Four years after the climate lawsuit pushed by the New York Attorney General’s office was dealt a comprehensive defeat, California is putting forward its own case based on the same debunked theory that completely fell apart for Eric Schneiderman all those years ago – ironically, on New York’s turf and apparently ignorant that the Empire State’s loss even happened.
California’s lawsuit, filed by Attorney General Rob Bonta, follows a pump fake by former AG Kamala Harris and a decade-long pressure campaign from wealthy donors, academics, and fringe activist groups to file litigation. Ironically, the lawsuit filing comes against a backdrop of Californians paying some of the highest prices in the country for gasoline and electricity.
Now, with California joining the flailing nationally-coordinated climate litigation campaign, and Gov. Gavin Newsom set to discuss the case during the opening ceremony of NYC Climate Week, here’s what you need to know:
Catch up more below:
New York’s Case Defeated and Widely Ridiculed
California Attorney General Bonta’s complaint alleges that the U.S. oil and natural gas industry “misled consumers and the public about climate change.” However, that’s the same theory that former New York Attorney General Eric Schneiderman used all the way back in 2015 as the basis for a years-long investigation that he was eventually forced to abandon after several high-profile shifts in legal strategy.
At the start of his failed climate lawsuit, AG Schneiderman first alleged that the defendant had failed to disclose the risk that some of its assets may become “stranded,” or uneconomical to produce under possible future climate policies. Then, in 2017, Schneiderman changed the state’s complaint to examine whether the company misled investors by failing to apply a “proxy cost of carbon” to its business operations.
The complete departure from the original theory even prompted the Washington Post to declare, “New York Attorney General Eric Schneiderman has gotten very far away from where he started in his office’s investigation.”
By the time the case finally went to trial in 2019, Schneiderman was long gone, and his predecessor was handed a total defeat in what New York State Supreme Court Judge Barry Ostrager called a “hyperbolic” lawsuit.
It All Goes Back to La Jolla
California’s lawsuit, New York’s failed case, and the entire climate litigation campaign, were born in the small Pacific beach town of La Jolla, which in 2012 hosted an infamous gathering of academics, attorneys, and activists that plotted the legal, political, and PR playbook for these lawsuits.
The conference was sponsored by the Union of Concerned Scientists, the Rockefeller-funded Climate Accountability Institute, and Harvard researcher Naomi Oreskes, who the New York Times reported to have “conceived” the meeting and was later revealed to be on retainer with Sher Edling, the plaintiffs’ law firm representing climate cases around the country.
One of the key developments from the La Jolla conference was the conclusion that recruiting a “single sympathetic attorney general” would be a key goal of the climate litigation campaign. To that end, activists found their sympathetic chief enforcement officer in then-New York Attorney General Eric Schneiderman, who launched the first climate change investigation in 2015.
Schneiderman and the activists propping up his case recruited other attorneys general to join the cause. In 2016, Schneiderman held a press conference with Vice President Al Gore and other attorneys general announcing the “AGs United for Clean Power” coalition, of which then-California Attorney General Kamala Harris was a member.
Through this group – termed the “Green 20” – state attorneys general including AG Harris strategized about how to investigate and ultimately sue energy companies for damages attributed to the effects of climate change.
The coalition conducted backdoor strategy sessions with activists leading up to the launch. Public records showed that attorney Matt Pawa, who worked hand-in-hand with activists and donors to launch several climate lawsuits against oil and gas producers, briefed the members of the Green 20 the day before the coalition was publicly announced and then was instructed to conceal his involvement from journalists. Pawa also gave an April 2016 presentation to Attorney General Harris and other state attorneys general in April 2016 on “What Exxon Knew – And What It Did Anyway.”
Importantly, AG Harris and many of the other Green 20 members also signed a Common Interest Agreement to keep their legal strategy secret and hide their conversations about climate change litigation from the public. Reuters called it a “previously unknown level of coordination with outside advisers” before the arrangement was revealed through an open records request.
Despite the heavy-handed support from activists, the Green 20 fell apart within months, and subpoenas were quickly withdrawn. In 2016, the Los Angeles Times reported that AG Harris’ office had launched an #ExxonKnew investigation, though her office never confirmed it and nothing seemingly came from the investigation. Three years later, at a Democratic presidential debate, Harris tried to out-activist other candidates on the stage by falsely stating, “I have sued ExxonMobil,” revealing that her investigation was nothing more than a political gesture all along.
In the end, Schneiderman was the only Green 20 AG to have actually filed a lawsuit – which decisively failed – although the office spent over three years rifling through more than four million pages of corporate internal documents.
The State Remains a Hotbed of Litigation Activity
Beyond La Jolla, academics, activists, and plaintiffs’ attorneys have long used California as a home base to finance and coordinate climate lawsuits in the state and across the country.
It was the Los Angeles Times that helped kick start the climate litigation campaign back in 2015 with a series of articles on the energy industry’s understanding of climate change. Later, a funding trail revealed that the newspaper had failed to disclose that the stories were paid for by the Rockefeller Family Fund, presumably to bolster attorney generals’ investigations, prompting a scolding on journalistic ethics from the Columbia Journalism Review.
While the New York Attorney General’s investigation floundered and the Green 20 collapsed, activists honed in on several California municipalities, which became the very first plaintiffs to file public nuisance lawsuits against energy companies in July 2017. Reporting from the Daily Mail later revealed that the strategy behind the San Francisco and Oakland lawsuits was authored and pitched by activist attorney Matt Pawa and paid for by billionaire environmentalist Tom Steyer.
The California municipalities ended up switching attorneys from Pawa’s firm to Sher Edling, a San Francisco based law firm now representing more than a dozen states and municipalities around the country in their climate lawsuits. Although Sher Edling represents states and municipalities on a contingency fee basis where it stands to make tens of millions on any given suit, it also has received millions in dark-money grants to fund its lawsuits against energy companies.
Last year, reporting from Fox News Digital revealed that Hollywood star Leonardo DiCaprio and other wealthy left-wing donors have been funneling money to Sher Edling through non-profit pass-throughs since at least 2017. This funding system was partially orchestrated by Ann Carlson, former UCLA law professor and Biden administration official, and Dan Emmett, a Los Angeles real estate mogul who funds the UCLA program that employed Carlson. News of Carlson’s role in the scheme and her support for radical climate policies ultimately forced the White House to pull her nomination to lead the National Highway Traffic Safety Administration.
A Blow to Californian Workers and Consumers, But a Gift to OPEC
By attacking American energy companies, California AG Bonta’s new lawsuit adds to the slew of policies enacted by California’s legislature that literally starve the state of energy and hamper the economy. Californians already pay 88 percent more for a kilowatt hour of electricity than the national average and almost $2 more for a gallon of gasoline. Additionally, the oil and gas industry provides approximately 366,000 jobs in the state and contributes $152.3 billion in total economic output. Lawsuits like California’s will just diminish the role of American energy on the national and global stage and raise costs for consumers.
Shrinking the role of American energy doesn’t hurt everyone, though; OPEC+ should be thrilled. Because California will still need oil and natural gas, exemplified by the state’s decision to expand a large natural gas storage facility in Aliso Canyon just a few weeks ago, it will simply continue to rely on foreign imports, primarily from OPEC+ nations. Over the past 40 years, California’s oil consumption has remained steady, but the state has gone from relying primarily on U.S. production to depending on foreign imports from state-owned oil companies. Governor Newsom, who has praised AG Bonta’s climate lawsuit, has previously acknowledged the irony of cutting oil production in the United States while increasing reliance on foreign imports:
“We’re making up for a lack of domestic production from Saudi Arabia, Ecuador, and Colombia, and that’s hardly an environmental solution when you look globally.” (emphasis added)
To the Governor’s point, climate litigation does nothing to promote environmental progress. Phil Goldberg, Special Counsel to the Manufacturers Accountability Project pointed out this contradiction in response to California’s filing:
“The challenge of our time is developing technologies and public policies so that the world can produce and use energy in ways that are affordable for people and sustainable for the planet. It should not be figuring out how to creatively plead lawsuits that seek to monetize climate change and provide no solutions.” (emphasis added)
Bottom line: As California continues to be the largest consumer of jet fuel and second-largest consumer of motor gasoline in the nation, this new lawsuit couldn’t be more hypocritical. Rather than giving in to activist groups behind these lawsuits and shaming the industry that powers homes and vehicles, policymakers in the state should be reversing their slew of policies that impede on consumers’ ability to access reliable and safe energy.
