On Tuesday, the City of Annapolis, Maryland announced it filed a public nuisance climate change lawsuit against major energy producers and one trade association, with city officials acknowledging they began pursuing the case after being approached by a well-known “Keep It In The Ground” activist group funded by the Rockefellers.
In fact, this activist group connected the Annapolis elected officials with the California law firm it eventually hired to represent the city in its lawsuit. This marks the latest in a number of climate lawsuits against energy producers driven by activist efforts, what has so far been a losing litigation campaign.
Chesapeake Climate Action Network Pitched Climate Lawsuit
During Tuesday’s press conference in response to a question raised by a reporter, Annapolis Deputy Manager for Resilience and Sustainability Jackie Guild disclosed that the city was approached about bringing a climate lawsuit by the Chesapeake Climate Action Network, which seemingly pushed the city toward hiring Sher Edling as outside counsel for its lawsuit:
“I also received information from my contacts, the Chesapeake Climate Action Network, who is busy with pushing towards energy efficiency and clean fuels. They asked me if I knew about these lawsuits and how they were progressing and I had some knowledge, and they thankfully provided me with some additional knowledge. I asked them about different lawsuits they were aware of and I started exploring some of the information they provided, and the law firm Sher Edling appeared again and again with the lawsuits that have been brought by the twenty-four other states and cities and counties in the U.S. that are suing the fossil fuel industry, and they by far have the most experience.” (emphasis added)
This admission further supports the idea Annapolis’s case, and indeed the broader climate litigation campaign, is being driven by a network of activist groups, plaintiffs’ attorneys, wealthy foundations who are leveraging governments to achieve their political and financial goals in a nationally coordinated campaign. The Chesapeake Climate Action Network has previously been tied to the actors and cases in the climate litigation campaign and attempts to stop traditional energy production.
The group was founded in 2002 with a seed grant from the Rockefeller Brothers Fund, one of the longtime key funders of the broader effort. More recently, in 2019, the group signed onto an amicus brief in support of the City of Baltimore’s own climate lawsuit. The brief was also signed by some of the key players in the climate litigation campaign including the Center for Climate Integrity, the Union Of Concerned Scientists, Benjamin Franta, Naomi Oreskes and Geoffrey Supran.
It’s not the first time an activist group has convinced an elected official to file a climate lawsuit. Last year, the executive director of Minnesota-based Fresh Energy said on a public webinar that his group and the Center for Climate Integrity convinced Attorney General Keith Ellison convinced to file a climate lawsuit:
“I want to first just acknowledge that [Center for Climate Integrity] is a national organization that leads on this kind of climate liability, climate litigation. And they brought this concept to Fresh Energy in the fall of 2018, and Fresh Energy helped put this idea in front of Attorney General Keith Ellison shortly after he was sworn in.”
After the lawsuit was introduced, the Capital Gazette then reported that Anne Arundel may take up a similar climate lawsuit with the help of Sher Edling:
“Anne Arundel County is also considering similar litigation against oil and gas companies, County Executive Steuart Pittman said Tuesday during his weekly media briefing. Pittman pointed to the county’s 130 miles of coastline, parts of which are also at risk to rising sea levels. The county will retain Sher Edling as well in their lawsuit.”
Sher Edling Angling for Big Payout
While Annapolis stated in its initial press release that it would be retaining Sher Edling as the city’s outside counsel for its climate lawsuit, details beyond that their working relationship will be bound by a “contingency fee agreement” were left conspicuously absent. This led reporters to ask about the specifics behind the agreement during Tuesday’s press conference. In response to a question inquiring about the city’s financial contract with Sher Edling, City Attorney Michael Lyles shared that the law firm’s payout would depend on the details of any favorable judgement decided in the case:
“[Sher Edling’s] on a sliding scale from 25% to 16-27% depending on the recovery, so the higher the recovery, the lower their percentage. It varies between 25% at the high and 16% at the low.”
While Lyles’ answer leaves several details of the city’s agreement with Sher Edling unknown, based on other agreements that municipalities have entered into with the law firm over climate litigation that have been made public, Sher Edling stands to make millions of dollars. In Minnesota, for example, documents obtained via public records requests revealed that Sher Edling’s agreement with the attorney general in its own climate lawsuit agreed that the firm would be “paid 16.67% of the first $150 million recovered, and 7.5% for any portion greater than $150 million.”
Further, while a contingency fee agreement means that the law firm would only receive a financial reward if the lawsuit is successful, another question was raised at the press conference concerning the prospect that the city could face fees, should the case be unsuccessful. In response, Lyles stated that Sher Edling will take on the “hard costs” of representing the city, while Annapolis – funded by everyday tax payers – would incur some “soft costs,” including city staff’s time and attention:
“We expect indirect and soft costs, time and attention away from our primary duties as we deal with this case I’m speaking about the other departments. The Office of Law here where are arrayed is in such a way that we have a primary point of contact lawyer who will be doing most of the work along with myself but the other departments there will be some time away from primary duties, but we expect these soft costs to be absorbed in what everybody is already doing.” (emphasis added)
Lyles would also not commit to making Sher Edling attorneys publicly available to discuss the case, despite the firm’s representation of Annapolis taxpayers in the lawsuit.
Bypassing the City Council
During the press conference, reporters also asked why the Annapolis City Council had been seemingly left out of the loop and “why weren’t they given more notice” about the city’s decision to file the lawsuit.
Annapolis Mayor Gavin Buckley defended this lack of transparency as an “executive process,” while also admitting that the city seemingly doesn’t have a fully defined plan when it comes to the case:
“We’re working the answers out as we go along, so they’re in the process now. There has to be a point where you tell people, but at the same time when you do these things you can’t play your hand. We wanted to be kind of—what I see as kind of the front of the line early in. You’re going to see this develop all throughout the country now. Many municipalities are looking for the same answers that we’re going to. So, we have time to involve the council, and they will be involved, and we enter many lawsuits in this city without the council. It’s the process. It’s an executive process.” (emphasis added)
This lack of transparency already appears to be undermining’s Annapolis’ case with the public, according to the Capital Gazette:
“After initially feeling enthusiastic about the news, those feelings diminished Tuesday morning, Alderwoman Elly Tierney said, when constituents flooded her inbox with questions about the litigation. She had few answers.
“‘Residents are smart, and they pick up on it, and they say, ‘Wait a minute, you’re spending tax dollars for two months working on this,’’ said Tierney, D-Ward 1. ‘You have to put aside other stuff. So, it does involve the council. … And we’re in the dark about it. It just doesn’t sit well.’”
Litigation – Anywhere – Isn’t About Solving Climate Change
In one of the most revealing moments from the press conference, Buckley said in his opening statement that Annapolis’s climate lawsuit isn’t about providing solutions to problem at hand:
“This lawsuit is not trying to solve climate change; it is designed to help Annapolis survive climate change.”
It’s a talking point that Buckley may have picked up from Vic Sher, the lead partner at Sher Edling, who said back in 2018 as the climate litigation campaign was picking up steam:
“These are state law doctrine, and I agree very much that these cases are not about stalling climate change. They’re about damages that particular communities have to pay, the cost of localized, particularized impacts on these communities.” (emphasis added)
These statements makes it clear that the Annapolis lawsuit, and the others like it, are really about forcing major energy companies to stop producing traditional energy while generating huge financial paydays for the activists and attorneys involved.
In stark contrast, major American energy companies and trade associations are working everyday to develop new technologies and improve efficiencies that will reduce emissions and address climate change, including carbon capture and storage, ending routine flaring, improving emissions efficiency, and building new system to prevent, detect, and repair methane leaks.
