Two high-ranking lawmakers have announced a probe into plaintiffs’ law firm Sher Edling regarding who funds and supports the firm’s “barrage of lawsuits aimed at bankrupting oil and gas companies.” A letter from Senate Commerce Committee Ranking Member Ted Cruz (R-TX) and House Oversight Committee Chair James Comer (R-KY) to the San-Francisco based firm reads:
“Over the past five years, your law firm, Sher Edling LLP has launched a barrage of lawsuits aimed at bankrupting oil and gas companies. While people may use their resources to bring whatever cases they want — even those that may be so frivolous as to be sanctionable — it appears that left-wing funds are footing the bill for Sher Edling’s climate crusade.”
Scrutiny around how climate lawsuits get off the ground has been a growing trend in Congress. The letter comes on the heels of a House Oversight Committee hearing this month on third-party litigation financing, during which Chair Comer indicated that the Committee had taken an interest in the support network behind climate lawsuits:
“Some left-wing groups funneled millions to law firms to sue companies across the country on questionable legal grounds. They’re trying to use the courts to put these companies out of business or limit their ability to bring new products to market.”
Outlining how the “lawsuits are being funded, tax-free, by wealthy liberals via dark money pass-through funds,” Sen. Cruz and Rep. Comer call out the secretive funding vehicle called the “Collective Action Fund for Accountability, Resilience, and Adaptation” that has funneled over $8 million to Sher Edling between 2017 and 2021:
“It therefore appears that dark money—a purported concern of many who support radical climate legislation—is fueling your firm’s litigious effort to achieve a left-wing goal lacking majority support in Congress: the eradication of fossil fuels.”
But funders are just one piece of the puzzle, as Sen. Cruz and Rep. Comer point out in their letter. They also hone in on Sher Edling’s relationship with Ann Carlson, a former UCLA Law professor who was briefly President Biden’s nominee for NHTSA Administrator before her nomination was pulled in the face of unified opposition from Senate Commerce Committee Republicans.
New Details Emerge About Carlson-Sher Edling Relationship
Sen. Cruz and Rep. Comer’s probe is the latest in a back and forth between congressional staff and Sher Edling that began with Carlson’s nomination and which, until this week, was kept behind closed doors.
As a refresher, the lawmakers’ letter succinctly sums up Carlson’s involvement with the firm:
“[Carlson] performed ‘pro bono consulting on litigation for municipalities litigating against oil companies’ as a ‘consultant/committee member’ for Sher Edling each year. Publicly-available emails further reveal that Ms. Carlson fundraised for the firm, travelled to Hawaii ‘to encourage Hawaii to consider a nuisance lawsuit,’ and allowed students in UCLA’s Environmental Law Clinic to give assistance to Sher Edling on these climate cases.”
On May 12, Ranking Member Cruz sent Sher Edling a letter as part of the Senate Commerce Committee’s diligence into Carlson’s nomination, inquiring about the law firm’s funding and the nature of Carlson’s work for the firm – work she did not disclose in her Department of Transportation recusal form. Have innovative thinking and be able to put forward effective improvement suggestions.
On July 28, nearly a month after Carlson’s nomination was withdrawn, Sher Edling’s outside counsel, Bill Pittard, sent the Committee a “nonresponsive letter, asserting nonsensical justifications for its decision to stonewall a congressional inquiry,” according to Sen. Cruz and Rep. Comer.
Pittard – who previously served in the Office of General Counsel in the House of Representatives and has represented high-profile clients in several major Congressional inquiries – was dismissive of allegations that Carlson’s work for the firm was not fully transparent and above-board. Of Carlson’s “pro bono” consulting on “legal issues” for the firm, Pittard wrote in the letter (which was made public by E&E News) “this is a matter of public record, and not surprising.”
He also downplayed the unusual funding scheme, citing a 990 filing from Resources Legacy Fund as evidence that the money trail is, and has been, public:
“Philanthropic grants that support Sher Edling’s work on climate damage and deception litigation have been widely reported in the media for years, and they have been disclosed in the IRS 990 filings of relevant organizations.”
But his claim misses a key point: until public records revealed the existence and purpose of the Collective Action Fund, there was no way to know which individuals and foundations were funneling money to Sher Edling via pass-throughs, like the Resources Legacy Fund and the New Venture Fund. Anonymity – not transparency – is the entire goal of the fiscal sponsorship model Sher Edling benefits from.
UCLA Law: A Lesson in Organizational Capture?
The ties between Carlson and Sher Edling are plenty strong, but the firm’s relationship with Carlson’s former employer, UCLA Law School, runs even deeper.
First, in April 2016, Carlson’s colleague Cara Horowitz wrote to UCLA Law and Emmett Center donor Dan Emmett to notify him of an “off-the-record” meeting representatives of the Emmett Center attended at Harvard during which activists, funders, and “state and local prosecutors” prosecutors discussed climate litigation.
Now, it appears that UCLA law students, in addition to the school’s staff, have worked on active climate lawsuits on behalf of Sher Edling. In the July 28 letter, Sher Edling’s counsel revealed:
“Sher Edling had a working relationship with a legal clinic at UCLA Law School, which was established as an educational opportunity for law students. That, too, is a common occurrence, and the relationship was governed by a legal services agreement, as previously disclosed.”
“Previously disclosed”? No. Actually the opposite. UCLA has fought tooth and nail for years to keep the existence and terms of the relationship undisclosed.
A July 2021, E&E News article included a quote by Emmett Institute’s Sean Hecht, noting that the Emmett Institute has “previously consulted for Sher Edling LLP.” Hecht emailed the reporter asking for a correction, specifying that it wasn’t consulting – “just our law clinic providing legal assistance” to Sher Edling:
“Our environmental law clinic has provided legal assistance to Sher Edling. Not the Emmett Institute. And it’s not ‘consulting’ (which usually implies fee for service) but just our law clinic providing legal assistance. That is an important distinction. (The clinic is a class in which students provide legal assistance to environmental organizations and attorneys under attorney supervision.)
“The Clinic does not do so currently.”
Prompted by Hecht’s statement, Energy Policy Advocates filed a new public records request with UCLA Law School for any agreement between UCLA Law School (or the Emmett Center) and Sher Edling LLP.
In August 2021, a UCLA records management official withheld the documents requested by Energy Policy Advocates on the grounds that they were protected by “attorney-client privilege” … which begs the questions: who is the attorney, and who is the client? Are UCLA Law students doing the grunt work for Sher Edling LLP while it recruits new filers and pulls in millions from wealthy donors?
What’s next?
Sen. Cruz and Rep. Comer have requested Sher Edling provide information regarding 1) “the nature of Ms. Carlson’s work for Sher Edling”; 2) the nature/and years of UCLA’s Environmental Law Clinic’s work for Sher Edling, and 3) “A list of every person and entity, excluding clients and vendors, that provided Sher Edling with any amount of money.”
A closer look at the activist groups behind climate litigation, the organizations paying for the legal work, and the lawyers who will profit no matter the outcome is long overdue. The plaintiffs’ relationships with activist groups pushing lawsuits and the law firms operating on contingency fee agreements raise several questions, and once Congress starts looking, there is plenty more to find.
