A Highly Orchestrated Climate Lawfare Campaign Comes To Delaware

On Thursday, the climate litigation campaign organized by plaintiffs’ lawyers and activists across the country enlisted its newest ally when Delaware Attorney General Kathy Jennings (pictured) announced a public nuisance lawsuit against major energy companies over climate change impacts.

Delaware joins four other states and more than a dozen municipalities in the highly orchestrated climate litigation campaign, with most of these cases sharing many of the same legal arguments, media echo-chamber, and outside counsel – underscoring the extent of the coordination.

And like the other municipalities and states pursuing this baseless litigation, Delaware faces an uphill climb.

The three cities that have had their cases considered on their merits – those filed by San Francisco, Oakland, and New York City – were all dismissed by federal judges.

Similarly, the New York attorney general also had a similar case definitively dismissed from state court. So harsh was its defeat that the office chose not to appeal the decision.

Delaware Initially Rejected A Climate Lawsuit

In 2016, then-New York Attorney General Eric Schneiderman organized the “AGs United for Clean Power” – a coalition of state attorneys general he hoped would investigate and sue major energy producers.

This was part of Schneiderman’s broader “Exxon Knew” strategy – the debunked theory that the company knew about climate change but hid that information from the public, and just four months after he launched his investigation into ExxonMobil.

Schneiderman acknowledged Delaware during a March 29, 2016 press conference with former Vice President Al Gore and other attorneys general from the AGs United for Clean Power coalition where Massachusetts Attorney General Maura Healey and then-U.S. Virgin Islands Attorney General Claude Walker announced their own investigations into ExxonMobil.

It was later revealed that immediately prior to this press conference, activists Peter Frumhoff, the Director of Science and Policy for the Union of Concerned Scientists, and Matt Pawa, now co-chair of plaintiffs’ firm Hagens Berman’s environmental law practice, gave separate, secretive presentations to attorneys general on using litigation to take action against energy companies on climate change.

The coalition ultimately fell apart after intense public scrutiny that its work was politically motivated, though not before Delaware suddenly left the group only weeks after then-Attorney General Matt Denn signed a Common Interest Agreement with the other attorneys general, FOIA’d emails revealed:

Over the proceeding years, Schneiderman was forced out of the office and his predecessors conducted a fruitless investigation into ExxonMobil that led them to par down their lawsuit significantly, ultimately abandoning the “Exxon Knew” theory in favor of similarly unimpressive accounting fraud charges.

Those charges were decisively dismissed by New York State Supreme Court Justice Barry Ostrager in 2019, who called the attorney general’s allegations “hyperbolic” and “without merit.”

Taking A Second Bite at the Apple with National Help

After assuming office in 2019, Attorney General Jennings apparently forgot Delaware’s past sour experience with climate litigation. It now seems the pressure to join the politically-motivated legal effort was too great to ignore.

Following the failure of the New York attorney general’s lawsuit, attorneys general from Massachusetts, Minnesota, and Washington, D.C. have all filed their own cases within the past 12 months.

In each instance, there was extensive coordination among these offices with activists and plaintiffs’ lawyers around the country. The Massachusetts attorney general’s office had been briefed on legal strategies by Pawa.

The Minnesota attorney general’s office was personally pitched on filing a lawsuit by the activist groups Center for Climate Integrity and Fresh Energy, while Washington, D.C.’s enlistment of outside counsel and financing has drawn criticism of “policing for profit.”

Further evidencing the extensive behind-the-scenes coordination driving this effort, the language found in Massachusetts and Washington, D.C.’s complaints is practically identical.

Now, Delaware is following the same playbook. In 2019, the state’s Department of Justice put out a request for special environmental legal counsel to help the attorney general’s office bring a case that could very well have been the nuisance climate change lawsuit filed on Tuesday:

“The Department of Justice for the State of Delaware (‘DOJ’) seeks to develop a panel of law firms available to be engaged to act as Special Legal Counsel (‘Special Legal Counsel’) representing the State of Delaware (‘State’) and the Attorney General of the State of Delaware (‘Attorney General’) in connection with investigations and possible court proceedings involving environmental matters, including but not limited to those concerning emissions, discharges, releases of contaminants into the air, ground, and/or water of the State, as well as the marketing and sale of products harmful to the environment of the State.”

Sure enough, in announcing the lawsuit, the Delaware attorney general office’s noted that it had retained the law firm of Sher Edling to be its outside counsel for the case.

The hiring of Sher Edling again shows just how connected the entire climate litigation campaign is and Delaware’s willingness to join this political effort driven by special interests.

The law firm is a familiar face in the climate litigation campaign and has been the lead counsel in a number of public nuisance lawsuits filed across the county, including those brought by city leaders in Baltimore, Honolulu, and, most recently, Charleston, S.C.

Additionally, the firm’s managing partner and counsel on all of its climate change lawsuits, Vic Sher, has worked with Richard Heede of the Climate Accountability Institute, who developed the so-called “attribution science” that seeks to assign a certain amount of emissions to specific energy companies for the explicit purpose of aiding Sher’s lawsuits.

Without this science, these cases would be virtually impossible to bring, as any judge or jury would be hard-pressed to assign a specific amount of damages – calculated via the amount of emissions for which Heede deems a certain company “responsible” – to any one energy producer.

Sher Edling also benefits from the network of Rockefeller groups, which is the driving force behind the entire climate litigation campaign.

The firm received over $1.7 million in funding from the Resources Legacy Fund in 2017 and 2018, and RLF is funded in part by the Rockefeller Brothers Fund.

This arrangement – a for-profit law firm receiving donations from a nonprofit organization – is highly unusual and potentially suspect.

Is A Big Payout Coming?

The other common thread among these lawsuits is the potential for a big payout for the plaintiffs’ lawyers who are operating on a contingency fee basis.

This setup, which means they only get paid if they win the case or reach a settlement, could yield them millions of dollars.

In San Francisco, Sher Edling’s agreement with the city means that a successful outcome entitles the law firm to 25% of the first $100 million, 15% the amount between $100-$150 million, and 7.5% of any remaining amount over $150 million.

In Washington, D.C., Sher Edling and fellow law firm Tycko & Zavareei LLP could earn up to $70 million.

In the City and County of Boulder and San Miguel County’s lawsuits, EarthRights International and the Hannon Law Firm could walk away with 20 percent of any settlement or favorable judgment.

But lawsuits aren’t free, and as we’ve seen in other cases, activists have bankrolled the costs.

In Hoboken’s lawsuit that was filed last week, the activist group Institute for Governance and Sustainable Development is paying for the legal fees incurred by the city – a questionable mix of government and private sector resources.

Considering Delaware has hired Sher Edling and seems in sync with many other aspects of the climate litigation campaign, we must ask: “Is Sher Edling operating on a contingency fee basis, and how much do they stand to gain?” and “Are there outside groups paying for the costs of this lawsuit?”

Read more at EID Climate