Activists shopping around climate litigation to municipalities in Florida have struck out again, despite years of lobbying, advertising, and publishing reports projecting the costs of climate mitigation to support their efforts. The Sun Sentinel reports that Key Biscayne, Fla. has decided not to pursue climate litigation, joining the ranks of Fort Lauderdale, who we learned declined a similar proposal in June.

According to the Sentinel, Key Biscayne, a town of less than 15,000, turned down an offer to file suit after being approached by “a group from California,” due to concerns about costs for the small community. Former Mayor Mayra Lindsay told the Sentinel that:

“Ultimately, taking on such a cost was hard to justify. We had other lawsuits going on.”

Though Lindsay doesn’t identify the “group from California,” public records requests show that San Francisco-based law firm Sher Edling, LLP on filing climate litigation against energy producers. Sher Edling already represents several plaintiffs on a contingency fee basis, but none of the plaintiffs have won their case and several cases are on appeal after being dismissed by federal judges.

In November 2018, the City of Fort Lauderdale received a presentation by Marco Simons, the general counsel of EarthRights International (ERI) – a Washington, D.C., based non-profit leading the charge in climate suits throughout Colorado. ERI has been active in trying to recruit other cities and counties to file their own lawsuits against energy producers for alleged damages related to climate change.

During the presentation, Simons stressed that ERI would take on all the financial risk, essentially using the municipality as a conduit to bring the litigation forward via a public entity. This is the same agreement ERI has with the Colorado municipalities it is representing.

Simons: “At the litigation stage it would be necessary to join together with co-counsel from private firms. They would be interested in pursuing this on a contingency fee-basis… And it would be a combination of our pro-bono representation , contingent fee representation, again with no up-front cost to the city and that’s the model that’s been done in all of these cases so far.”

Under such a model, the city doesn’t bear any upfront costs, but would have to pay a substantial amount of any settlement or damages to the private law firm partner. Public records revealed earlier this year that ERI brought Sher Edling into a meeting with Ft. Lauderdale officials. Sher Edling and other private law firms stand to take as much as 25 percent of any award, plus attorneys’ fees, potentially totaling hundreds of millions of dollars.

Who is Picking Up the Tab of Litigation Costs?

Only after being pressed with questions by officials does Simons admit that there was ultimately still a financial risk involved for taxpayers:

Commissioner: “…obviously when we hear [the litigation is] done on a pro bono basis or on a contingency fee-basis and there’s no expectation from you to expect us to pay any costs or attorneys, what about the possibility of us having to pay the cost of the opposing party should we lose in court?”

Simons: “The average costs are always a possibility, that’s a possibility in the opioid litigation, that’s a possibility with any litigation. We are exploring ways to minimize the cities’ exposure there.” (emphasis added)

Any Progress Made?

So far several similar lawsuits have been dismissed, while others are stuck in legal battles about the venue in which the cases should ultimately be heard.

Despite two years of effort to try to persuade a locality in Florida to file suit, supporters of activist litigation have come up empty-handed. ERI has also approached the cities of Miami Beach and Miami about joining in on the climate litigation, though the status of those overtures is unknown. While it’s not clear whether ERI and their cohorts will ever be able to convince Floridians to join in on the climate litigation, these California and Washington D.C.-based groups remain persistent, continuing their descent into Florida cities with the hopes of finding stand-in plaintiffs to carry out their political agendas.