The Competitive Enterprise Institute (CEI) is out with a bombshell report today chock-full of new revelations of inappropriate and “likely unconstitutional” climate activist influence and infiltration of state attorneys’ general’s offices. The report, crafted around emails obtained by CEI senior fellow Chris Horner over a two-and-a-half-year period, provides devastating new evidence of the #ExxonKnew activists’ work to push law enforcement officials to abuse their power. It offers the most comprehensive counterpoint to date of a federal judge’s dismissal of ExxonMobil’s complaint against the New York and Massachusetts attorneys general.
The report presents some of the strongest evidence yet to refute U.S. District Court Judge Valerie Caproni’s ruling earlier this year that questioned whether plaintiffs’ attorney Matt Pawa and his activist allies played any role in pushing state attorneys general to investigate ExxonMobil based on its public statements about climate change. As Energy In Depth reported at the time, Judge Caproni ignored a substantial sum of evidence detailing their activities, including statements made by the activists themselves to Congress.
Judge Caproni also dismissed the possibility that Peter Frumhoff with the Union of Concerned Scientists (UCS) and Matt Pawa, who is leading several climate lawsuits against oil and gas producers, had pitched attorneys general on investigating ExxonMobil:
“Frumhoff’s presentation was entitled the ‘imperative of taking action now on climate change’ and Pawa’s presentation was on ‘climate change litigation.’…It is pure speculation to suggest that the content of the presentations was to encourage baseless investigations of Exxon.” (emphasis added)
But one of the key findings from the report centers on newly unveiled emails about an April 2016 meeting between Illinois Attorney General Lisa Madigan, billionaire environmentalist and Democratic donor Wendy Abrams, and Matt Pawa to encourage the AG to investigate ExxonMobil specifically for alleged climate fraud.
Abrams has served at times as a lobbyist for the Environmental Defense Fund and identifies as a professional environmental activist. She also serves on the boards of the UCS (a leader in the #ExxonKnew campaign), Tom Steyer’s Center for American Progress, the Natural Resources Defense Council, and Robert F. Kennedy Jr.’s Waterkeeper Alliance, among many other environmental groups. Wikileaks’ collection of emails from John Podesta, the chair of Hillary Clinton’s 2016 presidential campaign, show that Wendy Abrams is very close to a “who’s who” of environmental leaders, including Podesta, Tom Steyer, 350.org’s Bill McKibben, Robert F. Kennedy Jr., and the Sierra Club’s Michael Brune.
Pawa has been a key leader in the #ExxonKnew campaign from the beginning, presenting at the infamous 2012 conference in La Jolla, Calif., where activists strategized ways to hold companies accountable for “climate change damages.” Pawa attended a secret meeting at the Rockefeller Family Fund offices (who have financed the #ExxonKnew campaign) on January 8, 2016 where activists plotted how to go after ExxonMobil, with a focus placed on convincing attorneys general to investigate. He is currently representing San Francisco, Oakland, New York City, and King County, Washington, in their lawsuits against energy companies, though three of those cases were dismissed by federal judges earlier this year.
According to Abrams’ email to the Illinois AG, she and Pawa requested “an opportunity to meet with you and your staff in order to provide you with a presentation on Exxon’s early knowledge of climate change and its subsequent campaign of deception and denial” – a theory even New York Attorney General Eric Schneiderman was forced to abandon when the supporting facts failed to materialize after reviewing millions of the company’s documents. According to Horner:
“Document productions not only from Illinois but also from the California (at the time, Kamala Harris) and Connecticut (George Jepsen) OAGs confirm Pawa also presented an April 2016 PowerPoint slide show to those offices. The Connecticut assistant AG for environment’s calendar shows Pawa presented to AG Jepsen on April 19, 2016, in a show titled, ‘What Exxon Knew—And What It Did Anyway.’”
Pawa gave a version of this same presentation at the COP 21 climate conference in Paris in December 2015. One attendee blogged about the presentation, which she said discussed “the prospects of a RICO case against Exxon and other fossil fuel corporations similar to the case brought by the Department of Justice against the tobacco industry.”
Pawa’s presentation was part of a panel discussion that included several of his fellow #ExxonKnew activists, including UCS president Ken Kimmell, Greenpeace’s Naomi Ages, and Carroll Muffett, the president of the Center for International Environmental Law.
The blogger posted several photos of Pawa’s presentation and the accompanying panel, but noted: “I was not allowed to videotape the event, probably because the attorneys who presented understandably do not want details to get out to the opposition” (emphasis added).
Wendy Abrams also asked to bring Steve Berman and Sharon Eubanks to the meeting with the Illinois AG, though they ultimately did not attend. Sharon Eubanks is a lawyer who previously directed the U.S. Department of Justice’s tobacco litigation effort and has been active in the #ExxonKnew campaign for many years. In addition to presenting at the La Jolla conference in 2012, Eubanks also attended the secret meeting at the Rockefeller Family Fund offices in January 2016. Activist Naomi Oreskes told members of Congress at a June 2016 forum that Eubanks recently gave a presentation in Boston to staff from the attorneys general offices involved in the investigations of ExxonMobil. To quote Oreskes, the AGs’ staff heard “a presentation by Sharon Eubanks who had led the US Department of justice prosecution of tobacco industry under the RICO statues.”
Abrams’ email, however, does represent the earliest known participation by plaintiffs’ attorney Steve Berman in the #ExxonKnew campaign. Berman is Pawa’s co-counsel in the four climate liability lawsuits; Berman’s firm absorbed Pawa’s last year, shortly before San Francisco and Oakland filed their complaints. According to a VICE profile of Berman:
“Berman is best known, though, for suing big tobacco in the 1990s. At the end of that fight, he helped negotiate a $206 billion settlement from cigarette makers like Philip Morris, R.J. Reynolds, and Brown & Williamson for causing cancer. It remains the largest legal settlement of its kind in history…
“As our interview came to a close I asked Berman to describe the best-case scenario for all this. ‘Imagine if I could get ten or 15 cities to all sue and put the same pressure on the oil companies that we did with tobacco companies and create some kind of massive settlement,’ he said. He acted as if it was the first time he’d thought of the idea. But I got the feeling it wasn’t.”
Though Berman is certainly hoping to break his prior record for largest settlement ever, judging from the nearly 25 percent contingency fee he’s secured from San Francisco and Oakland, his involvement in Pawa’s pitch significantly advances his participation in the #ExxonKnew campaign. It also raises new questions about his (already questionable) motivations – is Berman truly seeking abatement funds for sea walls, or is he simply seeking to punish companies he doesn’t like?
In preparation for her meeting with the Illinois AG, Abrams also shared a memo prepared by controversial environmental and anti-vaccine activist Robert F. Kennedy Jr., a friend of hers. Kennedy had originally sent the January 2016 memo, which presents a hyperbolic argument for banning ExxonMobil from operating in New York, to New York Attorney General Eric Schneiderman. Horner notes:
“Forwarding even this jeremiad as somehow informative did not apparently diminish the donor’s standing within the Illinois OAG, because emails show AG Madigan spread word of the meeting request among the senior staff ranks, and her scheduler stated that the AG would attempt to do a drop-in on the meeting. Staff members rearranged their schedules to match those of the climate lobbyists.”
As the CEI report helpfully emphasizes, this is not how law enforcement is supposed to operate. The Illinois AG took a meeting with Pawa at the request of Abrams, a very wealthy donor, for the expressed purpose of giving Pawa an opportunity to pitch the AG on an investigation of ExxonMobil. Donors are not supposed to be driving the agendas of law enforcement officials – yet as the CEI report notes, this model was replicated by the New York Attorney General’s office:
“Privilege logs filed by Schneiderman’s office in two Freedom of Information Law (FOIL) suits admit to withholding, as ‘law enforcement’ materials, extensive correspondence regarding—in the AG office’s description—‘company specific climate change information’ with the office of environmentalist mega-donor Tom Steyer and Rockefeller Family Fund Director Lee Wasserman. This correspondence dated back at least nine months prior to Schneiderman’s issuing the first subpoena.”
Horner also uncovered a series of emails referring to a “secret meeting” for AG staff at Harvard University Law School, co-hosted by the Union of Concerned Scientists. The event was called “Potential State Causes of Action against Major Carbon Producers” and many of the key presenters from the La Jolla conference, including Peter Frumhoff, Sharon Eubanks, and Naomi Oreskes. The event featured presentations titled “The case for state-based investigations and litigation,” “Tracing impacts to carbon producers,” and “Public nuisance claims.”
The event was repeatedly described by one of the presenters as a “secret meeting,” yet was referred to as “training” on “carbon producer accountability” by one of the AG staffers that attended. UCS’s Peter Frumhoff told a presenter that “prospective funders” would also be in attendance at the meeting, and separately from that, UCS was willing to pay the travel expenses of the AG staff. Horner writes:
“The host groups decided to belatedly blog about the event as if it were routine, responding to charges not made by anyone, what with the briefing being ‘secret,’ and therefore not (yet) public knowledge. UCS’s Frumhoff, after appealing to his longtime involvement with the issue, closed his May 11, 2016 blog post with ‘Harvard Law School routinely hosts meetings that provide policy makers with opportunities to confer with scholars and practitioners. State attorneys general and their staff routinely confer privately with experts in the course of their deliberations about matters before them.’ For its part, Harvard stated in an undated May 2016 post: ‘It is the normal business of Attorneys General staff to keep informed and to have access to the latest thinking about issues important to their work.’
“Neither post mentioned that participating plaintiffs’ attorneys had been introduced to AGs by at least one major donor to make their pitch. Neither hinted that UCS paid AG lawyers’ way.”
Contrary to the activists’ claims that this is all routine procedure for informing AGs of recent developments, these actions are all part of a coordinated campaign to subvert the democratic process, as Horner writes elsewhere in his report:
“Before his role in the larger scheme was exposed, one of the plan’s key protagonists, plaintiffs’ lawyer Matt Pawa, admitted the campaign’s political nature in an interview with The Nation:
“‘I’ve been hearing for twelve years or more that legislation is right around the corner that’s going to solve the global-warming problem, and that litigation is too long, difficult, and arduous a path. … Legislation is going nowhere, so litigation could potentially play an important role.’
“Notably, a U.S. District Court dismissed a previous suit against ExxonMobil brought by Pawa on the grounds that regulating greenhouse gas emissions is ‘a political rather than a legal issue that needs to be resolved by Congress and the executive branch rather than the courts.’
“Possibly realizing the problem, Pawa subsequently denied the sentiment when emails showing his involvement emerged, telling the Washington Times that it is ‘inaccurate in attributing to me the idea that lawsuits should be used to achieve political outcomes.’
“Disgraced former New York Attorney General Eric Schneiderman expressly linked his campaign to the stalled political agenda at the press conference with Al Gore, citing ‘gridlock in Washington’ for his move ‘to step into this breach.’”
Judge Caproni couldn’t have known any of these details when she ruled against ExxonMobil in March. But the existing evidence of activists’ collusion with law enforcement officials at the time of her ruling was already substantial, including statements to Congress, leaked agendas and emails, and op-eds by the activists and donors confessing that they lobbied the AGs to investigate ExxonMobil. Staffers for the Vermont and New York AGs even instructed Pawa to lie to a reporter who asked about his presentation to the AGs.
The CEI report lays out the existing evidence Judge Caproni overlooked at the time of her ruling and provides crucial new insight via newly-obtained emails from several state attorney general offices aligned with former Attorney General Schneiderman. These new revelations about the UCS-Harvard meeting and Wendy Abrams’ influence on the Illinois Attorney General represent more than enough evidence for the U.S. Court of Appeals for the Second Circuit to rule that the attorneys general are operating in bad faith.