Washington, D.C. Attorney General Karl Racine sued ExxonMobil, BP, Chevron, and Shell today for allegedly misleading District consumers about the role the companies’ products play in causing climate change. In a move that suggests close coordination, the legal action comes just one day after Minnesota Attorney General Keith Ellison filed a very similar lawsuit.
This case is the most recent iteration within a broader campaign to attack energy companies that is fueled by a coordinated network of trial attorneys, activists, and deep-pocketed donors. Here’s what you need to know:
1. This comes as no surprise.
The District’s lawsuit has been a long time coming, as EID Climate has previously reported.
Prior to pursuing his own legal action, Attorney General Karl Racine had been part of the politically-motivated movement to investigate and prosecute energy producers for many years. In March 2016, he joined the AGs United for Clean Power, a coalition made up of attorneys general that were focused “on key climate change-related initiatives, such as ongoing and potential investigations into whether fossil fuel companies misled investors and the public on the impact of climate change on their businesses.”
It was no great surprise, then, when Racine’s office issued an RFP three years later in February 2019 requesting outside counsel to work on a contingency-fee basis for “legal services in support of OAG’s [Office of the Attorney General] investigation and potential litigation against ExxonMobil Corporation…for potential violations of Consumer Protection Procedures Act or other District laws in connection with Exxon’s statements or omissions about the effects of its fossil fuel products on climate change.”
A few weeks later, Racine took to Twitter to promote the offer to “support OAG’s climate change work”:
This bid for outside counsel has received criticism by legal experts. As explained by Andrew Grossman, an attorney and adjunct scholar at the Cato Institute, 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.’”
Nevertheless, at an event hosted by the Sierra Club’s Washington, D.C. chapter in September 2019, Racine officially announced that his office had identified a potential firm to assist the litigation:
“We are in the process in D.C. of vetting — for potential hiring — a law firm that will help us investigate, and very likely bring an action against, fossil fuel companies, including Exxon.”
The mysterious law firm was revealed two months later, when the D.C. Council unanimously approved the attorney general’s contract with Sher Edling LLP and Tycko & Zavareei LLP to provide support in the attorney general’s “investigation and potential litigation against ExxonMobil Corporation, any other subsidiary, affiliate, or successor-in-interest, or others responsible for potential violations of the Consumer Protection Procedures Act (“CPPA”) or other District laws.”
Recall that Sher Edling is representing the majority of the plaintiffs in the other climate lawsuits, and while Tycko & Zavareei hasn’t appeared on the field until this point, Sher Edling attorney Martin Quiñones used to work for the firm.
2. Despite claims to the contrary, it seems that D.C. and Minnesota’s lawsuits were a coordinated move.
Even though Racine told reporters that he only learned of Minnesota’s lawsuit after it was filed, sections of D.C.’s complaint are eerily similar to the midwestern state’s – which, as a reminder, was announced less than 24 hours prior.
One could argue that this type of climate litigation was trending towards the consumer-focused angle, as evidenced by Massachusetts’s lawsuit filed in October 2019. But that doesn’t explain how entire paragraphs, either word for word or with slight variations, of D.C.’s complaint can also be found in Minnesota’s lawsuit.
Here are three sample side by side comparisons of the complaints:
1) Background on the American Petroleum Institute (despite the fact that API was only named as a defendant in Minnesota’s lawsuit, not D.C.’s):
2) Additional background around a Stanford Research Institute Report:
3) Lastly, near verbatim background related to the Global Climate Coalition:
These are just three of several instances where the complaints are near – or complete – copy/pastes. Unless Racine’s office decided to quickly spruce up its own lawsuit after Attorney General Ellison filed his, how could anyone believe these two complaints were written without any knowledge of the other?
It’s true, however, that one would hope that these attorney generals would learn from each other’s mistakes around sharing complaints. After New York’s securities fraud lawsuit against ExxonMobil crashed and burned in the fall of 2019, the Massachusetts attorney general’s office recently had to rework its own lawsuit against the company, filing an amended complaint that eliminated an entire claim built off of New York’s failed argument.
3. Washington, D.C.’s complaint contains broken-record arguments.
Washington, D.C.’s arguments are pulled from the familiar playbook used by the “[insert company/industry here] Knew”: point to old documents that are publicly available, and then characterize their contents as proof that companies had reached definitive conclusions on climate change in the 1960s and 70s, but then tried to hide them from the public.
As Racine said in a statement announcing the lawsuit:
“For decades, these oil and gas companies spent millions to mislead consumers and discredit climate science in pursuit of profits. The defendants violated the District’s consumer protection law by concealing the fact that using fossil fuels threatens the health of District residents and the environment.”
We’ve been down this road before and the argument doesn’t hold water, especially since many of the documents in question were accessible on the internet. If this was all a grand conspiracy to mislead consumers, one would think the conspirators would put the smallest effort in to cover their tracks by taking such documents down.
In addition, though not cited, various claims in the complaint appear to be based on a 2017 study that alleged ExxonMobil misled the public by publishing newspaper advertorials that denied or sowed doubt about the science of climate change. Published by Naomi Oreskes and Geoffrey Supran, the study was quickly and thoroughly debunked due to an incomplete sampling of data and author bias. An EID review of the advertorials, for example, found that the Harvard researchers frequently graded statements acknowledging climate change as “doubt” and confused ExxonMobil’s opposition to specific climate policies with a rejection of climate science in general.
4. All the regular players are accounted for.
Gang’s all here! The D.C. lawsuit involves two key players in the climate litigation campaign: law firm Sher Edling, LLP and a New York University Law School program funded by Michael Bloomberg.
As previously noted, Sher Edling, which will be providing outside counsel to the D.C. attorney general’s office, is one of the two main law firms representing several of the cities and counties in climate lawsuits that have been filed in several U.S. jurisdictions. The firm has pitched its climate litigation services to government officials across the country hoping to secure a large settlement, which it has yet to achieve.
Before bringing on Sher Edling, however, the D.C. attorney general’s office already had some outside help. The office hired Sarah Kogel-Smucker – who is listed as counsel on the complaint – in 2018 as a “special assistant attorney general” (SAAG) paid for by the Bloomberg-funded State Energy & Environmental Impact Center at NYU, which provides funding for certain attorneys to be placed within attorney general offices to assist in “promoting clean energy.”
The program has been a point of controversy since its creation in 2017, due to the fact that such an arrangement allows Bloomberg access into the inner workings of the state prosecutorial system. As put by American Thinker Deputy Editor Monica Showalter, “… in the manner of privateers of old, he’s offering ‘gifts’ of ‘free’ left-wing lawyers to state attorney generals’ offices with the express purpose of undercutting President Trump on greenie regulations.”
History has indicated that the presence of a Bloomberg fellow in an attorney general’s office is a good indicator of things to come – AKA climate litigation. One SAAG, for example, was part of the New York attorney general’s failed lawsuit, while, more recently, two fellows were named as counsel in Minnesota’s suit.
E&E News’ Jennifer Hijazi noted the D.C. SAAG’s presence back in March, but reported that “the climate counsel team will not be affiliated with [the NYU’s State Energy & Environmental Impact Center].” Although the Center itself may not be “affiliated” with D.C.’s litigation, Kogel-Smucker, whose salary is paid by the Center, definitely is.
Conclusion
Another one bites the dust. Washington, D.C.’s lawsuit is the most recent instance of a politically motivated, so far unsuccessful campaign against energy companies. Should prior cases be any indication, Racine has a long road ahead of him.
