SCOTUS Brief Reveals Tort Bar, Attorneys General Coordination Pact for Nationwide Flood of ‘Purely Local’ “Climate Nuisance” Litigation - Climate Litigation Watch

SCOTUS Brief Reveals Tort Bar, Attorneys General Coordination Pact for Nationwide Flood of ‘Purely Local’ “Climate Nuisance” Litigation

Bloomberg-provided Attorneys Insist to Courts “Climate” Suits are Local, Not Effort at National Policymaking; Documents Show These Attorneys Were Provided to AGs to Work on “Matters of National Importance”

Brief Reveals for First Time an AGs, Tort Bar Pact to Coordinate on “Local” Climate Nuisance Lawsuits

WASHINGTON, D.C., November 23, 2020 – The transparency group Energy Policy Advocates (“EPA”) today filed a Friend of the Court brief with the Supreme Court of the United States in BP P.L.C. et al. v. Mayor and City Council of Baltimore, revealing troubling facts about the epidemic of “climate nuisance” lawsuits being pursued by the tort bar in state courts nationwide. The Court is considering a largely jurisdictional question that goes to the heart of whether these cases remain in state court or can be removed to federal court given their obvious objective of obtaining national policy by circumventing the policymaking process.

First, EPA’s brief documents how privately hired attorneys, arranged for by billionaire political donor and climate policy activist Michael Bloomberg, were provided to progressive state attorneys general to work on energy, environment and climate matters “of national importance”. These “Special Assistant Attorneys General” were then promptly assigned by the AGs receiving the donations – including in Connecticut, Delaware, Maryland, Minnesota, New York and Washington, D.C. – to filing lawsuits and amicus briefs insisting that climate litigation is a purely local matter and must remain in state courts which, emails show the tort bar network telling prospective clients, present the “more advantageous venue for these cases”. 

In fact, the very deliberate multi-front litigation campaign is – and as EPA also documents, has repeatedly been revealed over the years to be – an effort to bring about national policy which the climate industry has failed to obtain through policymaking channels. As such, these suits were repeatedly removed to federal court, where they were dismissed for the same reason. 

The tort bar, AGs and plaintiffs all adapted – together, EPA reveals in today’s brief. They shifted to claims that these suits were in fact purely local affairs involving local damages and state consumer protection laws, and so should be tried in state court. This led to absurd arguments, such as that a case seeking to penalize regulated industries for carbon (dioxide) emissions was not “really not a case about carbon emissions, it’s not a case about any kind of pollution abatement, it is not a case about national treaties, and it doesn’t implicate any federal scheme.”

Affirming the coordinated national effort, for the first time EPA’s brief also revealed two documents confessing to coordination-by-contract among attorneys general from coast to coast and with the “climate nuisance” tort bar, since at least April 2018, on “joint participation in the Climate Change Litigation to be developed, including the development of litigation strategy and the preparation of legal briefs.” The pact specifies “the Climate Change Litigation” and, as of December 2019, that list has included Mayor and City of Baltimore v. B.P. P.L.C

These suits flooding state courts claim to be purely local affairs for one reason. As today’s EPA brief notes, “the public records Amicus EPA has obtained reveal the extraordinary efforts of various states and municipalities, and their partners in litigation, to evade American Electric Power.” That is the SCOTUS precedent confirming that federal statutory law supersedes federal common law regarding causes of action to regulate carbon dioxide emissions. Which is to say that these suits seeking federal policy stand no chance in the federal courts.

In its brief at the petition stage, EPA had already documented to the Court how two independent sets of notes obtained under a state open records law, taken during a two-day meeting in July 2019 hosted by the Rockefeller Brothers Fund at the Rockefeller family mansion at Pocantico, NY, recorded the damning “funding stream” confession by Janet Coit, a State of Rhode Island cabinet-level official. 

Each of these sets of notes, independently, “document the State’s concession that Rhode Island’s elected representatives are insufficiently moved by the State’s claims of loss and looming disaster to enact laws raising the revenues the State’s executives desire; and, that Plaintiff is thus ‘looking for [a] sustainable funding stream’, having been reduced to ‘suing big oil’ for its ‘Priority – sustainable funding stream’. Notably, both sets of notes capture [Rhode Island] as having emphasized the ‘state court’ aspect of its plan.”

Rhode Island, the plaintiff in Rhode Island v. Chevron, et al., shares the same private legal counsel retained by the Mayor and City Council of Baltimore. As EPA also previously noted to the Court, “That Rhode Island and the City of Baltimore share not only claims and legal strategies but legal counsel, whose recruiting team has emphasized to targeted governmental entities the desire to keep these matters in state court as the ‘more advantageous venue for these cases,’ given this Court’s ruling in American Electric Power, raises concerns that the climate nuisance plaintiffs also share the hope for state court biases in the campaign to eliminate budgetary shortfalls and otherwise make policy through tort litigation.”  

The Fourth Circuit Baltimore case before the Supreme Court is one among many proliferating in state courts, from coast to coast. The various abuses of the judicial system in this litigation epidemic is reminiscent of another matter cited by EPA in its brief at the petition stage, quoting the U.S. District Court for the Southern District of New York in Chevron Corp. v. Donziger: “The point of the multi-front strategy thus was to leverage the expense, risks, and burden to [defendant] of defending itself in multiple jurisdictions to achieve a swift recovery, most likely by precipitating a settlement.” As EPA’s brief details, this strategy also seeks to force defendants to be more than just golden geese, but also to become lobbyists for the “climate” policy agenda.

The records presented in today’s Amicus Curiae brief by EPA confirm that this suit and those like it represent of a coordinated, nationwide effort both to raise “sustainable funding streams” that elected representatives are unwilling to impose the taxes to obtain, and impose federal policy that has eluded the plaintiffs through the proper democratic processes.

GAO’s Matthew Hardin filed on EPA’s behalf.

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