New Jersey Attorney General Matthew Platkin filed a climate lawsuit last Tuesday just weeks after being confirmed by the state legislature. Platkin was only confirmed to the role officially last month after serving in an interim capacity for several months – which, in New Jersey, is an appointed position – and it looks like the special interests and activists behind climate litigation have successfully pressured Platkin to join the chorus of climate suits filed in states and municipalities across the country. Ironically, the announcement of the case came just three years since a New York State Supreme Court judge ruled against the New York Attorney General on a similar case.
If the talking points from AG Platkin’s press conference sound familiar, it’s because they are pulled from the usual suspects backing climate litigation across the country. Platkin hired Sher Edling to serve as outside counsel, the San Francisco-based law firm that represents dozens of states and municipalities in their climate suits on a contingency fee basis while simultaneously accepting outside funds from wealthy donors. The state of New Jersey has also been a prime recruitment target of the Center for Climate Integrity (CCI), the national activist group directly engaging with states and municipalities around the country attempting to persuade public officials to join the litigation campaign.
Here’s what you should know about the Garden State’s climate lawsuit:
New Jersey Hires Sher Edling
New Jersey is relying on a familiar face as its outside counsel: Sher Edling LLP, the law firm that’s representing more than a dozen states and municipalities across the country in climate lawsuits. Platkin even thanked Sher Edling for its work during his press conference.
In August, bombshell reporting from Fox News revealed that Sher Edling has received over $5 million in grants to finance the firm’s work on climate lawsuits from passthrough non-profits such as the Resources Legacy Fund.
Additional reporting from Fox News just last week shows that Resources Legacy Fund eventually transferred fiscal sponsorship of the Collective Action Fund, the vehicle used to fund Sher Edling, to the New Venture Fund, which the story calls “a nonprofit incubator at a billion-dollar dark money network managed by Arabella Advisors consulting firm.”
Fox News also reported that the Collective Action Fund has received additional funding from the MacArthur Foundation, Hewlett Foundation and the Rockefeller Brothers Fund which have described their support of “precedent-setting lawsuits to hold major corporations accountable” for climate change.
Legal experts have raised ethics concerns about Sher Edling’s use of third-party funds. First, is it legal and ethical for a wealthy donor to give hundreds of thousands of dollars to a pass-through nonprofit entity, which then grants the funds to a for-profit law firm? Moreover, were public sector clients aware of Sher Edling’s third-party funding scheme at the time that they agreed to pay the firm tens of millions of dollars from prospective damages?
Given how quickly New Jersey’s suit progressed once Platkin was confirmed as attorney general, the case also raises questions about whether third parties helped craft the 200-page complaint. In Minnesota, CCI attorneys helped author a legal memo from a University of Minnesota Law School professor to Attorney General Keith Ellison seeking to provide legal justification for Ellison’s eventual lawsuit. And one day after Ellison filed his climate suit, Washington, D.C.’s attorney general filed a lawsuit that was a near copy-and-paste job of Minnesota’s.
Major Involvement of CCI
The activist group CCI, and its network of wealthy funders, have invested heavily in New Jersey to bring this litigation.
In 2017, the Rockefeller Family Foundation gave the Institute for Governance and Sustainable Development (IGSD) a grant over $1 million earmarked for the Climate Education & Litigation Project, CCI’s predecessor. Shortly after receiving this influx of funds, IGSD launched CCI, an integrated campaign that provides “campaign infrastructure, science and communications resources, and strategic direction for communities working to organize around climate accountability, including supporting lawsuits.”
CCI’s project, Pay Up Climate Polluters, then began a years-long campaign in New Jersey, looking for anyone in the state to file a lawsuit against the major energy companies. In Hoboken, CCI was able to drum up media support and pitch risk-free litigation to the city, knowing all the while that its parent organization IGSD would foot the bill for private attorneys to work on the suit on a contingency fee basis. In the lawsuit filed by the City of Hoboken, IGSD pays the fees for the outside counsel Hoboken enlisted in its suit, Emery, Celli, Brinkerhoff & Abady LLP.
On Tuesday, as Platkin was about to kick off his press conference announcing the case, CCI was quick to tout the news. In fact, the attorney general’s account tweeted at 12:00 PM ET about Platkin’s intention to “make a major statewide environmental enforcement announcement.” Just minutes later, at 12:16 PM ET, CCI tweeted a link to the press conference, and at 12:37 PM ET, CCI tweeted out a press release with a statement from its president Richard Wiles.
It begs the question: did the attorney general’s office coordinate with CCI on this lawsuit?
Multiple Failed Attempts Across the River
The New Jersey attorney general alleges the energy companies “systematically conceal[ed] and [denied] their knowledge that fossil fuel consumption” would adversely affect the climate. Such allegations ring similar to the “Exxon Knew” accusations that the New York attorney general touted for so long but could never make stick and eventually declined to bring to trial.
As a quick recap: in 2015, then-NYAG Eric Schneiderman subpoenaed ExxonMobil for all documents related to climate change dated between 1977 and the present, alleging that the company knew much more about the science of climate change than it was disclosing to the public. After investigating over four million pages of documents over the course of nearly three years and finding nothing to support the allegations that Exxon “knew” about climate change and tried to hide the science from the public, Schneiderman was forced to change the justification for his investigation – twice.
By the time a trial came around, the NYAG’s allegations had been whittled down to a relatively obscure allegation of how the company accounts for the costs of potential future regulations on climate change. After a three-week trial, New York state judge cleared the company of all counts in December 2019. The attorney general didn’t even try to appeal the ruling.
But that’s not the only failed litigation attempt out of New York. New York City’s public nuisance case was dismissed in 2018 – a ruling that was upheld on appeal by the Second Circuit last year. The three-judge panel explained in a unanimous decision that global warming “is a uniquely international concern” that should be handled through federal and international policy, not the judicial branch.
Bottom Line: After years of campaigning in New Jersey, activists and plaintiffs’ attorneys finally found a new state official to take up the mantle of climate litigation. In his debut action as the newly confirmed attorney general, the rollout of Platkin’s climate lawsuit rehashes old, debunked #ExxonKnew allegations and features participation from the same lawyers and activists that have manufactured the climate litigation campaign for years. While the lawsuit on its face is nothing new, the involvement of Sher Edling and the timing of the filing and the history of CCI’s involvement in the state suggest that this suit is anything but an attempt to mitigate the impacts of climate change in New Jersey.
