While fossil fuel companies defend against mounting climate liability lawsuits in court, their surrogates are working in parallel to target the attorneys, academics, and institutions supporting these lawsuits. This defensive strategy involves vigorous public records requests, and in some cases legal action or intervention, to try proving a supposed conspiracy by those working to hold polluters accountable.
ExxonMobil has itself argued that attorneys general and municipal officials that have sued the company are engaged in a conspiracy to take down Big Oil. That argument hasn’t gained traction in court, but this hasn’t stopped operatives tied to fossil fuel funding from trying to take up that charge.
A month after the New York Supreme Court Justice Barry Ostrager ruled for Exxon in a securities fraud suit brought by the state attorney general, a group called Energy Policy Advocates filed a motion to intervene in the closed case. The group, along with board member Rob Schilling, a radio and internet journalist, asked for access to a specific set of sealed documents in the case: communications between the attorney general’s office and Matt Pawa, an environmental attorney active in climate liability lawsuits.
In its filing EP Advocates echoed Exxon’s legal tactics by alleging that Pawa had spearheaded a “coordinated campaign with activists and ‘prospective funders,’ going after climate denialism [sic] — along with a bunch of state and local prosecutors nationwide.”
In late February, Ostrager denied the motion, saying that the group had not “demonstrated a sufficient interest in the merits of the underlying securities fraud case.” Noting that the proceedings in the now-closed case had been open and transparent, and the documents made available “with the exception of minor redactions,” Ostrager wrote in his decision that New York’s contact with Pawa was “no secret,” and that EP Advocates and Schilling had themselves admitted in their filing “that they have already obtained substantial information concerning those communications from various sources.”
Ostrager also denied a cross motion by Pawa to appear as an amicus curiae, or “friend of the court,” in the matter, in support of the attorney general’s opposition to EP Advocates and Schilling’s motion and to shed light on the group’s apparent ties to fossil fuel interests.
“We documented in our amicus brief the connections between this organization and the coal industry, and between some of the individuals that have been working on behalf of this organization and Exxon,” Pawa told DeSmog. “So it’s pretty obvious who they are, they’re an industry front group.”
According to Pawa’s brief, “publicly available documents indicate that EP Advocates has a former coal attorney on its board, and is associated with at least one entity funded by coal money; one of these affiliated entities is run in part by someone who previously accepted money from Exxon to promote the view that virtually all climate science is ‘junk science.’”
‘Transparency’ Groups Funded by Coal?
Energy Policy Advocates’ stated goal is to use public records laws to “bring transparency to the realm of energy and environmental policy,” according to the group’s website. Although the organization incorporated in Washington State in 2018, its mailing address and most of the people associated with it appear to be based in Virginia. And while EP Advocates claims it doesn’t take policy positions, its consistent probing of nearly anyone involved in climate liability litigation appears to align well with the interests of fossil fuel corporations.
EP Advocates board member Mike Gardner, an attorney based in Cleveland, is a former coal company lawyer and a former mine inspector, according to his biography on the group’s website.
From the website of Energy Policy Advocates
EP Advocates is tied in through a partnership with another organization, Government Accountability & Oversight, and its Climate Litigation Watch project. The Climate Litigation Watch website launched in May 2018 purportedly to counter the increase in climate litigation against fossil fuel companies.
As Climate Liability News reported, “The website, while claiming to be a neutral clearinghouse for documents, records and information on climate change lawsuits, is run by an attorney with a long history of ties to the coal industry, and strikes an antagonistic tone in describing these lawsuits as a ‘perversion of the justice system’ and the modern equivalent to burning witches.” Energy Policy Advocates uses the Climate Litigation Watch website to publish documents obtained through records requests.
The closely related organization Government Accountability & Oversight describes itself as a public interest law firm, but the people running this nonprofit have ties to the fossil fuel industry, including coal giant Murray Energy. And its board member Chris Horner had been paid directly as a regulatory counsel by coal company Alpha Natural Resources.
Horner previously worked with several “free market” groups peddling climate denial including the Competitive Enterprise Institute and Energy & Environment Legal Institute (E&E Legal). Peabody and Arch Coal have both funded E&E Legal, where Horner worked as a senior legal fellow and where “junk science” proponent Steve Milloy (who has worked for tobacco giant Philip Morris and for Murray Energy) currently works as a senior policy fellow and board member.
Peabody also funded a group called the Free Market Environmental Law Clinic, which Horner co-founded with attorney David Schnare and that later folded following a heated legal dispute between the two. Horner then started Government Accountability & Oversight along with founding board member Matthew Hardin, who also is a board member for Energy Policy Advocates.
Government Accountability & Oversight and Energy Policy Advocates do not disclose any information about funding, but there are clear ties to the coal industry with Gardner and Horner both having worked as counsel to coal companies. Although Energy Policy Advocates claims to focus on transparency, it does not mention its ties to coal in its many public records requests to state attorneys general.
“Never in the numerous FOIAs [Freedom of Information Act requests] to state AGs etc. does Horner or his associates reveal that their patron has a material interest in the outcome of the lawsuits (accountability for pollution) and ultimately the regulation of global warming pollution,” Kert Davies of Climate Investigations Center, a watchdog group tracking fossil fuel front groups and campaigns, said in an email.
Energy Policy Advocates did not respond to requests for more information about the group’s funding sources or its affiliation with Government Accountability & Oversight.
Targeting Climate Scientists and State Attorneys General
As one expert familiar with these organizations told DeSmog, EP Advocates and Government Accountability & Oversight are the latest iterations of Horner-affiliated groups that harass climate scientists and climate advocates.
“They go through cycles, and they do the same anti-science climate denial work under the guise of being pro-American, pro-transparency,” said Lauren Kurtz, executive director of the Climate Science Legal Defense Fund, a nonprofit that works to protect scientists from legal attacks and intimidation efforts.
Free Market Environmental Law Clinic, the predecessor to both industry front groups, had pursued FOIA requests and litigation against high-profile climate scientists including Penn State Professor Michael Mann, Dr. James Hansen, NASA’s Gavin Schmidt, Texas Tech University Professor Katherine Hayhoe, and Texas A&M University Professor Andrew Dessler.
— Michael E. Mann (@MichaelEMann) July 8, 2014
The American Tradition Institute (ATI) is the former name for the Energy & Environment Legal Institute.
“They have this angle where they try to undermine science or the credibility of the scientists, or the people otherwise advocating for action on climate change,” Kurtz said of Horner and his associates. “They can create a lot of hassle for folks on the receiving end of these records requests.”
The tactic of using public records laws to target scientists also has a “chilling effect,” she said. Kurtz explained that she knows scientists who have been FOIA’d by Chris Horner and said that their colleagues are now hesitant to communicate with them.
Kurtz contended that Horner’s requests constituted a “fishing expedition, where they’re looking for jargon they can take out of context, technical information that they can twist.”
While Kurtz said that Horner and his associates have “stepped back a touch from debating the actual science,” they continue to go after scientists who try to speak out or engage in policy discussions relating to climate change. “They have targeted scientists that have worked with attorneys general,” she said.
They also appear to be targeting the attorneys general directly. Both EP Advocates and Government Accountability & Oversight have brought suits under public records laws against several Democratic state attorneys general. Most recently, in March, the latter group sued Maryland Attorney General Brian Frosh for documents involving Pawa, the environmental lawyer. The group filed a similar suit against Washington State Attorney General Bob Ferguson in early February.
EP Advocates and Government Accountability & Oversight have also sued attorneys general for information on the hiring of fellows at the State Energy and Environmental Impact Center at NYU Law School, a program funded in part by former New York Mayor and presidential candidate Michael Bloomberg.
EP Advocates and Government Accountability & Oversight are seeking to advance a “law enforcement for rent” narrative that privately funded attorneys are placed in state attorney general offices to pursue a politically motivated agenda. Sources including a law professor and a spokesman for the State Impact Center told DeSmog this narrative is unfounded, as there is nothing unusual or improper about attorneys general taking on outside assistants.
‘Tool of Industry’ Pursuing a ‘Broad-Scale Fishing Expedition’
Following an unsuccessful attempt to intervene in the New York attorney general lawsuit against Exxon, Energy Policy Advocates is now trying to intervene in another attorney general lawsuit against Exxon and other fossil fuel companies.
On March 10, EP Advocates filed a motion in the First Circuit Court of Appeals to file an amicus brief in support of fossil fuel company defendants in a climate liability lawsuit brought by the Rhode Island Attorney General. The deadline to file amicus briefs in this case has passed, so EP Advocates is again attempting to intervene belatedly. The group says it has records including handwritten and typed notes that reveal the objective of the lawsuit is to obtain a sustainable funding stream.
Rhode Island, as well a dozen cities and counties across the country, have sued fossil fuel companies for monetary damages, meaning EP Advocates’ “revelation” amounts to nothing. But nevertheless the group is seeking to defend the fossil fuel companies in court, arguing that the Rhode Island suit and similar climate nuisance cases are an “impermissible use of the courts” — an argument that the companies themselves are making.
NEW | The governments of #Baltimore and #RhodeIsland are calling out a “decades-long campaign of deception” by the #fossilfuel companies in urging courts to advance lawsuits trying to hold polluters responsible for #climate damages. https://t.co/Yuzd15aNRF
— DeSmogBlog (@DeSmogBlog) April 11, 2020
As Pawa explained, Energy Policy Advocates appears to be simply a “tool of [the fossil fuel] industry.” He said the people associated with the group have tried to make his life harder for awhile, “and they’ve been completely unsuccessful.”
Beyond Pawa and the attorneys general, EP Advocates appears to be in pursuit of communications of anyone involved in climate lawsuits, including attorneys, academics, advocacy organizations, and public officials.
Targets of its records requests have included the law firm Sher Edling, which is helping represent state and municipal plaintiffs in climate liability cases; the Institute for Governance and Sustainable Development/Center for Climate Integrity, a Washington, DC, based nonprofit that advocates for progressive climate and development policies; and EarthRights International, an environmental law group involved with a climate damages lawsuit brought by several Colorado communities against fossil fuel producers, as well as several cases involving alleged Indigenous and human rights violations by Big Oil firms.
In California, EP Advocates is seeking records of correspondence between Richmond Mayor Tom Butt and the Union of Concerned Scientists, as well as records between Imperial Beach municipal officials and Vermont Law School Professor Pat Parenteau. Richmond and Imperial Beach are each suing the fossil fuel industry for climate-related damages.
EP Advocates also is targeting Parenteau (who is this reporter’s former climate law professor) in its records requests in Baltimore, Maryland and in Rhode Island, both of which have sued fossil fuel companies.
Parenteau said he hasn’t been in communication with public officials in Baltimore or in California or Rhode Island. “It’s just a broad-scale fishing expedition,” he said.
Parenteau and Davies of the Climate Investigations Center both say these attempts by EP Advocates to dig up dirt on opponents of Exxon and other fossil fuel firms show that these companies and their allies are frightened of potential legal liability and of losing financial and public support.
“The whole financial world is turning on a dime, so the oil companies are getting more and more desperate,” Parenteau said.
“They’re really scared,” Davies added. “The coal industry is the first to fall, and it’s falling hard. But they’re fighting much harder in the face of that. They’re fighting like a trapped raccoon in the corner.”