Climate Litigation: a Government Grab for Cash
Rhode Island Senator Sheldon Whitehouse (D-RI) is a clumsy bully, particularly when it comes to those who disagree with his obsession with redesigning society in response to climate alarmism. Whitehouse is also a promiscuous filer of often angry amicus curiae or “friend of the court,” briefs; his pet peeve is that parties who disagree with him have the same access to the judiciary that he does. His most recent fulmination, filed in the United States Court of Appeals for the First Circuit, has proved a particular embarrassment.
Sen. Whitehouse’s brief, joined by fellow climate extremists Sens. Ed Markey and Jack Reed (D-RI), assailed the U.S. Chamber of Commerce for having dared to voice their opposition to Rhode Island v. Chevron Corp. et al., which seeks billions of dollars from energy companies for supposedly having caused climate change. The Chamber broke ranks, as the sole dissenting voice among a mob of fifty others weighing in in support of using the courts this way.
That was too much for Whitehouse, Rhode Island’s junior senator, who declared “The Chamber would clearly love to neuter the judicial branch of government on these questions to the benefit of its fossil fuel donors.” This is pretty salty stuff even considering it’s Whitehouse, who once asked former attorney general Loretta Lynch if she would investigate opponents of the “climate” agenda for racketeering.
This bad look could get worse, and soon did in the form of newly obtained public records suggesting someone is indeed misusing the courts for money here, but it’s not who Sen. Whitehouse would have you believe. A devastating set of handwritten notes has come to light thanks to a state open-records law request by the transparency group Energy Policy Advocates (“EPA”). These notes, and a second, corroborating set of typed notes, reveal who is using the judiciary for what. These records offer two independent transcriptions of a shocking confession about Rhode Island’s lawsuit and, implicitly, all the rest of its ilk pouring into state courts around the country.
As Energy Policy Advocates recently informed the court earlier this month in its own amicus offering, the notes were taken during a two-day July 2019 meeting hosted by the philanthropic Rockefeller Brothers Fund (RBF) at the Rockefeller family country estate in Pocantico Hills, N.Y.
The event was titled “Accelerating State Action on Climate Change.” Various gubernatorial chiefs of staff, department secretaries, or cabinet equivalents attending this meeting came from both Republican and Democratic state administrations. Two environmentalist activist groups financed by the RBF, along with Tom Steyer’s Energy Foundation, were also in attendance.
The watchdog group obtained numerous emails, agendas and other materials, including typed notes of Katie McCormack of the Energy Foundation, and handwritten notes taken by the Rocky Mountain Institute’s Carla Frisch. One striking passage, replicated in both sets of notes, opens a troubling window onto this “climate nuisance” litigation. Frisch recorded the comments of Janet Coit, the director of Rhode Island’s Department of Environmental Management, as follows:
RI - Gen Assembly D but doesn’t care on env/climate
looking for sustainable funding stream
suing big oil for RI damages in state court
On its face this entry seems to be a confession that the Rhode Island legislature is not persuaded of the claims set forth by the State in this matter. It appears to also reflect a senior appointee of the governor explaining why the legislature has thereby declined to obtain from the taxpayer, and then appropriate to the State, the “sustainable funding stream” that the plaintiff Rhode Island desires. And so it is “suing big oil”.
None other than the U.S. Chamber of Commerce suggested as much, making numerous relevant observations in a 2019 report on the issue, summarized with, “local government leaders may eye the prospect of significant recoveries as a means of making up for budget shortfalls.”
Fortunately, we can be confident that Frisch did not mishear director Coit. McCormack provided the Rockefeller Brothers Fund with a typewritten set of her own notes transcribing the proceedings. McCormack’s typewritten transcription of Coit’s commentary reads almost verbatim:
These notes on their face both affirm two realities that have become inescapable in recent years about this epidemic of “climate nuisance” litigation, all channeled into state courts after the first generation of suits floundered in federal court. These suits seek to use the courts to stand in for elected officials not willing to pay the political price for taxing their voters for the extra hundreds of billions of dollars they wish to spend.
Defendants in the Rhode Island “climate nuisance” case might be interested in obtaining further insight into what Coit meant by this and, if she claims as she no doubt will that it’s not what it seems, why two contemporaneous transcribers heard her the same, damning way.
Other emails obtained by Energy Policy Advocates reveal concern that the records would find their way to the public, and possible machinations to avoid that. The confession by Rhode Island’s Director of Environmental Management surely is one very big reason why.
It's time the courts formally confront that the “climate nuisance” litigation campaign generally, and we now know this lawsuit, specifically, is a grab for revenue and other desired policies that have eluded parties via the legislative process. Politicians are seeking the most favorable local court to stand in for that political process. Were they to succeed, the consumer and economy still would pay, but the politicians would escape responsibility for having charged them.