*This article has been updated since it was originally published. The updated material is presented at the end.

One of the motivations behind Rhode Island’s ongoing public nuisance climate change lawsuit against energy producers is to secure a “sustainable funding stream” for the state, according to recently released documents. Public interest law firm Energy Policy Advocates (EPA) submitted the bombshell documents to the U.S. First Circuit Court of Appeals this month, citing remarks from a senior environmental official for the state.

The Rhode Island official admitted that they couldn’t secure funding for the climate-focused policies and projects they wanted to undertake through the proper channels – through laws that would raise revenue for the state. Instead, they chose to sue oil and gas companies in a money-grab attempt, and want their case heard in state court where they believe they stand a better chance of circumventing traditional avenues of generating revenue.

EPA’s Proposed Amicus Brief

EPA filed its proposed amicus brief on March 10, asking the court to hear its argument because its brief provided evidence that would help the court decide whether Rhode Island’s climate lawsuit should proceed in state or federal court.

The comments submitted in the brief, from Janet Coit, Director at the Rhode Island Department of Environmental Management, are revealing. In its proposed amicus brief, EPA writes:

“This entry on its face represents a senior official confessing that Rhode Island’s climate litigation is in fact a product of Rhode Island’s elected representatives lacking enthusiasm for politically enacting certain policies, including revenue measures, thus leaving the State ‘looking for [a] sustainable funding stream’ and therefore ‘suing big oil.’” (emphasis added)

The emails and notes, which were obtained via public records requests, come from a two-day meeting in July 2019 hosted by the Rockefeller Brothers Fund (RBF), a sister organization to the Rockefeller Family Fund (RFF). The meeting, which took place at the Rockefeller family mansion at Pocantico, NY, was titled “Accelerating State Action on Climate Change.” In attendance were senior political appointees from fifteen states, including those where a handful of municipalities have either sued energy producers or announced they intend to sue for climate change damages.

Both RBF and RFF have been intimately involved in climate litigation targeting energy companies across the country for years. For example, in January, an Energy In Depth analysis of New York state tax disclosures found that RFF gave the Institute for Governance & Sustainable Development (IGSD) over $1 million to launch an aggressive climate litigation campaign against America’s top energy producers.

The official’s comments were confirmed by notes taken at the event by two separate participants, Carla Frisch of the Rocky Mountain Institute (RMI) and Katie McCormack of the Energy Foundation.

Both the Energy Foundation and RMI are closely tied to anti-oil and gas efforts. RMI is chaired by Ted White – climate activist billionaire Tom Steyer’s lawyer. The Energy Foundation, along with several other large foundations that oppose and actively work to stop oil and natural gas development (including the Rockefeller Brothers Fund), helped fund the Columbia School of Journalism’s biased reporting project that helped launch the “Exxon Knew” campaign.

EPA provided further evidence of Coit’s comments with the Energy Foundation’s Katie McCormack’s typewritten notes, which detailed:

Coit’s “sustainable funding stream” comments provide a peek behind the curtain, plainly demonstrating how Rhode Island officials view the purpose of their public nuisance climate litigation – as a workaround to the legislative system. The comments bring to light the ongoing bias in favor of state court from Rhode Island officials, as EPA outlines in their brief, it is clear that Rhode Island officials seek to use “…(state) courts to effectively create federal energy and environmental policy as stand-ins for the political process that has denied plaintiffs their desired policies.”

Activists: Litigation > Legislation

While Coit’s comments may be surprising to some, they’re not new. Matthew Pawa, one of the plaintiffs’ attorneys representing municipalities in their lawsuits against energy producers, outright stated in a July 2015 interview to The Nation: “Legislation is going nowhere, so litigation could potentially play an important role.”

In its brief, EPA summarizes the problem:

“These notes from the Rockefeller-hosted meeting in July 2019, obtained by Energy Policy Advocates, provide strong impetus to formally confront traits of this ‘climate nuisance’ litigation campaign, which are a grab for revenue and other desired policies that have eluded parties through the political process, seeking the most favorable forum for a court to stand in for that political process.” (emphasis added)

Unfortunately, Rhode Island is just one of many examples of state and local officials across the country ignoring traditional means of raising revenues, and instead turning to trial lawyers to win funds from lengthy nuisance climate cases.

Sher Edling: There’s Nothing to See Here…

Rhode Island’s outside legal counsel in its climate lawsuit, Sher Edling LLP, responded to EPA’s proposed amicus brief with a retort calling the notes nothing more than “hearsay,” claiming that EPA “provides unverified, irrelevant hearsay, comprised of personal meeting notes, purportedly drafted by two non-party individuals unaffiliated with the State or any Defendant-Appellant…”

Throughout its response, Sher Edling argues that “none of [EPA’s] documents or arguments are supported or relevant to any issue before the Court.” Why? Because the law firm says these notes “do not represent a position of the State.”

And yet, the two sets of contemporaneous notes independently confirm the comments of a state official discussing the purpose of the state’s litigation, using nearly identical wording.

The court has not yet ruled on whether EPA will be permitted to submit its brief.

**UPDATE**

Hours after this article was posted, the First Circuit allowed EPA to file its amicus brief, over the objections of Sher Edling and Rhode Island. The state now has until April 2 to respond and speak more directly about Coit’s comments and her relationship to the case.

EPA had technically missed the deadline to file its amicus brief, so the First Circuit Court’s decision to allow the filing could suggest the court has not yet made up its mind on whether the case belongs in federal or state court, and finds the evidence EPA provided to be compelling in that regard.