Minnesota Attorney General Keith Ellison is again relying on a national network to boost his climate lawsuit by recruiting the plaintiffs’ law firm Sher Edling, one of the key players in the climate litigation campaign, to help represent the state alongside his office.

When Ellison filed the lawsuit this summer, there was a noticeable lack of outside counsel present. Now, court filings made public on Dec. 18 finally reveals that his office has requested that a U.S. District Court allow the firm’s partners, Vic Sher and Matt Edling who are based in California, to serve as outside counsel for the Minnesota case. This isn’t the first time that Ellison and Sher Edling have crossed paths. Last year, both Ellison and Sher sat on a panel at the University of Minnesota Law School to discuss “the legal and scientific case for recovering climate change damages in Minnesota from fossil fuel companies.”

Last Friday, Ellison’s office also filed a brief supporting a motion to remand its climate case back to state court. Both Sher and Edling signed the brief as counsel for the state, as did an official in Ellison’s office. The inclusion of Sher and Edling’s names on the filing further ties Minnesota to other climate lawsuits across the country.

It also raises several key questions:

  1. Considering that Ellison and Sher already knew each other, why wasn’t Sher Edling involved in this lawsuit publicly from the very beginning?
  2. What’s changed since the lawsuit’s introduction that’s caused Ellison to hire Sher Edling?
  3. Is Sher Edling operating on a contingency fee agreement?

Minnesota Supported By National Organizations

This isn’t the first time that Ellison has turned to national organizations for help with climate litigation.

Last year, his office hired two Michael Bloomberg-funded Special Assistant Attorney Generals from the State Energy & Environmental Impact Center at the NYU School of Law. In his application to the SEEIC, Ellison specifically cited his intention to file a climate lawsuit and after announcing the case this summer, he thanked the two SAAGs, Leigh Currie and Pete Surdo, for their “excellent, excellent work.”

Similarly,  activist Michael Noble, the executive director of a Minnesota-based environmental group, Fresh Energy, admitted on a public webinar that his group teamed up with the Center for Climate Integrity (CCI) to personally pitched the attorney general to file the lawsuit. Noble said:

“I want to first just acknowledge that [Center for Climate Integrity] is a national organization that leads on this kind of climate liability, climate litigation. And they brought this concept to Fresh Energy in the fall of 2018, and Fresh Energy helped put this idea in front of Attorney General Keith Ellison shortly after he was sworn in.”

CCI is one of the leading national activist groups supporting the climate litigation campaign. The group sponsors the Pay Up Climate Polluters campaign to boost lawsuits that seek settlements from energy companies and launched the “Climate Costs in 2040” report to support their efforts. CCI’s parent organization, the Institute on Governance and Sustainable Development, is even funding Hoboken, N.J.’s lawsuit.

Sher Edling Driving Climate Cases Around The Country

Minnesota’s decision to bring on Sher Edling shows yet again the highly coordinated nature of the climate litigation campaign that continues to expand its national scope of government leaders, attorneys and activist groups.

Sher Edling is serving as outside counsel in more than a dozen climate tort cases around the country, including those filed by the City of Charleston, S.C., the City and County of Honolulu and for attorneys general in Delaware and Washington, D.C. – the latter of which was filed the day after Minnesota’s own climate lawsuit  and at the time, D.C. Attorney General Karl Racine said was a coincidence. Sher Edling’s involvement with both cases makes this claim more difficult to believe.

To help support their legal work, Sher Edling has received roughly $1.75 million from the non-profit Resources Legacy Fund, a key funder of the debunked “Exxon Knew” campaign.

When Ellison introduced his climate lawsuit this summer, there was a notable absence of outside counsel, a fact that is in contrast to many of the other similar climate lawsuits that have been filed since 2017. That was not lost on Fresh Energy’s Michael Noble, who on that same webinar, said bringing in such a firm would eventually be necessary:

“The attorney general has two full energy and environment attorneys on staff that are managing this, and as I mentioned earlier, the attorney general is definitely going to need an outside counsel to do some of the heavy lifting as this lawsuit proceeds.” (emphasis added)

While Sher Edling now seems to be effectively representing Minnesota in its climate lawsuit, plenty of questions regarding their involvement remain open-ended, one of which concerns what a possible contingency fee agreement between Sher Edling and Ellison’s office may look like.

Such an agreement, which would ensure a large pay out to Sher Edling in the event of a settlement or favorable judgement for the attorney general, has been common practice for many of the other lawsuits where the firm is serving as outside counsel. In San Francisco’s lawsuit, for example, the city agreed to a contingency fee agreement that would entitle Sher Edling to 25% of the first $100 million awarded, 15% the amount between $100-$150 million, and 7.5% of any remaining amount over $150 million.

Earlier this month, KSTP reported that Ellison did not disclose that one of the outside law firms working on his lawsuit against JUUL was also a campaign donor. That firm and another are operating with a contingency fee agreement. Given this arrangement on the JUUL case, it seems likely that Ellison also put in place a contingency fee agreement for Sher Edling on the climate lawsuit.

Conclusion

The Minnesota attorney general’s hiring of Sher Edling is yet another proof point that Ellison has no qualms about relying on the support of private parties and an extensive national apparatus to boost his climate lawsuit.