In a moment of refreshing honesty – or perhaps a Freudian slip – a major player behind the climate litigation campaign admitted that the goal is not to win lawsuits. Instead, the campaign is part of a politically motivated effort to gain access to, and publicize, internal documents from energy companies in an attempt to bring further litigation – despite the four million documents already turned over in the New York attorney general’s case which showed no evidence of a “smoking gun.”

As Richard Wiles, the Executive Director of the Center for Climate Integrity (CCI), a project of the Institute for Governance and Sustainable Development (IGSD), told Bloomberg Law in September, the most recent climate lawsuits are now also targeting trade groups like the American Petroleum Institute (API) so that more documents can be obtained:

“The documents that they [API] might turn over could lead you many places that the individual companies’ documents might not.”

Wiles should know, considering he is being paid by the same group, IGSD, that is bankrolling the Hoboken, New Jersey lawsuit filed at the beginning of September, while Pay Up Climate Polluters, a project of CCI, campaigned for officials in New Jersey (and other states) to file a lawsuit. According to a resolution adopted by the Hoboken city council in January, IGSD agreed to foot the bill for the legal costs associated with the city filing a lawsuit against API and five major energy producers:

“WHEREAS, it is proposed that the fees will be paid by a third-party, the Institute for Governance & Sustainable Development (“IGSD”), but that the City will not be responsible in the event that IGSD fails to pay said fees for any reason;” (emphasis added)

This hunt for more internal records comes on the heels of the New York attorney general failing to prove that ExxonMobil misled or deceived investors and consumers over climate change impacts – despite over three years of investigation and the company turning over more than four million pages of documents in the process.

“Following twelve days of trial and testimony from eighteen witnesses, the Court finds that the Office of the Attorney General has failed to establish by a preponderance of the evidence that ExxonMobil either violated the Martin Act or Executive Law § 63(12) in connection with its public disclosures concerning how ExxonMobil accounted for past, present and future climate change risks…The trial was the culmination of three and one-half years of investigation and pre-trial discovery that required ExxonMobil to produce millions of pages of documents and dozens of witnesses for interview and depositions.” (emphasis added)

Discovery – Not Solutions – Has Always Been the Strategy

Unsurprisingly, document discovery is yet another strategy that’s straight out of the La Jolla playbook. The infamous La Jolla conference in 2012 was organized so that activists and plaintiffs’ attorneys could devise a political, legal, and public relations strategy for the climate litigation campaign. In fact, the summary from that conference notes attendees discussed this strategy as a key piece to bringing forward these “expensive” lawsuits:

“While it is never an easy decision to bring a lawsuit, they noted, litigants must understand that if they pursue such a course they should expect a protracted and expensive fight that requires careful planning. Among the issues discussed were the importance of seeking documents in the discovery process as well as the need to choose plaintiffs, defendants, and legal remedies wisely.” (emphasis added)

But while convincing state attorneys general to do their bidding has been a major focus for the proponents, fishing for internal documents is so integral to their overall litigation strategy that the playbook says even local officials can be leveraged for discovery:

“In addition, lawyers at the workshop noted that even grand juries convened by a district attorney could result in significant document discovery.” (emphasis added)

Activists in the climate litigation campaign have taken these lessons to heart. Just days after Wiles was quoted citing discovery as the goal of litigation, Benjamin Franta, a PhD student at Stanford and anti-fossil fuel activist, brought up the document discovery in the tobacco litigation (which those at La Jolla sought to equate to climate lawsuits) as a comparison to show how important this strategy is for the climate litigation campaign:

“And we have historical examples of how to win in litigation, and a great one, of course, is the tobacco litigation, and that failed for thirty years about, before it started to succeed, and that’s when the winning formula was found, which was to combine the science with the historical research that showed that the companies knew, that created this moral and legal culpability that came together with the epidemiology, basically the attribution science. (emphasis added)

“So, we can learn from that, we can, this is my personal opinion, we can make it go faster than the tobacco case. It’s a powerful investigation tool, as was mentioned before. Tobacco is largely the poster child of corporate deception, because of the litigation, because of the 15 million documents that were uncovered through discovery, that’s how those documents were found. We have the tip of the iceberg for the ‘delay’ apparatus that’s been in operation for decades through scholarly research, we found the tip of the iceberg, but through litigation we can find much more, as well, and put a stop to bad corporate behavior that’s ongoing.” (emphasis added)

That Franta said this at a New York City Climate Week panel hosted by the Union of Concerned Scientists – the group that co-sponsored the 2012 La Jolla conference – further solidifies the fact that using discovery to drive additional litigation has been a goal throughout this campaign.

In 2015, plaintiffs’ attorney Matt Pawa, a key participant at La Jolla, wrote a memo to billionaire climate activist Tom Steyer that underscored the importance of discovery to support the climate litigation campaign. Pawa wrote:

“Simply proceeding to the discovery phase of a global warming case would be significant.”

Discovery was top of mind for Pawa in 2016 as well, when he participated in a secret meeting hosted by the Rockefeller Family Fund that focused on how to bring climate litigation against energy companies. That meeting’s agenda shows the goal of bringing litigation and leveraging discovery wasn’t to achieve climate progress, however. Instead participants discussed how to “delegitimize” the energy industry, with discovery being mentioned in the same line as “creating scandal,”

“Which of these has the best prospects for successful action? For getting discovery? For creating scandal?” (emphasis added)

Taken together, it is obvious that an emphasis on discovery has been a main tool employed by the climate litigation campaign since the beginning. Only recently, however, have activists finally started admitting the truth: their hunt for internal documents isn’t about achieving climate solutions or even winning lawsuits, but instead a way for them to bring even more frivolous and expansive lawsuits in an attempt to create “scandal.”