TACOMA, Wash. (Legal Newsline) – An appeals court has backed Washington Attorney General Bob Ferguson as he fights to keep materials related to climate change litigation secret.
Ferguson, though he hasn't filed climate change litigation, is one of many AGs who have been asked by Energy Policy Advocates to turn over documents including emails with private lawyers. EPA says Ferguson’s 74-page response to its public records request redacted too much.
But Ferguson won a trial court ruling that said the information is protected as attorney-work product, and on Nov. 30, the Court of Appeals Division II agreed. The trial court had conducted an in-chambers review of the materials in order to make its determination.
“After reviewing the unredacted documents in detail, we agree with the trial court that the documents are work product,” Judge Bradley Maxa wrote for the appellate court.
“The first batch contains litigation memos that discuss viable legal theories against a particular entity. There is no question that these memos contain attorney mental impressions relating to potential litigation and therefore constitute work product.
“The redacted portions of the second batch contain attorney mental impressions relating to potential litigation and therefore constitute work product. This work product material is exempt from disclosure under RCW 42.56.29.”
The court also ruled Ferguson did not waive his right to withhold the materials.
Energy Policy Advocates is involved in similar litigation around the country, with a key case ready for hearing at the Minnesota Supreme Court.
Its crusade seeks to chronicle the coordination among public officials, private lawyers and climate change activists to pursue lawsuits against energy companies like Exxon and Chevron. These lawsuits feature a blend of private lawyers working on contingency fees and state prosecutors whose salaries are paid by a Michael Bloomberg-funded project at New York University.
The many climate change lawsuits are basically on hold while the issue of whether they should be heard in state or federal courts is finally sorted. Those suits seek to hold energy companies liable for the “public nuisance” of climate change and would cost the defendants billions in abatement costs (of which the private lawyers would take a chunk).