Some months ago it occurred to CLW that none among the various secrecy pacts that had emerged among “climate” state attorneys general purported to cover the new breed of state attorney general lawsuits against energy companies, prioritizing claims of consumer deception over the original claims of public nuisance and investor fraud which had stumbled in the courtroom.
CLW first noticed this by the absence of Massachusetts from the AGs’ “climate nuisance” secrecy pact. Massachusetts, of course, had been the first to change tack and shift from nuisance to the “consumer” approach advocated by UCLA law faculty at the “secret meeting at Harvard” among AGs, tort lawyers, activists, potential plaintiffs and “prospective funders.”
Energy Policy Advocates began asking around. Including in Minnesota, where the group recently won against AG Keith Ellison before the state Court of Appeals on the very issue of a purported common interest exception to waiver in the Land of 10,000 Lakes. (EPA’s response to the AG’s appeal to the State Supreme Court can be found here.)
Months after acknowledging to EPA that it might have something along these lines, Ellison’s Office has finally produced a specific pact intended to cover those lawsuits against energy companies, specifically those filed by Connecticut, District of Columbia, Delaware, Massachusetts and Minnesota — “each of [which] contains unique elements [but] share common facts, causes of action (including consumer protection or consumer fraud claims), and defendants, including for all litigations Exxon Mobil Corporation (“Exxon Mobil”)”.
Why? “[S]o that the claims and defenses of the parties may be thoroughly investigated and prepared without giving undue advantage to the opposing side.”
The pact is dated in October 2020. As the text makes clear, by that time all five AGs had in fact already claimed to have investigated and discerned this or that violation of state law, which investigations had compelled the AGs — from one month to one year before — to bring suit over the wrongs their investigations found (though it now appears that such discernment was in fact a revelation imported by outside lobbying interests, particularly RFF and “the lawyers advising Rockefeller family fund” [sic]*).
So, there’s the problematic premise, before getting to what common legal interest these AGs might have. Sharing with each other what they extract from their targets in the hope of helping each other’s suits out is a common political interest, to be sure. CLW recalls this revelation:
But isn’t actually a common legal interest.
However, there is also that outstanding ask by the tort bar to file suit against these same parties in order to obtain documents to help them out, which ask began all of this. Recall the plea (and lobbying, slide shows, etc) for a single sympathetic attorney general to obtain docs to help the tort bar?
State attorneys general can also subpoena documents, raising the possibility that a single sympathetic state attorney general might have substantial success in bringing key internal documents to light. In addition, lawyers at the workshop noted that even grand juries convened by a district attorney could result in significant document discovery.
Revelation from June 2012 La Jolla conference of the lobbying campaign to enlist AGs to pursue the tort bar’s “climate” targets
So, no doubt these prosecutors hope for some “process crime” out of these various expeditions, for one or more targets not producing a document, in response to one discovery request, that it produced in response to another.
But with this new document, we are reminded of the long march by the tort bar, and donors (yes, there are even donors to the climate tort bar!), to enlist sympathetic attorneys general to demand private companies’ records in hope of helping a flailing climate tort industry.
It seems to confirm in the AGs’ own hand that these suits are precisely what the tort bar asked the AGs to do, which was to go fishing, in hopes of giving an assist by going after the tort bar’s climate targets to see what the AGs could get that might help out. That the AGs and plaintiffs share the same counsel just makes things all that much easier.
P.S. All five signatory AG offices do have Bloomberg “Special Assistant Attorneys General”, two of which placements are actual signatories (Leigh Currie in Ellison’s office and Jameson Tweedie, who DE AG has apparently made an actual employee of, possibly because of all of the complications that using mercenaries are causing her colleagues).
* The record shows that RFF also was behind state AG “climate” investigations, beginning with the New York case that collapsed in December 2019 and which, like all of this, traced back to the La Jolla meeting back in June 2012.