NEW BRITAIN, Conn. (Legal Newsline) - An activist group will face off against Connecticut Attorney General William Tong on Monday in a court hearing over whether the state can keep secret communications with other AGs about politically tinged climate litigation.
Environmental Policy Advocates is fighting the Connecticut Freedom of Information Commission’s decision to reverse itself earlier this year and deny access to emails between AG’s office personnel and employees of other states. EPA has filed similar requests for information with other states in an effort to uncover what it believes are secret agreements by mostly Democratic AGs to use litigation against ExxonMobil and other oil companies as a way to achieve political goals and raise revenue for their states.
Those AGs frequently work in concert with private law firms, including Sher Edling and Seeger Weiss attorney Matt Pawa, who stand to make tens of millions of dollars in contingency fees if they win.
The Connecticut FOIA Commission voted unanimously in January to honor EPA’s request for communications with outside lawyers, then, with two members absent, reversed its prior decision on May 25. EPA sued to overturn that decision, combining the two requests the Commission considered simultaneously into a single case. Tong’s office moved to dismiss at least one of the two, saying state law doesn’t allow appeals of purely administrative actions to be combined.
A state judge in New Britain will hear arguments for both sides Monday. EPA, which opposes climate litigation, says communications between employees in Tong’s office and other states aren’t protected by the attorney-client privilege, since the other states aren’t clients of the Connecticut AG. Tong maintains its communications are protected under what it calls the common interest doctrine, which shields information attorneys share among themselves to prepare for litigation involving the same basic facts.
Matt Hardin, an EPA board member and attorney, said his organization doesn’t dispute the legitimacy of the common interest doctrine but Connecticut is using it to avoid revealing any information about why it decided to sue ExxonMobil.
“Very few people are arguing common interest doctrine isn’t a part of the law,” Hardin said. “What we’re arguing is just because the doctrine is a thing, you don’t get to wave it like a flag and say the discussion’s over.”
At the Jan. 26 hearing of the Connecticut FOIA Commission, a lawyer for Tong’s office said if EPA’s request for internal emails was granted, “then basically the Attorney General’s Office will be rendered essentially nonfunctional.”
Environmental Policy Advocates lost this fight in Minnesota earlier this year, when a divided state Supreme Court ruled that a state law protecting “private data on individuals” may also apply to investigative materials and other information not about actual humans, a conclusion three dissenting justices described as illogical and “Orwellian.” In a partial victory for EPA, however, the Supreme Court remanded the question to a lower court to decide whether the specific documents addressed legal issues or were unprotected policy statements.
Tong’s office sued ExxonMobil in 2020 over what he called “decades of deceit” that convinced consumers to burn more fossil fuels than they would have had the oil company not downplayed evidence of their role in global warming. EPA has been probing the relationships among AGs who filed similar lawsuits in other states, fee-driven private lawyers, environmental groups and billionaire Mike Bloomberg’s program of paying “fellows” to work in AGs offices on climate litigation.
Hardin said EPA is seeking public disclosure of discussions among the state AGs that he suspects will show “the true purpose of these lawsuits is not to redress funds to the state but to create a new cash cow, a new means of raising revenue.”
Rhode Island officials said as much in a with environmentalists in Colorado, according to handwritten notes obtained by EPA, calling the litigation against oil companies an effort to find a “sustainable funding stream.” Rhode Island sued in 2018, represented by private lawyers at Sher Edling.