Attorneys general in multiple states are refusing to disclose their communications with private lawyers and outside groups that have a direct stake in climate litigation, citing the attorney-client privilege and other protections.
Energy Policy Advocates, a nonprofit policy group, and Government Accountability & Oversight, a public interest law firm, have sued the AGs in Michigan, Vermont and Washington to turn over emails and other correspondence among the AGs and with environmental groups and private attorneys. A hearing is scheduled today in the Vermont case, during which EPA’s lawyers will argue the Vermont AG has violated the state’s open records law by refusing to release communications about potentially far-reaching policy initiatives including changing the regulatory treatment of CO2.
Vermont and other states cite the “common interest doctrine,” a vaguely defined doctrine that extends the attorney-client privilege to multiple parties working together on similar litigation. The doctrine isn’t codified in the federal court system and state courts apply it in many different ways, from restricting it to communications among attorneys about pending litigation to communications among attorneys and non-attorneys about contemplated lawsuits.
The state AGs in Michigan, Vermont and Washington appear to be applying the widest interpretation possible, including their communications with outside environmental groups and even renewable energy consultants whose clients would benefit directly from stricter controls on carbon emissions. The states and municipalities like the City of Baltimore also assert the privilege on communications with Sher Edling, the private law firm that has recruited a number of government clients to sue the energy industry under contracts that would give it a share of any money they win. Baltimore even argues its communications with the Union of Concerned Scientists are confidential.
“Our concern is all these states are sharing documents with each other, documents with Sher Edling and others in the climate tort bar, and when the public wants to see how these offices are being used the AGs say `protected,’ said Matthew D. Hardin, an attorney representing EPA. “They share it with their friends but not with the public."
Among the items Michigan Attorney General Dana Nessel considers privileged is an email from “Skip” Pruss, founder of 5LakesEnergy, a consulting firm that says it was “founded in part to support the businesses of the clean energy industry,” with the subject “Re: Enbridge poll.” Neither 5LakesEnergy nor the Michigan AG’s offices responded to a request for comment about the email, but it appears to refer to Enbridge, a company that was the target of an unsuccessful lawsuit by the Michigan AG to block construction of a pipeline under the Straits of Mackinac. An appeals court upheld the dismissal of the Michigan AG’s lawsuit on June 10.
If the email does concern public polling data about Enbridge, Hardin said, "I can’t imagine a universe where that’s work product and contains legal strategies."
The Michigan AG initially rejected all of GAO’s document requests, after charging the nonprofit thousands of dollars to identify and vet the records. After GAO threatened to sue, the AG’s office provided a “privilege log,” common in civil litigation, showing the subject, sender and recipients of hundreds of emails dealing with climate issues. Many involve Pruss, a consultant to the AG’s office who whose email changed to a state address last October.
Government Accountability & Oversight sued the state on May 28 after it released a batch of documents, including Pruss’ invoices to the state (he charges $80 an hour) but continued to withhold hundreds of others.
The subject lines in the privilege log show what Michigan is discussing with the other AGs. The topics include climate litigation generally and a specific proposal to classify CO2 as a “criteria pollutant,” joining toxic substances such as carbon monoxide, lead and sulfur dioxide subject to strict federal ambient air limits. The proposal, if achieved through litigation, would force a broad restructuring of the energy industry costing tens of billions of dollars or more.
The nonprofits suing for access to these documents don’t disclose donors but say they do not accept financial contributions from the energy industry. They say their interest is in bringing to light the parties involved in climate litigation, which is publicly spearheaded by state AGs and local governments but could benefit a variety of groups including the renewable energy industry and private lawyers.
Another target for the document requests is New York University, which is placing “Bloomberg fellows” in the offices of sympathetic AGs to pursue environmental litigation, with their salaries paid by former presidential candidate Michael Bloomberg.
"Imagine if the NRA did this. Imagine if right-to-life did this. That would drive the press and the same parties doing this here absolutely insane,” Hardin said. “The point is you can’t buy law enforcement, whether you agree with the cause or not."
Hardin said his clients hope to crack open the wall the states have erected around these records by convincing courts to narrow the common interest doctrine. An expansion of the familiar attorney-client privilege, it is believed to have emerged in a single Virginia case in the 1800s and wasn’t widely applied until the late 1960s. The state AGs argue it protects their communications with attorneys, experts and others as they plan litigation. But Hardin said the attorney-client privilege should apply only to confidential communications between a lawyer and client, not to information widely shared among different state officials and outside groups.
As one law professor explained in an article critical of the common interest doctrine, applying it to communications among parties involved in separate litigation, or no litigation at all, subverts the purpose of the attorney-client privilege. The privilege is designed to ensure clients can share information freely with their lawyers without fear of being prosecuted, wrote University of Louisville Law School professor Grace M. Giesel in a 2012 article. Extending it too far prevents the court system from unearthing the facts needed to fairly resolve disputes, Giesel wrote.
“Any possible benefit is outweighed by the damage done to the truth-finding mission of the justice system,” she wrote.
New York law only extends the common interest doctrine to defendants in litigation, which is why EPA was able to obtain some communications between the New York AG’s office and outside attorneys. The group is planning to utilize a fundamental principle to obtain more: Once a client shares information with third parties, the presumption of confidentiality is eliminated and with it, the attorney-client privilege.
"They’re not careful -- they don’t seem to have given great thought to whom they're sharing things with, given they also want to hide them from others,” said Hardin, who plans to travel to Washington Friday for another hearing on his clients’ effort to obtain climate records. “They are struggling with the reality that when the dam breaches, it will breach everywhere."