Rhode Island has been exercising an oversized influence on climate change litigation that costs taxpayers and attempts to inhibit free speech.
In 2018, Rhode Island became the first state to file climate change litigation against 21 fossil fuel producers, a move that directly assaults the free speech rights of those who dared to voice a dissenting opinion on climate policy.
Sheldon Whitehouse, the state’s Democratic U.S. senator, joined with Governor Gina Raimondo and Attorney General Peter Kilmartin to announce the suit at a press conference last July. Rhode Island’s litigation closely mirrors lawsuits that have been filed by 14 municipalities across the U.S.
Although climate change litigants have repeatedly failed to successfully make their case in court, state attorneys general persist in reloading the same arguments.
Just a few weeks after Rhode Island announced its own lawsuit, U.S. District Judge John Keenan dismissed a similar climate change case brought by New York City against ExxonMobil, Chevron, ConocoPhillips, BP, and Royal Dutch Shell. That was but the latest in a string of defeats for environmental activists and their allies in government. Rhode Island’s suit was filed a week after a federal judge dismissed similar cases in San Francisco and Oakland against the same companies. So, it would seem that Rhode Island’s prospects for success are not particularly bright. But history demonstrates that lawsuits filed under the banner of climate change and environmental protection can influence public policy and enrich attorneys regardless of how they ultimately turn out in court.
Just last week, the U.S. Supreme Court gave Massachusetts Attorney General Maura Healey the greenlight to solicit and review documents from ExxonMobil in pursuit of determining whether the energy company misled its shareholders and the public about the relationship between fossil fuels and climate change.
There’s an obvious problem here.
The New York attorney general’s office could not produce any evidence against ExxonMobil despite spending more than three years on an identical investigation. ExxonMobil generated more than four million pages of documents and supplied 18 witnesses in response to inquiries from New York’s attorneys, and yet the state’s chief law enforcement officer failed to uncover a “smoking gun.” Does Healey really expect to find anything new that would be damning to the company?
Healey’s counsel has given some insight into what her actual goals might be. Apparently, this is all about applying pressure against ExxonMobil to compel the company to include disclaimers in its advertisements and at gas stations in Massachusetts warning consumers about the dangers of climate change. Moreover, if Healey can rationalize new legal action, this would also produce new revenue streams for government attorneys at taxpayer expense. She could also intimidate her critics into silence, for fear that they too would be targeted for daring to disagree with these politicians who wield tremendous — and largely unchecked — power.
This does not bode well for the free speech rights.
In fact, it was Rhode Island’s own Sheldon Whitehouse who, back in 2015, first suggested using the Racketeer Influenced and Corrupt Organizations Act, widely known as RICO, to prosecute energy companies and the scientists whose research was funded by them or is perceived to be supportive of the industry. Whitehouse also led the charge against Andrew Wheeler, President Trump’s pick to head the EPA, during last week’s Senate confirmation hearing. Whitehouse inquired about Wheeler’s relationship with a coal industry executive and criticized the nominee for showing support for fossil fuels. Whitehouse had nothing to say about how fossil fuels raise living standards and benefit the people who he claims to represent. Whitehouse is hardly alone in Rhode Island when it comes to organizing potential legal action against energy companies.
It was Kilmartin, the state attorney general, who entered into a “secrecy pact” with other state attorneys general for the purpose of making an end-around on open-records laws. The idea here was to resist the release of documents relevant to their “AGs United for Clean Power” campaign.
Rhode Island, Massachusetts, and New York were all part of a coalition of state attorneys general who pursued legal action against energy companies. The coalition known as the Green 20, which came together during a March 29, 2016, meeting in New York, has since unraveled. However, Chris Horner, a senior fellow with the Competitive Enterprise Institute, has obtained records through open records requests that show state attorney general offices continue to partner with environmental groups for the purpose of exploring potential action against fossil fuel companies. A separate, but related report from Horner demonstrates that state governors are complicit in similar efforts.
Kilmartin passed on suing energy companies in 2016 after his staffers were pitched on the idea by Matt Pawa, an attorney with plaintiffs’ firm Hagens Berman, at the March 29, 2016, Green 20 meeting, though Kilmartin’s office later signed on to a “Climate Change Conference Common Interest Agreement” with 16 other state attorneys general to keep their discussions hidden from the public.
Two years later, Kilmartin changed his mind and filed a lawsuit against a handful of energy companies, but retained the services of Sher Edling, a San Francisco-based law firm that directly competes with Pawa’s in the climate litigation-space. Why did Rhode Island choose the newly formed Sher Edling over Pawa, who was already representing the state in MTBE litigation against many of the same companies?
Indeed, 2018 was a rough year for Pawa. Though Pawa was hired to represent New York City, King County, San Francisco, and Oakland in their related climate lawsuits, Sher Edling was signed by twice as many municipalities to represent them in their climate cases. And after Pawa saw three of his cases dismissed by federal judges, San Francisco and Oakland fired and replaced him with Sher Edling.
Those snubs sting for Pawa, who had partnered with Sher Edling’s Vic Sher on MTBE public nuisance litigation in New Hampshire in 2010. Sher and Pawa later argued with each other over the division of attorneys’ fees from the case, with a panel ruling that Sher had breached his agreement with Pawa. Sher refused to comply with the panel’s decision and countersued Pawa in 2014, though his case was eventually dismissed. In many ways, Kilmartin, Pawa, and Sher are all taking inspiration from a process Whitehouse started back in 1999 when he was Rhode Island’s attorney general and advanced a public nuisance complaint against paint companies that was based on many of the same legal arguments at work in contemporary climate change litigation. The Rhode Island Supreme Court dismissed Whitehouse’s complaint. But it still proved costly to the private sector, which is the whole point of this exercise.