Michael Burger – the Executive Director of Columbia University Law School’s Sabin Center for Climate Change Law and a vocal advocate for public nuisance climate lawsuits against energy producers – has officially joined the crew of lawyers pursuing these frivolous cases in court. In February, Burger joined the law firm Sher Edling (which is representing the plaintiffs in several of the ongoing climate nuisance cases) as “Of Counsel,” all while retaining his position as the head of the Sabin Center. This move not only exemplifies the sophisticated coordination between the climate litigation campaign’s most fervent activists, but also potentially calls into question the ongoing objectivity and independence of Burger’s academic institution.

A Long History of Supporting Climate Litigation

Both Burger and Columbia University have a long history of supporting and contributing to the public nuisance climate cases. In 2015, Columbia’s School of Journalism published an investigative series on ExxonMobil in coordination with the Los Angeles Times. This work was later cited by Sher Edling in one of its climate cases filed against energy producers in 2017. At the time when the series was first published, neither Columbia’s fellowship program, nor the LA Times, disclosed that that their investigation was funded by the Rockefeller Brothers Fund and Rockefeller Family Fund, two of the major organizations behind several different aspects of the climate litigation campaign.

Columbia’s Burger has also served as an advocate for the proliferation of these lawsuits in the press, calling these cases the “wave of the future” and suggesting that numerous cases would be necessary “to put real pressure on industry to get behind significant greenhouse gas regulation.” His strong support comes despite these lawsuits’ hefty bill for taxpayers and continued inability to succeed in the courtroom. In fact, by his own admission Burger believes that these cases would likely fail if they reach the United States Supreme Court, and that the goal of these lawsuits is to extort settlements from energy producers in an effort to force them to change their business model. This rhetoric severely departs from the narrative that these lawsuits seek to aid communities in their climate change mitigation efforts.

Before joining Sher Edling Burger filed several amicus briefs in support of the law firm’s climate cases, including those brought by Oakland and San Francisco, Baltimore, and San Mateo (consolidated). In these amicus briefs, Burger was required to indicate that he had no formal affiliation with Sher Edling, writing “no party’s counsel authored this brief, and no party, party’s counsel, or person other than amici or its members or counsel contributed financial support intended to fund the preparation or submission of this brief.”

Potential Financial Conflict of Interest

Burger’s new position at Sher Edling should prevent him from coordinating any additional amicus briefs in support of the cases, but what does it mean for his colleagues at Columbia’s Sabin Center? As an employee of Sher Edling working directly on at least one of the climate lawsuits (Burger is listed as an attorney for Honolulu in their recently filed complaint), he stands to personally benefit financially from any support provided by the Sabin Center.

Thanks to Sher Edling’s strategic use of contingency fee agreements in its climate cases, Burger could receive millions of dollars if Honolulu’s case were to result in a settlement or victory for the plaintiffs. For example, the firm’s agreement with San Francisco promises 25 percent of the first $100 million awarded, 15 percent of the next $50 million and 7.5 percent of anything earned above $150 million.

Conclusion

Now that Burger is legally and financially tied to the public nuisance climate cases against energy producers, it begs the question whether this new affiliation casts a shadow on the impartiality of his work as the Director of the Sabin Center. Should everything produced by this academic institution now be viewed as an extension of Sher Edling? Does this change affect the Center’s credibility as a whole?

One thing is certain: If Burger continues to be called upon by the press as an academic source on climate liability cases across the country, his new role as counsel to these cases must be transparently disclosed to the public.