Washington D.C. Attorney General Karl Racine just announced his intention to open an investigation and “very likely” pursue litigation against several energy companies in a Frankenstein’s monster of a lawsuit. Speaking at an event hosted by the Sierra Club last week, Racine encouraged the audience to “look out for developments in the fall,” according to reporting by E&E News.
According to Racine, the investigation will not only scrutinize investor disclosures related to climate change, similar to New York’s , but will also include a “broader climate change aspect,” comparable to against multiple energy companies. This multi-pronged approach suggests that Racine has predetermined that energy producers must be guilty of something, and he plans to hire outside attorneys to help him dig around until he figures out what exactly he wants to allege they are guilty of.
But Racine’s tactics have come under fire in recent months and have revealed a desire to avoid transparency and a willingness to welcome outside donors and undue influence into the Office of the Attorney General (OAG).
DC’s unprecedented bid for outside counsel for climate litigation
In February, 2019 the OAG released a proposal soliciting outside counsel on a contingency basis “for legal services in support of OAG’s investigation and potential litigation against ExxonMobil Corporation…in connection with Exxon’s statements or omissions about the effects of its fossil fuel products on climate change.” According to the proposal, the hired outside counsel will only receive monetary compensation for their work if they negotiate a settlement or are victorious in court.
However, the arrangement also allows for hired counsel to seek outside funding, opening the case up to a phenomenon called “litigation investment,” which allows investors to pay the upfront costs of litigation in exchange for a healthy cut of the eventual settlement or award. Typically, this is used to help a plaintiff without means to pay their medical bills or immediate legal costs.
According to Andrew Grossman, an attorney and adjunct scholar at the Cato Institute, this phenomenon was blocked by most states and bar associations until recently, and is “unheard-of” for financing law enforcement action by government officials. As Grossman explained, such an arrangement opens the case up to special interests that would benefit from the power of an attorney general’s office:
“It is unusual enough that the government is looking to hire outside attorneys to target a particular private party for law enforcement, on a contingency-fee basis. That gives a whole new meaning to ‘policing for profit.’…
“This allows a litigation investor or even a hedge fund to invest in law enforcement, and the investors stand to profit the more aggressively that the private attorneys wield the government’s power.”
In this regard, Racine stands alone as the only attorney general to allow this outside financing in connection with climate litigation.
Racine invites more special interests to the swamp
This is not the only example of Racine’s willingness to solicit outside counsel at the risk of exposing the office to special interests – especially those critical of the energy industry. Racine’s office is coordinating with and receiving assistance from the activist group Citizens for Responsibility and Ethics in Washington (CREW) to pursue litigation against the federal government. CREW is funded by powerful democratic donors like George Soros and is critical of individuals working in the oil and gas industry. While the OAG claims their work is in relation to litigation against the federal government, the hired counsel, attorney Robert B. McKinstry is an environmental lawyer, focused on climate change.
OAG evades transparency laws in effort to hide relationship with Bloomberg litigation task force
The OAG has also evaded transparency around their involvement with the Michael Bloomberg-funded Environmental Impact Center at the NYU School of Law. The Environmental Impact Center embeds seasoned environmental attorneys in Democratic AG offices to pursue litigation and other work related to climate change. As EID has previously noted, the Competitive Enterprise Institute filed a suit against the city for failing to cooperate with open records requests regarding their relationship with the outside institution.
Conclusion
As D.C. signals that it wishes to join the climate litigation campaign, Racine’s comments last week suggest this case will serve as a Hail Mary for the powerful anti-energy interest groups, regardless of their crusade’s potential costs to taxpayers, or the integrity of the OAG offices they’ve convinced to join their ranks.
