WASHINGTON (Legal Newsline) - A nonprofit government watchdog group is sounding the alarm after mounting evidence suggests that the attorneys general in Minnesota and Washington D.C engaged in a covertly coordinated effort to carry out similar climate change lawsuits.
Climate Litigation Watch closely reviewed two strikingly comparable lawsuits that were filed by Attorney General Karl Racine (D.C) and Attorney General Keith Ellison (MN) within 24 hours of each other in June 2020. Side-by-side comparisons show that the two suits contain nearly verbatim language in several instances, with entire sections of the D.C lawsuit appearing in the Minnesota complaint and vice versa.
Both lawsuits targeted Big Oil, including ExxonMobil, for allegedly misleading consumers about their companies' impact on climate change.
"Despite claims to the contrary, it seems that D.C. and Minnesota’s lawsuits were a coordinated move," Climate Litigation Watch said in a statement on August 11.
The nearly identical phrasing suggests that either complete or nearly complete copy/pastes occurred in more than three areas. Particularly confusing is the fact that both complaints used very similar wording when providing background about the American Petroleum Institute (API), even though API was only named as a defendant in the Minnesota suit - not D.C.'s.
“One could argue that this type of climate litigation was trending towards the consumer-focused angle, as evidenced by Massachusetts’s lawsuit filed in October 2019. But that doesn’t explain how entire paragraphs, either word for word or with slight variations, of D.C.’s complaint can also be found in Minnesota’s lawsuit,” the statement by Climate Litigation Watch said.
Shortly after the suits were filed, a spokesman for Exxon accused Attorney General Karl Racine (D.C) and Attorney General Keith Ellison (MN) of engaging in a "coordinated, politically motivated campaign" against traditional energy companies.
However, when interviewed by reporters for a story published by Reuters on June 25, 2020, Racine contended that he had only learned of Minnesota's lawsuit the day it had been filed. He further stated that he had begun preparing his own lawsuit long before Ellison's was filed.
Last month, Racine further fueled speculation of collaboration between D.C and Minnesota by filing an amicus brief at the Minnesota Supreme Court. Racine argues in support of Ellison, who seeks relief from a lower court decision in favor of Energy Policy Advocates involving communications records.
In his petition for review, Ellison claimed that records related to his use of "special assistants attorneys general" through New York University’s School of Environmental Impact Studies Center (SEEIC), a Bloomberg-funded organization, are protected by a "common interest doctrine" exception to waiver of privilege.
Racine seemed to allude to the coordination between Minnesota’s AG and the AGs of other states in the amicus brief.
"[T]he court of appeals’s decision is disrupting the ability of other state attorneys general to coordinate with Minnesota on legal matters of common interest, depriving other states of Minnesota’s expertise. That could, in turn, hinder the Minnesota Attorney General’s ability to work with other states in multistate litigation efforts...," Racine argued.
In spite of this reference, both AGs have a vested interest in concealing their collaborative efforts. To justify keeping their lawsuits in state courts - and therefore maintaining their viability - they must argue that the suits are strictly local and not part of a coordinated federal effort.
Racine's office did not respond to a request for comment when asked about his support for Ellison’s appeal or the copy-paste nature of the two climate change suits.
As previously reported, the Minnesota Court of Appeals ruled on June 1, 2021, that AG Ellison cannot conceal documents related to his office's communications with attorneys general in other states. The court held that the common interest doctrine - which allows states to withhold information about communications with other states - has never been valid in Minnesota.
"[The] common-interest doctrine is not embodied in a statute or rule. The common interest doctrine might be considered a 'professional standard' if it were recognized by law, but - as respondents concede - it has not been recognized in Minnesota," the Court of Appeals stated in its decision. "Respondents urge this court to recognize the common-interest doctrine for the first time, but we decline the invitation to do so."
Ellison drew criticism from critics in June after he filed a petition seeking review of the Court of Appeals decision. Doug Seaton, founder and president of the Upper Midwest Law Center, alleged that Ellison filed the lawsuit because he is worried about the fallout that might take place if his office's undisclosed communications with other AGs - including Racine - is revealed to the public.
“What is the AG afraid of in a closed judicial review of these documents to consider his privilege claim? [We] look forward to obtaining the documents and ending AG Ellison’s selling of the AG’s office to outsiders," Seaton told Legal Newsline.