students.13
Energy Policy Advocates Amicus brief, Fourth Circuit Court of Appeals
* Public records show that CCI, using a local group, also is behind the Annapolis and Anne Arundel suits.16
* “Affirming the use of these suits as leverage in coercing private parties to support the national policy agenda Amicus obtained an email from municipal climate plaintiff Boulder, Colorado, in which a City official admits the City’s position in filing its suit, that “the pressure of litigation could also lead companies…to work with lawmakers on a deal” about climate policies.20 Former Connecticut Attorney General Richard Blumenthal is quoted describing American Electric Power v. Connecticut, 564 U.S. 410, 426 (2011), which suit he brought before being elected to the United States Senate, “My hope is that the court case will provide a powerful incentive for polluters to be reasonable and come to the table…We’re trying to compel measures that will stem global warming regardless of what happens in the legislature.”21 This Court cannot sanction the use of the courts to force legislative change, and it should be especially zealous in protecting federal policies and legislation from being forced by actions taken in various state court systems.
* “In [the 1st Circuit case, brought by Rhode Island], the Plaintiff’s own Executive Branch is on record confessing that the ostensibly injured State’s true goal in litigation was to obtain “a sustainable funding stream” by “suing big oil in state court” because the state’s own legislature “do[es]n’t care on env/climate.”22 In an email to Oregon Attorney General Ellen Rosenblum’s Gmail account and obtained by Amicus, CCI itself pitches these suits as a possible way to obtain “new streams of revenue”.23 In light of the Texas State Court’s findings that suits such as the instant suit for damages have the appearance of being a Trojan Horse in a battle to shut down an industry, and the First Circuit Plaintiff’s documented admission that the state seeks to sue big oil mostly out of a desire to obtain revenue through means other than taxation and without legislative approval, echoed by none other than the “lawyers advising the Rockefeller family fund” behind this and similar suits, this Court should carefully scrutinize the pleadings in this matter and ensure that federal claims remain in the federal forum where they belong.”
All of this raises numerous legal and ethical questions for taxpayers and local courts, but it also makes plain for this Court that this case, like other suits instigated by the private donor/coordinators, began with the desire of private donors to impact national policy through litigation against private parties.