- The Washington Times - Thursday, August 4, 2016

Democratic attorneys general signed a secrecy agreement aimed at keeping hidden the details of their investigation into climate change dissenters, according to documents released Thursday.

The Common Interest Agreement was signed in April and May by representatives for 17 attorneys general as part of their collaborative pursuit of fossil fuel companies, academics and think tanks that challenge the narrative of catastrophic climate change.

Such agreements are typically used by prosecutors on investigations involving litigation, but the pact signed by AGs United for Clean Power was different. The agreements were “clearly drafted to obstruct open-records requests while these AGs carried out a political campaign against their critics,” said the Energy and Environment Legal Institute, which obtained the documents.

“It’s baffling that these AGs feel they can trample on their own states’ public records laws,” David W. Schnare, E&E Legal general counsel, said in a Thursday statement.

“If they truly believe that they are engaged in anything other than a purely political campaign, they should have no problem explaining to the public what they are doing and subjecting their activities to the scrutiny their legislatures demanded,” he said.

He said the institute obtained the 17 agreements through open-records requests and a lawsuit against the District of Columbia.


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“The time and effort it took to obtain the document; the arguments made to defeat efforts to obtain it; and the AGs’ reluctance even to acknowledge the existence of such an agreement, all raise more questions about what these AGs are hiding,” said the institute.

The E&E Legal Institute previously obtained an unsigned copy of the Common Interest Agreement through an open-records request, but the Thursday release marks the first time the signed documents have been made available to the public.

Eric Soufer, a spokesman for New York Attorney General Eric T. Schneiderman, defended the use of the agreement, calling it a “routine practice during a multistate investigation.”

“These agreements preserve the confidentiality of public information shared among state law enforcement officials during the course of an investigation,” Mr. Soufer said in a Thursday email. “These agreements are also routinely employed by non-government entities engaged in private litigation.”

The suggestion that such an agreement is “anything other than a standard, routine, and responsible law enforcement practice is utter nonsense.”

“This is just another press release by fossil fuel industry allies hoping to distract, deflect, and delay a serious fraud investigation into potential corporate fraud and malfeasance,” Mr. Soufer said. “Needless to say, it will not be effective.”

Former Denver prosecutor Craig Silverman said both sides have a point: Such agreements are not rare, and they can be used to avoid disclosure.

“It is not unusual for plaintiffs’ attorneys to have cooperative working agreements with other plaintiffs with whom they share common interests,” Mr. Silverman said.

At the same time, he said, “Lawyers and their clients are always looking for a privilege, which is a legal way of keeping secrets.

“Once this privilege is asserted, it becomes difficult to prove the cooperation agreement is a pretext so as to pierce the privilege,” Mr. Silverman said. “EELI’s complaining is understandable because this interstate agreement works specifically to shield the government’s strategizing and litigation preparation behind closed doors. A lot of interesting stuff can be claimed as shielded under that umbrella of privilege.”

The agreements were part of a coalition of 17 attorneys general — 16 Democrats and one independent — who announced at a March 29 press conference that they would join forces to pursue companies such as Exxon Mobil accused of misleading the public about the consequences of climate change.

Yet the 17 prosecutors who participated in the New York press event are not the same 17 who signed the agreements.

Iowa Attorney General Tom Miller lent his name to the March unveiling of AGs United for Clean Power, but has not signed the Common Interest Agreement, said Iowa Deputy Attorney General Tam Ormiston.

“At this moment, we aren’t a part of the Common Interest Agreement. We haven’t withdrawn and we haven’t gone forward, either,” Mr. Ormiston told The Washington Times.

Meanwhile, a deputy for New Hampshire Attorney General Joseph Foster signed the agreement April 29 even though Mr. Foster did not take part in the March press conference, which featured former Vice President Al Gore.

New Hampshire became involved a week after a rally outside the Statehouse urging Mr. Foster to join the coalition and investigate Exxon Mobil for climate change fraud. The protest was sponsored by NextGen Climate New Hampshire and 350.org.

NextGen has powerful connections, particularly in the Granite State: The New Hampshire arm is headed by Becky Wasserman, daughter of Lee Wasserman, who runs the Rockefeller Family Fund, a key player in funding the climate change movement.

The other states and jurisdictions that have signed on to the Common Interest Agreement are California, Connecticut, the District of Columbia, Illinois, Massachusetts, Maryland, Maine, Minnesota, New Hampshire, New Mexico, New York, Oregon, Rhode Island, Virginia, the Virgin Islands and Washington.

At least three of the attorneys general — Mr. Schneiderman, Massachusetts’ Maura Healey and Claude E. Walker of the Virgin Islands — have issued subpoenas as part of their investigations into Exxon Mobil.

The Virgin Islands subpoenas, which have since been dropped, called for Exxon’s communications with more than 100 universities, professors and think tanks, while the Massachusetts subpoena named a dozen organizations that have challenged the catastrophic view of climate change.

Critics have blasted the cooperative investigation as a free speech violation intended to chill debate, while Mr. Schneiderman has argued that climate change “fraud” is not protected by the First Amendment.

Chris Horner, E&E senior legal fellow, said the document was “far less a proper common interest agreement than a sweeping cloak of secrecy.”

He noted that the agreement includes a provision that allows information to be shared with “other persons, provided that all Parties consent in advance.”

That provision would presumably allow the prosecutors to divulge information about their investigation with environmentalists and climate change groups, which have been active in devising and promoting the strategy to pursue climate change skeptics through the legal system.

“It was drafted not in anticipation of any particular litigation but in obvious anticipation of open records requests,” Mr. Horner said. “We have already revealed they’ve colluded on this use of their law enforcement powers to wage a political campaign with political activist groups and activist lawyers. This is wrong and in the end will be fully exposed.”

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