Increasingly, societal institutions have enlisted as warriors in ideological and economically predatory litigation campaigns. These campaigns are typically coordinated among the trial bar and ideologically committed donors and activists. The “climate” entrants are particularly furious, and next week they make their way to the U.S. Supreme Court.
The question on Tuesday in Mayor and City of Baltimore v. BP p.l.c. actually has nothing to do with climate change, but is jurisdictional. Nonetheless, by settling whether these cases may be tried in local courts which the plaintiffs clearly see as their hope to provide the desired windfall, the court’s decision could make or break what has become a climate litigation industry.
Practitioners include a breadth of non-profit groups — both issue-advocacy and charitable foundations — as well as universities, and private tort law firms. The most concerning aspect of that effort has been participation by privately hired activist attorneys placed in the offices of progressive state attorneys general by a major political donor, Michael Bloomberg. It smacks of renting the offices.
This litigation campaign’s objectives are several, and include silencing dissenting voices on key issues of national policy; compelling regulation that has eluded advocates through the legislative and rulemaking processes; and obtaining from the targeted parties financial settlements contemplated to be in the hundreds of billions of dollars, which settlements would be used in part to further underwrite the advocates’ and their partners’ efforts, along with the condition that the litigation targets agree to advocate for the larger policy agenda.
The plaintiffs’ team are regularly found admitting these things, only to vehemently deny them when specifically asked whether this is an attempt to use the courts as substitute policymaker for a failed policy agenda that they simply have failed to sell to the public.
“Lawfare is an ugly tool by which to seek the[se] environmental policy changes,” the Texas Court of Appeals wrote in a June 2020 opinion in a case central to fighting this blitz, County of Santa Cruz, et al. v. Exxon Mobil Corp., That court disparaged ”enlisting the judiciary to do the work that the other two branches of government cannot or will not do to persuade their constituents that anthropogenic climate change (a) has been conclusively proved and (b) must be remedied by crippling the energy industry.”
The Baltimore case will be heard on the last day of the Trump administration. This was fortuitous scheduling as Trump’s solicitor general requested time to argue, signaling strong support for the defendants’ position.
In a further sign of the matter’s importance, the Biden-Harris campaign pledged to “instruct the Attorney General to … strategically support ongoing plaintiff-driven climate litigation against polluters.” However improper, it’s clear that the Biden-Harris administration would do so if they believed they can get away with it, only adding to the urgency of this case.
As a senator on the Judiciary Committee, and clearly with City of Baltimore in mind, Kamala Harris accosted then-Judge Amy Coney Barrett with sneering questions about climate change at Judge Barrett’s Senate confirmation hearing.
On the other side, a group I advise and represent on numerous matters, Energy Policy Advocates (EPA), filed a friend of the court brief in the Baltimore case to provide the court with emails obtained under public records laws which reveal the true nature of this climate litigation industry.
Its recruiting team tours the country urging local government officials to hire the plaintiffs’ tort firm to file a “climate” lawsuit on their behalf. Emails show prospective litigants are enticed by the offer to represent them without charge. That is, if they sign lucrative contingency fee agreements under which the plaintiffs’ tort law firms receive a sliding scale of tens to hundreds of millions of dollars of any verdict or, what they seem to really want, any settlement.
The EPA cited one series of emails obtained from Fort Lauderdale, Florida, laying out the network of public-facing groups joining the law firm in its pitch. These include the Institute for Governance & Sustainable Development (IGSD), and a group called EarthRights International, all brought in by a politically connected lobbyist to broker the introductions.
It also recently became publicly known leading climate-tort firm has received millions of dollars in grants from at least one left-wing charitable foundation. This raises flags because, as one law professor noted, “it is reasonable to surmise that” the grants are related to the contingency-fee lawsuits.
This is a bad look, and it soon turned out that the very same IGSD, last seen in those Florida recruiting emails, had become a new conduit for paying “climate nuisance” tort firms.
Naturally, an official with climate-plaintiff Rhode Island confessed to using its suit to obtain a “sustainable funding stream” for its spending ambitions, but the legislature wouldn’t provide. One can see how this industry has taken off, there seems to be nothing to lose. That is, other than the benefits of abundant, affordable and reliable energy that both this litigation industry and its allied Green New Dealers seek to destroy.
In very short, next week’s Mayor and City of Baltimore case is really about whether the abuses of this coordinated campaign between government, donors, ideologues and the trial bar will plague us and our economy for years. Instead, if the Supreme Court does the right thing, the shakedown will be shut down, and policy will be left to the democratic process.
• Chris Horner is an attorney in Washington, D.C., and a member of the board of the public interest law firm Government Accountability & Oversight, P.C.