A review of key documents associated with the climate lawsuit filed by the city of Hoboken against major energy producers raise some big questions about the relationship between government leaders, one of the city’s retained law firms and a wealthy foundation that is paying for the case to proceed. The arrangement is also raising red flags about the potential big money payout for the lawyers.
According to a resolution adopted by the Hoboken city council earlier this year, the lawsuit is being bankrolled by a non-profit organization that’s a major player in the climate litigation campaign. In January, Hoboken passed a resolution authorizing a retainer agreement with Emery, Celli, Brinckerhoff & Abady LLP, the law firm that is representing the city in its new climate lawsuit. This agreement states that the Institute on Governance and Sustainable Development will be footing the bill for the legal costs accrued by the city during at least the first several months of its lawsuit.
What is IGSD? An Anti-Energy Foundation Funded By Wealthy Donors
IGSD is one of the many foundations and activist groups intent on destroying traditional energy use and production through a variety of tactics including litigation. The foundation receives funding from the Rockefeller Family Fund – one of several Rockefeller organizations that have manufactured the broader climate litigation and “Exxon Knew” campaigns. RFF gave IGSD over $1 million in 2017 specifically to target energy companies, and has been granting the organization hundreds of thousands of dollars since 2014. IGSD has also received a large donation from a foreign billionaire, but also frequently dodges questions about its donors.
IGSD has created a sophisticated public relations campaign to support the broader climate litigation campaign, complete with academic research, a podcast, and promotional events. Notably, IGSD launched the Center for Climate Integrity (CCI) in 2017 to support “meritorious climate cases aimed at holding fossil fuel companies and other climate polluters liable for the damages they have caused.”
IGSD also hired a lobbyist in 2018 to pressure Fort Lauderdale to pursue a climate lawsuit, working in coordination with EarthRights International and Sher Edling. While those efforts were unsuccessful, time and money spent up the coast have paid off. CCI’s project Pay Up Climate Polluters has long campaigned in New Jersey, looking for anyone in the state to file a lawsuit against the major energy companies. Last week, Pay Up Climate Polluters co-hosted a panel with Monmouth University to discuss the possibility of a climate lawsuit in New Jersey.
This development raises more questions about the relationship between taxpayer-funded government bodies and the private organizations that support for-profit law firms driving misplaced lawsuits.
Hoboken’s Lawyers Stand to Profit Big
As we have seen in Boulder and elsewhere, one of Hoboken’s outside law firms is working on its climate lawsuit under a contingency fee agreement while also presently getting paid by IGSD, a nonprofit organization, for the time its attorneys spend on the case.
Securing a funder for this legal action is an admission that there are costs to the municipalities when they file these suits, even if they’re being represented on contingency fee basis by an outside law firm. And Emery Celli Brinckerhoff & Abady LLP’s retainer agreement with the city of Hoboken details the firm’s hourly rates, which are anything but cheap:
“The firm’s hourly rates, which are subject to change, are as follows: $850 (Richard D. Emery); $800 (Daniel J. Kornstein); $775 (Hal R. Lieberman; Andrew G. Celli, Jr., Matthew D. Brinckerhoff, Jonathan S. Abady and Earl S. Ward); $675 (Ilann M. Maazel); $650 (Diane L. Houk); $600 (O. Andrew F. Wilson, Elizabeth S. Saylor and Katherine Rosenfeld); $550 (Debra L. Greenberger); $500 (Zoe Salzman and Sam Shapiro); $425-$385 (Associates).”
Further, the contingency agreement – which means that the lawyers will only get paid if the case is successful – is the largest payout for a climate lawsuit to date. Considering the law firm is already getting paid by IGSD, that they are also working on a contingency fee basis means that they stand to get paid twice:
In Boulder, the government agreed to award up to 20 percent of any contingency fee to the private law firms supporting the case, including the Niskanen Center and the Hannon Law Firm.
This contingency fee agreement has previously come under criticism. Washington, D.C. has investigated and filed a lawsuit against ExxonMobil with the help of outside lawyers retained on a contingency-fee basis. Andrew Grossman, an attorney with BakerHostetler and adjunct scholar at the libertarian Cato Institute, said:
“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.”
Yet, this non-profit/law firm partnership seems to be a growing trend. In July, EID Climate revealed that San Francisco-based non-profit Resources Legacy Fund has given $1.7 million to Sher Edling, the law firm representing the plaintiffs in many of the climate suits – most recently Washington, D.C. in its case. While there’s still much we don’t know about IGSD, RLF, and their efforts to promote climate litigation across the U.S., one question, in particular, stands out: are these elected officials putting the interests of private foundations ahead the interests of their constituents?
Conclusion
Hoboken’s relationships with activist groups and law firms operating on contingency fee agreement raises plenty questions about whether city officials are placing private sector interests above those of the taxpayers that elected them.
It prompts the need for a closer look at the activist groups behind the lawsuit, the organization paying for the legal work, and the lawyers who will profit no matter the outcome.
