Mainland U.S. plaintiffs’ attorneys are looking for another big payout in Hawai’i after the County of Maui became the second municipality in the state to join the national climate litigation campaign. The move takes place months after the county council approved such a lawsuit, and on Monday, Maui officially filed a public nuisance lawsuit against major energy producers, alleging their marketing, promotion and sale of fossil fuels worsened the impacts of climate change in the community. The county is being represented by San Francisco-based environmental plaintiffs’ firm Sher Edling, LLP, a decision that was also approved by the county council in February.

In addition to other forms of relief, Maui wants the energy companies named in its lawsuit to pay for related damages including a “disgorgement of profits” – an absurd claim that demands past revenue earned by the companies should be forfeited because it was allegedly earned illegally. This is despite the fact that fossil fuel production is – and always has been – a completely legal and essential economic activity that Hawai’i’s economy depends on.

Recall that Maui is joining an effort that has thus far been fruitless – every case that’s been heard on its merits has been soundly defeated, and other Hawai’i municipalities have started to backtrack on filing their own lawsuits because of these losses.

Here’s what you should know about Maui’s lawsuit:

Hawai’i Has Been A Top Priority For the Campaign

Finding a city or county in Hawai’i willing to file a climate lawsuit has been a top priority for mainland U.S. plaintiffs’ attorneys and anti-energy activists seeking to expand their national campaign and earn themselves a massive payday if they’re victorious in court.

In March, plaintiffs’ firm Sher Edling convinced the City and County of Honolulu to file its own public nuisance climate lawsuit against major energy companies. Although the details of the contingency fee agreement aren’t yet clear, if it’s similar to other cases represented by Sher Edling, the firm stands to make a hefty profit. Their agreement with San Francisco in its climate case entitles the law firm to 25% of the first $100 million, 15% the amount between $100-$150 million, and 7.5% of any remaining amount over $150 million.

Honolulu moving forward with its climate lawsuits involved plenty of legwork in the state by Vic Sher, a managing partner at the firm, other lawyers and environmental activists including Ann Carlson, an environmental law professor at UCLA Law School’s Emmet Institute on Climate Change and the Environment, who consults for Sher Edling on some of the firms climate lawsuits.

Sher and Carlson spoke at a panel discussion on climate litigation last year hosted by the University of Hawai’i Richardson School of Law. Their panel was titled “Climate Impact Lawsuits: Nuts and Bolts,” and focused on “legal strategies and the rationale for climate impact lawsuits being pursued across the country.” Underscoring the extensive coordination of the entire climate litigation campaign, the panel was co-hosted and sponsored by the Union of Concerned Scientists and the Center for Climate Integrity. UCS was one of the primary organizers of the infamous La Jolla conference in 2012 where the entire campaign’s legal and PR strategies were devised and CCI has been a driving force behind multiple climate lawsuits targeting energy companies, including those filed recently by Hoboken, N.J. and Charleston, S.C.

Now these plaintiffs’ lawyers and activists from the mainland U.S. have convinced Maui to file a climate lawsuit that also includes a contingency fee agreement that will enrich Sher Edling, should the city achieve a favorable verdict or settlement in the case.

Although details of Maui’s contingency fee agreement with Sher Edling aren’t yet public, it does not mean “there are no upfront costs” for the city, as Mayor Michael Victorino argues. There could still be plenty of costs to taxpayers, including the time and resources government staff must devote to working with Sher Edling, and, as it has been reported, plenty of public funds were spent to litigate similar climate lawsuits filed by the New York and Massachusetts attorneys general.

Hawai’i County is another municipality in the state that’s considered filing a climate lawsuit but has started to backtrack as its leaders don’t seem that excited to join a losing campaign. For example, Hawai’i County Corporation Counsel Joe Kamelamela said:

“There’s a lot of uncertainty…And a lot of that uncertainty comes from knowing that a lot of these similar lawsuits have been dismissed in federal court.”

In fact, the county is only still considering the possibility of a lawsuit because of the money. Hawai’i County Councilman Aaron Chung blatantly admitted in July that he doesn’t want to spend taxpayer resources on hiring outside counsel (like Sher Edling) to represent the county in a case but would be fine with pro bono assistance because it could be lucrative for the county. Chung said of suing energy companies over climate change impacts:

“But if we can get some money from their deep pockets, then sure, why not.”

Maui Copied Honolulu

With Sher Edling serving as the outside counsel for more than a dozen climate lawsuits, they apparently are just going through the motions these days. The complaint for Maui has plenty of similarities to Honolulu’s earlier this year.

Below is language from Maui’s complaint:

“As a direct and proximate consequence of Defendants’ wrongful conduct described in this Complaint, the environment in and around the County is changing, with devastating adverse impacts on the County and its residents. For instance, average sea level has already risen and will continue to rise substantially along the County’s coastlines, causing flooding, inundation, erosion, and beach loss; extreme weather, including hurricanes and tropical storms, “rain bomb” events, drought, heatwaves, wildfires, and other phenomena will become more frequent, longer-lasting, and more severe; ocean warming and acidification will injure or kill coral reefs that protect the island from increasingly intense storm surges; freshwater supplies will become increasingly scarce; endemic species will lose habitat, while invasive and disease carrying-pest species will 5 thrive; and the cascading social, economic, and other consequences of those and myriad other environmental changes—all due to anthropogenic global warming—will increase in the County.”

Below is language from Honolulu’s complaint:

“As a direct and proximate consequence of Defendants’ wrongful conduct, the average sea level will rise substantially along the City’s coast line, causing flooding, erosion, and beach loss; extreme weather, including hurricanes and tropical storms, “rain bomb” events, drought, heatwaves, and other phenomena will become more frequent, longer-lasting, and more severe; ocean warming and acidification will reduce fish catch and injure or kill coral reefs that protect the island from increasingly intense storm surges; freshwater supplies will become increasingly scarce; endemic species will lose habitat, while invasive and disease carrying-pest species will thrive; and the cascading social, economic, and other consequences of those environmental changes all due to anthropogenic global warming will increase in the City.”

Each example can be found in their respective lawsuit’s introduction – the place in the complaint where the municipalities should be listing the specific consequences of climate change that are affecting their unique communities. Instead, the language is nearly identical.  While the two municipalities naturally share many common challenges, nearly identical language gives credence to the idea that Sher Edling may just be trying to file as many lawsuits in as many places as possible to keep the climate litigation campaign money machine churning and set themselves up for a big day, rather than put the time and energy into crafting the best, unique case for each of its clients.

As we mentioned earlier, Hawai’i County Corporation Counsel Joe Kamelamela has been critical of climate litigation, including the lawsuit filed by Honolulu. In reference to that case, Kamelamela said that Hawai’i County could “let Oahu make the mistakes, and then we’ll join when they have been worked out,” effectively freeriding on what could be costly litigation efforts for Honolulu and admitting that public nuisance climate litigation as it stands today is far from perfect. As it turns out, the Maui complaint is eerily similar to that one.

For the record, this is not the first time we’ve seen this. There are multiple instances of near identical language used in the cases filed by the Washington, D.C. and Minnesota attorneys general. Sher Edling is one of the outside law firms representing Washington, D.C. in its case.

Seeking A “Disgorgement Of Profits”

Maui isn’t just looking to make these energy companies pay for damages related to climate change, the city is also seeking a “disgorgement of profits.”

As EID Climate pointed out when Honolulu filed its lawsuit, a “disgorgement of profits” implies that the revenue generated by these companies from producing the fuels the world needs was actually earned illegally and should be given to the city.

Cornell Law School describes this as:

“A remedy requiring a party who profits from illegal or wrongful acts to give up any profits he or she made as a result of his or her illegal or wrongful conduct. The purpose of this remedy is to prevent unjust enrichment.”

This is a ridiculous charge. It is not and never has been illegal to produce fossil fuels in the United States and for Maui to attack these energy companies in this way reeks of hypocrisy. As EID Climate noted last year as plaintiffs’ attorneys were recruiting Hawai’i municipalities, the state’s economy and way of life would completely collapse without oil and natural gas.

Hawai’i’s economy is powered by tourism, which brought a record 9.9 million visitors to the state in 2018 who spent $17.64 billion on lodging, food and beverage, shopping, entertainment and recreation.

How did they all get there? By airplanes and cruise ships, of course. And how are those modes of transportation powered? Jet fuel is primarily manufactured from crude oil, and modern cruise ships are powered by gas turbines or diesel electric engines.

Ironically, Maui’s complaint states: “The County’s tourism industry, which is the County’s leading economic sector, is also at risk from climate change, jeopardizing the livelihoods of County residents who work in tourism service jobs.” Yet, that tourism industry only exists in the first place because of the airplanes and cruises that are powered by oil and natural gas.

Additionally, because of the state’s isolated location and limited land space, Hawai’ians rely on trade for most of their food, clothing, home appliances, and other products and materiel needed for a modern economy. Data from the Commerce Department shows the state imported $4.5 billion worth of goods in 2018, which were brought to the state by airplanes and cargo ships powered by oil and gas.

Conclusion

Maui might be the latest municipality to join the national climate litigation campaign and enlist Sher Edling, but its chances of success are still slim. Similar public nuisance lawsuits filed by San Francisco and Oakland and New York City, along with the New York Attorney General’s case all failed decisively.

Furthermore, the U.S. Supreme Court’s decision to take up Baltimore’s climate case to determine the scope of appellate review will likely delay Maui’s lawsuit from moving forward past briefings on whether the case should be heard in federal or state court – a back-and-forth that has occurred in most of the other climate cases and likely will in Maui’s case. Until then, Maui’s case may remain stalled in court.