NEW YORK (Legal Newsline) - Climate plaintiffs are fighting to keep litigation out of federal courts because they hope to find "sympathetic" state judges to rule in their favor, says a new amicus brief filed by government watchdog group Energy Policy Advocates (EPA).
The detailed, 45-page brief, filed in NYC v. Exxon Mobile et al., thoroughly describes the apparent connections between climate activists, donors and state attorneys general. The case was removed by the defendants from state court to the U.S District Court for the Southern District of New York, and the Court will now hear arguments as to whether these cases should be argued in state court rather than federal.
"This suit (like others of its ilk) cloaks what it is, and indeed what previously was admitted to be a federal claim in a manufactured state-law cause of action," the August 30 brief filed by EPA stated. "Amicus EPA details herein much of the documentation that this campaign of remarkably similar lawsuits was funded and conceived and is now being executed by the same organizers and financiers, which suits were quietly midwifed by outside attorneys working with and funded by the same sources."
By extensively making use of public records laws, EPA was able to uncover a trove of documents, which indicate that the climate suits appear not to be based on well-founded investigations of legal claims but rather on lobbying from climate activists. These ideological activists, EPA argues, sought to initiate lawsuits to seek an outcome that could not otherwise be achieved through the political process.
"Only after being so lobbied, these 'climate' plaintiffs have claimed to courts across the country that they suffered billions of dollars in damages at the hands of scheming producers and transporters of energy products who, the plaintiffs understand, might provide them with 'new sources of revenue,'" the brief argues.
At least one state court judge found that municipal litigation designed to target energy companies for state law violations in this way is rooted in states’ desires to ‘obtain leverage’ over these companies. That judge further determined that the primary objective of such suits is to drum up support for regulatory climate action, according to the brief.
"It appears the legal professoriate thinks such lawsuits are ultimately doomed in state court and see filing in state courts as their only hope and, it seems, a measure to delay the inevitable dismissals," Matthew Hardin, Energy Policy Advocates board member, told Legal Newsline. "When such lawsuits are properly heard in the federal courts, those courts ultimately hold that they are preempted by federal law, as New York City recently learned in its most recent trip to the Second Circuit."
Previously, the Court ruled against New York City in a very similar case that involved many of the same defendants. In that case, NYC made predominantly the same allegations. NYC is now attempting to reframe those claims as a municipal, consumer-law issue in hopes of having the argument heard by a state court.
In 2018, Exxon Mobil attempted to bar these kinds of investigations by state attorneys general, arguing that they are unconstitutional attempts to prohibit unwanted free speech. That case was dismissed by the Southern District of New York on the grounds that a link was not clearly established between climate activists and AGs. That ruling remains pending before the Second Circuit.
EPA's brief, however, lays out a comprehensive collection of evidence that establishes that there is indeed a strongly documented connection between climate activist agencies and state AGs.
As previously reported by Legal Newsline, the body of evidence surrounding climate litigation coordination has continued to grow in recent months, and those seemingly involved in the efforts have struggled to explain the similarities between the various states’ cases.
In August, Climate Litigation Watch (CLW), a government oversight organization, sounded alarms after it discovered stunning similarities between two different climate lawsuits filed by AG Karl Racine (DC) and AG Keith Ellison (MN) within 24 hours of each other in June 2020.
A careful side-by-side comparison revealed that the two suits contained nearly verbatim copy/pastes in multiple areas, with entire sections of the Minnesota lawsuit appearing in the D.C complaint and vice versa.
When questioned by Reuters on June 25, 2020, Racine said that he had been unaware of Minnesota's lawsuit until the day it was filed. Climate Litigation Watch, however, argued that Racine's contention was unlikely to be true.
"Despite claims to the contrary, it seems that D.C. and Minnesota’s lawsuits were a coordinated move," CLW said in a statement on Aug. 11.
According to Hardin, state courts are not the appropriate places for these nationally organized, activist-driven suits. The Southern District of New York and Second District Court previously agreed with his argument, finding that the campaign should be addressed on a federal level.
"The correct approach to changing existing law has always been advocacy in the legislative branch. Congress is the appropriate body for these political questions, and this industry has turned to the courts expressly because democracy continues to deny them their preferred results," Hardin said.
“The regulatory agencies can only exercise powers delegated by Congress, and Congress has continually rejected forcing this 'fundamental transformation' on America."