Amicus Brief Details Climate Litigation Campaign’s Political Origins

From Climate Litigation Watch

Newly obtained records withheld for seven years reveal NYAG attorneys abandoned misgivings about pre-packaged “subpoena suggestion” after months of activists’ climate-lawsuit lobbying

“[M]aybe he can come to see that he’s wrong” met “Please do know that I want to find a way on this as much as you do”, and politics carried the day

This week, Judge Valeri Caproni of the U.S. District Court for the Southern District of New York granted leave for Energy Policy Advocates (EPA) to file an amicus brief with that Court in City Of New York v. Exxon Mobil Corporation et al. The brief includes an appendix of over 100 pages of emails and memos sent to and from the New York Attorney General’s Office (NYAG), which were recently obtained by Government Accountability & Oversight (GAO). Most of these emails were recently released for the first time and following years of stonewalling. All of this reveals the Rockefeller Family Fund’s (RFF) instrumental role in originating the ever-expanding climate litigation campaign which began with the New York Attorney General’s November 2015 subpoena of ExxonMobil. 

In a breathtaking read, the public now sees in the principals’ own words that the admitted objective is to obtain discovery for help with, and otherwise help move along, a national campaign of lawfare designed to coerce defendants “to the table” in support of unpopular national ‘climate’ (i.e., energy-constraint) policy.

The newly released public records date from former New York Attorney General Eric Schneiderman’s time in office but feature senior officials who remain in their positions today, as well as now-Manhattan District Attorney Alvin Bragg. 

The emails and memos lobbying NYAG showcase RFF’s extraordinary access to and influence within NYAG. Working first with political allies, RFF provided the materials and legal strategy for the first climate investigation/prosecution. These materials were pre-packaged and presented to a NYAG office whose lawyers initially reacted to the former NYAG attorney engaged by RFF to prepare its memos by hoping, “maybe he can come to see that he’s wrong.” 

However, EPA’s amicus brief shows how RFF, with the assistance of an NYAG political appointee, succeeded in lobbying law enforcement to overcome this position, i.e., the OAG attorneys’ own internally expressed misgivings about RFF’s proposed subpoena strategy. 

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At a previously unknown February 23, 2015, meeting organized by RFF President Lee Wasserman, the NYAG was presented with a “trove of materials” on ExxonMobil curated by activists Kert Davies of Climate Investigations Center and John Passacantando of Greenpeace, who Wasserman also brought in to help pitch NYAG into action. Specific references in the correspondence between NYAG staff indicate that the “trove” may have included internal company documents published months later in the #ExxonKnew reporting series, which allegedly spurred investigations from NYAG and other state attorneys general. Wasserman also boasted that the pair’s work was behind a (then-)recent NYT hit piece on climate scientist Willie Soon— while also suggesting his own involvement in arranging for this, what the brief reminds the Court was just one of a spate media items engineered in aid of RFF’s campaign.

The public records highlighted in EPA’s amicus brief fill in many of the gaps in old Schneiderman-era privilege logs from past Freedom of Information Law (FOIL) litigation, but questionable redactions and withholdings remain. Notably, NYAG redacted a portion of a February 19, 2015, email from Wasserman, a private actor, to NYAG staff that included a detailed preview of the upcoming Feb. 23 “fossil fuel and climate change meeting”:

“If the companies admitted what they know about climate science, it would almost certainly hasten greater regulatory changes to restrict the extraction of fossil fuels. In our opinion, [                                    REDACTED                                                                   ]. Even if greater regulation were not to occur, climate change will have meaningful financial consequences…”

This decision to redact a third party’s opinion about its own strategy that was sold to NYAG, and the desired outcome therefrom, e.g., for such litigation to “hasten greater regulatory changes,” is indicative of the disproportionate sway Wasserman still carries in the Office.

That withholding, which is different depending on the version most of which hide the “In our opinion,” is the subject of recently filed FOIL lawsuit.

But although Wasserman and his allies had political sway, getting the rank-and-file attorneys on board was another matter.  

A month after the February 23 meeting, RFF’s Wasserman emailed Attorney General Eric Schneiderman’s chief of staff Micah Lasher the first of two Martin Act/subpoena-strategy memos making the case for how and why the Office should use that law to investigate ExxonMobil. One pitch was that the company might be so embarrassed by the prospect of press attention that the public would never find out about NYAG’s move.

According to emails between Lasher and Wasserman, NYAG attorneys were initially skeptical of the approach, and it fell to Lasher – a political operative – to liaise with Wasserman to smooth over NYAG attorneys’ concerns about the approach. As Lasher wrote to Wasserman after one meeting in March 2015, “Please do know that I want to find a way on this as much as you do.”

NYAG attorneys’ skepticism was prescient. The case that these months of correspondence and closed-doors lobbying launched, People of the State of New York v. ExxonMobil Corporation, ended in a decisive failure for the state and the activists. Afterward, following exposure for being behind the media campaign cited by Schneiderman in support of his lawsuit—and as GAO has detailed in a report based on records obtained from the Minnesota Attorney General—RFF began working through a group called Center for Climate Integrity (CCI), for which it also toured the country raising further financing, which then would, e.g., help ghost-write the memos recruiting AGs as plaintiffs and arrange for local climate activists to serve as front-facing advocates lobbying AG/plaintiffs. 

Even so, RFF and the groups it manages behind the scenes continue to package up and pitch and help direct the campaign seeking filing of more versions of that first lawsuit to public officials across the country, indicating the national ambitions and federal nature of this litigation campaign.