Questions Swirl Around Vermont’s Long-Shot Climate Lawsuit

Vermont Attorney General TJ Donovan (pictured) introduced a climate lawsuit today, but the announcement was short on details considering the attorney general’s history with this litigation, coordination with other states, and record of blocking transparency.

These are the key questions around Vermont’s climate lawsuit:

Why Now?

Way back in 2016, Donovan’s predecessor, Bill Sorrell was part of the failed AGs United for Clean Power – aka “The Green 20” of state attorneys general that vowed to investigate energy companies but later collapsed under criticism that they were trying to limit free speech.

Sorrell was also present at the press conference hosted by former New York Attorney General Eric Schneiderman and former Vice President Al Gore where the coalition was launched.

Schneiderman was already in the middle of launching his climate lawsuit (which later was decisively defeated) and it was that press conference where Massachusetts Attorney General Maura Healey announced the investigation that led to her own climate lawsuit.

To top it off, the whole group of state attorneys general was briefed beforehand by plaintiffs’ lawyer Matt Pawa and Peter Frumhoff of the Union of Concerned Scientists – two key players in the climate litigation campaign.

So why now in 2021, more than five years after that press conference, is Donovan finally introducing a climate lawsuit?

What has changed since 2015 – and after the climate litigation campaign has been dealt blow after blow – that convinced him his own lawsuit would face a different outcome?

Blocking Public Records Request

Both Donovan and Sorrell have worked overtime to block the transparency of their office’s operations.

In 2017, Donovan’s office refused to comply with public records requests about the state’s coordination with Schneiderman to share information regarding potential climate lawsuits, making the absurd claim that “the attorney general doesn’t have to share public information with people it doesn’t like,” as the Caledonia Record editorial board summed it up.

Later that same year, Donovan even backed up Sorrell’s refusal to answer questions in a deposition over the state’s climate litigation work.

The attorney general’s office even said that Sorrell damaged his phone while fishing as the reason he couldn’t turn over relevant text messages about the climate litigation work.

Now that this climate lawsuit has been introduced, will Donovan continue to block public transparency?

Will Donovan acknowledge if the state continues to be a part of a strategy or information-sharing agreements with other state attorneys general?

Is the Attorney General Getting Outside Help?

During his press conference announcing the lawsuit, Donovan gave no indication about coordination with outside groups, but that doesn’t mean he’s acting alone.

Minnesota Attorney General Keith Ellison was recruited by activist groups to file his climate lawsuit, and then hired Sher Edling – a San Francisco-based law firm – to serve as outside counsel and who are operating under a contingency fee agreement where they stand to make millions of dollars.

Ellison’s engagement with Sher Edling wasn’t disclosed until months after he filed the lawsuit.

Likewise, the City of Annapolis, Maryland was also persuaded by activists to join the climate litigation campaign and enlisted Sher Edling.

Did Donovan finally decide to file this lawsuit under his own volition or was he convinced by activists to move forward?

Is Donovan also hiring an outside counsel?

A Losing Strategy

On top of the defeat of the New York attorney general’s climate lawsuit in 2019 – which Donovan is well aware of – other lawsuits that have been decided on their merits haven’t fared any better.

New York City’s lawsuit was soundly defeated (twice!) as was the case brought by San Francisco and Oakland.

Even legal professionals in Vermont admit these lawsuits aren’t succeeding. Bloomberg reported:

“Somebody has to be found responsible for causing somebody else’s harm from climate change, and courts have had a very hard time pinning that down,” said Jenny Rushlow, a director of the Environmental Law Center at Vermont Law School.

Is Donovan deterred at all by the failures of these other climate lawsuits around the country?

Vermont Needs Petroleum Products

As others around the country have stated before, climate lawsuits aren’t actually about solving climate change.

But these lawsuits could undermine American energy security and hurt those who can least afford it. As the Energy Information Administration says:

“Nearly 3 out of 5 Vermont households heat their homes with petroleum, 1 out of 5 use natural gas, and almost 1 out of 6 burn wood for heat. More than one-third of Vermont schoolchildren attend facilities heated by wood products.”

Obviously, Vermont has very cold winters and residents are relying on petroleum products including natural gas to stay warm.

Those residents could even do with more natural gas as burning wood is bad for both the climate and for health – as even the Rockefeller-funded Inside Climate News concedes.

Read more at EID Climate