Last month, three Colorado municipalities – the City and County of Boulder and the County of San Miguel – filed a lawsuit against ExxonMobil and Suncor, blaming them for the impacts of climate change. David Bookbinder, chief counsel for the Niskanen Center, a Washington D.C.-based libertarian think-tank, is representing the plaintiffs. But an investigation by Energy In Depth suggests Bookbinder may have misled the public on the nature of his involvement.

When Did Bookbinder Join?

While Boulder is the first lawsuit Bookbinder is transparently involved in, he has been an active voice on the climate litigation issue ever since the first cases were filed in three California municipalities last July, publishing blog posts and appearing in articles on the cases with some frequency. What is curious, however, is that in an interview with Denver-based Western Wire last month, he spoke as though he had no affiliation with, nor significant knowledge of, any of the other climate lawsuits. A quick Google search reveals that Bookbinder has been a consultant to the climate lawsuits for some time.

In an article published by Western Wire earlier this month, Bookbinder is quoted as saying he couldn’t recall exactly when the Niskanen Center got involved with the Boulder lawsuit and that he didn’t “really know much more about the other cases.” But he had written a detailed blog for the Niskanen Center after San Francisco and Oakland filed their own lawsuits against fossil-fuel producers back in September 2017. In that blog he thoroughly discussed not only those two lawsuits, but also the other three that were filed by San Mateo and Marin Counties and the city of Imperial Beach back in July 2017. Indeed, his familiarity with the other cases is likely why he was asked to join the lawsuits.

David Bookbinder at the “climate tutorial” for the San Francisco and Oakland cases on March 21, 2018.

Even more puzzling, though, is an op-ed Bookbinder published on Vox.com last December in which he discloses he has “been consulting with lawyers working on the nuisance cases,” which he identifies elsewhere in the piece as the lawsuits filed by the California municipalities. It is hard to believe Sher Edling or Hagens Berman – the two law firms representing the municipalities in the other cases – would employ a consultant who doesn’t “really know much more about” their cases.

But wait, there’s more.

Bookbinder was also spotted at the March 21 “climate tutorial” hearing in the San Francisco and Oakland cases. His presence was confirmed by the Keeling Curve Prize, which tweeted that their “advisory council member David Bookbinder was in the courtroom” for the hearing. Presumably his clients were hoping that he might know a little more about the “other cases” after he flew across the country to spend five hours in a courtroom.

Climate Lawsuit Not About Climate?

Beyond misrepresenting the timing and degree of his involvement in the climate litigation, Bookbinder also misled Western Wire about the nature of his involvement. He told the outlet that the Boulder lawsuit is an issue of property rights and “not climate work.”

But the website set up by the Colorado municipalities makes no mention of property rights (the page is titled “climate lawsuit” and the URL includes the word “climate” three times). The FAQ document provided by the municipalities never once mentions “property rights” and the only mention of “property rights” in the press release is in a quote provided by Bookbinder, while “climate” is mentioned 26 times. Weird!

Nevertheless, Bookbinder and the Niskanen Center have repeatedly emphasized that the climate lawsuit is actually about property rights. This begs the question of why the municipalities and EarthRights International would bring him in as outside counsel, considering his legal expertise is largely in climate policy.

For example, Bookbinder earned a name for himself as the Sierra Club’s Chief Climate Counsel. In fact, Bookbinder is one of the only people in the country to have ever held the title of “Chief Climate Counsel” for any organization. He also taught courses on “Environmental Litigation” and “Environmental Law and Science” at multiple institutions. Further, his bio for the Niskanen Center is chock-full of climate-related experience, but makes no mention of his work on property rights. Even the blog he wrote that labels the Boulder suit as a property rights issue is housed under the “Climate & Energy Policy” section of Niskanen’s website.

To Bookbinder’s credit, he didn’t always focus exclusively on environmental issues. Before joining the Sierra Club, he was an attorney for Paul, Weiss, Rifkind, Wharton & Garrison where he worked on “securities, mergers and acquisitions, product liability, white-collar criminal, intellectual property and other matters,” but property rights issues do not appear to have been a major part of his portfolio.

Niskanen’s Anti-Oil and Gas Funding

There is also evidence to suggest that Bookbinder and the Niskanen Center have been misleading when it comes to who is funding their involvement in the Boulder lawsuit.

Bookbinder disclosed that he was serving as co-counsel in the Boulder lawsuit at a panel discussion on the California climate lawsuits at the American Enterprise Institute on the day the Boulder lawsuit was announced. While he said he was working for the plaintiffs pro-bono, the Rockefeller Brothers Fund, which has admitted to funding efforts to investigate and bring charges against the oil and gas industry, had very recently given a $200,000 grant to the Niskanen Center in February 2018 “for its climate program.”

Similarly, the center also received three grants from the anti-fossil fuel Hewlett Foundation in 2017 totaling $750,000, $300,000 of which was earmarked in a November 7, 2017 grant for Niskanen’s “climate policy and litigation program.”

Yet, when Western Wire asked Bookbinder about this funding, he responded, “that’s not for this… there may be litigation attached to climate work but we don’t think of [the Boulder case] as climate litigation.” That’s an odd stance to take, because the first claim in the Boulder lawsuit states that the “Defendants’ actions have altered the climate in Colorado.”

“Screw with the Fossil Fuel Companies”

Bookbinder’s Vox.com op-ed, referenced above, opens with a sub-headline that reads: “The worst way to do policy is through the courts.” But as noted before, Bookbinder later admits that he’s already consulting on efforts to enact policy in “the worst way.” He concludes his op-ed with this thought: “…with the government unwilling to deal with climate issues, lots of clever lawyers are busy thinking up new and exciting ways to screw with the fossil fuel companies.” (emphasis added)

That’s what these lawsuits are really about. The purpose of these climate liability lawsuits is not, as the plaintiffs claim, to mitigate the costs of climate change and make fossil fuel companies pay “their share.” Their purpose is to “bring down the fossil fuel companies,” according to one climate activist. New York City Mayor Bill de Blasio says his climate lawsuit is designed to “help bring the death knell to this industry.” And now David Bookbinder, a co-counsel to the Boulder suit, has made clear that the lawsuits are a fun new way “to screw with the fossil fuel companies.”

Bookbinder’s comments flew under the radar at the time, but some folks active in the climate policy discussion seem to have taken notice.

In addition to working for the Niskanen Center, Bookbinder also served as a senior policy advisor at the prestigious Climate Leadership Council (CLC), an international policy organization that brings together corporations, thought leaders, and environmentalists to promote a carbon tax and dividends plan as the most effective solution to combat climate change.

The group’s proposal, which has attracted the support of everyone from Michael Bloomberg and the Nature Conservancy to James Baker and George Shultz, two former secretaries of state under Republican presidents, was seen as one of the best options for controlling greenhouse gas emissions on a national level. But a key provision in the CLC’s plan protected companies “from lawsuits over their contribution to climate change.”

That could explain why Bookbinder was removed from the CLC’s website shortly after announcing his role as co-counsel in the lawsuit. A cached version of the organization’s website shows him as having been publicly affiliated with the group as recently as April 4, 2018 – just two weeks before the Colorado municipalities’ lawsuit was filed. There has been no official announcement on Bookbinder’s departure, but the timing is suspicious.

Conclusion

David Bookbinder’s history with climate litigation stretches back at least 15 years. In 2003, during Bookbinder’s time as Chief Climate Counsel, the Sierra Club backed ten states that brought a lawsuit against the U.S. Environmental Protection Agency for Bush administration’s decision that it does not have the authority to regulate emissions of the greenhouse gasses that cause climate change (Massachusetts v. EPA). Commenting on the suit, Bookbinder said, “If the United States is ever going to regulate greenhouse gases, it will start with a victory in this lawsuit.”

It would seem that Bookbinder has tried to have it both ways on climate litigation for years. He has called it the “worst way to do policy” and in the same article admitted to consulting on climate lawsuits. He has endorsed and possibly co-written a carbon tax plan that would protect companies from climate lawsuits and then joined a set of climate lawsuits roughly a year later, though he has insisted his involvement is limited to a focus on property rights.

Only one thing can be said for sure – David Bookbinder has some explaining to do.