MINNEAPOLIS (Legal Newsline) – Minnesota Attorney General Keith Ellison’s controversial climate change lawsuit is on hold while defendants look for help from a federal appeals court.
Minneapolis federal judge John Tunheim issued a stay on Aug. 20 while defendants like the American Petroleum Institute and Exxon pursue an appeal of his earlier order that sent the case to state court. Tunheim will re-evaluate the stay in a year if the appeal is not sorted out by that time.
He also refused to award attorneys fees to Ellison, who argued the defendants did not have a basis for their removal of the case to federal court. Considering the hotly contested nature of the jurisdiction issue around the country in other climate change cases, that request was a long shot.
The question of whether state or federal courts should hear these lawsuits has made it all the way to the U.S. Supreme Court and is still unresolved.
“Although the Supreme Court declined to address any of the merits questions regarding whether federal common law applies to climate change related injuries, the Baltimore decision increases the likelihood that an appellate court will determine that certain climate change claims arise exclusively under federal law, and any resulting circuit split will require resolution,” Tunheim ruled.
“Although likelihood of success on the merits presents a close call, the Court finds that Defendants have shown more than a ‘mere possibility of relief.’”
Two attorneys were placed in Ellison’s office by Bloomberg Philanthropies, an activist group funded by Michael Bloomberg through the New York University School of Law's State Energy and Environmental Impact Center (SEEIC), a year before suit was filed.
According to documents made available through Freedom of Information Act requests, Ellison asked for $96,000 and $130,000 annually from the SEEIC to pay the salaries of lawyers Leigh Currie and Pete Surdo hired by SEEIC in May and June 2019 to work in Ellison's office as special assistant attorneys general (SAAG).
Critics argue that Ellison’s use of the embedded attorneys violates state law.
Ellison has been ordered by a state court to released concealed communications regarding climate change litigation between his office and the offices of other state attorneys general. Those records could show what levels of coordination and control are being asserted by private lawyers representing government clients on contingency fees and advocacy groups that are funding the cause.
In a complaint filed in August 2019, Energy Policy Advocates, represented by Upper Midwest Law Center, argued Ellison has been hiding records that "demonstrate clear relationships between state attorneys general and the aforementioned major donor’s group."
The suit also alleges that Ellison employed the SAAGs as part of a coordinated effort to target “perceived opponents of a shared political and policy agenda” relating to climate change.
Ellison has appealed the ruling to the state Supreme Court.