In case you missed it, the State of Rhode Island’s private attorneys at Sher Edling LLP responded last week to Energy Policy Advocates’ Amicus brief in the First Circuit Court of Appeals.
As CLW and other outlets have pointed out, public records obtained by the transparency group Energy Policy Advocates strongly suggest that the State of Rhode Island filed suit against energy companies as a means to finance executive branch spending ambitions that the legislature would not underwrite through the necessary taxation. The Director of Rhode Island Department of Environmental Management, Janet Coit, is recorded by not one but two independent sources as having emphasized that the plan was to file suit in state courts against companies conducting business in the state in pursuit, in pursuit of a “sustainable funding stream.”
The First Circuit issued an Order permitting EPA to file its brief, over Rhode Island’s objection, and re-opened the briefing schedule to accommodate EPA’s new information. EPA pointed out the significant evidence it has uncovered that Rhode Island and its executive branch officials filed suit only in an effort to obtain funds that they could not have otherwise obtained through the usual democratic process.
Now, Rhode Island has responded. Tellingly, rather than arguing that the Court should doubt anything EPA brought to its attention, Rhode Island urged the Court ignore it because there’s nothing to see there. Rhode Island’s outside counsel argue that EPA’s “Amicus brief does nothing to assist the Court’s adjudication of this appeal” and should be ignored for procedural reasons.
If EPA’s information — on its face, quite remarkable — is so irrelevant, however, one wonders why the State fought so hard to keep the court from even seeing it in the first place.
Rhode Island, however, is only one of many states and municipalities that have hired the same plaintiff’s law firm, Sher Edling, to file suit against energy companies on the most dubious of legal theories. As the pioneer of these climate cases, plaintiff’s tort lawyer Matt Pawa admitted years ago, the environmentalist left decided to seek change in the courts because they could not get the relief they sought via democratic persuasion. “Legislation is going nowhere, so litigation could potentially play an important role.”
As illustrated in Rhode Island, activists not only seek to create policy change in the court system, but also to evade usual constraints on tax policy by filing suit against corporations that do business in a given state to pay for big spending plans the peoples’ elected representatives will not stick their political necks out for.
One of the localities represented by Sher Edling is the City of Baltimore, a City that EPA and others have been watching closely since last year — or rather, trying to, in the face of an administration dead-set against releasing any public records to the public.
The defendants in the Baltimore case just filed a petition to the United States Supreme Court seeking to keep their case in federal court. As EPA noted — again, citing to and extensively quoting from public records, in this case correspondence of Sher Edling’s lobbyist/recruiter in Florida — One wonders if Baltimore, similarly, sought to have its case heard in state court to seek judges more sympathetic to the state’s cause and more likely to benefit from a “sustainable funding stream.”
As always, Climate Litigation Watch will keep you up to date.