EPA Brief in FOIA Suit Provides Reminder of Why We Exercise Our Right to Know
You Are My Sunshine, My Only Sunshine
Cause, meet effect
After two massive setbacks for the climate litigation plaintiffs in 2018, EPA was among those who couldn’t help notice the sudden proliferation of seminars aiming to “equip judges to make competent judicial decisions and evidentiary rulings” should they find themselves hearing one of those many lawsuits swamping the nation’s courts.
One aspect which jumped out to anyone paying attention was the active involvement in these seminars of two Hawaii jurists who were expected to rule on one of the most recent suits: both the Hawai’i trial court judge hearing the case brought by the City and County of Honolulu in 2020, and the Chief Justice of the Hawai’i State Supreme Court. Judge Crabtree — who ruled in 2022 in favor of Honolulu — helped lead curriculum development; the Supreme Court has now accepted the plaintiff’s invitation to transfer the case and its Chief Justice is a regular host and organizer of these seminars which, since their inception, have liberally featured plaintiffs’ witnesses, amicus filers and activists supporting the plaintiffs’ case.
Recently, EPA sent public records requests to both courts. The Hawaii courts are expressly covered not only by the state’s version of the Freedom of Information Act, known locally as the Uniform Information Practices (UIPA), but also by the state and United States constitutions. So EPA went to the courts in search of more, relevant information.
After a period of silence, followed by engaging the state’s ombudsman, EPA received two interesting responses. Both said that the courts are exempt from the requests. But both courts also produced certain records nonetheless. First, the 1st Judicial Circuit (Judge Crabtree) released two email threads, both from the two last days covered by the request (March 30-31, 2023). Among the correspondents in these threads is Chief Justice Mark Recktenwald.
Notably, the broader events — those providing an audience for not just selected climate scientists, but also “selected academics and other leading experts and observers” — also are popular fora for presentations by consultants partners of the plaintiffs’ legal team. Yet dissenting voices skeptical of the plaintiffs/ claims never feature at such events. The vigorous regularity of the education cum advocacy push, especially given the origins and timing of the seminars as detailed at ClimateLitigationWatch, give the whole enterprise a rather unsettling appearance both generally and in the specifics, and only adds to the appearance that much of the legal establishment is in on the staging.
Which brings us to the second response. More on this in a moment but, for the time being, most interesting is that the request appears to have prompted the Chief Justice to post this disclosure on the Court’s docket.
EPA notes that on the date of the just released emailed invitation to Justice Recktenwald for a May event “right on the beach, at the top-rated hotel in in Monterey,” California, “[t]hanks to generous funding,” there was a pending matter of whether the Court would accept the plaintiffs’ March 3 application to transfer the case there.
The day after this invitation, the Court obliged. So some number of these justices will hear Honolulu’s pitch (at least two of them are participants in these fine events, with Justice Michael Wilson also partaking, so the Court’s ultimate makeup is not yet clear).
Students of the development of these seminars will notice a certain selectivity to the Chief Justice’s disclosure. As rough luck would have it, EPA has been informed by the Supreme Court that it will release Justice Recktenwald’s records on May 22, 2023, the Monday after the Court’s Friday deadline for interested parties to object.
For all these reasons, EPA is following these events closely. As the Hawaii Supreme Court itself has noted, even the appearance or perception of favoritism gives rise to public concern. “The test for appearance of impropriety is whether the conduct would create in reasonable minds a perception that the judge's ability to carry out judicial responsibilities with integrity, impartiality and competence is impaired.” Office of Disciplinary Counsel v. Au, 107 Hawai'i 327, 338, 113 P.3d 203, 214 (2005).
With so much public discussion of late centered on public trust in the judiciary, after years of claims that such seminars poison the well, will the public perceive a judge to be fair when he has been tutored outside of court by one side, to the exclusion of the other?
EPA Sues CPSC Over Gas Stove-ban FOIA
The day after the Consumer Product Safety Commission voted to seek public input on the previously hinted-at, then vehemently denied and now in-process campaign to ban gas stoves, the transparency-in-government group Energy Policy Advocates filed a lawsuit under the Freedom of Information Act (FOIA) seeking correspondence of CPSC Commissioner Richard Trumka, Jr., and his “public affairs advisor” Megan Sebold. Specifically, EPA sought emails and text messages with the Rocky Mountain Institute (RMI) from December 1, 2022.RMI has been credited with setting the politicians in motion on this campaign in January.
Energy Policy Advocates’ FOIA request also specifically sought correspondence mentioning RMI’s media advisors, another climate advocacy group or the term “culture war.” The latter quickly emerged as a widely-parroted talking point to dismiss criticism of the fashionable new push to ban gas stoves after Trumka first indicated the campaign was coming, in an interview with Bloomberg.
Energy Policy Advocates Executive Director Rob Schilling said, “Despite the clumsy, back-and-forth pronouncements followed by denials, and silly “pounce” stories, the past two months suggest a coordinated campaign between ideological activists and the political class to impose yet one more expensive and harmful government intervention in their crusade against individual freedoms and indeed against everything that makes our lives better. The latter includes all sources of reliable and affordable energy to automobiles and yes appliances that work, and meet the public’s needs.”
NJ AG Releases Heavily Redacted ‘Contingency Fee’ Agreements with Climate Lawsuit Mill
Yesterday, Energy Policy Advocates received a few more documents from the New Jersey Office of the Attorney General at least some of which pertain to its recently filed version of the “climate” lawsuits sweeping the country (including the Supreme Court: see EPA’s recently filed an amicus brief here). This batch of records included two versions of a nominally “contingent” fee agreement between the state and the law firm Sher Edling, LLP.
Readers recall this suit was brought as the first major action by a recently appointed AG (a confirmed, not elected position in the Garden State). Curiously, this out-of-the-gates priority never came up at his confirmation hearing.
About these pacts, as you can see not only is the date of one of them hidden, but even the clue of who was serving as AG at the time of the first, wait, second…anyway, another agreement. As, of course, is the subject of what that one is about! In New Jersey, such basic factual information about contracts on behalf of the public is considered too much for the public to know.
This mystery contract on behalf of the public about…something… is with two firms chasing the climate litigation dream.
Further, the AG’s Office gutted the two contingency, sorry “contingency” fee payment sections on costs and fees.
As readers also recall, Sher Edling, LLP has been shown by EPA and Government Accountability & Oversight to have been the recipient of millions of dollars to pay for these lawsuits, as acknowledged by the firm in emails to solicitation targets and by the pass-through foundation (just not in the charity’s IRS filings). These redated sections in the letters and payments of costs and attorneys’ fees exhibits are where one would expect to find discussion of the fact someone is already paying the firm millions to file these suits. Assuming that information was disclosed, as one must (see 1.8(f)).
"Radioactive" Email Released re: Private Funding of Government "Climate" Lawsuits, Heavily Redacted
Today, following mediation, "climate nuisance" plaintiff Anne Arundel County, Maryland, released a heavily redacted email referencing a charitable foundation shown to be privately financing the nationwide campaign of governmental "climate" litigation", of which the County is a part.
It is the sole document EPA has found among the various governmental climate plaintiffs indicating awareness that litigation they contractually agreed to reward with generous "contingency fee" agreements was in fact already being paid for.
EPA previously wrote about this, what a local judge called a "radioactive document", in "What Anne Arundel doesn’t want the Court to know" (two parts).
Minnesota Supreme Court Recognizes Common-Interest Doctrine But Also Rules That Attorney General Ellison May Shield Nearly All Internal “Policy” Data From Public
St. Paul, MN- In a serious blow to government transparency, the Minnesota Supreme Court ruled today in a 4-3 decision in Energy Policy Advocates v. Ellison that the Office of the Attorney General may conceal from the public all “communications…regarding administrative or policy matters which do not evidence final public actions,” unless the person requesting the data is the individual subject of the data. In addition, the Attorney General may conceal all inactive investigative data unless an individual subject requests it. This is because the majority claimed, the Legislature identified the data subject to Minnesota Statute 13.65 as “private data on individuals”—even if there are no individual subjects of the data.
In his dissent, joined by Chief Justice Lorie S. Gildea and Justice G. Barry Anderson, Justice Paul Thissen called this definition of “private data on individuals” “Orwellian” because the Court defined data that has nothing to do with individuals as “data on individuals.” Justice Thissen asked, “Why would the Legislature have used the word “individuals” if it meant for section 13.65 to cover data that was not on individuals?” Justice Thissen then mused: “Only a lawyer could take delight in pondering that question and reaching the result the court reaches today; other Minnesotans will be scratching their heads.”
The Court also noted that advocacy groups like Energy Policy Advocates—or media entities like the Star Tribune, Alpha News, Pioneer Press, MPR, KMSP, KARE, Fluence Media, Center of the American Experiment, and WCCO—have no right whatsoever to access any such policy data because they are not natural persons. Thus, somehow, non-persons cannot even request policy data that discuss them specifically.
In the same opinion, however, the Court adopted Energy Policy Advocates’ proposed formulation of the “common-interest doctrine” in a 7-0 vote. That formulation requires the Attorney General to demonstrate that any communications with other attorneys general share common “legal” interests, as opposed to “policy” interests. The Court, therefore, remanded the case to the district court for a decision on whether the Attorney General’s communications with other attorney general sought by Energy Policy Advocates were privileged and invoked a common legal interest.
Rob Schilling, Executive Director of Energy Policy Advocates, said “We are heartened that every single justice unanimously held that the common interest doctrine cannot protect communications on political or non-legal matters, and we look forward to arguing in the district court based on a proper index that we remain entitled to most of the documents we requested. Information that has come out — including subsequent to this argument particularly in recent weeks — expressly confirms that this litigation campaign by progressive attorneys general is in fact a policy campaign, seeking to obtain policies denied them, their allies, and their donors through the proper democratic process.”
James Dickey, Senior Trial Counsel for the Upper Midwest Law Center, which represents Energy Policy Advocates in the case, said: “Justice Thissen’s dissent said it best: this decision related to Attorney General Data is a head-scratcher. It is astounding that, in spite of our Data Practice Act’s strong presumption of government transparency, the Attorney General of Minnesota may apparently shield all internal discussions and communications about policy matters from Minnesotans who simply want to know what their government is doing. This decision will only further erode public trust related to the Office of the Attorney General.”
The Court remanded the case back to the district court for further proceedings on whether communications sent from the Office of the Attorney General to other attorneys general are privileged and invoke a common legal interest.
What Anne Arundel doesn’t want the Court to know
UPDATE: Anne Arundel affidavit seeks to justify keeping secret the contents of its email about the foundation recently revealed as being the pass-through for Leonardo DiCaprio and others to pay for its 'contingency fee' law firm.
What Anne Arundel doesn’t want the Court to know
As EPA has previously noted, below, Anne Arundel County, Maryland is so far the only "climate" plaintiff — among many in a coordinated nationwide campaign — to admit to having records mentioning the pass-through serving as the, or at least a very major, private funder behind the campaign. Now, presented with Energy Policy Advocates' Public Information Act complaint seeking a copy of the email containing that mention, the County has asked its local courts to strike from the record most of the backstory of what is going on and why it is important.
The public interest relevant to a Public Information Act (PIA) request is apparently "immaterial."
Specifically, EPA's June PIA suit seeks a single email that the County admits it possesses mentioning Resources Legacy Fund — now outed as the pass-through financier for Hollywood and other wealthy donors to pay the law firm which has been filing AAC's and others' lawsuits in this nationwide litigation campaign. The email, dated eight weeks before AAC filed its suit, seems inherently to reflect that AAC actually knew about the private financing, and prior to awarding a lucrative "contingency fee" contract to the plaintiffs' law firm to be paid out of supposed damages suffered by the taxpayers.
The reason? Apparently, noting why the record is of public interest, and the existence of this privately financed nationwide campaign, is "tilting at windmills and engaging in an apparent quest to prove some unspecified irregularity in the source of funding for a climate change lawsuit", and "baseless, improper, impertinent and immaterial conspiracy allegations."
That pose does seem to further elevate the public's interest in what was the County's knowledge of the nationwide, coordinated campaign financed by the same pass-through and of which the County is a part.
Based on New Revelations, Two Open Records Lawsuits in Maryland and Minnesota Detail Private Financing of Politicians' "Contingency Fee" Climate Litigation Campaign, Seek Further Documentation
Rules of Professional Conduct may bar plaintiffs' firm from continuing in some, maybe most jurisdictions
UPDATE 7/12/2022 6:39 PM: EPA has received the following relevant documents from Minnesota AG Ellison’s office
UPDATE 7/29/2022 6:25 PM: The City of Annapolis has released its agreement with the law firm filing these suits, but withheld the scope of work and just how big the 'contingency fee' was out of the City's alleged damages.
UPDATE 8/2/2022 11:55 AM: Rhode Island released a substantially redacted contract containing what disclosures Sher Edling, LLP made to the State
UPDATE 9/2/2022 5:38 AM: EPA files response to county effort to keep details of climate litigation campaign out of the record.
Recently, Emails produced in Government Accountability & Oversight v. Regents (UCLA Law School) (Superior Court for Los Angeles County), combined with a find on the Wayback machine to remove any plausible denial of something hinted at by items which had surfaced over the years: the law firm filing the tsunami of "contingency fee" climate lawsuits from 2017 through late 2021, Sher Edling, LLP, was privately being paid millions of dollars expressly to finance these "the nuisance lawsuits"* at the request of politicians, for which the lawyers also were promised enormous "contingency fees" in the event of a settlement or if they prevailed.
The money was being run through a charitable foundation, which raises its own issuesfor the donors, the foundation (given how it reported these grants to the IRS, in the face of what these records confirm was the true purpose), and the law firm.
This also raises serious questions about whether the firm can continue in its role with individual governmental plaintiff-clients, given the Model Rules of Professional Conduct.
Specifically, Rule 1.8(f)) prohibits lawyers from being compensated for representing a client by other than the client without the client's informed consent. 1.8f is in place in many jurisdictions in which these suits have been filed (e.g., RI, VT, DC, DE, SC, NY and particularly MN**).
Minnesota offers a great case study given the available facts. According to the package MN AG Keith Ellison provided Minnesota's Legislative Advisory Commission as a necessary step to get his contract with the firm approved, he did not disclose the private financing (i.e., nothing in the package even suggests that the firm was already being paid millions of dollars by private parties to file these suits; the contract itself, like others that have been obtained in records requests, also makes clear the "contingency fee" is the compensation for the work).
On the basis of this apparently incomplete information, the LAC approved the contract by which Ellison promised the firm sums that he expects will run into the many scores of millions of dollars out of the damages Ellison claims the taxpayers have suffered, on top of their extant compensation for filing these suits.
Now, another new detail has just emerged. In mid-June, a new denial of a records request sent to climate plaintiff Anne Arundel County (MD) strongly suggests that that plaintiff was informed about the double-dip, if orally: the County states that it has an email among County officials discussing the charitable foundation behind the payments, but refuses to release it.
The County states this email is dated about eight weeks prior to Sher Edling, LLP filing suit for them on a contingency fee agreement (also being withheld)(alternatively, theCounty could have read the online speculation that this was happening, yet proceeded anyway). The County's reasoning is "This communication is also protected by attorney client privilege pursuant to GP § 4-301 (a)(1) as Mr. Johnston was the Director of Environmental Policy for Anne Arundel County and the communication was with attorneys at the County Office of Law regarding an ongoing legal matter."
This suggests that, at least by late 2021, plaintiffs were aware of this arrangement. How they became aware is an issue, but let's assume the law firm informed at least Anne Arundel County. The public has a right to know which is the case.
This makes the questions for Keith Ellison crystal clear: what did you know about the private funding, and when did you know it? Are you a dupe, or are you in on it?
Given the above, government-transparency group Energy Policy Advocates has today filed two new open records lawsuits, one against Ellison's office for any other disclosures it obtained from Sher Edling, and the other against Anne Arundel to compel production of the email showing they discussed, once, the private donor in March 2021, 8 weeks prior to filing suit.
* After some setbacks on the nuisance front, they have retooled their claims to add state law consumer protection claims.
** CO also holds to this Rule. The Colorado suits were filed by a: different legal shop, but again one that also apparently was privately compensated to file the suits.
Update on private funding of climate litigation, and specifically what did Keith Ellison know and when did he know
Earlier this month Energy Policy Advocates sued Minnesota AG Keith Ellison for records reflecting disclosures from the law firm Sher Edling, LLP, and records mentioning one of at least two third-party founders of these climate suits, Resources Legacy Fund.
Yesterday EPA obtained records in that matter, including the firm’s précis for why it should get the business and how they would execute it.
The cover letter is informative, and the documents are both for what they do and do not contain.
There remains no written evidence the firm told Ellison about the third-party finding, and indeed there is now even more evidence of representations otherwise (see précis pp 14-15s).
We do now see his Office apparently didn’t blink when defendants pointed out the appearance of this funding in their removal action. That seems strange if they were not aware; surely Keith took them to task on the phone on the call whose redacted agenda is attached to one of those pleadings? And simply decided against updating the LAC with this new information? Or, was he not a dupe but in on it?
Things are no clearer whether Ellison mislead the Legislative Advisory Commission on his own volition in seeking approval of the agreement, or did so because the firm had not informed him that, e.g., Leonardo DiCaprio and other activist funders were already arranging for the firm to be compensated for these suits.
What is further clear is that Ellison ought to explain this.
About Energy Policy Advocates
Energy Policy Advocates is a nonprofit corporation organized in Washington State. We seek to bring transparency to the realm of energy and environmental policy.
At EPA, we believe that you have a right to know who your government is talking to when it makes the decisions that affect you the most, and what the costs are of the policies bureaucrats make in the halls of government.
We don’t take policy positions, but we do use federal and state transparency laws, such as the Freedom of Information Act, to seek out information. Then, we share that information with you so that you can decide for yourself whether government is making the right choices for you and your family.