State attorney general offices in Massachusetts and New York are continuing a worrisome trend of refusing to release their communications with environmental activists to the public. In Massachusetts, the Office of the Attorney General (OAG) is refusing to release its correspondence with Matthew Pawa and Naomi Oreskes—two high-profile activists who have been advocating for climate litigation since the beginning of the #ExxonKnew campaign. Meanwhile, the New York’s OAG is attempting to seal its communications with an undisclosed environmental lawyer.

Massachusetts Blocks Public Records Request

Recently, the public interest law firm Government Accountability & Oversight (GAO) requested emails between Christopher Courchesne and Mike Firestone, two officials in the Massachusetts OAG, including their correspondence with two of the climate litigation campaign’s biggest proponents—Hagens Berman attorney Matthew Pawa and Harvard researcher Naomi Oreskes. Pawa and Oreskes are both key figures in the broader #ExxonKnew campaign, dating all the way back to their attendance at the La Jolla conference—the workshop that initiated the climate litigation push – in 2012. Since then, Pawa has been hired by several municipalities to represent them in their climate lawsuits against oil and gas companies, and Oreskes wrote a (since debunked) report alleging that ExxonMobil sowed doubt about climate change to the public for years, despite having science that showed otherwise.

The time frame for emails requested—January through April of 2016—coincides with the dates during which Pawa and Oreskes were pitching several attorneys general to investigate and ultimately take legal action against energy companies in an effort to hold them accountable for the effects of climate change.

This correspondence would be instrumental in helping the public understand the outside influence Pawa and Oreskes may have had on MA AG Maura Healey’s three-plus year investigation into ExxonMobil. Yet the attorney general’s office declined GAO’s request in February, suggesting that disclosing these emails “could prejudice ongoing and incomplete investigations by revealing the nature and extent of our information gathering to both targets and other parties.”

After appeals were filed by GAO, the Massachusetts Secretary of State’s Records Officer twice mandated that the OAG must release at least portions of the correspondence, in accordance with MA state law, most recently on April 8, 2019. Yet two days later, the same Supervisor of Records sent another letter to GAO, saying that releasing the communications could impact ongoing litigation—an argument she had previously denied four times. This about-face raises questions of whether the MA OAG may have influenced the Records Officer, and why the office is going to such great lengths to keep their correspondence with Pawa and Oreskes out of the public eye.

New York Tries to Block Discovery

Additionally, the New York OAG is currently operating under similar tactics, though with a twist. The office, now run under newly elected AG Letitia James, is attempting to permanently seal its communications with a currently classified third-party environmental litigator central to the case former NY AG Barbara Underwood launched against ExxonMobil last October.

On April 11, 2019, the NY AG filed a letter in the New York Supreme Court seeking to permanently seal its third-party communications regarding its case against ExxonMobil. Due to the fact that the OAG filed this letter one week past the court-mandated deadline, ExxonMobil has a right to any correspondence between the OAG and outside attorneys. As the company pointed out in its response to the OAG, “NY AG’s motion should not be allowed because it identifies no basis to treat the documents as confidential.” Moreover, “NY AG’s concerns about a chilling effect on reports to its office are irrelevant here” because the third-party communications do not pertain to a witness or confidential informant.

Central to the NY OAG’s argument for keeping this correspondence private is that it would chill the ability of individuals to report to the OAG, yet climate lawyers trying to bolster the NY OAG’s protracted and inappropriate targeting of energy producers are hardly confidential informants. These activists are representing outside—not state—interests, and their motives and actions are still worthy of public scrutiny.

Establishing the outside interests potentially driving state investigations and litigation—especially when these outside interests are activists who have repeatedly shown their anti-fossil fuel bias publicly—is important not only to the cases in question but also to the general public. Reviewing such records would help the general public understand the extent to which activists and third-party organizations have influenced highly political legal actions—at the expense of taxpayer dollars and resources—against an industry critical to the livelihoods and quality of life of all New York and Massachusetts citizens. Attorneys general are obliged to serve their state’s citizens and the public has a right to know by what means their everyday decisions are influenced by outside interests with a motive beyond that of their constituents’ best interest.