Foundation-backed climate lawsuits require transparency

Over the last decade, more than 20 cities, counties and states have bought into a misguided effort to drive climate policy by filing lawsuits. In lieu of passing environmental laws, they seek to impose policy by holding oil and gas companies liable in civil court for the effects of climate change. 

As you might expect, the impetus to join a highly experimental — and to date, unsuccessful — litigation campaign doesn’t come about organically. Rather, activist organizations have for years engaged in a nationwide campaign to pressure elected officials, from county council members to state attorneys general, to file lawsuits aimed at bankrupting American energy companies.

Following the failure of federal cap-and-trade legislation, the billionaire donor class and its foundations lost faith in pursuing climate policy through Congress, instead hatching a plan to regulate oil and gas companies through litigation or the threat thereof. This campaign first took root in the New York attorney general’s office, which launched the first investigation and the first lawsuit targeting the American oil industry in 2015.

New reporting confirms that New York’s investigation and lawsuit had more to do with fulfilling a political agenda than with genuine legal inquiry. Through nonprofits funded and operated by heirs to the Rockefeller fortune, longtime climate activists aggressively lobbied the New York attorney general’s office to make itself the guinea pig for this novel approach. 

But whenever optics takes priority over legal rigor, things tend to go poorly in court. A judge eventually dismissed the New York attorney general’s case, calling it “hyperbolic.” Despite its failure, New York’s lawsuit inspired a roster of blue-state attorneys general to file similar lawsuits against “Big Oil,” hoping to score political points for taking on the industry. And it doesn’t appear that the numerous copycat cases were launched with any more integrity than the original.

There’s no better evidence of this than in Minnesota. Following the New York playbook, the Rockefeller Family Fund worked with environmental nonprofits and a Minnesota Law professor to draft a memo spelling out the legal theory behind the state’s climate lawsuit, which it then delivered it to the newly elected Minnesota attorney general. The complaint was ultimately filed by, among others, two attorneys funded by Michael Bloomberg, who were embedded in the attorney general’s office.

This is a problem because embedded special attorneys work in public office at the behest of special interests, not the taxpayers.

The same billionaire-funded activists have been trying to gin up similar momentum in my home state of Pennsylvania, remarking shamelessly that a lawsuit from the Commonwealth would be the “cherry on top.”

Indeed, this venture into a top natural gas state marks a bold turn for the activists, especially when the facts show the industry has been a driving force behind industrial and power sector greenhouse gas emissions reductions for nearly two decades. In Pennsylvania, the state’s emissions from power generation have decreased by 44 percent, largely due to the increased use of natural gas. But while many of Pennsylvania’s leaders understand the state’s crucial role in ensuring affordable and reliable energy, New York’s case is a prime example of the untoward influence that activists can have in persuading officials to overlook facts and caselaw in favor of splashy media headlines. 

Pennsylvania officials may see through this and recognize that the climate litigation movement is an anti-democratic campaign by billionaires to drive policy through the courts at the expense of consumers. But to increase the likelihood that wiser heads prevail, we should push for reforms that protect Pennsylvanians from the political influence of well-funded activist foundations and individuals who will never have to suffer the consequences of their own anti-energy agenda. 

A great place to start would be to require transparency around the hiring and funding of private attorneys working on behalf of the state. In nearly every instance where a city or state has filed a climate lawsuit against energy companies, a familiar set of private attorneys and privately financed legal fellows have their fingerprints all over the case.

If climate lawsuits were, in fact, simple, straightforward civil claims made in the public interest, then why must elected officials rely so heavily on outside attorneys and public relations air-cover to get these cases off the ground?

These lawsuits throw the scales of justice off-balance. Voters deserve assurance that the elected officials entrusted with the power of law enforcement are working in their constituents’ best interests, not at the behest of deep-pocketed special interests. 

Curt Schroder is executive director of the Pennsylvania Coalition for Civil Justice Reform.